The Government has pledged to amend the under-debate Bribery
Bill to force ministers to publish and maintain guidance on what
'adequate measures' are that companies can take to combat
bribery.
The Bribery Bill creates a new offence for companies, which will
become liable for bribery conducted by employees if they have not
put in place adequate anti-bribery measures.
After business advisors questioned whether businesses would know
what this meant, the Government said that it would change the law
to require the publication of guidance.
The OECD's guidance tells companies that they should adopt clear
anti-bribery policies that senior staff prominently support.
“[There should be] strong, explicit and visible support and
commitment from senior management to the company's internal
controls, ethics and compliance programmes or measures for
preventing and detecting foreign bribery,” it said.
It said that companies should also ensure that “oversight of
ethics and compliance programmes or measures regarding foreign
bribery, including the authority to report matters directly to
independent monitoring bodies such as internal audit committees of
boards of directors or of supervisory boards, is the duty of one or
more senior corporate officers, with an adequate level of autonomy
from management, resources, and authority”.
The OECD said that the policies and actions of a company should
depend on the specifics of the company's situation.
“Effective internal controls, ethics, and compliance programmes
or measures for preventing and detecting foreign bribery should be
developed on the basis of a risk assessment addressing the
individual circumstances of a company, in particular the foreign
bribery risks facing the company (such as its geographical and
industrial sector of operation),” it said.
The Government made its concession on guidance related to the
new offence as the Bill passed through the House of Lords.
Government minister Lord Tunnicliffe told the Lords that the
Government had always planned to produce guidance on what counted
as an adequate anti-bribery measure under the new law, but that it
would now make the maintenance of guidance compulsory.
"It was clear from our debate in Committee that many noble Lords
did not consider such an undertaking to go quite far enough," he
told the Lords. "Clearly, no Government can bind their successor
and I can understand that there might be nervousness on the part of
the business sector that guidance may not, in the event, be
available to them."
Bribery law expert Claire Shaw of Pinsent Masons, the law firm
behind OUT-LAW.COM, said that even with Government guidance,
companies will still have to make sometimes difficult decisions
about what measures to put in place.
"Each commercial organisation's business model and risk profile
will be different, so it is important that the measures [to prevent
bribery] are tailor made for that company," she previously told
OUT-LAW.COM. "It goes without saying that commercial organisations
should get proper advice in this area."
"You're never going to get prescriptive advice from a
prosecution agency such as the SFO [Serious Fraud Office] on what
will be adequate and what won't," she said. "They don't want to
fetter their discretion and set up too-firm guidelines or rules
because each case is judged on its merits."
The OECD guidance said that companies should have in place “a
system of financial and accounting procedures, including a system
of internal controls, reasonably designed to ensure the maintenance
of fair and accurate books, records, and accounts, to ensure that
they cannot be used for the purpose of foreign bribery or hiding
such bribery”.
They should also, it said, have “documented training for all
levels of the company on the company’s ethics and compliance
programme or measures regarding foreign bribery, as well as, where
appropriate, for subsidiaries”.
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