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Bribery Bill [HL]

My Lords, Amendments 20, 21, 23, 25 and 29 offer us two alternatives. Amendment 29 would strike out the whole clause while the other amendments would limit the defence as it applies to the intelligence services and deny the defence to those pursuing the legitimate functions of the Armed Forces. Let me try to deal with the broader proposition first—in other words, Amendment 29. In our judgment, it is important that we provide a defence for the proper exercise of the functions of the intelligence services and the Armed Forces engaged on active service. There will be occasions when the intelligence services and the Armed Forces have to engage in conduct that amounts to an offence under the Bill, not under Clause 12 but under other clauses. That will be the case whenever a financial or other advantage is used with the intention to induce or reward the improper performance of a relevant function of a public nature or any activity connected to a business or employment. It is important that the individuals tasked with carrying out these important functions can do so on the basis of a secure and transparent legal footing. Some noble Lords have argued that this concern can equally be addressed through the exercise of prosecutorial discretion—the noble Lord, Lord Thomas, suggested that just now—and the public interest test. We have to say that such an approach would not provide the necessary legal certainty in the context of the work of the intelligence services and Armed Forces. Individuals who exercise these important functions on behalf of all of us, of our country, have a right to expect appropriate legal cover for their conduct when discharging their duties. To ask someone to offer a bribe in the knowledge and belief that their actions were unlawful would place these personnel in an invidious position, even if no prosecution followed. The defence makes it clear that, should a person exercising a relevant function set out in Clause 12(1)(b) or 12(1)(c) ever be charged with an offence, he or she would have a defence that could be put before the court. Clause 12 will also assist prosecutors in deciding whether a prosecution should be brought. So when there is a suspicion that someone has committed the offence of bribery under the Bill, the first thing that will happen will be that the prosecutor looking at whether a charge should be brought and the prosecution continued will look at the defence in Clause 12 and decide whether a prosecution should be brought in those circumstances. If they decide—as they nearly always will, one might surmise—that a prosecution will not be brought because it comes under the defence in Clause 12, then the matter will not go to court. The further protection for someone when the prosecutor looks at a case and decides that it should go to court, because they are not satisfied that it falls within Clause 12, will be the jury. That person will have the chance to persuade a jury, on balance, that they too are covered by Clause 12. The noble Lord, Lord Thomas, said that the defence cannot work. He assumes that the only value of the defence is in the course of the trial, but that is not the case. As well as providing the legal certainty we should be seeking for the intelligence services and Armed Forces, the defence provides a clear pointer for prosecutors when deciding whether or not to charge a person with an offence under the Bill. Can the defence work? The noble Lord thinks that it cannot, but Parliament has already approved something very similar in Section 1(1)(b) of the Protection of Children Act 1978.