Letters to New Law Journal
The OECD Convention on Combating Bribery
Introductory Note by Francis Bennion
The following letter echoes the final part of an article,
Prosecutions: the Al Yamamah incident, by FB in Justice of
157 NLJ (16 Mar 2007) 377
||Doc. No. 2007.012 NLJ033L
I would like to add to the article by Gareth
Rees QC and Jason Mansell (9 March 2007). My point relates to the recent discontinuance
of the investigation into bribery allegations
about an arms order involving Saudi Arabia. It was discontinued on the ground that
to continue it would be contrary to the public interest.
The OECD Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions entered into
effect in the United Kingdom on 15 February 1999.
The Act implementing it (the Anti-terrorism, Crime and Security Act 2001) came into force
on 14 February 2002. Article 5 of the Convention runs as follows (emphasis added):
“ Investigation and prosecution of the bribery of
a foreign public official shall be subject to the applicable rules and principles
of each Party. They shall not be influenced by
considerations of national economic interest, the potential effect upon relations
with another State or the identity of the natural or legal persons involved.”
Neither the 2001 Act nor the official explanatory notes
on it mention Article 5, so it is clear it has no legislative effect. Its terms are contradictory.
applicable rules and principles” of United Kingdom law is the rule that a prosecution
should be instituted or allowed to continue only where the public interest so requires,
and for this purpose the public interest comprehends both “considerations of national
economic interest” and “the potential effect upon relations with another
In the absence of legislation upholding Article 5, it seems
that because it is contrary to our law it must be treated as ineffective in relation
to this country.
A treaty cannot
of its own force abrogate a rule of our law, especially when that rule explicitly protects
the public interest. Such abrogation requires Parliamentary approval, which in this
case it did not receive.