Bribery Bill Update

On 18 November 2009, the Government confirmed that it intends to put the Bribery Bill before Parliament.

Lawyers David de Ferrars, Heidi Wales

The Bill is of fundamental importance to all commercial organisations that are either registered in the UK or operate in the UK.  The new Act will codify existing anti-bribery legislation relating to the bribery of public officials (domestic and abroad), address bribery in the private sector and will introduce a new offence where a commercial organisation fails to prevent bribery by one of its agents or employees.  In effect it will introduce a requirement on all businesses to have and operate an adequate anti-bribery policy.  This will need to address extremes, from the prohibition of payment of bribes to public officials to obtain contracts, through to what constitutes an appropriate entertainment expense – for example, paying for lunch with a potential client.  The policy will also need to address the keeping of appropriate business records in relation to such matters.

Breach of this legislation could result in an unlimited fine, imprisonment and reputational damage. The Bill will be subject to debate and revision as it passes through Parliament over the next few months.  For example, it is not yet clear whether the commercial organisation offence of failing to prevent bribery will be one of strict liability or subject to a test of negligence.  What is clear, however, is that a business will fall short of the requirements if it does not have an anti-bribery policy on which their staff are trained and which is implemented and reviewed as the business develops.  Clarification is also required on what will be deemed to be an adequate policy as clearly a one size fits all approach would not be appropriate.

It is also hoped that more certainty will be provided as to the difference between bribery and the legitimate giving and receiving of advantages.

The offences in focus:

• Two main offences focusing on: (1) the payer of a bribe and (2) the receiver of a bribe.
• A separate offence of bribery of a foreign public official.
• A new offence where a commercial organisation fails to prevent bribery by one of its agents or employees.
• Individuals convicted of involvement in bribery face a maximum penalty of 10 years imprisonment (an increase from seven years under the current law).
• Companies and firms convicted of the offence of negligently failing to prevent bribery being committed by someone within their organisation will be subject to an unlimited fine.
• The offences are extra-jurisdictional - the offences will apply to British citizens, companies incorporated in the UK or foreign individuals resident in the UK, even where the acts concerned take place outside of the jurisdiction.

Taylor Wessing can advise clients on the existing anti-corruption legislation in the United Kingdom and the Bill and can prepare or review anti-corruption polices.