With its Anti‑Corruption Strategy set for renewal, this International Anti-Corruption Day offers the UK an opportunity to establish new priorities for anti-corruption enforcement, and Transparency International has some ideas that could help.
Today, on International Anti-Corruption Day, we recognise the 17 years since the United Nations Convention against Corruption entered into force in December 2005.
Like every birthday, this offers an important opportunity for reflection, both on what we have achieved and what we can hope to achieve in the coming year.
Transparency International (TI)’s recently issued Exporting Corruption report will provide the UK’s anti-corruption legislators with plenty to consider as they do so.
In its annual assessment of foreign bribery enforcement among states party to the Organisation for Economic Co-operation and Development (OECD)’s Anti-Bribery Convention, TI identified ‘serious inadequacies in the laws and justice systems of every country’.
The UK was no exception. Of the 47 countries within the scope of the review, the UK and Israel were the only countries to be relegated from ‘active’ to ‘moderate’ in TI’s appraisal of their overall anti-bribery and corruption enforcement.
However, with the UK’s Anti‑Corruption Strategy 2017-2022 shortly up for renewal, the ‘inadequacies’ we face today could offer us some insight into the higher standards by which we will be judged in the years to come.
In its unflattering assessment of the UK, TI raises many important issues, which the constraints of space preclude us from discussing here. However, from this overall picture, three key issues emerge:
1. The need for sufficient resources
The report mentions the UK alongside countries such as Belgium, Denmark, Finland and Portugal, in a list of states whose ‘key weakness’ is their under-resourcing of enforcement bodies.
The UK has already taken steps this year to strengthen the powers of the Serious Fraud Office (‘SFO’). Whereas previously, the SFO’s ability to force disclosure of information at the pre-investigation stage applied only to cases of international bribery and corruption, the new Economic Crime and Corporate Transparency Bill is set to expand these powers, allowing evidence to be gathered in the same way for domestic cases.
However, this more fundamental issue of resource deficiencies at the SFO should come as no surprise after this summer’s publication of the Calvert-Smith report. The report detailed instances of SFO staff members working late into the night, while on annual leave, or in one case while considerably unwell as part of its broader depiction of under-resourcing at the enforcement body.
In this context, TI calls for the UK Government to ensure that the SFO has the resources and leadership it needs to carry out its role effectively as the UK’s principal actor for enforcing bribery and corruption related obligations.
2. The role of debarment
In May, the UK Government introduced the ‘Procurement Bill’ making convictions for foreign bribery mandatory grounds for the debarment of suppliers.
However, the Government did not apply the same debarments to suppliers in deferred prosecution agreements (DPAs) or who are guilty of a bribery offence in the ‘failure to prevent’ category.
On this basis, the report calls for the UK Government to strengthen its bribery-related debarment mechanisms for public contracts, implicitly by extending these debarment provisions to include supplier organisations who have reached agreements for deferred prosecution or who have been found guilty of failing to prevent bribery offences committed by associated persons.
3. The importance of victim compensation
The SFO, the Crown Prosecution Service (CPS) and the National Crime Agency (NCA) are all signatories to a statement of general principles for compensating victims of bribery. However, TI’s report argues that the application of these principles in the UK varies on a case-by-case basis.
The report laments the lack of compensation paid to victims in Sri Lanka, for example, as part of the bribery fines imposed on Airbus in 2020. It also recalls the 2021 DPA between the SFO and Amec Foster Wheeler, which resulted in a penalty of £103 million, of which only £210,610 (0.2 per cent) was ordered as payable in compensation to victims in Nigeria.
With this in mind, TI calls for the UK Government to ‘enshrine the principles for compensation of victims into law’ and to ‘ensure adequate compensation can be given in complex corruption cases’.
What happens next
If this latest assessment of its efforts is anything to go by, the UK will have considerable ground to make up in re-establishing itself as one of the world’s ‘active’ anti-corruption enforcers.
Taking three of the most fundamental areas for concern as an example has shown us that this process could feasibly involve: strengthening the resources at the disposal of the SFO; increasing the scope of corruption-related offences leading to debarment; and legislating more decisively in favour of victim compensation.
These recommendations are being released at a time when the UK is already set to update its 2017-2022 Anti‑Corruption Strategy. Therefore, this International Anti-Corruption Day isn’t just about looking ahead to the coming year. It may also allow us to reflect on some early indications of what the next five years of UK anti-corruption enforcement will look like.
For information on how we are helping clients to meet the increasing demands of international anti-bribery and corruption regulation and best practice, please contact Michael Pollitt or Simon Stiggear.
