BRIBERY AND CORRUPTION: FOREIGN OFFICERS ETC. (Hansard, 21 November 2001)

§ The First Deputy Chairman of Ways and Means (Sylvia Heal)
With this we may discuss the following: Clauses 107 and 108 stand part.
New clause 5—Consent for prosecution under sections 106 or 107— '—(1) No prosecution for an offence under sections 106 or 107 shall be instituted except by or with the consent of the Attorney General. 414 (2) The Secretary of State shall lay before both Houses of Parliament at least once every twelve months a report on any prosecutions arising under section 106 or 107.'.

§ Simon Hughes
On a point of order, Mrs. Heal. I raise this point of order so that we do not make mistakes later on. The provisions in the group that we are about to discuss all relate to bribery and corruption. Clauses 107 and 108 are then grouped next on the list. If we finish our debate on that group before 10 o'clock and are able to begin consideration of clause 109 at 10 o'clock, can we vote on clause 109—I guess that clause 110 will be grouped with it—without having compromised our views on the earlier clauses which will by then have been disposed of? I want to ensure that they can be separated.

The First Deputy Chairman
The hon. Gentleman is correct. At that stage, if it is before 10 pm, clause 109 can be voted on separately.

§ Mr. Letwin
Further to that point of order, Mrs. Heal. If matters should not fall that way, I understand that you will be under an obligation under Standing Orders to call clauses 107, 108, 109 and 110 together. In which case, I place it on record that although we will be voting against that collectivity, it will actually be a vote against clauses 109 and 110 and not against clauses 107 and 108.

The First Deputy Chairman
I thank the hon. Gentleman. Hon. Members present will have heard what he said.

§ Beverley Hughes
Clauses 106 and 107 implement proposals contained in our White Paper, "Raising Standards and Upholding Integrity: the Prevention of Corruption". As we noted earlier, all parties expressed support for the clauses. We hope that the clauses meet our commitments to the OECD convention.
Clause 106 will ensure that the common law offence of bribery extends to persons holding public office outside the United Kingdom. It will also amend the Prevention of Corruption Acts to ensure that they cover the bribery and corruption of foreign public bodies and officials, as well as those in the private sector, irrespective of whether their functions are carried out here or abroad.
Clause 107 will extend our courts' extraterritorial jurisdiction over bribery and corruption offences committed abroad by United Kingdom nationals and bodies incorporated under United Kingdom law. Clause 108 is technical, but important, as it will ensure that the existing presumption of corruption will not apply more widely as a result of those clauses.

§ Mr. Humfrey Malins (Woking)
I hope that the Committee will sympathise with me tonight because such is the nature of this place and these proceedings that, at different times during the course of the day, I have anticipated having to speak on bribery at very great length, very briefly or not at all. I have concluded that brevity would be appreciated by the Committee, because other important debates should be allowed to start as soon as possible after this one.
What of these proposals to implement the OECD convention so as to make it an offence to bribe a foreign official to induce him to give a benefit? In short, the proposals are worthy, and they have our support. Their 415 implementation may have nothing to do with the current emergency; their connection with terrorism or security may be almost non-existent, but we are right to find a place for them nevertheless. However, may I make a few points to the Committee?
First, I find it terribly sad that we have no time to discuss these matters fully. They deserve close scrutiny; they deserve the attention of the whole House. One of the saddest things about today is that a number of very important issues will not get the time that they deserve. They deserve also very wide consultation, so I hope that the Government have consulted the British business world—after all, it will be affected—and taken its views into account.
I hope, too, that the Government have considered some of the practical difficulties of holding criminal court cases here that involve principally witnesses based outside our jurisdiction and that they have spoken to bodies such as a the Crown Prosecution Service, the judiciary and the Bar Council about some of those possible difficulties.
Secondly, do the Government realise that the proposals may have profound effects on our trade and on employment in this country? Do they accept that the proposals that we are considering tonight are thought by many to be a major self-denying ordinance, which we will, no doubt, obey in this country, while many of our competitors will not? Many countries that are signed up already ignore the convention, or they allow people to avoid it by using devices such as bogus consultancy contracts.
Of course, it is wrong to bribe foreign officials to get contracts, but that is often the way of the buying world. Interestingly, no country in Africa or the middle east has signed up. Only one country in south America is signed up. Very few countries in Asia have signed up, and Russia and China have not. It is because the Opposition feel that in all cases, including the common law offence of bribing a foreign official that will be newly created under clause 106, prosecutions should be brought only with the Attorney-General's consent, and because we believe that an annual report to Parliament detailing all such prosecutions should be required that the Opposition have proposed new clause 5, which covers just those points.
Particularly, in view of the time constraints on all hon. Members tonight, I hope that the Government will be very kind and helpful, and that they will accept new clause 5. It is quite a good new clause; I helped to draft it myself. It would be a great kindness if the Government were to consider it. I know that they have doubts about it, but an annual report to Parliament on prosecutions should not cause them any difficulty.

