The Bribery Bill proceeded through Report and Third Reading stages in the House of Commons today. Amendments proposed by the Opposition relating to the:
creation of a Government advisory service for corporates to contact to receive advice as to the adequacy of its procedures to prevent bribery
publication of an annual report on the objectives and success of the legislation
reinsertion of the need for Attorney-General consent to prosecution
expansion of those agencies who may claim a defence to the general bribery offences and
reintroduction of a pre-authorisation process to enable acts that would otherwise constitute offences to be approved by the Secretary of State
were not, in the event, moved. However, a Government amendment to clarify the power in section 10 of the Bill to institute proceedings was agreed. This amendment makes clear that the Director of the SFO and other agencies must personally take the decision to consent to a prosecution of an offence under the legislation unless for some reason they are unavailable. In that case a person who has been authorised in writing to perform this function when the Director is unavailable may, exceptionally, do so.
Therefore, the Bill’s main and most controversial provisions have remained intact, including the new corporate offence of failing to prevent bribery. It is expected that the Bill will receive Royal Assent on or before Monday, 12 April 2010. This legislation has been a long time coming, with the Law Commission first producing a draft bill in 2003 which was heavily criticised for its reliance on the agent-principal relationship that had made the existing offences so difficult to prosecute. The Law Commission went back to the drawing board and over the following years devised a new set of corruption offences which it set out in a draft Bill in November 2008. After further consultation on the proposals, the Government introduced the Bribery Bill in March 2009, substantially in the form drafted by the Law Commission.
Commenting on the legislation, the Opposition Spokesman, Mr Jonathan Djanogly, noted that “the outstanding feature of this Bill has been its delay in arrival”. He commented that while it was supported by the Conservatives, it should only be implemented after full consultation with business and after guidance on the “adequate procedures” defence had been produced by the Government. He also indicated that a Conservative Government would “explore” further the possibility of setting up a Government advisory service that business could consult on questions regarding their activities and whether their procedures were adequate. Should the Conservatives win the election, the business community may be expected to lobby for a delayed implementation of the legislation on the corporate offence and for the creation of such an advisory service.
In light of today’s developments, it is now more urgent than ever that businesses review their anticorruption procedures and policies to ensure they are “adequate”, in light of their size, sector and geographies of operation, to enable them to rely on the defence to the corporate offence, should any acts of bribery be committed on their behalf in future. Failure to do so may be seen as a failure in corporate governance or negligence on the part of the board. It could also expose the business to very substantial penalties if a corporate is found liable and cannot rely on the defence – as the recent decision in R v Innospec has intimated