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Expansive Reach – Useless Guidance: An Introduction to the U.K. Bribery Act 2010

Following incessant pressure from American diplomats, in 1997 the Organization for Economic Cooperation and Development (OECD) completed negotiation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. This Convention, which became effective on February 15, 1999, obligates signatories to enact domestic legislation criminalizing bribery of foreign government officials. Five other anti-bribery conventions have since come into force. However, the nearly universal formal acceptance of the principle that overseas bribery should be criminalized, exemplified by the broad acceptance of these conventions, has done little to reduce corruption. This is likely based on a universal lack of interest in seriously enforcing the laws implementing these conventions. The U.K. Bribery Act 2010, enacted after more than a decade of debate, delay, and deliberation by Parliament, is the culmination of the United Kingdom’s effort to finally comply with the OECD Convention. This Article provides an overview of Bribery Act offenses, the most important of these being the strict liability corporate offense of failure to prevent bribery. The U.K. Ministry of Justice has published mandated Guidance about the procedures which affected entities can put into place to prevent persons associated with them from bribing. We demonstrate that the Bribery Act goes too far in its stated purpose of complying with the OECD Convention, particularly with respect to the corporate offense of failure to prevent bribery. We demonstrate that the Ministry of Justice’s Guidance fails to provide any useful guidance as to how a company can avoid the strict liability offense of failing to prevent bribery and totally fails to deal with the distinct possibility that enforcement will be overly aggressive.