We reported this yesterday in our top takeaways from the Bribery Act guidance even though it was not a point formally made in the guidance.

Kenneth Clarke QC MP and Minister of Justice made the point in his written statement to the House of Commons.  We thought this significant and we wrote about it yesterday.

Vivian Robinson QC, GC of the SFO, also made the point yesterday in our webinar interview with him last night.

Given its potential significance we are surprised there has not been more coverage, in particular, as for some sectors the possibility of mandatory debarment for a failure to prevent conviction under Section 7 of the Bribery Act it could be Game Over.

We welcome the addition of discretion to this element of the potential penalty for this offence.

For those interested we have reproduced in full below Kenneth Clarke’s ministerial statement to the House of Commons yesterday where he confirmed that in the case of a conviction for the failure to prevent offence debarment from EU contracts will not be mandatory.

“Bribery Act 2010

The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke): The Bribery Act 2010 is an important piece of legislation which seeks to tackle the scourge of bribery in international commerce.

Last year, as part of the preparation for implementation of the Act, we consulted on statutory guidance about procedures that commercial organisations can put in place to reduce their exposure to bribery and understand the Act. The guidance cannot of course change the substance of the Act, but the consultation did yield a large number of practical suggestions for its improvement, some of which I have taken up.

I am now confident that the guidance will prove a useful tool which will help prevent businesses from going to unnecessary lengths to comply with the law, and having consulted the Scottish Ministers, I am publishing it today under section 9 of the Act.

The guidance remains centred on six key principles and is intended to assist businesses of all sizes and in any sector or market. In particular it makes it clear that anti-bribery procedures should be proportionate to the risk of bribery and to the size and structure of an organisation. I am also publishing a much shorter guidance document which summarises the key principles of the guidance and which sets out essential messages about the Act. This is designed to be of assistance to smaller businesses in particular.

Both the section 9 guidance published as “The Bribery Act 2010 Guidance about procedures which relevant commercial organisations can put in place to prevent persons associated with them from bribing (section 9 of the Bribery Act 2010)” and the shorter guide published as “The Bribery Act 2010 Quick start guide” will be posted on the Ministry of Justice website today along with a Government response to the consultation. Copies will also be placed in the Libraries of both Houses.

In order to allow a period of three months for businesses to familiarise themselves with the guidance before the Act comes into force I intend to commence all the provisions of the Act that are not yet commenced on 1 July 2011.

The Government have also decided that a conviction of a commercial organisation under section 7 of the Act in respect of a failure to prevent bribery will attract discretionary rather than mandatory exclusion from public procurement under the UK’s implementation of the EU Procurement Directive (Directive 2004/18). The relevant regulations will be amended to reflect this. [Our emphasis]

The implementation of the Bribery Act 2010 will ensure that the United Kingdom is at the forefront of the battle against bribery, allowing the country to tackle corruption without being burdensome to legitimate business.”

Image © Crown Copyright 2011