Strong welcome for Bribery Act draft guidance with some suggestions for improvement
Wednesday, 17 November 2010
In a positive response to the UK Government’s draft guidance to business on preventing bribery – ahead of full enactment of the new Bribery Act next April - Transparency International UK suggests there’s room for further improvement in some key areas.
The anti-corruption watchdog especially welcomes the principles-based approach of the proposed guidance because it avoids the risks of prescriptive standards which can too easily provide a ‘safe harbour’ for companies to shelter against prosecutions.
The areas of the guidance highlighted by Transparency International UK as needing refinement are so-called ‘facilitation’ or enabling payments and ‘offsets’. The latter are arrangements where an overseas country obliges the supplying UK company to make an additional ‘offset’ investment in that country.
According to Transparency International’s research and experience, offsets are a high corruption risk, particularly in the defence sector. For this reason, the watchdog suggests the final guidance should encourage business to apply enhanced due diligence when entering into such arrangements.
In the case of facilitation payments Transparency International UK points out that such payments are already illegal and will continue to be banned from next April. Yet the illustrative scenario in the Government’s draft guidance fails to make this explicit, something which needs to be absolutely clear in the final guidance.
Chandrashekhar Krishnan, Executive Director of Transparency International UK, said:
‘We strongly welcome the draft guidance. It sets out clearly general principles and considerations companies might bear in mind in ensuring they have adequate procedures in place for preventing bribery and are compliant with the Bribery Act.
‘Even so, the guidance cannot serve more than a minor role in influencing corporate conduct. What matters most is a zero tolerance approach to bribery and support from the top for a robust set of consistent anti-bribery rules. These must be based on a clear and specific understanding of how each company does its business – something only the company itself has.
‘We look forward to the publication of the final guidance early next year, so the Bribery Act can commence in April 2011 without further delay. Under no circumstances must the final guidance result in any dilution of the Bribery Act – or any further delay. Transparency International UK would oppose any proposals with these effects.’
Note TI-UK’s response is to the Ministry of Justice (MOJ) consultation on guidance about commercial organizations preventing bribery (Section 9 of the Bribery Act 2010). The consultation period ended on 8 November 2010. The full text of TI-UK’s response is here: