Whilst the basic principles of the Bribery Act 2010 were welcomed by most, from the very start there were concerns about the affect its provisions would have on the way that business works on a practical level in the UK (and all over the world).

Now, two years since the legislation was introduced, there are voices in the business community questioning whether the provisions might be holding UK businesses back, particularly small and medium sized enterprises, and that this could actually be affecting our economic recovery.

This view was voiced to the House of Lords committee on small and medium-sized businesses recently, where company representatives claimed that the Bribery Act had introduced a competitive disadvantage for UK businesses, particularly in the context of trying to break into emerging marketplaces like Russia and China.

There was also a feeling that the reality of the introduction of the legislation was that it had just created more administrative processes – yet another hoop for businesses to jump through.

The fact that there have been few prosecutions under the Bribery Act (only three by the CPS and none by the SFO) seems to support the idea that it is not being as effective as it was thought it would be. However, many reason that simply not enough time has passed since the legislation was introduced and that, as the Bribery Act is not retrospective, behaviour that took place before it was introduced is not covered – hence the lack of prosecutions.

One of the areas of particular concern for business has been the ruling out of ‘facilitation payments’ by the Bribery Act, as these are seen by many as essential in order to gain entry into new jurisdictions.

Some in the UK would like to see these payments exempted from the legislation’s reach, although others insist they were never legal in the first place and that all the Bribery Act did was put that on the statute books. Whatever the position, there are certainly signs that the international community is starting to introduce pressure to ban them in other jurisdictions, such as the US.

It is not yet clear whether there is any appetite for watering down the Bribery Act in the UK, although insiders say that whilst the government - in the form of the MOJ and BIS - might be open to thinking about reform the Attorney General is definitely not.

Aside from the effects of the legislation itself, there is also the issue of how the Bribery Act is being understood and interpreted for small businesses within the legal community. There has been a lot of criticism of how some law firms without the requisite experience have suddenly begun offering advice on this area of law and that this is resulting in a lot of confused interpretation of what the legislation actually means.

Some are worried that small and medium sized enterprises are not being properly advised on what they actually need to do to put the provisions of the Bribery Act into practice and to avoid being caught up by its penalties, and that a great deal of over complication is taking place to generate fees.

At Stephensons we believe the Bribery Act needs to be given context - the key differentiator seems to us to be that whilst all businesses, large or small, need to bear the ethical considerations of the Bribery Act in mind (and put something in writing) not all need an extensive compliance policy, and the time and money that will cost. If you would like advice on the Bribery Act and implications for your business we can help.