Joint Committee on The Draft Corruption Bill Memoranda

Memorandum from Transparency International (UK) (DCB 18)  

Transparency International (UK) (TI(UK))  

1.1 The Appendix briefly introduces TI(UK).

TI(UK)'s Approach to Corruption Law Reform  

2.1 The Home Office is to be congratulated on bringing forward proposals for the comprehensive reform of the law of corruption and on doing so by the draft Bill procedure. Lord Falconer's Foreword to Cm5777 summarises the devastating consequences of corruption and the need to ensure that UK citizens do not contribute to this crime at home and abroad. He underlines the vital part that the Bill will play in the multi-faceted strategy at home and internationally and the recent major developments in the international sphere.

2.2 Corruption has long been recognised as unacceptable conduct in a domestic UK context. In the last few years, the international dimension of corruption has moved up the agenda. Widespread availability of bribes has fuelled failure of States, conflict and terrorism. It also undermines business confidence and stability throughout world markets and economic development. The need for a consistent international response to corruption has been recognised in the several international anti-corruption conventions which are referred to below.

2.3 There is a clear national interest in the UK adopting anti-corruption legislation which meets the objectives of clear and comprehensible law enforcement and effective elimination of corruption with any UK connection. The UK's leading role in the fight against organised crime and international terrorism contributes directly to the importance of the UK as a world marketplace: not merely in financial services (vital as they are): but in many specialist areas of trade (eg oil and construction). We must maintain and be seen to maintain the highest standards of business integrity in business and public sector so as to underpin global public confidence in the UK's dominance in financial and trade markets.

2.4 The UK law on corruption is in urgent need of reform to meet these expectations. On the domestic front, the law enforcers have found the patchwork of century-old statutes and common law to be an ineffective means of curbing corrupt practices. Internationally, the UK has barely been able to abide by the obligations to which we have subscribed in the OECD Anti-Bribery Convention[1]. It is therefore particularly important that the reformed UK legislation is consistent with our national commitments, is comprehensible to a wide audience and should work as effectively as possible in a modern legal context, especially within the European Union.

2.5 TI(UK) considers that the current draft legislation is not framed in a manner which meets these needs, but is complex in its use of language and relies heavily on the use of a principal/agent relationship which is unique to a common law tradition and inconsistent with the way in which much corruption now takes place. This approach makes it difficult for the Bill to address effectively some forms of corruption in spite of its wide-ranging intention.

2.6 In contrast, the need for easily comprehensible anti-corruption legislation has led elsewhere to legislation which breaks down corruption into various specific types of offence. This approach guided the development of the Council of Europe's Criminal and Civil Law Conventions on Corruption and has been recognised in several of the new laws adopted in various countries in the recent past[2]. Its chief advantage is that it enables investigating and prosecuting authorities to be clear as to whether or not they are likely to be effective in bringing specific cases to the courts.

2.7 TI(UK) takes the view that the Draft Bill, although welcome and well-intentioned, fails for these reasons to represent an acceptable reform of the law of corruption. These points inform the following more specific responses to the principal themes of the Committee's inquiry.

Addressing the Joint Parliamentary Committee's Principal Themes  

What is the background to the draft Bill and what other options could have been pursued? What are the reasons for any changes from the Law Commission's 1998 report and the 2000 White Paper?  

3.1 The Home Office will no doubt deal with the second of these questions. It is however clear that other options could have been pursued. The Commission's proposals as now embodied in the Draft Bill, driven by a desire to relate the new offences exclusively to a concept of agency, an objective to eliminate distinctions between private and public sector corruption and to introduce a definition of acting corruptly, have resulted in a Bill that is needlessly complex and entirely dependent on legal interpretation for its understanding. So far as is known to TI(UK), this approach follows no precedent elsewhere and will stand isolated in the international scene.

3.2 Practice elsewhere would suggest that corruption should be broken down into a series of readily identifiable specific offences. This would render unnecessary the central cause of the complexity of the Draft Bill which is the very broad definitions of offences and terms creating a "catch-all" situation that then depends on exceptions (Clauses 6 and 7) to cover normal commercial activities with the risk that innocent conduct could be caught.

