Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Davidson of Glen Clova Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Davidson of Glen Clova (Lab) [V]]

My Lords, I declare an interest as a Queen’s Counsel in practice in Scotland, whose work from time to time involves cases where the Bribery Act is required to be considered, and as a former Advocate-General in post at the time of the Act’s introduction. I also take this opportunity to congratulate the Minister on his appointment as Advocate-General, to which he brings not only his considerable professional ability but a calm and measured approach.

The noble and learned Lord, Lord Saville of Newdigate, and the committee, are to be complimented on this excellent review of the Bribery Act, as other noble Lords have observed. It is gratifying that the Act, introduced by the then Labour Government, is now so well regarded by so many. It is fair to say that it received a considerable amount of criticism as being a shackle on British international business at its introduction—a point that was observed by the noble Lords, Lord Gold and Lord McNally, and which was picked up by the noble and learned Lord, Lord Hope of Craighead.

The committee notes that there have been a number of positive assessments of the Act which chime with the general view of the it as broadly perceived. The noble and learned Lord, Lord Woolf, added his weighty and positive commendation, followed by the noble Baroness, Lady Ritchie, with her eloquent commendation.

The range of topics covered by the committee’s report is extensive, so I will confine myself to only a few matters. The first of these arises not from the Act but is scrutinised by the committee: the success of deferred prosecution agreements. I share the commendation of the noble and learned Lord, Lord Morris, of the noble and learned Lord, Lord Garnier, for having pushed this innovation forward. Similarly, Sir David Green, as former director of the Serious Fraud Office, can be congratulated on putting the DPA into practice very effectively. While it is not unknown for the SFO to be criticised, it should be given considerable credit, as the noble Lord, Lord German, observed, for its innovatory use of artificial intelligence in the Rolls-Royce case, identified by the committee at paragraph 72. What might have taken many months if not years of document analysis was reduced to weeks and greatly accelerated the resolution of a highly complex case. It is encouraging to see that the SFO is now deploying AI-powered analysis across its new casework and embracing new technology ahead of many in the private sector.

One specialist in bribery law, Eoin O’Shea, now at CMS, who gave evidence to the committee and who is a supporter of the Act, has commented that DPAs may reduce the opportunity for senior courts to grapple with the key concepts from the legislation: for example, the defence of adequate procedures. Is the Minister able to say whether the statutory guidance will be amended to equiparate “adequate” to the familiar “reasonable in the circumstances” approach, as the committee and the noble Baroness, Lady Bowles, emphasised?

What may be less encouraging are the observations made by the committee on the corresponding Scottish regime to DPAs. Most Scots lawyers would be opposed to a proposition that Scots law should always copy the laws and procedures of the southern jurisdiction. However, the committee raises some clear and forceful criticisms of the civil settlement regime in Scotland.

I note that the government response identifies that some but not all of these criticisms have been addressed. Having been a Scottish Solicitor-General some two decades ago, I was conscious of a then somewhat overdeveloped resistance to transparency in the Crown Office. I had assumed that that resistance might have reduced substantially by now.

The noble and learned Lord, Lord Hope, sees little problem in the absence of judicial oversight of civil settlement, but is the Minister aware what reasoning lay behind the unwillingness of the Scottish Government to adopt judicial oversight of civil settlement? One might expect, given the international dimension of most bribery offences, that jurisdictional differences might be thought somewhat undesirable in this area, given that it applies a UK statute. I echo the concern of the noble Lord, Lord Empey.

One further criticism that is levelled regarding the Act in practice is the paucity of prosecutions. One immediately understands the difficulty in gathering reliable evidence and carrying forward the question of resources, a matter that my noble friend Lord Hain stressed as an important requirement. My noble and learned friend Lord Morris also identified this, as did the noble Baroness, Lady Fookes, and the noble Lord, Lord Bradshaw. Bribery is, by its very nature, covert—in the shadows, as the noble Lord, Lord Thomas, put it, with perpetrators often taking steps to disguise the crime as innocent activity. What can be less easy to understand is the absence of prosecution when, in civil proceedings, bribery has been uncovered and held by the court to have occurred to the civil standard with a high level of confidence. It is unclear how often this situation arises, but anecdotes suggest it has arisen from time to time. Perhaps the Minister may even have encountered this problem in his own practice. This is a variation on the point made by the noble Lord, Lord Gold, about DPAs and the lack of individual prosecution. Is the Minister aware whether any research has been carried out to identify such occurrences? If so, is there any explanation for this apparent dissonance?

The area of corporate hospitality, which perhaps received the most criticism at the time of the introduction of the Act, remains, as the report indicated, an area where greater clarity is desired, where context is critical to assessing the appropriateness of a level of hospitality. The committee correctly recommends clearer guidance by way of examples being given. Is the Minister committed to leaving the guidance as it is, or is he really content, as the Government’s report suggests, that clarity may be outsourced, in a way, to Transparency International? If outsourcing to Transparency International is favoured, there are certainly a number of areas where TI offers guidance to the Government.

Hospitality, in its various forms, is of course one area that comes close to the conduct of government. The very first words of the report state:

“Societies are built upon trust.”


Nowhere is trust more important but less prevalent today than in government. Transparency International UK, in its recent report, Corruption and the UK, opined:

“The corrosive influence of big money continues to undermine the integrity of the UK’s political system.”


The noble Lord, Lord McNally, referred to TI’s perception of a sliding of UK enforcement. The noble Lord, Lord Empey, gave a caution to the position of London’s reputation in the world and the noble Lord, Lord Bradshaw, added his concerns.

There is an insidious form of bribery that provides hospitality and financial support in many forms, but which never expresses a direct quid pro quo; rather access, favours and influence are the implicit anticipated reward, which may come all too easily. Does the Minister agree that such conduct should be criminalised to restore integrity to the political system? Should not the definition of bribery be extended to cover such activity wherever it may arise? Does he agree with the chief executive of Transparency International UK, who in a press release of 21 September 2020 said:

“To win back public trust, Parliament should legislate to remove the corrupting influence of big money from our democracy.”?