Bribery Act 2010: Post-Legislative Scrutiny

Eren Waitzman

On 3 February 2021, the House of Lords is due to debate the report from the Select Committee on the Bribery Act 2010, The Bribery Act 2010: Post-Legislative Scrutiny (HL Paper 303, session 2017–19).

Bribery Act 2010

In November 2009, the Bribery Bill 2009–10 was introduced in the House of Lords. The purpose of the bill was to reform and update bribery and corruption legislation. This included creating offences for: offering, promising or giving of an advantage (bribing another person) and requesting, accepting or agreeing to receive an advantage (being bribed). Both offences carry the same maximum penalty of ten years imprisonment and/or an unlimited fine for individuals, with offences relating to commercial organisations carrying a maximum penalty of an unlimited fine. In addition to the UK, the jurisdictional scope of these offences covers those which took place either partly or entirely outside the UK, providing that the alleged perpetrator of the offence is a British citizen or considered to have a “close connection” with the UK. This includes citizens of British Overseas Territories and companies incorporated in the UK. Similarly, the act also includes foreign nationals residing in the UK.

The bill received royal assent on 8 April 2010. The act came into force on 1 July 2011.

House of Lords Select Committee on the Bribery Act 2010

On 17 May 2018, the House of Lords Select Committee on the Bribery Act 2010 was established to conduct a post-legislative review of the legislation. As part of this, the House of Lords recommended that the committee focus on several areas around bribery, including whether the act had led to a “stricter prosecution of corrupt conduct, a higher conviction rate and a reduction in such conduct”.

During its review of the act, the committee received written evidence from 108 people and bodies. In addition, the committee held 23 oral evidence sessions, hearing from 52 witnesses.

Committee report

The committee published its report The Bribery Act 2010: Post-Legislative Scrutiny on 14 March 2019. In its assessment of the act, the committee noted that not one witness had “major criticisms” of the legislation. Similarly, the committee stated that overall:

The structure of the act, the offences it created, its deterrent effect, and its interaction with deferred prosecution agreements, are only some of the aspects which have been almost universally praised.

However, the committee did express a concern at the “slow pace” of bribery investigations, with a number of witnesses criticising the time it had taken for bribery charges to be brought and cases to reach trial.

Consequently, the committee stated that its recommendations dealt “mainly” with the implementation and enforcement of the act. In the report, the committee made several conclusions and recommendations around these areas, some of which are summarised below:

The committee recommended that the Director of the Serious Fraud Office and the Director of Public Prosecutions publish plans outlining how they will speed up investigations into bribery and improve communication with those placed under investigation for bribery offences.
It contended that a lack of awareness and training in the act may be a “contributing factor” in the lack of bribery prosecutions. Therefore, it called on the Government to provide resources for the City of London Police’s Economic Crime Academy to expand its anti-bribery training programme and to ensure that every police force had at least one senior specialist officer who has undertaken such training.
In addition, the committee argued that the current requirement for prosecutions to be initiated only with the written consent of one of either the Director of Public Prosecutions, the Director of the Serious Fraud Office, or the Director of Revenue and Customs Prosecutions was “too rigid”. As a result, it called for subsections 3 to 7 of section 10 of the Act to be repealed and replaced with a provision allowing Directors to delegate the power to initiate proceedings to officials, as they see fit.
It also recommended that the Government ensured that UK companies are provided with support on corruption issues in the countries that they export to. This support should be provided by “properly trained” officials. The committee also recommended that even the smaller embassies should have at least one official who is an “expert” in local customs or cultures, or who can contact officials of foreign government departments “on behalf of companies facing problems in this field”.
In addition, the committee called on the Government to improve the situation for small and medium enterprises that may encounter difficulties complying with the act by taking steps to inform them of Ministry of Justice Guidance by circulating such guidance to Chambers of Commerce and trade associations.

Government response

On 13 May 2019, the Government published its response to the Committee’s report. Some of the responses to the aforementioned recommendations are as follows:

Bribery investigations

With regard to the committee’s concern surrounding the “slow pace” of bribery investigations, the Government noted that several measures had been introduced within the Specialist Fraud Division of the Crown Prosecution Service to “ensure [that] cases progress effectively”. This included bribery cases now having two allocated prosecutors; and legal managers being provided with weekly data on pre‑charge cases, such as bribery, to ensure cases are “regularly reviewed and progressed.”

Training on the act

Addressing the committee’s recommendation on awareness and training of the act, the Government recognised that there was a “need” to improve awareness of offences among police forces under the act and stated that it had committed in the 2017 UK Anti-Corruption Strategy to strengthen law enforcement capacity and capability through a counter-bribery and corruption training programme. However, the Government stated that there was not “enough evidence” to commit to providing additional resources to the City of London Police’s Economic Crime Academy to expand its training programme.

Consent to prosecution

In response to the committee’s recommendation to repeal and replace section 10 of the act, the Government stated that it did not agree with doing so. In addition, the Government noted that neither the Crown Prosecution Service or Serious Fraud Office agreed that the consent requirements were “too rigid or burdensome” and that they could “see no current need to delegate this particular statutory power”.

Supporting companies on corruption issues

The Government welcomed the committee’s recommendation that support should be provided to companies on corruption issues in the countries that they export to. As part of this, the Government said that the Department for International Development’s Business Integrative Initiative (BII) was undertaking pilot work in Kenya, Mexico and Pakistan. According to the Government, the BII aims to “identify appropriate ways to support UK companies operating in these markets” and will provide new guidance and tools to staff in these companies.

Guidance for small and medium enterprises

Turning to the committee calling for guidance for these enterprises, the Government noted that small businesses could find information on bribery on its ‘anti-bribery policy’ webpage, which details the Government’s anti-corruption policy and includes a copy of the guidance for the 2010 act. In addition, small businesses could seek guidance about anti-bribery policy by contacting the Business Support Helpline in England. The Government also stated that similar phone services were available to businesses in Scotland, Northern Ireland and Wales.

Recent Developments

Since the Government responded to the Committee’s report it has undertaken a number of activities to tackle fraud and bribery. This included publishing its second annual update to the 2017 UK Anti-Corruption Strategy in July 2020. The update detailed some of the progress the Government had made against the commitments set out in the strategy, which included:

establishing the National Economic Crime Centre in 2018, which worked with the private sector, including banks, to publish a Public-Private Threat Update on Money Laundering, Fraud and International Bribery;
creating a Counter-Fraud and Corruption Profession across the Civil Service, based on professional standards and competencies; and
creating a “dedicated anti-bribery and corruption due diligence team” within UK Export Finance to further strengthen existing anti-bribery due diligence capability.

In addition to the annual update to the 2017 strategy, since 2019, the Government has published anti-corruption newsletters. These newsletters summarise the Government’s recent actions to tackle corruption in the UK and abroad. In its December 2020 newsletter, the Government detailed its anti-corruption work from the year, including: law enforcement activity and a report on the UK’s implementation of the UN Convention Against Corruption.