Joint Committee on The Draft Corruption Bill Report

2  Evidence received

18. The written and oral evidence we have received has been highly critical of the Bill from a wide range of different viewpoints. While no one has challenged the need for new legislation, there have been many adverse comments on the approach adopted in the Bill and its drafting, clarity and comprehensibility. Some have argued that the new corruption offences should be specific rather than broad-based. Among our witnesses, only the responsible Minister argued unequivocally for the Bill in its current form although he was willing to contemplate improvements. Comments on specific parts of the Bill are set out in the paragraphs below. Detailed points raised by witnesses, together with comments by the Home Office are set out in Annex 1.


19. On the general clarity of the Bill we have been told:

"The draft Corruption Bill sets out the proposed new offences in very abstract terms, which may not be easily understood by ordinary or business people. The objective of all legislative wording should be clarity and certainty, and this is especially important in legislation that imposes criminal sanctions". (CBI)[11]

"I do not believe that the drafters of the Bill understand the workings of corruption". (Bob McKittrick).[12]

"The intention of the UK legislative drafters seems to have been to construct an offence that is as broad as possible. This approach is certainly coherent, but it does not make for legislation which is clear and readily understandable to those charged with enforcing it". (OECD)[13]

"I have considered whether the proposed definitions will be readily understood by police, prosecutors, jurors and the public, and have concluded that the way in which the proposed legislation is drafted will not, without considerable study, be readily understood by any of those groups". (George Staple)[14]

"It is very difficult to understand". (Professor Pieth)[15]

"I think the technical provisions in the Bill will make a field day for lawyers but will not be helpful to the average person who has to refer to it in terms of seeing what it is driving at". (Transparency International (UK))[16]

"[The offences in the Bill could be translated into other languages] in the same way as they could be translated to your jurors but it would take quite a bit of effort to do so and you would raise a lot of issues that would leave your opposite number [in other countries] puzzled". (Professor Pieth)[17]

"To attempt to explain an offence as defined in the draft Bill to other jurisdictions, vital for the effective operation of mutual legal assistance and necessitating translation into other languages, would be formidable, resulting in huge expense and abandonment of cases". (Transparency International (UK)).[18]

20. The Director of the Serious Fraud Office told us:

"I think the Bill will be understandable to juries, at least as far as Clauses 1, 2, and 3 are concerned. There may be disadvantages in the wording which explains the meaning of corruption and the like, which I think juries may find quite difficult. Otherwise, I think it is a helpful Bill overall.[19]

21. The Director of Public Prosecutions said:

"This Act seems to me to fall short of the clear, comprehensive statement of the law that one would like. On the other hand, it is an extremely complex area because as soon as you try to define corruption in one sense, you find that you have included behaviour which people find perfectly acceptable, and you then move to another one and find you have excluded by mistake behaviour which people find unacceptable. I have great sympathy with the draftsmen, but [the Bill] is very, very complex ….."[20]

22. The Home Office position was explained thus:

"The need to express concepts in terms of statutory drafting often leads to apparent complexity. This is particularly so in the present case where the criminality involves three parties. (This contrasts with most criminal law where the basic offences have two parties, the defendant and complainant - where three parties are concerned, as for example in conspiracy, further complexity is inevitable.) But we would argue that in spite of the apparent complexity, the underlying principles are clear and simple. We believe that when it comes to its operation in the courts - in particular cases with their individual circumstances, as opposed to its consideration as a Bill as a whole with all the various permutations possible to be considered - it will not in fact prove troublesome. But we would welcome any suggestions from the Committee on how to make the Bill more accessible".[21]

Specific or broad offences

23. Both the Crown Prosecution Service and the Serious Fraud Office favoured the approach of "one broadly-based and general offence of corruption".[22] On the other hand, Transparency International (UK) said: "Practice elsewhere would suggest that corruption should be broken down into a series of readily identifiable specific offences".[23] They drew attention to a new Bill being considered in South Africa.[24] In a subsequent memorandum, Transparency International (UK) argued for combining the three general offences of corruption in the draft Bill with a small number of specific offences.[25] They pointed out that the latest version of the South African Bill had reduced the number of specific offences to 16. The Bill would provide for specific offences such as:

·  Corruptly accepting gratification

·  Bribery of public officer

·  Corruption of witnesses

·  Bribery of foreign public official

·  Bribery in relation to auctions

·  Bribery for giving assistance in regard to contracts

·  Corruption in relation to sporting events.

