The Ministry of Justice (MoJ) has confirmed the implementation of the Bribery Act 2010 has been postponed indefinitely.
The Act was due to come into force in April this year, but will now be pushed back until guidance has been published and delivered to businesses to allow them to prepare and adapt for the new regime. The MoJ has not yet indicated when the guidance will be ready. Once it is issued there will be a three-month notice period before implementation of the Act. There is no confirmation the government will seek to amend the Act itself, but the delay could create an opportunity for this.
Anti-corruption groups and charities criticised the decision but the government said it was listening to the concerns of businesses and re-examining the legislation. Companies have complained the rules are too strict and create confusion for multinationals and firms seeking business abroad.
Will You Be Ready For The Bribery Act?
Although bribery has been against the law in the UK for many years, the Act creates new legal and reputational risks. It is therefore important that organisations prepare themselves properly. The Act not only consolidates all existing bribery and corruption offences but creates the new “corporate offence” of failing to prevent bribery.
Do You Know How Wide It Is?
It is essential that all businesses operating in the UK understand that:
- It is an offence to bribe, or receive a bribe from, anyone, not just foreign public officials
- a bribe includes even the smallest facilitation payment, regardless of whether it is commonplace to make the payment in the circumstances or location where it occurs
- disproportionate corporate marketing or hospitality may constitute a bribe
- the scope of the Act catches not only acts that take place in the UK, but also any acts by British nationals or overseas branches of British companies that take place anywhere in the world
- the failure to prevent a bribery offence applies to any body corporate that carries on even only part of a business in the UK the failure to prevent a bribery offence applies where a person associated with the relevant company (for example, as an agent) gives a bribe intending to give the company a business advantage
Have You Heard Of Adequate Procedures?
Companies will have a defence to the corporate offence only if they can prove they had in place “adequate procedures” to prevent bribery. This means businesses will need to ensure they have suitable anti-corruption procedures in place to prevent anyone who is performing services on their behalf from committing bribery. As noted above, the MoJ will give guidance on what may constitute adequate procedures and this will be complemented by prosecutorial guidelines. However, these guidelines will be general.
What Should You Be Doing NOW?
You should not rely on the proposed guidance to answer your questions. You should urgently, if you have not already done so:
- get together a Bribery Act compliance team with a strong leader
- assess all your lines of business and analyse where you are at risk of bribery, whether from overseas offices or associates
- make plans to eradicate or minimise the threats to your organisation
- compile a report evidencing your research, recommendations and decisions
- assess existing agreements with associates, suppliers and clients and consider whether anti-bribery language should be inserted
- draft policy statements and procedures
- organise appropriate training for staff members and key associates ensure you have a strong, workable monitoring and whistle-blowing function