Why lawyers must fight bribery

Bribery of foreign officials does damage at home - and Britain must enforce the international anti-bribery convention, writes Jeremy Carver

In a recent report, the Gazette referred to a meeting in Chicago of the American Bar Association's task force on international standards for corrupt practices, at which I spoke (see [2001] Gazette, 9 August, 10).My message was bleak: the UK has failed in the obligations to which it subscribed when the government ratified the convention of the Organisation for Economic Co-operation and Development (OECD) on combating bribery of foreign public officials in international business transactions - the anti-bribery convention.

This is the finding of the OECD's own mechanism for monitoring the implementation of the convention by each member state.In some states, treaties are 'self-executing', so that no legislation is required.

In common law systems, national law cannot be changed without domestic legislation.

If our laws are inconsistent with a treaty, we may sign, but the government will wait - sometimes for years - before ratifying it.

The UK's conduct in ratifying the convention in 1998 was unusual; but its conduct in its negotiation had also been extraordinary.There have been moves to outlaw the paying of bribes by western businesses to foreign officials for years.

The US had tried, largely in vain, to impress on others that such widespread corruption did no one any good.

It passed its Foreign Corrupt Practices Act in 1977, and prosecutions, including of some major corporations, have persuaded US companies to take it seriously.Until 1997, the message did not sink in in Europe.

Even then, the two UK departments involved in the OECD negotiations - the Home Office and the Department of Trade and Industry - dragged their feet.

By December 1997, the convention was signed, and the House of Commons was told that the UK would ratify it because UK laws were fully in conformity with the convention's obligations.This caused no little surprise to those who had been following the British participation in the OECD negotiations.

The fundamental obligation was to criminalise, in national laws, the direct or indirect payment of a bribe to a foreign official irrespective of where the bribery occurred.

An inter-departmental working group was formed, and sat for two years, but never reported.

Instead, despite reasoned concern expressed by the Department for International Development backed by an uncompromising opinion from a leading criminal silk, other departments put their heads in the sand.

A task force of the Society of Advanced Legal Studies carefully analysed the flaws in the government's position.

The Commons international development committee published a report strongly critical of the government's position.The government ignored these criticisms.

But the convention could not so easily be ignored.

It provides for a permanent working party of member states to monitor compliance by all.

This is in two stages: initially, to ensure that states have adopted the necessary national laws; and then, to verify that those laws are being adequately enforced.

The UK, along with Japan, failed at the first hurdle, and failed so disastrously that Jack Straw, the then home secretary, had to announce in July 2000 that the government would amend our corruption law.Lawyers have been among those most critical of the government's failings in this area.

This is important because it is also clear that some English lawyers have played a large, albeit strictly professional, role on behalf of those who need to hide corrupt payments from public exposure.

Lawyers here have been more realistic than their continental counterparts in not trying to expand the scope of legal privilege to avoid reporting suspicious financial transactions.

Money laundering rules will play a major part in eliminating bribery from business; and lawyers should contribute to this process with the same care and duty as banks and other financial intermediaries.Jeremy Carver is head of international law at Clifford Chance and a director of Transparency International (UK)