Further Memorandum from Transparency International
(UK) (DCB 31)
1.1 This memorandum responds to areas of
interest mentioned during the hearing on 13 May 2003 and to points
raised in written submissions and subsequent hearings. TI(UK)'s
principal memorandum is designated "DCB 18". Points
made in DCB 18 remain valid and this memorandum may be read with
2.1 The Draft Bill lacks clarity, in several
clauses to the point of being unintelligible to those by whom
it most needs to be understoodthe public, business and
non-specialist police and prosecutor. It will therefore be ineffective.
2.2 The lack of clarity derives not from
any essential complexity in the offence of corruption itself,
2.2.1 the style of "codification"
that prefers brevity to comprehension;
2.2.2 placing a strained and artificial
interpretation on the concept of agency;
2.2.3 the only partly successful attempt
to eliminate the distinction between corruption in the public
and private sectors.
2.3 The Draft Bill pays insufficient attention
to the overriding need for its application in an international
2.4 Just when the world is waking up to
the scourge of corruption, it is unthinkable that the UK should
for the first time (a) permit small facilitation payments in the
UK and (b) strengthen the perception of political interference
through the requirement for Attorney-General's consent to prosecute
any corruption offence.
3.1 Above all the Bill requires clarity
and effectiveness. This is not likely to be achieved
either by a long list of specific offences each designed to catch
a particular type of corruption; nor by a very small number of
very broadly expressed offences resulting in complex and obscure
language with potentially bizarre consequences.
3.2 It is feasible to combine two or three
general offences of corruption (corresponding to active, passive
and "normal agency" offences) with a small number of
specific offences, suited to likely corruption scenarios in the
UK and drafted to take account of existing legislation. Both the
general and specific offences would be intelligible and prosecutors
would be free to use whichever offence most closely fits the facts.
Please see para 4.2 below referring to the Council of Europe Convention,
the text of which is admirably clear.
3.3 A balance needs to be struck to avoid
the complexities that derive from having too few or too many offences.
Legislative brevity is only commendable if the result is equally
clear and effective. The balanced structure
outlined in para 3.2 would codify the existing criminal law, accord
with international obligations and be of reasonable length. The
Government has suggested that in some way the Law Commission's
proposals for the reform of the law of fraud (Law Com No 276)
constitute a precedent for codifying the law of corruption. There
is no commitment to legislate for fraud in the manner set out
in that paper, which cannot therefore be regarded as a precedent
for the Corruption Bill. However desirable a wholesale codification
of criminal law may be, attempts to date have been undertaken
in a piecemeal manner.
3.4 The Republic of South Africa is currently
engaged in a similar exercise to the UK and has produced several
editions of draft legislation. Working Document No.4 (January
2003) is being made available to the Committee. TI(UK) commends
its structure as meriting consideration; a single definition
clause, three general offences and a number of specific offences.
There is no need for elaborate defences and exemptions, because
the mischief at which each offence is targeted is clear to any
reasonably intelligent reader. The content and drafting of the
South African Bill are still evolving (see the six options for
the definition of "corruptly").
3.5 Recent legislation in Kenya (Part V)
and Malaysia (Parts I and III) has adopted a similar coherent
structurewhich is also being made available to the
4.1 The fundamental importance of the
international dimension in considering UK anti-corruption
legislation could hardly be clearer than in the then Home Secretary's
foreword to the White Paper of June 2000, as also in Lord Falconer's
foreword to the Draft Legislation paper (Cm 5777). Yet the
Draft Bill fails to meet international requirementssee
paras 2.2 through 2.7 of DCB 18. The Law Commission consultation
paper No 145 barely mentions these, perhaps because international
developments had hardly started. But the failure to mention them
in Lord Falconer's recent submission to the Committee (DCB 27)
and in Mr Justice Silber's submissions (DCB 22 and 30) (the author
of the Law Commission's report) is inexplicable. The Bill as presently
drafted substantially ignores the developments through the OECD
Convention 1997, the Council of Europe (CoE) Convention 1999 and
the draft UN Convention.
4.2 The CoE Convention aims to secure, to
the extent possible, a uniform application of the Convention by
the Contracting Parties. The Convention requires general offences
of active and passive bribery (distinguishing between public and
private sectors) and specific offences relating to foreign officials
and assemblies, clear references to international organisations
and courts, trading in influence etc. This implies a structure
along the lines of para 3.2 above.
4.3 The Committee sought some examples of
how other states have dealt with corruption issues in their codes.
Annexes 1,2 and 3 indicate how South Africa, Kenya and Malaysia
(common law countries) have dealt or are dealing with their corruption
laws. Annex. 4
summarises how 10 states have implemented the OECD Convention
(see para 6.1 below) by inserting the offence of bribing foreign
public officials into existing codes (see Poland in particular).
