The new Irish Government has reaffirmed its commitment to updating and modernising the anti-bribery laws in its recently published Legislation Programme. This includes the proposed introduction of a new "failing to prevent" bribery offence which will require companies to put in place effective anti-bribery and corruption ("ABC") compliance policies and procedures, or face criminal consequences.
Currently, the main bribery offences are set out in the Prevention of Corruption Acts 1889 2010 (the "PCA"). Under the PCA, a company itself can be convicted of bribery. The PCA also impose liability on an officer of a company where 1) the company commits an offence and 2) the offence is committed with the officer's consent or connivance or where the commission of the offence is attributable to any wilful neglect on the officer's part. The PCA do not, however, hold a company liable in circumstances where an offence is committed by a person acting on its behalf in circumstances where the company has failed to put in place effective ABC policies and procedures.
In 2012, the then Government published the general scheme of the proposed Criminal Justice (Corruption) Bill, with a view to modernising and strengthening the bribery laws. As well as introducing two new bribery offences, the general scheme contains a new offence which makes a commercial entity criminally liable where a person acting on its behalf commits bribery in order to obtain or retain business or to retain an advantage in the conduct of business. It is a defence for the entity to prove that it took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
The Legislative Programme sets out the legislation that the Government will seek to publish over the next months and comprises a number of lists. The third list sets out the Bills each department plans to introduce in the long term and provides an update on the status of each. The Criminal Justice (Corruption) Bill is included in this list: according to the accompanying update, it is still being drafted.
The proposed introduction of a failing to prevent bribery offence reflects developments in corruption law at international level where this type of offence is becoming increasingly popular. Most notably s. 7 of the UK's Bribery Act 2010 criminalises a commercial organisation's failure to prevent bribery and in Germany a company may be subject to administrative sanctions for failing to take reasonable supervisory measures to prevent bribery by its employees. In July last year, Spain changed the conditions under which legal bodies can be considered criminally liable, introducing a new exemption from criminal liability for entities that have implemented a compliance programme that meets certain requirements. The French Government recently submitted a bill to the French National Assembly, which will, if enacted, require certain larger companies to put in place a compliance programme to prevent and detect corruption. While the US Foreign Corrupt Practices Act does not contain a failure to supervise type of offence, the US authorities take into consideration the existence and effectiveness of an entity's compliance programme at both the investigation and sanctions stage.
As the Criminal Justice (Corruption) Bill does not feature either on the list of Government bills to be published in this session, nor among the bills to undergo the pre-legislative stage in this session, it is unlikely to be published before 2017. However, waiting for the provisions to come into force would be unwise given the extra-territorial reach of the UK and US legislation. In other words, all those who wish to do business abroad or to work with foreign investors in Ireland should already have an effective ABC programme in place.