The Bribery Act 2010 has been pored over and debated ceaselessly since its passage through Parliament in April 2010.
Following the recent issuance of the Ministry of Justice (MoJ) guidance, it is now set to enter into force on 1 July.
The act has already succeeded in placing anti-corruption efforts high on the political agenda and the radars of corporate directors. Ethical companies have generally welcomed it and in particular the “adequate procedures” defence that it provides to shield companies against the unauthorised actions of rogue employees or business partners.
While drawing as much comfort as possible from the permissive tone of the MoJ guidance on issues ranging from the jurisdictional reach of the act to entertaining business contacts and foreign public officials, companies must, of course, remain committed to updating and maintaining policies and procedures that respond to the corruption risks they face. For some global companies, those challenges are considerable.
If the wider aim of the act is to bring about behavioural change, the early indications are encouraging. Its longer term success will be assured, however, only if its introduction is backed by robust enforcement against the real offenders.
The SFO is tasked with leading enforcement of the act. Over the past few years, using existing legislation, the SFO has shown an increased appetite for directing efforts and more of its diminishing overall resource from other areas under its remit to the fight against bribery and other forms of corruption.
Despite the SFO’s recent track record in anti-corruption enforcement, the Government has signaled its intention to disband it in favour of a new model for tackling complex economic crime. In addition, the director of the SFO, Richard Alderman, has announced that he will retire in 2012. The structure of the new body or bodies to be tasked with anti-corruption investigation and prosecution is as yet unknown and is the subject of increasingly vociferous lobbying and debate across government.
What is clear, though, is that whatever anti-corruption enforcement model emerges, it must be mandated to maintain and intensify the UK’s recent focus on bribery and corruption. It must also be appropriately resourced and given the enforcement tools it needs to deal sensibly and proportionately with the spectrum of corporate criminality over which it will have jurisdiction – from companies that are endemically corrupt to those forced to deal with an isolated instance of corruption perpetrated in their name.
Currently, UK prosecutors can proceed by way of a criminal prosecution or, when that is not pursued, may seek to recover criminal property by means of a civil recovery order. There is no in-between: the SFO has no power to impose fines or defer prosecutions.
By contrast, the US Department of Justice has been successful in its use of tools such as the deferred prosecution agreement when dealing with companies that have reported wrongdoing and committed to strengthening their anti-corruption policies and procedures. The US enforcement efforts are set to be further bolstered by the arrival of the new and generous Dodd-Frank whistleblower bounty provisions.
Commentators have described the Bribery Act as far reaching, revolutionary and even draconian. In reality, it is a widely welcomed new weapon in the UK’s armoury with which to prosecute those who rely on bribery to secure an unfair advantage over their ethical competitors. It will take its place alongside other sharp implements such as the Proceeds of Crime Act 2002. But the success or failure of the Bribery Act in propagating sustainable behavioural change will depend, in large measure, upon the level of resource and commitment that is directed at its enforcement.