The House of Lords has established an ad hoc Select Committee (the “Committee“) to consider and report on the Bribery Act 2010 (the “Act“). The Committee, which was formally appointed on 17 May, is due to release a report by the end of March 2019 which will focus on:
- the extent to which the Bribery Act 2010 has led to stricter prosecutions of corrupt conduct, a higher conviction rate and/or a reduction in such conduct; and
- the impact that the Act has upon businesses and in particular small and medium enterprises (“SMEs“).
The Act contains offences of the giving and receiving of bribes (ss1 and 2 of the Act respectively), as well as the more specific offence of bribery of foreign public officials (s6 of the Act). Further, s7 of the Act created the novel corporate offence of failure to prevent bribery by an “associated person”. Under s7(2) of the Act it is it is a defence for an organisation to show that it had “adequate procedures” designed to prevent such conduct from taking place.
The broad extraterritorial scope of the Act, which captures conduct anywhere in the world by UK-incorporated entities (or entities which carry on business, or part of a business, in the UK), has led to it being described as creating some of the world’s strictest anti-corruption legislation. As such, at the time of the Act’s implementation, concerns were raised over whether UK businesses would be at a competitive disadvantage because conduct that is lawful under foreign legislation might be unlawful under the Act’s stricter provisions. The Act has also been criticised for being uncertain and causing confusion, especially for SMEs which may not have easy access to advice as to what may constitute “adequate procedures” to prevent corrupt conduct.
The Committee may also consider Deferred Prosecution Agreements, as they affect bribery.
The Committee’s chairman, Lord Saville, has stated that there shall be a call for evidence in June which will be open to any organisation with experience of the Act. To the extent that any business with operations in the UK has comments in respect of, for example, its experience in establishing and maintaining “adequate procedures” to prevent bribery under the Act, it should be aware that it will be able to make submissions to the Committee if it wishes to do so. Any updates to the Committee’s activities (including the call for evidence) will be published here.