I have recently been asked by numerous commercial clients – both employees and employers – about The Bribery Act, so I thought it would be prudent to prepare a blog covering the basic concepts of the recent regulatory reforms for businesses.
The Bribery Act 2010 received Royal Assent on 8 April 2010 and is expected to become operative in April 2011. It will abolish all existing UK anti-bribery laws and replace them with a suite of new offences markedly different to what has gone before.
The Act presents a considerable risk to all commercial organisations and their senior management, and the breadth of the new offences could have particular implications for firms and senior individuals in the large business or commercial networks.
On its face, the Act makes it significantly easier for the UK enforcement agencies to achieve convictions for bribery offences and the Serious Fraud Office has already made it plain that it will come down very heavily on individuals and those organisations who have not taken action to establish an anti-corruption culture and who use corruption to gain a business advantage.
The Act introduces new offences markedly different to what has gone before. In many respects, it is much wider than the United States’ Foreign Corrupt Practices Act and applies to both the public and private sectors.
It will make it significantly easier for the UK enforcement agencies to achieve convictions for bribery offences.
10 Key Points
The Bribery Act:
1) Provides a more effective legal framework to combat bribery in the public and private sectors.
2) Replaces the fragmented and complex offences at common law and in the Prevention of Corruption Acts 1889-1916.
3) Creates two general offences covering (a) the offering, promising or giving of an advantage, and (b) requesting, agreeing to receive or accepting of an advantage.
4) Makes it an offence to bribe and to receive a bribe. Both offences are very widely drafted and apply to every conceivable scenario. It also creates a discrete offence of bribery of a foreign public official.
5) Creates a new strict liability offence of failure by a commercial organisation to prevent a bribe being paid for or on its behalf (It will be a defence if the organisation has “adequate procedures” in place to prevent bribery).
6) Supports business by ensuring that everyone is clear about their responsibilities to conduct business in an open and honest manner.
7) Helps tackle the threat that bribery poses to economic progress and development around the world.
8 ) Defines a bribe as not being limited to financial reward, taking any form.
9) Creates liability for senior management or other individuals within an organization to also be personally liable if they consented to or “turned a blind eye”.
10) Requires senior management of all such organizations to review their policies and procedures to ensure compliance with the new Act.