After several years of criticism over lax enforcement of
existing anticorruption laws, and more than a decade of failed efforts to pass
similar legislation, the UK is on the verge of passing comprehensive
anti-bribery legislation. The UK Bribery Bill is modelled after but reaches beyond the United States'
Foreign Corrupt Practices Act (FCPA), legislation that has in the past few
years been enforced aggressively by the US government against both US and
foreign companies. The expected passage of the now pending Bribery Bill would
give the UK a strong platform upon which to build new anticorruption
enforcement efforts. If enacted during this session of Parliament, the Bribery
Bill would come into effect in 2010, and replace a patchwork of existing
anticorruption laws and common law offences that date to World War I and
before, which have become outdated.
The general structure of the Bribery Bill's anticorruption
regime is familiar to anyone who has experience with the FCPA, including
penalties for the payment or offer of illicit inducements to foreign government
officials, and for failure to have adequate controls in place to detect and
remediate corruption issues as they arise. However, the UK has taken that model
several steps further.
Among the Bribery Bill's four offences are bribing a foreign
official, which tracks the Organisation for Economic Co-operation and
Development's (OECD) Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions and is similar to the FCPA's anti-bribery
provision. Two of its other offences are making and taking a bribe. These
prohibit offering or accepting a "financial or other advantage" intended
as a reward for performing or to cause a person to perform a function or
activity improperly. This includes government and non-government functions and
in some instances extra-territoriality, meaning that purely commercial
business-to-business activities inside and outside the UK can fall within its
Perhaps the most striking feature is the Bribery Bill's
fourth offence, which creates a new strict liability offence of failure by a
commercial organisation to prevent a bribe being paid for or on its behalf.
Under this offence, a company has committed a crime if a person acting on its
behalf bribes someone in connection with company business in an effort to "obtain
or retain business" for the company or to "obtain or retain an advantage
in the conduct of business" for the company. This offence applies to both UK
corporations or partnerships, and corporations or partnerships doing business in
the UK. Companies may also be held criminally liable for offences committed by
individuals acting on the company's behalf, including employees, agents and
other third party representatives. Further, officers and directors who consent
to or assist in a bribery offence may be held liable for that offence.
However, it is a defence if the company can prove it had an
adequate system in place to prevent bribery. The Ministry of Justice will
provide guidance to companies as to what constitutes adequate anti-bribery
procedures and will do so prior to the enactment of the Bribery Act 2010, in
order to encourage adoption of robust compliance programmes within such
A more detailed review of the Bribery Bill can be found
For more information, or to discuss anticorruption related representation by
McGuireWoods LLP, please visit our
International Fraud/Anticorruption practice.