JCDCB310703

Publication of Report

Embargoed till 1100 on Thursday 31 July 2003

The Joint Committee on the Draft Corruption Bill publishes its report on Thursday 31 July 2003 at 11.00 am (HL Paper 157, HC 705, Session 2002-03). The summary of the report and the conclusions and recommendations are attached.

The report can also be ordered from The Stationery Office (tel: 0845 702 3890), or can be viewed on our website from 4.00 pm on 31 July. www.parliament.uk/parliamentary_committees/jcdcb.cfm

Information about the Joint Committee:

The two Houses of Parliament established a Joint Committee on the Draft Corruption Bill, which was published by the Government on 24 March 2003 (Cm. 5777). The text of the draft Bill can be found at: http://www.official-documents.co.uk/document/cm57/5777/5777.pdf
The remit of the Committee is to consider the draft bill, and to report on it to both Houses.

Membership

Lord Slynn of Hadley (Crossbencher) Chairman

Lord Bernstein of Craigweil (Labour)
Lord Campbell Savours (Labour)
Lord Carlisle of Bucklow QC (Conservative)
Baroness Scott of Needham Market (Liberal Democrat)
Lord Waddington QC (Conservative)
Baroness Whitaker (Labour)

Vera Baird QC MP (Labour, Redcar)
Mr Edward Garnier QC MP (Conservative, Harborough)
Mr John MacDougall MP (Labour, Central Fife)
Mr Mark Oaten MP (Liberal Democrat, Winchester)
Mr Richard Shepherd MP (Conservative, Aldridge-Brownhills)
Mr Paul Stinchcombe MP (Labour, Wellingborough)
Dr Desmond Turner MP (Labour, Brighton Kemptown)

Contact: Secretary to the Joint Committee on the Draft Corruption Bill
House of Commons, 7 Millbank, London SW1P 3JP
Or email: [email protected] Tel: 020 7219 8365
Fax: 020 7219 8381

Summary

The draft Bill is the product of a long policy-making process dating back nearly thirty years. The Law Commission published a draft Bill on corruption in essentially similar terms five years ago. 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.

At the start of this report we list the key questions we have addressed in this inquiry. Our answers to those questions are as follows:
Is the existing law on corruption so deficient that it is necessary now to legislate?

Yes.

If so, does the draft Bill criminalise all conduct which is corrupt without criminalising any conduct which is not?

It fails to cover some corrupt conduct such as when the head of one firm bribes the head of another firm or when an employer consents to the bribery of his agent.
Further, does the draft Bill state clearly what types of conduct are punishable as corrupt in language which can readily understood by the police, by prosecutors, by jurors and by the public, including - especially - the business and public sector communities, and their advisors, both here and abroad?

No.

What is the essence of corrupt conduct? How might it be defined? What distinguishes corrupt conduct from lawful conduct? Does this Bill draw that line in the correct place? In particular, is the definition in the Bill - which confined corruptness exclusively to a principal/agent relationship - both complete and robust, and is it clear so that it can readily be understood by all relevant parties?

We believe that (leaving aside related offences) the essence of corruption would be better expressed in the following terms:
A person acts corruptly if he gives, offers or agrees to give an improper advantage with the intention of influencing the recipient in the performance of his duties or functions;

A person acts corruptly if he receives, asks for or agrees to receive an improper advantage with the intention that it will influence him in the performance of his duties or functions.

Should parliamentary privilege be waived in corruption cases?

Yes - but in a narrower form than proposed in the draft Bill.

Should the Attorney General's consent for prosecution for corruption offences be required?

No - the consent of the Director of Public Prosecutions or one nominated deputy would be sufficient

Should the Intelligence Services be exempt from prosecution for corruption offences?'

The compatibility of this provision with international law needs to be re-considered

The Committee invites the Home Office to bring forward a revised Bill taking account of these points.

Conclusions and recommendations

1. We are not persuaded that UK companies should be made explicitly liable for the actions of non-resident foreign subsidiaries and agents because the individuals - in many cases nationals of the countries concerned - will be subject to national law in that jurisdiction. (Paragraph 78)

2. The case for a separate offence of trading in influence is not, in our view, convincing. (Paragraph 79)

3. The draft Bill does not seem to us the appropriate vehicle for giving a statutory definition of misconduct in public office. (Paragraph 80)

4. Our overall conclusion, however, is that by adopting only the agent/principal approach the Bill does not proceed on the right basis and that corrupt acts outside that relationship ought to be included in the Bill (Paragraph 81)

5. The Committee has therefore concluded that the only way to address the problems which are inherent in the Bill (which arise from agent/principal model) is to move away from the definition of 'corruptly' in Clause 5. (Paragraph 89)

6. Having examined all these different models, we consider that (leaving aside related offences) the essence of corruption could be expressed in the following terms:
A person acts corruptly if he gives, offers or agrees to give an improper advantage with the intention of influencing the recipient in the performance of his duties or functions;
A person acts corruptly if he receives, asks for or agrees to receive an improper advantage with the intention that it will influence him in the performance of his duties or functions. (Paragraph 92)

7. As we have already indicated, it could be possible to substitute for 'improper advantage' the words 'advantage to which a person is not legally entitled'. (Paragraph 93)

8. In the light of the criticisms which have been made of it, we do not consider that the draft Bill should be left as it stands on the essential issue. …We conclude that the Bill would still be obscure and unsatisfactory if the offences remain based on the concept of agency. (Paragraph 98)

9. We believe that a Bill centred on a simple definition such as ours would be clearer and would work better. We also believe it would be more likely to receive general approval. (Paragraph 99)

10. We consider it would be better if the Joint Committee recommendations were followed and a Parliamentary Privilege Bill dealing with all these matters were brought forward. (Paragraph 114)

11. We therefore recommend that Clause 12 be narrowed. This would apply only to the words or actions of an MP or peer in a case where he is the defendant. …. We also recommend that, to the extent that the words or actions of an MP or peer are admissible for or against him, they should also be admissible for or against all co-defendants in respect of corruption offences based on the same facts. (Paragraph 134)

12. We recommend that Clause 12 be redrafted on the lines set out in paragraph 135 (Paragraph 135)

13. We recommend that Clause 17 be replaced by a requirement for the consent to be given by Director of Public Prosecutions or one nominated deputy. (Paragraph 139)

14. For these reasons, we recommend that the Government gives further consideration to the question of whether the Clause 15 exemption for intelligence agencies is so wide that Clause 15 risks non-compliance with the UK's international obligations. (Paragraph 153)

15. We also recommend that the Government considers whether Clause 15 should be amended so that the exemption for activities of the intelligence agencies applies only to acts or omissions done or made in the interests of national security or of preventing or detecting serious crime. (Paragraph 154)