Government guidance on the Bribery Act (published today) brings a period of uncertainty for British business to a close. GoodCorporation welcomes the clarity the guidance brings to hospitality and facilitation payments, but questions a number of major omissions and out-dated exemptions.
Much of the guidance is clear, straight forward and broadly in line with best practice. Many companies already operate within such rules. However there are a number of areas that are still unclear or even permit activities that many companies ruled out long ago.
The guidance gives the green light to corporate hospitality providing it is both ‘bona fide’ and proportionate stating that it was never the intention to criminalise activities that sought to ‘improve the image of a commercial organisation (…) or establish cordial relations’. This is common sense and will be welcomed by business. Luxury trips with no business purpose will rightly be regarded as questionable.
Yet the guidance muddies the water here by stating that spouses may accompany a business executive on a foreign visit to meet a prospective supplier. Most organisations stopped doing this long ago and would be surprised to see it permitted here.
Facilitation payments to public officials are definitely outlawed, though not where employees are placed under duress, such as being detained by authorities for no good reason. In addition, public interest will be taken into account to ensure prosecuting resources are not spent on minor offences.
Areas most likely to cause concern are the exemption from the Act of companies listed in London but conducting their operations and activities outside the UK and the lack of clarity regarding acts of bribery by agents and subsidiaries.
The guidance states that prosecutors will need to see proof of intention to gain advantage, not just the gaining of advantage. This feels like a watering down of the Act and hardly clarifies the task of ensuring that a business has adequate procedures to prevent bribery.
For business it is now all systems go in preparing for the Act. Companies that have done this already are unlikely to need to change much after this guidance. Those who have been waiting and seeing no longer have an excuse to dilly-dally. Those who have not yet woken up to the Act, will have to hope for the best.”