Comments of the OECD Secretariat on the
new UK Draft Corruption Legislation (DCB 26)
PART 1. INTRODUCTION
This note contains the preliminary observations
of the OECD Secretariat on the new UK Corruption Bill, published
on 24 March 2003, on which the Home Office has invited comments
by the end of July 2003.
These informal observations are intended to
contribute to the process of refining and developing the drafting
of the Bill before it is placed before Parliament. Part 2 of the
note gives a brief overview of the extent to which the present
language of the Bill reflects the requirements of the Convention,
and identifies major areas of concern. Part 3 focuses on specific
areas where, in the Secretariat's view, the drafting could be
improved in order to better achieve the Convention's objectives.
If it appears that substantial changes will
be made to the Bill either as the result of the Home Office consultation
process or as a result of scrutiny by the Joint Parliamentary
Committee, the Secretariat would welcome a further opportunity
to present observations.
The Phase 1bis Report and recommendations of
the OECD Working Group on Bribery, based on the existing state
of the law in the UK, remain in effect.
PART 2. TO
The Working Group has encouraged the UK to enact
a new, comprehensive anti-corruption statute in an effort to reform
and simplify its confusing patchwork of laws. The Corruption Bill
aims at a radical simplification of UK corruption law and the
removal of inconsistent and overlapping provisions. It would abolish
the common law offence and the various statutory offences of bribery,
and replace them with broad new offences of corruptly conferring
an advantage (corresponding to active corruption), corruptly
obtaining an advantage (passive corruption), and performing
functions corruptly. The offence of corruptly conferring an
advantage encompasses all types of active bribery: there is no
attempt to create a specific new offence of bribing a foreign
public official. The offence is defined in terms of corrupting
the agent of a principal (in other words, the offence is understood
in terms of a potential breach of a relationship of trust). The
Bill makes no distinction between "public" and "private"
bribery, except that the exception of "principal's consent"
is not applicable in the case of bribery of a public agent. Nor
does it distinguish between "domestic" bribery and "foreign"
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. Whereas the existing law suffers
from a plethora of definitions which are partial, antiquated and
sometimes overlapping in their detail, this Bill goes to the other
extreme of having virtually no detail at all. 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 (see below).
Furthermore, this approach means that the specific
language of the Convention (for example, the definition of a foreign
public official) is not reflected. The Bill contains no express
language about foreign official bribery, or about any other typical
bribery offence. Its effectiveness as an instrument for enforcing
the Convention must therefore depend to a very great extent on
the familiarity of those enforcing the new law with the foreign
bribery offence as defined in the Convention itself. The enforcement
authorities will need to be thoroughly familiar with the language
of the Convention and the specific kinds of conduct it addresses.
It cannot be acceptable for the primary legislative instrument
implementing the Convention in the UK to need to rely so heavily
from the outset on secondary sources of interpretation and reinforcement.
It will be necessary, at a minimum, for the government to make
a clear statement during the Parliamentary debate on the Bill
that one of its underlying objectives is to ensure the full implementation
of the Convention, and to put in place a major training effort
in parallel with the adoption of the legislation.
The question whether legislation in this form
can, in practice, fully achieve the objectives of the Convention
must await the Phase 2 review. In the view of the Secretariat,
it is unlikely that these objectives can be best served by a statute
that is so broadly-drafted and theoretical.
(b) The elements of the offence under
Article 1 of the Convention
The requirement of corrupt intention is present,
in principle. Under Clause 5, the offender must intend the agent
to do or omit something, and believe that the act will be done
primarily in return for the conferring of the advantage; alternatively,
if the act has already been done or the omission taken place,
the offender must know or believe that this was done primarily
in order to secure the conferring of the advantage.
The lack of a single, clear definition of what
is meant by "corrupt" is regarded as a major flaw in
the present UK law. Contrary to what is stated in the foreword,
this Bill fails to supply one. As to what is meant by "corruptly",
Clause 5 provides:
(1) A person (C) who confers an advantage,
or offers or agrees to confer an advantage, does so corruptly
(a) he intends a person (A) to do an act
or make an omission in performing functions as an agent of another
person (B) or as an agent for the public;
(b) he believes that if A did the act or
made the omission it would be primarily in return for the conferring
of the advantage (or the advantage when conferred), whoever obtains
(c) the exception provided by section 6 does
(d) the exception provided by section 7 does
Thus, any conferring, etc. of an advantage
done with the intent in (a) and the belief in (b) will be corrupt
according to this definition, unless it falls within one of the
exceptions. As a definition of the core mens rea element
of the offence, this is obscure, circular and unsatisfactory.
