UK: the Bribery Act (2010) - implementation and consultation

The Bribery Act (2010) received Royal Assent earlier this year and will come into force in April 2011. The Act introduces a new strict liability offence: the failure by a commercial organisation to prevent bribery (see Section 7). With regard to this offence, the Ministry of Justice announced yesterday that it will be consulting in the autumn on guidance concerning the procedures which commercial organisations can put in place to prevent bribery on their behalf (thereby establishing a defence to liability under Section 7): see here.

UK: the Bribery Bill - the failure to prevent bribery by a commercial organisation

The Bribery Bill received its second reading in the House of Lords earlier this week (read the debate here). The Bill will, inter alia, introduce a new offence: failure by a "relevant commercial organisation" (e.g., a company) to prevent bribery (see clause 7). A defence is available where the organisation can show that it had in place "adequate procedures" to prevent bribery (clause 7(2)). With regard to this defence, Lord Bach, the Parliamentary Under-Secretary of State at the Ministry of Justice, stated during debate (at col. 1087):

We recognise that there has been considerable debate about what constitutes "adequate procedures" for these purposes. As we indicated in our response to the Joint Committee, the Government agree that guidance should be made available to commercial organisations. We propose that such guidance should be available well in advance of the new offences coming into force. Over the coming months we will develop appropriate guidance, drawing on the expertise of business representatives, Transparency International and others. Among other things, we envisage that the guidance will provide illustrative good practice examples of adequate procedures. While guidance will be in place to assist business, the message from the Bill is clear. The payment of bribes, including facilitation payments, is unlawful. If companies pay them in order to gain a business advantage they run the risk of prosecution. Bribery on any scale cannot and should not be tolerated or condoned".

There is, however no duty on the Government to provide such guidance, a point made by Lord Goodhart during debate (see col. 1091). Lord Henley, the shadow justice minister, offered support for the Bill but stated (at col. 1120):

We have concerns about how the Bill is framed and we will probe, for example how Clause 7 will work in practice. An offence of omission is being created for companies that do not prevent bribery. The defence is vague. We will probe what is meant by 'adequate procedures'. One of the core aims of this legislation must be that it is clear and unambiguous. We have heard representations from businesses that seek assurances that they are not going to be left in difficulties because of the change in the law. A great deal may hinge on what sort of guidance is put in place, rather than on the wording of the Bill, and we will certainly be looking at putting down amendments to elicit more information from the Government on this".

UK: the Bribery Act 2010

The Bribery Bill received Royal Assent yesterday and becomes known as the Bribery Act 2010. In due course a copy of the Act will be available here.

Update: a copy of the Act is available here.

UK: Bribery Bill - update

The Bribery Bill received its Third Reading in the House of Commons yesterday and now awaits Royal Assent.

UK: the Bribery Bill

As part of the wash-up of Bills prior to the dissolution of Parliament on 12 April, the Bribery Bill, which was introduced in the House of Lords, reaches the Report Stage in the House of Commons today and will also receive its Third Reading. Royal Assent is expected shortly thereafter.

UK: the Bribery Bill and the failure of commercial organisations to prevent bribery

The Bribery Bill received its first reading last week in the House of Lords with second reading timetabled for 9 December. The Bill was published in draft earlier this year and contains provisions for the introduction of a new offence: the failure to prevent bribery by a commercial organisation (defined in clause 7(5) to include, inter alia, companies incorporated in the UK).

Clause 7(1) provides that the offence is committed where a person associated with the organisation bribes another person intending (a) to obtain or retain business for the organisation or (b) to obtain or retain an advantage in the conduct of the organisation's business. A defence is, however, provided in clause 7(2), where the organisation is able to prove that it had in place adequate procedures designed to prevent the bribery. Clause 11(5) provides that the offence is committed irrespective of whether the acts or omissions which form part of the offence take place in the UK or elsewhere. 

There is an important difference between the draft Bill and the Bill as introduced in the House of Lords regarding this new offence: the Government has removed the requirement for the prosecution to prove that the bribery took place as a result of negligence by a "responsible person" within the organisation. In its response to the Joint Committee on the draft Bill, the Government explained it change of position:

... the Government agrees that there may be a risk that requiring the prosecution to prove negligence may involve unnecessary complexity and may have the potential to undermine the broad policy objectives of bringing about a shift away from a corporate culture that is more tolerant of bribery and promoting effective corporate anti-bribery procedures".

UK: Parliamentary Bills update

The Corporation Tax Bill received Royal Assent earlier this week: see here. The Bill, now an Act, will soon be published on the OPSI website. It largely completes the Government's rewrite of the corporation tax code and is the sixth Act produced by the Tax Law Rewrite Project.

The Bribery Bill, which was introduced in the House of Lords, received its Second Reading in the House of Commons on Wednesday: see here. This provided MPs with their first opportunity to debate the Bill. Background information about the Bill, covering debate in the Lords, is available in a House of Commons Library research paper published on 1 March: see here (pdf).

UK: the Bribery Bill - Report stage today

The Bribery Bill is being considered at Report stage in the House of Lords today. At Committee stage (first sitting) there was much discussion about clause 7, which introduces a new offence of strict liability - the failure by a commercial organisation to prevent bribery - and the desirability of guidance on the measures that can be taken by companies to avoid committing this offence. In this regard, amongst the amendments moved to be considered at Report today is one from Lord Bach, a Government minister, requiring the Secretary of State to publish guidance about the procedures that relevant commercial organisations can put in place to prevent persons associated with them from bribing.