Reviewing a law to make sure it is fit for purpose is clearly wise. Legislation can have unintended consequences, so checking that this is not the case makes perfect sense. However, the recent decision to review the Bribery Act seems likely to create confusion and uncertainty, just when clarity and confirmation are needed.
Perhaps one of the most significant achievements of the Bribery Act has been to raise standards in many OECD markets. GoodCorporation is working with international organisations, headquartered in Switzerland, France, Germany and the US, who are actively putting policies in place to prohibit facilitation payments. Any watering down of the Act could put this into reverse, while effectively giving the green light to low-level bribery.
Facilitation payments have always been illegal under UK law; the Bribery Act has not changed this. While some would argue that permitting facilitation payments to create synergy between US and UK anti-corruption legislation is logical, this goes against current anti-corruption best practice and OECD recommendations. It also goes against the direction of travel of many developing countries and emerging markets that are working hard to stamp out these payments.
Even in the US there are calls for the exemption to be removed. Many businesses find that it can be more difficult to determine when a facilitation payment becomes a bribe than to simply rule them out. And FCPA prosecutions are littered with companies that violated the law by making payments that did not fall into the facilitation payment exemption.
What would be more useful for businesses would be clear guidance from the SFO about the scenarios in which companies will be pursued if facilitation payments have been made. It has already been made clear that payments made to protect an individual’s personal security or liberty will not be prosecuted under the Act.
This could be done without undermining the considerable efforts that have been made by many businesses over the last two years to tighten their anti-corruption procedures.
For small and medium sized organisations this need not be costly. Free guidance is widely available and a commitment not to pay or receive bribes is easier to administer than a complex set of guidance clarifying what is and is not legal.
The Bribery Act is widely viewed as a gold standard in anti-corruption legislation, now is not the time to opt for silver plate instead.
Published by Sally McGeachie – June 2013