Whether proposed definitions are workable and sufficient

Whether they will be readily understood by police, prosecutors, jurors, the public etc  

3.3 It follows that in TI(UK)'s opinion, the offences will not be readily understood by police, only with difficulty by legally trained prosecutors and with even more difficulty by jurors and the public. In every case, it would be necessary to refer to several of the clauses in Part 1 of the Bill, leaving uncertain as to who must show that an applicable exception is present.

3.4 The concept of agency, although well developed in common law, has been stretched unreasonably in this Bill. The concept of actors in the offence being agents for or performing functions for "the public" is particularly difficult. At least one of the definitions of "corruptly" remain circuitous, in that it depends ultimately on knowing what is meant by "corruptly".

3.5 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. The Draft Bill shows little appreciation of conditions that apply internationally.

Whether specific offences should have been proposed for specific situations?  

3.6 Yes. On one reading, the broadness of the language of the Bill offences potentially makes criminal the payment by a citizen to any public official or agency even for the provision of lawful services. On another view, the same language would tolerate payments that would ordinarily be treated as reprehensible. Clarity requires more specific offences to catch some common situations and to meet the requirements of international conventions, particularly the OECD and Council of Europe Conventions. The recently developed draft legislation in the Republic of South Africa comes closer to addressing these issues. TI(UK) commends the general approach as helpful in addressing this theme.

The effect of not making the new offences retrospective  

3.7 TI(UK) considers that the normal rule, that criminal legislation is not made retrospective, is appropriate. Corruption should be prosecuted under the applicable law at the time it occurred. It is important therefore that Part 12 of the Anti-terrorism, Crime and Security Act (AT12) remains fully effective and actively enforced in regard to foreign bribery taking place from 14 February 2002 until new legislation comes into force.

The effect of removing the presumption of corruption  

3.8 The public expects that its servants should be incorruptible. Nothing should be done that would ease the pressure to maintain integrity standards. Corruption is necessarily a covert offence, the seriousness of which may merit special measures. Recent cases (notably R v Lambert [2002] 2 AC 545, HL and R v Matthews, The Times, 28 April 2002, Court of Appeal) indicate that putting an onus on a defendant to establish a statutory defence, an evidential burden, is not incompatible with the European Convention on Human Rights (ECHR). A redrafted "presumption" or "inference" should not offend the ECHR and could prove useful to prosecutors whilst not being unfair to defendants. There may even be a case for extending such an inference to private sector situations.

Whether the agent/principal analogy is still relevant, in particular in the case of public acts?  

3.9 There is little wrong with the analogy of agent/principal as such, when used as part of specific corruption offences. It exists in the Prevention of Corruption Act 1906. Section 1 of that Act is readily understandable, although in need of some modernisation. As used in the Draft Bill as the sole determinant of the necessary relationship to establish every corruption offence, its complexity is all too evident, particularly in the case of functions "of a public nature".

The treatment of facilitation payments  

3.10 Common law and UK legislation have never distinguished "facilitation payments" from other bribes and this applies through AT12 to foreign bribery. 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. However 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. Similar considerations arise under clause 10. The language needs to be clarified.

Should there be a public interest defence?  

3.11 TI(UK) can see no justification for a public interest defence in new corruption legislation. There is no such defence in the existing law. Public interest appears as a factor to be weighed in consideration of whether or not to prosecute in the Crown Prosecutor's Code and this discretion itself could be perceived as open to abuse. Clauses 15 and 16 (Authorisation for intelligence agencies) are inappropriate in a new corruption law and, if needed at all, should be included in a more general Intelligence Services Act.

Whether the proposals are compatible with international obligations and how they compare with equivalent law in other countries?  

3.12 The Bill is broadly consistent with the OECD Convention, save possibly in relation to facilitation payments (see para 3.10 above); although, unless the new legislation follows the general approach adopted in this paper, there must be some concern that the OECD Convention will be less effectively implemented than by the current extension of existing law by AT12. TI(UK) notes that the Bill does not expressly cover "trading in influence", an offence specified in the Council of Europe Criminal Law Convention. It is important that the new legislation leaves beyond doubt the UK's ability to comply with its international obligations.

