Supplementary memorandum submitted by
The Corner House
1. This second submission to the Joint Committee
on Human Rights inquiry into Business and Human Rights addresses
the human rights implications of the Government's Draft Bribery
Bill May 20091 and the Industry and Exports (Financial Support)
Bill 20092 for which the Committee requested additional evidence
as relevant to its inquiry.
DRAFT BRIBERY
BILL
2. The Corner House3 welcomes the Joint
Committee's inclusion of the Draft Bribery Bill in its Business
and Human Rights inquiry. Acts of bribery often infringe upon
a wide range of human rights, both directly and indirectly. The
Draft Bribery Bill could have a potentially positive impact on
human rights if it deters businesses from bribing.
3. There have long been significant gaps
in the UK's domestic legislation to prevent and deter bribery.
Jack Straw MP, Lord Chancellor, Secretary of State for Justice
and "anti-corruption champion", has identified the Bill's
aims to:
— consolidate, remove inconsistencies and
fill gaps in the existing criminal law of bribery;
— reform and modernise the legislation
so as to bring transparency and accountability to the UK's international
business transactions;
— make anti-bribery legislation easier
for the public to understand and for prosecutors and the courts
to apply.
Since December 1999, the OECD Working Group
on Bribery has repeatedly urged the UK to enact appropriate anti-bribery
legislation as a matter of priority. If the Bill achieves these
aims, it could have a positive impact on deterring bribery and
thus on human rights.
4. Most large-scale bribery is committed
for the benefit and on behalf of businesses. The Draft Bribery
Bill (Clause 5) introduces criminal sanctions against corporations
that have negligently failed to prevent bribery within their organisations.
This could have a positive impact on human rights as long as the
sanction is effective. This new offence should not be turned into
a civil or regulatory regime for imposing fines on companies but
should remain a criminal offence as currently drafted.
5. The offences in the Draft Bribery Bill
apply not only to actions taking place in the UK but also to those
that take place abroad if they are carried out by a British national,
a British resident, a national of a British overseas territory
or a body incorporated in the United Kingdom (Clause 7). This
extraterritorality in scope is welcome and could set a precedent
for other legislation and public policy (see first Corner
House submission to this inquiry).
6. Despite these potential positive impacts
on human rights, however, the Draft Bribery Bill could also have
significant negative impacts on human rights. Major gaps in the
legislation could result in well-founded allegations of bribery
offences not being investigated properly or prosecuted. If these
gaps are not filled, the law may not be applied equally across
the board to all, and may even encourage large scale cross-border
bribery rather than deter it.
Additional clauses need to be included to ensure
that those investigating and prosecuting the bribery of foreign
public officials are not influenced by considerations of national
economic interest or the potential effect upon relations with
another state or the identity of the natural or legal persons
involved.
These potential positive and negative impacts
are outlined in more detail below.
Bribery and corruption infringe upon a wide range
of human rights
7. Bribery and corruption are not victimless
crimes. As the UK Secretary of State for International Development
said in 2006 on the occasion of the G8 Summit:
"The problem is that corruption, like temptation,
exists everywhere, but in poor countries it can kill. Money meant
for drugs for a sick child, or to build a hospital, can be siphoned
off into overseas bank accounts or to build a luxury house. And
poor people fare worse. They have to pay bribes to get healthcare,
bribes to get their children a decent education."4
8. For multinationals, bribery enables companies
to gain public sector contracts (particularly for public works
and military equipment) or concessions that they would not otherwise
have won, or to do so on more favourable terms. Such grand corruption
diverts public spending away from less lucrative sectors such
as health care, education and the maintenance of existing infrastructure
towards high kickback areas such as new construction contracts
and military supplies.
9. The foreword to the UN Convention Against
Corruption (which the United Kingdom signed on 9 December
2003 and ratified on 9 February 2006) states that when
funds intended for development are diverted into other areas because
of the incentive of bribes and other corrupt practices, a government's
ability to provide basic services is undermined and the whole
process feeds inequality and injustice.
