On Her Majesty's Commercial Service: Bribery, Public Officials and the UK Intelligence Services
| Date | 01 November 2011 |
| Author | Jeremy Horder |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00877.x |
| Published date | 01 November 2011 |
LEGISLATION
On Her Majesty’s Commercial Service:
Bribery,Public Officials and the UK Intelligence Services
Jeremy Horder*
“To the instrumentality of commerce alone,the Brittanic Empire is most peculiarly indebted.”1
This article sets into context and analyses the justification for committing bribery granted to the
intelligence services by section 13 of the Bribery Act 2010. Particularly criticised is the extension
of section 13 to include the intelligence services’ statutory function of furthering ‘the economic
well-being’of the UK. In a context in which there are high risks of corruption in forms of expor t
business such as arms trading, it should not be acceptable that it is open to the intelligence services,
if need be,to use br ibery or related offences to further such business interests on behalf of the UK.
More broadly, it is argued that the breadth of section 13 illustrates the moral ambivalence of the
UK when it comes to bribery overseas. This is in spite of the strengthening of the law more
generally through the Bribery Act 2010, in its application to overseas trade.
THE PROBLEM OF BRIBERY OVERSEAS
In March 2007 the Law Commission accepted a reference from the Home
Office to review, for the second time, the criminal law governing bribery in
England and Wales.2In accepting that reference two conditions were agreed, at
the Commission’s request, that restricted the ter ms of reference. First, in order
that the project could proceed more quickly and to protect the Commission
from entering deep and dangerous political waters,3the Commission would not
consider any specific problems that might arise from the application of the law to
members of both Houses of Parliament: a wise choice of restr iction, as things
turned out.4Secondly,the Commission would not consider the application of the
law to the intelligence services.Too many difficulties were likely to be encoun-
*25 Bedford Row; Edmund-Davies Professor of Criminal Law, King’s College London.
1 A. Anderson, An Histor ical and Chronological Deduction of the Origin of Commerce, from the Earliest
Accounts to the Present Time. Containing an History of the Great Commercial Interests of the British
Empire, 2 vols (London, 1764, fur ther edns, 4 vols, 1787–1789, 1801), preface (emphasis in the
original).
2 The fir st review, unlike the second,had taken place under the umbrella of the ‘codification of the
criminal law’ project, and had been concerned with forms of corr uption beyond bribery: Law
Commission, Legislating the Criminal Law: Corruption (LC 248, 1998). The more recent Report is
Law Commission, Reforming Bribery (Law Com No 313, 2008).
3 As an aspect of its guiding pr inciples the Commission,as an independent and impartial body, does
not accept projects that will draw it into the political arena in a way that risks having its
independence and impartiality called into question: http://www.justice.gov.uk/lawcommission/
about/how-we-work.htm (last visited 20 September 2011).
4 In the light of the scandal surrounding the (ab)use of Parliamentary expenses, legislation was
subsequently passed to address the specific problem: the Parliamentary Standards Act 2009.
© 2011The Author.The Modern Law Review © 2011 The Modern Law ReviewLimited. (2011) 74(6) MLR 911–931
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
tered in making any proposals relating to those services subject to fully public
consultation (to which the Commission is committed). Having received the
Commission’s Report and draft Bill, the Government made the controversial
choice to add the provisions in section 13 of the Bribery Act 2010 (the ‘2010
Act’). These provisions specifically protected the intelligence services, and the
armed forces (when on active service), from prosecution for bribery and related
offences, other than prosecution for the offence of bribing a foreign public
official.5That choice was controversial because the Joint Committee on the
Bribery Bill had seen no need for such an exception. Indeed, the section 13
protection is, quite probably, the only piece of written law in the world that
expressly justifies bribery by agents of the state.6
I will try to add something to the arguments against the defence to bribery
created through section 13, by criticising its breadth. In particular, I will seek to
cast doubt on the propriety of its application to instances in which a member of
the intelligence services commits a bribery-related offence, such as assisting
bribery, because he or she sees such an act as necessary to further the economic
well-being of the UK. First, I will set section 13 against a background in which
public officials must seek in their work not only (a) to promote individual firms’
commercial interests, even in countries prone to corruption, but also (b) to
maintain consistently high ethical standards in facilitating commerce, whatever
the temptations or other difficulties firms may face in seeking to do business.
Secondly, I will give an account of the work of the intelligence services overseas
that shows that the section 13 defence unfairly favours these services, whilst
leaving without equivalent protection other public officials engaged in closely
related work with commercial organisations.Finally, I will argue that the section
13 defence is much more than merely a highly controversial (albeit limited)
bribery-fr iendly tail-piece grafted on to a set of otherwise strongly anti-bribery
criminal laws.The real significance of the breadth of the section 13 defence is that
it illustrates or symbolises an underlying ambivalence in the UK’s attitude to
bribery and cor ruption,especially briber y and corruption overseas.The UK is yet
fully to let go of the late 18th century idea that whatever the standards observed
between British business people, when trying to promote Britain’s interests with
‘foreigners’ ahead of one’s competitors it is more acceptable to take ethical risks.7
Before seeking to defend these claims, the provision of some context will
prove helpful.The work of the intelligence services (and other public officials), in
providing useful commercial information to companies doing business in coun-
tries prone to corruption, gains legal and moral significance when one considers
the attitudes of such companies towards engaging in bribery overseas. It is hard
5 A specific of fence contrary to the Bribery Act 2010, s 6.See text at n 32 below.
6 See text at n 36 below.
7 See eg L. Colley, Britons: Forging the Nation 1707–1837 (New Haven:Yale University Press, 1992),
60,‘Most Br itish Patricians . . . believed also that commerce, especially foreign commerce, was the
engine that drove a state’s power and wealth,just as they took it for g ranted that the world’s supply
of raw materials and markets was strictly finite, that competition to win access to them was bound
to be intense, and that if British traders were to succeed in the struggle,they must be vigorously
supported abroad and protected at home.’ See further,M. Peters,‘Early Hanoverian Consciousness:
Empire or Europe?’ (2007) CXXII English Historical Review, 632–668.
Bribery and the UK Intelligence Services
© 2011 TheAuthor.The Moder n Law Review© 2011 The Modern Law Review Limited.
912 (2011) 74(6) MLR 911–931
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