The Bribery Bill is due to come into force later this year. It requires all businesses of whatever size to have in place processes designed to prevent both employees and others from paying bribes in order either to obtain or retain business. This new regulatory regime will lead to a wider need for D&O cover and an increase in potential claims.
The Bill contains four primary offences: bribing another person, being bribed and the bribery of foreign public officials, and a new strict liability corporate offence of failing to prevent bribery. The new offence applies to corporate bodies or partnerships which are either formed under the law of the United Kingdom or carry on business in any part of the UK. The offence can be committed in the UK or overseas. If an employee, agent or corporate subsidiary bribes another person with the intention of obtaining or retaining business or an advantage in business for the organisation, the organisation is guilty of this offence.
The organisation has a defence if it can prove that it had in place adequate procedures to prevent such persons from paying bribes. There is understandable concern about the creation of a new strict liability regulatory regime without guidance about what will be an effective defence. In response to this concern, the government has recently agreed to amend the Bill to impose a duty on the Secretary of State to provide guidance on the corporate offence of failing to prevent bribery. Following the Bill's third reading in the House of Lords on 8 February 2010, it will now go to the House of Commons for consideration. The Ministry of Justice has indicated that it hopes to obtain Royal Assent in April, with the first three offences mentioned above coming into force in June and the corporate offence of failing to prevent bribery coming into force in October 2010.