It would be preferable to devise an affirmative definition of
"corrupt" or "corruptly" using language drawn
from existing common law, cases and statutes, or by using the
word "undue" as it is used in the Convention.
Offer, promise or give
The offence as defined in Clause 1 may be committed
if the offender either "confers", "offers"
or "agrees to confer" an advantage, provided this is
done corruptly. "Confer" means to give; an agreement
to confer is a promise. All three elements are covered. The word
"confer" carries no implicit reference to the state
of mind of the proposed recipient, and is no more limited than
Any undue pecuniary or other advantage
The offence refers only to "an advantage",
without any limitation as to what form it might take. There is
no language conveying the meaning of "undue", apart
from the requirement that the advantage be conferred "corruptly".
The present draft language is broader than is required by the
Convention and would not, in this respect, require proof of additional
Clause 4(1) as presently drafted gives rise
to one potential ambiguity as to the definition of "advantage".
Subsection (a) defines conferring an advantage
as a situation where the offender "does something (for example,
makes a payment) or he omits to do something which he has a right
or duty to do". It is not immediately clear from the language
or punctuation whether the subordinate clause "which he has
a right or duty to do" qualifies "does something"
or only "omits to do something". Logically, it can only
be the latter. It is clear from the context that this was the
intention. The commentary on this part of subsection (a) explains
that the idea of conferring an advantage by actively doing something
"covers any act". The commentary goes on to explain
that conferring an advantage can also cover "omissions to
act, but only where the person omitting the act has the right
to do so (for example, he omits to enforce a debt owing to him)
or a duty to do so (for example, he omits to enforce a debt owing
to his employer that he has a duty to enforce by virtue of his
employment)". The commentary thus confirms the underlying
intention. The ambiguity on the face of the language should be
Whether directly or through intermediaries
There is no express language concerning the
use of intermediaries. The issue was addressed during the Phase
1 and 1bis reviews, as the Prevention of Corruption Act 1906 likewise
contained no express language on intermediaries. It was explained
by the UK authorities, and accepted by the Working Group, that,
based on general principles of criminal liability under English
law as to principals and secondary parties, provided the intermediary
is acting in concert with the briber and not merely for his own
purposes, the briber will be liable as principal perpetrator of
the offence. The same would be true of the new corruption offence.
To a foreign public official
The Bill does not contain an autonomous definition
of "public official", either domestic or foreign. Instead,
under Clause 11 (3): "A person is an agent performing functions
for the public if the functions he performs are of a public nature."
According to Clause 11(4), this will apply "even if the person
has no connection with the United Kingdom, and `public' is not
confined to the public of the United Kingdom or of any part of
As acknowledged in the Phase 1bis Report (at
p. 9), the UK has chosen to adopt a broad test of "functions
. . . of a public nature" in recent legislation, including
the Human Rights Act 1998. The Law Commission, which previously
favoured enumerating specific categories of public functions in
a list, has given its endorsement to this approach. The intention,
as the UK authorities emphasised throughout the Phase 1bis review,
is to make the definition as inclusive as possible. The commentary
to Clause 11 of the Bill explains: "The definition is based
on the nature of the functions as opposed to the body concerned,
thus ensuring a wide coverage reflecting better the current situation
in which the boundaries between the public and private sector
are increasingly fluid."
The Working Group in Phase 1bis, faced with
the question whether the existing definitions of "public
office" and "public authorities" covered members
of a foreign legislature, persons exercising a public function
for a public enterprise, and officials or agents of a public international
organisation, decided to review the matter in Phase 2.
During the House of Lords debate on the use
of the term "public body" in the draft of Part 12 of
the Anti-Terrorism, Crime and Security Act 2001, the Attorney
General gave a clear statement that the government was satisfied
that that Bill had been drafted so as to cover "all the categories
of public official that the OECD convention requires to be covered."