The OECD points out that "the diversion
of funds through corrupt practices undermines attempts by citizens
to achieve higher levels of economic, social and environmental
welfare."5
10. Corruption also has profound implications
for national security, acknowledged by the leaders of the G8 countries
in their final communiqu
from the 2006 St Petersburg Summit:
"We recognize that corrupt practices contribute
to the spread of organized crime and terrorism, undermine public
trust in government, and destabilize economies."6
The Home Office's 2004 strategy document
on combating organised crime notes that:
"Bribery overseas can be a factor which
supports corrupt governments, with widespread destabilising consequences."7
11. Corruption is a major feature of "failed
states", contributing to and feeding off the lack of accountable
government. Saudi Arabia, for example, was ranked 73rd out of
146 in the 2006 "Failed States Index"; corruption
has been specifically singled out as contributing to this ranking:
"Although there have been increasing pressures
for political reform . . . Saudi Arabia remains an absolute monarchy
with little transparency or accountability. In addition to continuing
with these reforms, the government needs to address the issue
of corruption within the royal family, and work to improve its
human rights record."8
Corruption in Saudi Arabia and arms purchases
by the Saudi government have prompted some Saudis to embrace a
radical interpretation of Islam.9
12. In many countries, the work and lives
of those who challenge, investigate or report corrupt practices
are often endangered.
13. This brief overview indicates that the
struggle against bribery and corruption is central to the struggle
for human rights. Corruption encourages discrimination, deprives
vulnerable people of income, and prevents people from fulfilling
their political, civil, social, cultural and economic rights.
When bribery and corruption are widespread, people do not have
access to justice, are not secure and cannot protect their livelihoods.
Several UN treaty bodies and UN special procedures
have concluded that, where corruption is widespread, states cannot
comply with their human rights obligations.10
14. The Special Representative of the Secretary-General
on the Issue of Human Rights and Transnational Corporations and
Other Business Enterprises has included corruption among the abuses
of human rights committed by transnational corporations.11
Bribery is a major part of corruption (even
though the human rights impacts of corruption extend far wider).
Commenting on the bribery behaviour of multinational companies
headquartered in OECD countries, the World Bank notes that when
they are operating abroad but within the OECD, their behaviour
is "very similar to that of their domestic counterparts in
the OECD home country". But when they are operating in non-OECD
countries, they "exhibit much lower (often illegal) corporate
ethics standards."12 The World Bank concludes:
"This speaks to the need not only for tightening
the monitoring and enforcement of the OECD Anti-Bribery Convention,
but also for implementing complementary measures to change the
incentives for bribery abroad."13
The Asian Development Bank similarly identifies
the "supply-side" of corruption as a major problem:
". . . an 'unholy alliance' often exists
between corrupt officials and corrupt foreign firms, many of whom
are based in donor countries. Our policy requires the Bank to
address both those who would give bribes and those who would take
them."14
A first step towards holding to account those
who bribe and towards stopping human rights abuses is to criminalise
bribery and to make corporations—the major beneficiaries
of grand corruption—criminally liable for bribery. The Draft
Bribery Bill does this (although there is scope for improvement)
and thus could have a positive impact on human rights.
Consolidating, modernising and filling gaps in
UK anti-bribery legislation
15. In addition to signing and ratifying
the UN Convention against Corruption (UNCAC), the UK also signed
the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions ("the OECD Anti-Bribery
Convention") on 17 December 1997, for which it deposited
its instrument of ratification on 14 December 1998. The essence
of the OECD Anti-Bribery Convention is to require an effective
domestic remedy against foreign bribery by means of prosecution
and enforcement by competent national authorities in accordance
with the standards set out in the Convention.
16. Under UNCAC and the OECD Anti-Bribery
Convention, the UK committed itself to:
— criminalising bribery overseas;
— ensuring effective investigation, prosecution
and sanction of bribery and corruption;
— establishing specialised anti-corruption
authorities with sufficient resources and appropriate training
to investigate such offences;
— ensuring that domestic money-laundering
and accounting legislation is in place to prevent and detect such
offences; and
— providing prompt and full international
cooperation.
Given the international nature of many business
transactions today, most states agree that international cooperation
is needed to create a level playing field for all.
