Following the closure (see previous e-update) of the Bribery Act "adequate procedures" guidance consultation last month, the Law Society of England & Wales ("LSEW") have now published their response to the consultation.
A core principle of the incoming Bribery Act 2010 ("the Act") is that businesses should put in place adequate procedures to prevent bribery. The consultation sought comments on guidance that should be issued by the Government to help organisations put these adequate procedures in place. The consultation contained draft guidance which was broken down into six principles that organisations should consider when implementing their anti-bribery procedures: (1) Risk Assessment; (2) Top Level Commitment; (3) Due Diligence; (4) Clear, Practical and Accessible Policies; (5) Effective Implementation; (6) Monitoring and Review.
The LSEW response to the consultation touches on some of the common issues that have been raised in relation to the Act, including by MacRoberts in our own response. Firstly, the LSEW point out that the draft guidance makes no mention of how organisations can report and/or investigate bribery that they know is currently occurring. It is therefore unclear how and to whom (for example, the Serious Fraud Office ("SFO") or other regulatory body) existing bribery can be reported.
Secondly, the LSEW response points out that the draft guidance does not cover how the provisions of the Act will interact with other offences, such as money laundering offences. This is also true of other offences, such as offences under the Proceeds of Crime Act 2003.
Finally, the LSEW response argues that the definitions within the draft guidance are too vague, and that the practical examples given in the draft guidance are overly-complex.
The LSEW response to the consultation clearly touches on important issues, such as the importance of clarifying how reporting of bribery can be done, and how the Act will interact with other, existing offences. The response, however, does not take account of other important issues such as, how the Act will affect corporate hospitality for small and medium enterprises, and how prosecution will be carried out (particularly in Scotland where prosecution is carried out by the Crown Office & Procurator Fiscal Service, and not the SFO). That said, it is welcoming to see other regulatory bodies such as the LSEW considering and providing feedback on what will be important guidance for all businesses.
The Act is due to come into force in April 2011, with the finalised adequate procedures guidance expected sometime prior to then. Whether, and to what extent, the Government take into account the various consultation responses is awaited with much interest.
The LSEW response to the consultation is available here. The MacRoberts response is also available upon request.
Further information on how the Bribery Act 2010 will affect your organisation is available from MacRoberts website by clicking here.
MacRoberts Compliance and Regulatory Group can advise on all aspects of the Bribery Act 2010.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.