That post title sounds a bit like a philosophical treatise by John Milton, doesn’t it? But actually I am referring to the rather less abstract Bribery Act 2010. I’ve been talking about this legislation a lot this week, mostly in the form of apologies to Guernsey clients for visiting it upon them. Our area of concern is, of course, the ever-popular section 7 offence of failure of commercial organisations to prevent bribery. And how might they fail? By not having in place “adequate procedures” to prevent bribery. And as I said the phrase over and over again, it occurred to me how, well, inadequate it is.
I do realise that the drafting of legislation is a process akin to horsetrading, albeit with more manure – we’ll give ground on this point if you let us win on that one. And so I can imagine that someone at the outset of the drafting of the Bribery Act wanted the defence to be having in place “comprehensive procedures” or “appropriate procedures” or even “effective procedures”. Then it was lunchtime and out came the sandwiches, and the “effective procedures” chap wanted the prawn bap, but someone else had already grabbed it – and then offered to swap it for his chicken panini and something a bit less demanding like, I don’t know, “adequate procedures”. And so we have ended up with just the most unambitious of standards. How was your holiday/dinner/emergency surgery? Oh, adequate. It’s hardly the standard for which to aim, is it?
I hate money laundering 
Ah, but you can’t have “effective procedures” as the defence, as the corporate offence can only occur after someone in or connected to the organisation has paid a bribe, in which case the carefully designed anti-bribery programme is obviously not “effective” but could still be deemed as (barely) “adequate”. I also love the choice of language around this legislation!
Well-argued, Keith – you are absolutely right. Perhaps they should have admitted the silliness of the situation by requiring “passable procedures”, or “procedures-ish”. Isn’t it a shame that, having made the decision that there should be a corporate offence (and I’m not saying that this was the right decision), the legislators then lost their nerve and we ended up with this wishy-washy standard of adequacy. And if something is to be judged to be adequate, don’t we need to say “adequate to… what?”?
It reminds me of the Queen of Hearts in “Alice in Wonderland”: “Sentence first! Verdict afterwards.”
Best wishes from Susan
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