Joint Committee on The Draft Corruption Bill Written Evidence


Memorandum from Public Concern at Work (DCB 9)

  Public Concern at Work is an independent charity and legal advice centre. Popularly known as the whistleblowing charity, we have four key activities:

    —  providing free confidential advice to people concerned about wrongdoing in the workplace but who are unsure whether or how to raise the matter;

    —  providing training and consultancy to employers, unions and professional bodies on workplace cultures and communication and on compliance and governance;

    —  contributing to public policy on these issues; and

    —  seeking to create a culture where people feel there is a safe alternative to silence.

  Now 10 years old, we have handled over 3,000 whistleblowing concerns and our helpline achieves recommendation rates of 90%. While it has been promoted through the media and advice agencies, the largest referral source now is employers' whistleblowing policies. These employers include government departments, local authorities, the NHS and leading PLCs. One half of our expenditure is met by the fees we earn from our training and consultancy work, while the other half comes from voluntary donations.

  Within two years of our launch, or approach to whistleblowing had been endorsed by the Committee on Standards in Public Life and by the Audit commission. In 1995 and 1996, MPs asked us to prepare and promote draft legislation on whistleblowing, which was secured wide support in and out of Parliament. In its White Paper The Governance of Public Bodies, the last Conservative Government described us as "the Leading organisation in this field."

  In 1997, the new Labour Government asked us to assist it and Richard Shepherd MP in formulating, consulting on and promoting the Bill which became the Public Interest Disclosure Act (PIDA). While technically a piece of employment law, this legislation was and remains supported by the CBI, IoD and TUC. For our work on PIDA, Lord Nolan commended us in Parliament "for so skilfully achieving the essential but delicate balance between the public interest and the interests of employers". The Government has restated its strong support for PIDA in this Parliament and last year amended both the Employment Act and the Police Reform Act in consequence. Last year the Financial Services Authority launched an initiative on whistleblowing ( which drew heavily on PIDA and our role.

  Both at home and abroad, our approach to and work on whistleblowing is seen as having a key role to play in deterring and detecting corruption. We produced the 2000 OECD report for the review of the Anti-Bribery Convention and acted as special advisers at the Global Forum in 2001 in its preparations for UN convention. We have chaired and addressed DTI, DfID and Home Office events on tackling corruption, during which speakers from unions and business have stressed the role whistleblowing policies can play. Our work advising on whistleblowing legislation in South Africa, the Netherlands, Lithuania and Japan has always been seen as relevant to national strategies to combat corruption. We also work closely with Transparency International both at home and abroad on whistleblowing legislation.


  We would be grateful if the Committee could consider one point in relation to the drafting of the Bill and one point of wider policy.

1.   Principal's consent: no corruption—Clause 7(2)

  The Explanatory Notes state the effect of clause 7 is to "exclude from the offences cases where the agent's principal knows of all the material circumstances surrounding the conferring of the advantage and consent to it." The Notes then explain that sub-clause (2) extends the exemption to where "the defendant may have a mistaken but genuine belief" that the principal did consent or would have consented had he been aware of the circumstances.

  The terms of clause 7(2) of the Bill, however, do not include any qualifying adjective as to the honesty or reasonableness of the defendant's belief. From the Explanatory Notes, we imagine this is a drafting omission that the Government will be keen to put right. If, however, the Government's position s not settled, then we ask the Committee to recommend that the defence should only apply where the belief is "reasonable" or, should it prefer "genuine". Without some such qualification, we think the exception is too wide in that it will apply where the belief is unreasonable or where it is not honestly held.

  We think such a qualification would be both prudent and just if the Bill were providing a defence for the agent to invoke and establish in these circumstances. However, the fact that clause 7 is as an exception rather than a defence, we take to mean that it will be for the prosecution to prove that the defendant did not believe his principal would have consented. If this is so, then we consider it necessary that that belief be reasonable or genuine. Otherwise a mere assertion by an agent that he believed his principal would have consented would thwart a prosecution, however serious the case and however compelling the other evidence.


  In our view the main benefit of such a Bill will be its declaratory effect and its consequential deterrent effect on conduct. As much of the impetus behind this Bill and Recent international initiatives has been concern about perceived and actual corruption by business to secure lucrative contracts, we ask the Committee to recommend that the Government consider whether the Bill can address this in a practical and helpful way.

  In our view, a desirable practical consequence of the Bill will be if it actively encourages organisations where there is a risk:

    —  to adopt a clear policy or statement, with sanctions, against corruption;

    —  to provide and promote routes through which staff are able to seek advice on and to report suspected instances of corruption; and

    —  to act consistently with it.

  There are three ways in which we believe the Bill might actively do this. First, consistent with the approach in the draft Bill, an exemption might be provided in these circumstances for an employer in relation to the corrupt activity of one of its employees. Alternatively, it might be simpler to provide such an employer with a due diligence defence on this basis. The third option would be for the Bill to expressly state that such conduct by the employer is a mitigating factor to be considered at sentencing.

  We believe that if there is a provision along these lines, the Bill will provide responsible business and employers with a level of certainty that they are entitled to. As importantly, it will enhance the Bill's deterrent effect by prompting organisations to take practical steps to create and maintain working environments that are inimical to corruption. On this point, in our experience and from the views expressed to the Financial Services Authority and at the DTI's anti-Corruption conference, employers see the benefits of such steps as easily outweighing any burden. Finally when so much of the interest overseas in following the UK's lead on whistleblowing is coming from an anti-corruption perspective, we think such a provision in the Bill would reassert and strengthen the UK's position at the forefront of international efforts to tackle corruption.

  We hope that we have provided sufficient information for the Committee to consider these two points at this stage. Needless to say, if we can be of assistance to either the Committee or the government in taking either of these points further we will be happy to offer such help as we can.

May 2003

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 31 July 2003