Will the UK's Bribery Act 2010 be successful? Why?

Will the UK's Bribery Act 2010 be successful? Why?

Bribery Act 2010--The Acts defines four new criminal offences: (Robinson 2010)  

1. A corporate offence of failing to prevent bribery being undertaken on its behalf
2. 2) Requesting or receiving a bribe
3. Offering or paying a bribe
4. Bribing a foreign public official. (A specific offence required to comply with the OECD Convention).

The purpose of the Act is to provide a modern and comprehensive scheme of bribery offences to equip prosecutors and Courts to deal effectively with bribery in the UK and abroad. The Act replaces old and fragmented legislation with a modern and consolidated bribery law, based on the recommendations of the Law Commission (Robinson 2010).

 
It creates offences of offering, promising or giving, bribes and requesting, agreeing to receive or accepting of a bribe either in the UK or abroad, in the public or private sectors and its broad jurisdictional reach means that the majority of U.S. public companies are likely to be affected by what experts have described as the world's most draconian anticorruption legislation. It is wider ranging even than the US Foreign Corrupt Practices Act. Where the FCPA deals only with governmental bribery and means that the FCPA extends only to the public sector, the U.K.  Act also covers corruption between commercial entities. Where U.S. legislation requires prosecutors have to prove intent and awareness of the bribe at a senior level, the Bribery Act imposes strict liability on any company that fails to prevent bribery from taking place (Robinson 2010). Strict liability is going to make life a whole lot easier for agencies looking to mount successful prosecutions (Nichols 2010).

This not only covers bribes made by its own employees, but also by any individual associated with the company and this is a fact likely to be of major concern to smaller enterprises, which generally lack their own international networks and are therefore regularly forced to deal with third-party agents abroad (Nichols 2010). In fact smaller companies may want to not participate in business anywhere where bribery is a normal way of life and the company has no direct representation as the consequences are going to be severe if they transgress the Bribery Act, even without their direct knowledge.

The bribery act creates a discrete offence of bribery of a foreign public official in order to obtain or retain business and creates a new offence in relation to commercial organisations which failed to prevent a bribe being paid by those who performed services for or on behalf of the organisation. However, a legitimate defence will be if an organisation has adequate procedures in place to prevent bribery. 

Implications of the Bribery Act 2010 for companies (Robinson 2010) --

All commercial and public-sector organisations should:

1)    Commit to implementing systems to counter bribery

2)  Prohibit bribery in any form whether direct or indirect and buy for the organisations.

Larger companies’ anti-bribery systems  should include: (Robinson 2010)  

1. A code of conduct
2. Whistle blowing procedures
3. A statement of values
4. Monitoring and assurance
5. Detailed policies and procedures, including, for example policies on gifts, hospitality, facilitation payments, vetting outside agents and advisers, logging and political contributions. 
6. Detailed management procedures, for example regular auditing of compliance.
7. Internal controls.
8. Oversight.

9)   Training and guidance.

Companies will need to: (Robinson 2010)  

• 1)  Put in place staff training and ensure that they have written procedures available to staff and contracting consultants.
• 2)  Review the adequacies of their internal procedures to prevent bribery and consider including standard clauses in their commercial contracts that replicate the clauses prohibiting bribery and corruption that are commonly used in public sector contracts.
• 3)  Consider incorporating these into contracts of employment and service and enable the employer to terminate employment or engagement in the case of breach.
• 4)  Ensure that appropriate checks are carried out during the processing of payments.
• 5)  Carry out due diligence before entering into arrangements with other parties.
• 6)  Assess all processes in the context that a successful prosecution for failure of a commercial organisation to prevent bribery could cause the organisations disbarment from public contracts under section 23 of the Public Contracts Regulations 2006.
• 7)  Understand how they will deal with an allegation of bribery or corruption made within the company or in public. For a public allegation, a response to a traditional print, visual or audio media alone may not effectively reduce potential damage to the reputation, because the allegations may emerge and spread via small campaigning groups and other online activities.

The Bribery Act 2010 for Organisations Act does not recognise the concept of facilitation payments, although they are accepted in other jurisdictions as a necessary evil (Nichols 2010). While the policy appears to be that facilitation payments are best handled through the sensible use of discretion not to prosecute, the difference in approach will create a certainty for companies which are subject to jurisdictions which take a different approach to that envisaged in the Act.

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