On July 20, 2010, the UK Ministry of Justice announced that the recently enacted Bribery Act will take effect in April 2011. The announcement had been anticipated by UK companies and companies doing business in the UK, all of which must comply with the new Act. The Act received the Royal Assent on April 8, 2010, just before Parliament was dissolved prior to the May 6 General Elections.
The Bribery Act stands to revolutionize the UK’s approach to anticorruption enforcement and has the attention of lawyers, law enforcement and corporate executives throughout the world. The new legislation replaces a patchwork of existing anticorruption laws and was introduced following years of criticism of lax enforcement and more than a decade of failed efforts to pass similar legislation. The Bribery Act is modelled closely on the U.S. Foreign Corrupt Practices Act (FCPA), but reaches beyond the FCPA in a number of notable respects.
In announcing the April 2011 effective date of the new law, the Ministry of Justice also announced that in September 2010 it would “launch a short consultation exercise on the guidance about procedures which commercial organisations can put in place to prevent bribery on their behalf.” The guidance will then be published “early in the New Year to allow businesses an adequate familiarisation period before the Act commences.” This guidance is a critical next step because proof of an adequate system to prevent bribery will be a defense to the Bribery Act’s corporate strict liability offense.
The guidance is ultimately expected to set out broad guidelines that will illustrate “good practices examples, rather than detailed and prescriptive standards.” It is also expected that courts will take into account the size and needs of a business when assessing whether its policies and procedures are adequate to satisfy the “adequate system to prevent bribery” defense during the course of a prosecution. Bearing in mind that it may take up to several months to implement such measures from scratch or to bring existing systems up to speed, companies subject to the Bribery Act are well-advised to act now to ensure adequate protections are in place by the time the Act takes effect. The Bribery Act’s departures from the FCPA warrant revisiting and revising even robust anticorruption compliance programs to ensure compliance with UK law.