The Bribery Act 2010: post legislative scrutiny Contents

Chapter 1: Introduction

1.Societies are built upon trust. They need to rely on those with power and influence using that power and exerting that influence with integrity and transparency. Any abuse of power, any improper influence, any action led by self-interest rather than the public interest, destroys that trust. Where this becomes the norm, democracy, the economy and the rule of law all suffer, and ultimately the fabric of society is at risk.

2.Corrupt societies often spring from the example given by corrupt governments, but small-scale corruption can be equally insidious. The first conviction under the Bribery Act 20101 was of Munir Patel, a junior court official who became known as willing, for a consideration, to erase driving convictions from the records of individuals. Eight other named individuals and a number of others were convicted of perverting the course of justice.2

3.The case of John Poulson provides an example of how small-scale bribery can, if unchecked, build up into a multi-million pound industry. Over 30 years Poulson, though not a qualified architect, starting with a £50 loan built up the largest architectural practice in Europe through the corrupt purchase of local government contracts in northern England, and of contracts for the re-development of major railway termini through bribery of a British Rail employee, Graham Tunbridge. The bribes involved were not always large. When Tunbridge became Estates and Rating Surveyor for BR Southern Region, he gave Poulson contracts for the redevelopment of London Waterloo, Cannon Street and East Croydon stations–all in return for £253 a week and the loan of a Rover car.

4.Such corruption breeds more corruption; it was estimated at Poulson’s trial that 23 local authorities and over 300 individuals were involved. But the corruption had other deleterious effects. Taxpayers’ money was misused in paying more than the contracts might have cost on an open public tender. The businesses which genuinely deserved to be awarded such contracts suffered. The public, who might have had buildings to admire, instead saw their city centres blighted by some of the worst examples of sixties brutalist architecture. Mercifully, most of the city centres of Newcastle and Leeds have since again been redeveloped, as has Cannon Street station; but some examples remain.

Constitution and terms of reference of the Committee

5.The importance of having a law of bribery which is clear, effective and robustly enforced is therefore not in doubt. As we explain in the following chapter, the applicable law in the United Kingdom has evolved over time and is now primarily contained in the Bribery Act 2010. However the task of the legislature is not just to make law, but to see whether major legislation it has enacted is having the effect it was designed to achieve. This is the work of House of Lords Committees doing post-legislative scrutiny.

6.The timing of such scrutiny is important. When the House of Lords Constitution Committee first suggested in 2004 that major Acts of Parliament should routinely receive such scrutiny,4 it suggested that this should take place three to six years after the entry into force of the Act. The Government, in its 2008 response,5 suggested three to five years after Royal Assent, and this is still the Government’s position.6 This is a significant difference, since major primary legislation often cannot enter into force before secondary legislation has been made, which can take a year or more.

7.The Bribery Act 2010 received Royal Assent on 8 April 2010 but did not come into force until 15 months later, on 1 July 2011. The House of Lords Liaison Committee first considered setting up a Committee for post-legislative scrutiny of the Act in February 2017, but thought this was too soon and postponed the scrutiny for a year. It took into account that the law governing criminal activity will be that in force at the time of that activity, so that even then there were still cases coming before the courts which involved the earlier legislation;7 no case on the interpretation of the Bribery Act has yet reached the Court of Appeal,8 let alone the Supreme Court.

8.It was not therefore until March 2018 that the Liaison Committee decided to recommend the setting up of a Committee for post-legislative scrutiny of the Bribery Act.9 The House accepted that recommendation, and this Committee was set up on 17 May 2018. The names of the members and the declarations of interest are listed in Appendix 1.

9.The Liaison Committee recommended that this Committee should in particular consider:

10.Additionally, the Liaison Committee specifically invited us to consider Deferred Prosecution Agreements (DPAs) as they affect bribery. DPAs are, as we explain in Chapter 7, the creation of the Crime and Courts Act 2013, and apply to many crimes other than bribery, but to date their main application has been to bribery offences. We were asked to investigate how DPAs have affected the conduct of companies both to prevent corrupt conduct, and in the investigation of such conduct once it is discovered to have occurred.

