Time to iron out the Bribery Bill

Posted on 3 Feb 2011 by The Manufacturer

Howard Wheeldon welcomes the extended consultation period for the proposed Bribery Bill but says we can ill-afford to drag our feet

Opponents of the Bribery Bill will have been extremely pleased to hear recent reports that the Coalition government intends to push back implementation beyond the anticipated April deadline. My understanding is that Justice Secretary, the Rt. Hon Ken Clarke, has indeed sensibly decided now that in the wake of much hostile criticism highlighting a lack of clarity within the Bill, an additional period of consultation is both desirable and sensible before implementation. Still, though, the chances of the Bill being watered down by much are probably minimal.

The Bribery Bill is the UK response to the OECD Anti-Corruption Convention that established binding standards and related measures aimed at criminalising bribery of foreign public officials in international business transactions. It was agreed by all thirty-four OECD member states plus four other non-member country signatories: Brazil, Bulgaria, Argentina and South Africa. All of the thirty-eight signatory nations agreed in 2009 to put in place new measures as soon as practicable that would allow for reinforced effort to prevent, detect and investigate foreign bribery.

The British Labour government, then led by Gordon Brown, had been very quick to put in place a new Bill during the final parliamentary session of 2009/10 and that would instigate the OECD anti corruption convention agreement. Indeed, the then government actually received considerable all party support that allowed the new Bribery Bill to be quickly pushed through before the dissolution of Parliament. Complicated and confusing though it is, the essence of the Bribery Bill is that companies would face unlimited fines should they fail to prove that they have adequate procedures in place to prevent bribery and, also, that a company would be liable should one of its employees anywhere in the world be caught offering bribes. There is of course much more to it than just this and much of it appears to those involved as too many loose ends. For instance, what constitutes a bribe actually is less easily defined – a point that has even led some concern to be expressed over providing lunches, coffees, drinks and other forms of ‘normal’ hospitality.

Despite having backed the initial Bill, the Conservative Party let it be known during the General Election campaign that it had misgivings. This was probably the result of lobbying and the bottom line appeared to be not that the Bill should be repealed but simply that a greater period of explicit consultation was required. By July last year little more than two months following the General Election and on the back of acquiescing to an additional consultation period being required, the Coalition Government first appeared to kick implementation of the Bill into touch. Seven more months on and as a direct response to those that are still demanding greater clarity on issues such as what level of foreign customer entertaining and hosting really is now permissible the government has now done that again – this time giving no end date.

Quite rightly in our view, the great and good within UK industry and commerce fully accept the need for a Bribery Bill. But as long as they remain unclear as to the principle definitions and requirements of the rather hurried Bill that is in front of them now, particularly in terms of requirements to enshrine adequate procedure, it seems that allowing an extended period of consultation is sensible. Great care is needed by the Justice Secretary though. Having been at the front of the queue to pass new bribery based legislation a year ago it would be wrong for the Coalition government to drag its feet on this one for too long. Scraping the Bribery Bill is not an option and we suspect that any repeal would demand too much parliamentary time. Indeed the Coalition government would I believe find it very difficult to water down the proposals as they stand albeit that there could be some better resolution and definition.

Clearly in whatever we do from here on we must somehow ensure that we protect the best interests of Britain. However, as an OECD signatory and one that carried huge respect internationally and diplomatically we must also be aware that whether true or not in the eyes of the rest of the world Britain has not always it seems behaved with perfect discretion when it comes to chasing out bribery and corruption when this great imposter has appeared. Arguably those that wave the hand of criticism at Britain may have a few skeletons in the cupboard as well but there we are! Certainly Britain does have more than its fair share of critics and it is these that have played a small part focussing OECD attention on the need for improved and agreed global bribery rules fro which Britain and others have rightly signed up. Any delay in implementation of a refined Bill must be temporary if our reputation is to be enhanced. Certainly we do not wish to be seen by our international peers and competitors as the villains of the peace!

It is thus hugely important in our view that the government listens to the concerns of industry and commerce and works very hard to remove any remaining confusion in the Bill. No one is saying that the Bribery Bill as proposed is unacceptable of course or laying any blame on the last government for rushing it through. But they are saying that without a correct and precise understanding of definitions in the Bill that as it stands right now it could well be unworkable. It is also true that some in industry consider the UK translation of OECD bribery requirements to be found in the new Bill as being the toughest anti-corruption rules to be found anywhere in the world. They worry too about those that will not be signing up quite so easily or that could well drag their feet now allowing others to take advantage of those that have been tied up. That said it is important that rather than attempt to push this Bill into the long grass that the government works hard now to iron out concerns expressed and implement whatever now comes from an extended consultation period.