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Bribery Bill [HL]

My Lords, this group of amendments raises what I have certainly found to be a difficult issue. The amendments deal, in two very similar versions, with prior authorisation by the Secretary of State of acts of bribery as a defence to prosecution. I heard the arguments presented in Committee by the noble and learned Lords, Lord Pannick, Lord Mackay of Clashfern and Lord Woolf. I know that the noble Lord, Lord Pannick, is not within the customs of this House regarded officially as a learned Lord but he undoubtedly is one. When I first heard those arguments, for a while I found them persuasive. Those three and the noble Viscount, Lord Colville of Culross, who was unable to attend the Committee stage, make a powerful foursome, but on further consideration I found the balance beginning to move the other way. The advantage of the authorisation is obvious. Individual members of the security services, with the benefit of an authorisation, can be satisfied that they are not liable to prosecution if they do what they have been authorised to do. However, there are serious drawbacks as well. The first, I believe, is that too much power—indeed, I believe an unconstitutional degree of power—is given to the Secretary of State. Under the Pannick, Mackay and Woolf version, the authorisation may be given by the Secretary of State not just to one individual for one action but for class actions and to a class of persons of a specified description. The Secretary of State has the power to decide whether persons in a class decided by himself are to be allowed to commit bribery in relation to particular types of action or inaction. In effect, therefore, the Secretary of State is making the law. In my view, it is plainly what could be described as a Henry VIII power. Such a power can of course be dealt with by parliamentary scrutiny but, for obvious reasons, there can be no parliamentary scrutiny of an authorisation. I regret that the Constitution Committee, in its second report on Clause 12, did not take that into account, because I believe that it is a very important reason for not approving this group of amendments. Furthermore, once the authorisation has been given, however misguidedly, no one can be prosecuted. The people who acted on the authorisation are protected by it. The Secretary of State cannot be prosecuted for giving an unjustified authorisation because, under this group of amendments, no sanctions can be imposed on the Secretary of State, even if his grant of authorisation is by any reasonable standards wholly unreasonable. There are other drawbacks—in particular, the amount of time that will be required to be spent by the Secretary of State in studying and approving these authorisations. Having considered these issues, I have come to the conclusion—I did not start with it—that this group of amendments is not one that I feel your Lordships’ House should support.