We’re all waiting with bated breath for the UK to issue the fabled Guidance on compliance with the UK Bribery Act. It’s like people stacked up to get onto an elevator, staring at the closed doors. We’re all hoping that when the doors open, Vivian Robinson will be there saying, “here are the 7 specific things you need to do to be safe.”
Give up hope. The elevator will be empty. There’ll be nothing in the guidance that gives concrete advice to companies on how to comply.
The most common question I got from the business when I was a compliance officer was “what do I need to do to be compliant?” The business wants to be compliant, but in a world where everything is measured down to the dollar (or pound, given the subject matter), the business is used to concrete, actual advice on what to do. I believe that the guidance won’t be that.
The guidance will include platitudes like “hospitality must be reasonable, and not lavish.” Thanks for that. What’s the dollar amount for dinner that will cross the line? Give me a number. Maybe they’ll give an example that they’ll caveat as illustrative, and it’ll be outrageous. It’ll say that companies must do their due diligence on third parties. It’ll say that facilitation payments are bad. Maybe, just maybe, there will be two nuggets in there: will they bring a facilitation payments case that’s not systemic? (No.) And will they limit jurisdiction as reported, where listing on the London Exchange won’t automatically convey jurisdiction? (No.)
Your program is your program. Improve it. The only question in my mind is how stringently will they inforce the private-sector bribery provisions. That won’t be in the Guidance; it’ll become clear over time. But even then, forward thinking compliance officers were worrying about that after the DOJ brought the CCI case in August 2009. That’s a potentially huge change to compliance programs, and it’ll be a bear to design and implement. At least now those compliance officers will have the advantage of a regulatory imperative.
If you want guidance for your program, look at the recent DOJ settlements, starting with the Pride settlements: they all have a Schedule C which lists the compenents of an effective compliance program. The UK Guidance isn’t going to surprise.