Joint Committee on The Draft Corruption Bill Written Evidence


APPENDIX 5

Memorandum from Khawar Qureshi (DCB 7)

  1.  Further to a letter dated 27 March 2003, I am providing in outline form hereinbelow my observations on two issues:

    —  The extent to which the draft Bill ("the Bill") meets the UK's international obligations; and

    —  How the new law will compare with the law in other comparable jurisdictions

  2.  I note from the Foreword to the Bill that the Government has identified the international sphere in the context of corruption as comprising, inter alia, the following instruments:

    —  The Council of Europe Civil Law Convention on Corruption dated 4 November 1999 ("the Civil Convention"). The Bill is intended to enable ratification of that instrument to take place.

    —  The Council of Europe Criminal Law Convention on Corruption of 1998 ("the Criminal Convention"). It is intended that ratification of this Convention will take place "in the near future".

    —  The Draft UN Convention on Corruption (present working draft dated January 2003) ("The UN Draft Convention"). The United Nations envisages that this instrument will be available for signing in December 2003.

  3.  There are a number of other international instruments which are also in existence (many of which have been helpfully referred to in the preamble to the UN Draft Convention). However, I shall confine my observations to the three instruments identified above.

  4.  Whilst the Criminal Convention has not yet been ratified, and the UN Draft Convention has yet to be made available for signature (and thus neither of these instruments as yet creates any international obligation for the United Kingdom), I shall refer to some of their provisions on the basis that they may represent prospective international obligations for the UK.

  5.  I shall focus on five issues:

    (I)  The transactional nature of "corruption" as defined by the Bill

    (II)  The requirements of the Civil Convention

    (III)  Corporate liability for corruption

    (IV)  The exception created under the Bill for British security and intelligence agencies

    (V)  The intended repeal of the presumption of corruption in the case of public officials

(I)  THE TRANSACTIONAL NATURE OF CORRUPTION

  6.  The core of the activity of corruption identified in the Bill is rooted in the conferral of an advantage in return for a gain. This is often described as "transactional" corruption, and is reflected in the majority of definitions of corruption contained in international agreements, or the domestic law of most States. Accordingly, the definition of corruption contained in the Bill accords with the UK's obligations under Public International Law, as well as State practice

  7.  However, it is to be observed that the UN Draft Convention (at Article 24 thereof) seeks to criminalise the abuse of functions by a public official for the purpose of obtaining illicit benefits for him/herself and/or a third party. The Asia Development Bank also defines corruption as including misuse of position by officials (in the private or public sector). Furthermore, Article XI of the Inter-American Convention Against Corruption (dated 29 March 1996) seeks to criminalise the "improper use" of information and property. There is no transactional element to these activities, and they might be considered to encompass activities which ought to fall within a more effective definition of corruption.

(II)  THE REQUIREMENTS OF THE CIVIL CONVENTION

  8.  The only provision in the Bill in this regard is Clause 22, which seeks to introduce a limitation period of 10 years for actions based on "corrupt conduct" (consistent with Article 7 of the Civil Convention).

  9.  Furthermore, whilst Article 5 of the Civil Convention provides that "each party shall provide in its internal law for appropriate procedures for persons who have suffered damage as a result of an act of corruption by its public officials in the exercise of the functions to claim for compensation from the State, or in the case of a non-state Party, from that Party's authorities", the Bill does not seek to create any specific procedures in this regard.

  10.  Whilst normal civil proceedings might be considered to be "appropriate procedures", there may be a need for further clarification as to whether proceedings against the Crown (as envisaged by Article 5) can be conducted in this manner, consistently with the requirements of Article 5.

(III)  CORPORATE LIABILITY

  11.  Article 18 of the Criminal Convention and Article 38 of the UN Draft Convention seek to hold legal persons liable for corruption and related offences.

  12.  Under Part 1 of the Bill, the word "person" is used. In Clause 13 of the Bill (corruption committed outside the UK), the provision is intended to apply to any "national of the United Kingdom or a body incorporated in any part of the United Kingdom".

  13.  It might be argued that the avoidance of the word "person" in Clause 13, and the use of the word "person" in Part 1 mean that "person" should not be interpreted to include a legal person (as it would presumed to mean in accordance with Section 5 of the Interpretation Act 1978).

  14.  This issue may require further clarification.

(IV)  THE EXCEPTION FOR THE INTELLIGENCE AGENCIES

  15.  Clause 15 of the Bill creates a qualified immunity for the security and intelligence services (the Security Service, the Secret Intelligence Service or GCHQ). Acts or omissions by officers of those organisations which would ordinarily be corrupt will not constitute an offence, so long as there is authorisation by the Secretary of State.

  16.  The Criminal Convention does not contain any express provision which provides clear justification for Clause 15. However, it might be contended that Article 16 of the Criminal Convention is pertinent in this regard. This states that the provisions of the Criminal Convention "shall be without prejudice to the provisions of any Treaty, Protocol or Statute, as well as their implementing texts, as regards the withdrawal of immunity".

  17.  It might be argued that, in the event that the UK ratifies the Criminal Convention, if Clause 15 has become law before ratification takes place, any withdrawal of immunity effected by the provisions of the Criminal Convention is without prejudice to the conferral of qualified immunity by Clause 15. This interpretation of Article 16 of the Criminal Convention is by no means clear.

  18.  Accordingly, the legal basis for Clause 15 may need further clarification.

(V)  THE REPEAL OF THE PRESUMPTION OF CORRUPTION

  19.  The Bill states that Section 2 of the Prevention of Corruption Act 1916 ("Section 2") is to be repealed. This is stated to be due to human rights considerations.

  20.  The Bill thus contains no provision dealing with "illicit enrichment". This is defined in Article 25 of the UN Draft Convention as follows:

    "Subject to its Constitution and the fundamental principles of its legal system, each State Party shall take [consider taking] the necessary measures to establish under its laws as an offence the illicit enrichment or a significant increase in the assets of a government official that he or she cannot reasonably explain in relation to his or her lawful earnings during the performance of his or her functions".

  21.  Article 25 of the said Convention is mirrored in Article IX of the Inter-American Convention Against Corruption . However, in the context of Article 25 of the UN Draft Convention, it is to be observed that "the delegations of the Russian Federation, the member states of the European Union and others have expressed their strong wish to delete this article". Accordingly, Article 25 may never form a part of any obligation placed upon the UK, in the event that the UN Draft Convention enters into force.

  22.  Nevertheless, whilst the intended repeal of Section 2 may be rooted in considerations based upon the perceived risk of violation of Article 6(2) of the European Convention on Human Rights, it may be considered appropriate to seek further clarification. In particular, why does the crime of "illicit enrichment" (as defined by Article 25 of the UN Draft Convention) not create a rebuttable and valid presumption of fact (in accordance with the principles stated by the European Court of Human Rights in the case of Salabiaku v. France (1988) 141-A, at paragraph 28 of the judgment).

CONCLUSION

  23.  Save for the observations contained above (which identify possible scope for further clarification), the Bill addresses the UK's international obligations as identified above. It also contains provisions which are to be found to the laws of comparable jurisdictions (such as the member states of the Organisation for Economic Co-operation and Development (OECD)).

May 2003

  (Khawar Qureshi was called to the Bar in 1990. He practices in Commercial, International and Public law. He is a member of the "A" Panel of Treasury Counsel, and has taught commercial law at Cambridge University. He was a Visiting Lecturer in International Law at King's College London from 1995 to 2002).





 
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