By Thomas Fox
The U.K. Bribery Bill, introduced in March 2009, is still on track to pass out of Parliament before the upcoming general election, expected to be in June. The Bribery Bill is a major shift in the U.K.’s overseas anti-corruption regime — and it goes even further than the FCPA.
Because so many U.S. companies have offices or operations in the U.K., or employ U.K. citizens in their world-wide operations, this legislation exposes them to new risks of prosecution.
Unlike the FCPA, the Bribery Bill has no exception for facilitation payments. It creates strict liability for the failure of a corporate official to prevent bribery, prohibits bribery not just of government officials but also private citizens, and has criminal penalties of up to 10 years prison per offense (not 5 years as under the FCPA).
The Conservative Party tried to introduce amendments that would have allowed facilitation payments “reasonable in amount,” “customary in the situation,” or the “only reasonable alternative in the situation.” Blogger Alan Holroyd reported that Clair Ward, the Parliamentary Under-Secretary of State for Justice, blasted the idea, saying the exceptions (which died in the debate) would have “driven a coach and horses through the policy objectives of the bill.”
There’s one affirmative defense for “adequate procedures.” The defense would allow a corporation to put forward credible evidence that it had adequate procedures (i.e., an effective compliance program) in place to prevent its people from committing bribery offences. The Secretary of State for Justice will be required to publish guidance on “adequate procedures” when the Bill becomes law. And the Government has signaled that it will work with the U.K. business community to develop compliance standards.
Thomas Fox is an attorney in Houston, Texas, specializing in FCPA compliance, risk management and international transactions. He can be reached at [email protected]
More information about the Bribery Bill can be found here.