But the UK has been slow to introduce key provisions
of the OECD Anti-Bribery Convention into UK law. If the Draft
Bribery Bill was to enact in domestic legislation the commitments
the UK made internationally over a decade ago, it could have a
significant positive impact on deterring bribery and thus on human
rights.
Negligently failing to prevent bribery within
a commercial organisation should be a criminal offence
17. Clause 5 of the Draft Bribery Bill
creates an offence of negligently failing to prevent bribery committed
in connection with a commercial organisation's business. This
Clause should be a criminal offence, as currently drafted, and
should not be turned into a civil or regulatory regime for imposing
fines on companies. Its positive human rights implication would
be lessened if it was weakened in this way. Moreover, to repeat:
bribery is not a victimless crime; it kills.
18. Bribes are invariably paid by an employee
or individual for company benefit and advantage, if not with company
facilitation and knowledge, rather than solely for the employee's
or individual's personal gain. As the Serious Fraud Office has
noted:
". . . it is in the pursuit of corporate
objectives that individual employees use bribes. Individuals do
the bribing, corporations benefit. Thus to sideline the key player/offender
is to ignore the essence of the problem. This is not a case of
an offence which sometimes corporations also commit, such as for
example fraud or even manslaughter. The mischief at which the
bribery offences are directed is almost entirely confined within
business activity . . . "15
As such, it is the company that should face
criminal liabilities for the criminal offence of bribery.
Imposing a civil or regulatory scheme of fines
would send a message that bribing and its attendant fines are
simply the cost of doing business abroad. It might also encourage
companies based in those countries that do have corporate criminal
liability to channel their bribes through their UK-registered
subsidiaries and affiliates.
19. It would be preferable for corporate
criminal liability to be introduced across the board for all criminal
offences. But it is unclear when the Law Commission's ongoing
review of corporate criminal liability for criminal offences will
be completed and its recommendations followed up by Government.16
The OECD Working Group on Bribery recommended
in October 2008 that "the UK adopt appropriate [anti-bribery]
legislation on a high priority basis irrespective of any broader
reform efforts on corporate liability".17
Given that the UK has not introduced an effective
regime against corporate bribery with dissuasive sanctions despite
signing and ratifying the OECD Anti-Bribery Convention more than
ten years ago, The Corner House does not believe that corporate
criminal liability for bribery should be left any longer.
When the Law Commission's review is completed,
however (and depending on its conclusions, recommendations and
Government follow-up), there should be scope to improve the Clause
5 offence of corporate failure to prevent bribery and bring
it into line with overall corporate criminal liability.
The extraterritorial scope of the Draft Bribery
Bill could set a precedent for other UK legislation and public
policy
20. Clause 7 of the Draft Bribery Bill
concerns the territorial application of the various bribery offences
created in the Bill. Its effect is to give UK courts jurisdiction
to prosecute acts of bribery committed abroad by British nationals,
British residents, nationals of a British overseas territory or
a legal body incorporated in the United Kingdom. For the purposes
of the offence of failure of a commercial organisation to prevent
bribery, it is immaterial where the conduct element of the offence
occurs.
21. The extraterritoriality aspect of bribery
had already been introduced by means of Part 12 of the Anti-Terrorism,
Crime and Security Act 2001, which gave UK courts jurisdiction
over crimes committed abroad by UK nationals and UK companies
under the existing law governing domestic bribery. Clause 7 extends
these provisions to persons ordinarily resident in the UK, irrespective
of their nationality. But UK corporate subsidiaries or affiliates
not incorporated in the UK are still not included within the draft
legislation.
22. Despite this loophole, the application
of UK law to offences committed outside abroad by UK nationals,
residents and companies is a welcome step forward. As Jack Straw
stresses in his Foreword to the Draft Bribery Bill:
"As . . . all economies become increasingly
more inter-reliant, we must ensure that the law provides our courts
and prosecutors with the tools they need to tackle bribery effectively,
whether it occurs at home or abroad".18 (emphasis
added)
Similarly, the Home Office's 2004 strategy
document on combating organised crime stated that:
"Bribery overseas can be a factor which
supports corrupt governments, with widespread destabilising consequences.
