Justice Committee, 19 Jan 2010

Meeting date: Tuesday, January 19, 2010

Official Report 179KB pdf

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Bribery Bill

Agenda item 2 is an evidence session on the Bribery Bill, which is United Kingdom Parliament legislation, and the related legislative consent memorandum. I welcome Fergus Ewing, the Minister for Community Safety; George Burgess, deputy director of the Scottish Government's criminal law and licensing division; and Andrea Summers from the Scottish Government's legal directorate. I invite the minister to make an opening statement.

The Bribery Bill was introduced into the House of Lords on 19 November last year and the bill has just completed its committee stage. Bribery is very much in the spotlight today, with Jack Straw MP, the Lord Chancellor and Secretary of State for Justice, launching the United Kingdom's foreign bribery strategy. The Bribery Bill aims to provide a clearer and more effective legal framework to tackle bribery in the public and private sectors.

In the main, the Bribery Bill extends to the whole of the UK. It contains a range of provisions that are aimed at modernising the law of bribery and corruption in the UK while ensuring that the UK meets its international obligations. The consent of the Scottish Parliament is of course required to allow its clauses to extend to Scotland. There is a compelling case for using a legislative consent motion to ensure that Scotland does not fall behind the rest of the UK in reforming that area of the law. Its use will also avoid the situation in which the current deficiencies in the law remain in Scotland for longer than is necessary.

Although Scotland has low levels of corruption, the current law on bribery and corruption is fragmented, outdated and in need of reform. Under the bill, two new general offences will be created. In short, the first covers the offence of bribing another person. That would involve offering, promising or giving an advantage with a view to inducing the person to perform a function improperly or as a reward for having done so, or offering, promising or giving that advantage in the knowledge that accepting it would amount to improper performance of the function.

The second offence is, broadly speaking, the mirror image of the first. In short, it covers the offence of accepting a bribe. That would involve requesting, agreeing to receive or accepting an advantage with a view to a function being performed improperly or as a reward for having done so. It could also cover the situation in which accepting the advantage is in itself sufficient to amount to improper performance of the function. The formulation of those two offences abandons the principal-agent relationship on which the current law is based in favour of a model that is based on an intention to induce improper conduct.

The bill creates new discrete offences—bribery of foreign public officials and a new corporate liability offence of negligently failing to prevent bribery. It creates defences when it is proved that the conduct was necessary for the prevention, detection or investigation, by or on behalf of a law enforcement agency, of serious crime; for the exercise of functions by the security services; or for the exercise of functions by the armed forces when engaged on active service.

Furthermore, the bill will increase the maximum penalty for bribery offences to up to 10 years' imprisonment. The other main provisions of the bill include extra-territorial jurisdiction to prosecute bribery committed abroad by persons ordinarily resident in the UK as well as UK nationals and UK corporate bodies. Those changes would not only assist in the international fight against bribery and corruption; they would further enhance Scotland's reputation as an excellent place to do business.

The best option to reform the law of bribery in Scotland is to promote an LCM and to include Scottish clauses in the UK Bribery Bill. Uniformity across the UK would provide a more effective and workable legislative framework than would be possible if separate bills were introduced in the two Parliaments. It avoids difficulties of cross-border bribery, which might arise should the law on one side of the border be perceived as weaker than the law on the other.

We do not consider that there are policy reasons for concluding that the law in Scotland should be different from the law elsewhere in the UK. Although this involves the UK Parliament considering legislation on a devolved matter, it is considered appropriate to take such a route in this instance, given the importance of ensuring that a consistent approach to bribery and corruption reform is taken throughout the United Kingdom. It is in the interests of good governance and an effective justice system that the provisions of the Bribery Bill, so far as they fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.

I am happy to take members' questions.

Thank you, Mr Ewing. We do have a few questions. You said that the extent of bribery in Scotland is, fortunately, low. Could you quantify that further? How many instances have there been in recent times? How much easier will the proposed legislation make it to prosecute cases of that type?

