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Sat, 28 November 2020

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By Lord Garnier
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Going soft on white collar crime?

Going soft on white collar crime?
5 min read

Labour's Shadow Attorney General Catherine McKinnell MP writes in response to the Westminster Hall debate today on  'Prosecuting corporate economic crime'.

The Government has shelved plans to toughen up laws on economic crime – it needs to think again.

Sometimes it seems that this Conservative Government is content to say one thing yet do quite another.

Take tax credits, for example. During the election the Prime Minister made a solemn, straight-to-the-camera promise not to cut tax credits. There was also no mention of it in their Manifesto. Yet the Government stormed ahead with a plan to make devastating cuts leaving some 3 million working families an average £1,300 a year worse off.

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Thanks to Labour members in the House of Lords, they’ve had to re-think and we will certainly be paying close attention to whatever proposals come out next.

Then, late September, we saw another change of heart, sneaked out  in an answer to a Written Parliamentary Question.

This U-turn was on the Government’s plans to tighten up the laws governing economic crime - money laundering, fraud and false accounting.

The Attorney General made this commitment over a year ago  in a speech in Cambridge, and it was re-stated in the Government’s Anti-Corruption Plan published last December.

And crucially, the 2015 Conservative Manifesto pledged to make “it a crime if companies fail to put in place measures to stop economic crime, such as tax evasion, in their organisations.”

Yet when asked in a recent Written Parliamentary Question how progress was going, the reply that came confirmed the idea had been shelved, the reason given that "there is little evidence of economic crime going unpunished”.

No evidence of economic crime going unpunished?

Take fraud, for example.  KPMG’s twice-yearly fraud barometer reports that fraudulent activity in the UK totalled £385 million in the first half of this year – up 22% from a year earlier.

And according to  PwC’s Economic Crime Survey, the proportion of employees committing economic crimes has risen to 41% – almost half of which are committed by junior staff.

Yet prosecutions fell by a fifth between 2011 and 2014.

That is why I am pleased that Steve Pound, MP for Ealing North, has secured such an important and timely debate in Parliament today to put these issues directly to the Government.

One major concern,  shared not least by the Director of the Serious Fraud Office (SFO), David Green, is that the current regime simply isn’t up to the job of putting corporates in the dock.

Currently, a company may be criminally liable only for the acts of the “directing minds or will” of the company, which in most cases will be the board of directors, the managing director or in certain cases other senior employees.

This sets a high bar, particularly for large companies with complex and diffuse chains of command.  Judges have increasingly struggled to apply the current law, to the point where  the Law Commission have declared it as suffering from 'considerable uncertainty’. So there is a strong case for legislation in this area to bring some much needed clarity. 

Indeed, this potentially encourages senior personnel to “seal” themselves off from decisions and activities taking place lower down the company, in order to protect themselves from liability. Just the sort of behaviour many fear led to the financial crash in 2007/08.

It is therefore little surprise that we have seen so few large companies prosecuted.

The Government seemed to recognise this, announcing in its  2014 Anti-Corruption Plan that it would examine “the case for a new offence of a corporate failure to prevent economic crime and the rules of establishing corporate criminal liability more widely.”

One suggestion has been to apply something similar to Section 7 of the Bribery Act, introduced under the last Labour Government, as a potential way forward.

This has made it an offence to “fail to prevent bribery” and has placed the burden on companies to prove that they have put in place “adequate procedures” to prevent it.

Many, like the  Law Commission and  Director of the SFO, believe this provision could be extended to cover all types of economic crime.

Indeed, even the Attorney General suggested it himself.

Because, while we have not yet seen any prosecutions under Section 7 (it came in to force in April 2011) PwC’s Economic Crime Survey reports that 87% of organisations have changed their policies and procedures directly as a result of the Bribery Act.

It acts as a clear deterrent, bringing about a much-needed change in corporate behaviour. Now the wider corporate liability laws need to catch up with this, because the system is still open to abuse.

The banks are  setting aside billions of pounds in compensation for mis-selling, and according to  HMRC’s latest estimates, the taxpayer is losing £4.4 billion every year to tax evasion. There are also several institutions reportedly currently under investigation by the SFO.

The bottom line is that this climbdown represents yet another broken promise from the Tories. Saying one thing before an election and then doing another.

It also risks becoming a glaring example of this Government's unfair choices: cutting tax credits for millions of working families while going soft on white collar crime.

A U-turn on this issue would be welcome - they should take the opportunity without delay.

Catherine Mckinnell is MP for Newcastle upon Tyne North and Shadow Attorney General

Read the most recent article written by Catherine McKinnell MP - The onus is on us to prove that things have genuinely changed for Jewish Labour members

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