24. The Home Office's response to the argument for a Bill based on the South African model was:

"Whatever the merits of this model in the South African situation, we are not minded to adopt it for the UK. That would be to move in the opposite direction to that recommended by the Law Commission - not only in their Corruption Report, but also in their Fraud Report (2002), which recommends the replacement of the existing 8 separate offences of deception under the Theft Acts 1968-96, and the common law of conspiracy to defraud. The multiplicity of offences has not proved helpful in practice in the case of fraud, or of corruption. By contrast, the South African legislation creates 23 separate offences, as well as reinstating the common law of bribery, which they abolished in 1992. Some of these offences are very clearly covered by the general offences in our Bill (for example, "bribery of public officer" and "bribery of foreign public officials"). Others are dealt with by other offences in our law (for example "intentional obstruction of investigation of offence"). Others criminalise behaviour which we do not think should be criminal (offence for a public official not to report a corrupt offer)".[26]

Definition of corruption

25. What constitutes corruption lies at the heart of this Bill. Mr Justice Silber told us:

"At the forefront of the criticisms of the present law is the use of the ambiguous word 'corruptly' in each of the main corruption statutes. This term is not defined in the legislation and its meaning has been the subject of probably six different conflicting judicial interpretations [dating from Cooper v. Stade (1858) to R v Harvey (1999)]. [The Law Commission] were told that this has led to difficulties for lawyers in advising and prosecutors in determining whether to prosecute".[27]

26. We have received a variety of comments on the definition used in the Bill:

"The high-level, abstract language used is difficult to translate into concrete terms. This is especially so with regard to the key definition of 'corruptly', which seeks to define the mental element of the offence by reference to exceptions which are themselves unclear". (OECD)[28]

"At least one of the definitions of 'corruptly' remains circuitous, in that it depends ultimately on knowing what is meant by 'corruptly'". (Transparency International (UK))[29]

"Dishonestly could either be an alternative to 'corruptly' or an additional element in all the new offences". (Criminal Bar Association)[30]

"It is doubtful whether this [wording: 'primarily in return for the conferring of the advantage'] is in line with the requirements of international conventions. … the insertion of the word 'primarily' in the draft can give rise to difficulties of implementation in everyday practice". (Drago Kos)[31]

"There has been a lot of negative comment from employers about the ambiguity in Clauses 6 and 7". (CBI)[32]

27. In response to this, Lord Falconer, the Minister responsible for the draft Bill, set out what he considers to be the options and how he and his colleagues eventually adopted what they considered to be a middle course:

"There were a range of alternatives. You could have a Bill without any definition of 'corruption' or 'corruptly' in it at all and simply, as it were, leave it to the good sense of the jurors or the common law to determine what 'corruption' meant. The difficulty with that would be you would end up with potentially differing definitions of 'corruptly' from one case to another. We also took the view that if you did that you would be dealing with a situation where unlike the phrase, say, 'dishonesty' there is not a popular view necessarily of what 'corruptly' means. We were not attracted by the idea of having no definition of 'corruptly'. An alternative approach is to take the approach in the South African Bill. I am told it is not law yet in South Africa. What the South African approach has been is effectively to create 23 different sorts of offences of corruption, so it will be much, much more specific. We thought the problem in relation to that was if we were too specific we might catch things we would not necessarily as a matter of policy want to catch and you were not leaving it enough to the jury to decide what the right solution was. Yes, the answer is we did consider other solutions, and the range is really from having a Bill but no definition of 'corruption', to having something pretty precise like you have got in the South African Bill, and we have gone for a middle course which we think embraces both simplicity but also clarity and codification".[33]