In answer to your first question, recent statistics from the court proceedings database show that the number of bribery or corruption offences that have been recorded in Scotland is consistently low. I have before me a table that shows three offences in 2006-07, three in 2007-08 and one in 2008-09. They are at a low, almost negligible, level.

Your second question was whether a change in the law would more readily facilitate prosecution. The answer is probably yes. The present law is unsatisfactory, and there has been some suggestion that that has led to difficulty in certain prosecutions, in which defences have been mounted on the basis of a lack of certainty in the definition of the crime. Smart lawyers will take advantage of any ambiguity of that nature.

Setting out the law on the basis of principle, which is what the bill does, is correct. It sweeps away the old laws, which date back to 1889, 1906 and 1916.

Does the bill actually displace the common law—some recent statute has said as much—or does it provide a certain path through what might remain a bog on the sides?

The current bribery law in Scotland rests very much on statute rather than on common law—it rests on the three acts of Parliament to which I have alluded. The Public Bodies Corrupt Practices Act 1889, I am told—I must confess to not having personally scrutinised it—is confined to the bribery of public officials; the Prevention of Corruption Act 1906 applies to the bribery of agents, regardless of the sector in which they are employed. The answer is that the present law is based on statute rather than on common law, and it will be replaced by a statutory regime—but by one that makes it clearer and more effective.

There is a small element of common law. There are common-law offences of bribery and accepting a bribe; in modern times those are never charged and the statutory offences are used—we think that they are restricted to cases that involve judicial officers. The common law exists in Scotland but is very narrow; the bill will abolish the remaining bits of common law in Scotland.

I thank the minister for his opening remarks, which have covered many of the points on which members have questions.

The Joint Committee on the draft Bribery Bill referred in its report to an

"anomaly in relation to the draft Bill's jurisdictional reach."

What discussions have taken place between the UK Government and the Scottish Government to resolve the apparent anomaly? I am happy to give an example of the anomaly.

That would be helpful.

The committee provided the following example:

"a Scottish company incorporated in Scotland but which does not do business in whole or in part in England and Wales or Northern Ireland, could not be guilty of an offence under clause 5, but could however be guilty of an offence under clauses 1, 2 or 4, regardless of whether or not there is any connection to England or Wales".

I think that the answer to that is largely that the joint committee was at that time considering a draft bill that related only to England and Wales and Northern Ireland. The anomaly that the committee identified is in effect swept away by the creation of a single piece of UK-wide legislation. We thereby avoid issues of English legislation not dealing with Scottish partnerships and Scottish legislation not dealing with English bodies. That is an advantage of bringing the legislation together in the way that has happened in the bill.

I think that the Subordinate Legislation Committee expressed concern that clause 39 does not properly take account of the position in Scotland—I apologise; I have gone on to the Crime and Security Bill. Now you know what is coming next. Be prepared!

I am sure that the officials' sense of anticipation will have been honed.

Clause 7 will create an obligation on commercial organisations to prevent bribery. I understand that the UK Government will produce guidance in that regard, although it is not under a statutory obligation to do so. Does the Scottish Government also plan to produce guidance?

Clause 7 will create an offence of failure by a "relevant commercial organisation" to prevent bribery. We support clause 7 and will work with the UK Government to assess the best way to provide guidance on how that important provision will work.

Will you consider the guidance that the UK Government produces before assessing whether to produce guidance of your own?

I discussed the issue with Ministry of Justice colleagues last week. Our starting point will be a single piece of guidance. As you have seen, the bill does not need to do too much in the way of saying, "Here is the position in England and Wales; the position in Scotland is completely different", so we hope that we can weave guidance that covers the whole of the UK without too much separate provision for Scotland.

We would go down the route of producing separate, Scottish guidance only if, when we started writing the guidance, we discovered that we needed to say many very different things about Scotland and that separate guidance would be better. We will consider using all the opportunities that are afforded by UK and Scottish bodies to ensure that companies are well aware of the implications of the provision.

That is a sensible approach.

