Bribery Act unlikely to be watered down despite delay

On 31 January the Ministry of Justice confirmed after much speculation that the Bribery Act would not come into force this April as planned. The MoJ is now redrafting the guidance that accompanies the Act, to make it more “practical and comprehensive for business”.

The MoJ also confirmed that the Act will not come into force until three months after the guidance is published, although no timeframe has been given regarding when the guidance itself can be expected.

It is hoped that the new guidance is more practical than the current draft that mainly reiterated that issued by Transparency International; rather than being the statutory guidance we would normally expect.

While the Act mainly codifies and clarifies existing common law bribery offences, it has been the subject of much criticism from business leaders as being unclear and harmful to British business abroad.

The main areas of controversy are the introduction of a new corporate offence of failing to prevent bribery, the lack of clarity regarding when corporate hospitality will fall foul of the Act and also concern about facilitation payments that many business leaders argued are a necessary part of business in many overseas jurisdictions.

UK businesses would be well advised to still take action to ensure they have robust corporate ethics and anti-bribery policies in place

Under the new corporate offence, UK companies and senior executives can be criminally liable if someone associated with their company is involved in bribery, including if the offence takes place outside of the UK.

While companies will have a defence if they can demonstrate “adequate procedures” are in place to prevent bribery; what will amount to an adequate procedure is still unclear.

Given that the Bribery Act was enacted under international political pressure, it is unlikely that the Act itself will change. While in a number of respects the Act could be better drafted, it is important to remember that other than the new corporate offence it in general merely puts into a statutory format existing common law rules.

Many commentators have raised concerns that the Organisation for Economic Co-operation and Development may now blacklist UK companies if the Government continues to delay the Act. Indeed the chairman of the OECD Anti-Bribery Group, Mark Pieth, has already stated that their patience is running out.

Construction companies should be aware that the Bribery Act will still come into force; it is simply a matter of when. UK businesses would be well advised to still take action to ensure they have robust corporate ethics and anti-bribery policies in place and that they can demonstrate these when doing business abroad.

Wendy Trehy is a partner in the Employment Team at construction specialists Davies Arnold Cooper