A similar assurance of legislative intention with regard to the
present text would be valuableor even necessary, given
the need to clarify what the language means.
For that official or for a third party
The lack of clarity under the existing law was
a matter of concern in the Phase 1bis review. The recommendations
said (at p. 18): "It should also be made clear under the
new statute that the offence of foreign bribery may be committed
for the benefit of a third party, as provided in Article 1(1)
of the Convention."
There is no express language about third parties
in the new draft legislation. However, under Clause 4 (1)(b),
an advantage will be conferred if the act or omission is done
"with the result (direct or indirect) that another benefits."
This language appears broad enough to encompass a situation where
a bribe is paid to one party for the benefit of another.
Similarly, part of the definition of "corruptly"
in Clause 5(1)(b) is that the offender believes that if the [official]
did the act or made the omission "it would be primarily in
return for the conferring of the advantage . . .
The commentary states that the result is that
"the person obtaining the advantage need not necessarily
be the agent whose conduct it is sought to influence or reward.
This approach ensures that behaviour where an agent has an interest
in a third party (such as the agent's spouse) receiving a benefit
will be covered. It is not necessary for the advantage to be of
direct benefit to the person upon whom it is conferred."
In order that the official act or refrain from acting
This requirement of the Convention is clearly
covered by the language of the Bill.
Under Clause 5(1), a person who confers, or
offers or agrees to confer an advantage, does so corruptly if
"(a) he intends a person (A) to do an act or make an omission
. . . (b) he believes that if A did the act or made the omission
it would be primarily in return for the conferring of the advantage
. . ."
In relation to the performance of official duties
The requirement in Clause 5(1)(a) is that the
offender must intend "a person (A) to do an act or make an
omission in performing functions as an agent of another person
(B) or as an agent for the public". The phrase "in performing
functions . . . as an agent for the public" is narrower than
"in relation to the performance of official duties".
While it is broad enough to cover acts which are not in breach
of duty, it would not, for example, appear to cover acts done
outside the agent's "authorised competence".
This raises a problem which does not arise under
the existing law, at least with regard to the Prevention of Corruption
Act 1906, section 1(1) of which refers to "any act in relation
to [the agent's] principal's affairs or business".
In order to obtain or retain business or other improper
advantage in the conduct of international business
There is no language in the new Bill which would
limit the context or purpose of the advantage sought. It would
be possible to interpret the offences under the Bill to cover
all these elements; the practice on this point could be examined
in Phase 2.
Of the two exceptions in the Bill, only that
in Clause 6 seems, in part, to be relevant to the active bribery
of a foreign public official. Clause 6 provides:
(1) The exception provided by this section
applies if any of the following three conditions is satisfied.
(2) The first condition is that:
(a) the functions concerned are performed only
for a principal (B) and not for the public;
(b) C is acting on behalf of B.
(3) The second condition is that:
(a) the functions concerned are performed only
for the public and not for a principal;
(b) C is acting on behalf of the public.
(4) The third condition is that:
(a) some of the functions concerned are performed
for a principal (B) and others are performed for the public, or
a given function is performed for a principal (B) and the public;
(b) each element of the advantage is conferred
(or to be conferred) by C acting on behalf of B or of the public
(or of both).
(5) The functions concerned are the functions
referred to in sections 5(1)(a) or (2)(a).
(6) References to the public are not confined
to the public of the United Kingdom or of any part of it.
This language of Clause 6 is opaque and would
be difficult to apply to a concrete set of facts. Given that the
key mental element ("corruptly") is defined in a somewhat
circular manner by reference to the absence of any of these exceptions,
this amounts to a serious flaw. As to the bribery of a foreign
public official, the only one of the three "conditions"
which could be relevant seems to be the second: if the person
conferring the advantage is acting on behalf of the public, no
offence is committed. It is not clear what the position would
be, for example, if a senior executive in a partly state-owned
utility company bribed a foreign public official. The commentary
is unhelpful here in explaining exactly what the drafters intended
to exclude from the scope of the offence. Nor is it clear which
party bears the burden of proof of an exception.