On the defence in clause 12 that a person was engaged in the prevention of crime and other related activities, have we got the provision the right way around? Given that the Lord Advocate—or the Attorney General in England—could stop a prosecution and would not bring a prosecution unless it were in the public interest to do so, does the clause need to be written in such a way that there is a defence if someone can prove that they were involved in the prevention of crime?

Clause 12 deals with the functions of law enforcement agencies, the intelligence services and the armed forces, which might require the use of a financial or other advantage to accomplish the relevant function. It provides statutory defences that mean that, in certain circumstances, it might be not only legal to pay somebody to obtain a certain advantage but necessary in the interests of national security. That is my understanding of one type of act that would be seen not as criminal but as necessary.

Nigel Don asks whether we should have those defences or leave matters to courts to determine. Plainly, the approach that has been taken by the drafters of legislation south of the border has been to set out the statutory defences. It is fair to say that that might not necessarily have been the approach that would have been taken in Scotland but, that said, it is not an approach that causes us any problems. The issue that Nigel Don raises about whether a particular set of facts should lead to a prosecution is entirely one for the Lord Advocate alone, not Government, as the member will appreciate. In cases in which it is clear that one of the statutory defences would not only apply but be successfully invoked, I imagine that the Lord Advocate would come to the conclusion that it is not appropriate to prosecute.

I am slightly concerned that there might be situations in which the Lord Advocate considers a position and says, "Well, maybe the statutory defence does not apply," and then feels that she ought to bring the prosecution because Parliament has failed to bring the necessary defence. If we pass the legislation as it stands, you are asking for that discretion to be laid on top of a statutory defence, when, actually, the statutory defence would be irrelevant, unnecessary and redundant if the discretion would have dealt with it anyway. The Lord Advocate might feel that her discretion is fettered by the statute that provides for part of it.

Am I making myself clear? I am not sure that I am.

I am not sure that you are, either.

I am happy that the charges that are set out in this bill are correct in principle. To offer or receive a bribe will be an offence, and defences will be open to those who are making such a payment in the pursuit of other legitimate aims to do with security or the prevention of crime. One can well imagine many other examples, such as paying an informer for receipt of invaluable information in order to prosecute crime.

I do not think that the discretion of the Lord Advocate will be fettered. The Lord Advocate will use his or her judgment to decide in any particular situation whether or not there is a prosecution. I very much doubt that the Lord Advocate would consider that the existence of the statutory defences would fetter her discretion. I am not aware that we have received from the Lord Advocate any objection to the proposals; on the contrary, I think that this is an example of a situation in which cross-border co-operation will produce a satisfactory result. We are, therefore, happy to promote this approach to the committee this morning.

The proposed offence of negligent failure to prevent bribery is different from most mens rea provisions in the criminal law. One can readily understand why you want to make company officials responsible for deficiencies in their organisation, but is it fair to say that much of that relates to mechanisms such as companies' disciplinary arrangements and procedures with regard to contracts? I appreciate that the guidance will deal with some of the issues, but are there defences in the bill along the lines of "I did everything that I could reasonably do", to ensure that the offence will not be wider than it needs to be? One could envisage a substantial degree of strict liability on people in such situations, and there are questions about such an approach.

There is a defence in clause 7(2). The Parliament has considered such issues in the past, for example in relation to corporate homicide. We want to ensure that the people who are at the top of the organisation cannot simply say, "Oh, the people at the bottom of the organisation did that; we did not know about it", or, "We had systems in place". The provision is partly about ensuring that people at the top of the organisation have not just written the guidance with a nod and a wink to the people who work for them to ignore it. As a defence, a person would have to demonstrate that adequate and effective procedures were in place.

Clause 7 has generated quite a bit of debate in the House of Lords, and I think that the UK Government might table amendments to give the guidance that will be prepared a little more statutory backing, to help companies to understand their obligations.

I see that there are no more questions on the Bribery Bill. I think that on the basis of the minister's evidence we are reassured that Scotland is a nation of sea-green incorruptibles.

Meeting suspended.

On resuming—