Memorandum 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);

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

 

Power conferred on: Secretary of State

 

Power exercisable by: Order made by statutory instrument

 

Parliamentary procedure: Affirmative resolution where primary legislation is amended or repealed; otherwise negative resolution

 

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

 

Power conferred on: Secretary of State

 

Power exercisable by: Order made by statutory instrument

 

Parliamentary Procedure: None

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