Agent/principal relationship

28. Several witnesses were critical about how the agent/principal relationship applies in the public sector:

"In particular, I think that extending the concept of principal and agent to so many different relationships, particularly that between a public official and the public at large, is likely to cause confusion and uncertainty and may result in a reluctance to prosecute cases where, under the existing law, prosecution would be seen to be justified". (George Staple)[34]

"The concept of agency, although well developed in common law, has been stretched unreasonably in this Bill". (Transparency International (UK))[35]

"It is very difficult nowadays for a company to be able to say whether it is acting in a public capacity or not. We are thinking perhaps of utility supply companies or the press or the media, the television service - whatever. How is a company to know whether, for the purposes of the Bill, it is acting in a public capacity or not?" (CBI)[36]

29. The Minister told us:

"We think the essence of corruption is cheating on the person who trusts you or cheating on the public. That is why we have focused, as you rightly say, on the principal/agent or agent/public relationship".[37]

Consent of the principal

30. Clause 7 provides one of the defences to a charge of corruption: that the principal consents to the conferring of an advantage. As the Crown Prosecution Service told us:

"A private principal can consent to something which would otherwise be corrupt but where functions are of a public nature the principal's consent cannot exonerate. This could give rise to problems where the public/private functions are blurred".[38]

31. Public Concern at Work pointed out that the draft Bill does not contain the same proviso as the explanatory notes about the defendant having a mistaken but genuine belief in his principal's consent.[39] They argue that the draft Bill is currently too broad at this point and that it should state that the belief must be 'reasonable' or 'genuine'. Public Concern at Work also suggested that, to encourage employers to adopt clear policies on and routes for reporting about corruption, there should be some form of defence for an employer in relation to corrupt activity by employees.[40] The Home Office argued against using either 'reasonable' or 'genuine'.[41]


32. Clause 5 defines corruptly in terms of someone acting 'primarily' in return for the 'advantage' conferred on them. It is unclear whether 'primarily' posits a causal test, one of intention or one of purpose. The OECD argued that 'advantage' should be qualified with the word 'undue'.[42] We were told by the Chairman of GRECO:

"The Council of Europe's Criminal Law Convention on Corruption refers repeatedly to 'undue advantage', a concept which is explained in detail in the explanatory memorandum. By comparison, the text of sections 4 and 5 of the draft Bill refers only to 'an advantage'. The reference of an unqualified 'advantage' entails a widening of the scope of the offence, which would cover more ground than required by CoE and other international standards. This leads to the need to provide for exceptions in sections 6 and 7".[43]

33. The CBI said:

"We are certainly strongly of the view that it is insufficient to rely upon 'primarily' and that it would be a much better approach to adopt either 'improper' or 'undue' or some other word that has international currency from the OECD or other appropriate international bodies".[44]


34. We have heard a variety of evidence on whether dishonesty should be an element in the offence of corruption. The Criminal Bar Association has argued:

·  'dishonestly' should be an alternative to 'corruptly' or

·  'dishonestly' should be an additional element in all the new offences.[45]

35. The Director of the Serious Fraud Office said:

"I think that the Law Commission consultation paper concluded that corruption was not necessarily an offence of dishonesty, although in our cases I think very often, if not always, dishonesty is present. In practical terms, I think juries are very unwilling to convict unless they see some sort of dishonesty, or at least moral turpitude that they can really get a grip on in the way that people have behaved. Very few of the cases that we would prosecute would not involve dishonesty".[46]

36. The Director of Public Prosecutions agreed but pointed to other considerations:

"It is hard to imagine cases which we prosecute in which it could not be said that there was an element of dishonesty, but when one moves to the sort of behaviour which is probably better characterised as misuse of public office or some form of really outrageous behaviour as a public servant, then you are moving away from dishonesty into another kind of concept, some of which would be caught by this new Corruption Bill, I believe. So if the legislature decides it wants to include that sort of behaviour, I think dishonesty might limit the scope of the Bill beyond what was intended".[47]

37. On the other hand, the Minister (Lord Falconer) said: "We think that dishonesty is a different concept from corruption".[48] Mr Justice Silber told us: "the word 'dishonestly' is a very uncertain word. It means different things to different people…. [in many statutory offences] the word 'dishonestly' is used where the matter would normally be criminal in itself …. 'dishonestly' does not add very much to it…. it has a totally uncertain meaning".[49] The Committee understands that in most circumstances of corruption, if dishonesty is involved, there will also be conspiracy to defraud, an offence which is widely drawn.

