As of July 1st, the global effort to fight corruption will be enriched by a new tool: the UK's Bribery Act 2010. The law raises the bar in global anti-corruption measures and companies worldwide should be sure to implement appropriate responses as it applies not only to UK citizens, residents and companies but also to any companies conducting business in the UK. Most internationally operating bodies are already familiar with the US Foreign Corrupt Practices Act (FCPA) and many have implemented corporate programmes to meet its requirements. However, what may be deemed adequate practices under the FCPA may not meet the Bribery Act’s standards.
What the Act does
The Act creates the following four offences:
1. Active bribery, i.e. the promising or giving of a bribe
2. Passive bribery, i.e. the requesting or receiving of a bribe
3. Bribery of a foreign public official
4. Failure of a commercial organisation to prevent bribery committed by an associated person
Notably bribery is not limited merely to the bribery of public officials but also extends to bribery within the private realm. Equally important is the Act’s strict reading of the term ‘bribery’ – there are no exceptions such as made under the FCPA, for example for facilitating payments.
The Corporate Offence...
The Bribery Act makes clear that an ‘associated person’ extends beyond traditional employees and agents and is any person performing services for or on behalf of the organisation – regardless of his capacity and the nature of the relationship. Importantly, there is also no requirement that they be acting on the company’s instructions: the mere fact that they commit an offence under the Act suffices to trigger a company’s liability.
Nevertheless, under section 7(2) companies can invoke a defence that they had in place adequate procedures designed to prevent bribery by associated persons.
So what are adequate procedures?
In its Guidance, the Ministry of Justice refuses to give a cookie-cutter, one-size-fits-all answer. Instead it emphasizes the importance and individuality of each company’s unique circumstances. This will range from considerations like nature of business and countries of operation to type of associates engaged and size of the company itself.
Helpfully, the Guidance does identify 6 principles it suggests should underpin a company’s procedures:
1. Proportionate Procedures and Policies
- Commitment to bribery prevention
- General approach to mitigation of bribery risks
- Strategy overview of implementation
2. Top-level Commitment
- Top-level management should foster a culture in which bribery is not accepted
- Depending on company size engagement may vary but at all times
3. Risk Assessment
- Proportionate to the size, structure, nature, scale and location of operations
- Oversight by top-level management
- Appropriate resourcing
- Identification of information sources to assess risk
- Due diligence enquiries
- Accurate and appropriate documentation of assessment and its conclusions
4. Due Diligence
- Due diligence procedures applied that take a proportionate and risk-based approach in respect of persons who perform or will perform services for or on behalf of the organisation
- communication should be clear that bribery is a zero-tolerance issue
5. Communication (incl Training)
- Communication ensures all associated persons (internal and external) are aware of bribery prevention
- Communication should convey ‘tone from the top’
- Training can be general but also sector-specific considering relevant identified risks
6. Monitoring and Review
- Monitoring should be constant
- Reviews should consider any necessary changes that should be made
External verification and assurances of the effectiveness of anti-bribery procedures by third parties
Many readers will probably find that much of this is common sense. And that is the intention. The Bribery Act does not mean to create new onerous requirements likely to interfere with business. Of course, many businesses will undoubtedly find the need for a change of culture, especially when operating in corrupt countries where small payments are a normal part of business. However both the Guidance and the Secretary of State have repeatedly reiterated that the purpose is “not to bring the full force of the criminal law to bear upon well run commercial organisations that experience an isolated incident of bribery on their behalf [… but ] to encourage commercial organisations to put procedures in place to prevent bribery by persons associated with them.”
That is not to mean that compliance with the legislation should be deemed negligible. Bribery has no place in business and the Bribery Act is a step toward more competitive and fair practice by creating an international level playing field. Everyone agrees bribery is wrong and that rules need reform. As the Secretary of State for Justice explains: "In implementing this Act, we are striking a blow for the rule of law and growth of trade." Any responsible company should embrace the Act’s implementation as an opportunity to enhance their own procedures against bribery and help progress the eradication of corruption.