NFPBS News
Bribery Act 2010
What was wrong with the old legislation? Following agreement by both Houses on the text of the Bill it received Royal Assent on 8 April. The Bill is now an Act of Parliament (i.e law), although not expected to be in operation until Autumn 2010. The new Act replaces old and fragmented legislation with a modern and consolidated bribery law, based on the recommendations of the Law Commission. Individuals convicted under the new legislation may face an unlimited fine and/or imprisonment whilst businesses face unlimited fines. There are four basic offences identified by the new Act. * active bribery (an individual or company bribing someone) * passive bribery (being bribed) * bribery of a foreign public official * corporate failure to prevent bribery The final option is possibly the most controversial as an individual, “associated” with a company, could offer a bribe to secure or retain business without the knowledge of the company. The definition of “associated” is wide enough to guarantee insomnia for your Chairman! Indeed the organisation does not need to be aware of the activities to be found guilty because failure to prove adequate procedures are in place would be sufficient to secure a conviction. “Commercial organisations” covered by the legislation include any body incorporated (or partnership formed) under UK law which carries on as a business together with any other corporate body or partnership (wherever incorporated) which carries on business in the UK – like a trade association, for instance. There are perceived to be three principal defence strategies: * necessary to the efficacy of the intelligence services (can’t see that one applying to too many defendants!) * where the potentially corrupt act is authorised in writing by some other legislation, possibly abroad * the ‘adequate procedures’ defence – if you show you had adequate anti-corruption procedures in place to prevent bribery at the time an offence was committed, that is sufficient defence to an allegation of failure to prevent an act of bribery. Looking at the alternative defences, it would seem prudent for any organisation to develop its anti-bribery policy document straight away – and before it is needed!