Compatibility with international conventions

38. Several witnesses have expressed concern that the draft Bill does not meet the United Kingdom's international obligations (set out in Annex 2). In this section we concentrate on those concerns relating to the definition of corruption. There are also issues (connected with parliamentary privilege, the Attorney-General's consent to prosecutions and the authorisation of the intelligence agencies to engage in activities which would otherwise be unlawful), which have international implications (see paragraphs 101 to 154 below).

39. The main concerns in relation to the definition of corruption are:

·  Absence of an explicit offence of bribery of a foreign public official - in relation to the OECD Convention

·  Absence of an explicit offence of trading in influence - as required by the Council of Europe Criminal Law Convention[50]

·  The formulation 'primarily … conferring … an advantage' rather than 'conferring an undue advantage' may not be entirely consistent with the requirements of international conventions.[51]

40. Professor Mark Pieth, Chairman of the OECD Working Group on Bribery in International Business Transactions, told us:

"The one requirement we are looking for is that it says the active bribery of a foreign public official is captured….. You could save a lot of the situation if you inserted one Clause making it very clear that the foreign, public officials are covered…… all the other countries have simply picked up in one way or the other the language of the Convention" .[52]

41. On the other hand we have been told by Khawar Qureshi, an expert on international law:

"The core of the activity of corruption identified in the Bill is rooted in the conferral of an advantage in return for a gain. This is often described as 'transactional' corruption, and it is reflected in the majority of definitions of corruption contained in international agreements, or the domestic law of most states. Accordingly the definition of corruption contained in the Bill accords with the UK's obligations under public international law".[53]

Trading in influence

42. Neither the Law Commission report in 1998 nor the draft Bill contains an offence of 'trading in influence'.[54] The Home Office White Paper in 2000, however, did propose the inclusion in the offence of corruption of 'trading in influence' where the decision-making of public officials by intermediaries is targeted.[55] Support for inclusion of such an offence came from the Corner House.[56] Transparency International (UK) noted that this was a specified offence in the Council of Europe Criminal Law Convention.[57] But the chairman of the Council of Europe's corruption body, GRECO, did not criticise this omission.[58]

43. The Director of Public Prosecutions told us that "looking at some of the continental legislation on trading in influence, it would actually be caught, the behaviour that they are attempting to criminalise would be covered almost certainly by the current provisions of the draft Bill".[59] The Minister said that the activity of trading in influence would be covered by the draft Bill where an agent/principal relationship existed.[60]

Misuse of public office

44. The draft Bill does not contain a statutory offence of 'misuse of public office'. The Committee on Standards in Public Life (under Lord Nolan) published a consultation paper in July 1997 recommending a new statutory offence of 'misuse of public office' as a replacement for surcharges on councillors. This issue was not mentioned in the Law Commission report of 1998. Meanwhile the common law offence of 'misconduct in public office' has been revived in recent years as a means of prosecuting police officers in particular.[61] There is also, in civil law, the tort of 'misfeasance in public office'. The Law Commission has recently proposed a statutory offence of misconduct in the context of new fraud legislation.[62]

45. The Director of Public Prosecutions told us : "I can see great advantage for public servants in having a misconduct offence which was statutory rather than dredged up from the Middle Ages".[63] Transparency International (UK) said: "A separate offence committed by a public official or servant could be a useful tool for upholding public integrity in cases where to mount a full corruption prosecution would present insuperable difficulties eg the corruptor is beyond the jurisdiction".[64]

Non-resident subsidiaries of UK companies

46. The Corner House was "deeply concerned that intermediaries including agents and subsidiaries of UK companies are not covered by the new corruption offences…..[it] is a serious loophole which will be damaging to the efficacy of the Bill….evidence shows that it is through agents and subsidiaries that the vast majority of bribes are paid".[65]

