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Bribery Act 2010 – UK businesses are not doing enough
Updated August 2012
July 2012 marked the one year anniversary of the Bribery Act 2010. However, recent surveys have shown that UK businesses are not doing enough to manage the risk of bribery and corruption. This leaves them exposed to enforcement action, criminal sanctions and the associated adverse commercial implications of having to disclose a criminal conviction.
Not enough in the banking sector
Towards the end of 2011, the Financial Services Authority (FSA) conducted a thematic review into anti-bribery and corruption (ABC) systems across various banks, and published its findings in March 2012.
The FSA found that the firms it sampled “…had more work to do to implement effective anti-bribery and corruption systems and controls”. In particular, the FSA found a number of common weaknesses including:
Inadequate ABC risk assessment policies;
Ineffective oversight by senior management;
Insufficient ABC internal auditing;
Significant issues with dealings with third parties to win or retain business;
Insufficient processes to ensure that cumulative gifts and hospitality were reasonable;
Insufficient action having been taken to take account of the Bribery Act 2010.
The report also indicated that “the investment banking sector has been too slow and reactive in managing bribery and corruption risk” and that “firms’ understanding of bribery and corruption was often very limited”.
Not enough by UK businesses
Similar conclusions have been reached by Ernst & Young following their recent Global Fraud Survey which involved 1,700 heads of legal, chief financial officers and compliance and internal audit executives across UK businesses.
The survey has revealed that the risks from fraud and bribery are increasing. For example:
47% of Chief Financial Officers said they would not rule out giving cash or personal gifts in order to retain business;
14% of UK executives said they would provide personal gifts to secure business; and
42% of employees across UK businesses believed their management were likely to cut corners when it comes to appropriate business behaviour.
The survey also indicated that not enough is being done by UK businesses to effectively manage anti-bribery and corruption risks. It was found that:
Less than half of the chief financial officers questioned had attended anti-bribery and corruption training;
Less than one third of respondents knew that their company could be liable under the Bribery Act for the actions of third party “associated persons”;
More than one in five UK companies fail to carry out regular pre-acquisition due diligence checks and only 60% do this post-acquisition;
Only one in four UK companies have taken any action to punish anti-bribery and corruption breaches;
Only 28% of companies use regular reviews by external law firms or other professional services to ensure that they are compliant.
What are the risks?
If successfully convicted of a bribery offence:
Individuals can be jailed for up to ten years and/or receive an unlimited fine;
Companies can receive unlimited fines;
Directors convicted of bribery offences may be disqualified for up to 15 years;
Senior officers of a commercial organisation may also be personally liable if a bribery offence is found to have been committed with their consent or connivance; and
Organisations may be excluded from tendering for public contracts.
In particular, the Act creates a new strict liability offence for failure of an organisation to prevent bribery by persons “associated” with it. This offence applies to all companies, partnerships and business organisations formed in the UK wherever they do business in the world. It also applies to companies or partnerships formed abroad but which carry on business in the UK.
An “associated person” means anyone who performs services for or on your behalf of your business. It includes employees and may also include, for example, agents, contractors and subsidiaries.
Business will only have a defence if they can show they have “adequate procedures” in place to prevent bribery.
What are “adequate procedures”?
“Adequate procedures” are not defined in the Act but the Government has published guidance to assist businesses to understand what will constitute adequate procedures. The guidance sets out the following six principles of compliance:
Proportionate Procedures;
Top-Level Commitment;
Assessment of Risk;
Due Diligence;
Communication (including training); and
Monitoring and Review.
It is up to each organisation to implement policies and procedures that will minimise bribery risk, taking into account the main risk areas of the organisation and its global presence. The higher the risks the more an organisation will need to do.
This article will also be published in Mortgage Finance Gazette.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at August 2012. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England.
© 2012 TLT