Monthly Archive for June, 2009

We have posted at length about the UK’s new Bribery Bill.  

The Bill has started is march into the statute books and the two Houses of Parliament have established a Joint Committee on the draft Bill. The remit of the Committee is to consider the draft Bill and report on it by 21 July 2009.   This committee stage of the legislation proceeds  by a series of hearings with oral and written evidence, and discussion. Its Parliamentary journey can be tracked  here.

With the turmoil in Parliament at the moment, our friends in Westminster are speculating that the Bill might have to be delayed until after the next General election, when all is set for a change in government and a change in priorities.  That is not to say that it will never become law, but if that is the case, the new government will have their own agenda in 2010 and it may not be until 2011 when the Bill finally makes the statute books.  

Oral evidence however was heard on 14th and 21st may 2009, transcripts here and here. 

One of the key points under consideration is whether, and to what extent, so called “facilitation payments” will be permitted.   Current wording of the Bill is that  unlike the FCPA, there will be no exemption for facilitation or grease payments, and it will be left up to prosecutorial discretion to whether to prosecute ‘small bribes’.

Professor Jeremy Horder, the commissioner of the Law Commission, whose team wrote the bill, stated:
 

….but the reality is that, for example, a firm that, I do not know, has got a lot of aircraft or ships coming in and out of countries all over the globe, it may very well be that they have to give a bottle of whisky to the harbourmaster or someone each time they go through, and really it is not realistic, I think, to expect prosecutions to be undertaken in those cases, but it is a case where I think it is better that the law stays silent and we just carry on as we always have, only prosecuting where the public interest demands that you prosecute…

Another question is whether there should be limits on corporate hospitality given to public ­officials.  It seems that there won’t be limits on ordinary hospitality.  Horder said limits ‘would be difficult and unworkable’.

Clearly, we had long discussions about this with business organisations and what I said to them, and this was a change from what we had originally proposed in our consultation paper, was that, yes, in some circumstances, the provision of hospitality of a very extravagant kind can amount to bribery, there is no doubt about that, it can do, but what we will be saying in our Bill is that there will be a clear line in the sand which, if you cross, is bribery and which, if you stay behind, is not. That clear line is drawn in clause 1 when it says that a person, P, that is the payer, is guilty of an offence, et cetera, where he offers promises or gives a financial or other advantage and so on and intends the advantage to induce a person to perform a function improperly, so, when you lay on your corporate hospitality, it actually has to be your intention to produce an improper influence on the people there and it is not enough that you realise that it might have that effect in some speculative way. We were persuaded, and I genuinely think this is right, that that would cast the net way too wide because it would mean that even quite modest hospitality, if, for example, officials are not used to receiving any hospitality at all, might raise the possibility in your mind that they could conceivably be influenced by that. Well, that is putting too much of a restriction, I think, on what can be done and it is making liability too speculative, I think, so I am actually quite bullish about this, about the certainty that it provides for businesses and the provision of entertainment because, as I say, it is only in the case where you intended to have that corrupting effect, to use the broad term.