It is said that it is far better to give than to receive. That may be so, but under the Bribery Act 2010 both may be an offence, so ‘receiving’ may now have the edge.

After a false start or two, the act will finally come into force on 1 July.

Seldom has an act had such a varied press, and the decision in January to delay the accompanying guidance document did little to help.

Chandrashekhar Krishnan, executive director of Transparency International UK (a non-governmental anti-corruption organisation), described the decision to delay as ‘disastrous news’, and after publication of the guidance declared that ‘parts of it read more like a guide on how to evade the act’.

Not a fan then.

Conversely, the CBI described the initial act/guidance combo as ‘not fit for purpose’ (for entirely contrary reasons); though its reaction has been warmer since the new guidance was published.

So who is right? As Harry Hill might say, there’s only one way to find out... Instead, we chose debate and the passage of time.

The justice secretary Ken Clarke tells us that ‘everyone agrees bribery is wrong’ (except presumably those who engage in it), and certainly no one would wish to argue with the act’s objectives of ensuring free and fair competition.

But did the government choose the right way forward?

Well, it would have been pushing it to suggest (as some newspapers have) that our existing laws, embodied as they are in acts of 1889 and 1906, could instead have been brought up to date.

Having ratified the OECD anti-bribery convention in 1998 (and committed to certain standards) we had little choice but to proceed as we have.

Yet it is easy to see Krishnan’s point about delay given that, while the US has ‘enjoyed’ the Foreign Corrupt Practices Act (FCPA) since 1977, it took the BAE debacle of 2006-2008 to galvanise the UK into action.

The act itself has been around – albeit not in force – for just over a year and is relatively straightforward. In essence it creates four new offences to replace those of the old law (which turned on proving ‘corruption’).

First, there is a ‘section 1’ offence of what might be called ‘active bribery’ (giving, promising or offering a bribe).

Second, we have the ‘section 2’ offence of ‘passive bribery’ (requesting, agreeing to receive or accepting a bribe).

Third, a ‘section 6’ offence (bribing public officials). The act covers both public and private sectors.

The key will be ‘intention’. Not easy to prove. Penalty for non-compliance? A maximum of seven to 10 years in prison.

So far so good, but what has created a storm for business has not only been the broad description of ‘relevant activity’ (which includes acts during employment that are expected to be performed in good faith, impartially or under a position of trust) but in particular the fourth offence.

Adequate procedures

This latter ‘section 7’ offence is a major focus of the act and relates to a commercial organisation failing to put in place ‘adequate procedures’ to prevent persons associated with them from ‘bribing’ or ‘being bribed’.

Given the possibility of an unlimited fine, this has been a matter of much concern to the CBI and others – and as the new guidance was required under the act to illustrate the section 7 offence, there must have been much lobbying before the final version was produced.

How is section 7 engaged?

Confusingly, the new guidance tells us that an individual conviction for bribery will not be required, but it goes on to state that, unless the prosecution can prove beyond ‘reasonable doubt’ that a section 1-6 offence has been committed, the corporate offence in section 7 will not be triggered – which suggests that they need not prosecute the individual but must still be able to do so successfully.

Curious.

This is not the only concern with the guidance.

While some have described the act as the toughest in the world, many have seen the guidance as a bit of a cop-out (especially when placed next to the original draft).

While the first attempt led to PwC and others expressing fear that simple Christmas gifts to clients may be caught, the final version has led others to suggest that Clarke has been ‘got at’ by the employers’ lobby.

Either way, employers still have the problem that the guidance is not prescriptive.

Compliance will ensure safety no more than a departure from its six principles will spell disaster. In short, it is just what it says on the tin, ‘guidance’.

In fairness, the new version is also readable and does grasp a nettle – the question of corporate hospitality, which is at the heart of the CBI’s ­concerns.

Arranged in three sections, the guidance explains the act, sets out the six principles and ends with examples of each of the principles as envisaged in practice (for example, large employer A offers a potential customer B the use of a domestic elf... and so on).

Of course, even if a section 1-6 offence has been committed, the commercial organisation can provide a defence of having adopted ‘adequate procedures’, which is where the six principles come in.

These are straightforward, ranging from top-level commitment through risk assessment, due diligence, communication, to monitoring and review.

Proportionate procedures

For many, though, it is the first principle of ‘proportionate’ procedures that will generate anxiety. For, while the guidance relates this to the level of risk, most will appreciate that in practice it could also relate to size and resources (indeed the guidance itself hints at this).

What this means in practice is that for commercial organisations (including solicitors) there will be a short window until the end of June to review procedures to ensure that they at least fit within the principles.

Larger organisations are more likely to be in the initial line of fire for Crown Prosecution Service attention should ‘bribes’ be discovered (with others waiting for real guidance from the courts as the prosecutions begin).

It is imperative too that organisations remember the territorial extent of the act and the fact that it covers not just employees but others associated with them (which would include individual or corporate consultants, contractors, agents and so on).

For the generally law-abiding, most concern centres on hospitality and business expenditure.

Here, the guidance cheered business by clarifying that it is not intended that ‘bona fide hospitality... which seeks to improve [your] image... present [your] products and services, or establish cordial relations’ should be caught by the act.

But the question then becomes what is reasonable and proportionate hospitality; the guidance states clearly that disproportionate hospitality could still become a bribe.

Most law firms can rest assured that the client lunch at Nando’s will be safe; but what of Formula 1 teams, where hospitality is traditionally lavish? And there is also the question of the intention behind the ‘gift’; in certain contexts this too will prove challenging.

What is particularly bracing is that the act will cover not only offences in the UK but also those committed outside it, where the person committing them (or the organisation in the case of section 7) has a suitably close connection with the UK.

This will cover British nationals and those ordinarily resident in the UK, as well as a body incorporated in the UK. It will also cover organisations which carry on a business or part of one in the UK wherever it is incorporated.

In short, we shall police the world.

We can therefore expect fun with US corporations whose UK subsidiary companies have problems with an overzealous agent in, say, the far east.

Will it be the FCPA or the act?

Again, there is only one way to find out. Perhaps we can look forward to Trey Parker directing Team GB: World Police.

Coming to a court near you from 1 July...

Darren Clayton is co-founder of Doyle Clayton, London