Legal Brief: Bribery Act faces further delays

Those lawyers who have spent the past 12 months caught up in the seemingly endless saga that is the long and, in some quarters, nervously awaited Bribery Act were faced with another delay earlier this month.

The Act, passed during the dog days of the last Labour administration, was due to come into the statute book in April. The latest delay means that the new measures designed to curb some of the worst excesses of corporate hospitality may not come into effect until the Autumn.

While some are exasperated by the hold up, to many it is a sensible move by the Ministry of Justice, allowing it to clear up some of the confusion around how the Act will ultimately be applied.

“There should be clear guidelines with regard to hospitality,” says Michael O’Kane, head of business crime at Peters & Peters. “Guidelines need to be clear and robust about what is expected of companies, but there will remain a concern about the outlawing of facilitation payments.”

In essence, what companies and their advisers want to know is whether prosecutions can be brought when the fault lies with a third party.

Freshfields Bruckhaus Deringer litigation partner Paul Lomas is another who has been following the twists and turns of the Act over the last year.

“The core of the problem is that a UK business can be exposed to criminal liability by a bunch of people it cannot control and top management may not even know exist,” he says. “It’s difficult to be confident that your procedures are adequate to deal with that.”

The consensus is that a delay will allow lawyers and their concerned clients to get a better idea of just what circumstances will and will not make them liable. But the ultimate form of the guidance is unlikely to satisfy everyone.

“People have to be realistic about how prescriptive the guidance can be,” says Norton Rose anti-corruption group head Sam Eastwood. “Compliance procedures have to be tailored to the individual company. The difficulty is that the act is quite broad, and some would say that’s necessarily so.

“There appears to be an understanding among the political establishment that, for business, the Act is going to be difficult to come to terms with.”