News 19th Dec 2016

The Bribery Act 5 (and a Half) Years On



The TI-UK blog features thought and opinion from guest writers as well as TI staff. Any opinions expressed by external contributors do not necessarily reflect the views of Transparency International UK.

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By Peter Van Veen

I have been trying to write a blog on the fifth anniversary of the UK Bribery Act for some time now, since July to be precise.  It is not that we at TI are short of ideas but frankly I am struggling to find a key achievement to celebrate.  So since July I have been umming and ahhing about what I should really focus this blog on.

Should I have written about how companies and their employees are no longer able to get away with paying bribes abroad? Alas, there have been no large companies (nor their employees) prosecuted under the Act to date so this would have been a short blog.

I could also have focussed on how it has changed the attitude of business in how they operate abroad.  Whilst this certainly seems to hold true for many businesses, a number of studies indicate many UK business men and women still take a cavalier attitude to doing business abroad, even when they are aware of their liabilities under the UK Bribery Act (which many still clearly seem not to be).  I would have gone on to recommend that the government should really spend more effort communicating with business on the Bribery Act, especially SMEs, and helping them conduct business without bribery.  But it seems somewhat depressing to still have to focus on this 5 years on.

Equally depressing, I could have written about the number of cases that the SFO are investigating.  Many of these are very large companies indeed.  But this would beg the question why these investigations are taking so long to bring to a conclusion and the lack of prosecutions.  I would also have had to cover the slowness of our underfunded legal system, the lack of a dedicated economic crimes court and the perpetual underfunding of the competent but under-resourced SFO.

The continued political uncertainty over the future of the SFO has also been a feature of the last 5 years and we at TI have been vocal in supporting a strong independent SFO.

I could have written about the first Deferred Prosecution Agreement (DPA) with Standard Bank but I would also have to outline some of the challenges that remain with DPAs not least the spectre, real or imagined, of double jeopardy in other jurisdictions that is stopping companies from collaborating more with the SFO (if we are to believe a number of lawyers who tell us this).

Of course, more positively, I could focus on the continued commitment of the government to tackle economic crime. The upcoming Criminal Finances Bill is a welcome development and one we at TI very much endorse.  However it also begs the question that if there have been so few prosecution under the Bribery Act, what additional resources will be available to help enforce this new act?  Or will the SFO and the NCA be asked to do more with the same (or less) resources?  A strong, independent, well-funded SFO seems the bare minimum we should be expecting from the government.

I could also have written about the new International Organization for Standardization (ISO) standard ISO37001 which has been heavily influenced by the Adequate Procedures defence of the UKBA.  But as with other certification schemes I would also have to point out that these will never provide much certainty of whether the companies in question are actually taking anti-corruption seriously or just have some policies sitting on a shelf they paid someone to produce for them.

None of these seem very satisfactory to celebrate the UK Bribery Act 5 years on so I will keep pondering and maybe I will have settled on a good angle in time for the 6th anniversary next June (fingers crossed).

Wishing you all the best for the festive holidays and wishing you a corruption free 2017!

Peter van Veen was the Director of TI-UK's Business Integrity Programme, leaving in August 2017. You can follow him on Twitter @pvanveen