The former US Supreme Court Justice Potter Stewart once famously said that although he might not be able to define pornography, “I know it when I see it.” The same might be said for the definition of “corruption” under laws applicable in the United Kingdom.

The principal statutory corruption offences applicable in the UK are contained in the Prevention of Corruption Acts 1889 to 1916. These statutes, aimed at bribery of public officials and of agents (whether in the public or private sector), broadly prohibit “corruptly” giving an advantage as an inducement or reward for doing or forbearing to do something relating to a public body, or to show favour or disfavour to any person in relation to the affairs or business of an agent’s principal. Although the corruption statutes prohibit such acts that are done corruptly, they do not define that term.

The Law Commission in its 1998 report noted that judicial interpretations of the meaning of the word “are in ‘impressive disarray’”. It is widely acknowledged that existing corruption legislation in the UK is deficient and needs to be updated, simplified and clarified.

Despite this, the Home Secretary has announced that the Government has decided to drop its 2003 draft Corruption Bill and will ask the Law Commission to undertake a thorough review of corruption legislation – a process that is expected to last up to 18 months.

UK legislation came under criticism from the Organisation for Economic Co-Operation and Development (OECD) at the time of adoption of the OECD Bribery Convention, which required signatory countries to establish that it is a criminal offence to bribe foreign public officials. Initially, the UK Government insisted that the existing legislation was sufficient to comply with the Convention requirements, despite the lack of prosecutions for foreign bribery. Eventually provisions were included in the Anti-Terrorism, Crime and Security Act 2001 to make clear that common law bribery and provisions of the Prevention of Corruption Acts 1889 to 1916 applied to bribery and corruption of foreign public officials and to bribery and corruption committed outside the UK by UK nationals and companies.

This quick fix did not, however, change the wording of the basic prohibitions of the 1889 to 1916 statutes and the legal definition of corruption remains unclear. In 2003, the Government introduced a Corruption Bill which sought to simplify the law by replacing the existing offences with three new offences of “corruptly” conferring an advantage, obtaining an advantage and performing functions, cutting across both the public and private sectors.

It retained the “agency” concept of the Prevention of Corruption Act 1906, which contemplated that “the essence of corruption (in the sense of bribery) is conduct which threatens the relationship of trust between an agent and his principal”. A person who confers or agrees to confer an advantage does so corruptly “if he intends a person to do an act or omission in performing his functions as an agent of another person . . . or as an agent for the public” and he believes that such an act or omission would be “primarily in return for the conferring of the advantage . . . ”

In considering that Bill, a Joint Committee of the House of Lords and House of Commons found the definition to be "obscure" and "unsatisfactory" and criticised the concentration of the definition on the concept of agency. It is noteworthy that in defending the controversial dropping of the probe into BAE Systems in connection with the al-Yamamah arms deal, the Attorney-General indicated that the current law would require prosecutors to show that any person allegedly receiving bribes – the agent (in that case any Saudi official) – was acting without the approval of the principal, the highest level of governmental authority.

Instead of basing the definition of corruption on the concept of agency, the Committee preferred the definition to concentrate “on the giving or receiving of an improper advantage in secret and underhand dealing to the prejudice of competitors or the public”. It suggested a definition of giving or receiving “an improper advantage” – in other words, an advantage to which a person is not legally entitled – with the intention of influencing the recipient in the performance of his duties.

In a December 2005 consultation paper, the Home Office noted that the Government disagreed with this approach, finding that the concept of “improper advantage” did not provide much assistance in determining where an act was corrupt. Comments were sought, among other things, on the proposition of leaving “corruptly” undefined on grounds that “corruptly” is an ordinary word “the meaning of which should cause a jury little difficulty”.

Last month the Serious Fraud Office described Britain’s anti-corruption laws as being applicable to the way business was done a century ago. In spite of mounting pressure, little progress has been made toward enacting legislation that would clarify the matter.

Anita Esslinger is a partner at the international law firm Bryan Cave

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