Annex 5 is a translated extract from the Spanish Penal Code 1995,
concentrating almost exclusively on public authorities and officials.
4.4 Each of these bills, statutes and codes
accords with the legislative tradition of the relevant country.
Even in translation, the nature and intent of each offence is
clear. It poses no intellectual challenge, in marked contrast
to the UK Bill. The "foreign extension" in Part 12 of
the Anti-terrorism, Crime and Security Act 2001 (AT12) at least
accords with the UK tradition and is tolerably clear, but needs
4.5 The comity that should exist between
States combating the international crime of corruption respecting
no borders, dictates that law reform should follow a modern and
internationally recognisable and intelligible style, particularly
in the light of the UK's leading role in international trade and
finance. Instead of showing how this movement can be enhanced,
the Bill looks backwards in a nationalistic manner, out of sympathy
with other States, creating even greater difficulties for those
responsible for investigating and prosecuting cross-border crime.
The aim should be to create useful tools in the fight against
4.6 The Government seems ready to exclude
"bribery" between principals to rig bids on the basis
that this may be caught by anti-competition law. However, in many
of the countries where corruption is widespread and the rule of
law barely exists, there will be no effective anti-competition
laws, so foreign bid rigging will escape. Is this really what
the UK Government should be encouraging?
5.1 In addition to the three general offences
of corruption (corresponding to active, passive and "normal
agency" offences) referred to in para 3.2 above, a small
number of specific offences could include:
5.1.1 Bribery of foreign public officials
(see paras 6.1 and 6.2 below);
5.1.2 Bid rigging/procuring withdrawal of
tenders (apparently not caught by the Bill);
5.1.3 Corruption in relation to sporting
5.1.4 Trading in influence;
5.1.5 Abuse of office;
5.1.6 Duty to report corrupt transactions.
5.2 TI(UK) does not advocate the multiplicity
of offences or the reinstatement of the common law offence, as
proposed in the draft South African legislation.
6.1 TI(UK) proposes this as a specific offence
(para 5.1.1 above), which is essential if there is to be
effective legal and practical implementation of the 1997 OECD
Anti-bribery Convention. The Committee wanted to know how other
States had incorporated this offence into their laws. Annex 4
shows 10 examples; in all cases, a specific offence has been included.
6.2 The Bill proposes to be uniquely different
and to apply the obscure domestic bribery offence by "side
wind" references in Clauses 6(6) and 11(2) and (4). The offence
would be too complex to give certainty that particular conduct
would offend or that each category of official listed in the OECD
Convention would be covered. 
6.3 The offence of corruption outside the
UK should operate so that UK companies are liable for corruption
by their foreign subsidiaries (see para 4.3 of DCB 18).
7.1 The attraction of eliminating the distinction
between offences in the public and private sectors has proved
illusory. It is also out of step with existing and proposed international
conventions and the laws in most other States. Although the dividing
line between public and private functions changes, there exist
important distinctions which require policing.
8.1 Lord Falconer's comments to the Committee
on 6 June suggest that TI(UK)'s apprehension about toleration
of facilitation payments was justified (see para 3.10 of DCB 18).
Facilitation payments may for the first time in the UK
not constitute a criminal offence. This is an astonishing and
retrograde development. It contradicts the statements of Trade
Partners UK: "We do not tolerate "facilitation payments'
to UK officials." and "We do not think it desirable
for UK law to apply differently overseas to the way it applies
in the UK." Based on AT12, several important UK based companies
have already adopted a policy of "zero tolerance".
9.1 TI(UK) reiterates the views expressed
in paras 3.15 and 3.16 of DCB 18. Mr Justice Silber's willingness
to depart from the recommendation of the Law Commission in this
respect is most surprising even ignoring the concerns of the OECD
arising under the Convention. It is surely illogical for the Government
to oppose the 1916 Act presumption on the grounds that it is not
thought to be necessary in fraud cases and yet insist on retaining
the Attorney General's consent for corruption when that is not
found to be necessary for fraud. Allegations of fraud, carelessly
or maliciously made, could be equally damaging. There can be no
justification for this pointless hurdle if discretion will in
any event be exercised according to the Code for prosecutors.
10.1 TI(UK) expresses its appreciation to
the Committee for the opportunity to make written and oral submissions
in respect of the Bill which is central to its purpose and for
the courtesy and interest shown in the points made. TI(UK) is
willing to offer whatever further assistance might be considered
useful. TI(UK) is committed to there being a clear, modern
and internationally useful anti-corruption code in the UK.
52 Note OECD Secretariat qualifications. The selection
of different legislative extracts does not purport to be comprehensive. Back
The difficulties for those applying for mutual legal assistance
and extradition cannot be too strongly emphasised. The UK would
become less effective and even non-compliant with the OECD Convention
in contrast with the present AT12 arrangements. Back