§ Denzil Davies
Will the hon. Gentleman tell us why he wants prosecutions to be brought only with the Attorney-General's consent?

§ Mr. Malins
The Attorney-General's consent is already required for certain bribery offences. These provisions also face a novelty. If a British person bribes someone abroad—whether within or without the Bill's remit—there may be sensitive legal complications. Therefore, it seems to Conservative Members that the Attorney-General's consent would be very useful in every case.

§ Mr. McNamara
Is the hon. Gentleman suggesting that there might be cases in which bribery is all right? Is he 416 suggesting that it might be useful to secure a nice, fat, juicy defence contract but that it would not be nice if it secured a simple one for organic food?

§ Mr. Malins
The hon. Gentleman makes a point, and I am stumped for a response. I have just noticed the clock, and I undertook to be brief. How time passes when one is enjoying oneself.

§ Mr. George Osborne
Have not the Government wished for a long time to incorporate the OECD convention on bribery into British law? Although we can debate at length the merits of the convention and whether it should be incorporated, it has absolutely nothing to do with the emergency powers needed to deal with the international terrorist threat.

§ Mr. Malins
My hon. Friend is absolutely right; I made that point earlier.
I conclude by asking the Minister to clarify the position. I hope that I am wrong, but it seems to me that the common law offence as proposed would be committed by our security services every time that they bribed a foreign official to spy for us. That is a serious point and I would be very glad if she could deal with it. If that problem exists, I am sure that, for obvious reasons, the Committee would wish to remove it.

§ Mr. Richard Shepherd (Aldridge-Brownhills)
I am a little diffident about this proposal. Years ago, I had a summer job in Africa and I was responsible for accepting goods into a company's warehouse. It was impossible to do that job without providing money to a Government official. Much of the world works on that basis. In some countries, simple transactions need the lubrication of assisting public officials to make ends meet. That places us in a difficult position. Under the provision, I would presumably have been guilty of transmitting a $20 "dash", as it is called in Africa. However, that process operates around the world.

§ Mr. Malins
My hon. Friend is right. He refers to the practice of giving a "dash" and, if I may be forgiven for saying so, I must point out that my dear late mother passed her driving test in Africa only because my father, who was a Church of England clergyman, gave a "dash" to the driving instructor.
We have to look at the world as it is. We have to be sure that, in implementing the proposals, we take into account the effect that they will have on British business and commerce. [Interruption.] It is all very well for Labour Members to mutter, but Conservative Members have some concern for British business and we know something of the problems in the world. We hope that the Government will the examine the matter carefully and—possibly in another place—reconsider the provision to satisfy themselves that these proposals, which on paper are very worthy, will not be the impediment to British industry that some of us fear that they will be.

§ Norman Baker
I shall be quick. Clauses 106 to 108 are unusual in two ways: they are reasonably uncontroversial by comparison with the rest of the Bill and the Government bothered to discuss them properly with the Conservative and Liberal Democrat parties, an approach that might commend itself to other provisions. 417 Although I agree with the hon. Member for Woking (Mr. Malins) that the clauses have little to do with terrorism, or anti-terrorism for that matter, we should still speed them on their way. I am conscious that clause 109 is more controversial and attempts to bypass Parliament almost entirely in a sweeping way. However, I shall conclude my remarks by saying that we support the clauses.

§ Mr. Hogg
I do not want to speed the clauses on their way. They are sanctioned by the phrase "politically correct", but are probably bad legislation. My hon. Friend the Member for Tatton (Mr. Osborne) made a sound point when he said that the provisions have nothing to do with terrorism, but they are subject to a timetable and as a consequence right hon. and hon. Members are too inhibited to speak about them. That is a thoroughly bad thing. I am against the measures for three substantial reasons, which in itself is a good enough reason to oppose the Bill.
First, it is a general proposition of English law that people are not subject to the English criminal law for acts done outside this country's jurisdiction. There are some rare exceptions to that, but as a general proposition we should not extend English law in that way. It gives rise to a range of evidential problems and is difficult to justify because we have to ask what public interest is at stake. That brings me to my second point, which was raised by my hon. Friend the Member for Woking (Mr. Malins).
It is my strong suspicion that the clauses would catch the security services. The Minister should comment on that. Let us be clear about one thing: members of the security services frequently bribe foreign officials in the interests of the United Kingdom. I was in the Foreign Office for five years and no one had better tell me that that does not happen. I find it difficult to understand why such people should be caught by the provisions, and if they are not to be caught, why not?
The American Government have put a price on the head of bin Laden, and a good thing too. In some circumstances, that could constitute a bribe to an official to have him killed, but we are told that that would be an offence under this legislation. If my interpretation of the Bill is wrong, I look forward to hearing the Minister tell me why, but, on the face of it, I am right and the Bill is absurd.
My final point relates to what my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) said. All of us who have been involved in trade abroad—I did it as a Foreign Office Minister—know full well the consultancy arrangement and commission. Time and time again, major contracts are acquired by payments of substantial commission. If we are honest about those payments, they constitute a bribe. The money is paid to an agent; it is called a commission. From that commission, the agent pays an inducement. That happens throughout the world. All trading countries do it. If we create a criminal structure that prevents our businesses from doing that, or being fearful of doing that, we will place a serious constraint on them.
I will have no part of the clauses, although I suspect that not enough hon. Members will vote with me. I hope that the provisions will be examined more fully in another 418 place and that the Minister will give a proper answer to my questions. The clauses should not be in the Bill. They involve serious issues.

