Corruption Bill [HL]

My Lords, I add to what the noble Lord, Lord Berkeley, said, in congratulating the noble Lord, Lord Chidgey, and Transparency International on their initiative. It is a matter for regret that it has been left to private initiative to move forward in this absolutely vital area. Anybody with any experience of international contracts and their performance around the world would have found, time and again, either direct bribes being reported or commission of a dubious character being demanded by intermediaries. I am afraid that it is a bad and corrupt world out there; it is getting better, but there is a long way to go. On Transparency International, I took over from the late lamented Lord Nolan to become the second chairman of the Committee on Standards in Public Life, almost exactly when the OECD convention appeared. We took an interest in it on that committee; I see that the noble Lord, Lord Goodhart, who was a member of the committee, is a later speaker in the debate. We hoped that it would be introduced in full in the UK within a short period. That has not come about. I deplore two facts already mentioned. First, the UK has been publicly and internationally criticised for its failure completely to incorporate all the provisions of the OECD convention. We were earlier reprimanded with Japan; Japan put its house in order, and I understand that we have continued not to do so. That is the first matter for regret and embarrassment. The second is the international criticism repeated again this week by the OECD working party in Paris following up on the UK’s performance. It expressly criticised the abandonment of the bribery investigation concerning a defence contract linked with Saudi Arabia. I understand that that is the subject of legal proceedings, and it would not be appropriate to say more. On the record, however, we have public criticism of this country, which is how it is perceived internationally. Those two points are very worrying. I shall briefly make one or two points on the text of the Bill; it may be said that these are things to raise in Committee, but they are major points. The gist of the offence under Clause 1(1) is the payment of money or conferring of advantages to cause the exercise of a function to be made improperly. It raises the question of the payment of money to procure the proper exercise of a function. I first came across this in a country which I shall not name. I was there with my instructing solicitor on an urgent matter, and wehad to get a letter to a Minister in a government department. We turned up at the door of the ministry with our letter, and the doorman said, ““I am sorry, but I am not going to deliver this letter to the Minister without the usual payment””. Perhaps I should go to prison for this, but we had to bribe the doorman to present the letter to the Minister. That country wasso infiltrated by corruption that it would hardly have caused surprise to anybody else. I was simply amazed, and it made me start thinking about payments of money to procure proper performance. I am afraid that I have had a slight obsession with the OECD convention on ““facilitation payments””. I have always felt that it was deeply worrying. Paragraph 9 of the OECD official explanatory commentary on the convention will be familiar to all who have followed the issue: "““Small ‘facilitation’ payments””—" that rather reminds one of the conversation of the small baby and the lady of the house— "““do not constitute payments made ‘to obtain or retain business or other improper advantage’ within the meaning of paragraph 1 and, accordingly, are also not an offence. Such payments, which, in some countries, are made to induce public officials to perform their functions, such as issuing licenses or permits, are generally illegal in the foreign country concerned. Other countries can and should address this corrosive phenomenon by such means as support for programmes of good governance. However, criminalisation by other countries does not seem a practical or effective complementary action””." I have always rather deplored that paragraph, because it says that small facilitation payments—bribes—are okay. I have always thought it a pity that that accompanies the convention. I will not go on any more about that, but those bringing the Bill forward need to think about the use of ““improperly””, which appears also in Clause 1(2). Moving rapidly on with points that may deserve a little consideration, the noble Lord, Lord Berkeley, has spoken about Clause 4, ““Foreign bid-rigging””. The definition of bid rigging is a little naive, in that it leaves out quite a common form of corrupt agreement which has certainly happened to my knowledge in the past. A group of, say, six construction companies, important players, agree that they will put in bids of ridiculously high figures, leaving the way clear for the seventh who will get the job. Now, there may be somebody else, but there is a corrupt agreement between those seven. I do not think that that falls within the definitions of bid rigging in paragraphs (a), (b) or (c). I welcome Clause 5, dealing with corruption in sport. It is high time we had an absolutely clear criminal clause dealing with this worrying phenomenon. There have been many reported instances of events being deliberately thrown by goal keepers and other performers, rigging the results by not performing properly. Perhaps this is more of a tease than a point, but it must be sport; the definition of ““sporting event”” includes the word ““sport””. Would that include an international bridge contest, or the World Chess Championship? It is, of course, inconceivable that corruption could enter those events, but careful thought should be given to the inclusion of ““sport”” in the definition. Clause 8 is a very good duty clause, imposing a duty to report attempts at corruption. Clause 9 makes a failure to report a criminal offence. My problem is that, as I read Clause 8, one of those who should report is the person who has actually received an advantage. However, by doing that, he would have committed a criminal offence under Clause 1(2)(b) or Clause 2(2), and it is a cause for concern that that looks like a duty to self-incriminate. It needs a little thought. I have not taken it any further, but I am worried by the provision. It is very unusual because there is normally a privilege against self-incrimination. A small point is that Clause 11 is all about corporate entities. It would be helpful if it were expanded to include individual employees of companies. Finally, I hope the noble Baroness, Lady Scotland of Asthal, will deal with a point about Scotland. Clause 24 states that the Bill does not apply to Scotland. I would be interested to know the current position there and whether Scotland has provisions that we could model. I wish the Bill every success.