The UK Ministry of Justice has finally published the Guidance to the Act which now comes into force on 1 July 2011. All organisations doing business In the UK should consider if steps are needed to ensure compliance.
After a couple of false starts and in face of mounting international pressure the Government finally published the promised guidance under section 9 of the Act on 30 March 2011. This is designed to assist companies in putting into place procedures which are “adequate” to prevent bribery taking place and so, potentially, offer a defence to a charge of failing to prevent bribery if a person “associated” with the company commits an offence of bribery.
Overall the document is much more accessible than as originally published for consultation in October and the Government seem to have taken on board many of the points that had been made. The emphasis is very much on proportionality and an expectation that the Courts will take a “common sense” approach.
To supplement the Guidance there is a Quick Start Guide which gives a brief summary of the Act with some answers to common questions. (Please see Resources below)
Key points
1. As before the Guidance recommends six guiding principles for a company to implement. They have however changed and appear more logical and less repetitive than before. They are
- Proportionate procedures – covering both policy and process
- Top level commitment – this needs to show Board commitment
- Risk Assessment – periodic, informed and documented
- Due Diligence – in respect of people who perform services for the company
- Communication – of bribery prevention procedures internally and externally
- Monitoring and review
The way these work in practice is then illustrated in a series of case studies
- There is no intention that companies who are incorporated outside the UK but listed on the London Stock Exchange should be covered by the Act so long as they do not otherwise carry on business here
- Similarly a non-UK company would not automatically be liable and so subject to prosecution here for the acts of its UK subsidiary.
- Emphasis is placed on the need for the prosecuting authority to establish intention on the part of person bribing. In respect of a company who obtains only indirect benefit from bribery by one of its subsidiaries it is said that prosecution would be “very unlikely” although the same could not of course be said fro the subsidiary.
- In relation to hospitality the issues of proportionality and intention are stressed. It is made clear that to succeed in a prosecution it would have to be shown that the hospitality in question was intended to induce a person to improperly perform obligations under his/her contract of employment.
Comment
Despite the clearly helpful intent behind the Guidance it remains just that – it does not (and cannot) offer any authoritative assurance as to how the Act will be interpreted by the Courts. It does not and cannot change the Act itself which remains a far reaching piece of legislation taking a stringent approach to preventing corrupt commercial behaviour.
Action
All commercial organisations conducting business in the UK should review their anti-bribery procedures in good time in advance of 1 July 2011 to ensure that they are adequate in the context of the very wide definition of offences contained within the Act and the Ministry of Justice Guidance.
Abbiss Cadres offer a full compliance service to enable you to assess and implement appropriate and proportionate procedures to manage the real risks raised by the Act.
If you would like to discuss the implications raised by the Bribery Act please get in touch.