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Cash for access – time to legislate for trading in influence

Written by Guest on Wednesday, 25 February 2015

In the wake of the latest lobbying scandal, TI-UK’s Senior Advisor Peter Wilkinson discusses the need to legislate for trading in influence


 


In the wake of the latest lobbying scandal TI-UK’s Senior Advisor Peter Wilkinson discusses the need to legislate for trading in influence

 

It is time the UK established clarity for politicians’ behaviour by passing legislation on trading in influence, and preventing politicians taking second job or consultancies.

Sir Malcolm Rifkind has insisted that he did nothing wrong but the fact is that he showed interest in the spoof Chinese company and said he could give them access to any British Ambassador. Sir Malcolm was not offering services of expertise or analysis but rather use of his contacts gained from when he was Foreign Minister. If it had been a real Chinese company and he had represented them in this way, he would have been involved in gaining privileged access with the British Diplomatic Service for a Chinese company. This can be termed trading in influence.

Trading in influence is a particular form of corruption and is covered in section 18 of the United Nations Convention against Corruption (UNCAC), the European anti-corruption Convention and some national laws but not in UK law.

Sir Malcolm’s services if they had come to fruition would seem to fall under the description of trading in influence set out in clause b) of section 18 of UNCAC which states

‘b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage.

As it is, UNCAC’s Article 18 is only a recommendation to signatory governments and the UK has not enacted enabling legislation covering trading in influence although countries such as France and Sweden have done so.

The lack of law covering trading influence is one aspect of the confusion and lack of clarity for behaviour by politicians. Movements between government and the private sector (‘revolving door’) feed the risks of trading in influence. Allowing MPs to take up employment with companies or act as consultants inevitably brings risks of conflicts of interest or improper behaviour.

Trading in influence: notes on conventions and some laws

The criminalisation of trading in influence (also known as ‘influence peddling’) is an international concept covered in the United Nations Convention against Corruption and the Council of Europe Criminal Law Convention on Corruption which include provisions criminalising trading in influence. The OECD Convention does not cover trading in influence.  Article 18 of UNCAC has not been enacted in UK law but countries such as France and Sweden have enacted laws.

UNCAC

Article 18. Trading in influence

Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

  1. The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person;
  2. The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage.

Council of Europe Criminal Law Convention on Corruption

The Convention covers a broad range of offences, including the active and passive bribery of domestic and foreign public officials, bribery in the private sector and trading in influence.

Article 12 – Trading in influence

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, giving or offering, directly or indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence over the decision-making of any person referred to in Articles 2, 4 to 6 and 9 to 11 in consideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such an advantage, in consideration of that influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result.

OECD Convention on Combating Bribery of Foreign Public Officials

No reference to trading in influence.

UK Bribery Act 2010

No reference to trading in influence.

France

The Corruption Act of 30 June 2000 (JOR No. 151 of 1 July 2000, page 9 944) was amended by the Anti-Corruption Act of 13 November 2007 (Anti-Corruption Act No. 2007 – 1598 of 13 November 2007 published in JORF No. 264 of 14 November 2007, page 18 648)

There are four offences addressing trading in influence with foreign public officials drafted in the same terms as the equivalent offences in domestic law:

  • passive trading in influence with an international public official;
  • active trading in influence with an international public official;
  • passive trading in influence with international judicial staff;
  • active trading in influence with international judicial staff

Sweden

Revised Swedish legislation on bribery (Chapter 10 of the Swedish Penal Code) entered into force on 1 July 2012. The revised Act includes a new offence of trading in influence covering situations that do not fall within the scope of the provisions on taking and giving a bribe. The applicability is limited to the public sector and the provision specifically targets decisions and acts in connection with the exercise of public authority and public procurement. The provision covers both the active and passive side of the criminalised act.

The improper reward is given to the recipient in order for that person to influence another person in his or her performance of duties. In other words, the recipient is trading in his or her influence. 

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Read 3340 times Last modified on Tuesday, 24 November 2015 11:48

Guest

The TI-UK blog features thought and opinion from guest writers as well as TI staff. Any opinions expressed by external contributors do not necessarily reflect the views of Transparency International UK.

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