Amendment proposed (this day): 11, in clause 6, page 4, line 12, at end insert
(3A) It shall be a defence if P reasonably believed at the time of the alleged offence that F or the third party to whom the financial or other advantage was given was required or permitted to accept it under the domestic law of the jurisdiction in which F or the third party operates..(Mr. Djanogly.)
It is a great pleasure to serve under your chairmanship, Ms Walley. I believe that this is your first sitting as Chair of a Public Bill Committee, so congratulations. I hope that we can make it an interesting and enjoyable experience for you.
Before the lunch break, we were discussing amendment 11 in relation to the clause 6 offence of bribing a foreign public official. I explained that, although the Law Commission originally proposed a defence similar to that proposed by the amendment, we carefully considered representations and took the view that it was important that companies engaging in activities overseas should not be able to rely on a defence of ignorance of the law. That would not be acceptable. In the exceptional case of a genuine mistake where an individual in unfamiliar surroundings was faced with plausible demands that in fact amounted to a low-level bribe, it would be for prosecutors to decide whether it was in the public interest to pursue a prosecution.
The offence is intended to send a powerful message that those involved in international business should think twice before offering, promising or giving payments or other advantages to foreign public officials. The introduction of a reasonable belief defence would detract from that powerful message and undermine the policy aims of the offence to combat foreign bribery. The Joint Committee agreed with the Governments decision to reject the reasonable belief defence and commented that the proposed offence
represents an important step in putting the United Kingdoms compliance with its international obligations beyond doubt.
I should also like to clarify some of the other issues raised during this mornings debate. The hon. Member for Huntingdon asked why we are not following the preferences expressed by the Director of Public Prosecutions in his evidence to the Joint Committee. Of course, we value the views of the DPP, as we do those of all stakeholders and parties that are interested in the issue. We took those views into account and considered them carefully, but we have to achieve a balance and make a judgment. In doing so, we believe that we have come to the right conclusion. That does not mean, however, that we do not value the contributions that have been made to the debate.
I was also asked about the publication of guidance. For clarification, I assure the Committee and the hon. Gentleman that, as is usual practice, we will make guidance available on the Bills contents as part of an explanatory circular, which will cover the clause 6 offence, as well as other aspects of the Bill. The guidance to which clause 9 refers relates to the offence under clause 7 and the procedures that commercial organisations can put in place to prevent bribery by persons associated with them. That guidance will therefore touch on the offence in clause 6 only to the extent that it is relevant to the commission of an offence under clause 7 and the procedures that a commercial organisation can put in place to prevent bribery by those associated with it.
For those reasons, I invite the hon. Gentleman to withdraw his amendment.
First, I wish to address the remarks, which I slightly blurringly remember, of the hon. Member for Cambridge. His core point was that, in practice, the amendment is not a problem in so far as it will not hinder a prosecution. To that extent I agree that it is not a problem to mount the prosecution. The clause is very clearly drafted and there will be very little wriggle room; I am not disputing that. The concern is whether it will be applied in a way that will stop business operating. I was grateful to hear from the Under-Secretary that the clarification of the guidance will accompany clause 6.
I think I now remember what my point was. It was actually in the opposite direction; the situation where a company or person accused of bribery is said to have got the foreign law wrong, which I think was the case that the hon. Gentleman was raising. The issue then is: under what conditions is that organisation or person guilty of bribery? My point was simply this: it would be for the prosecution to prove what the foreign law was, as a fact. The burden of proof would be on the prosecution to prove beyond reasonable doubt that the foreign law was not as the defendant thought it was. That is the reason why I thought that many of the problems that he raised would not be problems for the defendant, so much as problems for the prosecution.
I thank the hon. Gentleman for that clarification. We discussed that this morning, certainly to the extent that the company seeking the advice receives advice overseas on the written law of that country. The concern is that if that advice is wrong, they still may be liable for prosecution. That is the potential issue and concern.
The Under-Secretary spoke about the amendment undermining the policy aims of the Bill. That is a pretty broad-brush statement and I do not think that that can necessarily be applied. As to where we have reached on this for the moment, I beg to ask leave to withdraw the amendment.
