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Bribery Bill [HL]

It is precisely the same sort of defence. It is set out in the same way as the defence that we are proposing in the Bill. We remain convinced that there is a need for the Bill to cater for those who work for the intelligence services or who are members of the Armed Forces who would otherwise be at risk of prosecution under the Bill in performing their vital functions on behalf of all of us. Indeed, the Joint Committee that scrutinised the 2003 draft Corruption Bill appeared to accept the need in principle for a provision relating to the intelligence services. Clause 12 provides that legal certainty and transparency in the form of a defence that will apply only where the conduct is assessed as necessary in accordance with the respective functions of the intelligence services and Armed Forces. Ultimately, whether the defence case is made out will be a matter for the court or jury. Amendment 20 would limit the operation of the defence for the intelligence services to functions relating to national security. We believe that this would undermine the ability of the intelligence services to combat all relevant threats to the United Kingdom. The defence for the intelligence services in Clause 12(1)(b) correctly, in our view, applies to the, ""the proper exercise of any function of the Security Service, the Secret Intelligence Service or GCHQ"." Parliament has conferred statutory functions on the Security Service relating to national security, economic well-being and acting in support of law enforcement agencies in the prevention and detection of serious crime, while in the case of GCHQ and SIS, Parliament has determined that their respective functions should be exercisable for the purposes of national security, the economic well-being of the nation and the prevention and detection of serious crime. We are very concerned to respect our international obligations to combat bribery and we are confident that the defence, as currently drafted, is consistent with our obligations and, in particular, with the relevant OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. As I made clear in the previous debate, we have specifically excluded from the definition of a "relevant bribery offence" for the purposes of this clause conduct that would amount to an offence under Clause 6 of the Bill; that is conduct that would amount to the bribing of a foreign public official with the intention to obtain or retain business or an advantage in the conduct of business. I hope that that goes some way to satisfying the House, especially my noble friend Lady Whitaker who asked a particular question about that. Restricting the defence to functions relating to national security is in our view unjustified. Indeed, the proposed amendment goes further than the Constitution Committee, whose report of 4 December appeared to accept that, ""there may be a case for such a defence in the context of the Security and Secret Intelligence Services' statutory functions in connection with national security and with the prevention and detection of serious crime"." But we take issue with the Constitution Committee’s earlier criticism of the extension of the defence to the services’ statutory function, ""to safeguard the economic well-being of the United Kingdom’," as set out in its December report. As we tried to make clear in our response to the Select Committee, the intelligence services may need to take action to monitor events and trends to safeguard the well-being of the United Kingdom, which is one of their statutory functions. That could include intelligence or instability in a part of the world where substantial UK economic interests were at stake. It might also concern threats to the supply of energy or other commodities vital to the UK economy; or external attempts to manipulate commercial markets, especially where such actions could undermine confidence in the City of London or the stability of other financial markets. In answer to the question asked by the noble Lord, Lord Williamson, through the examples that I have given, I have tried to make it clear that not all the matters falling to the intelligence services relate simply to national security, and that there is an operational need for the defence to cover the full range of statutory functions, including economic well-being and the prevention and detection of serious crime. I welcome the fact that in its latest report, hot off the press today, the Constitution Committee seems to have accepted, or at least not disputed, the Government’s explanation for including the intelligence services’ economic well-being function. On Amendment 21, which seeks to strike out the defence as it applies to the functions of the Armed Forces, we regard it as just as important that we should not criminalise conduct that would amount to bribery by those performing functions of the Armed Forces where it is necessary for the proper exercise of those functions during active service. There may be occasions in the course of military operations when conduct that would amount to bribery under the Bill will be required. We can all think of examples—to secure critical intelligence or assistance in support of operational effectiveness or to ensure the safety of military personnel. Service personnel should not be put in a position whereby they have committed a criminal offence under the Bill by the proper performance of their duties. That would put their commanders in an impossible and unacceptable position when issuing orders. This House always recognises the dedication, professionalism and sacrifice of members of the Armed Forces and we owe a considerable debt to the members of our Armed Forces on active service. Clause 12(1)(c) provides the appropriate legal certainty that where members of the Armed Forces are faced with difficult operational circumstances that require the use of financial or similar inducements to achieve their objectives, they will not risk prosecution. We have listened and responded to the concerns about the breadth of the clause as drafted. On further reflection, we are content to make a significant change to the clause by removing the limb of the defence that applies to law enforcement agencies. To answer the noble Lord, Lord Henley, the police will have to rely on prosecutorial discretions. But we remain firmly of the view that it is essential for the effective operation of the intelligence services and Armed Forces that we retain the defence as it applies to them. I hope that what I am saying will be taken seriously: Clause 12, in its amended form, is for the Government a vital and crucial part of this Bill. I invite the House to accept the government amendment and agree that the clause should otherwise remain as it is. If the noble Lords, Lord Goodhart and Lord Thomas, were minded to press either of their amendments to a Division, I strongly urge the House to reject them. Amendment 19 agreed. Amendment 20 Moved by