47. PricewaterhouseCoopers told us:

"In the UK, the law generally does not automatically impute to parent companies absolute control over or knowledge of the actions of their subsidiaries. This means that a corrupt act committed by an overseas subsidiary may not necessarily render the UK parent company criminally liable under the Bill. To do so would appear to require evidence that the UK parent company had in some way directed or otherwise influenced the subsidiary to commit the corrupt act".[66]

48. Transparency International (UK) said:

"United Kingdom prosecutors should be able to prosecute companies which are responsible for the actions of subsidiaries or effectively controlled joint ventures so that very few bribes or corrupt acts would take place directly from a UK based company or any country in the world. In nearly all cases, it would be done through an intermediary. Sometimes that would be a subsidiary. Sometimes it would be an intermediary agent working closely with that subsidiary. Even more often, it would be a joint venture which is rather more difficult to catch, but nonetheless highly relevant …. There is a suggestion that intermediaries will still be left out. If the Bill is really going to tackle the mischief, most people who understand the way in which international business is conducted are aware of the role of intermediaries….. We are not tackling that problem".[67]

"Clause 13 (Corruption outside the UK) should extend to include subsidiary companies of those incorporated in the UK if under actual control (according to an appropriate definition); in the case of other subsidiaries, associated companies and joint ventures, there should be an offence by the UK incorporated company if it fails to take adequate measures to satisfy itself that the foreign registered company or joint venture is implementing suitable anti-corruption policies in the conduct of its business".[68]

"Unincorporated associations and partnerships (according to English and Scottish definitions) should be included as bodies capable of committing corruption offences".[69]

49. This approach is similar to that of the Exports Credit Guarantee Department which requires applicants for support to warrant that neither they nor anyone acting on their behalf have engaged or will engage in any corrupt activity in connection with the supply contract.[70] The CBI told us that the draft Bill should not apply to overseas subsidiaries because they were subject to the law of the other country.[71]

50. We asked Professor Pieth, whether the draft Bill would cover foreign subsidiaries of British companies. He told us that the OECD Convention did not impose an international, binding standard on coverage of foreign subsidiaries. He said:

"We are in the process of discussing whether we should go further in the OECD to pick up also foreign subsidiaries. Under certain circumstances, foreign subsidiaries would be covered also in this framework because if it were proven that in the UK somebody was aware -- that is where the intent issue comes back again -- not corruptly and not with some malicious intent but if they had knowledge that the UK company or its agent was involved in bribing somewhere, then we would have a case to be run in the UK under the territorial jurisdiction. You are covering some cases of foreign subsidiary and agent behaviour but you are not tackling it head on…" [72]

Facilitation payments

51. Many witnesses have raised the issue whether the draft Bill is intended to make 'facilitation' payments criminal. As PricewaterhouseCoopers put it "it is not unknown in some countries for public officials to abuse their position by demanding payments from the unwary (or unlucky) for the granting of basic rights".[73] We understand this phrase to mean a small bribe necessary to obtain a service to which the payer is already entitled - the lorry driver who has to pay the customs officer to cross a road border, the businessman who has to include a donation to get his travel documents passed by the immigration officer. In most cases it is assumed that the service required would not be obtained without the additional payment, so there is an element of extortion.

52. Several witnesses have called for such payments to be treated as corruption and outlawed:

"The Corner House believes that the UK government and law enforcement agencies should operate a zero tolerance for facilitation payments, except in exceptional circumstances in which the life of an employee may be at risk if a payment is not made. The Corner House believes that if it does not do so, facilitation payments could become a serious loophole, which could be used by companies as a defence in court".[74]

"What is 'small'? A payment of 1% may be considered to be small, but it certainly is not small if it is 1% of a project worth £5,000,000. What is 'normal practice' and who will define 'normal'? Facilitation payments must be outlawed".[75] (Bob McKittrick)

