If you believe everything you read you might think that today bribery is legal, widespread and that without it business will grind to a halt from April under the Bribery Act.

Today (and it isn’t February 2nd yet) Jonathan Fisher QC writes in the Daily Telegraph.

In the opening paragraph Mr. Fisher says:

“When the Bribery Act is implemented in April, businessmen will be required to inform the Serious Organised Crime Agency (SOCA) on every occasion where a facilitation payment is made, no matter how small it is, or whether a criminal prosecution for corruption is most unlikely.”

Groundhog day

In short the central thesis for changing the Bribery Act in this article is that when it comes into force (hitherto unforseen) money laundering reporting obligations will apply.

Don’t get POCA’d

We don’t agree they are unforeseen (we highlighted money laundering issues last year) and it is the case that those drafting the Proceeds of Crime Act were well aware of the broad ambit of that law when it was put onto the statute book.

There is much that can be said about this legislation and it’s not all good.  However, one thing that cannot be said about it is that it’s provisions are triggered by the Bribery Act in circumstances where they would never have applied before.

Why?

Given:

(i) the making of facilitation payments is illegal today (and as a result, unsurprisingly shall remain so under the Bribery Act); and

(ii) the money laundering legislation in its current incarnation has been in force for a decade

it follows that, broadly speaking, any reporting obligation already exists and is not brought about by the coming into force of the Bribery Act.

So while we agree with the objective of the piece that facilitation (or so called grease) payments are an area of concern (we made the point in our submission on the consultation) the Bribery Act should not be set up as a whipping boy for the problems which already exist under current laws.

Finally, much is said by reference to the US exemption on facilitation payments.  It is of course worth keeping in mind that that exemption is itself the subject of some controversy with commentators questioning its true value and highlighting that using it is not as straightforward as you might expect.

As they say: life is never simple…