International - Written by on Saturday, January 15, 2011 3:29 - 4 Comments

The Bribery Act and the review by No. 10: Will pigs fly? We don’t think so.

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Less than three months until the Bribery Act comes into force, on Thursday 13th Janaury 2011, the London Evening Standard reported in an exclusive that No.10 Downing Street was undertaking a review of the Bribery Act.

In its editorial on the same day it commented: “Not before time: when the bill was hastily passed into law last April, it went through without any set-piece debate.”

On Thursday we also interviewed Vivian Robinson QC General Counsel of the SFO. We introduced Mr. Robinson saying that in our view changes (if any) to the Bribery Act would be limited.

Why?

Background: Don’t believe everything you read

Contrary to claims it was rushed through the genesis of the Bribery Act is perhaps one of the most pored over pieces of UK legislation of all time.  This is hardly surprising.  It replaces legislation everyone agrees is not fit for purpose from Victorian times.

This is compounded by the UK’s agreement in 1998 to bring its anti-bribery laws and its enforcement stance into line with its international obligations under the OECD Anti-Bribery Convention. Something which the UK failed to do for 14 years and for which it has received international criticism. 

As late as 2009 the OECD made a series of recommendations, which the UK signed up to, the thrust of which was broadly that countries should get on with it and deal with both government and commercial corruption (including facilitation payments). This is what the Bribery Act does.

In short prior to the passing of the Bribery Act the UK’s anti-bribery laws and the UK’s stance on enforcement were widely considered to be an embarrassment.

The prelude to the new Bribery Act has incorporated numerous draft bills, reviews, reports and consultations etc. The list says it all:

The Salmon Commission 1974; The Committee on Standards in Public Life 1995; The Law Commission Report 1998; Draft Corruption Bill 2003; Joint Committee on the Draft Corruption Bill and Government Response 2003; Consultation Paper 2005; Corruption  Bill 2006; Law Commission Consultation 2007; the Final Law Commission Report and Draft Bribery Bill 2008 and the Report of the Joint Committee on the Draft Bribery Bill 2009 with the governments response.

In the run up to the passing of the Bill there was plenty of parliamentary debate around the proposed new law as Hansard reveals. As Monty Raphael puts it in his book Blackstones Guide to the Bribery Act 2010: “The passage of the Bill was marked by extensive debate”.

So then.  Not so hastily passed.

Much ado about nothing?

It is worth deconstructing what even the papers are saying about the government review.

A look at the headlines could leave you to believe that this is an emergency review brought about by the press lobby and the late breaking realisation of what the new “hastily” passed law could stop.

We know the new law was not “hastily” passed.  So, why the review of the legislation which the Evening Standard reported “may” now go before a “star chamber” chaired by Chancellor George Osborne and Business Secretary Vince Cable.

The Evening Standard reported on Thursday: “A No. 10 spokesman said: ‘It is being looked at in the context of the growth review [into burdens on businesses].'” [our emphasis]


Q & A

Q. What *is* the “Growth Review”?

A. It is a general widely publicised Growth Review announced by George Osborne and Vince Cable back in November 2010 (after the passing of the Bribery Act) of all government departments with a view to cutting red tape for business to promote growth.

Q. What about the “Star Chamber”?

A. The Star Chamber goes hand in hand with the Growth Review – as reported in this article in the Independent published shortly after the announcement of the Growth Review.

What No.10 Downing Street actually said

On Friday morning (after a wave of news stories in the news papers and on the internet following on from the Evening Standard’s exclusive) the issue was dealt with at the No. 10 Downing Street Daily Press Briefing.

This is what the briefing records:

“Bribery Act

Put that the Bribery Act was being reviewed as part of the growth review and asked if that meant the Government was preparing to soften some of its provisions, the Prime Minister’s Spokeswoman (PMS) said that the growth review was looking at all areas of government policy to see what we could do in order to remove obstacles that would help investment and economic growth.”

However, what is of more interest is what the spokesman went on to say adding to what had been reported overnight:

[Bribery still off the agenda]

“Asked if the Prime Minister was sympathetic to complaints regarding the act, the PMS said that bribery should play no part in winning investment or business, and we stood by all the other OECD countries that had similar anti-bribery laws.  Clearly we wanted to be business friendly: the aim of the growth review was to ensure that we tried to remove obstacles for investment, but at the same time ensure that we didn’t promote activities we didn’t abide by, such as bribery.”

The spokesman reportedly added that the ministry will be publishing guidance to help commercial organisations put practical procedures in place that help to prevent bribery later this month.

A link to the briefing notice is here.

Our view: Look to the USA

None of this looks like there will be any significant change as a result of the Growth Review.   We like many others hope that the guidance will address some of the areas where additional clarity is required.  Our submission on the consultation (which closed in November) is here.  We are told to await guidance which is expected at the end of the month.

We have been told some of the delay may be as a result of the requirement for ministerial sign off…

Whatever happens it is hard (if not impossible) to see how the UK government would implement a law which is weaker than the US Foreign & Corrupt Practices Act where fines now routinely run into tens and in some cases hundreds of millions of dollars.  Combined with joint investigations penalties can exceed a billion dollars (for example Siemens).

Those familiar with the history of the introduction of the FCPA in 1978 will know that complaints and warnings from US businesses before its introduction were basically the same as those now being made in the UK.

We expect a similar outcome.  The FCPA was introduced.  The rest is history.

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