Bill of right

The bribery bill was one of the lucky fifteen to make it into the Queen’s speech last week. It has been a long, hard road for this piece of legislation.

The government signed the OECD Convention, committing itself to provide adequate and appropriate legal framework in this area, in 1997. Twelve years on, we are still waiting; but probably not for much longer.

You may not know this, but the UK’s international reputation for enforcement and prosecution of bribery is lamentable; even when measured against other countries that are generally perceived to be more systemically corrupt.

But the new rules, which could be enacted before the next election, will put many UK business leaders firmly on the hook for bribery and corruption within their businesses and sales channels.

The killer punch hidden within this new bill is that companies will soon be criminally liable for a failure to prevent bribery. This is new, and it means that ignorance is no longer a defence, if it ever was.

Alongside this, there is the introduction of a specific offence of bribing foreign public officials. The combination of these elements is a cause for serious reflection and review of current policies and practises in UK companies.

If this sounds scary, the bribery bill proposes a defence where the company can show that it has implemented “adequate procedures” to prevent bribery.

This is where it gets interesting. The legislation will not be retrospective, but neither will any scramble to throw a few internal policies together to avoid liability or achieve mitigation.

“Adequate procedures” implies a continuum of culture, behaviour and properly embedded controls; in other words, a sustained (and sustainable) process, not a one-off event.

The fact is that, if you are running a major organisation across multiple territories and markets, your business is highly exposed to the risk and you could well be paying bribes somewhere in the world without knowing about it.

And if your controls and procedures aren’t up to scratch, it could take at least twelve to eighteen months to build them up, in which case you can forget about the adequate procedures defence unless you act now.

Company directors and other senior executives need to face up to this issue as never before and figure out where their companies might be at risk and where they, as legally responsible individuals, can take comfort that they are not in breach of the law.
Will Kenyon is a partner at PricewaterhouseCoopers