McDermott - Newsletters - The Bribery Bill

The Bribery Bill

December 3, 2009

Businesses are advised to monitor the progress of the Bribery Bill, currently on the UK Government’s official agenda. If passed, measures will need to be taken by all businesses to counter bribery, including the training and supervision of employees and implementation of risk management and whistle-blowing procedures.

In the Queen's Speech on 18 November 2009, it was announced that the Bribery Bill will be on the United Kingdom Government's official agenda for the current parliamentary session.

Introduction

The aim of the Bribery Bill, which was published on 25 March 2009 for pre-legislative scrutiny, is to enable prosecutors and the courts to deal with bribery more effectively by modernising and simplifying the current laws. In many ways, if passed, the new bribery law, which would apply to the whole of the United Kingdom, will resemble the United States regime, chiefly contained in the 1977 Foreign Corrupt Practices Act.

The Current Law

The current body of bribery law, which dates from 1889, is widely considered to be unsatisfactory and in need of a major overhaul. There is also pressure on the UK Government to bring the law on bribery in line with international standards, as the Organisation for Economic Co-operation and Development's Anti-Bribery Convention (the "Convention") has been ratified by the United Kingdom. Article 1 of the Convention provides that each party to the Convention must make it a criminal offence for any person to offer intentionally any advantage, whether directly or indirectly, to a foreign public official in order to obtain or retain business.

The Bribery Bill

If passed, the Bribery Bill (which will become the Bribery Act) will repeal the Prevention of Corruption Act 1916, the Prevention of Corruption Act 1906, the Public Bodies Corrupt Practices Act 1889 (collectively referred to as the "Prevention of Corruption Acts 1889-1916") and the related common law, and replace them with one comprehensive law. Some of the salient features of the proposed Bribery Bill are as follows:

Creating a new offence of giving or receiving a bribe in the United Kingdom, regardless of whether it is given to or received from a private or public official
Creating a new offence of requesting, agreeing to receive or accepting a bribe
Creating a new offence of bribing a foreign public official
Creating a new corporate offence of "negligent failure to prevent bribery" by persons working on behalf of a business (although an "adequate procedures" defence is available if a business can demonstrate that it had good systems in place to prevent bribery)
Increasing the maximum penalty for bribery from seven to 10 years’ imprisonment with an unlimited fine
Removing Parliamentary Privilege (legal immunity against criminal and civil liability related to public function) when prosecuting a Member of Parliament or a Peer from Parliament
Providing for extraterritorial jurisdiction to prosecute bribery committed abroad by UK nationals, UK corporate bodies, and persons ordinarily resident in the UK
Removing the requirement for the Attorney General's consent to prosecute a bribery offence.

The Ministry of Justice states that the Bribery Bill will:

Replace the fragmented and complex offences at common law and in the Prevention of Corruption Acts 1889-1916
Provide a more effective legal framework to combat bribery in the public or private sectors
Support business by ensuring that everyone is clear about their responsibilities to do business in an open and honest way
Help tackle the threat that bribery poses to economic progress and development around the world.

Potential Implications for Businesses

If enacted, the Bribery Bill will create new challenges for businesses, which will need to:

Ensure adequate training is provided to all employees
Ensure proper supervision is given to all employees
Implement systems to counter bribery
Develop risk management procedures
Develop whistle-blowing procedures.

Detailed Business Principles for Countering Bribery are published by Transparency International and can be accessed via the following link:

http://www.transparency.org/global_priorities/private_sector/business_principles

Watch this Space

The second reading in the House of Lords is scheduled for 9 December 2009. The second reading is a fairly general debate and amendments will not be considered at this stage. Following the second reading, Hansard will publish the names of those who spoke and the arguments that are likely to figure at the subsequent stages.

If the Bribery Bill has not been enacted by the General Election in the UK (which is expected to take place in May 2010) then it will not become law in its current form.

Progress of the Bribery Bill can be monitored at the following link:

http://services.parliament.uk/bills/2009-10/bribery.html

Below are links to: