The Ministry of Justice formally announced on 3 February 2011 that the Bribery Act 2010 will not come into force in April 2011, as originally planned.
This is principally due to a delay in the publication of the Government's guidance on adequate procedures. The issue of adequate procedures is a critical issue for a "relevant commercial organisation", which under section 7 of the Act can face prosecution for failing to prevent bribery by an "associated person". It will be a defence for a commercial organisation to show that it had adequate procedures in place to prevent unlawful conduct and the Act requires the Government to publish guidance on the "adequate procedures" that commercial organisations can put in place. The Government has always committed, and continues to commit, to a three month time period between the issuing of the guidance and the Act coming into force to allow employers sufficient time for familiarisation and preparation.
The delay in publication of the guidance does not come as a total surprise. The draft guidance, issued for consultation in September 2010, has been criticised for failing to provide sufficient guidance on key areas of uncertainty such as the extent to which commercial organisations will be found liable for the actions of, for example, joint venture, consortium or supply chain partners and the level of due diligence required in relation to business partners. It is hoped that the final guidance will provide more detailed guidance on these and other areas of uncertainty.
The UK is facing international criticism over the delay in the Act 's implementation and it is likely that the guidance will be issued sooner rather than later, though the Ministry of Justice remains vague over the exact timing. In the meantime, it is important that businesses are not distracted by uncertainty over the timing and continue with their preparations. The final guidance is unlikely to differ substantially, in essence, from the draft guidance and there is a general consensus as to the type of measures that a commercial organisation should have in place (robust policy, training regime, whistleblowing and disciplinary procedures, etc) to mitigate bribery risks. Businesses should therefore continue to establish the appropriate procedures now with a view to finalising them once the final guidance (and other guidance due from the SFO, for instance) has been issued.