§ Beverley Hughes
I disagree entirely with the argument that the right hon. and learned Gentleman just made, and which the hon. Member for Woking (Mr. Malins) made in his introduction: that there is no relationship between these clauses and terrorism. Some Members on the Opposition Front Bench do not share their views either. There is obviously a relationship, in that corrupt Governments help to create the conditions that engender terrorism and we need to make it clear that the bribery of foreign officials is just as unacceptable as the bribery of United Kingdom officials.

§ Mr. George Osborne
For how long has it been the intention of the Home Office to incorporate in British law the Organisation for Economic Co-operation and Development convention on bribery? Could the Minister say for how long that has been an objective, so that we may judge whether it needs to be in this emergency legislation?

§ Beverley Hughes
The convention was ratified by the UK Government in December 1998.

§ Mr. Osborne
Right.

§ Beverley Hughes
The hon. Gentleman has not been in the House very long, but he may know that last year, a White Paper was published that proposed the revision of all our laws on bribery and corruption. Such revisions will be made in due course. In the meantime, all parties have agreed that these two clauses represent the minimum that we need to do to try to ensure our compliance with the OECD convention as far as we can. Actually, the start of that process was a specific request in a debate in the House, by the Conservative party's spokesperson on international development, the hon. Member for Meriden (Mrs. Spelman), that the Bill be used as the vehicle for these two clauses.
We certainly agree with the spirit of the first part of new clause 5, but I have to tell the hon. Member for Woking, despite his evident hard work prior to tonight, that I am afraid that that has all been irrelevant because the Bill amends existing statutory offences, both of which already require a Law Officer's consent, so that requirement applies to the clauses in part 12 without the need for any further amendment.

§ Mr. Andrew Turner (Isle of Wight)
Could the Minister help me by answering the question asked by my right hon. and learned Friend the Member for Grantham—

§ Mr. Hogg
Sleaford and North Hykeham.

§ Mr. Turner
Grantham and Sleaford. [HON. MEMBERS]: No. Just Sleaford?

§ Mr. Hogg
Sleaford and North Hykeham.

§ Mr. Turner
I am so sorry. I am wasting time. The question was whether bribing a foreign official to indicate the whereabouts of Mr. bin Laden would be unlawful under the clause.

§ Beverley Hughes
I shall reach that point in a moment.
Just to deal with the second part of the new clause at this stage, I do not share the view of the hon. Member for Woking that the proposal for reporting to Parliament is necessary. The total number of persons proceeded against under the Prevention of Corruption Acts in the last calendar year was 17. On the basis of the experience in the United States we expect, as a result of these clauses, only another very small number—perhaps fewer than five—and I believe that a report to Parliament on that basis would be rather over-egging it.

§ Denzil Davies
There may be only a few cases, but is not there a case in principle for asking the Attorney-General to make a report to the House of Commons on the exercise or non-exercise of his discretion?

§ Beverley Hughes
No; I do not share that view. I do not consider that necessary. That is why, at the appropriate time, I shall ask the hon. Member for Woking not to press new clause 5.
In answer to the question about the security services, we certainly do not envisage any circumstance where a prosecutor would consider instigating any proceedings in the situations outlined by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), and the requirement that the Attorney-General do give his consent to any statutory prosecutions is a long-stop safeguard, were that to be needed.

§ Mr. Hogg
But let us be clear about what the hon. Lady has said. She has said that the act would be criminal, but that she is relying on the discretion of the Attorney-General not to start a prosecution.

§ Beverley Hughes
That is not what I said. I said that we did not envisage any circumstances, such as those outlined by the right hon. and learned Gentleman, which would satisfy the threshold for prosecution and, in any case, the fact that the Attorney-General's consent would be required is a safeguard.