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Bribery Bill [HL]

Then we have misunderstood the noble Viscount’s amendment. I thank him very much for pointing out what he meant. In both sets of amendments, the terms of the proposed authorisation closely follow the model of an existing scheme in Section 7 of the Intelligence Services Act 1994. That section ensures that activities that are undertaken not at home but overseas by the SIS—and, by virtue of Section 116 of the Anti-terrorism, Crime and Security Act 2001, also those of GCHQ—and that might otherwise expose its officers or agents to liability in the UK, are, where authorised by the Secretary of State, exempt from such liability. The House should note that Section 7 does not address the activities of the Security Service or conduct by the other intelligences services in the United Kingdom. The Government originally proposed an authorisation scheme for the intelligence services in the draft Bribery Bill. This was also modelled on Section 7 of the 1994 Act and would have provided for authorisation by the Secretary of State. That scheme did not find favour in the report of the Joint Committee that considered the Bill. I fully accept that the Joint Committee’s concerns were not focused on the authorisation scheme but on the case for an exemption for the intelligence services. None the less, the Joint Committee’s final report recommended the removal of the scheme from the Bill. Having reflected on our original proposals in the draft Bill and on the Joint Committee’s response to it, we concluded that the defence in Clause 12 is preferable to an authorisation scheme. I should say to the noble Viscount that the reason for choosing Clause 12 had nothing at all to do with the law enforcement agencies being brought into the Bill. In our view, there are a number of significant drawbacks to any proposal for the Secretary of State’s authorisation of conduct as proposed in these amendments, especially when coupled with a defence, compared with the defence in Clause 12. An authorisation scheme for this Bill has to cater for all the intelligence services and for the Armed Forces. We strongly argue—indeed, it might almost be conceded—that it is clear that case-specific prior authorisation of conduct on the part of or on behalf of either the intelligence services or the Armed Forces would be impracticable simply as a matter of logistics. One has only to consider the practicalities of such a scheme in an operational environment such as Afghanistan to appreciate the difficulties of case-specific prior authorisations. Decisions must be made at a moment’s notice and in a distant and highly pressured setting. Ministerial oversight prior to the conduct taking place is simply unworkable. Frankly, the proposition is, if I may say so, absurd. We have similar concerns about a case-specific authorisation scheme for the intelligence services. Consultation with the agencies concerned has confirmed that consideration on a case-by-case basis by the Secretary of State would be entirely unworkable because of the potential number of authorisations involved. The alternative to a case-specific authorisation scheme would, as we have heard, authorise a class of activity over a lengthy period; the amendment suggests up to six months. In the Government’s view, the value of such a scheme as a check on the appropriateness and proportionality of the services’ operations, or in importing some sort of ministerial accountability, would be very significantly reduced. The latest report from the Constitution Committee suggests that such a scheme would provide, ""a measure of oversight by a Minister who is accountable to Parliament"." However, the terms of a broad class-based authorisation in this context would arguably have to be so wide as to bring into question the utility of such an approach in securing the objectives which the Constitution Committee itself sets out. In contrast to an authorisation scheme, the Clause 12 defence is case-specific and ensures that the necessity or otherwise of the conduct is tested by reference to the roles of the individuals concerned and to the particular circumstances of each case. I remind the House that, if the government amendments in the next group are accepted, the defence will apply only where the conduct is assessed as necessary in accordance with the respective functions of the intelligence services and the Armed Forces. What I am about to say is particularly important in relation to Clause 12. Prosecutors will be able to review cases that are passed to them independently and in accordance with the usual evidential and public-interest tests. They will look at the offence as set out in Clause 12 and the defence that is attached to it. Ultimately, of course, the prosecutor decides whether the matter should go further. It will be a matter for a jury to determine whether the defence is made out. The defence provides legal certainty. It is a transparent, proportionate and comprehensive solution to what is a sensitive and difficult issue. What about augmenting the defence by having two tests? We are not persuaded that it should be augmented by an authorisation scheme of the kind that is proposed in these amendments. Although we are encouraged that noble Lords appear to be content with the defence in principle, it is difficult to see what coupling a defence with an authorisation scheme would actually achieve. Indeed, we think that it undesirably combines two separate models for dealing with this issue. Noble Lords will recall that the authorisation scheme in the draft Bill, as with the scheme in the 1994 Act, had nothing to do with a defence. Where an authorisation was given, the effect would be to render the conduct lawful. In other words, an authorisation amounted to an exemption for the conduct from possible criminal liability. Clause 12 is based on a different model of a defence, which for reasons that I have explained we consider to be more appropriate in this specific context. It provides a defence to a bribery charge if the relevant conditions are met. This approach has precedent in primary legislation—namely, the defence available for particular child pornography offences in the Protection of Children Act 1978. The defence in Clause 12 is drafted in very similar terms to that in the 1978 Act. If either of these amendments was carried, we would end up with both models being applied at the same time. We do not believe that that would make sense either in principle or in practice. Both amendments retain the defence but augment it with an authorisation requirement in respect of the conduct. That would create a scheme that is much more onerous than either the defence model or the authorisation model, which Parliament previously approved as appropriate models for addressing this issue. As the scheme would remain linked to a defence, the existence of the prior authorisation would not be conclusive. It would not, unlike the authorisation scheme proposed in the draft Bill, mean that no offence was committed. A person whose conduct was authorised could still be prosecuted and, in order to avoid guilt, would have to establish that the conditions of the defence applied. This is precisely the same process with the defence model in the Bill. The authorisation requirement would add an unnecessary and unwelcome extra layer of bureaucracy into the process for little obvious benefit.