I just wanted to mention the CBI position. The CBI briefing to the Committee expressed concerns about clause 6 generally. Of course, it is right to have proper protection against bribery, corruption and extortion. It is in the British interest, as a law-abiding country and law-abiding trader, to have that situation. It is a bad thing for Britain if other countries are able to bribe officials or act in an improper way when we are trying to trade ethically.
In the briefing, the CBI says that it strongly supports the Governments objectives, as I do. It is important to recollect that as long ago as 1995, the Committee on Standards in Public Life said that it was important to codify our law in the field of corruption and bribery, and that that is a reputational issue for the UK. However, it is also important to take account of the concerns of one of our major large business organisations, when it says that it is very concerned that legitimate business promotional expenditure and proportionate use of corporate hospitality will be caught by clause 6, because the offence does not adequately incorporate a concept of dishonesty or impropriety.
It would be useful to hear the Under-Secretarys thoughts on the CBIs concerns. The CBI went on to raise the idea that the notion of corruption and dishonesty or impropriety is something that is recognised internationally. It is a mistake for a new offence of this sort, involving the bribery of foreign public officials, not to have that concept at its centre. The Law Commission and the Joint Committee have produced a workable draft Bill, but the point discussed this morning is important and the CBIs concern needs to be addressed.
The CBI says:
It cannot be fair to criminalise honest company behaviour. A response that relies on prosecutorial discretion is not adequate. It makes the point that there are implications:
Businesses either have to commit to no promotional expenditure, which is clearly unsustainable, or openly condone criminal acts by their staff.
They do not want to be in that position. The CBI says that any proper promotional expenditure should be made without the fear that it would only be proper under prosecutorial discretion. It raises the question of section 328 of the Proceeds of Crime Act 2002.
I am interested to see whether the Minister wants to comment more generally about the clause, as it is worth responding when a large business organisation raises such concerns.
I received the same briefing as the hon. Gentleman but did not follow his point about section 328 of the Proceeds of Crime Act. That is a very difficult Act to construe. That section is about money-laundering. My understanding is that the underlying offences have to be shown; that there cannot be a money-laundering requirement or offence where there is no underlying offence for the proceeds provisions to latch on to.
In general, in the proceeds of crime area, it is only in a situation where somebody thinks someone else is doing something bad that he or she has to make a submission to the Serious Organised Crime Agency. The concern raised by the CBI does not seem to be in line with my understanding of how the system works. Perhaps the hon. Gentleman understands it better than I do.
I would not be so outrageously arrogant as to make that suggestion. I did not read the sentence fully. I thought a little shorthand was probably adequate for the hon. Gentleman, given his detailed knowledge of the law. The point that I and the CBI have been making is that
any proper promotional expenditure would, irrespective of the prosecutorial discretion under the Bill, be a breach of section 328, unless companies obtain consent to make each payment from SOCA. The CBI believes that is an unworkable proposition.
That is what I do not understand, because I do not think it is a breach of section 328, unless it is already illegal in some other way. That was the point I was trying to make.
The offence is clear and there are good reasons why we have incorporated it into the proposed legislation. We believe that it sends a strong message about what is acceptable conduct. It requires the prosecution to prove that the person offering the advantage intended to influence the official in his or her official capacity, and intended to obtain or retain business or an advantage in the conduct of business.
The offence is deliberately structured so that, where an advantage is offered, it will only fall outside the offence where the public official is permitted or required by the written law applicable to the official to be influenced by the advantage. That avoids any question of what is customary in the foreign jurisdiction concerned. Where any doubt exists, prosecutorial discretion will remain an important safeguard against legitimate activities being penalised.
The hon. Member for
I should know that well but always get the precise description wrong. I know the areas it covers, though. The hon. Member for North-East Hertfordshire raises the concerns of the CBI. The CBI is one of the organisations with which we have had ongoing discussions about the Bill. We continue to have discussions to ensure that in practice businesses are able to comply in due course with the offences under the proposed legislation.
The hon. Gentleman raises the prospect of promotional expenditure or other forms of hospitality being caught under clause 6. We all know that for many companies, promotional expenditure is an important part of modern business practice, and the Government do not seek to restrict appropriate expenditure of that kind. Whether promotional expenditure will amount to an offence under the clause will depend on the facts.
