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Under the Act, as well as the offences of offering or giving and requesting or receiving bribes, the offence of bribing foreign public officials and a strict liability corporate offence of failing to prevent bribery were established. The Act is an extremely wide reaching and stringent piece of legislation. It applies to any business with a UK connection and to all UK citizens, wherever in the world the bribery takes place.
The only defence to the corporate strict liability offence of failing to prevent bribery by associated persons (which is a very widely defined category) is to establish that the organisation had in place "adequate procedures" to prevent bribery. This "failure to prevent" offence was the first emanation of this type of corporate strict liability offence. It has since been followed by offence of failure to prevent the criminal facilitation of tax evasion in the Criminal Finances Act 2017 and there are indications there will be further such offences brought in to deal with other forms of economic crime. The HLSC's conclusions as to how the Act is operating and any recommendations they may make to water it down or bolster it, including in relation to the procedures defence, may therefore have a significant impact on how further legislation in this area develops.
The HLSC opened a call for evidence in June and has heard from the Government and anti-corruption NGOs. As the HLSC is considering the impact of the Act on business and whether the guidance could be improved, using our knowledge obtained from assisting numerous businesses to implement compliance programmes, we have today made written submissions (a link to which is included at the bottom of this page). We have set out many of the failings of the current guidance (such as the lack of clarity regarding which businesses fall within the Act's jurisdiction and who is considered an associated person) and the challenges facing business in implementing and monitoring compliance with adequate procedures (particularly in relation to those over which it exerts little or no control).
We have made recommendations to the HLSC to amend the guidance to clarify the key concepts and provide more practical help, to set a de minimis level under which gifts and hospitality payments would not be considered bribes, and to make clear that it may be reasonable not to put in place any adequate procedures when the business risk is very low (which is an approach which has been included in the guidance to the Criminal Finances Act 2017). We consider that all of these recommendations should make the Act less burdensome and more workable for business, and SMEs in particular. This is because, in our view, much of the burden on business has been caused by uncertainty about what procedures need to be put in place to take advantage of the defence of adequate procedures. Business has naturally taken a cautious approach to this which has resulted in additional bureaucracy and cost which could be avoided with clearer guidance.
Please click here to go to the HLSC website.
Please see attached Fieldfisher Response to Bribery Act Call for Evidence here