Bribery Act 2010

Alistair

Thank you for your request below for;

. All correspondence in relation to the Bribery Act 2010 sent
internally, and

. All documents, policies and procedures in place within the
Scottish Government to ensure that the Government complies with the terms
of the Bribery Act 2010.

I have been asked to deal with your request as I have policy
responsibility for the Bribery Act 2010.

In order to respond to your request, we are assuming that when you state
`internal' correspondence, you mean correspondence within the Scottish
Government only.

As such, this will not include correspondence between the;

. UK Government,

. The Crown Office & Procurator Fiscal Service,

. Any other external public authority,

. Any other public or private third party.

I would appreciate it if you could clarify that you are content with the
above assumption.

Thank you for your help in this matter.

Regards

Nigel A J Graham
Policy Adviser
Law Reform Division
Criminal Justice & Sentencing
2W
St Andrew's House
Regent Road
Edinburgh
EH1 3DG
Tel. 0131 244 1843

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Thank you Alistair

We will reply to your request no later than the 29 August.

Regards

Nigel Graham
Law Reform Division
Criminal Justice & Sentencing
Ext. 41843

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Dear Mr Sloan

Thank you for your request dated 30 July 2011 under the Freedom of
Information (Scotland) Act 2002 (FOISA) for the release of;

* All correspondence in relation to the Bribery Act 2010 ("the
2010 Act") sent internally, and

* All documents, policies and procedures in place within the
Scottish Government to ensure that the Government complies with
the terms of the 2010 Act.

On 1 August, I sought clarification in relation to what was meant by
`correspondence sent internally'. You confirmed that the information
you require did not include correspondence between the Scottish
Government and the;

* UK Government,
* The Crown Office & Procurator Fiscal Service,
* Any other external public authority, or
* Any other public or private third party.

All correspondence in relation to the Bribery Act 2010 ("the 2010 Act")
sent internally

We are able to release some information in response to your request.
However, although we do endeavour to provide information whenever
possible, the majority of the correspondence sent internally that is
held on file in relation to the 2010 Act relates to the following;

* advice and briefing to Ministers,
* legal advice,
* advice and briefing to senior managers and other officials, and
* exchanges between officials and others regarding the development
of policy and presentational issues around the 2010 Act in
Scotland.

In respect of this information, exemptions under section 29(1)(a)
(Formulation of Scottish Government policy ), section 29(1)(b)
(Ministerial communications), section 30(b)(i) (Free and frank provision
of advice), section 30(b)(ii) (Free and frank exchange of views) and
section 30(c) (Otherwise prejudice effective conduct of public affairs)
of FOISA applies.

Exemptions

29(1)(a) and (b) (Formulation of Scottish Government policy and
Ministerial communications)

As you will be aware for information to fall under this exemption, it
need only `relate' to the formulation or development of Scottish
Government policy. That is, the consideration or development of options
and priorities for Scottish Ministers, in order for them to determine
which options to take forward and when.

Section 29(1)(a) is designed primarily to ensure that Scottish
Government policy can be formulated and developed effectively. This
exemption aims to allow the Scottish Government to discuss and make
policy with openness and frankness. Further to this, section 29(1)(b)
provides that information held by the Scottish Government is exempt
information if it relates to Ministerial communications.

As the exemption is conditional, we have applied the `public interest
test'. This means we have, in all the circumstances of this case,
considered if the public interest in disclosing the information
outweighs the public interest in applying the exemption. We have found
that, on balance, the public interest lies in favour of upholding the
exemption.

While we recognise that there is some public interest in release as this
would demonstrate public scrutiny of the Scottish Government's policy
making and decision making processes, we consider this is outweighed by
the public interest in Scottish Government officials being able to
provide free and frank advice to Ministers and to have free and frank
official level discussions in relation to the development of Scottish
Government policy. Further to this, it is also considered that because
the 2010 Act was developed and commenced only very recently, it would be
inappropriate to release any information that related to Ministerial
communications or policy discussions as it would be too soon after
commencement to release such material.

Section 30(b) (Free and frank provision of advice and exchange of views)
and 30(c) (Otherwise prejudice effective conduct of public affairs)

This exemption applies where disclosure of the information requested
would, or would be likely to prejudice substantially the effective
conduct of public affairs. It is essential that Scottish Government
officials feel free to provide all relevant information and views to
Ministers, senior officials and other colleagues fully and openly, in
the knowledge that it will be treated confidentially. Similarly, it is
essential that in their correspondence officials are able to set out
their own conclusions and recommendations fully and frankly. If
correspondence of this nature was to be released into the public domain,
it is likely that policy officials would be substantially inhibited in
fulfilling their roles as policy advisers in the future.