It is possible that clause 6 would catch some promotional expenditure. When such expenditure is designed to explain, and to inform potential buyers about, a commercial organisations products, it would not necessarily involve the transfer of any advantages as mentioned in clause 6. However, if benefits that might be regarded as hospitality were included within promotional expenditure, such expenditure could be an offence under the clause if the local law did not expressly permit or require the receipt of such benefits by officials. Whether such a case would proceed would be a matter of prosecutorial discretion.
We believe that in marginal cases of bribery such as those that I have outlined, prosecutors would try to provide the right balance when determining whether it would be in the public interest to proceed with a prosecution. It is not our intention to drag a series of companies through the courts on the basis of promotional expenditure that does not seek simply to bribe a public official.
Suppose that a company is trying to break into a new market in a country that is perhaps not brilliantly familiar to Britain, or vice versait is good to encourage businesses to do that but it is not easy to achieve. If the product being sold was something uniquely British that we would understand fully but that would not be understood elsewhere, the business might want to bring an official of a company, and perhaps a local planning official, over to this country to see what its plant looks like and what it produces for the purpose of information. In the process, the officials might visit London and perhaps take in a show. In such circumstances, would that be a bribe?
We would have to look at the extent of the hospitality and the purpose for which the business was undertaking those activities. The prosecutors would consider the facts to determine whether to proceed with a prosecution. Providing information about a business and promoting it to ensure that it has the opportunity to compete on equal terms with other businesses is different from providing a foreign public official, his family and various others with a five-star holiday and other additional benefits not specifically related to the promotional work of the business. The case would be about the facts, and then it would be for the prosecution to determine whether it was in the public interest to proceed with prosecution.
The Under-Secretarys reply has sparked my memory of our exchanges on facilitation payments during which, if I recall rightly, she questioned me about whether any facilitation payment whatsoever was bribery. It was suggested that the fact that I could see certain circumstances in which there should be an exceptionas has arisen in the United Stateswas basically outside the remit of the Bill, and she was somewhat on her high horse on the matter. Given her comments about hospitality, it seems to me that slipping a small note into a passport as a facilitation payment would be out of the question but thatdepending on the circumstances, as she saidtaking in a show in London might be acceptable. That not entirely consistent approach makes me think that there is something more to this than what she has been saying.
In general I welcome the Bill and think that it is well structured, but it seems to drag in some low-level activity and elements of business practice that one would not traditionally have described as corruption or bribery, such as showing the client the product, where it is made and perhaps including some hospitality. That is, I would have thought, fairly normal business practice when trying to break into a new market overseas. If someone working for a company is worrying all the time that if they bring people over to show them the product and the plant and then go out for a meal, they might be in trouble with the Minister and perhaps be prosecuted, it will cause them to pause for thought.
It is clearly a good thing for serious incidents to be dealt with by the courts, and it is good that we have a new Bill, but I am worried that low-level activity that would not normally be thought to be criminal in any way will be criminalised. The CBI is also worried, and I normally take it seriously because it is the big business organisation. I hope that the Minister will think again. If we are going to have an export-led recovery, is this approach wise?
In the example that my hon. Friend cited, showing people a companys wares would be sensible business. If those people happened to see part of British culture too, I do not think that there would be a problem. However, as the onus is on the prosecution authorities, if I were a French company and knew that my competitor had brought three people over to look at its plant, I would simply write to the prosecutors and say that the competitor was being corrupt. Some companies are willing to do such things when they are in competition. One or two of our airlines have had some quite vicious fights. The problem is the focus on the prosecuting authorities. We might get complaints that are an attempt to disrupt business.
I had not thought that there might be a vindictive competitor, but I suppose that is possible. The alternative danger is that the French operator decides that it will do even better and takes those people to the south of France, and then we get into heavy expenditure. It is important that there are limits but, at the same time, I worry about the way in which the proposal is pitched.
During this mornings sitting, we examined provisions that contained nothing about behaviour being corruption or bribery in terms of intent, and now we are looking at a provision that has implications for exports when we want to stop bribery and corruption, but we do not want to stop legitimate business expenditure on the promotion of products.