The second exception, under Clause 7 - that
there is no corruption if the agent acts with the principal's
consent - does not apply if the functions concerned are performed
for the public, and thus would not arise in the case of bribery
of a foreign public official.
The Secretariat would urge the UK authorities
to re-examine this aspect of the draft legislation In the light
of the comments made earlier about "corruptly".
There is no express exception for conduct which
is lawful under local law, or for facilitation payments.
(c) Other features relevant for the
Under Clause 12, Parliamentary privilege (which
operated to prevent the calling in evidence of anything said in
Parliament) is not available in respect of any "corruption
Offences committed abroad
As to corruption committed outside the UK, Clause
13 provides that an offence is committed if a national of the
United Kingdom or a body incorporated under the law of any part
of the United Kingdom does or omits to do anything in a country
or territory outside the United Kingdom which would constitute
a corruption offence if done in England or Wales or Northern Ireland.
Proceedings may be brought in England or Wales or Northern Ireland.
Attorney Genera's consent
The requirement for the consent of the Attorney
General to start proceedings for a corruption offence is preserved
in Clause 17 of the Bill. Therefore, this remains an issue to
be followed up by the Working Group in Phase 2. 
Under Clause 18 of the Bill, penalties remain
unchanged (up to seven years' imprisonment and/or a fine on indictment;
up to six months' imprisonment and/or up to the statutory maximum
fine on summary conviction). No distinction is made between domestic
or foreign bribery.
The Bill when enacted will not apply to Scotland,
where separate legislation will have to be enacted. In Phase 1bis,
the Working Group invited the UK to report on the progress of
Scottish legislation designed to mirror Part 12 of the Anti-Terrorism,
Crime and Security Act (which will now presumably lapse) and reserved
the right to review the Scottish legislation, once enacted, if
it considered it necessary. The same approach might be adopted
with regard to any new Scottish corruption legislation.
The Working Group's invitation to the UK to
keep it regularly informed of the progress of legislation implementing
the Convention in Crown Dependencies and Overseas Territories
is unaffected by the new Bill.
Provided the notion of "corruptly"
can be more satisfactorily defined, so that the scope of the offence
is clear, the new Bill would seem to have no adverse impact, and
raise no issues, as to the UK's performance of its other obligations
under the Convention with regard to sanctions, jurisdiction, periods
of limitation, money laundering, accounting, mutual legal assistance,
extradition or tax deductibility.
PART 3. SPECIFIC
This part of the note seeks to highlight some
additional issues which could be resolved without upsetting the
logical structure and balance of the Bill, bearing in mind its
much broader domestic aims and scope. The Home Office is asked
to take the following specific points into account in further
work on the Bill:
1. Clause 4(1)(a)The language of
this clause is ambiguous. It needs to be made clear, by punctuation
or otherwise, that the subordinate clause "which he has a
right or duty to do" applies only to an omission and
not to an act.
2. Clause 5A serious effort should
be made to devise a more easily understandable definition of "corruptly"
than the present one. Ideally, this key definition should be worded
in affirmative terms and might be based, for example, on
existing common law or statutory language and include the word
"undue" as used in the Cnvention.
3. Clause 5(1)(a)The UK authorities should
consider substituting "in relation to the performance of
functions" for "in performing functions" in order
not to restrict the scope of the offence as required by Article
1.1 of the Convention. The language should not exclude, for example,
acts done outside the public agent's "authorised competence".
4. Clause 6(3)If a definition by
reference to exceptions is to be retained, a clearer explanation
is needed of exactly what it is intended to exclude from the scope
of the offence, so that this is more easily understandable to
the enforcement authorities. It should be stated which party bears
the burden of proving an exception.
5. In the absence of an autonomous definition
of "foreign public official" in Clause 11, the UK authorities
are requested to give an assurance, as was done by the Attorney
General in the context of the Anti-Terrorism, Crime and Security
Act 2001, that this Bill is intended to cover "all the categories
of public official that the OECD Convention requires to be covered".
54 The Phase 1bis Report states (at p. 18): "The
Working Group proposes to examine, as part of the Phase 2 evaluation,
whether the Law Officer's consent requirement may be an obstacle
to effective implementation of the Convention and whether the
UK is in a position, within the exercise of prosecutorial discretion,
to fully respect Article 5 of the Convention."