On 30 March 2011 the Ministry of Justice published its guidance about procedures which relevant commercial organisations can put into place to prevent persons associated with them from bribing. If an organisation can prove that it has adequate procedures in place, then they can form the basis of a defence to the offence of failing to prevent bribery under section 7 of the Bribery Act 2010.

Like the draft guidance published in September 2010, the guidance sets out six principles that are intended to give all commercial organisations a starting point for planning, implementing, monitoring and reviewing their bribery free business regime.

However, the principles have been amended from those in the draft guidance to include two new principles, Principle 1: Proportionate procedures and Principle 5: Communication, in the place of the principles in the draft guidance headed: Clear practical and accessible policies and procedures and Effective implementation.

The principles as set out in the guidance are:

·   Principle 1: Proportionate procedures: A commercial organisation's procedures to prevent bribery by persons associated with it are proportionate to the bribery risks it faces and to the nature, scale and complexity of the commercial organisation’s activities. They are also clear, practical, accessible, effectively implemented and enforced.

·   Principle 2: Top level commitment: The top-level management of a commercial organisation (be it a board of directors, the owners or any other equivalent body or person) are committed to preventing bribery by persons associated with it. They foster a culture within the organisation in which bribery is never acceptable.

·  Principle 3: Risk assessment: The commercial organisation assesses the nature and extent of its exposure to potential external and internal risks of bribery on its behalf by persons associated with it. The assessment is periodic, informed and documented.

·  Principle 4: Due diligence: The commercial organisation applies due diligence procedures, taking a proportionate and risk based approach, in respect of persons who perform or will perform services for or on behalf of the organisation, in order to mitigate identified bribery risks.

·  Principle 5: Communication: The commercial organisation seeks to ensure that its bribery prevention policies and procedures are embedded and understood throughout the organisation through internal and external communication, including training, that is proportionate to the risks it faces.

·  Principle 6: Monitoring and review: The commercial organisation monitors and reviews procedures designed to prevent bribery by persons associated with it and makes improvements where necessary.

The guidance notes that as small organisation will face different challenges from those faced by larger organisations and organisations with purely domestic operations may face lower risks of bribery than those with international businesses, bribery prevention procedures should be proportionate, but the outcome should always be robust and effective anti-bribery procedures.

The guidance is aimed at giving clarity on how the Bribery Act will operate and is intended to help commercial organisations of all sizes and sectors understand the procedures they can put in place to prevent bribery as mentioned in section 7(1).

The guidance strongly advocates a risk based approach to adopting adequate procedures, acknowledging that different procedures will be appropriate depending on the size of the organisation, the sectors and jurisdictions in which it does business, as well as the nature of its business partners and transactions. Procedures should be proportionate to the risks faced by the organisation.

The guidance is not prescriptive but after each of the principles it does now suggest procedures which are designed to help organisations address the relevant principles. It will now be for organisations to review their businesses, carry out the relevant risk assessments and determine whether their procedures are adequate to prevent bribery. Where they are not, they should seek to implement anti-bribery procedures without delay.

The Bribery Act will come into force on 1 July 2011.