During the late 90s I did a lot of work alongside UK Trade & Investment and its predecessor organisations to encourage exports, particularly to the newly opening central and eastern European countries from where very few people had come to the UK. It was the advice of successive Governments that when people were brought over to look at the product, that should also be an opportunity for them to see the UK and get a feeling for British culture. That was sound advice because of the impact of the practice on promoting UK plc. Does my hon. Friend agree that the Bill will put at risk precisely that sort of good advice?
Yes. Part of the sales pitch for those missions, which were often led by Ministers, was saying, If you dont understand how this service or product operates, come and have a look. People would then come here. I believe that that still happens, and I would not be at all surprised if Ministers in the Department for Business, Innovation and Skills and the Foreign and Commonwealth Office were giving the same advice at this very moment. However, the CBI, which is the business organisation that should be seen as very important to the whole process, is saying, Yes, but youre making promotional activities difficult for us.
Does my hon. Friend agree that another difficultyperhaps it is a two-fold difficultyis that our embassies provide a great deal of hospitality and also support the activities of businessmen in attracting trade to the UK, as do our armed forces. For example, there are often cocktail parties on the decks of navel ships. Such issues are worth considering in this context.
Of course UK plc, as it is called, goes into bat to get our products sold internationally. It carries out its promotion legitimately, but that involves expenditure and, from time to time, not only company officials but Government officials. In a lot of countries, the view of the local official determines whether somebody is allowed to build a factory and make products, or even to import a quantity of material. In some countries, it might even be a political party figure, as the local official and the party representative, who decides what imports may take place.
It is easy to see that persuading a client that a company has a good product and showing them how it works involves promotional expense and exposure to officials. We want an assurance from the Under-Secretary that people carrying out such activities will not fall foul of the law. It should not be just a matter of begging the prosecutor not to prosecute. If people behave legitimately, the fact that they are not guilty should be a right. If the Under-Secretary cannot give that assurance, and it is simply a matter of saying, Oh well, I hope that the head of the British Transport Police, a prosecutions department, the Director of Public Prosecutions or a Crown prosecutor in some place will let me off, I do not think that our business men will be reassured.
I have not got to my point yet. I was particularly taken with the Under-Secretarys comment that she had consulted the CBI. Obviously, we are all gratified that there is such a doughty defender of civil and human rights in this country, never mind elsewhere. During her consultations, did she consult SOCA to determine its view on the Bill, and especially on clause 6?
May I take this opportunity to welcome you to the Chair, Ms Walley?
I shall simple raise one issue that is, I think, relevant to clause 6. It has been raised many times by the Under-Secretary in response to points made by Conservative Members and to amendments tabled by my hon. Friend the Member for Huntingdon. The issue is prosecutorial discretion, and it will arise regularly, especially when we are dealing with the bribery of foreign and public officials, so it is sensible to explore it a little now.
Three things concern me. First, I am concerned about clarity. As other hon. Members on the Committee have observed, we are creating new law, which, in some ways, is radical. Business and industry in this country will have to get used to it very quickly or find themselves with the possibility of a criminal conviction. The one thing I am sure business and industry will require of us is a good deal of clarity regarding what law they are expected to comply with. We will go on, of course, to talk about guidance. The Minister has already referred to that, and it will be a large part, one hopes, of the clarity that they will seek. However, what undermines clarity is the suggestion that the answer to every potential problem with the Bill is that there is no need to worry because the prosecutors have a discretion and might decide not to prosecute at all.
Most business people in this country will legitimately be concerned, thinking Thats all very well, but how do I know whether they will exercise discretion in my favour before I decide to do whatever I decide to do? That is why we, as best practice, seek good, sensible, clear laws, whenever they can be made.
I was on the Finance Bill Committee, and Her Majestys Revenue and Customs has a system by which if some kind of tax avoidance scheme is wanted it is possible to explain what it is, and it either approves it in advance or does not approve it. Clearly, if a company is doing business and wants to entertain, or bring people in for training, or whatever, there should, if one is to go down the route in question, be a way to ask whether that is appropriate or not. We all know that there are some grey areas, but that is the problem. If it is a matter for the prosecuting authorities, will it be necessary to write to the Director of Public Prosecutions every time a company wants to bring people in and entertain them in some modest way?
