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Bribery Bill [HL]

My Lords, I had not previously intervened on your Lordships’ discussion on this Bill and I would have been very reluctant to do so at this stage if a matter of some importance had not been drawn to my attention. I accept that if I had been more assiduous I would have grasped it earlier, when I could have discussed it with the noble Lords, Lord Goodhart and Lord Thomas, and with my noble friends on the Front Bench. While we are on the subject of Amendment 20, I advance two propositions, which your Lordships may think are self-evident. The first is that this country relies very heavily on the collection and processing of intelligence for its national security and for dealing with serious crime and terrorism. The work of the intelligence services may save the lives of many thousands of people. The second proposition is that the effectiveness of those who process the intelligence depends entirely on not letting those under surveillance know either that they are under surveillance or what the methods or capabilities are of those who carry out the work. Clause 12 presents a problem at the stage when there is a prosecution. If, as some noble Lords suggested, there never are any prosecutions, the question may not arise—but it rather raises the question, "Why create an offence?", if it is never going to be prosecuted. If there is a prosecution and the defence relies on Clause 12, it will have to establish that what was done was necessary for any function of the security service. That can be done only if it identifies the function; it will need to describe it and say what is entailed by processing it and say what is done by those who exercise it. If the prosecution wished to challenge the defence, it would need to ask questions about the nature of the function, who exercises it and what they will have to do to exercise it. If the jury has to decide on the defence, it will have to have explained to it the nature of the function, what it entailed and what was done under it. That is going to be very difficult without disclosing just the very things that the security agencies are desperate not to have widely known. Of course, if something emerges once—if a secret emerges—it will no longer be a secret. You cannot close the door afterwards or reverse the process, and a great deal of damage may have been done to the capabilities of the agencies. It will require a very wise and strong judge to hold the balance between questions that are necessary for a fair trial and the security of those who have to carry out these very difficult capabilities. I can see that those who take part in the case will be treading on eggshells. If they make a mistake once and if, once, something emerges that is very damaging to the services, it will be too late to reverse the operation. I recognise the need for Clause 12 and understand that the security services are dealing with personnel who have very difficult jobs. They want to be assured that they will not be convicted of a criminal offence, so all our discussions today have been directed to that point. It will not be enough to say, "Oh well, we never know quite what the outcome of the proceedings will be, but you probably won’t be convicted". They will need to be assured that they are not in danger of conviction, which would have to be achieved either by Clause 12 or by the other safeguards suggested in the course of the debate. For that reason, I recognise the need for Clause 12, unless some of the other amendments find their way on to the statute book. It would probably be possible to keep the evidence sufficiently unspecific for the major damage to the agencies to be avoided but, if there were some amendment that would avoid that difficulty, I would be minded to support it, and I shall listen with great interest to what follows in this debate. The suggestion made by the noble Lord, Lord Goodhart, in Amendment 20 is likely not to modify the situation but to exacerbate it. If you circumscribe the functions that will qualify for the defence, it will be necessary to ask even more questions. The details will become more detailed. I should have thought that that answer would cause a great deal of problems to our courts. For that reason, I venture to draw attention to this problem for your Lordships.