Baroness Bennett of Manor Castle (Green Party) has tabled the following question for short debate:
To ask Her Majesty’s Government what plans it has to update the Bribery Act 2010 to address (1) domestic, and (2) international, developments in tackling (a) corruption, (b) bribery, and (c) undue use of influence.
At the time of writing, no date for debate has been scheduled.
This article will consider the effectiveness of existing UK bribery law, as well as other domestic and international developments aimed at addressing bribery and corruption.
How effective is UK bribery legislation?
Since its enactment, the UK’s main bribery law, the Bribery Act 2010 (the act), has been widely welcomed.
The act, which provides several bribery offences, came into force in 2011 to reform the criminal law of bribery. Section 7 of the act also makes it a criminal offence for commercial organisations to fail to prevent persons associated with them from committing bribery on their behalf. An organisation can only avoid prosecution if it can show that it had anti-bribery procedures in place.
Discussions have taken place about the effectiveness of the act. In 2018, the House of Lords Select Committee on the Bribery Act was established to consider if the act was achieving its intended purposes. The committee published its post legislative scrutiny report of the Bribery Act 2010 in March 2019, describing it as an “excellent piece of legislation which creates offences which are clear and all-embracing”. The committee’s recommendations dealt mainly with the implementation and enforcement of the act. For example, it argued that the Ministry of Justice guidance was less successful in providing small and medium enterprises with information to decide formal anti-bribery policies.
The Government responded to the post legislative scrutiny report in May 2019. Amongst other things, it said that small businesses were able to find information about how to comply with bribery legislation on the government website. It also noted that business support was available for those who require further support.
The House of Lords considered the committee’s 2019 post legislative scrutiny report in a debate on 3 February 2021. Lord Saville of Newdigate (Crossbench), the former chair of the Lords Bribery Act 2010 committee, provided an overview of the 2019 report. He said there was evidence to suggest that some people were either ignorant of the act’s provisions or were misunderstanding them. He argued that:
Greater knowledge and understanding of the Bribery Act can, in our view, only assist in combating corruption. Corruption is an evil that, if allowed to flourish, is extremely damaging to our society.
Lord Saville urged the Government to keep the committee’s recommendations under constant review.
The Advocate General for Scotland, Lord Stewart of Dirleton, responded on behalf of the Government. He said the “Government remain committed to tackling economic crime and see the Bribery Act as an important and effective tool in that endeavour”.
Are there plans to reform UK legislation?
No plans to reform the Bribery Act 2010 have been announced. However, the Government has considered other economic crime reforms over the past few years.
In 2017, the Ministry of Justice’s call for evidence on corporate criminal liability for economic crime considered the introduction of a new offence for certain economic crimes. This would be based upon the ‘failure to prevent’ offence found in section 7 of the act. The post legislative scrutiny report of the Bribery Act 2010 described the failure to prevent offence in the act as “particularly effective”.
In November 2020, the Government published its response to the call for evidence on corporate liability for economic crime. This argued that there was insufficient evidence on which to make immediate reforms to the criminal law relating to economic crime. Therefore, it committed to requesting a Law Commission review for further consideration.
The Law Commission’s review of criminal corporate liability launched in November 2020. A consultation, published on 9 June 2021 and ending on 31 August 2021, forms part of this review. The Law Commission plans to publish options for reform once the consultation responses have been analysed.
During the Lords debate on the post legislative scrutiny of the Bribery Act 2010, the minister said that the Government would keep the possibility of extending section 7 of the act into other areas under review. However, he confirmed that there were no current plans to amend the act as the Government awaits the findings of the Law Commission review.
What other UK developments have there been?
Several other developments have taken place in recent years. This includes the introduction of global anti-corruption sanctions and the publication of the economic crime plan for 2019–2022.
Global anti-corruption sanctions
In April 2021, the Government announced a new global anti-corruption sanctions regime. This formed part of the UK Anti-Corruption Strategy 2017–2022 and followed the Government’s earlier introduction of the Global Human Rights Sanctions Regulations 2020.
The regime saw the introduction of the Global Anti-Corruption Sanctions Regulations 2021. The explanatory notes to the regulations stated that their purpose is to enable the Government to impose financial sanctions and travel bans on persons involved in serious corruption.
The regulations were considered by both Houses of Parliament and received cross party support. The regime also received external support, including from US Secretary of State Antony J Blinken.
Economic Crime Plan 2019‒2022
The Government’s economic crime plan 2019–2022 includes seven actions to address fraud and money laundering. It also set out how the UK’s public and private sectors could work together to improve the UK’s response to economic crime.