My hon. Friend makes a reasonable point. We can go further than that, in fact. The situation will undoubtedly arise in which people with a huge variety of businesses and types of business interest, and who do business in different parts of the world, will want such advice. They may also, while we are about it, seek advice from the same source as to what exactly the local law is in the places in questiondealing with the point that was raised earlier. I think that that is a sensible argument.
The second point that worries me is linked to the first, and it concerns consistency. If there is to be wide prosecutorial discretion there is a danger that different decisions made in different cases will not give a clear and consistent idea of law enforcement in this context. It is important that if we are to give British industry the necessary signalthe signal that the Under-Secretary has today clearly outlined, with which the entire Committee agrees: that this country does not tolerate bribery and that those who engage in it will be properly punishedthere must be not only clarity but consistency in the minds of all the relevant businesses about what will happen to them if they engage in certain activities. If, as I have said, the Under-Secretarys answer to every proposed defence or clarification on the part of my hon. Friend the Member for Huntingdon, is You dont need to worry, because the prosecutors have discretion, we shall not necessarily get consistency.
The third point is my response to the Under-Secretarys argument about setting an example not just for British industry but globally. She has referred to the Bill as a global gold standard, and I am sure that we would all want that. The danger is that we tend to undermine the gold standard if there is a good deal more flexibility in the implementation of the law than appears from the statute. If, again, the answer to every question seeking clarification and every question about defences is, You dont need to worry because the prosecutor has a discretion, how does that look to those to whom we say, the Bill is a global gold standard?
The answer is that there is a danger that people elsewhere in the worldthe OECD and otherswill say, I understand the Governments intent; they have spoken many fine words about bribery and the law looks good, but it seems from listening to the Under-Secretary in Committee that there is an awful lot of wriggle room, because prosecutors might be able to say in any given case, We have a discretion and perhaps on this occasion we will choose not to prosecute.
The moral authority that we have as a result of talking about a global gold standard, as we should all want to do, is somewhat undermined if we do not have clarity, consistency and an absence of wriggle room; that will undermine the principle. That is the danger we need to consider, and I raise it because a pattern seems to be emerging. The Under-Secretary responds in the way I have described to all our amendments. This is a live issue for the stand part debate and I hope she can deal with the point directly.
Listening to my hon. Friends and to the Under-Secretarys remarks so far, I am starting to wonder how apprised she is of the needs of business in the context of the Billand perhaps in other contexts. Although everyone wants to stamp out bribery, I acknowledge the rather poor attempt we have been making at it over recent years. However, the rationale of a Justice Minister is, of course, slightly different from that of, for example, a BIS Minister. Given some of the Under-Secretarys comments, I am not sure how absolutely aware she is of the realities of international business. The days when I expected any joined-up thinking from the current Administration are long gone, but will she explain to what extent she has discussed these clauses, the Bill generally and the CBIs concerns, as expressed by my hon. Friend the Member for North-East Hertfordshire, with her colleagues in BIS?
How interesting! One moment we hear the Opposition call for flexibility in legislation to make sure that we respond to the needs of businesses, and in the next breath they are telling us that we cannot afford to have any wriggle room. It will be interesting to see where we get to with this debate.
Perhaps I can proceed a little further first. The reality is that the clause needs to be put into context. First, the measure concerns foreign public officials and relates to where such officials are involved. Bringing other companies from other parts of the world over is not appropriate or important in this respect; it relates to the transfer of an advantage to the individual. That may not be the case if we are talking simply about promotional expenditure and whether that foreign public official is getting an advantage as a result of promotional expenditure. Perhaps where hospitality is involved and the local law does not permit it, the prosecuting authorities are quite capable of distinguishing between what is excessive conduct and what is routine.
The Bill is supported across government and has the support of my colleagues in BIS. They have attended events, meetings and discussions with business as part of the discussion on the Bill and the clauses. They are well aware of the implications of the clauses and we make absolutely no apology for setting a high standarda gold standard. We are sending out a very strong message to businesses that bribery is not acceptable in this country and it is certainly not acceptable in respect of foreign officials.