We are duty-bound to promote high standards of fairness and integrity
and to ensure that UK citizens do not contribute to corruption
either at home or abroad."19 (emphasis added)
23. As noted in The Corner House's first
submission to the Joint Committee's Business and Human Rights
inquiry, the extraterritorial dimension of the State's duty to
protect human rights is unsettled in international law. States
are not prohibited from regulating the extraterritorial activities
of businesses incorporated in their jurisdiction—but they
are not required to do so either.
In contrast, the two major international anti-bribery
agreements—the UN Convention Against Corruption and the
OECD Anti-Bribery Convention—both require signatory states
to criminalise bribery in their jurisdictions even when the act
took place outside their jurisdictions.
24. Without this extraterritorial dimension,
many businesses would remain unpenalised for bribery offences
in which they are implicated. The Corner House believes that the
precedent set by the UK's willingness to accept extraterroriality
in relation to the crime of bribery offers an opportunity to strengthen
domestic human rights legislation.
Well-founded allegations of foreign bribery offences
may not be investigated properly or prosecuted unless the Draft
Bribery Bill contains additional clauses
25. Cross-border corruption is notoriously
difficult to tackle. This is particularly so if the bribed foreign
public official is senior in status and is in a position to blackmail
or otherwise threaten adverse consequences if his/her conduct
is exposed through an investigation or prosecution or to protect
the interests of the company or individual that bribed.
Tackling cross-border corruption is particularly
difficult if the bribing company, or individual acting on a company's
behalf, is able to exert undue or improper influence over those
investigating and prosecuting bribery, or is able to persuade
others to exert such influence, such as other public officials,
whether domestic or foreign. Larger companies are more likely
to be in a position to exert such influence than are small and
medium enterprises (SMEs).
Investigators, prosecutors and the Courts need
to have legislative, Parliamentary and Executive support and backing
to resist such threats, blackmail or other undue or improper influence.
Without such backing, the demands of realpolitik often
mean that bribery investigations and prosecutions do not take
place or are terminated. If investigators, prosecutors and the
courts capitulate to such threats, blackmail or influence, the
end result is that bribery flourishes.
In its 2009 report, Corruption and Human
Rights: Making the Connection, the International Council on
Human Rights Policy and Transparency International stresses that:
"Political interference in the judicial
system occurs when those in political power use their influence
(including threat, intimidation or bribery) to force or induce
a judge (or other court official) to act and rule according to
their interests and not in accordance with the application of
the law."20
26. The current legal situation in the UK
is that bribery investigators and prosecutors can legally abandon
an investigation into or prosecution of the criminal offence of
bribery overseas allegedly instigated by a UK corporate body or
individual if they perceive that the investigation or prosecution
might affect the UK's national economic interest, or the UK's
relations with another country, or because the person or company
being investigated has a high profile or position of influence.
Article 5 of the OECD Anti-Bribery Convention states that
bribery investigators and prosecutors must not take into account
these considerations.21 The Draft Bribery Bill does not change
or address this situation.
This legal status was made clear as a result
of the House of Lords ruling in the Appeal of the Director of
the Serious Fraud Office against the High Court judgment of the
judicial review application brought by The Corner House and Campaign
Against Arms Trade of the Director's decision to stop the investigation
into BAE System's alleged corruption in arms deals with Saudi
Arabia.22
27. As a result, all foreign states and
officials know that they can dispose of an embarrassing or awkward
bribery prosecution in the UK and protect the interests of the
company that purchased their cooperation through the bribe if
they can construct a credible threat to the UK's economic interest
or diplomatic relations.
The more ruthless and powerful the recipient
of the bribe, the less likely that the bribe payer will ever be
prosecuted. As larger companies are more likely than small and
medium enterprises to have "friends in high places"
who can bring sufficient pressure to bear, the notion of equality
before the law is turned on its head.
28. As UK companies become aware that investigations
into bribing a foreign public official can be scotched in the
UK if they might be construed as jeopardising relationships with
another country or the UK's interests, some companies may believe
that they can bribe with impunity. In the current economic recession
and resulting higher unemployment, arguments about potential job
losses, or loss of orders and contracts may be more persuasive
and readily accepted as reasons not to investigate or prosecute.
