The Bribery Act 2010: post legislative scrutiny Contents

Chapter 2: Background to the legislation

16.Few Acts of Parliament can have had as long and painful a gestation as the Bribery Act.

The first Prevention of Corruption Acts

17.Until 1889 bribery was solely a common law offence14—or, more accurately, a number of different common law offences, distinguished by the office or function to which the offence applied. There were other relevant common law offences including embracery (bribery of a juror) which is no longer extant,15 and misconduct in public office, an offence which is still thriving and perhaps even enjoying a revival, something we consider in Chapter 3. And, Scottish common law being different from English common law, the Scottish offence of bribery was different still.

18.The Public Bodies Corrupt Practices Act 1889 was passed to implement the recommendations of a Royal Commission which had inquired into the Metropolitan Board of Works, which then exercised the powers of local government in London. The Act created for the first time the statutory offences of corruptly soliciting or receiving, or corruptly giving, promising or offering, any “gift, loan, fee, reward or other advantage”. The Act applied only to local public bodies such as county, city, town or borough councils. It extended to Scotland.

19.Following calls for the criminal law of corruption to be extended to the private sector, the Prevention of Corruption Act 1906 was passed. This created the offences of an agent corruptly accepting or obtaining “any gift or consideration” as an inducement or reward in relation to his principal’s affairs or business; or for a person corruptly giving or agreeing to give “any gift or consideration” as an inducement or reward in relation to his principal’s affairs or business. This applied to all agents whether in the public or private sector, and included “a person serving under the Crown”. The Acts thus used different language to describe the “gift or consideration”. Neither Act defined the vital word “corruptly”. Some conduct could be both a common law and a statutory offence, or an offence under both Acts.

20.The last Act of the trio, the Prevention of Corruption Act 1916, created no new offences but shifted the burden of proof in relation to public sector contracts, so that where in proceedings under the 1889 or 1906 Acts “it is proved that any money, gift or other consideration has been paid or given to or received by a person in the employment of His Majesty or any Government Department or a public body” for procuring a contract, it was for the defence to show that the payment was not corrupt. These three Acts16 were for the next century the main statutory provisions governing bribery.17

The late twentieth century

21.The fifties and sixties were years when corruption was perceived as increasingly prevalent, especially in local government. In 1973 a Committee was appointed under Lord Redcliffe-Maud:

“To examine existing local government law and practice and how it might affect:

(i) the conduct of both members and officers in situations where there is or could be a conflict between their position in local government and their private interests;

(ii) qualification or disqualification for service as a member of a local authority or any of its committees.

To consider the adequacy of the operation of such law and practice and the principles which should apply, and make recommendations regarding compliance with such principles.”

22.The Committee reported in 1974, and among its recommendations were that section 2 of the 1916 Act should be amended so as to apply (a) to exercises of discretionary powers by local authorities as well as to the award of contracts, and (b) to councillors as well as to employees; and that section 2 of the 1889 Act should be amended so as to give the court discretion to disqualify a person convicted of corruption from membership of a local authority for life on a first offence. Yet almost before the Committee’s report could be considered, matters came to a head with the conviction of John Poulson in March 1974. This led the Prime Minister to set up the Royal Commission on Standards of Conduct in Public Life under Lord Salmon. Its terms of reference were:

“To enquire into standards of conduct in central and local government and other public bodies in the United Kingdom in relation to the problems of conflict of interest and the risk of corruption involving favourable treatment from a public body; and to make recommendations as to the further safeguards which may be required to ensure the highest standard of probity in public life.”

23.The Royal Commission reported in July 1976, and among its recommendations were the amendment and consolidation of the Prevention of Corruption Acts 1889 to 1916. In relation to the public sector the Commission recommended:

“(i) that the essence of the offence of bribery should remain the corrupt offering, giving, soliciting or accepting of considerations as an inducement or reward in respect of the affairs of the organisation in question;

(ii) that public bodies should be defined as broadly as is compatible with certainty; and

(iii) that the presumption of corruption should remain, and should apply whether or not contracts are involved in the alleged offence.”

24.Although the Royal Commission was examining only the public sector, it expressed the expectation “that the opportunity will be taken of considering what, if any, changes are needed in the application of the present legislation to the private sector”. That expectation was not realised. The opportunity was not taken by the Government to make any changes in the law in either the public or the private sector, and matters remained unchanged for nearly 20 years. Then in October 1994, 20 years after the Salmon Royal Commission was set up in response to the Poulson scandal, the Prime Minister in response to the many allegations of “sleaze”—Members of Parliament accepting cash for questions, and Ministers accepting personal favours in conflict with their duties—set up the Standing Committee on Standards in Public Life18 under the chairmanship of Lord Nolan.