Based on what the Under-Secretary has just said and her somewhat over-broad opening statement, there is a fundamental misunderstanding. There is a difference between applying the needs of business and being willing to listen and be flexible when the law is being drawn up, and doing so once the law is in existence. When the law is in existence, what business needs above all else is clarity, so that those involved know where they stand. It is not an answer to the question of whether the needs of business have been thought about to say, We will think about the needs of business at the level of prosecutorial discretion. That is the point we have been making, and that is what the Under-Secretary needs to address.
I am already saying to the hon. Gentleman and his colleagues that business is not an after-thought in this matter. Business has been involved in the discussions on the Bill for a considerable time, and it continues to be part of our discussions, particularly in respect of guidance for clause 7. We welcome the opportunity to discuss the measure with business. There are already a whole range of appropriate guidance and standard procedures in place within companies, because they deal with international business. Those companies operate effectively and appropriately. Of course, we recognise that hospitality can and sometimes does form a very important part of international businesses. However, it is clear that there are circumstances in which such expenditure could amount to a bribe, if it is excessive and designed to influence the foreign public official, irrespective of the merits of what might be the companys promotional expenditure. On that basis, it is appropriate that the prosecuting authorities should have an opportunity to consider such matters.
Obviously, the purpose of a promotional activity, such as bringing a foreign official who will have a say in whether the contract is awarded to a company to see the plant and the product, is to influence his decision, but it is not an improper motive. A lot of what will be done will be to show him the reality of the product and the plant. There is no element of corrupt intent. However, there is a worry that in such a situation the company might be prosecuted.
First, does the Under-Secretary accept the proposition that often in businessexporting and so onit is necessary to talk to officials as well as companies to get the requisite permissions to export? Secondly, does she accept that it is proper to show the official, if necessary, the details of how the business works here, although the expenditure involved in bringing the official to Britain would arguably be to his advantagehe may never have visited beforeand the visit is designed to influence him by showing him what the real product is like and educating him about it, and so on?
I think I understand the point the hon. Gentleman is trying to make, but I do not see the advantage to the foreign public official in those circumstances. As the hon. Gentleman describes it, the company is promoting its business in respect of a potential contract. The offence is in respect of the foreign public official. I am not clear where he thinks the advantage to the foreign public official might be.
It then becomes a matter of degree, surely. It is a question of the foreign public official seeing the circumstances in which the business operates as a legitimate business activity, as distinct from an opportunity for the foreign public official to have a three-week stay in a five-star hotel with his family. The hon. Gentleman may be alluding to a distinction between the two sets of circumstances. That is the point at which the prosecuting authorities will consider what the intention was behind what people were trying to do, and what they were seeking to achieve.
For the hon. Gentlemans scenario to work, the foreign official has to be in a position where they are neither permitted nor required to go on such trips or to accept hospitality. The hon. Gentleman is piling unlikelihood on unlikelihood.
Hence our saying that we set a high standard for business. We make it clear that it is for businesses to consider what they are doing and whether such activities would amount to bribery of a foreign public official. We set that high standard because it is appropriate to do so to send a clear message that it is not acceptable for bribery to take place around the world or in this country, as mentioned under other clauses.
In most cases, businesses have more sense than the hon. Member for North-East Hertfordshire suggests they might have in respect of understanding the difference between providing promotional activities and information in the course of their business, and seeking to bribe a foreign public official.
I understand that the Under-Secretary is saying, You, Heald of North-East Hertfordshire, have come up with this idea. If that were so, it would be a fair point. But I am not saying that: the CBI, which represents the big businesses of Britain, is saying that, and it is concerned. The hon. Member for Cambridge might be right to say that companies do enough research to be absolutely clear about what a foreign official can do when making overseas visits, but it concerns me that the CBI is worried that legitimate business promotion expenditure could be caught.
The CBI is perfectly entitled to express concerns on behalf of its members. We seek to explain circumstances in which there might be an issue but, ultimately, the Bill cannot provide every type and detail of corporate hospitality or promotional expenditure that would fall one side of the line or the other. The matter is one for prosecutorial discretion. I expect that businesses are more than capable of determining what is appropriate behaviour to ensure that they are not engaging in bribery.
As I have already said, representatives from BIS have been part of our discussions. The matter has had broad support across the whole of government, which includes what is related to business.