The implementation of the Bribery Act 2010 ("the Act") - which was scheduled to come into force in April of this year - has been delayed by the Government.
The Act has been heralded as taking a robust stance against bribery and corruption and has been widely reported for having a worldwide reach. Yet, despite this, the Act has come in for some criticism prior to its implementation. Many businesses have argued that the terms of the Act are unclear, making it difficult for them to comply with its provisions. This is especially true, for example, in relation to corporate hospitality. Others have argued that it puts UK-based businesses at a competitive disadvantage in relation to worldwide competitors, especially in relation to facilitation-type payments.
With this in mind, the Government last year consulted on guidance for the “adequate procedures” that companies should put in place to ensure compliance with the Act. The culmination of this consultation was guidance in the form of six guiding principles that companies should look to when implementing their Bribery Act adequate procedures. At the time, MacRoberts provided a summary of the consultation and the six principles (available by clicking here).
However, the initial guidance issued by the Government has been criticised for being too vague and not offering enough direction to businesses in how to comply with the Act. In light of this, the overnment have announced a review of the Act and committed to providing further, updated guidance on adequate procedures. The Ministry of Justice stated: "We are working on the guidance to make it practical and comprehensive for business, taking the time to ensure it is both accessible and effective for all sectors. When the guidance is published it will be followed by a 3 month notice period before implementation of the Act".
Businesses should not, however, take this delay as an opportunity to stop preparing for the Act or as an indication that the Act will be scrapped. The UK is part of the Organisation for Economic Co-operation and Development ("the OECD") - an international organisation who have taken a firm stance against bribery and corruption. The OECD have the powers to issue sanctions against the UK - including 'blacklisting' UK exporters - if they fail to implement anti-bribery legislation. Worryingly for the Government, the head of the OECD anti-bribery unit, Mark Peith, this week commented: "It is very disappointing that despite public commitments, the UK will further delay this important act to tackle bribery and corruption".
The threat of sanctions from the OECD, together with the support for the Act shown by bodies such as the Law Commission of England & Wales, means that the Government is highly unlikely to scrap - or water-down - the provisions of the Act. So whilst the review announced by the Ministry of Justice will delay the implementation of the Act, the wording in its statement above suggests that it is unlikely to significantly change the terms or spirit of it.
It is to be hoped that the review announced by the Government produces further, detailed guidance which will allow businesses a better insight into how to comply with the provisions of the Act. In the meantime, businesses should ensure that they continue their preparations for the coming into force (albeit delayed) of the Act.