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Bribery Act guidance softens stance on facilitation payments

Long-awaited government guidance on the forthcoming Bribery Act has suggested a softer approach to facilitation payments and corporate hospitality than previously mooted.

The guidance, published by the Ministry of Justice, says firms should not worry that they will fall foul of the law if they invite clients to major sporting events.

It also says that while companies should make every effort to avoid making facilitation payments, it is not expected that the practice will be wiped out overnight.

“The eradication of facilitation payments is recognised at the national and international level as a long-term objective that will require economic and social progress and sustained commitment to the rule of law in those parts of the world where the problem is most prevalent,” the guidance says.

The language used in the guidance has been interpreted as a softening of the government’s previous stance on facilitation payments.

Kevin Hills, a partner in the fraud investigation and dispute services team at Ernst & Young, told Construction News: “This is a sensible middle ground that says ‘over time you’ve got to stamp this out guys’ but there’s a recognition as well that, in the short term on certain occasions, facilitation payments may have to be made.”

Mr Hills said the guidance also removed any likelihood that construction firms would be penalised if another company much further up or down the supply chain had not taken adequate action to minimise any risk of bribery.

Instead they just have to ensure they have taken all reasonable measures to check the next contractors in the chain had done so.

The guidance says: “The principal way in which commercial organisations may decide to approach bribery risks which arise as a result of a supply chain is by employing… anti-bribery procedures… in the relationship with their contractual counterparty, and by requesting that counterparty to adopt a similar approach with the next party in the chain.”

Construction companies and others have three months to finalise their preparations before the act comes into force on 1 July. The Ministry of Justice has published a “quick start” guide aimed at smaller companies to help them make the changes.

 

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