"Common law and UK legislation have never distinguished 'facilitation payments' from other bribes … TI(UK) supports the Government's position that it is unacceptable to apply different standards abroad to those that apply within the UK. Petty corruption remains unacceptable within the UK and the draft Bill rightly makes no express distinction". [76]

53. On the other hand we were told:

"Intuitively, payments made in such circumstances might be felt not to offend against justice or the public interest, which the Bill (like any other law) aims to serve. In practice, in spite of the potential defences under the Bill suggested above, it appears that the maker of such payments could be caught under the Bill".[77] (PricewaterhouseCoopers)

"From the point of view of international competitiveness and achieving a level playing field for UK companies with other companies, CBI members would welcome a specific exemption or defence for small facilitation payments, along the lines of that provided in the US Foreign Corrupt Practices Act [1978] for US companies. This is especially important following the assumption of nationality jurisdiction by the United Kingdom for corruption overseas in the 2001 Act".[78] (CBI)

54. There appear to be uncertainties about the aim of the draft Bill in respect of facilitation payments:

"Under Frequently Asked Questions No 5 on the Trade Partners UK website the following is quoted:…we do not think it appropriate to make an exemption for 'facilitation payments'. However, we do not envisage any circumstances in which the making of a small 'facilitation payment', extorted by a foreign official in countries where this is normal practice, would of itself give rise to a prosecution in the UK".[79] (Bob McKittrick)

"The definition of 'corruptly' in Clause 5 and the need to prove 'belief' that an act was done or an omission made 'primarily' in return for the advantage, raises uncertainties as to whether some small facilitation payments may now be decriminalised".[80] (Transparency International (UK))

"The key distinction is that facilitation payments are made to a person who is already under a duty to do something and a facilitation payment is one which is designed to make him either do that duty or do it more quickly or more efficiently and this distinction, by the way, is taken in the Foreign Corrupt Practices Act of the United States".[81] (CBI)

55. Ministers and prosecutors have made plain that prosecutorial discretion will govern the operation of the law:

"The proper use of prosecutorial discretion is one important way of ensuring that the line is correctly drawn between morally questionable behaviour and criminal conduct".[82] (Serious Fraud Office)

"It is hard to envisage circumstances where the CPS would prosecute a case involving a small payment made as a result of extortion".[83] (Crown Prosecution Service)

"When the 2001 Anti-Terrorism Crime and Security Bill was going through, which has the extra-territorial bits of this Bill, we in effect gave an indication that small facilitation payments extracted by foreign officials in countries where this is normal practice would not of themselves give rise to a prosecution in the United Kingdom and we would be happy, when this Bill, in whatever form it comes, was going through Parliament again, to give a similar assurance".[84] (Lord Falconer)


56. Some concern has been expressed that hospitality could fall within the definition of corruption in the draft Bill. Several witnesses urged that there should be a specific exemption or minimum threshold for the offences so that reasonable corporate hospitality and promotional expenditure would not be covered.[85] PricewaterhouseCoopers addressed this point thus:

"Arguably, the lack of a de minimis exemption is mitigated by the definition of the term 'corruptly' in the Bill, which requires that for any of the corruption offences to have been committed, the person who acts as agent for another must do so 'primarily' in return for (or in anticipation of) an advantage. This means that, regardless of the value of the advantage conferred, obtained or anticipated, the test of whether an offence of corruption has been committed involves determining whether the person receiving, or expecting to receive, the advantage acts or acted primarily in return for that advantage. If such is not the case, then even a substantial payment, gift or other advantage is, on the face of it, neither corruptly conferred nor so received".[86]

57. The Minister told us:

"People give various sorts of hospitality in the course of business. What is their intention in doing it? Obviously, it is to get a good relationship with their potential clients but not necessarily to make them make their decisions primarily based upon lunch at Wimbledon rather than the merits of a particular deal".[87]

Financial services commissions

58. Several witnesses have queried whether standard commission payments in the financial services industry would fall within the definition of corruption in the draft Bill.[88] The Home Office told us that this might fall within the Bill if the agent gave advice not in the best interests of the client (principal) because of the commission received from a third party.[89] We understand that if the client consents to the payment of the commission there would be no offence.

