There has been so much commentary about the Bribery Act of late, with opinions ranging from”the end of business as we know it – end of corporate hospitality, Wimbledon jollies etc. Etc” to our Justice Minister, who thinks that honest UK companies have nothing to worry about. Well, I fear the reality lies somewhere between the two, but tending slightly towards the cautious camp.

I was at a charity dinner the other night, when after a rather boring but well meaning speech to philanthropic intentions, the toast was proposed “to our charitable causes, may we never need them”. How then, did my mind switch to the Bribery Act?

My train of thought was thus: Perhaps at the next next board function you attend, the toast might be “to adequate procedures – may we never need them”. This brings home the reality of the “adequate procedures” defence under the Bribery Act 2010. The strict liability offence under the Act of failing to prevent bribery means that if someone “associated” with your organisation (which, by the way, has quite a broad scope, encompassing not only employees, but agents, intermediaries, contractors, consultants, and even joint venture partners, suppliers etc if they perform services on your behalf) bribes someone, then you are guilty of an offence unless you can show that you had those self same “adequate procedures” in place.

The Ministry of Justice Guidance on the procedures requirement is deliberately “not prescriptive”, but an assessment of bribery risks is seen as an essential for all organisations. This will in turn determine not only the proportionate procedures that need to be put in place, but also the amount of due diligence required and the level of “tone from the top” commitment required from the board and senior management team.

So here is the real risk assessment – will it happen to us? This is a genuine question you need to ask yourself. Unlike some other areas of compliance, don’t expect a regulatory visit, action plan, and time to put things right. If the law enforcement authorities come knocking, it’s because bribery has happened, and you, as an organisation, has liability for failing to prevent it. No good taking the dust covered folder off the shelf an asserting ” we have a policy “, you will need to prove an informed, periodic and documented risk assessment, the the correct procedures emanating from it. In these circumstances, a light approach is unlikely to succeed, in fact, if it’s not done properly it’s a complete waste of time. So back to the real risk assessment, and should we or shouldn’t we?

There is also a commercial incentive to get your act together in respect of this. We are already seeing major building projects stipulating that potential contractors will have to show compliance with the provisions of the Bribery Act 2010.

By the way, a corporate body faces unlimited fines for offences under the Act, and directors or senior managers who can be seen to have connived in the payment or receipt of bribes can face up to ten years imprisonment.

Stuart Melhuish

Stuart Melhuish is a Director of Venalitas a specialist consulting, training and software company, created to assist companies to manage their risks from the Bribery Act.