11.Only one of the Acts which have previously been subject to post-legislative scrutiny by a Lords Committee has extended to Scotland,10 and Committees have only been able to suggest that the Scottish Parliament should consider their recommendations in relation to Scotland. The Bribery Act extends to the whole of the United Kingdom. All the relevant law of Wales and Northern Ireland is the same as the relevant English law, but there are material differences with the law applicable in Scotland. We consider the position of Scotland in Chapter 9. The recommendations we make for amendment of the Bribery Act will extend to Scotland, but there are other suggestions we make for changes to Scottish law and practice which are devolved matters and which it will therefore be for the Scottish Government to consider.

Our working methods

12.Under the Government’s own rules11 the Ministry of Justice, which is the sponsor department for the Bribery Act, should have submitted a memorandum no later than April 2015. By the time this Committee was set up, three years later, it had still not done so. We requested a memorandum, and it was laid before Parliament in June 2018.12 We do not regret the delay, since it enabled the department to give us a more up-to-date assessment than if it had followed its own rules.

13.We held our first meeting on 12 June 2018. On 19 June we agreed a Call for Evidence13 which was circulated widely. We received evidence from 108 persons and bodies. We have received supplementary written evidence from 15 persons and bodies. On 26 June we held an informal seminar off the record at which we heard from a number of experts. Their views at the outset of our inquiry were extremely valuable.

14.Between 3 July and 11 December 2018 we held oral evidence sessions every week the House was sitting. In those 23 sessions we heard oral evidence from 52 witnesses. A list of those who gave us written and oral evidence is at Appendix 2, and their evidence is on our website. To all those witnesses we are most grateful; our assessment of their views is the basis of this report.

Acknowledgement

15.Throughout the course of the inquiry we have been fortunate to have as our specialist adviser Anne-Marie Ottaway, a solicitor whose work, first at the Serious Fraud Office and more recently in private practice, made her admirably qualified to assist us. We are most grateful to her for her important contribution to our work.


1 We also refer to this Act as the Bribery Act or, depending on the context, simply as the Act.

2 For further details see Chapter 3, para 61 and Box 1.

3 Approximately £500 in today’s money. For the Cannon Street contract, he also received an £80 suit.

4 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173-I)

5 Office of the Leader of the House of Commons, Post-legislative scrutiny :The Government’s Approach, Cm 7320, March 2008, Appendix, paragraph 16: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228516/7320.pdf [accessed 4 March 2019]

7 For example, the conviction in September 2016 of Ronald Harper and others for corruptly making and receiving payments for contracts for work for the Royal Household related to payments made before July 2011; the charges were conspiracy to make corrupt payments and fraud by abuse of position.

8 Munir Patel appealed against his six-year prison sentence, which was reduced to four years. On the other hand, on 15 January 2016 the Court of Appeal ruled on the application of the Prevention of Corruption Act 1906 (repealed) to the bribery of a foreign official, agent or principal of a foreign public body, confirming that the meaning of the words ‘agent’ and ‘principal’ included both foreign and domestic persons or organisations and that the extension of extraterritoriality introduced by section 108 of the Anti-Terrorism, Crime and Security Act 2001 (and in force from 14 February 2002) only confirmed the existing position and was enacted out of an abundance of caution to address concerns expressed by the OECD in their 1999 review about the clarity of the earlier legislation (R v AIL, GH and RH [2016] EWCA Crim 2): http://www.bailii.org/ew/cases/EWCA/Crim/2016/2.html [accessed 23 January 2019]

9 Liaison Committee, New ad hoc Committees in 2018–19 (2nd Report, Session 2017–19, HL Paper 103) paras 24-33

10 The Inquiries Act 2005. See Report of the Select Committee on the Inquiries Act 2005, The Inquiries Act 2005: post-legislative scrutiny (Report of Session 2013–14, HL Paper 143)

11 See paragraph 6 above.

12 Ministry of Justice, Bribery Act 2010: Post Legislative Scrutiny Memorandum, Cm 9631, June 2018: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/713452/bribery-act-2010-post-legislative-scrutiny-memorandum.pdf [accessed 23 January 2019]

13 See Appendix 3.




© Parliamentary copyright 2019