Catherine responded yesterday (3rd November) to a Westminster Hall debate on ‘prosecuting corporate economic crime’, in her role as Shadow Attorney General.

You can read Catherine’s speech below, and a full transcript of the debate is available here.

Catherine McKinnell: It is a pleasure to serve under your chairmanship, Mr Stringer. I congratulate my hon. Friend the Member for Ealing North (Stephen Pound) on securing this important debate on prosecuting corporate economic crime, and on his argument, which he put forward with his customary elegance. The debate is timely, in the light of recent announcements by Ministers. I congratulate all the hon. Members who have taken part in the debate, who made powerful contributions and set out strongly the arguments that the Government should listen to. Each of them made important points, to which I shall refer. I do not mean to diminish the Minister’s presence when I say that I am disappointed that neither of the Law Officers could attend the debate. I hope that is not a sign of Government obfuscation on these important issues.

Like my hon. Friend the Member for Aberavon (Stephen Kinnock), I am not here to bash bankers. The City of London is the world’s second-largest financial centre and a major contributor to the UK economy. Its success is clearly founded on the professionalism and integrity—for the most part—of those who work in the sector. That is why we cannot allow its reputation to be undermined by the actions of the minority who engage in fraud, corruption and market manipulation. Yet despite the events of 2007 and 2008, and all that has followed—parliamentary commissions, Select Committee inquiries and the setting up of new regulators—economic or white-collar crime remains a serious problem in the UK. We need only look at the horrifying spectre of LIBOR rate rigging to be reminded of why the Government cannot rest on their laurels in this matter; yet the ability of our law enforcement agencies and prosecutors to tackle such pernicious crimes remains limited.

As my hon. Friend the Member for Ealing North pointed out, the Government gave some promising signals. They announced the introduction of a senior managers regime to hold named executives to account for their actions, and they pledged to introduce a new corporate offence of failure to prevent economic crime. It is disappointing that that was not, as my hon. Friend pointed out, etched in stone, but it was in the manifesto for all to see. Both proposals were seen as vital to prevent the repetition of the failings of the past and bring the UK regime into the 21st century. However, in both cases the Government have backtracked.

What do we know about the reasons for the Government’s change of heart about the corporate liability offence? According to a response to a written question to the Ministry of Justice,

“there is little evidence of corporate economic wrongdoing going unpunished”.

That is despite the fact that according to the Financial Conduct Authority banks have paid an estimated £1.8 billion in compensation for mis-selling financial products such as interest rate swaps, and have already set aside an additional £27 billion to compensate for payment protection insurance mis-selling. That is not to mention the £4.4 billion lost each year to tax evasion, according to the latest estimates from Her Majesty’s Revenue and Customs, or the countless banks and financial institutions that are being investigated by the Serious Fraud Office for various types of misconduct, but have not yet been prosecuted. Why have the Government concluded that no action is required? I hope that the Minister can enlighten us.

Some recent disclosures are cause for concern. Last month the Treasury published the national risk assessment, the first comprehensive assessment of the risks of money laundering and terrorist financing—both from within the UK and flowing through it. It is the first assessment of its kind and has been highly anticipated since the Government committed themselves to producing it, in their 2014 anti-corruption plan. The Government’s assessment of the risks posed by elements in the financial sector is clear:

“The size and complexity of the UK financial sector mean it is more exposed to criminality than financial sectors in many other countries, including abuse enabled by professional enablers in the legal and accountancy sector”.

Nevertheless, the report notes that the UK has “significant intelligence gaps” with respect to money laundering, despite what is judged to be a serious threat from, for example, the legal, banking and accountancy sectors. The conclusions are not encouraging:

“The UK’s response is well developed, but more needs to be done to ensure it is commensurate with our status as a well regulated global financial centre.”

The message is clear: far more needs to be done. I would therefore welcome reassurance from the Minister that something is being done. The aim must be to ensure that the appropriate measures are in place to deter behaviour that facilitates or contributes to the committing of economic crime. That would not only encourage good practice and the right corporate culture, but mean that wrongdoers were held accountable, which would be a deterrent. There is widespread concern that the UK’s current corporate liability regime is not up to the job. That is the view of the Law Commission and the OECD’s working group on bribery, both of which have produced seminal work on the subject. Both concluded that the current regime does not allow the UK to hold corporations and key persons within them to account effectively for their part in economic crimes.

In its extensive work on the UK’s corporate liability measures, the Law Commission described the present regime as

“an inappropriate and ineffective method of establishing criminal liability of corporations”.

It also noted the unfairness inherent in the identification doctrine, explained by my hon. Friend the Member for Ealing North, which makes it far easier to prosecute smaller companies, where the “directing mind” is more easily determined, than large corporations with much more diffuse chains of command.

Stephen Pound MP: My hon. Friend raises a point that has given me pause for thought. Does she agree that there is such a thing as a corporate culture in certain companies—I think that there is ample evidence of such behaviour—and that if, often, the culture is not in the interest of probity or the wider public, it is difficult to identify the person of whom an example should be made? If the culture is allowed to fester and permeate, inevitably it spreads. Does my hon. Friend agree that there is an issue of identifying an individual, pour encourager les autres at the very least?

