The Bribery Act 2011 – Why You Cannot Afford to Ignore It
The Bribery Act 2011 has far-reaching implications for any company (for example retail businesses and catering companies) which does business in the UK.
What the Act Entails
The Bribery Act 2011 reforms criminal law to provide a new, comprehensive scheme of bribery offences that will enable courts to more effectively respond to bribery at home or abroad. In essence, the Act:
• Provides a more-effective legal framework to combat bribery in public and private sectors.
• Replaces the fragmented and complicated offenses in the Prevention of Corruption Acts 1889-1916.
• Creates two general offenses which cover 1) offering, promising, or giving advantage and 2) requesting, agreeing to receive, or accepting advantage.
• Forms a new discrete offense relating to bribery of a foreign public official.
• Creates a new offense relating to failure to prevent a bribe being paid either for or on behalf of a commercial organisation.
• Requires that the Secretary of State publish a procedures guide that commercial organisations can put into place to prevent bribery taking place on their behalf.
• Aids in addressing the threat that bribery poses to economic progress and development.
The Bill, which was published in draft on 25 March 2009, received Royal Assent on 8 April 2010.
Why You Cannot Afford to Ignore It
The implications of the new Act are wide spread. For instance:
• The Bribery Act makes it an offense to receive as well as give a bribe.
• Bribery of private persons and companies is criminalised.
• Under the Act, there is no need to prove corrupt intent.
• Corporations are held liable if they fail to prevent bribery.
• No exemptions are provided for facilitation payments; no defence for promotional expenses.
The penalties are severe, with the maximum penalty for an individual being 10 years imprisonment and/or a fine, and the maximum penalty for a corporation is an unlimited fine. Those convicted can also see collateral damage, such as director disqualifications, asset confiscation, and debarment from public contracts.
The Act also takes a stance of zero tolerance, which has given rise to a number of concerns. For instance, corporate hospitality, gifts, and entertainment could be construed as constituting advantages given with the intent of inducing or rewarding performance. Another concern is that the offence of bribing a foreign public official includes facilitation payments.
While the government is required by the Act to provide guidelines to commercial organisations, the draft, which is already available, is focussed at a high level. Therefore, it will up to corporations themselves to determine what is required, beginning with a risk assessment and creation of clear anti-bribery policies and procedures, especially in areas like hospitality, gifts, and facilitation payments.
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