Critical Analysis of the Bribery Act 2010 PDF

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Critical Analysis essay on the implementation of the Bribery Act 2010 in the UK...

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Critical Analysis of the Bribery Act 2010

“While it is entirely understandable that the government wishes Parliament to direct provisions to UK companies and show a strong hand to the international community, it is equally important that it does not suffocate activity in markets where those companies come up against international competitors.” Discuss the extent to which the Bribery Act 2010 has balanced the two goals identified by Michaelson and Berkeley in this extract. As a member country of the Organisation for Economic Co-operation and Development, the UK ratified the OECD Anti-Bribery Convention1 and in principle agreed to meet the standards set. Despite this, the UK was unsuccessful in fulfilling its obligations and this resulted in a ‘turning point’2 whereby the Bribery Act 2010 was implemented. The Act’s predecessors3 were crucial factors owing to the implementation as they were considered ‘inconsistent, anachronistic and inadequate’4. This Act codifies the law and quietens the criticism of the UK for ‘lagging behind international competitors’.5 It is noteworthy that the phrase on the lips of so many commentators is ‘level playing field’6 which ‘works both ways’7. Thus, this essay’s aim is to succinctly examine the extent to which the Act has brought the UK ‘into line with international norms on anti-corruption legislation’8. However, it is also argued that the Act may be disadvantageous for UK businesses9 as stricter obligations are implementd compared to their foreign competitors10. It is intended to take the two latter goals and analyse the degree to which the Act has balanced them. There have been arguments against the ‘delay’ in implementation of the Act and these provide strong bases for establishing a ‘strong hand to the international community’11. The OECD’s Working Group on Bribery opined that it was ‘very disappointed . . . in the further delay’; proceeding to affirm that ‘establishing a level playing field for international business . . . will help strengthen the global economic recovery’12. The OECD’s dismay at the delay was clear when they claimed that they would ‘threaten to blacklist British companies’ should they remain ‘under-regulated’13. The OECD urged the United Kingdom to implement the Act ‘as a matter of high priority’ whilst Transparency International claimed that the delay ‘raised serious doubts about the credibility of the government’s commitment to the Bribery Act’14. Thus, it is widely accepted that the Act was critical in bringing the UK into line with OECD member states on anti-bribery.

Critical Analysis of the Bribery Act 2010

The USA has ‘been at the forefront of prosecuting international bribery’15 and thus far ‘has been

the

predominant

force

in

setting

compliance

standards

for

international

businesses’.16 The FCPA17 was regarded, until the OECD Anti-Bribery Convention, as the only ‘explicit extraterritorial anti-bribery law’18. However, it can be seen that the UK Bribery Act has ‘raised the bar’19; and in doing so has shown ‘a strong hand to the international community’20. The government define the Act as a ‘modern and consolidated bribery law’21 that superseded the ‘current law that was riddled with uncertainty and in need of rationalisation’22. Despite this, it remains to be seen whether the Act will ‘provide a better framework for the successful prosecution of bribery and corruption offences in the globalised industrial economy’23. It has been shown that the preceding laws did not comprise the common law offence of bribery and were ‘outdated, unclear and lacking in scope’24. These laws would not be capable of allowing the UK to fulfil their international obligations under the 1997 AntiBribery Convention25. Bribery is described as being ‘in its very nature insidious’ that has ‘potentially devastating consequences’26. With this in mind, many commentators illustrate the importance of the Act ‘to deal with bribery much more effectively’27. It is argued that the old laws were lacking in scope because of their inability to apply to overseas subsidiaries; thus, they could not achieve the standards set by the OECD28. Looking at the FCPA in more depth, and comparatively analysing it, allows the extent to which the Act has ‘shown a strong hand to the international community’29 to be examined. The 1906 legislation30 did not refer to foreign public officials and the Bribery Act sought to amend this31. In doing so, this fulfils the standards set out by the OECD32 regarding antibribery33. Both the FCPA and the Act forbid the bribery of foreign public officials and provide evidence to suggest that the two Acts are similar in effect. The prohibited conduct in relation to the two Acts is similar: the FCPA’s wording suggests that it is irrelevant whether the bribe is ‘voluntarily offered or was suggested or demanded by an official’34. The Bribery Act parallels the FCPA35 by including ‘an advantage that benefits the official at his request or with his ‘acquiescence’36. Despite the fact that there are discrepancies in the language, there is evidence to suggest that the UK has succeeded in its attempt to move into line with ‘international norms on anti-corruption legislation’37. Further to this, it is argued that because the definition is so broad, in both Acts, it could cover those who do not appear to be

