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Bribery Bill [HL]

My Lords, I apologise to the noble Lords, Lord Goodhart, Lord Williamson, Lord Borrie and Lord Henley, the noble and learned Lord, Lord Mackay, and the noble Earl, Lord Onslow, for not thanking them for their contributions in the previous debate. It was the pressure that we received from those noble Lords in Committee that led to our change of heart. I have particularly enjoyed some support so far this afternoon from those on the Liberal Benches. However, now is the time to be honest and say that, grateful as I am, I am not able to indulge a movement as far as they are requesting. The new clause suggested in the amendment of the noble Lord, Lord Thomas, touches on many of the same issues addressed in the previous group of amendments. On the duty of the Secretary of State to publish guidance in relation to Clause 7 and, in particular, the defence in subsection (2), it is important to draw a clear distinction between the role of government and that of the courts and the independent prosecuting authorities. I cannot stress too highly that it is not the role of government to determine whether any procedure is "adequate" for the purposes of subsection (2) of Clause 7, either as a general response or in response to a specific request from a commercial organisation. The determination of that issue is one for the courts alone in the context of individual criminal proceedings. That position nevertheless leaves the Government free to fulfil the entirely different and appropriate role of issuing guidance to commercial organisations to assist them in understanding what anti-bribery practices and procedures may be effective and in deciding which of those they may wish to put in place, depending very much on their size, market and assessment of the risk of bribery in their particular circumstances. In many respects, the scheme envisaged by the noble Lord, Lord Thomas, represents a hybrid version of the schemes provided by the US Department of Justice and the Independent Commission Against Corruption in Hong Kong. The Joint Committee on the draft Bribery Bill considered the pros and cons of introducing a scheme along the lines of those operating in the United States and Hong Kong. Although the Joint Committee heard evidence from a number of witnesses from the business community in support of an advisory service and acknowledged that such schemes could have benefit, it rejected the idea on the grounds that it would be incompatible with our system and in particular may prejudice the independence of prosecutors.