Update: UK Bribery Act 2010
MANAGING THE RISKS OF OVERSEAS CORRUPTION
UPDATE (28 Jun 2011): Presentation (Herbert Smith/Al-Ghazawi) at British Consulate-General, Jeddah (14th June 2011)
UPDATE (22 Jan 2011): Article: The impact of the UK Bribery Act - a Q&A overview for companies in the Middle East
Greg Gibson, our Deputy Consul General and Head of Trade and Investment has asked us to pass on the following information and advice to members of the British Business Group. This is not legal guidance but is intended to help BBG members and UK businesses to familiarise themselves with the implications of a new piece of legislation and identify tools for managing the risks of overseas corruption.
New Bribery Act
The Bribery Act 2010 was passed by Parliament before the General Election and received the Royal Assent on 8th April 2010 but has not yet been brought into force. It will replace existing fragmented law dating from before the First World War and will make bribery easier to prosecute, and be fairer to citizens and businesses in what they can expect from the law.
It is important to recognise that, while the Bribery Act will amend the law, bribery has long been a crime in the UK and since 2002 it has been an offence for UK citizens and businesses to bribe overseas, even if none of the activity takes place in the UK. Businesses have been sanctioned with multi-million pound fines and individuals have been imprisoned.
The Act will replace the existing law’s outmoded concepts with a modern definition of bribery based on an intention to induce improper conduct. The Act will also introduce new offences of bribing a foreign public official and of failing to prevent bribery on behalf of a commercial organisation.
While these offences do not apply where an inducement is permitted or required by a country’s written law, the Act explicitly clarifies that there is no exemption for customary payments or local culture. Businesses should be aware that over 140 countries have signed the UN Convention Against Corruption, which criminalises the official solicitation or acceptance of undue advantages in return for official action or inaction.
The new ‘failure to prevent’ offence includes a defence where a commercial organisation has adequate procedures to prevent bribery. The Act requires the Government to publish guidance on procedures that commercial organisations can put in place to prevent persons associated with them from bribing. There will be a public consultation exercise on this guidance beginning in late summer.
Formal guidance should be published early in the New Year, to allow time for businesses to prepare for the Act’s new offences coming into force in the spring of 2011. Businesses without anti-bribery procedures or seeking to review their approach may also wish to look at the March 2010 OECD good practice guide (http://www.oecd.org/dataoecd/5/51/44884389.pdf).
Supporting Ethical Business
Bribery is both illegal and bad business. Research shows that a culture of corruption is a disincentive to investment and trade and adds to the costs of doing business. Payment of bribes is unacceptable behaviour, but bribery overseas is also a crime for UK businesses and people who live in the UK. It is also likely to be illegal in the host country.
Overall, the UK has a good reputation for openness and honesty, with UK businesses seen as cleaner than most of their international competitors. By acting professionally and refusing to pay bribes, British businesses defend their reputation for integrity and trade fairly on the value of their products and services.
The Government is committed to target the rogues that seek to win business through bribery and undercut the majority of ethical UK businesses. The Government also provides or sponsors a number of free information resources, (www.ukti.gov.uk (search for OSIB) and http://www.business-anti-corruption.com/.
Tackling Overseas Corruption
Global standards are rising with more than 140 countries now committed to implementing anti-bribery legislation. By upholding our own law we support growing international efforts to stamp out corruption and achieve a level playing field for global trade.
The UK has successfully pressed for stronger multilateral condemnation of so-called ‘facilitation payments’ or petty bribes paid to avoid official delay or obstruction. In line with the UN Convention Against Corruption, neither current UK law nor the new Bribery Act exempt facilitation payments.
The Government is working with the US and others through closer embassy coordination and support for good governance overseas. If subjected to persistent official demands for bribes you should contact the nearest British diplomatic mission. They may take up your case with the authorities, and may join forces with other OECD and EU missions to increase the lobbying weight of the intervention.
Businesses can take a pro-active stance in anticipating, preventing and resisting bribe solicitation. Practical guidance is available covering a wide range of detailed case studies (refer to http://www.iccwbo.org/policy/anticorruption).
In summary:
The UK will reinforce its reputation as one of the least corrupt countries in the world when the Bribery Act comes into force in April 2011.
The Act will ensure the UK is at the forefront of the battle against bribery and pave the way for fairer practice by encouraging business to adopt anti-bribery safeguards.
The Act will:
- Introduce a corporate offence of failure to prevent bribery by persons working on behalf of a business. A business can avoid conviction if it can show that it has adequate procedures in place to prevent bribery.
- Make it a criminal offence to give, promise or offer a bribe and to request, agree to receive or accept a bribe either at home or abroad. The measures cover bribery of a foreign public official.
- Increase the maximum penalty for bribery from seven to ten years imprisonment, with an unlimited fine.
In September the Government will launch a short consultation exercise on the guidance about procedures which commercial organisations can put in place to prevent bribery on their behalf.
This will be published early in the New Year to allow businesses an adequate familiarisation period before the Act commences.
28 Jun 2011