Since our article on the Act in December 2010 there has been significant lobbying by business, including most notably from the CBI, to delay the implementation of the Act, originally scheduled for April 2011.
In response the Ministry of Justice has confirmed that it is continuing to review the Guidance to the Act make it “practical and comprehensive for business”. It confirms that it will “come forward with further details in due course” and that the Guidance, when published, will be followed by a three month notice period before implementation of the Act. The Guidance was originally due for publication in January 2011 (approximately three months before the Act was due to come into force). No indication has been given of when the revised Guidance will be available.
OECD warns on delays
In the meantime, the Chair of the OECD’s Working Group on Bribery, has reportedly told the Financial Times that further delay to the implementation of the Act could result in a blacklisting of British exporters – a move which would have an adverse effect on the competitiveness of British companies.
“It is very disappointing that despite public commitments, the UK will further delay this important Act to tackle bribery and corruption,” says Mark Pieth, Chair of the OECD Working Group. “Establishing a level playing field for international business is as important now as ever and will help strengthen the global economic recovery. As a G20 country, the UK bears a special global responsibility and should lead by example.”
The OECD Working Group’s review urged the U.K. to honour this commitment. It said; “If the Act’s entry into force is delayed, more bribe payments would be governed by the current, much weaker law.” The review added the new Act would be “a major improvement on the prior patchwork of U.K. bribery laws.”
The lack of clarity on when the Guidance to the Act will be published, together with the very short three month timetable from publication of the Guidance to the Act coming into force, does not help business plan for the Act’s implementation. Business is left to choose between waiting for the new Guidance or assuming that, at least, the general approach to compliance set out in the draft Guidance issued in 2010 is likely to remain.
Currently, there are no proposals from Government for the Act to be amended. The amendment of the Guidance can only be aimed at trying to clarify how business is intended to approach compliance. However, it seems unlikely that the sensible approach to risk assessment and implementation of appropriate procedures and policies set out in the earlier draft Guidance is likely to change. On that basis, businesses may be best advised to commence (or proceed) with their risk assessments in accordance with the draft Guidance in the hope that the new Guidance will at least offer some clarification on what steps are adequate to address the risks identified.