Critical Analysis of the Bribery Act 2010

foreign public officials. The ‘stand-alone offence’ per section 6 puts the UK legal framework in general congruence with the OECD Anti-Bribery Convention as well as the US FCPA’38. Given that the UK has been under scrutiny to bring itself into line with anti-bribery norms, there has been strong criticism against the Act as it is extremely onerous on UK businesses; thus, stifling their opportunity in the international community.39 It has been argued that the Act is ‘more restrictive than the FCPA’40 and ‘provides the UK with some of the most draconian and far-reaching anti-corruption legislation in the world’41. In a report by Parliament it was clarified that this would ‘prejudice the international competitiveness of UK businesses’42. The importance of this was exemplified by Frost when he commented: ‘in a cut and thrust world of exporting what we don’t want is the British playing with a straight bat and we find some that are not’43. With the above in mind, it is claimed that the ‘most significant sea-change’44 is that of a ‘corporation’s failure to prevent bribery’45. This section is notable for its prohibition of a wider scope of conduct as opposed to its FCPA counterpart46. However, it must be noted that although the FCPA does not incorporate commercial bribery, it may ‘fill the gap’47 by bringing these charges under the Travel Act48 for example. Nevertheless, it is argued that ‘one would be forgiven for thinking that the legislation would permanently cripple the ability of UK companies to transact business overseas’49. Section 7 incorporates a strict liability offence whereby a corporation is held vicariously liable for the paying of a bribe by someone carrying out services on that corporation’s behalf. This ‘someone’ is referred to as the ‘associated person’. Moreover, prosecutors would not be required to prove criminal intent by the corporation – they would only need to show that the ‘associated person’ engaged in the bribe50. It could be argued, however, that this does not implement more onerous requirements compared to the UK’s foreign counterparts. The reason for this is because despite the fact that the FCPA does not incorporate a stand-alone corporate offence, legal liability would attach to a corporation (caused by an employee or agent) by other means. Responsibility on behalf of the corporation can be established through the common law principle of ‘respondeat superior’.51 Although the corporate offence may implement more severe requirements on businesses, and subsequently ‘suffocating activity’52, there is a defence where a commercial organisation can put in place ‘adequate procedures’53. This would reduce liability on the company if they

Critical Analysis of the Bribery Act 2010

can prove that they have ‘strong, up-to-date and effective anti-bribery policies’54. It is clear that the burden of proof is on the commercial organisation to show that relevant procedures are in place. Notably, the defence reduces liability of the commercial organisation because ‘the principal concern of the Act is to direct the criminal law at them… to ensure that active bribery is not committed on their behalf’55. The adequate procedures guidance56 produced six principles with comments and explanations; thus, providing evidence that there has been an attempt to balance the two goals. It is important to state that it remains with the courts to decide if the corporation has adequately put in place procedures to prevent the bribery of one of their employees or agents57. Thus, the company can discharge the burden if they implement the Ministry of Justice’s guidance as well as implementing their own procedures re the six principles. It is argued, however, that ‘where bribery has occurred, that selfevidently any procedures which were designed to prevent bribery must have been inadequate’58. It is clear that the Act may go too far in terms of penalties implementd on the individual or corporation. Although ‘strict penalties will make companies take notice and tighten controls’59 does it go too far? Does the Act put more onerous requirements on these UK businesses so that they are losing out compared to their foreign competitors? Under the Act, an individual may be given an unlimited fine or imprisoned for 10 years60. A corporation may receive an unlimited fine pursuant to section 7 of the Act. It is argued that these ‘stiffer’61 penalties

are

‘draconian’62.

The

penalties

under

the

Act

‘raised

significantly’63 compared to the FCPA; thus, commercial organisations ‘may need to review compliance procedures’ that allow them to conform with the scope of the FCPA64. It is widely commented that corporate hospitality could prove problematic for commercial organisations. The UK’s counterpart, the FCPA, incorporates a defence for a foreign official regarding ‘promotion, demonstration or explanation of products’65. However, it is evident that the UK Act does not offer such a defence and could prove to be problematic for businesses. Furthermore, it could provide evidence of legislation which is far too onerous66. It is clear that the simplistic language of the Act, coupled with the fact that there is no need for the ‘offer, promise or payment’ to be made corruptly, could render ‘all promotional gifts or hospitality expenses’67 criminal. If corporate hospitality is to be criminal then it depends how ‘lavish’68 it is. Lord Tunnicliffe stated that it would be legal to use corporate hospitality

Critical Analysis of the Bribery Act 2010

for ‘legitimate commercial purposes’69. Nevertheless, he stated that it could be illegal if it was ‘too lavish a hospitality’70. It is continuously stated that it is ‘unclear as to what extent corporate hospitality falls within the Act’, and is subsequently ‘likely to trouble . . . businesses’71. Thus, arguably, the Act has unconvincingly balanced the two goals in this sense. Distinguishing between what is ‘legitimate and illegitimate could prove problematic’72. This argument was strengthened when the English Law Commission ‘struggled valiantly’73 to determine what forms of corporate hospitality would be acceptable. The prosecution of the company for corporate hospitality remains in the hands of the courts and depends on the ‘slippery and subjective concept’ of intention74. It would be inevitably beneficial for businesses if they reflected on their internal corporate hospitality policies and applied firm guidelines on the matter75. The criticism is extensive enough that some are alleging that ‘Christmas gifts are likely to be considered bribes’76. There has unquestionably been an attempt by Parliament to bring the UK into line with other OECD member states regarding anti-bribery. Nevertheless, there exists evidence to suggest that the Act has given rise to too onerous requirements on UK businesses. The anachronistic legislation was repealed by the Act and was undoubtedly needed. The delay in implementation was significant in emphasising the importance of this much needed law; however, it is clear that the Act has struggled to balance the two former goals. There are sections in the Act, namely section 6 for example, which brings the UK ‘into line with international norms on anti-corruption legislation’77 and subsequently goes further than the FCPA golden standard. Nonetheless, the failure to prevent bribery on behalf of a commercial organisation is regarded as far too ‘draconian’, the penalties are excessive and companies could be convicted of bribery for sending ‘Christmas gifts’....