25.In considering the conduct of Members of Parliament, the Nolan Committee said in their first report19 that doubts existed whether, in the case of bribery of a Member or acceptance of a bribe by a Member, the courts or Parliament had jurisdiction. The report continued:

“The Salmon Commission in 1976 recommended that such doubt should be resolved by legislation, but this has not been acted upon. We believe that it would be unsatisfactory to leave this issue outstanding when other aspects of the law of Parliament relating to conduct are being clarified. We recommend that the Government should now take steps to clarify the law relating to the bribery of or the receipt of a bribe by a Member of Parliament.20 This could usefully be combined with the consolidation of the statute law on bribery which Salmon also recommended, which the government accepted, but which has not been done. This might be a task which the Law Commission could take forward.”21

26.The “doubt” which instigated this work was the one matter which was not and still has not been resolved by legislation: although it is now clear that a Member of either House will be subject to the criminal law of bribery in the same way as a non-member, there is no statutory provision to this effect, nor any demarcation line with Parliamentary privilege.22 However “the consolidation of the statute law on bribery”, which the Nolan Committee regarded as an adjunct to the specific issue of bribery of Members of Parliament, was as the Committee recommended referred by the Government to the Law Commission.

The Law Commission’s work

27.Even before the Nolan Committee’s recommendation, the Law Commission had in 1994 begun a comprehensive review of the law of dishonesty. Initially they sought to make their review of the law of bribery part of this larger project, but they soon came to see corruption as a distinct crime deserving special treatment. In 1997 they published a Consultation Paper Legislating the Criminal Code: Corruption,23 and this was followed in 1998 by their first report, also entitled Legislating the Criminal Code: Corruption.24 Appended to the Report was a draft Corruption Bill. Central to it was the definition of “corruptly” which was spread over three lengthy and complex clauses; this was ultimately to prove the Bill’s downfall.

28.On receiving the report the Government set up a working group of stakeholders which met over the period 1998–2000, and this was followed in June 2000 by a Government White Paper on corruption.25 This was positively received and led to the publication in 2003 of a draft Corruption Bill.26 That draft Bill was closely based on the Law Commission’s draft of five years earlier, including the definition of “corruptly”, with only a re-arrangement of the order of the clauses. A number of provisions were added, including a clause requiring the consent of the Attorney General to the initiation of prosecutions, two clauses providing exemptions for the intelligence services, and provisions extending the Bill to Scotland and Northern Ireland, something beyond the powers of the Law Commission whose remit is confined to England and Wales.

29.That draft Bill was sent to a Joint Committee of both Houses for pre-legislative scrutiny. In their report, published on 31 July 2003,27 the Committee accepted that the existing law on corruption was so deficient that it was necessary to legislate, but said:

“The written and oral evidence we have received has been highly critical of the Bill from a wide range of different viewpoints. While no one has challenged the need for new legislation, there have been many adverse comments on the approach adopted in the Bill and its drafting, clarity and comprehensibility.”28

30.The Joint Committee shared the views of the witnesses, and were particularly critical of the retention of the agent/principal relationship as the basis for the offence. They felt that the Bill did not state what type of conduct was punishable as corrupt in language which could be readily understood by the police, by prosecutors, by jurors, by the public, and especially by the business community and public sector. They invited the Home Office to bring forward a revised Bill taking account of all their criticisms.

31.In its response,29 the Government accepted the Joint Committee’s recommendations in part but expressed reservations about the suggestions as to how the offences should be structured, given the rejection of the principal/agent model. After further consultation the Government concluded that, although there remained support for reform, there was no clear consensus on the form it should take. It therefore decided to refer the matter back to the Law Commission for a further review.

32.The Law Commission issued a second consultation paper, Reforming Bribery,30 on 29 November 2007, 10 years after the first. This time their focus was on “corruption in the narrow sense of offences relating to bribery.” They regarded broader offences of corruption such as insider dealing, and certain offences against competition law as outside the scope of their project, and therefore entitled the project “bribery” rather than “corruption”.31 The consultation paper was again followed by a report32 with, appended to it, a draft Bribery Bill.

The draft Bribery Bill

33.On 25 March 2009 the Government presented to Parliament a draft Bribery Bill33 which closely followed the Bill appended to the Law Commission’s report. Again this was referred to a Joint Committee of both Houses for pre-legislative scrutiny.34 Their report was published on 28 July 2009.35 This Joint Committee was as supportive of the draft Bribery Bill as its predecessor six years earlier had been critical of the draft Corruption Bill. The Committee thought that the proposed offences of bribing and being bribed overcame the hurdle—the meaning of “corruptly”—which had defeated the draft Corruption Bill. They “particularly welcome[d] the proposed offence that targets companies and partnerships which fail to prevent bribery by persons performing services on their behalf”—what is now section 7 of the Act.

34.The Bill was introduced in the House of Lords on 19 November 2009. It received all-party support. We deal in the appropriate places in this report with those matters which then caused controversy, and still do.36 The Bill received Royal Assent on 8 April 2010, the day Parliament was dissolved for the general election.

35.Section 9 of the Act requires the Secretary of State to publish guidance about the procedures that commercial organisations can put in place for the purposes of establishing an “adequate procedures” defence to the section 7 offence. During the passage of the Bill the (Labour) Government had given an undertaking that the Act would not be brought into force until at least three months after that guidance had been published.37 In fact the Coalition Government did not publish the Guidance until March 2011, and it was not until 1 July 2011, just 35 years after the recommendation of the Salmon Royal Commission, and 95 years after the enactment of the Prevention of Corruption Act 1916, that the Bribery Act 2010 was brought into force.

