A little while back, I posted a couple of critical commentaries (here and here) about the efforts underway to develop an International Organization for Standardization (ISO) standard for corporate anti-bribery programs (ISO 37001), modeled on the already-existing UK standard developed by the British Standard Institute (BS 10500). (For those unfamiliar with these organizations or what they do, these standards are developed by a private consortium, and then private firms conduct–for a fee–audits of companies and provide a “certification” that the company is in compliance with the standard. These standards in the past have dealt with technical or quality control issues — the proposed anti-bribery standard is, to the best of my knowledge, the first ISO standard to deal with a legal issue of this type.) Without rehashing my earlier posts here, I raised questions both about how these certifications were supposed to work in practice, and about what they were for. I raised but dismissed the possibility that law enforcement might treat ISO/BS certification as an adequate indicator that a firm had a satisfactory compliance program (or that absence of ISO/BS certification as an indicator the compliance program was inadequate). I dismissed the possibility because lots of people (including those who work in the compliance certification business and those involved with the development of the ISO standard), assured me that such certification was not intended to have that kind of dispositive legal significance (even if it might be relevant to the law enforcement agency’s inquiry).
I would have left the matter there, and probably not written about it again, but for some remarks at last December’s World Bank International Corruption Hunters Alliance meeting. On a panel about “Fighting Transnational Bribery,” Detective Inspector Roger Cook, with the Operations area in the City of London Police’s Economic Crime Directorate, spoke with great enthusiasm about BS 10500, the model for the proposed ISO 37001. (This is perhaps unsurprising given that, as I just learned from his City of London police bio, he “contributed to the development and implementation of … BS 10500 and the developing ISO 37001.”) I don’t have a transcript or a video, nor am I a trained stenographer, but I tried to copy down Detective Inspector Cook’s remarks on this topic as close to verbatim as possible, and they went (according to my notes) more or less like this:
[If you’re a company, the BS 10500 standard] is going to give you a lot of comfort. Simply by getting accredited, then you have those adequate procedures that the UK Bribery Act requires companies to have [(that is, to satisfy the affirmative defense to the strict liability offense of failure to prevent foreign bribery)]. If the company has BS 10500 [certification], we’re not going to look much further, as long as they’re applying it properly. And an ISO standard [ISO 37001] is also in the works, about 18 months away. Think how good that would be, if every company going for a public contract were accredited. [We should] make that [certification] a condition for public contracts.
Now, Detective Inspector Cook was speaking in his personal capacity, not on behalf of the City of London Police or the British government. And he is not affiliated with the Serious Fraud Office (SFO), which has principal responsibility for bringing enforcement actions under the UK Bribery Act. But I nonetheless found these remarks quite troubling, so perhaps it’s worth restating the reasons why private anti-bribery certification or accreditation, according to something like the proposed ISO standard, should not be considered necessary or sufficient to establish the compliance defense under the UK Bribery Act, and should not be considered necessary or sufficient to engage in government contracting. Continue reading →