---

Bribery Bill [HL]

My Lords, I shall speak also to Amendment 30 in this group. These amendments are in my name and those of the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf. They are designed to ensure that acts of bribery by the state are lawful only when they are authorised in advance by the Secretary of State or, in urgent cases, by a senior official acting on his behalf. As your Lordships’ Select Committee on the constitution has advised in its further report published today, it is unsatisfactory to leave regulation of possible acts of bribery by the state to post-event assessment through the inevitably cumbersome machinery of the criminal law. The circumstances in which it is necessary for the state to bribe others raise such important issues of public interest that it is highly desirable that such acts do not occur without prior authorisation, not just by the security services or the Army, but by the Secretary of State answerable to Parliament. I recognise and respect that the Minister has the difficulty that he cannot refer publicly to details or types of operations, the secrecy of which is vital to their efficacy. However, dealing with the issue as a matter of principle, the Minister, in Grand Committee and in his helpful response to the earlier report of your Lordships’ Constitution Committee, raised three main arguments against a prior authorisation procedure. The first argument is that it would be unworkable because it would impose an undue administrative burden. Of course, a prior authorisation procedure is already to be found in Sections 5 and 6 of the Intelligence Services Act 1994, which provides for the Secretary of State to authorise entry into property or interference with wireless telegraphy. Under the Act, the Secretary of State personally considers and authorises a large number of operations. The Secretary of State also personally authorises interception warrants under the Regulation of Investigatory Powers Act 2000. I accept that the volume of potential bribery cases may be larger. That is why the amendment would allow the Secretary of State not only to authorise a specific act of bribery, but also to authorise acts of a specific description on a class basis, or acts done in the course of a specified operation. The Secretary of State will not need to consider, and may in practice be unable to consider, each and every act of bribery. There would be an administrative burden on him to authorise at least classes of acts of bribery. He would need to consider, no doubt on the advice of the intelligence services or the Army, what types of acts of bribery were necessary either generally or in the course of a specified operation. That is precisely what the Secretary of State should be doing in this important context. The second objection raised by the Minister is that if authorisation is to be conducted on a class basis, the classes will inevitably be so wide as to be meaningless. I hope and expect that the Secretary of State would, with the advice of the intelligence services and the Army, specify classes of acts of bribery that would be sufficiently specific to provide useful guidance on the circumstances in which these acts by the state were necessary. Involvement of the Secretary of State in this way, on such an important issue, would serve a valuable function. The third and final objection raised by the Minister to a prior authorisation procedure is that Clause 12 already ensures that the Director of Public Prosecutions will consider the specific facts of an individual act of bribery, and that this is, as the Minister says, a more focused mechanism than prior authorisation, particularly if that is on a class basis. The fallacy in that argument, I respectfully suggest, is that it seeks to contrast prior authorisation and prosecution by the DPP as alternatives between which the House must choose. However, as pointed out by your Lordships’ Constitution Committee —of which I and the noble and learned Lord, Lord Woolf, are Members—both prior authorisation and the power of the DPP to prosecute are vital public protections in this context. The reason is that it is wholly unrealistic to think that the criminal process will provide a restraint on acts of bribery by the intelligence services and Army other than in exceptional circumstances. The issue is simple: is it sufficient for the authorisation for acts of bribery to come simply from within the intelligence services or the Army, or, as I suggest, is bribery by the state so important a matter of public interest that prior authorisation should be by the Secretary of State, or at the very least pursuant to a decision by him? Finally, proposed new subsection (11) in Amendment 30 overlaps with Amendment 20, which will be debated in the next group. Proposed new subsection (11) would allow for a defence only if the purpose of the proposed act of bribery was not solely to advance the economic interests of the United Kingdom. It would be inappropriate for that important issue to become part of the distinct debate that we are now having on the merits of a prior authorisation procedure. If Amendment 30 is formally moved at the close of the debate, I will move a manuscript amendment to delete proposed new subsection (11) from Amendment 30. I understand that the Minister does not object to the manuscript amendment. For all those reasons, I beg to move.