29. Knowing that an investigation or prosecution
of a foreign bribery allegation can be scuppered in the UK may
also encourage foreign public officials to demand bribes from
UK companies, UK nationals and UK residents. It may also encourage
companies based in countries that do investigate and prosecute
bribery more thoroughly to channel their bribes through the UK.
30. It could therefore be said that, unless
additional clauses are included in the draft Bribery Bill, the
proposed legislation could have the bizarre effect of encouraging
bribery of foreign public officials rather than having a preventive
effect.
31. The new Bribery law needs to lead to
both effective enforcement and to have a preventative effect.
The Corner House believes that additional clauses must be included
in the draft Bill requiring that considerations of national economic
interest, relations with other states or the identity of the persons
at issue shall not influence decisions to investigate or prosecute
the new criminal offence of bribery of foreign public officials.
Such clauses would directly and expressly implement Article 5 of
the OECD Anti-Bribery Convention into UK law.
32. Without such additions, the new law
will not lead to effective enforcement or have a preventative
effect—rather the reverse. There is a high risk that it
will not in practice be applied to those for whose benefit and
on whose behalf most large-scale bribery and corruption crime
is committed: companies.
Without these additional clauses, the inclusion
of the new offence in the draft Bribery Bill will, at best, amount
to little more than a box-ticking exercise encompassing just a
part of the OECD Anti-Bribery Convention and will make little
practical difference to tackling large-scale bribery; at worst,
it will allow bribery in international business transactions to
flourish.
If this regulatory gap is not plugged, grand
corruption carried out by businesses will continue to have a detrimental
impact on human rights.
INDUSTRY AND
EXPORTS (FINANCIAL
SUPPORT) BILL
33. The Industry and Exports (Financial
Support) Bill amends section 1(1) of the Export and Investment
Guarantees Act 1991, the founding Act of Parliament of the Export
Credits Guarantee Department (ECGD). It does so in a manner that
The Corner House considers to be entirely negative.
Under the Bill, the Export Credits Guarantee
Department (ECGD) is permitted to approve support for exporters
retrospectively.23 Where an exporter has already supplied parts
for, say, an oil pipeline, the ECGD is permitted to approve support
for these parts even though they have already been supplied. Before
this Bill, ECGD could grant support only when the goods and services
had not been exported and thus where it was "facilitating"
the export.
34. The Government has given an undertaking
that any retrospective financing by ECGD will be subject to the
Department's social and environmental safeguard policies (as outlined
in The Corner House's first submission to the Joint Committee's
Business and Human Rights inquiry)—albeit after the event.
But retrospective financing would render the
ECGD's (already weak) human rights policies and procedures toothless.
Such procedures are all that currently stands in the way of ECGD
backing projects that have a potential negative impact on human
rights and the environment.
Social and Environmental Impact Assessment is
a pro-active tool intended to identify potential harm before
any damage is done. Retroactive assessment defeats its very purpose.
Indeed, the World Bank, to whose safeguard policies
ECGD-backed projects are expected to conform, explicitly requires
assessments to be completed prior to financing being agreed. Retrospective
financing therefore places ECGD in breach of its own stated standards
and international undertakings.
35. With the ECGD under pressure to "get
money out of the door" to ease exporters' difficulties because
of the "credit crisis", there is a danger that projects
will be rubber stamped without difficult questions being asked
if retrospective financing is permitted.
36. When ECGD tried to apply procedures
retrospectively in 2000 in order to finance the controversial
Ilisu Dam in south-east Turkey, which would forcibly displace
up to 78,000 ethnic minority Kurds, Parliament's International
Development Committee was scathing:
"There is good reason for the expectation
that relevant international criteria should be met before
a proposal is agreed and cover sought—it is a sign of political
will, institutional capacity, developmental commitment and good
faith."24
30 June 2009
ENDNOTES
1. http://www.justice.gov.uk/publications/docs/draft-bribery-bill-tagged.pdf
2. http://www.publications.parliament.uk/pa/cm200809/cmbills/070/09070.i-i.html
http://services.parliament.uk/bills/2008-09/industryandexportsfinancialsupportbill.html
3. The Corner House has a track record of detailed
policy research and analysis on overseas corruption and on corporate
accountability. See: http://www.thecornerhouse.org/uk/corruption
It has also brought two judicial reviews on corruption-related
decisions by public bodies: one, by the Export Credits Guarantee
Department to weaken in November 2004 its rules aimed at
reducing corruption; the other by the Director of the Serious
Fraud Office (SFO) in December 2006 to terminate the SFO
investigation into alleged bribery and false accounting by BAE
Systems in relation to the Al Yamamah deals with Saudi Arabia.
