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Bribery Bill [HL]

My Lords, at this very late stage of the Bill, I hope that the House will forgive me if I intervene on behalf of my noble friend Lord Henley. Indeed, it is appropriate that the shadow spokesman on transport is standing in his place because he is stuck in a broken-down train. I will say what I believe he might have said had he been here to say it. Amendments 3 and 6, which were tabled by the noble Lords, Lord Goodlad and Lord Pannick, and the noble and learned Lords, Lord Mackay of Clashfern and Lord Woolf, seek to qualify the provision in the Bill by inserting further requirements on the defence to the offence of bribery for the secret services and the Armed Forces. Amendment 3 amends Clause 10 in order to make it impossible to prosecute a member of the Secret Services or the Armed Forces for bribery if their conduct was specifically authorised by the Secretary of State. Amendment 6 inserts a new clause, after Clause 13, requiring the Secret Services and the Armed Forces to keep records of all acts that would constitute a bribery offence were it not for the provision in Clause 13. We are minded to favour the approach put forward by the noble Lord, Lord Pannick, in Amendment 3. We have accepted the position that there needs to be a defence against the offence of bribery for certain classes of person. Those classes have been debated and amended, and now consist of the Armed Forces and the intelligence services. We have accepted that there are circumstances when men and women who are acting in the interests of the United Kingdom may need to perform acts which ordinarily would not be permitted. The supporters of Amendment 3 have identified some principles which need to be upheld, notwithstanding our acceptance that some latitude needs to be shown for persons operating in the country’s best interests, in what may be very challenging circumstances. It is fair to say that bribery by the state, which is effectively what Clause 13 would allow as a defence to general offences of bribery, is so important a matter of public interest that the Secretary of State, as the Minister responsible—and directly answerable to Parliament for his actions—must be involved in its prior authorisation. On Report, my noble and learned friend, Lord Mackay of Clashfern, made the powerful argument: "““The rule of law suggests that the Government should obey the law like everyone else””.—[Official Report, 2/2/10; col. 162.]" Any derogation from this principle should need explicit authorisation. Amendment 3 requires that the Secretary of State must consider what he is prepared to authorise. Ahead of any use of the state’s powers to commit bribery with impunity, the Minister who is answerable to Parliament must give thought to what those powers will be used for. The amendment will require the active participation of the correct authority, and I can see much constitutional merit in that argument. The Government have told us before that they want safeguards in place so that officers and agents of the state are not left in a position where they do not know whether or not their actions amount to criminal conduct. We agree that Amendment 3 will do nothing to weaken the certainty given to members of the Armed Forces and intelligence agencies. Rather, we believe that the certainty that they were acting correctly would be strengthened by subjecting their possible actions to prior authorisation. We are also not particularly swayed by the argument against Amendment 3 made by the noble Lord, Lord Foulkes of Cumnock, and the noble Baroness, Lady Whitaker, that a system of prior authorisation would be too cumbersome. The Government have already laid their own amendments to limit the groups of people to whom Clause 13 would apply. From our reading of Amendment 3, there is nothing which would prevent a class of acts, operations or persons being granted prior authorisation. As the thoughtful speeches made by noble Lords today have shown, this is not an easy issue, and there are powerful arguments to be mustered on either side. Perhaps it is even fair to say that there are more than two sides to this argument. However, having listened carefully to what noble Lords have said, we are persuaded that the course laid out by the noble Lord, Lord Pannick, and supported by the noble and learned Lord, Lord Woolf, my noble friend Lord Goodlad and my noble and learned friend, Lord Mackay of Clashfern, is the most appropriate to follow. We will therefore give Amendment 3 our support in the Content Lobby if noble Lords are minded to test the opinion of the House.