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Bribery Bill [HL]

My Lords, I think the point that we are all trying to cover is the protection of the security services and the Armed Forces in offering favours or money in order to obtain information or whatever it is that is necessary for them to carry out their role. Four ways have been discussed in the proceedings on the Bill. The Government’s approach is to have a statutory defence open to members of those services, which is what we see in Clause 12 or Clause 13. Another way would be prior authorisation, which the amendment argues for. A third way, which I have previously argued for, is to allow prosecutorial discretion. The director of the Serious Fraud Office or the Director of Public Prosecutions would have ample discretion to prevent prosecutions of members of their services if it was in the public interest not to prosecute them. I set out a fourth way in my amendment to Clause 1, which is simply to make it not an offence for a member of those services to do those very acts. To my mind, that is a simple, straightforward way of dealing with it, and my first and second amendments were merely redrafting the Government’s provisions to make what I regarded as a far more practical way of dealing with the object that we all have in mind. I heard the criticism by the noble Lord, Lord Foulkes, of lawyers, and I am not surprised about that. Even he will concede that he does not know—many people do not know—precisely how the courts work in practice. You need to have considerable experience to appreciate that a reverse burden of proof is not a very satisfactory way of proceeding. Indeed, reverse burdens of proof have made a lot of people in the legal profession a lot of money over the years, not only in this country but in Strasbourg. I recall in particular the case of the Attorney-General of Hong Kong v Lee Kwong-kut, which was before the Privy Council here and was concerned with the interpretation of the bill of rights in Hong Kong. I was for one of the parties in that case, and the noble and learned Lord, Lord Woolf, gave the lead judgment, in which he pointed out that putting the legal burden on the defendant is right when, among other instances, the defence depends on facts within the defendant’s own knowledge. For example, in Clause 7, there is a statutory defence for a company to prove that it, "““had in place adequate procedures””." Why is that satisfactory? Because it is within the company’s own knowledge as to what adequate procedures it has and what it can advance. My criticism of Clause 13 as it now stands, and the reason why I opposed it and wish to strike it out, was that a person who is in the security services or the Armed Forces cannot possibly have access to the evidence which would be required for him to support such a defence. He would not, as I said on the last occasion, be able to walk into the offices of MI5 and demand to see the papers on which his defence would depend. If he was in the armed services, he would have great difficulty in bringing witnesses from the far reaches of the earth, where the British forces may happen to be and where the offence might have been committed, and obtaining papers the release of which would probably be resisted by the Ministry of Defence. It is impractical. I still share the same object as others. I am disappointed that what I regarded as a redrafting has seemed to the usual channels to be in breach of the Third Reading amendments principle. There it is: the Government have tied themselves to the worst of the four courses I put forward. For that reason, we on these Benches will support pre-authorisation, which is a better solution for the particular problem.