The Bribery Act 2010 (“the Act”) came into force on 1 July 2011. It applies to all corporate bodies and introduced a new criminal offence of failing to prevent bribery by persons associated with the organisation. The Government has issued its own guidance on the Act (including a quick start guide) and although now in force for a couple of years, Schools (and in particular governing bodies) should ensure they have taken steps to ensure compliance with the Act.
There is a full defence available to organisations that prove they have ‘adequate procedures’ in place to prevent bribery. The starting point for Schools is to assess how they are exposed to an act of potential bribery. It will then be possible for a School to address how it may put adequate procedures in place to prevent the committal of bribery offences.
The Act provides for two general offences covering the offering, promising or giving of a bribe (active bribery) and the requesting, agreeing to receive or accepting of a bribe (passive bribery).
It also sets out two further offences relating to bribery of a foreign public official in order to obtain or retain business or an advantage in the conduct of business and a new form of corporate liability for failure to prevent bribery on behalf of a commercial organisation.
What should Schools be doing to comply with the Act?
Schools should assess the risk of exposure to bribery. If the School is recruiting overseas, consider which markets are operated in, how services are procured, the level of control of key persons and the method in which any financial donations are made.
Defence of “Adequate Procedures”
The Government considers that procedures put in place by commercial organisations wishing to prevent bribery should be informed by 6 principles which are detailed below. These are intended to be flexible and will need to suit the needs of the organisation concerned bearing in mind its relative size and resources. The outcome however should be the same for all in that there should be robust and effective anti-bribery procedures in place.
Principle 1 – Proportionate Procedures
The first principle is for a School to ensure that they have procedures in place which are clear, practical, accessible, effectively implemented and in force. This means that a School will need to consider adopting a bribery prevention policy and should tie this in with other procedures in the organisation, to ensure that they are a practical and realistic means of achieving the organisations stated anti bribery policy objectives. Other employment related policies and procedures which may be relevant to the anti-bribery policy include the School’s:
• Recruitment Policy
• Admissions Policy
• Reference Policy
• Whistle blowing Policy
• Bursary and /or Scholarship Policy
This is of course not forgetting the employee’s contract of employment and tying in any policy with regard to discipline and grievance.
The School will also need to consider its commercial activities and those who perform services on behalf of the School whether in procurement, recruitment of overseas pupils, development and fundraising.
Principle 2 – Top Level Commitment
It is clear from the Guidance that the onus on compliance with the Act falls to the governing body. The governing body as the ‘top layer’ in a School needs to ensure that at governing body level they give consideration to whether a statement of commitment or values is appropriate to demonstrate a culture where bribery is unacceptable. They also need to consider what would constitute ‘adequate procedures’ taking into account the relative size, resources and activities of the School.
Principle 3 – Risk Assessment
The third principle is for the School to undertake a bribery risk assessment of any potential internal and external risks of bribery and keep an up to date record of these. Schools should have a system(s) in place to review and update risk assessments on a regular basis, particularly where circumstances change. This should be clearly documented.
Principle 4 – Due Diligence
Principle four is that Schools should ensure as far as they are able that they have adequate information and should carry out due diligence on persons who perform (or may perform) services on behalf of the School. This may include investigating or vetting agents working on the School’s behalf. These procedures should be proportionate to the identified risk.
Principle 5 – Communication and Training
Principle five is communication (including training) throughout the organisation. The Government guidance states that commercial organisations need 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 risk it faces.
External communication could be through a statement or code of conduct addressing how the School addresses bribery prevention. Internal communications should reflect the “top level commitment” as set out in principle two and should focus on the implementation of policies and procedures and the implications for employees. Like all procedures, training should be proportionate to risk but some training is likely to be effective in firmly establishing an anti bribery culture whatever the level of risk. Certain posts may need additional training where staff are involved in procurement and staff working in development or fund raising.
Principle 6 – Monitoring and Review
It is essential that Schools monitor and review procedures designed to prevent bribery by persons associated with it and make improvements where necessary. It is worthwhile reviewing existing policies on expenses and hospitality as well as procedures to ensure that concerns about bribery will be effectively raised and tackled.
Can you still accept that invite to the races? Genuine hospitality will not be caught by the Act. However the Government guidance recognises that hospitality can be dressed up as a bribe and this will be caught. Hospitality should be in line with realistic expectations and Schools should ensure that any acceptance of hospitality is transparent and recorded.
We are happy to assist with training on the Bribery Act or provide you with specific tool kits and risk assessments. If this would be of interest, please do get in touch.