The Bribery Act: an overall assessment

36.However well received a Bill may be, it does not necessarily follow that the resulting Act will live up to the expectations and achieve what was hoped. The Post Legislative Scrutiny Memorandum modestly concludes: “The Government’s preliminary assessment is that the Bribery Act has fulfilled the functions that Parliament intended it to perform in the seven years since it became law.”38 Others agree, but are rather more forthcoming. Of the 100 witnesses from whom we have received written evidence or taken oral evidence, not one has had major criticisms to make. There have of course been many suggestions for ways in which it might be improved, and we deal with these in this report. But overall the structure of the Act, the offences it created, its deterrent effect, and its interaction with deferred prosecution agreements, are only some of the aspects which have been almost universally praised.

37.These are only some of the overall assessments of the Act we have received:

38.The first draft Corruption Bill was subject to scathing criticism, and the Government did not proceed with it. The draft Bribery Bill, by contrast, has resulted in an Act which has been much praised. Our recommendations deal mainly with the implementation and enforcement of the Act.

14 If one excludes the Sale of Offices Act 1551 (repealed) and the Sale of Offices Act 1809.

15 Abolished by section 17(1)(a) of the Bribery Act 2010.

16 These three Acts can be cited collectively as the Prevention of Corruption Acts 1889 to 1916: see section 4(1) of the Prevention of Corruption Act 1916.

17 Specific offences of bribery were created by the Honours (Prevention of Abuses) Act 1925; the Licensing Act 1964, section 178; the Criminal Law Act 1967, section 5; the Local Government Act 1972, section 117(2); the Customs and Excise Management Act 1979, section 15; and the Representation of the People Act 1983, sections 107, 109 and 111–115.

18 Lord Stunell, a member of this Committee, is also a member of the Committee on Standards in Public Life.

19 Committee on Standards in Public Life, First Report of the Committee on Standards in Public Life, Cm 2850-I, May 1995, para 2.103: [accessed 16 January 2019]

20 Emphasis in the original.

21 Committee on Standards in Public Life, First Report of the Committee on Standards in Public Life, Cm 2850-I, May 1995, para 2.104: [accessed 16 January 2019]

22 Nor has the possibility of parliamentary privilege being invoked to prevent evidence being given in support of prosecutions been resolved, since clause 15 of the draft Bribery Bill, which would have dealt with this, was withdrawn by the Government on the recommendation of the Joint Committee on the Draft Bribery Bill on the ground that a piecemeal reform of parliamentary privilege was undesirable: see Joint Committee on the Draft Bribery Bill, Draft Bribery Bill (First Report, Session 2008–09, HC 430-II, HL Paper 115-I), Chapter 13.

23 Law Commission, Legislating the Criminal Code, CP145 (1997): [accessed 16 January 2019]

24 Law Commission, Legislating the Criminal Code: Corruption, Report No. 248 (2 March 1998): [accessed 5 March 2019]

26 Home Office, Corruption: Draft Legislation, Cm 5777, March 2003: [accessed 5 February 2019]

27 Joint Committee on the Draft Corruption Bill, Draft Corruption Bill (Report ofSession 2002–03, HC 705, HL Paper 157)

28 Ibid, para 18

29 Secretary of State for the Home Department, The Government Reply to the Report from the Joint Committee on the Draft Corruption Bill, Cm 6086, December 2003: [accessed 4 March 2019]

30 Law Commission, Reforming Bribery: A Consultation Paper, CP185 (2007): [accessed 5 March 2019]

31 Ibid., paras 1.2–1.3

32 Law Commission, Reforming Bribery (Report No. 313) (19 November 2008): [accessed 4 March 2019]

33 Ministry of Justice: Bribery Draft Legislation, Cm 7570, March 2009: [accessed 4 March 2019]

34 Two members of our Committee, Lord Grabiner and Lord Thomas of Gresford, were members of the Joint Committee.

35 Joint Committee on the Draft Bribery Bill, Draft Bribery Bill (First Report, Session 2008–09, HC 430, HL Paper 115–I)

36 For the wording of section 7 (failure of commercial organisations to prevent bribery) see Chapter 6; for consent to prosecution (section 10) see paras 94–101; for defences of the intelligence services (section 13) see paras 62–67.

37 Undertaking by Claire Ward MP, Parliamentary Under-Secretary of State for Justice, Commons Committee 4th sitting, 18 March 2010, col 151.

38 Ministry of Justice, Bribery Act 2010: Post Legislative Scrutiny Memorandum, Cm 9631, June 2018, para 135: [accessed 23 January 2019]

39 Written evidence from Baker McKenzie (BRI0030)

40 Written evidence from Nathan Jensen and Edmund Malesky (BRI0004)

41 Written evidence from Deloitte (BRI0033)

42 Written evidence from Transparency International UK (BRI0003)

43 Q 63 (Philip Bramwell)

44 Q 69 (Mark Gregory)

45 Q 128 (Phil Mason)

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