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

Lord Stunell Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Stunell (LD) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Gold, one of the many distinguished and high-powered members of the committee, on which I too served, under the very effective chairmanship of the noble and learned Lord, Lord Saville. It was as well-informed and expert committee as your Lordships would expect.

However, I was not one of those experts. I came on to it straight off the Clapham omnibus, via the Committee on Standards in Public Life. For me, the test was: how can we get to the gold standard of effectiveness in the fight against corruption, in the punishment of bribery, and in the deterrence of anyone from using bribery or corruption in other forms as a route to business success?

The UK has one of the better legal frameworks for tackling bribery—certainly up to silver standard but definitely not gold standard. We are high in the international corruption perceptions index, which is good, but we are not top of that list. Our score has fallen from 82 points out of 100 in 2017 to 77 points last year. A five-point decline in four years is not a world-beating performance, and we have now dropped out of the top 10 on that index. Surely we should be moving towards the gold standard, and not dropping down to bronze, in the years ahead. I will pick out two of our recommendations that show where we could reverse that decline and comment on another where I fear that the UK is now anyway committed to going further downhill.

First, regarding our skilfully drafted recommendation 9 on vicarious liability, on which others have already spoken, the issue for me is whether, when the ship sinks, the captain should go down with the ship or whether, so long as he did not realise that someone was steering on to the rocks, he should get away in the lifeboat with no court of inquiry to follow. To the lawyers, it is “mens rea”—not much spoken of on the Clapham omnibus. What normal people expect the law to do is to hand out just deserts to those in authority who show reckless ignorance of wrongdoing on their watch.

Instead, protected by the current law, it is absolutely in the best interests of those who run large businesses and multinational companies to keep themselves carefully ignorant of any evidence of bribery by underlings when they bring home big contracts and boost company profits. When knowledge means taking legal responsibility and ignorance means acquittal, the incentives are perverse. The committee noted evidence that, as a result of that, it is much easier to convict the boss of an SME than the boss of a multinational company. That, too, is a wholly perverse outcome of the current framework of legislation.

The committee’s recommendation does not endorse this perversity, but nor does it recommend any change. But if we ever want to get to gold standard, we will have to find a way to reconcile our legal principles with common sense, as has already been achieved in the United States and other jurisdictions to good effect. My question to the Minister is: does he actually want to be world-beating? Does he aspire to reach gold standard on corruption? If it is not via vicarious liability provisions, what does he propose as the alternative?

That brings me to the committee’s recommendation 20, where we pressed the Government to introduce a “failure to prevent” offence to a wider range of economic crimes and corrupt practices. There is clear evidence that a “failure to prevent” offence is an effective inducement to companies to put in place a culture of compliance and systems and processes to support that culture. Among other important benefits—like actually stopping bribery happening—it means that bosses cannot so easily shelter behind ignorance if a case does come to light. It is, therefore, very disappointing that the Government have given a very tepid response to our recommendation. I could quote the Government’s response at length, but I will summarise it by saying it was pretty much a lemon. It is a clear opportunity to raise our score on that index, so I hope to hear the Minister say that he will now quickly revisit this key issue and get things moving in the right direction.

Lastly, recommendation 14 focused on the European arrest warrant, where we said:

“The fight against international bribery will be significantly impeded if there are not in force … measures with equivalent effect to the European Arrest Warrant.”


In his evidence to us, the Minister, Ben Wallace MP, said that the loss of the EU arrest warrant

“would have a degrading effect on our ability”.

In the event, as your Lordships will know, the UK has ditched the European arrest warrant—a clear step backwards in the fight against corruption. So my final question to the Minister is: what concrete plans do the Government have to reverse this slide down the league and to rebuild our record of ethical business practices, both at home and abroad?