Report

Part of Bribery Bill [HL] – in the House of Lords at 6:45 pm on 2 February 2010.

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Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench 6:45, 2 February 2010

My Lords, it is with humility and diffidence that I rise to support the amendments in this group. I appreciate the substantial and heavyweight contributions that we have already heard from so many distinguished noble Lords and noble and learned Lords. The motivation behind Clause 12 and the amendment are exactly the same. In both cases, there is a feeling that it would be utterly wrong for people who genuinely discharge onerous duties under strict authority to be charged and, if charged, to be convicted in respect of offences under the Bill. In both cases, there is a desire to exculpate such people under a system laid out in Clause 12 and Amendment 13. In both cases, it is intended that that exculpation should operate within narrow and strict limits and depend on a system of authorisation, but there the two systems part.

In theory, one can say that in both cases it is post-event exculpation because the original clause- Clause 12-and the amendment speak of a defence. In other words, they suppose that the matter has already come to court. In practice, that is entirely wrong. In relation to Clause 12, a person who is prosecuted will come to court and will have to raise the defence, taking upon his or her shoulders the responsibility and the burden of proof-it is not the same burden of proof that normally lies upon the prosecution, but is the burden of proof on a balance of probability-of establishing that the defence is well made out. That may be extremely difficult, as the noble Lord, Lord Thomas of Gresford, has pointed out. It may mean having to go into the most sensitive areas of intelligence and security. It may present a totally genuine and innocent person with an almost impossible task. Why should that be so?

My noble friend Lord Colville said that the amendment grafts an added precaution on to Clause 12. In practice, that is not so because the matter will never come to court. It is utterly unthinkable that there should be any prosecution under subsection (2) of the new clause. In those circumstances, there is nothing that is objectionable to fundamental constitutional principle. I do not know whether noble and learned Lords will agree with this simile, but it seems to me that one is giving a person in high authority a semi-judicial role to legislate in such a way as one would legislate in the case of a local Act that would create an exclusion from the general statute of the land. I do not think there is anything wrong in that. I do not know if there are any precedents in relation to that, but it seems to be a wholly decent and safe way of doing it. Therefore, the protection given by the amendment to people who are serving their country, very often in the most difficult and complicated circumstances, makes it infinitely preferable to the system in the original clause.