See:
— "Corner House Double Victory
on UK Government Department's Anti-Bribery Rules and Public Interest
Litigation", 25 January 2005, http://www.thecornerhouse.org.uk/item.shtml?x=107362.
— http://www.controlbae.org.
4. Hilary Benn, Secretary of State for International
Development, Holyrood, Edinburgh, 22 June 2006, "Governance
and Development",
http://www.dfid.gov.uk/news/files/Speeches/governance-development.asp
5. OECD Directorate for Financial, Fiscal and
Enterprise Affairs, "The OECD Guidelines for Multinational
Enterprises: Text, Commentary and Clarifications", DAFFE/IME/WPG(2001)15/Final,
http://www.olis.oecd.org/olis/2000doc.nsf/4f7adc214b91a685c12569fa005d0ee7/d1bada1e70ca5d90c1256af6005ddad5/$FILE/JT00115758.PDF.
6. G8, "Fighting High Level Corruption",
July 2006, available at http://en.g8russia.ru/docs/14.html
7. Home Office, "One Step Ahead: a 21st
Century Strategy to Defeat Organised Crime", March 2004,
available at http://www.archive2.official-documents.co.uk/document/cm61/6167/6167.pdf.
8. Fund for Peace, "Saudi Arabia",
http://www.fundforpeace.org/publications/profiles/cp_saudi_arabia.pdf.
9. A fatwa issued by Osama bin Laden in
1996, entitled "Declaration of War against the Americans
Occupying the Land of the Two Holy Places", cites corruption
in Saudi Arabia and arms purchases by the Saudi government as
major justifications for his call for a Jihad not only against
the United States but also against the Saudi Royal family.
See: Online News Hour, "Bin Laden's Fatwa",
August 1996, http://www.pbs.org/newshour/terrorism/international/fatwa_1996.html.
Authoritative accounts of the genesis of Al Qaeda
underline the role that corruption played in motivating key figures
in the network. For example, Jason Burke in his book Al Qaeda:
The True Story of Radical Islam cites the "obvious corruption
and ostentation on the part of the elite and government officials"
as two of the underlying "root causes of the appeal of the
Islamic radicals" in Egypt following the 1981 assassination
of President Sadat.
See: Jason Burke, Al Qaeda: The True Story of
Radical Islam, Penguin, 2004, p.153.
10. "States face serious problems of corruption,
which have negative effects on the full exercise of rights covered
by the Covenant [ICESCR]"
Committee on Economic, Social and Cultural Rights,
E/C.12/1/ADD.91, 2003, para. 12.
The Committee on the Rights of the Child "remains
concerned at the negative impact corruption may have on the allocation
of already limited resources to effectively improve the promotion
and protection of children's rights, including their right to
education and health."
CRC/C/COG/CO/1, para 14.
Statement by the UN Special Rapporteur on independence
of judges and lawyers, E/CN.4/2006/52/Add.4. para 96.
11. UN. Doc. E/CN.4/2006/97, paras. 25-27.
12. Kaufman, D., "Corruption, Governance
and Security: the challenges for the Rich countries and the world",
in World Economic Forum, Global Competitiveness Report, September
2004, chapter 2, p.92, http://siteresources.worldbank.org/INTWBIGOVANTCOR/Resources/Kaufmann_GCR_101904_B.pdf
13. Ibid., p.98.
14. Asian Development Bank, "ADB/OECD Conference
on Combating Corruption in Asian and Pacific Economies",
http://www.adb.org/documents/speeches/1999/ms1999012.asp
15. Serious Fraud Office, written response to
the Law Commission's consultation on anti-bribery legislation,
quoted in para 75, OECD Working Group on Bribery, United Kingdom:
Phase 2bis, Report on the Application of the Convention
on Combating Bribery of Foreign Public Officials in International
Business Transactions and the 1997 Recommendation on Combating
Bribery in International Business Transactions, 16 October
2008, http://www.oecd.org/dataoecd/23/20/41515077.pdf.
