The Bribery Act transformed business for good
As the Bribery Act 2010 approaches the 10th year since it came in force on 1 July, it is widely recognised as an excellent piece of legislation which transformed the corporate compliance landscape.
The Act simplified the law of bribery by making it clear that bribery arose when a person was given a personal advantage to do something improper in the course of their employment, business or public functions. Essentially it is an offence for an employee to receive a personal reward from a person other than their employer for engaging in misconduct.
The Bribery Act was not intended to prohibit routine corporate hospitality but it has made businesses think more carefully about what is being given to employees of their customers and why. There are undoubtedly more controls in place and some companies have gone further than the law requires and either prohibited the receipt of corporate hospitality or made the approval process so challenging that it is just not worth the hassle. Mostly, corporate hospitality remains alive and kicking and the downside of there being greater controls are offset by reducing the risk of comprising an employee’s integrity.
The main aim of the Act was to plug a gap in the law which meant that a British business only committed a bribery offence if its directors knew of and agreed to bribery. Previously, British businesses could engage an overseas contractor to help the business secure contracts and, as long as the business did not ask too many questions, the contractor could engage in bribery without the British business committing an offence.
The Act revolutionised corporate criminal law by making businesses criminally liable if they failed to prevent an act of bribery by persons associated with them, such as an overseas contractor. Corporate failure to prevent bribery was later extended to the facilitation of tax evasion and it has been adopted as a new model of corporate criminal liability in other countries.
Importantly, it was recognised that this new legislation would achieve little without robust enforcement. When the Act came into force, the Crown Office and Procurator Fiscal Service (COPFS) announced a new initiative which offered business operating in Scotland and which self-reported an act of suspected bribery, the opportunity to resolve the case on a non-criminal basis. To date, six Scottish-headquartered businesses which self-reported to COPFS have concluded civil settlements amounting to £15 million. The money has been used to fund social projects and other goods causes in Scotland. Importantly, these companies have improved their compliance programmes and have set an ethical standard that other Scottish companies now aspire to.
I have defended businesses and individuals in criminal investigations across the UK and overseas, represented self-reporting companies determined to root out misconduct and to make unethical business conduct a thing of the past, and worked with companies to help them achieve their compliance ambitions.
Rarely has a piece of criminal legislation achieved so much good. I wish the Bribery Act a happy birthday.