Mention the word ‘corruption’ and images of faraway places with despotic rulers are conjured up. While it is true to say that many less-developed states are riddled by corruption, which has stifled economic growth and social development, it is becoming increasingly obvious that corruption is also prevalent in the commercial world of the developed states.
In December 2003, the UN Draft Convention Against Corruption will be made available to all UN member states for signature. Its aim is to provide a comprehensive legal framework to harmonise the domestic laws of UN member states and to fill gaps which hamper the fight against corruption.
In March 2003, the UK Government introduced the draft Corruption Bill with the intention of undertaking comprehensive reform of UK law, bringing it up to date with international standards. A Joint Parliamentary Committee published a report at the end of July 2003 containing a detailed analysis of the bill.
The core rationale for the law relating to corruption is clear – namely, to prevent corruption from enabling a public official to abuse their position and to prevent a party from using corruption to obtain an advantage.
The UK legislation in this area is more than 100 years old. Four statutes are relevant: the Public Bodies Corrupt Practices Act 1889, the Prevention of Corrupt Transaction with Agents Act 1906, the Prevention of Corruption Act 1916 and the Anti-terrorism, Crime and Security Act 2001.
The main limitation of the statutory framework was that it only applied to activities in the UK. The provisions of the 2001 act were intended to widen the scope of criminal activity to include corrupt activities by UK nationals or companies with foreign public officials. The consequences of a violation of the law could be fairly severe. If the Attorney-General gives his consent for a prosecution and a conviction takes place, a maximum sentence of seven years’ imprisonment and/or a fine can be imposed upon the individuals responsible. It would equally be possible for a fine to be imposed on a limited company and for the directors to be prosecuted if they can be shown to have approved or deliberately turned a blind eye to a corrupt transaction.
However, the fact that the UK legislation is found in four different statutes, that there is no statutory definition of corruption and that corruption can be extremely difficult to detect, investigate and prove, led the Law Commission in 1998 to describe the UK legal framework as “obscure, complex, inconsistent and insufficiently comprehensive”. This in turn provided the impetus for the draft Corruption Bill.
In the aftermath of 11 September, the UN Security Council adopted Resolution 1373, which required all 189 UN member states to take steps to prevent terrorist finances. This has in turn meant that even greater attention was being paid to large-scale corruption, which is seen to create precisely the sort of unstable societies that spawn terrorism. The convention is still undergoing revision in Vienna. If it is widely adopted by UN member states it will provide the first-ever comprehensive and uniform minimum standards to tackle the scourge of corruption. It is also intended to fill the gaps that exist in terms of the absence of a uniform definition of corruption (and in some instances no crime of corruption where senior public officials are involved). Some of the key provisions of the convention also seek to address many problems encountered in the realm of international cooperation to freeze assets, collect evidence and obtain the extradition of those engaged in corruption.
The convention itself recognises realistically that some states will not have the infrastructure or technical expertise to properly give effect to the convention. The UN intends to provide them with focused technical expertise to help them in the implementation process.
Ultimately, of course, it is only when states decide to tackle corruption collectively that any progress will be made. It remains to be seen whether the comprehensive content of the convention will be reflected in the future practice of states in this area.