16. http://www.lawcom.gov.uk/1150.htm
17. After para 92, page 25, OECD Working Group
on Bribery, United Kingdom: Phase 2bis, Report on the
Application of the Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions and the
1997 Recommendation on Combating Bribery in International
Business Transactions, 16 October 2008, http://www.oecd.org/dataoecd/23/20/41515077.pdf.
18. Jack Straw MP, Lord Chancellor and Secretary
of State for Justice, "Foreword", Bribery: Draft
Legislation, Ministry of Justice, 25 March 2009, p.4,
http://www.justice.gov.uk/publications/docs/draft-bribery-bill-tagged.pdf.
19. Home Office, "One Step Ahead: a 21st
Century Strategy to Defeat Organised Crime", March 2004,
available at http://www.archive2.official-documents.co.uk/document/cm61/6167/6167.pdf.
20. International Council on Human Rights Policy
and Transparency International, Corruption and Human Rights: Making
the Connection, Geneva, Switzerland, 2009, p. 37, http://www.ichrp.org/files/reports/40/131_web.pdf
21. Article 5 of the OECD Anti-Bribery Convention
is intended to remove barriers to the investigation and prosecution
of international bribery and corruption:
"Investigation and prosecution of the bribery
of a foreign public official . . . shall 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."
Signatories to the OECD Convention agree not to accede
to diplomatic threats and other forms of blackmail commonly used
to frustrate embarrassing international bribery prosecutions in
exchange for a similar promise by other states. If all signatory
countries maintain the same common high standard of refusing to
abandon bribery investigations and prosecutions on the basis of
diplomatic and economic threats (real or bluffed), all states
ultimately benefit. Each country agrees to limit its freedom of
action individual cases in order to secure long-term benefits
for all. To do so, uniformity of interpretation of the Convention
and of enforcement is essential.
22. "R (Corner House Research & Campaign
Against Arms Trade) v Director of the Serious Fraud Office [2008]
3 WLR 568", Opinions of the Lords of Appeal by
Lord Bingham, Lord Hoffmann, Lord Rodger, Baroness Hale and Lord
Brown, 30 July 2008, http://www.thecornerhouse.org.uk/pdf/document/Lords-Judgment.pdf.
For background to the judicial review and other key
legal documents, see: http://www.controlbae/org
In October 2008, the OECD Working Group on Bribery
highlighted the "inadequate status of Article 5 in the
domestic legal order" (p.95) governing both investigations
and prosecutions of alleged foreign bribery. It concluded that:
" . . . Article 5 must be equally applicable
in all member states of the Working Group. Because the Article
addresses investigation and prosecution decisions taken in the
domestic legal order, it must apply with full force and effect
in that sphere, both as a practical and legal matter, in order
for its purposes to be achieved.
". . . The lead examiners accordingly recommend
that the UK take all necessary measures to ensure that Article
5 applies to all investigation and prosecution decisions
in foreign bribery cases."
(After paragraph 108, OECD United Kingdom: Phase
2bis Report, 16 October 2008, http://www.oecd.org/dataoecd/23/20/41515077.pdf.)
23. Industry and Exports (Financial Support)
Bill 2009, Clause 2: Assistance in connection with exports of
goods or services:
(1A) "Arrangements under subsection (1) may
be made in connection with goods or services supplied before the
arrangements are made . . . "
http://www.publications.parliament.uk/pa/ld200809/ldbills/039/09039.i-i.html
24. International Development Committee, Sixth
Report, ECGD, Developmental Issues and the Ilisu Dam, House
of Commons, The Stationery Office, 6 July 2000, p.vii.
The UK consortium seeking ECGD support for the proposed
Ilisu Dam eventually withdrew its application, admitting that
the Dam did not meet international standards.
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