The Bribery Act (BA) creates offences of bribing a person to induce or reward them to perform a relevant function improperly and, basically, being the bribee with the roles reversed.
The definition of a relevant function is interesting. It includes “any activity connected with a business, trade or profession, any activity carried out in the course of employment and any activity carried out on behalf of a body of persons (corporate or unincorporated)”.
The second limb of the definition is that the activity is performed with one or more of the following relevant expectations: -
- It will be performed in good faith
- It will be performed with impartiality
- That by virtue of performing the activity the person doing so is in a position of trust
So, improper performance of a relevant function would be a failure to perform it in line with the relevant expectation. The test for whether performance is improper is what a reasonable person in the UK would expect.
What about the position of anybody introducing a lawyer to perform, for example, personal injury or conveyancing services in return for a fee? What about the position of the lawyer?
Can it possibly be said that such activities don’t fall within one, more or indeed all limbs of the primary definition of a relevant function?
What is the saving for such activities? Is it that nobody has an expectation that this activity will be performed in good faith, or that it will be performed with impartiality or that the performer is in a position of trust?
Let’s put it another way. Is the introduction from the estate agent to the lawyer who offered the highest referral fee immune from all this because the client knows that the referrer will act partially, in bad faith, to introduce to the highest bidder?
Is a reasonable person in the UK now resigned to the fact that their own insurers cannot be trusted and will act in that way? ("Utmost good faith" - ha!)
Does the essence of this legislation founder because the reasonable Brit is now hardened to the fact that in some parts of some industries people operate routinely on the basis of backhanders and not merit?
I looked at the Law Society’s guidance note for chapter and verse on referral fees to find...
- “BA is a consolidation of the previous law relating to bribery. With the exception of the creation of a new corporate offence, the offences under the Act have not changed markedly from those previously in force”; and
I don’t understand what “has been no implication” means. I guess it must be that nobody has taken any notice of people like me who have suggested that referral fees are a form of bribery.
Perhaps what the guidance is saying is that not enough people have dared previously to suggest that referral fees amount to bribery and since the new law is just a restatement of the old law, er, that’s ok then.
The final word of caution from the Law Society is:
- “However, you may wish to consider how the introducer is obtaining work that is then referred to you. If the introducer is paying bribes to gain the work, this may, in certain circumstances, be seen as them paying a bribe on your behalf.”
It's quite simple. It's bribery - every step of the way.