UK Bribery Act Under Review? (PDF-31kb)
UK Bribery Act Under Review? Authors: Raymond L. SweigartRecent reports of a wholesale reconsideration of the new UK Bribery Act 2010 appear to be at best wishful thinking and in all likelihood much ado about nothing. There is, however, renewed hope that better and more specific Guidance will be forthcoming as to how the Act will be applied.
As previously reported, the UK Bribery Act is due to come into full force and effect on 1 April 2011. However, this past week has seen a number of newspaper reports in England that Downing Street has ordered a review of the Bribery Act and the Guidance that has come out thus far. The press reports speculate that a specific review of the Bribery Act has been ordered due to concerns raised over the past year that this legislation could be more damaging to economic growth within the UK than any perceived benefit, with foreign businesses being deterred from operating in the UK for fear of exposure to undefined but strict liability for actions over which they have minimal, if any, control.1
The official press briefing published on the Prime Minister's Number 10 website, www.number10.gov.uk, on 14 January 2011, however, suggests a much more general review as part of the present Government's study of a number of its predecessor's statutory programmes. Indeed, a Number 10 spokesman said that the review will look at "all areas of government policy to see what we could do in order to remove obstacles that would help investment and economic growth." He reiterated past statements that bribery should not play any part in business. When asked if the Prime Minister was sympathetic to complaints regarding the act, the spokesman said that “bribery should play no part in winning investment or business, and we stood by all the other OECD countries that had similar anti-bribery laws. Clearly we wanted to be business friendly: the aim of the growth review was to ensure that we tried to remove obstacles for investment, but at the same time ensure that we didn't promote activities we didn't abide by, such as bribery."
Therefore, it remains important for companies to be aware of the Act's provisions, particularly its extraterritoriality and the strict liability corporate offence, to be prepared for the changes the Act will require, and have in place adequate procedures to prevent liability under the Act. Legitimate concern does remain that the Act, in its implementation and prosecution, may prove too far-reaching, thus suppressing economic growth. Nevertheless, it must be remembered that a number of anti-bribery laws are already on the books in the UK, and the United States' Foreign and Corrupt Practices Act has applied to many activities by UK companies for a number of years now. In this context it is likely the new Bribery Act, while simplifying the statutory structure and, in doing so, empowering additional prosecution, will not be the sea change that many have predicted, at least for those who have planned ahead, taken counsel and are prepared.
In the end, most observers believe it highly unlikely that substantial changes to the Bribery Act will be made at this late date, and it is anticipated that final guidance will be published before the end of January 2011. In the meantime, 1 April is getting closer and one should probably not grasp at straws suggesting a further delay in implementation.
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1 See our previous articles on the strict liability, extraterritoriality and liability for acts of others issues presented by the Bribery Act.
12/15/10, UK Bribery Act - Guidance to Date Still Leaves Uncertainly for Companies, Investors
10/5/10, UK Bribery Act - Extraterritoriality Squared
9/28/10, UK Bribery Act 2010 - You Will Be Judged By the Company You Keep
9/22/10, UK Bribery Act 2010 Update - Public Consultations Underway
5/5/10, UK Bribery Act: Aggressive Anti-Corruption Enforcement Enacted