Government publishes final form guidance on the Bribery Act 2010
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4.4.2011 On 30 March 2011, the Ministry of Justice published final form guidance on the procedures that commercial organisations should put in place to prevent bribery (“the Guidance”). The implementation of the Bribery Act 2010 has been delayed, to allow employers sufficient time to familiarise themselves with the guidance, until 1 July 2011. Under Section 7 of the Bribery Act 2010, a commercial organisation will commit an offence if a person associated with it bribes another person intending to obtain or retain business or a business advantage. However, a commercial organisation has a defence if it can prove that it had "adequate procedures" in place to prevent such acts of bribery. Examples of measures that may be taken by commercial organisations include: Drafting and publicising a statement of commitment to counter bribery and provide the same to all those connected with the business; Allocating roles and responsibilities for implementing anti-bribery policies to persons within the business (led by senior members of management if possible); Offering training and guidance on the Bribery Act, and its effects, to all those associated with the business (not just employees); Drafting a policy and procedure for handling suspicious circumstances and incidents in the business, in a prompt, consistent and appropriate manner; Introducing a contractual provision into employment contracts as well as agreements with suppliers, agencies, and commercial partners, which require the other party to agree to abide by your anti-bribery procedures and policies; Providing clear guidance on making political and charitable donations, gifts, hospitality and promotional expenses; Implementing a code of conduct setting out expected standards of behaviour for employees and other associated persons; Assessing whether existing procedures can be used for bribery prevention purposes, for example, disciplinary procedures, performance appraisals and selection criteria; and Reviewing and maintaining anti-bribery policies and procedures, for example, through effective financial and auditing controls, and identifying appropriate timescales / trigger events for review of the same. This is not an exhaustive list. Commercial organisations may need to implement a variety of procedures in order to prove that “adequate procedures” have been put in place. The Guidance confirms that the standard of proof for establishing the adequate procedures defence is the balance of probabilities. The Government considers that procedures put in place by commercial organisations wishing to prevent bribery should be informed by six principles. Two of the six principles (relating to Proportionate Procedures and Communication) are new and replace those contained within the draft guidance. Commercial organisations will need to familiarise themselves with the Guidance and ensure that they have adequate procedures in place to prevent bribery before 1 July 2011.
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