13 Sep 2010
Bribery Act consultation guidance should not be ignored
Eoin O'Shea, head of the anti-corruption group and dispute resolution partner, Lawrence Graham LLP
As you are probably aware, the Ministry of Justice (MoJ) has today issued its draft of guidance for companies who wish to avoid being charged with bribery under section seven of the new Bribery Act.
The document introducing the draft guidance is made up of six 'principles' to be applied by companies to their business dealings, including risk assessment, top level commitment, due diligence, clear, practical and accessible policies and procedures, effective implementation, monitoring and review.
Eoin O'Shea, partner and head of the Anti-Corruption Group at international business law firm Lawrence Graham LLP (LG), said: "These principles are generally accepted among anti-corruption groups and governments elsewhere in the world and will not come as a great surprise to UK companies which have followed this topic, although some of the text commentary imports quite recent thinking, for example on the subject of protecting against extortion or blackmail.
The guidance will be important in informing debate and may be cited as evidence of corporate good practice. Although it is not legally binding, it certainly should not be ignored, and those interested should take part in the consultation process now in train. But any government guidance can only go so far. The world of corporate corruption is highly complex and fast-moving. The courts, the SFO and other enforcement agencies will have the greatest effect on how the Bribery Act changes corporate behaviour."
"Even after the guidance is in place, an attempt by a company to apply the principles will not necessarily provide a 'safe haven' if bribery is committed. Legally, the question of whether a company is guilty of bribery is one for a judge and jury. Prosecutors may have some regard to guidance of this kind but their decisions about charging are constitutionally separate from the government's views and they must follow their own codes," he added.
The previous government's commitment to provide guidance resulted from pressure by business interests and supportive legislators. Business people were concerned about what they saw as a very tough regime of corporate liability in section seven. The guidance was seen as a way to give business some comfort without watering down the primary legislation.
The MoJ is holding a consultation of the guidance over the next eight weeks and various discussion seminars have been arranged in cities across the country.
Please see the following details for more information on the guidance: http://www.justice.gov.uk/consultations/briberyactconsultation.htm
The Bribery Act will now enter into force in April 2011.