Public interest defence

59. The Newspaper Society were concerned that "newsgathering practices could effectively be criminalized, thereby potentially inhibiting investigative journalism".[90] They suggested that such conduct could be excluded from the definition of corruption or that there should be a public interest defence.

60. The Crown Prosecution Service did not favour such a defence "because it would open the door to all sorts of spurious defences".[91] Transparency International (UK) pointed out that the public interest was one of the factors taken into account when a decision to prosecute was made.[92]

Prosecution of corruption offences

61. Although the Bill does not cover the administration of prosecutions for corruption, we have received some evidence that these offences could be prosecuted more effectively if this responsibility was given to the Serious Fraud Office.[93] The Serious Fraud Office have dealt with 10 corruption cases since 1988, but have among their criteria for investigation a minimum threshold for the sum involved of £1 million.[94] The Audit Commission told us that the average sum involved in the cases reported to it is just over one quarter of that amount.[95] When asked if the SFO should take responsibility for all corruption cases, the Attorney General told us:

"The Serious Fraud Office is a very important and skilled organisation dealing with complex and serious fraud which often does involve corruption, these two things do quite frequently go together, but I would have some questions about whether or not the office should be involved, for example, in the sort of …..pedestrian corruption which does take place, somebody slipping a backhander to the buying manager of a small company in order to sell particular goods to that company. I am not sure I would want the Serious Fraud Office to be taken up dealing with that, that is a question of resources".[96]

Missing evidence

62. The Corner House has drawn our attention to the brevity of the Home Office's statement on the financial and manpower effects of the Bill and the absence of the normal Regulatory Impact Assessment.[97] The expenditure effects, manpower consequences and regulatory impact are all said to be 'negligible'. It is clear from other evidence that companies and professionals will be affected to some extent by the Bill.[98] The CBI made plain the burden on business:

"Our principal concern is that even sophisticated companies with suitable resources are struggling with what this Bill means, but the lay business community will not have confidence that they can train and brief their staff that certain actions will not cause them to fall foul of offence".[99]

Comment on evidence received

63. We have not so far commented on the evidence received. In the following sections of the report we turn to our conclusions. We are surprised, however, that legislation which has been so long in preparation and the essential elements of which have been the subject of extensive consultation by the Law Commission and the Home Office, should attract such a range of negative comment from a variety of sources at this late stage.

