The House of Lords has appointed an ad hoc Select Committee to consider and report on the Bribery Act 2010. This will examine: the effectiveness of the Act; whether there has been stricter prosecution of corrupt conduct; a higher conviction rate; and, a reduction in such conduct. In launching the inquiry the Committee Chairman confirmed that now is an opportune time to examine the effectiveness of the Act given that the majority of bribery cases are now being prosecuted under the Bribery Act 2010.
Tool-kit for the 21st century
In order to “assist” the Lords, the Ministry of Justice has published a post-legislative scrutiny memorandum. This document deals with the origins of the Act - recalling that it replaced an “old and outmoded” mix of common and statutory law. It sets out how it was designed to provide the courts, prosecutors and investigators with the tools they needed to tackle bribery in the UK and overseas in the 21st century.
It refers to the introduction of the new failure to prevent offence (s7) and explains how this innovation overcomes the challenge of the identification doctrine by not requiring proof of a fault element at the corporate centre – something that was much criticised by former Serious Fraud Office Director David Green as the barrier to holding corporates to account.
The paper sets out how it was anticipated that the failure to prevent offence would establish itself as the norm for corporate bribery prosecution and marks this as a landmark moment – along with the introduction of Deferred Prosecution Agreements - in terms of corporate liability.
The role the UK plays in setting an example internationally and operating to an anti-bribery gold-standard is set out in the paper. The review confirms that (in addition the US Foreign Corruption Practices Act) many in the global community look to the UK to play a leading role in the fight against bribery and corruption.
So far so good?
Interestingly, it is the view of the Ministry of Justice that the Bribery Act 2010 has fulfilled the functions that Parliament intended it to perform in the seven years since it became law supporting this assertion with an overview of enforcement outcomes and a preliminary assessment of its performance, reporting that there have been successful prosecutions under sections 1, 2, and 7 of the Act. However, the statistics show that, whilst this statement is correct, prosecutions have been relatively few and far between (16 in total for section 1 and 2 offences and only 2 for the section 7 offence).
It also confirms that there have been no prosecutions under section 6, concerning the bribery of foreign public officials. Reasons for this are unclear.
Another issue highlighted in the paper is the fact that small and medium sized enterprises (SMEs) still lack awareness of the Bribery Act 2010, despite the production of guidance and a series of awareness raising events (at home and abroad). The paper identifies this as a key challenge for the Government together with the ability of SMEs to manage compliance. burden.
The Committee will be taking evidence throughout the summer and autumn, and will be reporting in 2019. It remains to be seen if the Committee will reach the same conclusion as the Ministry of Justice.