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The New UK Bribery Act
All General Counsel should reach for their calendars now and circle July 1. That's the date when the new UK Bribery Act will take effect. The Act has extra-territorial reach and will impact almost every corporation doing business internationally.
The UK's Lord Chancellor and Secretary of State for Justice Kenneth Clarke announced the start date for the new legislation on March 30. On the same day, the Ministry of Justice (MoJ) issued its final guidance on how a company should comply with the new legislation. At the same time, joint prosecutorial guidance was issued indicating who should feel the full weight of the legislation. The documents are lengthy. The MoJ's guidance stretches to 45 pages, with the prosecutors' guidance a further 12 pages. While much of the concentration has been on the MoJ guidelines, it is likely that the prosecutors' guidelines may have the most lasting significance.
Background
The MoJ published draft guidance last year that was open to consultation until Nov. 8, 2010. Duane Morris and a number of other interested organizations made representations to the MoJ as part of that consultation process, and the final guidance was due to be published in January of this year. It was delayed while the government responded to criticisms of the draft guidance, but in light of at least one freedom of information request and disapproval from campaign groups, the go-live date has now been set.
In general, the new guidance tempers some of the directives given in the earlier draft. It also offers a little more comfort than before to those engaged in international business.
Kenneth Clarke's announcement indicates that the representations made have influenced the guidance. He said when launching the guidance, ” ' the guidance I am ' publishing today underlines ' after helpful consultation with businesses, and NGOs ' ' that combating bribery is about common sense, not bureaucracy.” Clarke also emphasized, however, that the guidance is not intended to dilute the legislation, which includes penalties of up to 10 years in jail.
What Does the New MoJ Guidance Say?
While technically the guidance speaks only to the new offense of failure to prevent bribery, the guidance goes through most of the main provisions of the Act, expanding on its principles, and also contains examples at the end of the document following the same format as the draft guidance. Some of its language is legalistic, and in places, it does not appear as clear as it could have been. The six principles of compliance that were in the draft guidance are retained, but have been altered slightly. Those six principles and the short explanatory notes given by the MoJ are as follows:
1. Proportionate procedures ' “A commercial organization's procedures to prevent bribery by persons associated with it are proportionate to the bribery risks it faces and to the nature, scale and complexity of the commercial organization's activities. They are also clear, practical, accessible, effectively implemented and enforced.”
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