Memorandum submitted by the Ministry of
Justice (BB 02)
INTRODUCTION
1. This Memorandum describes the purpose
and content of the Draft Bribery Bill; identifies the provisions
of the draft Bill which confer powers to make delegated legislation;
and explains in each case why the power has been taken and the
nature of, and reason for, the procedure selected.
2. The draft Bill reforms the criminal law
of bribery to provide for a new consolidated scheme of bribery
offences to cover bribery both in this country and abroad. The
Bill replaces the offences at common law and under the Public
Bodies Corrupt Practices Act 1889, the Prevention of Corruption
Act 1906 and the Prevention of Corruption Act 1916 with
two general offences covering the offer, promise and giving of
an advantage or the request, agreement to receive or acceptance
of an advantage (clauses 1-3). The Bill also creates a discrete
offence of bribery of a foreign public official (clause 4) and
a new offence of negligent failure by a commercial organisation
to prevent bribery (clause 5).
3. The other main provisions of the Bill:
— establish extra-territorial jurisdiction
to prosecute bribery committed abroad by persons ordinarily resident
in the UK (as well as UK nationals, and UK corporate bodies) (clause
7);
— replace the existing need for the Attorney
General's consent to prosecute a bribery offence so that proceedings
for the offences in the Bill may only be instituted by, or with
the consent of, the Director of the relevant prosecuting authority
(clause 10);
— provide a maximum penalty of 10 years
imprisonment for all new offences, save the corporate offence,
which will carry an unlimited fine (clause 11);
— make provision for Secretary of State
authorisation of conduct by the intelligence agencies that would
constitute a bribery offence (clauses 13-14); and
— set aside Parliamentary Privilege to
make evidence from proceedings in Parliament admissible in the
prosecution of a member of either House of Parliament for a bribery
offence or in related proceedings (clause 15).
CLAUSE 16(4)-(7)
POWER TO
MAKE SUPPLEMENTARY,
INCIDENTAL OR
CONSEQUENTIAL PROVISIONS
FOR THE
PURPOSES OF
THE BILL
OR IN
CONSEQUENCE OF
IT
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| Power conferred on: | Secretary of State
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| Power exercisable by: | Order made by statutory instrument
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| Parliamentary procedure: | Affirmative resolution where primary legislation is amended or repealed; otherwise negative resolution
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4. Clause 16(4) confers power on the Secretary of State
to make such supplementary, incidental or consequential provision
as he considers appropriate for the purposes of the Bill or in
consequence of it. The power includes power to make transitional,
transitory or saving provision and to amend, repeal, revoke or
otherwise modify any provision made by or under an enactment including
Northern Ireland legislation (clause 16(5) and (8)).
5. The powers conferred by clause 16 are wide. They
are though tied directly to the purposes of the Bill or in consequence
of it. There are numerous precedents for such provisions including
section 333 of the Criminal Justice Act 2003, section 173 of
the Serious Organised Crime and Police Act 2005, section 51 of
the Police and Justice Act 2006 and section 148 of the
Criminal Justice and Immigration Act 2008. The Bill makes significant
changes to existing primary legislation (derived from a number
of historical enactments) and it is possible that not all of the
consequences of them have been identified in the Bill's preparation.
To the extent that an order under this clause amends or repeals
primary legislation, it will be subject to the affirmative resolution
procedure (clause 16(6)). Otherwise, the order will be subject
to the negative resolution procedure (clause 16(7)). It is submitted
that this provides the appropriate level of Parliamentary scrutiny
for the powers conferred by this clause.
CLAUSE 18(1) AND
(3): COMMENCEMENT POWER
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| Power conferred on: | Secretary of State
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| Power exercisable by: | Order made by statutory instrument
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| Parliamentary Procedure: | None
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6. Clause 18(1) and (3) contain standard powers to bring
provisions of the Bill into force by commencement order. They
include the power to make such provisions as the Secretary of
State considers appropriate for transitory, transitional or saving
purposes in connection with the coming into force of the provisions
in the Bill (subsection (3)). The powers are conferred on the
Secretary of State (subsection (1)). As usual with the commencement
orders, they are not subject to any Parliamentary procedure. Parliament
has approved the principle of the provisions to be commenced by
enacting them; commencement by order enables the provisions to
be brought into force at a convenient time.
May 2009
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