After numerous delays, the Bribery Act 2010 comes into force on 1 July. This LawNow focuses on the issues for those involved in managing occupational pension schemes.
The Act re-codifies and simplifies existing laws on bribery but also expands the extra-territorial scope of bribery law. It creates statutory offences of bribing someone, being bribed, and a new “corporate offence” of the failure of a commercial organisation to prevent bribery. The Government has also published formal guidance on the Act, which is intended to assist in its interpretation.
This isn't new for trustees
The issues covered by the Act are not new to occupational pension schemes. Trustees must already comply with long-established trust law duties not to profit from the trust, and to avoid conflicts of interest and duty. More recently, of course, the Pensions Regulator has issued guidance for trustees on conflicts, while corporate trustees will have considered conflicts provisions under the Companies Act 2006. However, it is worth looking specifically at the impact of the new statutory offences.
Giving or receiving bribes
The new offences of giving and receiving bribes cover any legal person and therefore apply to trustees, whether individual or corporate.
There has been some concern amongst trustees and advisers relating to the giving or accepting of corporate hospitality. The guidance emphasises that bona fide hospitality is "an established and important part of doing business" and says that "the Government does not intend for the Act to prohibit reasonable and proportionate hospitality and promotional or other similar business expenditure intended for these purposes.” To establish an offence, the prosecution would have to prove that the hospitality was actually intended "to induce conduct that amounts to a breach of an expectation that a person will act in good faith, impartially, or in accordance with a position of trust."
Trustees and “the corporate offence”
Under this provision, new to English law, a corporate is guilty of a (strict liability) offence where:
- a bribery offence under the Act is committed, anywhere in the world;
- by someone performing services on the corporate’s behalf, in any capacity;
- intending to obtain a business advantage for the corporate.
Individual trustees cannot be caught by the offence. For corporate trustees, the test will be whether they are carrying on business: a notoriously fluid test in other areas of law (such as money laundering). Although the guidance refers to a need to be carrying out "commercial activities", it gives no express comfort for bodies like trustee companies.
Whilst the width of the newly created offence has been criticised, an important safeguard is available under the Act. It is a defence for the corporate to show it had “adequate procedures” in place designed to prevent such bribery on its behalf. Developing and reviewing such procedures will, of itself, therefore offer significant protection against the risk of committing the offence.
What should trustees do ?
We do not consider that trustees need to go overboard in responding to the Act. The vast majority of activity undertaken by trustees represents little or no risk of breach.
However, in practice, most UK businesses and employers will have to respond to the legislation. As a matter of common sense, trustees may therefore wish to piggy-back on any steps being taken by the wider employer group. This could entail adopting a formal anti-bribery policy (however short and straightforward), reviewing existing conflicts procedures for compliance (e.g. keeping formal records of hospitality received) and considering whether to seek contractual comforts on Bribery Act compliance from suppliers or agents going forward.
The Government's guidance on the Bribery Act can be found here.