Financial Crime: Legislation

Lord Goodhart Excerpts

Thursday 17th March 2011 Lords Chamber

[Lord Goodhart]

My Lords, we in the United Kingdom have been painfully slow in penalising businesses that bribe. The main legislation is out of date, with Acts passed in 1889, 1906 and 1916. After a slow process of reports and consultations, starting in 1998, the previous Government published a draft Bill in 2009, which they referred to pre-legislative scrutiny by a Joint Committee. I was a member of that committee, and we worked very hard at that.

In general the draft was good, but one part of it was seriously defective. Under the law as it existed then—and indeed as it will exist until the Bribery Act is brought into force—a company could be prosecuted only if a senior officer of the company who was its controlling mind was him or herself personally responsible for the bribery. This was somewhat strengthened in the original version of the draft Bill by the liability of a responsible officer of the company who personally is negligent and fails to prevent the bribery. However, it became apparent to the Joint Committee that that was also inadequate. What was needed, in our view, was that a company should be liable for bribery committed on its behalf unless it could prove that it had in place adequate procedures to prevent bribery. That was accepted by the Joint Committee and by Parliament and now appears as Sections 7 and 8 of the Act. However, we accepted that the Secretary of State should provide guidance about what procedure should be treated as adequate, and that appears in Section 9 of the Act.

The Bribery Act received Royal Assent on 8 April 2010, nearly a year ago. The House of Lords Library has produced a very useful note about the Bribery Act. It reports complaints about possible damage to British companies through being denied the ability to do dubious things which some competitors might be allowed to do. That is the attitude taken by my noble friend Lord Hodgson—that nothing must be done as long as competitors are allowed to do it. I do not agree that that is a serious argument. It is proposing that the United Kingdom should enforce only the lowest common denominator of restrictions on bribery. But that is no defence. We will never cut back on bribery unless we are prepared to put ourselves alongside the countries that lead on the prevention of bribery and not with countries that drag along behind.

As the noble Lord, Lord Eatwell, just said, we are steadily sliding down the anti-corruption list published by Transparency International, which I should say is an organisation of which I am a member. Up to four years ago, we were far better than we are now. On bribery, we are behind the United States, and also outside Germany and France—yes, France. We will remain there until the Government provide proper guidance with sufficient strength and then bring it into effect.

The Library note also shows comments criticising the delays in implementing the Act. I shall read the statement made here by Mark Peith, to whom my noble friend Lady Williams referred. He said, on behalf of the OECD, where he was head of the working group:

“It is very disappointing that despite public commitments, the UK will further delay this important Act to tackle bribery and corruption … Establishing a level playing field for international business is as important now as ever and will help strengthen the global economic recovery. As a G20 country, the UK bears a special global responsibility and should lead by example”.

It must give that example.

I remember one evening some five or six years ago when I was working at my desk upstairs in this building at about 6 pm on a Thursday evening, when most Members had gone home. The Annunciator came up unexpectedly with an announcement that the Attorney-General, then the noble and learned Lord, Lord Goldsmith, would shortly make a Statement. Out of curiosity, I went down to the Chamber to hear it. What I heard was that the director of the Serious Fraud Office had, plainly under pressure from the Prime Minister, decided to cancel the bribery investigation against BAE. I never want to hear anything like that again. I left the House on that evening with a feeling of shame.