Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Hope of Craighead Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Hope of Craighead (CB) [V]]

My Lords, I very much welcome this report, and congratulate warmly all those who have contributed to it. As it happens, I was a member of the Liaison Committee when it considered on two occasions whether to recommend this Act for post-legislative scrutiny. On each occasion there were a number of other statutes on our list, and we could recommend only one of them. I was glad that on the second occasion my suggestion that this Act should be put forward for scrutiny was agreed to, and I am very pleased with the result.

One concern that we had on the Liaison Committee was whether UK businesses were being put at a competitive disadvantage by the standards set by this legislation in obtaining foreign contracts, a point made by the noble Lord, Lord Gold. I recall similar concerns being expressed at a conference that I attended in Hong Kong shortly after the Act was brought into force. Corporate hospitality and facilitation payments were mentioned as areas of particular difficulty. I was particularly pleased to read that, of the 100 witnesses from whom the committee received evidence, not one had any major criticisms of the Act, and its structure and the offences that it created were almost universally praised. Comments that were quoted were remarkably positive in their support. I take from all of this that, by and large, the warnings given at the outset—I suspect to try to undermine what this Act stands for—have not been borne out by experience. That is very good news.

I shall comment briefly on what the report has to say about Scotland. Questions of policy are, of course, for the Scottish Ministers. Nevertheless, I welcome that fact that the committee took the trouble to examine the position in Scotland as part of its scrutiny review. I am glad that the committee saw no reason for any change in the law and practice regulating the commencement of proceedings in Scotland. With the exception of private prosecutions, which are very rare, the golden rule in Scotland is that no prosecutions whatever can take place unless in the name or under the authority of the Lord Advocate. I recall having to point this out on several occasions during my time in the Crown Office as an advocate depute, to the great irritation of bodies such as the then Customs and Excise, which were used to handling these matters themselves in England. That is how the law works in Scotland, and it has long been recognised that there is no need to say anything about it in a UK statute.

I see great merit in the recommendation that the Secretary of State for Justice should amend the guidance published under Section 9 of the Act so that it deals adequately with the law and practice in Scotland, and that the websites in use on both sides of the border should be updated so that they each refer to both sets of guidance. As the guidance is for use in all parts of the United Kingdom, it is important that it should take account of the differences in law and practice there. I note, however, that no mention is made of Northern Ireland in this paragraph, nor indeed is Northern Ireland mentioned at all in the Ministry of Justice’s quick start guide. I hope that the Minister will feel able to suggest to the Secretary of State for Justice that he should look at the position in Northern Ireland too when he considers that recommendation.

As for what the committee says about civil settlements in Scotland—the alternative to the deferred prosecution system in England and Wales—I do not wish to take anything away at all from what my noble and learned friend Lord Saville said about this matter in his introduction. However, the differences between those two systems are perhaps less troublesome than the committee seems to have thought in commenting on the Scottish position. Take, for example, the suggestion that judicial supervision should be regarded as a vital element for the conduct of civil settlements in Scotland, which does not happen just now. This takes me back to the golden rule that I mentioned earlier. Another way of putting it is that the Lord Advocate is the “master of the instance” in Scotland; he is not subject to the direction of the courts as to whether a prosecution should be brought, and it is entirely up to him to decide whether or not to settle a case without resorting to prosecution and, if so, on what terms. Scotland does not have sentence bargaining, but agreements about pleas and settlements are within the discretion of the prosecutor. I doubt whether anyone in Scotland would want that system to brought under the supervision of the judges.

As to consistency, the lack of a statutory basis for the scheme does not trouble me, given the way in which these matters are handled by the Crown Office in Scotland, although a statutory basis would be needed for a financial penalty if this was thought appropriate. However, I see merit in the points made by the committee about the ways in which the scheme lacks transparency and the need to improve the quality of the information on the Crown Office website. I am sure that the Lord Advocate will pay close attention to what is said about this in the report.

Finally, I noted the remarks of the noble Lord, Lord Empey, and his concern about the differences that might emerge between the law and practice in Scotland and that in England, Wales and Northern Ireland in how the Act is administered. I doubt very much that that is a matter for real concern. The terms of the statute are perfectly clear and the prosecutors themselves are well aware of the need to maintain consistency throughout the United Kingdom in dealing with these important matters.