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government consults on guidance for bribery prevention procedures

4 October 2010

The UK Bribery Act 2010 comes into force next April. Amongst other things, the Act makes it a criminal offence for a business to fail to prevent bribery. Where one of the employees or an associated person of a business has engaged in bribery, the only defence is to show that the business has adequate procedures in place to prevent bribery.

The Ministry of Justice has recently published draft guidelines to enable businesses to assess whether they have adequate procedures in place. There are six principles which the Government considers important in analysing whether procedures are adequate:

Risk assessment - businesses should regularly and comprehensively assess the nature and extent of the risks relating to bribery to which they are exposed.

Top level commitment - the top level management (board of directors, owners or similar) should be committed to preventing bribery, should establish a culture in which bribery is never acceptable and should take steps to ensure that the policy is clearly communicated to all levels of management, the workforce and any relevant external people.

Due diligence - businesses should have due diligence policies and procedures which cover all parties in a business relationship, including supply chains, agents and intermediaries, joint ventures and similar relationships and all markets in which business is done.

Clear, practical and accessible policies and procedures - policies and procedures to prevent bribery being committed on behalf of businesses should be clear, practical, accessible and enforceable and take account of the roles of the whole work force and all people and entities over which businesses have control.

Effective implementation - businesses should effectively implement their anti-bribery policies and procedures and ensure they are embedded comprehensively to ensure that the development of policies and procedures reflects practical issues faced when seeking to conduct business without bribery.

Monitoring and review - monitoring and review mechanisms should be put in place to ensure compliance with relevant policies and procedures and identify any issues as they arise. Businesses should implement improvements where appropriate.

These draft principles dont tell businesses what they should do, but instead are intended to help in developing procedures. So, businesses still have to make some decisions e.g. how widely to carry out due diligence in their market place.

Consultation on the draft guidance ends on 8 November 2010. The final guidance is unlikely to be radically different and businesses should be looking to put in place adequate procedures sooner rather than later.

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