In March, the Ministry of Justice finally published its guidance on the adequate procedures that companies should implement to comply with the Bribery Act. The Act will now become law on 1 July 2011. Under the Act, corporates and partnerships will be criminally liable for failing to prevent bribery that is committed for their benefit by associated persons, which can include joint venture partners, subsidiaries, agents and employees. The Act provides a full statutory defence if an organisation can demonstrate that it had adequate procedures in place to prevent associated persons from engaging in bribery. The statutory guidance sets out some general principles that are not prescriptive, but are intended to give organisations a starting point for planning, implementing, monitoring and reviewing their bribery-free business regime. As in the draft guidance, the final guidance sets out six principles, two of which (Principles 1 and 5) are new:
- Principle 1 - Proportionate procedures – an organisation’s procedures should be proportionate to the bribery risk it faces
- Principle 2 – Top-level commitment – the top-level management of an organisation should be committed to preventing bribery
- Principle 3 - Risk assessment – the organisation should undertake a periodic and documented risk assessment of its potential exposure to bribery
- Principle 4 - Due diligence – the organisation should apply due diligence procedures in respect of persons who perform services for the organisation in order to mitigate bribery risks
- Principle 5 – Communication – the organisation should seek to ensure that its bribery prevention policies and procedures are understood throughout the organisation
- Principle 6 - Monitoring and review – the organisation should monitor and review bribery prevention procedures and make improvements where necessary.
The implementation date for the Bribery Act 2010 is 1 July 2011, and it is by then that businesses should have in place their adequate procedures to ensure that those working on their behalf do not bribe others.