The Council has a duty to protect its integrity, and uphold responsible and fair business practices under the Local Government Act 1972 (Section 117) and The Bribery Act 2010.
The policy has been developed to protect the reputation of the Council, its Members and Officers thereby ensuring the highest level of ethical standards in relation to all business activities undertaken.
It is an offence to bribe, or attempt to bribe, a public official and for such an official to accept a bribe.
It is an offence for an officer of a local authority whilst in working capacity, to accept a bribe.
A bribe is defined as a fee, gift, reward, inducement, advantage or loan promised or provided in order to gain any contractual, commercial or personal advantage or influence.
Payments or gifts known as “facilitation payments”, to accelerate the prompt and proper performance of routine government procedures and processes are also strictly prohibited.
There is some discretion relating to hospitality and business gifts. In order to be excluded from the policy, they must not be financial or bear the individual’s name.
Overall responsibility for policy implementation rests with the Clerk to the Council, however, all staff are obliged to adhere to and support the principles contained within the Policy.
Staff should also be aware that hospitality and promotional gifts may be construed as bribes. There is minimal definition, and if any doubt exists then individuals should decline thereby ensuring that they do not place themselves in a compromising position.
Those who do not comply with bribery legislation are liable to disciplinary action by the council and may face criminal prosecution. Penalty fines will be levied and/or imprisonment, depending upon the severity of the case.
Who is covered by the Policy?
Under Section 7 of the Bribery Act the Council may be liable to be prosecuted for an offence if a person associated with it bribes another person, intending to obtain or retain business or a business advantage for the organisation. It is a defence for the organisation to show that it has in place “adequate procedures” designed to prevent bribery by its “associated persons”. A person is associated with an organisation if it performs services for or on behalf of that person, e.g. as employee, subsidiary, agent or subcontractor.
There are four key offences under the Act:
- bribery of another person (section 1) – described as active bribery.
- accepting a bribe (section 2) – described as passive bribery
- bribing a foreign official (section 6)
- failure by a commercial organisation to prevent persons associated with it from bribing another person on its behalf (section 7)
The Bribery Act 2010 makes it an offence to offer, promise or give a bribe (Section 1). It also makes it an offence to request, agree to receive, or accept a bribe (Section 2).
The guidance that accompanies the Bribery Act 2010 states that a “commercial organisation” is any-body formed in the United Kingdom and “…it does not matter if it pursues primarily charitable or educational aims or purely public functions. It will be caught if it engages in commercial activities, irrespective of the purpose for which profits are made.” There are circumstances in which the Council will be a commercial organisation for the purposes of section 7.
This policy is intended to ensure that the Council has in place the necessary procedures to act as a defence to a section 7 offence.
This Policy applies to all Members of the Parish Council and all staff.
Gifts and Hospitality
This policy does not prohibit normal and appropriate hospitality (given and received) to or from third parties.
The giving or receipt of gifts is not prohibited, if:
- it is not made with the intention of influencing a third party to obtain or retain business or a business advantage, or to reward the provision or retention of business or a business advantage, or in explicit or implicit exchange for favours or benefits.
- it complies with the law;
- it is given in the Council’s name, not in your name;
- it does not include cash or a cash equivalent (such as gift certificates or vouchers);
- it is appropriate in the circumstances. For example, in the UK it is customary for small gifts to be given at Christmas time;
- taking into account the reason for the gift, it is of an appropriate type and value and given at an appropriate time; and
- it is given openly, not secretly.
The Council appreciates that the practice of giving business gifts varies, the test to be applied is whether in all the circumstances the gift or hospitality is reasonable and justifiable. The intention behind the gift should always be considered.
For Councillors the acceptance of a gift or hospitality with a value greater than £50 (on one occasion or from the same donor within one year) must be declared on their Declaration of Interest form. Staff must register the acceptance of gifts or hospitality to the Chairman of the Council.
Gifts and Hospitality – what is not acceptable?
It is not acceptable for you (or someone on your behalf) to:
- give, promise to give, or offer, a payment, gift or hospitality with the expectation or
- hope that a business advantage will be received, or to reward a business advantage already given;
- give, promise to give, or offer, a payment, gift or hospitality to a government official, agent or representative to “facilitate” or expedite a routine procedure;
- accept payment from a third party that you know or suspect is offered with the expectation that it will obtain a business advantage for them;
- accept a gift or hospitality from a third party if you know or suspect that it is offered or provided with an expectation that a business advantage will be provided by the Council in return.
- threaten or retaliate against another member or worker who has refused to commit a bribery offence or who has raised concerns under this policy; or
- engage in any activity that might lead to a breach of this policy.
Whether an organisation’s procedures are adequate will ultimately be a matter for the courts to decide on a case-by-case basis. As required by the Bribery Act 2010, adequate procedures need to be applied proportionately, based on the level of risk of bribery in the organisation.
The nature and extent of the Council’s exposure to potential external and internal risks of bribery on its behalf by persons associated with it is periodically assessed. This includes financial risks but also other risks such as reputational damage.
The Council takes 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.
Potential risk scenarios: “red flags”
The following is a list of possible red flags that may arise during the course of your work and which may raise concerns under various anti-bribery and anti-corruption laws. The list is not intended to be exhaustive and is for illustrative purposes only. If you encounter any of these red flags while working for the Council, you must report them promptly to the Chairman of the Council.
- you become aware that a third party engages in, or has been accused of engaging in, improper business practices;
- you learn that a third party has a reputation for paying bribes, or requiring that bribes are paid to them,
- a third-party insists on receiving a commission or fee payment before committing to sign up to a contract with us, or carrying out a government function or process for us;
- a third-party requests payment in cash and/or refuses to sign a formal commission or fee agreement, or to provide an invoice or receipt for a payment made;
- a third-party requests an unexpected additional fee or commission to “facilitate” a service;
- a third-party demands lavish entertainment or gifts before commencing or continuing contractual negotiations or provision of services;
- a third-party requests that a payment is made to “overlook” potential legal violations;
- a third-party requests that you provide employment or some other advantage to a friend or relative;
- you receive an invoice from a third party that appears to be non-standard or customised;
- a third party insists on the use of side letters or refuses to put terms agreed in writing;
- you notice that the Council has been invoiced for a commission or fee payment that appears large given the service stated to have been provided;
- a third party requests or requires the use of an agent, intermediary, consultant, distributor or supplier that is not typically used by or known to the Council;
- you are offered an unusually generous gift or offered lavish hospitality by a third party