New Law Journal

The House of Lords’ review of the Bribery Act 2010 makes two particularly important interventions: the first relates to interpretation of the notorious ‘adequate procedures’ test; the second is a strong push for government to reform ‘white collar’ criminal law so that vicarious liability applies to a far wider range of offences.

Authors: Eoin O'Shea

The Bribery Act 2010 (BA 2010) is one of the more acclaimed pieces of legislation of recent years. It has been the subject of numerous superlatives: ‘the toughest anti-corruption legislation in the world’, ‘the gold standard’ and so on. In 2018 the House of Lords constituted a Select Committee, chaired by Lord Saville, to consider its effects. After a lengthy process of taking evidence from a wide variety of interested parties, the committee issued its report on 14 March 2019 (The Bribery Act 2010: post-legislative scrutiny, Session 2017-19, HL Paper 303; see bit.ly/2Fd2ff3).

Maintenance & improvements 

The report weighs a considerable body of external evidence, including a small contribution by the author. It’s striking that the report does not challenge or even really discuss the main pillars of the legislation in any depth. The substantive definitions of bribery and the (wide) jurisdictional provisions in BA 2010 are now seen as efficient and un-controversial. It’s very clear that the key distinguishing features of the Act around liability, the ‘failure to prevent bribery’ offence and extra-territoriality are here to stay. Any softening, for example as regards tolerance of so-called ‘facilitation payments’ is off the agenda as far as the House of Lords is concerned. 

The majority of the recommendations in the report are concerned either with issues around the fringes of the legislation, or improving some of the legislative and institutional infrastructure supporting enforcement. There are sensible proposals as regards amendments to government guidance, and in related areas such as deferred prosecution agreements. There is a nod to the fact that EU-wide means of cooperation on criminal justice are at risk if Brexit is not dealt with appropriately. Most of the key recommendations are summarised in the final section of the report.

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This item was originally published in New Law Journal.