SUMMARY
Summary
We strongly support the draft Bribery Bill. It represents an important, indeed overdue, step in reforming the United Kingdom's bribery laws, which have been a source of criticism at home and abroad for more than thirty years. We also welcome the draft Bill's publication for pre-legislative scrutiny, but we are disappointed that the Government has given us so little time to carry out our task. Our dissatisfaction will be shared by many others if the Government does not now find time promptly to introduce a Bribery Bill that reflects the changes that we have proposed.
We support the two proposed offences of bribing (clause 1) and being bribed (clause 2), including the "improper" performance test that has been developed by the Law Commission. The proposals have, to this extent, overcome the hurdle that defeated the draft Corruption Bill in 2003. We do, however, acknowledge concerns about the test's potential to catch conduct that should properly be viewed only as a civil wrong. We ask the Government to address this issue.
The specific offence of bribing foreign public officials (clause 4) represents an important step in putting the United Kingdom's compliance with its international obligations beyond doubt, particularly those owed to the Organisation for Economic Co-operation and Development. In order to achieve this goal, we recommend that the draft Bill be amended to make it clear that an advantage is not "legitimately due" unless required or permitted by a "written law". On balance, we accept the Government's decision to reject the Law Commission's proposed defence for individuals who held a reasonable, but wrong, belief that an advantage was legitimately due.
We particularly welcome the proposed offence that targets companies and partnerships which fail to prevent bribery by persons performing services on their behalf (clauses 5 to 6). The current law has proven wholly ineffective and in need of reform. However, we are concerned by the draft Bill's focus on whether a "responsible person" was negligent, rather than on the collective failure of the company to ensure that adequate anti-bribery procedures were in place. This introduces a narrow and complex solution to a pressing problem. We therefore recommend the removal of the need to prove negligence under clause 5(1)(c). While it would lead to the commercial organisation being strictly liable, subject to an adequate procedures defence, nevertheless we do not believe this would be unfair, particularly given the parallel with the approach taken in other leading countries. A commercial organisation is well placed to demonstrate the adequacy of its anti-bribery procedures.
We endorse the substantial penalties that are available under clause 11, since the draft Bill must have teeth to be effective. The Government must, however, address the injustice that is risked by debarring companies from entering public contracts on an automatic and perpetual basis. This policy undermines the effectiveness of the draft Bill.
We also endorse calls for official guidance on some elements of the draft Bill, particularly the meaning of "adequate procedures". A clause should be added to the draft Bill giving the Government power to approve guidance prepared by appropriate bodies. This tested model for issuing guidance could build on the growing expertise in the private sector, thus limiting the burden on Government.
There are disadvantages to piecemeal reform of parliamentary privilege (clause 15). It raises complex constitutional issues that might be better addressed through a future Parliamentary Privileges Bill. Parliament must not resolve an issue of this importance in conflicting ways, as was initially and unacceptably proposed under the Parliamentary Standards Bill. We therefore call for clause 15 to be omitted.
We agree with the Government that the Attorney General's power to direct prosecuting authorities should remain in place without being reformed by the draft Bill. Since this power will remain in place, we are satisfied that the power of consent should be transferred from the Attorney General to the Directors of the prosecuting authorities (clause 10). Any broader reform of the Attorney General's Office, including her power of direction, must await comprehensive proposals being pursued in the future.
We are not persuaded that the draft Bill is the appropriate vehicle to extend the security services' powers to contravene the criminal law. We heard no persuasive evidence that the domestic intelligence agencies needed an authorisation to bribe, and we also question whether the proposals are compliant with the UK's international obligations. As a result, we ask the Government to omit clauses 13 and 14.
While the draft Bill is not a cure for the many challenges contributing to corruption both within the United Kingdom and in relation to international business, we believe that it is an essential step forward. It should create an improved platform for the Government and the business community to build upon the increasing global commitment to tackle bribery. But the Government must focus on the need for rigorous enforcement, including the resources this will require. We believe it is an investment that is well worth making.
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