Additional memorandum submitted by The
Corner House (BB 29)
SUPPLEMENTARY QUESTION
TO CORNER
HOUSE AND
TRANSPARENCY INTERNATIONAL
You stated that the "legitimately due"
test should be removed from clause 4. Would this lead to any conduct
being criminalised which should not be criminalised? In particular,
should clause 4 be amended to require the "advantage"
to be "undue" or "improper"?
1. The Corner House believes that the "legitimately
due" test can be removed without criminalising conduct that
should not be criminalised, provided that Clause 4 is amended
to embrace an intention to induce or reward improper behaviour.
The Corner House would support amending Clause 4 to require
the "advantage" to be "improper".
2. Clause 1 of the draft Bribery Bill
clearly conditions the act of bribery on its intended effect,
namely to induce or reward improper behaviour. Merely making
a payment or giving a gift to a person is therefore, by definition,
not a crime under the proposed Bill. Corporate hospitality would
thus be legal under the Bill, unless its intention was to induce
or reward improper behaviour. Similarly payments made under, say,
a consultancy agreement would be protected from criminalisation
except in circumstances where it could be shown that the purpose
of the agreement was to provide a vehicle for making a payment
that was intended to corrupt. Where that intention is demonstrated,
no payment is legitimate, regardless of whether it appears to
have a legal contractual basis, since, under the draft Bill, it
would by definition constitute a bribe.
3. Clause 4 of the draft Bill abandons
this approach, however, making the test of legality not an intention
to induce or reward improper conduct but instead whether the advantage
offered, promised or given to a foreign official is "legitimately
due" or not. As the explanatory notes make clear, Clause
4 "does not require that action expected in return [for
a financial or other advantage] must itself be improper",
only that "the giver of the bribe must intend to influence
the recipient in the performance of their functions as a public
official, and must intend to obtain or retain business or a business
advantage".[171]
As a result, the offering of an advantage that is not intended
to induce or reward improper behaviour could be criminalised if
the legitimately due test was removed. Corporate hospitality,
for example, is clearly intended to gain influence in order to
obtain a business advantage.
4. The Corner House believes that the draft
Bill should adopt a uniform approach to what constitutes bribery
throughout all its clauses. The test should be whether the advantage
offered to a foreign official, whether directly or through a third
party, is intended to induce or reward improper behaviour which,
in turn, would secure an improper advantage for the briber.
5. The Corner House would therefore argue
for the removal of the "legitimately due" test and for
the phrase "advantage" to be amended to "improper
financial or other advantage". The definition of "improper",
if it is needed, could be based on improper influence or improper
conduct models, where the intention behind the advantage offered,
promised or paid is to induce a public official to conduct an
improper act. As in Clause 3 of the draft Bill ("Function
or activity to which briber relates") defining what is reasonable
and unreasonable, "improper" can be defined in relation
to general, universal norms of a duty on public officials, including
breach of trust, duty to act impartially, and duty to act in the
public interest (as recognised by the International Code of Conduct
for Public Officials adopted by the UN General Assembly in December
1996 and noted in the UN Convention Against Corruption, Article
8 on Codes of Conduct for Public Officials). Such norms would
recognise that receiving advantages in return for taking a particular
action in favour of an individual or company is never in the public
interest. This approach would be in keeping with the commentaries
on the OECD Anti-Bribery Convention, which state that where (for
instance) the notion of a breach of duty is implied in a statute,
it must be "understood that every public official had a duty
to exercise judgment or discretion impartially and that this was
an "autonomous" definition not requiring proof of the
law of the particular official's country".[172]
6. If Clause 4 was amended along these
lines, The Corner House believes that the removal of the "legitimately
due" test would not result in the criminalisation of behaviour
that should not be criminalised. It does not know of any countries
whose written laws require or permit an official to accept an
advantage that is intended to induce or reward improper behaviour.
It cannot therefore conceive of any "legitimately due"
advantage that is permissible to a foreign official but which
would be unfairly criminalised as a result of removing the "legitimately
due" test. For this reason, The Corner House would argue,
as stated in oral evidence, for the removal of the "legitimately
due" test.
June 2009
171 Draft Bribery Bill, Explanatory Notes, paragraph
30. Back
172
"Commentaries on the OECD Convention on Combating Bribery",
21 November 1997, paragraph 3, http://www.oecd.org/document/1/0,3343,en_2649_34859_20482129_1_1_1_1,00.html Back
|
