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Bribery Bill [HL]

I am not sure I can give the noble Lord an example, but I do not think that the fact I cannot implies that it would be impossible to run a defence adequately in that case. Independently of this, the disclosure duties imposed by the Criminal Procedure and Investigations Act 1996 mean that the agency involved would identify any material held by it that might be potentially available for disclosure, applying that Act and the codes made under it. Any material undermining the prosecution case or supporting the defence case would need to be disclosed in the usual way. As far as public interest immunity is concerned, there is the possibility in cases of this kind that an application might be made to the trial judge that certain information should not be disclosed on the grounds of public interest immunity. However, an application would not, in reality, be made in respect of material essential to the defence that is being relied upon by the accused. Indeed, a judge would not allow an application in respect of such material. If the material were essential, but too sensitive to be disclosed, the prosecution would choose not to proceed further in the public interest. Therefore, there cannot be any question that a defendant who stands trial for such an offence would not have available any material that he or she needed to deploy to establish the defence or could not have a fair trial. The defendant will, of course, be entitled to go into the witness box to put his or her case. The arguments that have been made that it would be impossible for the defendant to meet the legal burden of proof are, we think, misguided. Where extremely sensitive material is involved, it is open for the Crown to apply for all or part of the proceedings to be held in camera under the Criminal Procedure Rules. This has happened in past cases and can happen in the kinds of cases that we are discussing here, if necessary, and I hardly need tell the House that the court can make reporting restriction orders as appropriate. Noble Lords should be under no illusion. These kinds of situations arise from time to time, and the criminal courts find ways of dealing with them fairly. If the courts were not able to deal with sensitive criminal cases where defences are an issue, one might ask how it has ever been possible to convict anyone under official secrets legislation. We therefore disagree with the noble Lord when he says that a defence could not be run. However, as it is not, for one reason or another, the noble Lord’s amendment that is before the House this afternoon, let me turn to the amendments that are and deal first with transparency. I apologise that this reply is quite lengthy, but the importance of this matter demands that the Government put out their case as best they can. The Bill could have been silent on the whole question of whether the intelligence services and the Armed Forces have to engage in conduct that would constitute a Clause 1 or Clause 2 offence. Indeed, this is the approach adopted in many other countries. We concluded that this would have been disingenuous and, equally importantly, would not have provided the necessary legal protection and certainty for those who have to engage in such conduct on behalf of the state. At one level, Clause 13 is arguably an authorisation scheme. In passing this Bill, Parliament would in effect be saying that we accept that there will be occasions when it is necessary for the proper operation of the intelligences services and the Armed Forces when engaged on active service to undertake conduct that would amount to bribery. The services and Armed Forces would need their own internal controls—I will come on to this—but Parliament, not Ministers, will in practice have authorised such conduct by this clause when, and only when, it can meet the test of necessity. That test of necessity is an important one. We are not giving the intelligence services or the Armed Forces a blank cheque. The person offering the bribe will have to be satisfied that this test is met. One of the difficulties that we have with the amendment of the noble Viscount, Lord Colville, is that it omits the necessity test and thereby reduces the threshold for an act of bribery in the exercise of the functions of the intelligence services or a member of the Armed Forces. Given that we are dealing here with the intelligence services and the Armed Forces engaged on active service, there must be significant limits on transparency. It is long-established practice that Ministers do not comment on operational aspects of the work of the intelligence agencies. Similar considerations apply to operations by our Armed Forces. The reason for that is obvious: to do so could significantly undermine their operational capability and put lives at risk. I will come on to other aspects of Amendment 6 in due course, but I cannot accept the proposition that an annual report which goes into detail about the operation of the guidance should be laid before Parliament. Turning to the question of accountability, I mentioned on Report the difficulties that we have with either a case-specific or class-based ministerial authorisation scheme. The former would in our view be unmanageable and would not confer the necessary operational flexibility. I am grateful for the support that that proposition has had this afternoon from my noble friend Lord Foulkes, with his experience. One only has to consider the dynamics of military operations in Afghanistan to recognise the impracticability of a Minister sitting in London having to approve in advance each act of