This post relates to the new Bribery Bill and the position has moved on since the post was written. A more recent post on Bribery Bill can be found here.
We previously reported that on 20 November 2008, the UK’s Law Commission published its final report ‘Reforming Bribery.’ On 25 March, this took the next step of becoming UK legislation when it was published as the Draft Bribery Bill.
Bribery is currently criminalised under common law and the Prevention of Corruption Acts 1889-1916, so the new offences are really a clarification and reformulation of existing laws. Even the new discrete offence of bribing a foreign public official is again a reformulation of the existing law. (The Anti-Terrorism, Crime and Security Act 2001 Act put beyond doubt that the existing law applied to the bribery of a foreign public official, whether by an individual or by a corporate body and provided jurisdiction to prosecute acts committed abroad by UK nationals or UK registered companies.)
The new Bill proposes criminal offences covering;
• A general offence covering the offer, promise or giving of a bribe (active bribery).
• A general offence covering the requesting, agreeing to receive or acceptance of a bribe (passive bribery).
• A discrete offence of bribing a foreign public official.
• A discrete corporate offence based on a failure to prevent bribery by persons acting on behalf of a corporate body.
According to the Ministry of Justice, the bill will:
- provide a more effective legal framework to combat bribery in the public or private sectors
- provide clearer compliance with international obligations
- replace the fragmented and complex offences under common law and the Prevention of Corruption Acts 1889-1916
- simplify legislation covering two general offences: offering, promising or giving of an advantage, and requesting, agreeing to receive or accepting an advantage
- create a discrete offence of bribery of a foreign public official
- create an offence of negligent failure by commercial organisations to prevent bribery
- support high ethical standards in UK businesses
- tackle the threat that bribery poses to economic progress and development around the world.
The full bill can be found here here.
The discrete corporate offence represents a new form of corporate liability arising from a failure to prevent bribery committed on behalf of the company engaging in business, trade or profession. This offence is restricted to active bribery on the part of a person who is linked to the company in a way that allows him/her to act on its behalf. This offence would cover instances of bribery to secure a business advantage in both domestic and foreign markets. The offence will also be coupled with a due diligence/adequate systems defence which would allow a company on behalf of which a bribe has been paid to avoid a conviction if it can show that it has adequate systems in place to prevent bribery despite this instance.
One thing still uncertain is when this will be enacted. It still needs to go through the following stages…
- First Reading
- Second Reading
- Committee stage
- Report Stage
- Third Reading
- Royal Assent
…which can typically take anything from a couple of months to over 6 months, and that is provided the programme for parliamentary business is not taken up with ’more pressing’ matters.
The Government now has the opportunity to fast track the Bill in the 4th session of this Parliament. Delaying until the 5th session in 2009/10 would risk it being crowded out by other legislative priorities in the run up to a general election.