Will the UK’s draft Bribery Bill stand up to the challenge?
The long-overdue draft UK bribery bill is very welcome as it makes the legal position regarding bribery and corruption considerably clearer and in particular, will make offences easier to prosecute. This will enable the UK to catch up with other major economies through this purpose-built law. And unlike the FCPA the draft Bribery Bill covers bribery of private as well as public foreign officials, which is a much-needed requirement.
However, there are a number of areas where the bill could be tighter:
The Rio Ferdinand Lesson
There is now a clear corporate offence whereby companies that have been negligent in preventing bribery by individuals can be prosecuted. However, the sanction is merely a fine, albeit unlimited, rather than the much tougher punishment of a ban or suspension from being able to bid or supply. When Manchester United player Rio Ferdinand failed repeatedly to appear for drugs tests, he was fined £50,000 (pocket money) but banned for 8 months, its not hard to see which hurt the most.
Farming out the Dirty Work
Most companies bribe through an intermediary. This will be punishable under the proposed law, but it is not clear how courts will establish the culpability of the company as opposed to the intermediary. This needs to be clearer to secure prosecution.
It’s easier to receive than to give
The draft Bill makes it clear that companies will be prosecuted for failing to prevent the payment of bribes. But it appears not to apply when companies have failed to prevent a bribe being received. There are practical steps that a company can do to prevent this so it is a pity that the law has not tightened up this point.
The James Bond Clause
A person cannot be prosecuted if the bribe has been authorised by the Secretary of State. This falls under ‘authorisation for Intelligence Service’!
Click on the following link to see the GoodCorporation Standard on Bribery & Corruption.