Another bit of proposed legislation, which will hopefully be lost due to the forthcoming General Election, is the flawed Bribery Bill 2009
For some reason it has been introduced by Jack Straw's Ministry of (In)Justice in the House of Lords.
Note that there are no provisions to strengthen the legislation against corrupt lobbying by Members of the House of Commons or of the House of Lords or of senior Whitehall Sir Humphreys.
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Incredibly, it appears that this Labour Government still intends to make it illegal for, say the Secret Intelligence Service MI6 to bribe a Foreign Government official for information or influence, even where this serves the United Kingdom's national security interests.
Conversely, they are giving any "law enforcement agency", an unfathomable exemption from bribery offences, "for the prevention or detection" of Serious Crime. This includes Local Authority Trading Standards or Environmental Health departments, who are notorious for their lack of expertise and training, when it comes to "simple" Regulation of Investigatory Powers Act use of Covert Human Intelligence Sources.
What conceivable excuse have these "law enforcement agencies", including the Police or HM Revenue and Customs, got for bribing anyone whatsoever ?
12 Defence for certain bribery offences: legitimate purposes
(1) It is a defence for a person charged with a relevant bribery offence to prove that the person's conduct was necessary for--
(a) the prevention, detection or investigation by, or on behalf of, a law enforcement agency of serious crime,
No!!! - this is far too broad !
Neither the Police, nor the HM Revenue and Customs, nor the UK Borders Agency nor Local Authority Trading Standards Departments, nor the Home Office's "anti-fraud" designated private sector partners, nor the myriad of other quangos and non-departmental public bodies and agencies etc. should ever be allowed to even contemplate bribery of UK government officials or private companies or individuals !
(b) the proper exercise of any function of the Security Service, the Secret Intelligence Service
We saw the obvious need for this exemption back in 2001 - why has it taken this incopetent Labour government so long to correct the legislative blunders they made back in 2001 ?
One of the worse than useless bits of unnecessary and counterproductive legislation pushed through by the notorious former Labour Home Secretary David Blunkett, was the Anti Terrorism Crime and Security Act 200 Part 12 Bribery and Corruption sections 108 to 110. (ATCSA Part 12)
This incompetently draughted legislation, which was guillotined through the Commons, without proper scrutiny, is intended to be repealed by this Bribery Bill.
ATCSA Part 12 has no exemption or statutory defence for the Secret Intelligence Service MI6 or the Security Service MI5.
How have they managed to recruit spies and informers working for foreign governments without, in many cases, offering them money i.e. bribery, according to the laws of many foreign countries ?
or GCHQ, or
What obviously applies to SIS and MI5 certainly does not apply to GCHQ.
The Government' s electronic intelligence, gathering, processing and analysis people in Cheltenham etc. should have no expertise or business in running or recruiting foreign Covert Human Intelligence Sources i.e. spies.
GCHQ has no conceivable excuse for bribing anyone !
(c) the proper exercise of any function of the armed forces when engaged
on active service.
Since World War 2, it has been a standard part of, say, an aircraft crew's survival pack (or that issued to Special Forces personnel operating behind enemy lines), to include money and / or gold bullion etc. to help them escape back to safety, if they parachute over enemy territory
Dealing with local tribal chiefs in say Afghanistan must involve payments which would otherwise fall under this Bribery Bill, so Armed Fores on Active Service should also be obviously exempt. Just like MI6 and MI5 , they are not exempt from ATCSA Part 12.
(2) In this section--
"active service" means service in--
(a) an action or operation against an enemy,
(b) an operation outside the British Islands for the protection of life or property, or
(c) the military occupation of a foreign country or territory,"armed forces" means Her Majesty's forces (within the meaning of the Armed Forces Act 2006),
"detection", in relation to serious crime, includes--
(a) establishing by whom, for what purpose, by what means and generally in what circumstances any such crime was committed, and
(b) the apprehension of the person by whom any such crime was committed,
"enemy" has the same meaning as in the Act of 2006,
Unclear draughting - which "Act of 2006" ? They probably mean the Armed Forces Act 2006.
"GCHQ" has the meaning given by section 3(3) of the Intelligence Services Act 1994,
"law enforcement agency" means a public authority acting in pursuance of a duty of a public nature under the law of any part of the United Kingdom to prevent, detect or investigate crime,
No !!
This is exactly how the 8 or so full time law enforcement and intelligence agencies which were initially granted extraordinary legal powers under the Regulation of Investigatory Powers Act 2000, later bloated out to hundreds of Local Authorities and quangos like the Egg Marketing Board etc. who all have "a duty of a public nature under the law...to prevent, detect or investigate crime"
"public authority" has the same meaning as in section 6 of the Human Rights Act 1998,
"relevant bribery offence" means--
(a) an offence under section 1 which would not also be an offence under section 6,
(b) an offence under section 2,
(c) an offence of attempting or conspiring to commit, or of inciting the commission of, an offence falling within paragraph (a) or (b), or
(d) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to an offence falling within paragraph (a) or (b),"serious crime" has the same meaning as in the Regulation of Investigatory Powers Act 2000 (see section 81(2) and (3)).