In May 2021, the Government published a statement on progress made towards the economic crime plan. This said that the Government had improved its understanding of the threat of economic crime and had published the UK’s third National Risk Assessment of Money Laundering and Terrorist Financing. It also said that information sharing had improved, and its anti-money laundering requirements had been updated.
What international developments have there been?
There have been several international anti-corruption developments in recent years.
In 2017, the French Government introduced an anti-bribery law known as ‘Sapin II’. This is said to be partly based on the UK’s Bribery Act 2010 and imposes anti-corruption compliance obligations on corporations. Sapin II also required the creation of the French Anti-Corruption Agency that is responsible for preventing and detecting corruption.
On 3 June 2021, President Biden issued the Memorandum on Establishing the Fight Against Corruption as a Core United States National Security Interest. He established counter corruption as a core security interest and committed the Biden administration to:
[…] lead efforts to promote good governance; bring transparency to the United States and global financial systems; prevent and combat corruption at home and abroad; and make it increasingly difficult for corrupt actors to shield their activities.
The US also enacted the National Defense Authorization Act of 2021 in January 2021. This gave some US government departments new enforcement tools to help address corruption, amongst other things.
What recent allegations of bribery or corruption have been reported?
UK Covid-19 contracts
During the Covid-19 pandemic, the Government and other public authorities outsourced certain activities and goods, such as the supply of personal protective equipment, to the private sector on an emergency basis. Concerns have since been raised about some of the emergency contract procurement processes used during this time.
The Labour party accused the Government of “contract cronyism” by allegedly favouring companies who have political connections to the Conservative Party. The Government denies these allegations. A government spokesperson is cited by the BBC as saying that proper due diligence is carried out for all government contracts.
In November 2020, an investigation into government Covid-19 procurement by the UK’s independent public spending watchdog, the National Audit Office (NAO), found that some procurement contracts had insufficient documentation to show how the risks of procuring suppliers on an emergency basis had been mitigated. It also said there had not always been a clear audit trail to support key procurement decisions. Whilst the NAO acknowledged the exceptional circumstances that the Government had faced, it said that these issues had diminished public transparency.
Following concerns about the pandemic procurement, the Government requested a review of its activities. The Government asked Nigel Boardman, a non-executive board member of the Department for Business, Energy and Industrial Strategy and the chair of the Audit and Risk Assurance Committee, to review its procurement activity during the Covid-19 pandemic. The first Boardman report, published in December 2020, considered the Covid-19 communications procurement in the Cabinet Office. Recommendations included the introduction of a central contracts register and the recording of any declarations of interests.
The second Boardman report, published in May 2021, considered the Government’s wider Covid-19 procurement; this included the procurement of personal protective equipment, ventilators, vaccines, test and trace, and food parcels for the clinically extremely vulnerable. The report contained 28 recommendations, including the need for “stronger, more comprehensive and responsive contingency planning” in anticipation of potential future events, such as another pandemic.
The Government said the majority of recommendations from the first Boardman report had either been implemented fully or partly by the end of April 2021. It also accepted the 28 recommendations in the second report, stating that a full progress update would be provided in due course.
Global reports of corruption
Prior to the pandemic, there were several high-profile incidents of bribery and corruption reported in the media.
For example, in October 2020, Goldman Sachs agreed to pay nearly $3 billion to end a probe of its role in the 1MDB (1Malaysia Development Berhad) corruption scandal. The 1MDB scandal is described by the BBC as a global web of fraud and corruption in which billions of dollars raised for Malaysian public development projects ended up in “private pockets”, including those of the country’s former prime minister, Najib Razak. The Malaysian subsidiary of Goldman Sachs also admitted that it had paid more than $1 billion in bribes to win work raising money for the Malaysian state-owned wealth fund.
Earlier, in January 2020, Airbus were ordered to pay $4 billion in fines to French, UK and US authorities following a global corruption investigation. The investigation considered accusations made by authorities that Airbus used intermediaries to bribe public officials in several countries between 2004 and 2016 to buy its planes and satellites.
- House of Lords Library, ‘Bribery Act 2010: post-legislative scrutiny’, 28 January 2021
- House of Lords Library, ‘Magnitsky sanctions’, 18 June 2021
- House of Commons Library, Corporate Criminal Liability, 5 May 2021
- Arnold & Porter, ‘Global anti-corruption insights: Summer 2021’, 13 July 2021
Cover image by Mufid Majnun on Unsplash.