An ad hoc select committee on the Bribery Act 2010 (post-legislative scrutiny)
24.Prior to the Bribery Act 2010 the law of bribery had not been substantially changed for nearly a century. The Act created two basic crimes of giving and receiving bribes. The crime of bribery is described in section 1 as occurring when a person offers, gives or promises to give a “financial or other advantage” to another individual in exchange for “improperly” performing a “relevant function or activity”. Section 2 covers the offence of being bribed, which is defined as requesting, accepting or agreeing to accept such an advantage, in exchange for improperly performing such a function or activity. The “relevant function or activity” element is explained in Section 3—it covers “any function of a public nature; any activity connected with a business, trade or profession; any activity performed in the course of a person’s employment; or any activity performed by or on behalf of a body of persons whether corporate or unincorporated”. This encompasses activities performed outside the UK, even activities with no link to this country.
25.Section 6 for the first time constituted the crime of bribery of foreign public officials, in line with the OECD Anti-Bribery Convention. A person will be guilty of this offence if they promise, offer or give a financial or other advantage to a foreign public official, either directly or through a third party, where such an advantage is not legitimately due. Unlike with general bribery offences, there is no requirement to show that the public official acted improperly as a result. The offence under Section 6 only applies to the briber, and not to the official who receives or agrees to receive such a bribe.
26.Section 7 created the broad and innovatory offence of the failure of commercial organisations to prevent bribery on their behalf. This applies to all commercial organisations which have business in the UK. The offence does not apply only to the organisation itself; individuals and employees may also be found guilty.
27.The Act applies to the whole of the UK and has a wider territorial scope, since it also applies to acts of bribery committed overseas by any British citizen or any other person with a close connection to the UK. Similarly, the corporate offence applies to a UK incorporated entity or any overseas entity that carries on business or part of a business in the UK.
28.The Act applies only to conduct after its entry into force on 1 July 2011. Although there are still prosecutions under the earlier legislation for conduct prior to July 2011, nearly all corrupt conduct is now prosecuted under the Bribery Act, and a number of cases have already reached the Court of Appeal. We therefore consider that it is now an opportune time for post-legislative scrutiny.
29.A principal issue for a Committee to consider would be whether the Act has, as intended, led to stricter prosecution of corrupt conduct, a higher conviction rate, and possibly a reduction in such conduct. Prosecutions have to be authorised in person by the Director of Public Prosecutions or the Director of the Serious Fraud Office, who could both be witnesses.
30.The Bribery Act has been described as one of the toughest anti-corruption measures in the world. The CBI and others warned that UK businesses would be at a competitive disadvantage in obtaining foreign contracts because conduct which was lawful under equivalent foreign legislation might be unlawful under the stricter provisions of the Bribery Act. A Committee could take evidence from the multi-national companies and business groups operating in international markets to see whether these warnings have been borne out.
31.Another area for scrutiny would be awareness of the Act amongst small and medium enterprises (SMEs). In 2013 the House of Lords Select Committee on Small and Medium Sized Enterprises called for post-legislative scrutiny of the Act “at the earliest opportunity” because of “confusion and uncertainty” about its application. In its May 2013 response to the Committee’s report, the Government said that it would be premature then to conduct full post-legislative scrutiny of the Act, but undertook to “solicit more detailed customer feedback on this issue and report back to the Committee.” It did not do so. SMEs could be asked for their views five years on.
32.Another issue, not strictly arising under the Act but closely related to it, is Deferred Prosecution Agreements (DPAs). Introduced by the Crime and Courts Act 2013, a DPA is an agreement reached between a prosecutor and an organisation which could be prosecuted, which allows a prosecution to be suspended for a defined period provided the organisation meets certain specified conditions. They enable a corporate body to make full reparation for criminal behaviour without the collateral damage of a conviction. The agreements are concluded under the supervision of a judge. DPAs are likely to be an increasingly common way of resolving conduct by corporations which would, if prosecuted, be for offences under the Bribery Act. The Committee could consider DPAs as they affect bribery without the need for an express mention in the terms of reference.
33.We recommend the establishment of an ad hoc post-legislative scrutiny committee to consider and report on the Bribery Act 2010, to report by the end of March 2019.