|
The Government has announced that implementation of the Bribery Act 2010 has been delayed again.
The Act was passed in April 2010. It was originally meant to be in force later that year, although the date was then pushed back to April 2011. Now there is no date set for when the Act will take effect.
The Act in brief
The Act carries a maximum penalty of up to 10 years’ imprisonment and/or an unlimited fine. It creates four main offences:
|
|
bribing another person ("active bribery"); |
|
|
being bribed ("passive bribery"); |
|
|
bribing foreign public officials; and |
|
|
failure by a commercial organisation to prevent bribery by people acting on its behalf, unless it had "adequate procedures" in place to prevent bribery. |
In relation to this last "corporate offence", the Ministry of Justice promised that guidance on what would constitute "adequate procedures" would be published in advance of implementation of the Act to enable businesses to prepare for and adapt to the new law. That finalised guidance is not yet available.
See our previous early warnings on the Act (here and here) for further information.
Reasons for the delay
The Ministry of Justice has confirmed a review of the Act as part of the Government's "growth review". The Government is looking to remove obstacles from all areas of Government policy to promote investment and economic growth.
Many commentators view the further delay as the Government’s reaction to intense lobbying from the business community. The Act is widely thought to have been passed through Parliament in a rush in the dying days of the previous Government. It has been criticised in the media as unclear, unworkable and unfit for purpose.
At any rate, it is hoped that the Government will use the extra time to ensure that its guidance to business will be as comprehensive and practical as possible and will clarify the intended scope of some of the Act's broader provisions – particularly the extent to which gifts and corporate hospitality will be caught.
Enforcement resources
Interestingly, the delay comes in the wake of recent news that the would-be enforcers of the Act, the Serious Fraud Office, will only be given £2 million a year by the Government to enforce the legislation, causing many to question how effective the Act will be in practice in preventing and prosecuting corruption.
Comment
Transparency International has called news of the delay "disastrous”, but it would be unwise for business to assume that this is the nail in the coffin for the Act.
While the Government seems to be sympathetic to the calls of the business world, it has taken a high profile stance against corruption, so it seems unlikely that the Government's review will lead to material changes to the Act. As the blog antibribery.com puts it, it is more a case of when the legislation will be implemented rather than if. What we do know is that the Act will not now be implemented until three months after the Government’s guidance is published.
Nevertheless, we would encourage businesses to start considering the implications of the Act sooner rather than later. You should ensure that adequate procedures are fully embedded before the Act really starts to bite.
Michael Simkins LLP can offer training and advice to businesses on the Bribery Act 2010. If you would like to know more, please contact Caroline Copeland (caroline.copeland@simkins.com) or Nicole Globe (nicole.globe@simkins.com).
Nicole Globe
348
Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
<< back to articles & bulletins
|