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Statutory guidance will tell companies how to prevent bribery

A Government minister will have to publish guidance for companies on a new bribery offence that had been criticised for not being clear enough. The Bribery Bill would make it an offence for a company to fail to prevent bribery.16 Feb 2010

That is not against the current law and business advisors had previously said that companies would be unclear about exactly when they would and when they would not be liable under the new law.

The Bill says that companies can escape liability for an employee's corruption if they have adequate anti-corruption measures in place.

"There has been a lot of discussion at business level [about] what is adequate, what is going to be adequate and what is not going to be adequate and will be prosecuted or not," said bribery law expert Claire Shaw of Pinsent Masons, the law firm behind OUT-LAW.COM, last week.

Government minister Lord Tunnicliffe has told the House of Lords, though, that after criticisms of previous plans the Government has now committed to amending the Bill to force the Secretary of State to produce statutory guidance on the subject.

He said that the Government had planned to make guidance available, but that it would not put that requirement into the Bill itself so that it would bind future administrations.

"It was clear from our debate in Committee that many noble Lords did not consider such an undertaking to go quite far enough," said Lord Tunnicliffe. "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."

"Having listened to the arguments, we are content to include in the Bill a requirement on the Secretary of State to publish guidance," he said. "Our approach is to place a duty on the Secretary of State to publish guidance on what procedures commercial organisations can put in place to prevent bribery. We have also included provision for the guidance to be updated from time to time at the discretion of the Secretary of State."

Shaw welcomed the announcement that guidance will be provided but pointed out that it is unlikely to be highly prescriptive. "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 said. "It goes without saying that commercial organisations should get proper advice in this area."

The cases which are likely to be prosecuted are those in which there has been a blatant disregard for the requirement to put measures in place, according to Shaw. "Surprisingly,  there are still companies in this category," she said.

"As a former prosecutor myself, I can say that no prosecutor would want to pursue a case which rested on an argument over whether a policy was clear enough or the training thorough enough to be 'adequate'," she said.  "The burden of proof in such cases is still high and you simply wouldn't risk bringing a case which would either collapse before trial or fail in front of a jury. You would want a very strong case against a company, and would hope that that would elicit an acceptance of wrongdoing on the part of the company such that the case did not go to trial."

The Government said that the Westminster Government would always have to consult with the Scottish Government before issuing any guidance because the law will cover Scotland as well as England and Wales.

"Our new clause will also require the Secretary of State to consult Scottish Ministers before any guidance is published. That is important, as the guidance will relate to the prevention of bribery by commercial organisations operating in Scotland as well as other parts of the United Kingdom," said Lord Tunnicliffe.

Shaw told technology law podcast last week that companies will find it hard to find specific guidelines on what measures they must put in place to avoid liability for employees' bribery.

"You'll 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."

Tunnicliffe emphasised that the guidance that would be issued by the current Government would still be only general.

"We remain of the view that any guidance should not be prescriptive. It is not the role of the Government to provide guidance for commercial organisations on how to resist a criminal charge or to provide, in essence, a tick-box approach for organisations on how to stay within the law," he said.