As the exemption is conditional, we have applied the `public interest
test'. This means we have, in all the circumstances of this case,
considered if the public interest in disclosing the information
outweighs the public interest in applying the exemption. We have found
that, on balance, the public interest lies in favour of upholding the
exemption.

While we recognise that there is some public interest in release as this
would demonstrate public scrutiny of the Scottish Government's policy
making and decision making processes, we consider this is outweighed by
the public interest in Scottish Government officials being able to
provide advice and discuss policy in a free and frank way for the
purposes of deliberation and the development of policy. We are of the
view that Scottish Government officials would be substantially deterred
from providing free and frank advice and be unwilling to set out their
views for deliberation in the future if such correspondence was released
at this time. Further to this, it is also considered that because the
2010 Act was developed and commenced only very recently, it would be
inappropriate to release any information as it would be too soon after
commencement to release such material.

Documents being released

We are able to release 6 emails to you where no FOISA exemption
applies. The relevant correspondence is attached below.

<<FOI - 1.pdf>> <<FOI - 2.pdf>> <<FOI - 3.pdf>> <<FOI - 4.pdf>> <<FOI -
5.pdf>> <<FOI - 6.pdf>>

I have also attached a link to the Scottish Government's Internet page
on the 2010 Act below. This will provide you with further information
on the development of the 2010 Act in Scotland.

[1]http://www.scotland.gov.uk/Topics/Justic...

All documents, policies and procedures in place within the Scottish
Government to ensure that the Government complies with the terms of the
2010 Act

As you are aware, the Bribery Act 2010 reforms the criminal law to
provide a new, modern and comprehensive scheme of bribery offences that
will enable courts and prosecutors to respond more effectively to
bribery at home or abroad.

The principal provisions of the Act are:

* two general offences covering the offering, promising or giving of
a bribe (active bribery) and the requesting, agreeing to receive or
accepting of a bribe (passive bribery) (sections 1 and 2);
* a discrete offence of bribing a foreign public official in order to
obtain or retain business or an advantage in the conduct of
business (section 6);
* an offence which can be committed by commercial organisations which
fail to prevent bribery committed on their behalf (section 7);
* extra-territorial jurisdiction to enable the prosecution in the UK
of bribery committed abroad by persons ordinarily resident in the
UK as well as British nationals, and UK corporate bodies; and
* raising the maximum sentence for bribery committed by an individual
from 7 to 10 years imprisonment. The maximum sentence for an
offence committed by a corporate body is an unlimited fine.

However, not all offences within the 2010 Act apply to the Scottish
Government. The two general offences covering the offering, promising or
giving of a bribe (active bribery) and the requesting, agreeing to receive
or accepting of a bribe (passive bribery) (sections 1 and 2) do apply to
the Scottish Government, but the remaining offences do not as the Scottish
Government is not a commercial organisation under the terms of the 2010
Act.

The offences in the 2010 Act that apply to the Scottish Government in
section 1 and section 2 do not enact new policy in respect of bribery, but
rather modernise existing bribery offences. The conduct captured by the
section 1 and 2 offences is covered by the existing civil service code of
practice in terms of providing safeguards to ensure Scottish Government
civil servants comply with the 2010 Act. I have attached a link to the
civil service code of conduct below for your information.

[2]http://www.scotland.gov.uk/About/Directo...

If you are unhappy with this response to your request, you may ask us to
carry out an internal review, by writing to Bridget Campbell, Director
Justice, Room GW.05, St Andrew's House, Regent Road, Edinburgh, EH1 3DG.
Your request should explain why you wish a review to be carried out, and
should be made within 40 working days of receipt of this letter, and we
will reply within 20 working days of receipt. If you are not satisfied
with the result of the review, you then have the right to make a formal
complaint to the Scottish Information Commissioner.

Yours sincerely,

Nigel A J Graham
Policy Adviser
Law Reform Division
Criminal Justice & Sentencing
2W
St Andrew's House
Regent Road
Edinburgh
EH1 3DG
Tel. 0131 244 1843

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References

Visible links
1. http://www.scotland.gov.uk/Topics/Justic...
2. http://www.scotland.gov.uk/About/Directo...