bribery. I recognise from the discussions I have had with a number of noble Lords, and from the debate this afternoon, that there is a general acknowledgment of the difficulties with a case-specific authorisation. I welcome that. As to a broad class-based authorisation, we have serious doubts about whether it would achieve significant added benefits in terms of accountability beyond that already achieved by Clause 13(1) and the other mechanisms that I am about to describe. I am grateful to the noble Lord, Lord Pannick, and other noble Lords who have signed his amendment, and to the noble Viscount, Lord Colville, who have sought with their amendments to find a middle way. None the less, both still have an authorisation scheme at their heart and, in the case of Amendment 3, the reference to conduct being ““specifically authorised”” suggests that they have in mind a case-specific authorisation or at least something very close to that. But it is not clear what type of authorisation is intended. Amendment 6, in the name of the noble and learned Lord, Lord Woolf—again, I am very grateful for what he has said—seeks to address the accountability question from a different angle and to put in place internal accountability arrangements to be set out in mandatory guidance issued by the Secretary of State. I assure the House that rigorous internal and external procedures, and controls governing all aspects of the activities of the intelligence and security services, are already in place. We firmly believe that these safeguards are sufficient to guard against any misapplication of the defence under Clause 13 and that internal procedures and record-keeping are properly a matter for the intelligence services and Armed Forces, and not for statutory regulation. I say that because all three intelligence services are statutory agencies. They conduct all their activities within a framework of legislation, which sets out their functions or purposes and the covert methods which they employ to perform these functions. There are no circumstances in which the intelligence services would make a payment or offer an inducement which might, in the absence of the defence, constitute an offence under the Bill, other than to facilitate legal activity in support of the services’ statutory functions and purposes. The operational activities of the agencies are subject to a robust system of internal checks in which the onus is on the intelligence officer involved to demonstrate the necessity and proportionality of the proposed activity. The level of oversight required for particular types of covert activity is set out explicitly in legislation; namely the Intelligence Services Act and the Regulation of Investigatory Powers Act. All activities conducted under this legislation are subject to scrutiny by the independent Intelligence Services Commissioner and the independent Interception of Communications Commissioner. These independent commissioners must, by law, be given access to whatever documents and information they need, and report annually to the Prime Minister and to Parliament. Furthermore, the Investigatory Powers Tribunal, an independent body made up of senior members of the legal profession or judiciary, can hear and investigate the complaint of any person who is aggrieved by anything which he believes the intelligence services or GCHQ have done in relation to him or to any property of his. If an individual thought for any reason that he had suffered a financial or other disadvantage as a result of an act of bribery committed by any of the security and intelligence agencies, that individual would have recourse to the Investigatory Powers Tribunal, which has the legal power to investigate and to order such remedial action as it sees fit. Moreover, a record is already kept within each of the security and intelligence agencies of every payment made, by and to whom, and, in the case of a covert human intelligence source or agent, what assistance that individual has provided to the service or agency involved. Payments are subject to internal audit controls, and the intelligence and security services’ accounts are subject to audit by the National Audit Office. Parliamentary accountability of all three intelligence services is provided by the intelligence services committee, which examines the policy, administration and expenditure of the three services. Today, we have heard from a member of that committee, my noble friend Lord Foulkes. The Defence Select Committee in the other place provides similar oversight of the work of the Armed Forces. The Armed Forces are clearly highly disciplined to follow and maintain the rule of law. They are subject to the jurisdiction of the service police, which operate wherever the Armed Forces serve; the service prosecuting authority under the independent Director of Service Prosecutions; and the service courts, which can sit anywhere that the Armed Forces are operating. All money spent on military operations has to be fully accounted for. It is subject to strict government accounting rules, and internal and external audit. They can be expected to operate within the confines of the defence provided under this Bill in the same way as they can be expected to obey the full panoply of the criminal legal system of law. Judicial oversight will be provided in this context by the courts in any bribery case brought to trial and the defendant will rely on the Clause 13 defence. Where it is clear that a person meets the test of necessity, the investigator or the prosecutor will surely decide not to proceed with the case because there was no realistic prospect of securing a conviction.