11   Ev 111 CBI DCB 17 para 3 Back

12   Ev 31 McKittrick DCB 4 para 4.1 Back

13   Ev 165 DCB 26 part 2(a) - OECD Secretariat Back

14   Ev 153 DCB 19 para 17 (George Staple) Back

15   Q373 (Prof Pieth) Back

16   Q10 Mr Rodmell Back

17   Q367 (Prof Pieth) Back

18   Ev 2 DCB 18 para 3.5 Back

19   Q56 Mr Wardle (SFO) Back

20   Q57 Sir David Calvert-Smith (DPP) Back

21   Ev 74 DCB 27 para 7 Back

22   Ev 16 DCB 13 (SFO) Ev 17 DCB 15 Para 1.2 (CPS) Back

23   Ev 2 DCB 18 para 3.2 Back

24   Prevention of Corruption Bill 18 April 2002 [B19-2002] Back

25   Ev 163 DCB 31 paras 3.2 and 5.1 Back

26   Ev 75 DCB 27 para 14 Back

27   Ev 98 DCB 30 para 7 Back

28   Ev 165 DCB 26 2(a) line 17-19 Back

29   Ev 2 DCB 18 para 3.4  Back

30   Ev 155 DCB 20 para 9 Back

31   Ev 142 DCB12 Back

32   Q740 (John Cridland) Back

33   Q446 (Lord Falconer) Back

34   Ev 153 DCB 19 para 17 (George Staple, Clifford Chance) Back

35   Ev 2 DCB 18 para 3.4 (Transparency International (UK) Back

36   Q743 (CBI)  Back

37   Q464 (Lord Falconer) Back

38   Ev 17 DCB 15 para 1.1 Back

39   Ev 139 DCB 9 Section 1 lines 3-11 Back

40   Ev 140 DCB 9 Section 2 lines 12-14 Back

41   Annex 1 Back

42   Ev 165 DCB 26 Part 2 (b) Back

43   Ev 142 DCB 12 (Drago Kos) Section 2 (text in the Bill) Back

44   Q 694 (Mr Cridland) Back

45   Ev 155 DCB 20 para 11 Back

46   Q63 (Mr Wardle) Back

47   Q66 (Sir David Calvert-Smith) Back

48   Q505 (Lord Falconer) Back

49   Q648 (Mr Justice Silber) Back

50   Ev 3 DCB 18 para 3.12 (Transparency International) Back

51   Ev 142 Part 2 DCB 12 (GRECO) Back

52   Q356-8 (Professor Pieth) Back

53   Ev 136 DCB 7 para 6 (Khawar Qureshi) Back

54   "Trading in influence" is defined in the Council of Europe Criminal Law Convention on Corruption as: "intentionally, the promising, giving or offering, directly or indirectly, of any undue advantage to anyonewho asserts or confirms that he or she is able to exert an improper influence over the decision-making of [domestic public officials, members of domestic public assemblies, foreign public officials, members of foreign public assemblies, officials of international organisations, members of international parliamentary assemblies, and judges and officials of international courts] in consideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such an advantage, in consideration of that influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result." Back

55   Cm 4759 p21 Back

56   Ev 128 DCB 1 para 6.1 Back

57   Ev 3 DCB 18 para 3.12 Back

58   Ev 142 DCB12  Back

59   Q125 Ev 29 (Sir David Calvert-Smith) Back

60   Q525 and footnote (Lord Falconer) Back

61   Q116-8 (Sir David Calvert-Smith) Back

62   Q116 (Sir David Calvert-Smith) Back

63   Q126 Back

64   Ev 3 DCB18 para 3.13  Back

65   Ev 28 DCB1 paras 7.1 - 7.2 Back

66   Ev 50 DCB 16 para 40  Back

67   Q27 (Mr Cockcroft and Mr Carver) Back

68   Ev 4 DCB 18 para 4.3 Back

69   Ev 4 DCB 18 para 4.2 Back

70   Ev 141 DCB 10 para 9 Back

71   Q715 Back

72   Q376  Back

73   Ev 149 DCB 16 para 37  Back

74   Ev 129 DCB 1 para 8.3 Back

75   Ev 31 DCB 4 para 4.2  Back

76   Ev 3 DCB 18 para 3.10 Back

77   Ev 149 DCB 16 para 37 (PricewaterhouseCoopers) Back

78   Ev 113 DCB 17 para 2(b) Back

79   Ev 31 DCB 4 para 4.2 Back

80   Ev 3 DCB 18 para 3.10 Back

81   Q690 (Mr Berkeley) Back

82   Ev 16 DCB 13 (Serious Fraud Office) Back

83   Ev 17 DCB 15 para 1.6 Back

84   Q526 (Lord Falconer) Back

85   Ev 113 para 2 (d) DCB 17 (CBI) Ev 138 DCB 8 (Newspaper Society) Back

86   Ev 149 DCB 16 para 32 Back

87   Q516 (Lord Falconer) Back

88   Ev 144 DCB 14, Ev 152 DCB 19 Back

89   Q477 (Lord Falconer) Back

90   Ev 138 DCB 8 Back

91   Ev 18 DCB15 para 1.7 Back

92   Ev 3 DCB18 para 3.11 Back

93   Ev 4DCB 18 para 4.4 Back

94   Ev 16 DCB 13 Annex 1 Back

95   Ev 159 DCB28 para 6 Back

96   Q574 (Lord Goldsmith) Back

97   Ev 130 DCB 1 Back

98   Ev 30 DCB 4 (Bob McKittrick) Ev 144 DCB16 (PricewaterhouseCoopers) Ev111 DCB 17 (CBI), Ev 2 DCB 18 (Transparency International (UK)  Back

99   Q694 (Mr Cridland) Back

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Prepared 31 July 2003