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

Lord McNally Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord McNally (LD) [V]]

My Lords, it is always an honour and pleasure to follow the noble and learned Lord, Lord Woolf, with all his wisdom and experience.

On 13 May 2010, I became Minster of State for Justice in the coalition Government, as deputy to the noble and learned Lord, Lord Clarke of Nottingham, who was then Secretary of State for Justice and Lord Chancellor. In my in-tray when I arrived at the department was a gift from the departing Labour Government in the shape of the Bribery Act. The noble Lord, Lord Bach, had done much of the heavy lifting in this House in delivering the Bill to the statute book and had been supported from these Benches by the late and sadly missed Lord Goodhart and my noble friend Lord Thomas of Gresford who, happily, is with us today and from whom we will hear later.

It is perhaps not surprising that those who opposed the Act saw the change of Government as an opportunity to push back on bringing the Act into force. This meant a delay in implementation, for which we were criticised at the time. The Secretary of State and I carried out a consultation with a variety of interested parties. We heard all the familiar objections: how burdensome it would be on business, particularly SMEs; how it would inhibit the use of legitimate corporate hospitality; how many grey areas there were between a tip and a bribe; and, of course, the plea that we would lose out to the dastardly French, who would steal all our business by ignoring such Anglo-Saxon sensitivities to the greasing of palms.

That second round of consultation by the incoming Government emphasised the cross-party support for the legislation and its greater acceptance. We took the flak about the delay, and the Act reached commencement on 1 July 2011. I took some satisfaction from reading in the Select Committee’s report that it had received no “major” criticisms of the legislation and that, overall,

“the structure of the Act, the offences it created, its deterrent effect, and its interaction with deferred prosecution agreements, are only some of the aspects which have been almost universally praised”.

We are entitled to ask whether the Conservative Government elected in 2019 would have been as willing as the coalition to pick up the Bribery Act and guide it to commencement. The noble Lord, Lord Hodgson, asked some pertinent questions about the role of the anti-corruption champion and rightly questioned whether the Government have the stomach for the fight against bribery. This is, after all, the Government who champion the global buccaneers who will swashbuckle their way around the world with scant regard for the niceties and who are only too willing to act as money launderers to the world, as the noble Lords, Lord Hain and Lord Empey, pointed out.

So we will listen carefully to the Minister’s response. The Committee has rightly pointed to the slow progress of bribery investigations and prosecutions and rightly asks how the Government intend to bring a sense of urgency to implementation and enforcement. It is encouraging that in Transparency International’s 2020 report, Exporting Corruption, the UK is one of only four countries, along with the USA, Switzerland and Israel, cited as active enforcers of anti-bribery measures, but the report also finds that active enforcement has fallen off since 2018 and there is real danger of us falling out of the top group—as my noble friend Lord Stunell indicated. Key to avoiding that slide will be ensuring the availability of funding for the Serious Fraud Office to pursue serious cases and ending the delay in bringing forward prosecutions.

There is also the general responsibility to prevent economic crime. The review that we are considering today states that

“the new offence of corporate failure to prevent bribery is regarded as particularly effective”,

and Transparency International UK has called for the Government to extend the “failure to prevent” approach used in Section 7 of the Bribery Act to corporate criminal offending in economic crimes such as fraud and money laundering—I was pleased to see the noble Lords, Lord Hodgson and Lord Gold, lend their weight to that, as well as my noble friend Lord Stunell.

Bribery is often seen as a victimless crime where one man’s bribe is simply another’s facilitation of the wheels of commerce. It is not. It is corrupting to both ends of the transaction. It distorts the benefits of the free market by preventing the best product or service being provided for the best price. It diverts resources from the needy to the criminal and inflates the cost of development. The Select Committee is in our debt for pointing the Government in the right direction in updating the Bribery Act for the new circumstances we face in the decades ahead. We are grateful to the noble and learned Lord, Lord Saville, and his colleagues for their work.