Omission from the draft Bill of misuse of public office and trading in influence  

3.13 Misuse or abuse of public office as 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. With regard to trading in influence, see para 3.12 above.

Waiver of parliamentary privilege in cases involving peers and MPs  

3.14 TI(UK) sees no justification for special privilege for parliamentarians, who should be seen to be subject to the general law of corruption.

Attorney-General's consent to prosecution  

3.15 TI(UK) considers that there should be no requirement for the AG's consent to prosecution of offences to be created by the new legislation. It is claimed that the AG's consent (clause 17) is required to counter the risk that the right of private prosecutions will be abused and the institution of proceedings will cause the defendant irreparable harm. Evidence of such risk is lacking. There is no corresponding requirement for the comparable offence of fraud. The prosecuting authorities are understood to have effective ways of preventing such abuse. Civil proceedings, which seem much more likely in asserting private interests, could be equally damaging and are not restrained by the AG's consent. No such consent has ever been required in respect of the prosecution of common law offences. "Politicisation" of prosecutions would be retrograde.

3.16 The Law Commission recommended (para 7.26 of their Report) that the consent of a law officer should not apply. Article 5 of the OECD Convention requires that the investigation of the bribery of a foreign public official should not be influenced by considerations of national economic interest, the potential effect upon relations with another state or the identity of the natural or legal persons involved. The AG's consent requirement has been commented upon adversely by the OECD Working Group on Bribery; and, in their most recent report[3], it remains an issue for follow-up. However strictly the AG may exercise powers in accordance with the Code for Crown Prosecutors, there will remain a perception that, as a member of the Government, he could be influenced by considerations of the type excluded by Article 5 of the Convention.

Relationship with Registration of Interests, Codes of Conduct and Electoral Commission requirements on political donations  

3.17 Each of these subjects raises concerns around corruption, but is capable of being dealt with and is customarily dealt with by voluntary arrangements or in other more specialised legislation. TI(UK) is not offering views in this submission. It will be willing to make a further submission on any of these subjects if that would assist the Committee.

TI(UK)'s Principal Concerns and Proposals  

4.1 It follows from the above, that

4.1.1 New legislation should incorporate a comprehensive set of specific corruption offences, including trading in influence;

4.1.2 The offences should be defined so as not to require proof of dishonest intent, but on the basis of payment or other gratification without reasonable explanation, ie an inference of corrupt behaviour compatible with the ECHR;

4.1.3 The requirement for the Attorney-General's consent to a prosecution of corruption offences should be omitted.

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

4.3 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.

4.4 To strengthen investigation and prosecution powers in the difficult area of serious corruption offences (frequently involving cross-border transactions), the jurisdiction of the Serious Fraud Office under the Criminal Justice Act 1987 should be expressly extended to include serious and complex corruption, money laundering and other financial and economic crimes.

4.5 The discretion of revenue departments to disclose information for the purposes of criminal proceedings now contained in section 19 of the Anti-terrorism, Crime and Security Act 2001, should become mandatory.

Concluding Paragraphs  

4.6 TI(UK)'s proposals for a substantial recasting of the Draft Bill need not result in delay. Clear laws against corruption are urgently required for business. If the Committee recommends redrafting along the lines proposed by TI(UK) and stresses the urgency of so-doing in the next parliamentary session, parliamentary draftsmen will be able to produce a revised draft in good time.

4.7 TI(UK) will be happy to produce such further paper or papers as may be helpful to the Committee to develop any of the proposals summarised above or as may be indicated during the course of the oral hearing on 13 May 2003.



Transparency International (TI) has been at the forefront of the anti-corruption movement since it was formed in 1993. TI is a not-for-profit, independent, non-governmental organisation, dedicated to increasing government accountability and curbing both international and national corruption. It seeks to work in a non-confrontational way with governments, companies, development agencies, NGOs and international organisations to build coalitions to combat corruption.

TI's international secretariat is based in Berlin and there are about 90 national chapters around the world. TI(UK) is the national chapter for the UK and was among the first to be formed, also in 1993. (

May 2003

1   OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997).  Back

2   Such as Malaysia, Nigeria and draft proposals in the Republic of South Africa.  Back

3   Phase I Bis Report.  Back

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