The Organisation for Economic Cooperation and Development (“OECD”) Working Group on Bribery recently published its Phase 3 report "Implementing the OECD Anti-Bribery Convention in the United Kingdom”.
The report provides a comprehensive review of the current UK response to its obligations regarding implement of the Anti-Bribery Convention. It evaluates the effectiveness of the Bribery Act 2010 and the Government's published Guidance.
While the OECD does commend the UK on many points, including its significant increase in foreign bribery actions, it sets out the areas in which it finds the UK lacking. In summary the OECD main concerns include:
- There has been an increased use of civil recovery orders - meaning that there is less judicial oversight and the civil recovery process is much less transparent than criminal plea agreements;
- The OECD found that, due to the low levels of information regarding settlements being made publicly available by UK authorities, there cannot be a proper assessment of whether the sanctions imposed are "effective, proportionate and dissuasive";
- The OECD found that UK Overseas Territories have been slow to implement the convention and, as some are offshore financial centres, this raises the risk that they are used to facilitate corrupt transactions;
- The OECD noted that while the Bribery Act 2010 Guidance to Commercial Organisations has increased awareness of foreign bribery issues it requires further clarification around "reasonable and proportionate hospitality" and "promotional expenditures" especially in regard to industry norms; and
- The OECD is concerned that the Serious Fraud Office has entered into confidentiality agreements with defendants that prevent the disclosure of key information after bribery and corruption cases are settled which reduces public awareness of these matters and transparency overall.
What is clear from the report is that the UK still has much work to do to comply with the Convention, and that the Bribery Act is not sufficient to comply. Businesses should note that the Guidance may be reviewed in light of the report's recommendations and compliance with the Bribery Act is an ongoing process.
The report can be found in full here: Phase 3 report