Yawning in the Face of the UK Bribery Act
In case anyone has noticed, the sky has not fallen. The UK Bribery Act has not lead to the downfall of global business. In fact, here is a profound grasp of the obvious — the UK Bribery Act really has not had much of an impact at all. I am not criticizing the professionals at the Serious Fraud Office, but they have a tough job — and will continue to have a tough job.
Richard Alderman, the consummate professional has left. David Green is a talented leader who will make his mark as well. But the problem is much bigger than two talented leaders. The problem was clear at the beginning.
The SFO has no political support. It is caught between two significant forces — the UK business community put the brakes on the UK Bribery Act before it was effective. Richard Alderman skillfully navigated this treacherous environment by issuing the Guidance which was a signal of retreat from the initial aggressive statements surrounding the implementation of the UK Bribery Act.
The second and perhaps more significant restraint on the SFO was the effort by the UK Justice Ministry to merge the SFO into the UK Justice Ministry. As a veteran of political turf wars in the US, I can assure you that such a political fight can be damaging, and even life-threatening to a prosecutor’s agency. This turf battle ultimately reduced SFO resources and SFO capabilities. It is fairly obvious but without money and without political will, a government agency is not going to be very effective.
All of this translates into one clear message — the UK Bribery Act is far less than a game changer and is not a significant risk for most global businesses. The FCPA and UK Bribery Act paparazzi (law firms which exaggerate risks in the hope of being hired) will decry my view but let us be honest: The prosecution of a court clerk was not an earth-shattering event.
In fairness to the SFO, the UK Bribery Act has no retroactive application, meaning it can only apply to conduct which occurred after July 1, 2011. To those who still view the UK Bribery Act as a real threat, that is their only defense of the UK Bribery Act enforcement scheme — the cases have not yet ripened and investigations take a long time. I am willing to be convinced but so far see very few signs of active enforcement of the UK Bribery Act.
On the other hand, and in stark contrast to the SFO, the UK’s Financial Services Authority has developed into an aggressive enforcement agency. The FSA, unlike the SFO, is not caught in any political turmoil and has been increasingly active. It recently issued a damning report on the lack of anti-corruption controls in investment banks. It has brought several high profile enforcement actions, including a fine for 8.7 million pounds against Coutts for anti-money laundering violations; and a fine for 2.17 million pounds against Direct Line and Churchill for lack of due diligence and care.
The SFO has to regroup and develop a strategy to raise its profile — a big case would clearly put it on the map. Until it flexes its muscle, all we will hear are the cries of chicken little — “The sky is falling! The sky is falling!”