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”.
