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Bribery Bill [HL]

My Lords, I do not think that the noble Lord is rephrasing at all. It is doubtful whether either set of amendments is fully in line with the guidelines set out in our rules. This is how things have ended up. I readily accept that there are different approaches to this issue, as the noble Baroness said a few minutes ago. One approach would be to provide for a blanket exemption for conduct by the intelligence services and the Armed Forces. A second approach is to provide a defence, so that a person who would otherwise be guilty of an offence under the Bill will not be guilty of an offence in the circumstances where the defence applies. After careful reflection, that is the approach that we have adopted in Clause 13. I readily accept that it is a departure from the approach in the draft Bill, but as with the Constitution Committee, particularly in regard to the Armed Forces and prior authorisation, our thinking on this has developed over time in close consultation with the intelligence agencies and the Ministry of Defence. The third approach, which is the one favoured by the members of the Constitution Committee of this House and the noble Viscount, Lord Colville, is an authorisation scheme. We also have hybrid models which seek to marry up an authorisation scheme with the defence. I do not suggest that one or other model is clearly the right one, while other models are wrong. Of course, a case can be, and has been, made for each one. However, after careful and extremely extensive deliberation, including with the intelligence services and the Ministry of Defence, we are satisfied that the defence provided for in Clause 13 provides the right mix of transparency, accountability and operational practicality. It is incumbent on me to explain why we do not agree with the noble Lord, Lord Thomas of Gresford, that it would be impossible for a defendant to be able to run a defence fairly. The noble Lord argues that the defence is not an appropriate model for dealing with this issue on the basis that it would not be possible in practice for a person to establish the defence. He has also suggested that the operation of such a defence would create too many difficulties in practice. We do not agree. First, these arguments do not recognise the reality that cases which genuinely fall within the scope of the defence in the Bill are most unlikely to come before the courts at all. Where any case came to the attention of the police, they would, of course, be provided by the agency concerned with any material relevant to their investigation. That may well result in the police not taking the investigation any further forward on the basis that the case plainly falls within the terms of the defence. Where a case does reach the Crown Prosecution Service, it would have available the relevant material and would take it fully into account in deciding whether to bring a prosecution. A prosecution will not be brought where it is clear that the defence applies, as there would be no realistic prospect of conviction. The evidential test in the Code for Crown Prosecutors would not be met in such a case. What of the situation where a case is brought to court and a person wishes to rely on the defence? In our view, the suggestion that it would be impossible for a person in such a case to establish the defence is wrong. There is no legal or practical reason preventing a defence being established. The criminal courts are well used to dealing with cases where sensitive information is involved. All the usual criminal procedures will apply. The defendant would, no doubt, seek disclosure of any relevant material held by others that he believed supported his case.