The UK Bribery Act 2010: contents and implications
| Published date | 29 December 2011 |
| Date | 29 December 2011 |
| DOI | https://doi.org/10.1108/13590791211190713 |
| Pages | 37-53 |
| Author | Peter Yeoh |
| Subject Matter | Accounting & finance |
The UK Bribery Act 2010:
contents and implications
Peter Yeoh
School of Law, Social Sciences and Communications,
University of Wolverhampton, Wolverhampton, UK
Abstract
Purpose – The purpose of this paper is to assess the implications of The UK Bribery Act 2010 for
businesses and in particular those with cross-border activities.
Design/methodology/approach – This study relies on documentary research and using both
primary and secondary data drawn from the public domain.
Findings – The study suggests why UK businesses and in particular those conducting cross-country
transactions should take the implications of this law seriously as the enforcement agency in the UK
transforms to a more active mode. It also suggests why, despite some severe criticisms, the UK does
not lag behind in the global fight against corruption.
Research limitations/implications – This is an exploratory review paper to promote empirical
research in a business sensitive theme.
Practical implications – Insights from the study should prompt business leaders to give sufficient
attention to those areas with high risks of falling within the ambit of the Act.
Social implications – The study’s findings reinforce the ethical dimensions of cross-border
business practices.
Originality/value – This study uses the implications of the new UK Act to draw attention to the
business community that with the passing of the Act business cannot be as usual; that compliance to
the Foreign Corrupt Practice Act would be insufficient; and that despite controversies over
implementation delays, the UK does not lag behind in the fight against corruption worldwide.
Keywords United Kingdom,Legislation, Bribery, Corruption,Financial crime, White-collar crime
Paper type Research paper
Introduction
A few years back the UK was out by the Organisation for Economic Cooperation and
Development (OECD) for failing to comply satisfactorily with its obligations under the
Economic Co-Operation and Development (OECD) Convention on Combating Bribery of
Foreign Public Officials in cross-border commercial and related activities.
The unresolved difficulties aggravated when the UK came under more severe
criticisms for its handling of the BAE System Plc’s highly controversial case which
ultimately became the turning point triggering the acceleration of a more comprehensive
legal response from the UK for dealing with bribery matters across borders. This came
about in the form of the Bribery Act 2010 (BA 2010) as passed on 8 April 2010.
With the change of government, implementation of BA 2010 is now delayed a second
time with speculations that this was due to pressures from the business sector.
As implementation of the final law is being further deliberated, it could be timely to
reflect on the implications of the contents of this law for all businesses in the UK and in
particular those with international profiles. This research would trace briefly the
formation of BA 2010 especially the reasons for the UK’s late responses to its global
obligations. This paper will further seek to analyse especially those kinds of bribery
The current issue and full text archive of this journal is available at
www.emeraldinsight.com/1359-0790.htm
The UK Bribery
37
Journal of Financial Crime
Vol. 19 No. 1, 2012
pp. 37-53
qEmerald Group Publishing Limited
1359-0790
DOI 10.1108/13590791211190713
issues which are likely to result in serious legal repercussions as well as those with
significant implications for corporate integrity and reputation. It would also in the
process provide some suggestions for businesses on the implementation of various
procedures to avoid being trapped in costly situations not just in financial terms but also
careless and/or unintended brushes with the law.
UK bribery law development
Laws designed to deter bribery and corruption which are harmful to development and a
source of criminal activities (Gottschalk, 2010) are addressed to some extent in the UK by
the 1906 and 1916 Prevention of Corruption Acts, and the Public Bodies Corrupt Act of
1989. This of course does not include the common law bribery offence and related
measures. Still even when taking all these into considerations they are perceived to be
outdated, unclear and lacking in scope. Basically, this is because such laws are
applicable only to corporations subject to UK laws and unincorporated institutions and
overseas subsidiaries are excluded. There are also enforcement difficulties issues like the
prosecution needing to prove that a corporation’s controlling mind possessing the mens
rea or mental state to commit the act of bribery. Further, before the passing of the 2010
Bribery Act, in private transactions where no public officials are involved these are not
covered by the then prevailing statutes other than those paid to agents acting on behalf
of other persons. Under these circumstances, the UK produces little evidence on the
enforcement of its bribery laws. Such unsatisfactory state of affairs is, however, not
confined to the UK but also other major economies.
This led the OECD to establish an international convention to contain bribery and
corruption across economies, of which 34 signatories are from industrialised nations.
This Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions (CCBFPO, 1997) came into effect on 15 February 1999 and in
combination with Italy’s (2010) Mani Pulite operation and the World Bank’s recharged
commitments to tackle corruption became a watershed in the global combat against
bribery and corruption.
Discounting the state of criminalization of passive bribery acts in recipient economies,
the Convention obligesthe signatories tocriminalize briberiesfor business acrossborders.
It furtherobliges allsignatories toinstall a detection,transparencyand enforcementregime
and in particular to engage in a formal two-stage peer-revi ew process for compliance
(OECD, 2000, 1997). In stage one, the participants will review the legal texts employed to
complywith the Convention’sstipulations.Stage twofollowing willevaluate the structures
installed for the enforcement of the laws and rules therein. The OECD’s Anti-Bribery
Working Group (ABWG) comprise legal experts from participating jurisdictions with
consultation experiences from various multilateral development agencies. The ABWG is
responsible for a final consensual report for submission to the OECD council at the
ministerial level. In general, such reports are the outcomes of thorough analyses inclusive of
feedbacksfrom the parties underreview. OECD membersin general are satisfiedwith the
effectiveness of this peer-review mechanism (Ehlermann-Cache, 2010).
Guided by the preamble to the Convention, signatories are also obligated to enact and
implement domestic legislation conforming to the Convention’s standards equally or by
whichever mechanisms the countries deem appropriate. This flexible approach enab les
the Convention to accommodate the different constructions of jurisdictions across
different national legal systems. For instance, where national legal systems exclude
JFC
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