In the 16th century, Bishop Latimer said of judges: ‘They all love bribes. Bribery is a princely kind of thieving.’ Corruption and its effect is therefore nothing new, and yet the government’s attempt to reform the bribery laws to reflect modern business reality has been long and tortuous.

The Law Commission first produced recommendations for reform in 1997. The draft bill that resulted was roundly criticised and eventually withdrawn. The position was then referred back to the Law Commission, which last month made 27 further recommendations and set out a draft Bribery Bill.

Proposed is the repeal of the common law offence of bribery and the three anti-corruption statutes, the most recent of which was enacted in 1916. In their place would be two general offences, relating respectively to the giving and taking of bribes, applying both to the private and public sectors. There is also proposed a specific offence of bribing a foreign public official and, significantly, a further offence, applicable to companies, of negligently failing to prevent bribery by an employee or an agent. Finally the bill, if passed, would extend the law of bribery to foreign nationals residing and conducting business in the UK. The maximum sentence increases to 10 years from the current statutory maximum of seven.

The extra-territorial provisions of the Anti-Terrorism Crime and Security Act 2001 are included to continue the jurisdiction to prosecute acts constituting an offence pursuant to the bill if committed overseas by British nationals or UK companies.

The Law Commission sent out a press release on this entitled Clearing Up The Complexity: Bringing Bribery Law Up To Date. The bill does appear to be more comprehensive and workable than the previous corruption bill, which was unduly complicated. The conduct that would constitute either of the core offences is set out in defined cases and is linked to the improper performance of a function or activity. In essence this will involve activity carried out in breach of an expectation that someone will act in good faith, or impartially or in accordance with a position of trust.

The government has still to indicate whether it will adopt the bill or amend it before it goes before Parliament. Whatever its final form it will be subject to much debate, not least as a consequence of the scrutiny it will attract from anti-corruption bodies such as Transparency International. The ambit of that debate remains to be seen, but may include discussion of the suggested defence in relation to the bribery of a foreign public official where it was reasonably believed that the relevant foreign law permitted or required an otherwise unlawful reward. This may present an unintentionally large loophole in jurisdictions where there is less certainty in the law.

The proposed new corporate offence is also likely to be an area of keen interest. The offence only requires negligence on the part of a company, which is not a concept generally associated with the criminal law and is clearly a lower threshold than the intent normally required to establish criminality. As with health and safety prosecutions, there may be compelling policy reasons for imposing a lower threshold for corporate liability. But a conviction for a corruption-related offence, on the basis of negligence rather than intent, might then render a company liable to mandatory, and indefinite, exclusion from tendering for public contacts pursuant to the Public Contract Regulations 2006. In that event, the impact of a prosecution could be disproportionate to the underlying misfeasance.

The UK’s record on prosecuting corruption is poor compared with other nations, and the government is under renewed pressure to demonstrate improvement following an Organisation for Economic Cooperation and Development review that was, again, critical of our anti-corruption measures. That pressure would be eased by a bespoke anti-corruption statute, but the lifetime of this Parliament is short and it is unclear whether the government will be able, or willing, to prioritise such a bill next year.

Jeremy Summers is a partner at Russell Jones & Walker and co-author of Fraud: Criminal Law and Procedure, published by OUP