Bribery Act 2010 Committee established

04 July 2018

What is happening?

A House of Lords Select Committee has been established to review the UK Bribery Act 2010 (UKBA).  This is a key part of the act’s post-legislative scrutiny, the process for which was set out by the Government in 2008.  To support the review a call for evidence has been published, with submissions welcome on any UKBA topic.  The Ministry of Justice (MoJ) has published a background Memorandum on the UKBA’s wording, objectives and enforcement history, along with the MoJ’s own assessment of its success.

What will the Committee be considering?

Effectiveness of the UKBA is the overarching topic, which includes its impact on prosecution activity, conviction rates and the level of corrupt conduct, as well as whether it is having any unintended consequences.  The Committee is considering the UKBA’s international impact, how it compares to legislation in other countries, and whether any lessons can be learned.

Generally, post-legislative reviews are asked to focus on whether laws have fulfilled their policy objectives, rather than questioning policy itself. Initial statements from the Lords regarding the Committee cited pre-UKBA warnings from the Confederation of British Industry and others that its demanding requirements (by some international standards) could negatively impact the competitiveness of British business abroad (see here paragraph 30). This concern is not mentioned in their more recent call for evidence, which may be an acknowledgment of this more narrow remit.

Impact of the UKBA on Small and Medium-sized Enterprises (SMEs) has been singled out for special attention, in particular regarding the usability of the MoJ’s statutory UKBA guidance.  This issue has seen divided views.  In 2013 the SME Select Committee suggested that, even with the benefit of the MoJ’s statutory Guidance the UKBA’s application had been “met with confusion and uncertainty”.  In 2015 the MoJ and Department for Business, Innovation & Skills (BIS) commissioned more detailed research which found in contrast that SME’s generally seem to have taken a “proportionate, pragmatic” approach.  In March 2018, a jury trial offered further insight regarding SMEs in the first contested s7 UKBA ‘adequate procedures’ case (R v Skansen Interiors Limited).

Deferred Prosecution Agreements (DPAs) as they affect bribery is an area the Committee has specifically been tasked with considering, as part of a wider review of UBKA enforcement.  This is timely given that, since their introduction in February 2014, three of the four DPAs so far concluded are corporate bribery cases, with all four relating at least in part to the corporate offence of failure to prevent bribery (s7 UKBA).  Key questions on DPAs in the call for evidence include whether their introduction for UKBA offences has been a positive development, and whether they have been used appropriately and consistently.

What next?

Evidence sessions are due to begin before 20 July 2018.  The call for evidence response deadline is on the 31 July 2018.  The Committee’s finalised report is due by the end of March 2019.  We will be monitoring Committee developments closely and will be providing updates in later blogs.

 

Chris Cartmell

Chris Cartmell | Senior Manager (Solicitor), Regulatory and Commercial Disputes
Profile | Email | +44 (0) 7808 035544

Tom Dale

Tom Dale | Senior Associate (Solicitor), Regulatory and Commercial Disputes
Profile | Email | +44 (0) 7730 597 566

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