British bribery law’s global reach is a challenge to Chinese sovereignty
China should protest against the act’s global reach
Paul Karl Lukacs 23 June 2011
The British government has announced that, on July 1, it will reassert control over Hong Kong. On the day Hong Kong marks the 14th anniversary of the handover, Britain’s Bribery Act will come into effect. Incredibly, the new law purports to govern and potentially imprison Hong Kong people, even those who have never set foot in Britain.
The act is an affront to the sovereignty of China, and Hong Kong and Beijing officials should protest against its enforcement on Chinese citizens and residents.
To the extent that the act modernises the ancient crime of offering or receiving a bribe within Britain, the law is unobjectionable. But it does not stop at those common-sense borders. It does not even stop at the borders of Britain. Instead, the British Parliament claims that its writ runs globally.
Specifically, the act codifies four crimes: offering a bribe, accepting a bribe, bribing a foreign public official, and, for business organisations, the crime of failing to prevent bribery. This last provision has generated controversy, since a multinational corporation cannot prevent illicit activity by all its employees. The act allows companies to insulate themselves by hiring consultants to implement internal anti-bribery procedures. Offences under the act may be punished by a fine or imprisonment of up to 10 years.
The portions of the act which prohibit the giving or receiving of bribes apply to conduct which occurs anywhere in the world as long as the defendant has a “close connection” to Britain. Obviously, this includes a person who is a British citizen or a corporation that is chartered under the laws of England. But it also includes the holders of British National (Overseas) passports.
What a triple slap in the face. First, Britain refused to grant law-abiding Hongkongers the right to live or work in its realms. Second, the government attempted to placate residents with sub-par travel documents. Third, those documents are being used to impose potential criminal liability on a population that has no say in British elections or policy.
In an extension of jurisdiction that would come under constitutional challenge in other countries, Parliament has determined that a business - operating anywhere, run by anyone - can be fined for failing to prevent bribery based solely on the fact that the business conducts an unspecified part of its commerce in Britain. The secretary for justice said prosecutors should take a “common sense approach” that looked for “a demonstrable business presence” in Britain.
These words are cold comfort to firms left to guess what quantum or quality of commerce exposes them to a criminal investigation.
Worst of all, the act declares that Anglo-Saxon cultural norms are the worldwide business standard - and it criminalises non-Anglo-Saxon methods. Under the act, the crimes of giving and receiving bribes are based on the expectations of “a reasonable person in the United Kingdom”. Foreign law is taken into account only so far as it has been written down. Unwritten customs and practices - no matter how long ingrained or widely recognised - are ignored.
The act is not merely a statute. It is an act of cultural imperialism. It is an attempt by a fading commercial power to impose its values on the world and to preserve its advantages. The act is also a challenge to China’s sovereignty. Under the Basic Law, the Legislative Council, not the British Parliament, enacts the criminal statutes that apply to the city and its residents. The British Parliament has no authority over Hong Kong, although the MPs who voted for the act apparently think they have power over the planet.
Beijing and the Hong Kong authorities have their own methods to combat bribery, methods that are far better tailored to the culture and mores of the Chinese peoples than blanket pronouncements from London. The hand of Westminster should not be reaching into Chinese territory, acting as if 1997 never happened.
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British bribery law’s global reach is a challenge to Chinese sovereignty
China should protest against the act’s global reach
Paul Karl Lukacs
23 June 2011
The British government has announced that, on July 1, it will reassert control over Hong Kong. On the day Hong Kong marks the 14th anniversary of the handover, Britain’s Bribery Act will come into effect. Incredibly, the new law purports to govern and potentially imprison Hong Kong people, even those who have never set foot in Britain.
The act is an affront to the sovereignty of China, and Hong Kong and Beijing officials should protest against its enforcement on Chinese citizens and residents.
To the extent that the act modernises the ancient crime of offering or receiving a bribe within Britain, the law is unobjectionable. But it does not stop at those common-sense borders. It does not even stop at the borders of Britain. Instead, the British Parliament claims that its writ runs globally.
Specifically, the act codifies four crimes: offering a bribe, accepting a bribe, bribing a foreign public official, and, for business organisations, the crime of failing to prevent bribery. This last provision has generated controversy, since a multinational corporation cannot prevent illicit activity by all its employees. The act allows companies to insulate themselves by hiring consultants to implement internal anti-bribery procedures. Offences under the act may be punished by a fine or imprisonment of up to 10 years.
The portions of the act which prohibit the giving or receiving of bribes apply to conduct which occurs anywhere in the world as long as the defendant has a “close connection” to Britain. Obviously, this includes a person who is a British citizen or a corporation that is chartered under the laws of England. But it also includes the holders of British National (Overseas) passports.
What a triple slap in the face. First, Britain refused to grant law-abiding Hongkongers the right to live or work in its realms. Second, the government attempted to placate residents with sub-par travel documents. Third, those documents are being used to impose potential criminal liability on a population that has no say in British elections or policy.
In an extension of jurisdiction that would come under constitutional challenge in other countries, Parliament has determined that a business - operating anywhere, run by anyone - can be fined for failing to prevent bribery based solely on the fact that the business conducts an unspecified part of its commerce in Britain. The secretary for justice said prosecutors should take a “common sense approach” that looked for “a demonstrable business presence” in Britain.
These words are cold comfort to firms left to guess what quantum or quality of commerce exposes them to a criminal investigation.
Worst of all, the act declares that Anglo-Saxon cultural norms are the worldwide business standard - and it criminalises non-Anglo-Saxon methods. Under the act, the crimes of giving and receiving bribes are based on the expectations of “a reasonable person in the United Kingdom”. Foreign law is taken into account only so far as it has been written down. Unwritten customs and practices - no matter how long ingrained or widely recognised - are ignored.
The act is not merely a statute. It is an act of cultural imperialism. It is an attempt by a fading commercial power to impose its values on the world and to preserve its advantages. The act is also a challenge to China’s sovereignty. Under the Basic Law, the Legislative Council, not the British Parliament, enacts the criminal statutes that apply to the city and its residents. The British Parliament has no authority over Hong Kong, although the MPs who voted for the act apparently think they have power over the planet.
Beijing and the Hong Kong authorities have their own methods to combat bribery, methods that are far better tailored to the culture and mores of the Chinese peoples than blanket pronouncements from London. The hand of Westminster should not be reaching into Chinese territory, acting as if 1997 never happened.
Paul Karl Lukacs writes about law and media.
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