Astonishingly, the Bribery Bill 2009 Explanatory Notes clause 12
"Relevant bribery offence" does not include a clause 1 offence which would also amount to an offence of bribing a foreign public official under clause 6. This addresses concerns raised by the Joint Committee on the 2003 draft Corruption Bill in relation to, in particular, compliance with the UK's obligations under the OECD Convention (see HL 157 and HC 705, 31st July 2003).
So perhaps SIS and MI6 will still not be able to legally (under UK law at least) buy information or influence from foreign officials, even when UK national security is at stake, something which is insanely perverse.
It is inconceivable that the other OECD member countries do not have "national security" exemptions like this.
Surely someone in the House of Lords can amend this Bribery Bill to give only SIS and MI5 and Armed Forces on Active Service an exemption to this, and to get rid of any exemptions for the hundreds of generalised "law enforcement agencies" ?
Also published yesterday is the Government Response to the conclusions "and recommendations of the Joint Committee Report on the Draft Bribery Bill"
http://www.official-documents.gov.uk/document/cm77/7748/7748.pdf
This response contains no justification for immunity for "law enforcement agencies" e.g. Local Authorities or the Egg Marketing Board or even the Police etc.
On page 17, there is a section on "The Security Services" which mentions the Armed Forces.
There is no explanation for immunity from bribery for GCHQ.
The mention of bribery of foreign officials is confused. It seems to contradict what is stated in the Explanatory Notes, and on what is in the actual text of the Bill.
An idea of how out of touch from practical reality the politicians and civil servants at the Ministry of (In)Justice may be gleaned from
There may well be a statutory defence for Police investigators and Crown Prosecution Service officials and computer or photographic forensic experts, to cover them against the draconian Child Pornography laws, involving mere possession or copying of such image evidence.
However, applying this to bribery which is an active, pre-meditated, participatory action, is utterly wrong. This would be akin to permitting the Police to actually abuse Children to create brand new Child Porn images, which had not existed before, something for which there is no such immunity under the Protection of Children Act 1978.
Interesting reference to "International Obligations" in your last quote. I wonder what UN body (EU doesn't count as its now our national government) requires that local, regional and provincial governments have authority to bribe? I wonder if British Aerospace (aka BAe) will also have a Bribery Act Exemption? Would surely save MiniJust from a lot of mucky work!
Seriously though WTWU, keep your blood pressure under control. This is just another step in the continuing trend to put governments above the law, and free to do exactly as they please. The law is just for the ordinary folk, the folk who need to be controlled and corralled against their will.
This move could be seen as part of the Green agenda to drive us back to a medieval existence. This is part of providing the necessary legal framework.
http://newritings.wordpress.com/2008/02/27/heinrich-kieber-whistleblower-of-a-special-type/
I suspect this is the reason for allowing legal bribery
What's missing is bribing Lords and MPs to change legistlation
The Joint Committee on the Draft Bribery Bill report has a page on 12 THE SECURITY SERVICES
which criticised the previous proposed clauses in the Draft Bill.
Note that there is no discussion whatsoever, about the very different role of GCHQ compared with that of the Secret Intelligence Service Mi6 or the Security Service MI5.
The Joint Committee on the Draft Bribery Bill has this written evidence from the Serious Fraud Office
If even the Police, correctly, do not think that they need to bribe anyone, then the same must also apply to all the other "law enforcement agencies".
The growing trend in the payment of normal commercial fees as a means of obtaining a response from commercial organisations who would not normally respond, when exercising an exemption under other legislation can also be perceived as a form of bribe. Could one reason sufficient concern exists in the legal sphere about bribery to create such legislative demands be that they recognise the questionability of such payments in many legal scenarios?
A paid for exemption, who ever heard of such a thing; Its just not British!
Re the generalised law enforcement institutions: promoting bribery in Britain will lead to an increase in corruption. When government permits it (& any murkey stuff like RIPA) in general society & policing/enforcement, then "fishy" behaviour in society will become normalised & look "normal" ie less common & out of the ordinary. There will be more corruption. How will employees of such institutions (or the public) know when "fishy" behaviour is internal corruption?
Checks and balances and accountability & transparency will decrease. And it will spread outside such institutions to the public. Auditing (internal & external) will increase. There will be less internal complaints & whistle-blowing where occasionally necessary will be harder. Those working in the institutions will become comfortable with corruption, and will become more corrupt, in other ways too, & scared to question any apparent wrongdoing or refuse to do any wrong requested of them. This will harm business, government & society. Rule of good law will decrease further. Bribery - like gangrene - will spread in British institutions & life, and crime including organised crime will thrive, as well as extorsion, framing, blackmail, laundering & the like. The power of government will increase with respect to the individual.
Will foreign nationals in the UK working with government permission also be allowed to bribe?
In some cultures, entertainment & hospitality are more prevelant as well as other types of doing business & thus apparent "bribes" are not always bribery in the sinful sense. In Britain, not allowing bribes here (as well as demanding full trasparency & list of interests including Chequers dining lists, so conflicts of interests & the abuse thereof are more obvious, discouraged and caught more easily in British national & local institutions) is the British way of life and one essential pillar of our legal tradition & checks and balances - mess with that and we risk more lawlessness & corruption.
(I am not commenting on the security services, nor any business "dramas" involving foreign contracts which have been in the news & which are being considered for litigation or not - sometimes there are turf wars or special circumstances and difficulties in specific industries or professions or countries).