Scottish Government

Legislative Consent Memorandum

Bribery Bill

Draft Legislative Consent Motion

1. The draft motion, lodged by the Cabinet Secretary for Justice, is:

"That the Parliament agrees that the relevant provisions of the Bribery Bill, introduced in the House of Lords on 19 November 2009, relating to bribery and corruption, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament."

Background

2. This memorandum has been lodged by Kenny MacAskill, Cabinet Secretary for Justice, under Rule 9B.3.1(a) of the Parliament's standing orders. The Bribery Bill was introduced in the House of Lords on 19 November 2009. [1]

Content of the Bribery Bill

3. The Bribery Bill aims to provide a clearer and more effective legal framework to combat bribery in both the public and private sectors and will assist the United Kingdom, including Scotland, in more effectively fulfilling international obligations.

4. Under the Bill, two new general offences will be created covering:

The Bill will also create a new discrete offence of bribery of foreign public officials and a new corporate liability offence of negligently failing to prevent bribery. In addition, the Bill will increase the maximum penalty for bribery to up to ten years' imprisonment.

5. It is hoped that such provisions will assist in the international fight against bribery and corruption and will support high ethical standards in business across the UK.

Provisions which relate to Scotland

6. In the main, the Bribery Bill clauses extend to all of the UK. It contains a range of provisions aimed at modernising the law of bribery and corruption in the UK while also ensuring that the UK meets its international obligations. The consent of the Scottish Parliament is required to allow these clauses to extend to Scotland.

7. Clause 16 of the Bill provides the Scottish Ministers with a power to make such supplementary, incidental or consequential provision as they consider appropriate for the purposes of the Bill or in consequence of the Bill. It is likely that the Scottish Ministers will use this power in connection with consequential amendments to paragraph 2 of the Schedule to the Harris Tweed Act 1993 and secondary legislation.

Reasons for seeking a Legislative Consent Motion ("LCM")

8. The consent of the Scottish Parliament is required because the Bribery Bill makes provision in relation to Scotland on matters within the legislative competence of the Scottish Parliament, namely the criminal law. Taking such a route is considered, in this instance, to be appropriate given the importance of ensuring that a consistent approach to bribery and corruption reform is taken throughout the United Kingdom. Uniformity across the UK would provide a more effective and workable legislative framework than would be possible if separate legislation were introduced in the two Parliaments. It would also help to ensure that Scotland does not fall behind the rest of the UK in reforming this area of the law and would avoid the situation whereby the current deficiencies in the law remain in Scotland for longer than is necessary.

Consultation

9. In March 2007, following unsuccessful attempts at reform in the past, the Home Office asked the Law Commission in England and Wales (the Law Commission) to look at the law of bribery. The Law Commission published a consultation paper in October 2007 and issued a report containing recommendations for reform in November 2008. [2]

10. The Law Commission's report concluded that the current law of bribery is out-dated and, in some circumstances, unfit for purpose. The Commission recommended that the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916 (together with some other statutory provisions) be repealed and the common law offences of bribery and embracery be abolished, to be replaced by two general offences of bribery and a specific offence of bribing a foreign public official.

11. The Ministry of Justice issued its draft Bribery Bill, which was based largely on the recommendations of the Law Commission, on 25 March 2009. The UK Parliament established a Joint Committee on the draft Bill, which undertook a consultation on it between May and July 2009. The Committee heard evidence from 37 witnesses and received a total of 61 written submissions. Contributors included the United Nations (UN), the Organisation for Economic Co-operation and Development (OECD) and the United States Department of Justice.

12. The Joint Committee's report was published on 28 July 2009. [3]

13. In its report, the Committee welcomed the draft Bribery Bill as being an important opportunity to modernise the law of bribery. However, it made a number of (relatively minor) recommendations, including:

• amending the draft Bill to make it clear that an advantage is not "legitimately due" unless required or permitted by "written law"
• the removal of the need to prove negligence under clause 5(1)(c)
• the removal of the bar to the adequate procedures defence following on from the failure of a senior officer contained in clause 5(5) of the draft Bill.

14. The UK Government published their response to the Joint Committee's report on 23 November 2009. [4]

15. In July 2009, the Scottish Government began its own consultation on bribery and corruption reform in Scotland, based on the UK Government's draft Bribery Bill. [5] There was very limited interest in the consultation with only six written responses received. The general opinion among consultees was that the current law of bribery and corruption in Scotland is in need of reform and that any such reform should be consistent with changes in the rest of the United Kingdom. There was general satisfaction with the proposals. Some consultees did, however, consider that there were minor areas of the draft Bribery Bill which could be improved in relation to Scotland. We are currently considering the merit of these recommendations and will engage with UK colleagues in considering whether any changes should be sought.

16. The only consultee to object was the Law Society of Scotland. It did not object to the proposals themselves, but questioned why a reform of the law was necessary and expressed concern that any proposed rationalisation would detract from the flexibility of the common law. In contrast, the Faculty of Advocates, while recognising that there do not appear to have been any problems with prosecutors achieving convictions under the current law, commented that the law at present is "somewhat fragmented" and that reform is necessary in order for the law to be simplified and improved.

Financial implications

17. The number of bribery and corruption offences recorded in Scotland is consistently low. As a result, we do not anticipate there being any significant financial implications from the provisions of the Bribery Bill. The primary financial impact will be in relation to transitional arrangements when the Crown Office and Procurator Fiscal Service and the Police make alterations to their respective procedures. Consequently, it is anticipated at this stage that costs associated with the change in law can be met within existing resources.

Conclusion

18. The view of the Scottish Government is that it is in the interests of good governance and an effective justice system that the provisions of the Bribery Bill, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.

SCOTTISH GOVERNMENT

November 2009

[1] The Bill can be found at http://services.parliament.uk/bills/2009-10/bribery.html.

[2] This report can be found at http://www.lawcom.gov.uk/docs/lc313.pdf.

[3] It can be found at http://www.publications.parliament.uk/pa/jt/jtbribe.htm.

[4] This response can be found at http://www.justice.gov.uk/about/docs/draft-bribery-joint-cttee-govt-response.pdf.

[5] The consultation paper can be found at http://www.scotland.gov.uk/Publications/2009/07/17121235/9.