Bribery - Can you tell what it is yet?


Business and the advisory community had been stoking themselves up over recent months in anticipation of the Bribery Act coming into force in April. This was supposed to be preceded by guidelines from the Ministry of Justice on interpretation of the Act and how it will be operated by the authorities. But in the last few weeks it has been announced that the guidance will not now be available until at least the spring, and therefore the Act will now not come into force until the autumn. So, where does that leave us? Do businesses have any basis yet for working out what behaviour will or will not put them at risk of prosecution when the law comes into force?

The answer may be that yes, we have some inklings into the approach of the authorities, but the position still remains uncomfortable. In a number of recent speeches and publications the MoJ and SFO have been indicating where the prosecuting authorities will focus their attention and resource. Unsurprisingly, perfectly usual business practices, such as client entertainment on a reasonable scale, customer business trips for legitimate business reasons funded by the supplier, and other payments which may technically fall within the offences under the Act but are in reality perfectly justifiable, will not be the subject of the prosecutors’ attention. This is hardly surprising on one level, but still raises questions in at least two respects.

What the authorities are signalling in a sense is to be welcomed, but what should UK businesses do about, for example, the small facilitation payments that in some jurisdictions are regarded as a part of the price of doing business? Do they instruct and train their people that even these are absolutely not permitted (meaning that doing business in a jurisdiction where such payments to local officials are endemic becomes very difficult, to the harm of the UK’s export-led recovery)?

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