My favourite misquotation is “money is the root of all evil” or for those of you with a Latin bent, “radix malorum est cupiditas.” The correct quotation of the words from the King James Bible, 400 years old almost to the day, is in 1 Timothy 6.10. “For the love of money is the root of all evil;…..” The addition of the concept of the love of money completely alters the usual misquotation.
Now I would not want my reader to think that references in the rest of this piece to the Bribery Act 2010 are all about a failure to quote correctly or accurately. Much has been written about this piece of legislation since it was first passed last year not least because of the furore over the inability of the MoJ to publish the guidance promised by section 9 which in turn has led to the postponement of the date when the Act comes into effect. In fact more nonsense has been written about the Act than on almost any other topic I can currently think of. There are of course honourable exceptions to this broad criticism but when you realise that US business has had to deal with the Foreign Corrupt Practices Act for over 30 years it is difficult to understand what the fuss is all about.
For those of you who been elsewhere and have not become heartily sick of the whole subject, I will leave you to peruse the Guidance now published, the Quick Start Guide and the Act itself by clicking on the links below:
In the vast majority of cases, I suspect that most sensible thinking people will instinctively know what is a bribe and what is not. Even the Daily Telegraph strip cartoon character Alex knows this, witness a recent cartoon about the in house corporate wine tasting event! As the punchline had it:
“They’ve shown themselves unable to tell the expensive wine from the cheap stuff.”
If a business associate offers me an all expenses paid luxury trip to Augusta for the US Masters’ Golf Championship, is this a bribe? If a developer offers to build an element of social housing into a proposed development and / or agrees to build a bypass in order to win planning permission, is he guilty of an offence under the Act? If you take a client to the theatre, to the Cup Final, to see the Nicks play in New York or invite clients and contacts to a party at the top of the Millbank Tower (sorry if your name was not on the list!) are these bribes? Do they fall foul of the legislation?
And what about politicians who make promises to the electorate which they then carry out once elected, has the electorate been bribed? And what about all those broken promises…There always seem to be more of them somehow!
Most people will be able to judge the answer to these questions correctly for themselves. After all, it looks like a duck, walks like a duck and quacks like a duck, it probably is a duck – to misquote a well known saying. See also A duck’s a duck, 28th October, 2010.
Personally I always use what I call the Daily Mail Test. Now I am not an avid reader of the Daily Mail but many people are, but, for me, the value of a publication like the Daily Mail in this connection is that it is a publication which has “causes” which it promotes with fervour and “investigations” which it pursues with zeal. I take the view, therefore, that in business, if I would be happy for my acts or omissions to be the subject of a report in the Daily Mail it is probably OK. If I would be unhappy to see my acts and omissions reported in that particular journal then I question whether those acts and/or omissions are right/justified/justifiable. That is not to say that the Daily Mail is the final arbiter of such matters but about whether I feel comfortable about potential criticism of me appearing in its pages.
Links to the Act itself and to the Guidance now published by the MoJ are above and anyone who is interested will be able to immerse themselves in the six principles and the defence of “adequate procedures.” The six principles are designed to help companies decide what they may need to do differently if they are to be able to rely on the defence that there were adequate procedures in place to prevent bribery. They are:
- Proportionality: ie you need to tailor your actions so that they are proportionate to the risks you run.
- Top Level Commitment: as so often it is essential that those at the top of an organisation buy into and are seen to buy into the idea that your staff understand that you will not tolerate bribery (see 5 below).
- Risk assessment: pretty obvious really. If you are starting to deal with new customers think about the risks that dealing with them may pose for your business.
- Due diligence: again fairly obvious.
- Communication: If your staff do not know what the policy is on bribery or the way the company does business, they can hardly be expected to assist in ensuring that you do not become embroiled in activities which may amount to offences under the Act.
- Monitoring and review: Keep a record of what you do to prevent bribery and monitor what is going on.
So what, I hear you shout. Well, in my view there are going to be some major changes in the way law firms are perceived and the way in which they run themselves over the next few years not just because of the Bribery Act (which I doubt will have much impact but where I will be interested to be proved wrong) but because of the Legal Services Act about which there seems at present to be little or nothing going on, unless like the graceful swan that glides by on a calm river, there is a huge amount of submarine paddling going on to keep the ship afloat!
Clients of law firms will have to take the Bribery Act seriously and there will inevitably be occasions when the procedures they adopt will be the subject of scrutiny which will raise the spectre of what will need to be disclosed in order to take advantage of the adequate procedures defence. Inevitably there will be work for litigation support providers and law firms in managing the electronic element of all this.
My other reader will doubtless remember the concerns felt by many in business by the approach of the Millennium. It all seems a long time ago and my only real memory is of feeling rather sick (absolutely nothing to do with the excellent claret I had been drinking shortly before or the large glass of brandy I was then nursing) at seeing the sainted Tony linking arms with the Queen (who looked distinctly unhappy) and joining in a rendition of Auld Lang Syne (surely the ghastliest song ever written) on New Year’s Eve 1999 while watching the spectacular failure of the fireworks’ display along the Thames.
However, a number of people became very excited at the prospect of computers being unable to handle the change from 1999 to 2000, on the basis I recall that the computers then in use had all been built at a time when no one had given any thought to the prospect of 99 becoming 00. Dire predictions were made. Aircraft would fall out of the sky because their in flight systems would fail or the computers used by air traffic controllers would freeze so that the controllers would be unable to guide the planes to a safe landing. Traffic would snarl up because all the traffic lights would be stuck on red or green at the moment the change occurred and of course businesses would suffer because none of their computers or other systems would work when everyone returned to work from Tony’s celebrations. On January 1st 2000 it would not only be hangovers which would have a deleterious effect on productivity.
A whole industry grew up over what became known as Y2K. Lawyers constructed risk assessment programmes to sell to their clients and I confess to being involved in some of these exercises. Of course, when it came to it, the world sailed serenely on as if changing to 00 from 99 was something we all did all the time.
Is this going to be the case with the Bribery Act? With all that is being written about it and the seminars which have been organised for worried businessmen and their advisers, will July 1st 2011 come and go as if the Bribery Act was still no more than a gleam in the last Government’s eye? There will always be some organisation which will fall foul of the provisions of any new legislation and I am sure the Bribery Act will claim its victim(s) in due course but will the world of business as we know it come to an end?
Somehow I doubt it. For most of us ordinary folk, the Bribery Act could turn out to be another “duck that never quacked” – but don’t quote me on that!