Catherine McKinnell: My hon. Friend makes an important point that goes to the heart of the argument. My hon. Friend the Member for Aberavon argued cogently that ultimately, we need a better way of establishing responsibility for the actions of a company and those who serve within it. It is not enough for those at the top to wash their hands of responsibility for the actions of the officers and employees who operate, act and work under the company’s name.

There needs to be much greater clarity about the legal framework. Many bodies, including the Law Commission, have called for that. What is even more key is that the Government seem to share that view. In a consultation undertaken in July 2015 on the introduction of a new corporate offence of failure to prevent tax evasion, the Government concluded:

“Under the existing law it can be extremely difficult to hold the corporations to account for the criminal actions of their agents”.

That observation has been made by the Government and Ministers on several occasions, as well as by my hon. Friends in their contributions today.

The Law Commission, the OECD working group and the director of the Serious Fraud Office point to section 7 of Labour’s Bribery Act as a potential solution. As my hon. Friend the Member for Ealing North set out in his speech, section 7 of the Bribery Act makes it an offence to fail to prevent bribery. It places the onus on companies to prove that they have put in place adequate procedures to prevent bribery, and is widely seen as a far more effective way of holding companies and the individuals within them to account, which is why many want to see that model extended to other types of economic crime.

Stephen Kinnock MP: We have talked a lot about accountability and trust today, but another important word here is “risk”. We saw in the events leading up to 2008 and the collapse of Lehman Brothers a systemic failure to manage risk. It is in the interests of both Government and the private sector more broadly—the real economy and the financial services sector—to put systemic measures in place in order to manage risk in a way that ensures the appalling events in and following 2008 never happen again. Some regulation of the market is therefore, by definition, required as a risk management tool. Does my hon. Friend agree?

Catherine McKinnell: My hon. Friend makes an important point and anticipates my next point. First, I want to clarify exactly where the Government seem to be on this issue.

The Government’s recent announcement has caused much confusion among those who care about this issue, because it seems to be very much at odds with what they have been saying and the messages and signals they have been sending out. In his first speech as Attorney General over a year ago, the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright) suggested that he was considering the section 7 proposal. We then discovered, in an answer to a written parliamentary question, that it had been dropped.

We need clarity from the Minister today about exactly why that decision was made and what the Government will do to ensure that our concerns are addressed if they are not proceeding with that proposal.

The director of the Serious Fraud Office, David Green, has made clear his support for the expansion of section 7 of the Bribery Act. He has described how useful it would be in order to better facilitate the use of deferred prosecution agreements. My hon. Friend the Member for Neath (Christina Rees) set out eloquently how deferred prosecution agreements work and their potential importance in dealing with some of the issues that have been highlighted. It is no secret that the Serious Fraud Office director favours the use of DPAs, which are currently more widely used in the United States. To clarify, they provide for a corporation to avoid prosecution by entering into an agreement with a number of conditions attached, which may include paying a financial penalty, paying compensation or co-operating with future prosecutions of individuals. In doing so, they avoid prosecution. The aim is to hold key individuals to account, to secure significant financial penalties from companies that have committed wrongdoing and ultimately, to prevent future wrongdoing by encouraging or mandating reforms within those companies.

Deferred prosecution agreements are not without their critics, but they have been widely used in the US for the past 20 years or so and brought in some $4.2 billion to the Department of Justice in 2014 alone. One key problem with importing the use of DPAs to the UK is that they are intended to be a carrot, while the stick is the prospect of prosecution for corporate economic offences.

Stephen Pound MP: My hon. Friend is giving us a masterclass, and it is greatly appreciated. I am sure that she, like me, felt her heart leap when the American authorities started to act against FIFA using their Foreign Corrupt Practices Act. Does she agree that we can learn much, for once, from the American example and the action they took against the appalling, utterly corrupt situation regarding FIFA? I am not remotely comparing any British business to FIFA—it would be hard to find anything outside the Augean stables or the seventh circle of hell that compared to that organisation. The Americans seem able to achieve things that we cannot. Is that because of the quality of the excellent US Attorney General and her staff, or should we be learning from the American legislation?

Catherine McKinnell: My hon. Friend makes an important point. We should not shy away from learning lessons from any jurisdiction that manages to control risk, as my hon. Friend the Member for Aberavon highlighted, and to hold companies to account where wrongdoing has occurred. Where there are lessons to be learned from the US, we should learn them and do what we can to implement them within our own system. We could then hold ourselves up as a beacon for other countries and hold our heads high as a well-regulated, world-leading financial centre. That has to be our aim in all of this.

As my hon. Friend the Member for Neath pointed out, without the fear of corporate economic crime being prosecuted, there is little incentive for companies to enter deferred prosecution agreements and no incentive for companies to co-operate with the SFO to change their practices as mandated under a DPA. Unlike in the US, which has far stronger vicarious liability laws, there are still far too few corporate prosecutions in the UK under the current identification principle. No matter how much we may wish to learn from the United States—if that is what we see as the right way forward—without a strengthened corporate liability regime we will be hampered in our efforts to implement such changes.

Finally, I turn to another area that shows concerning signs of backtracking by the Government and in which we would otherwise have seen individuals in companies held accountable for their own and others’ actions. In its 2013 report on the banking sector and how to prevent the failings that led to the 2008 crash, the Parliamentary Commission on Banking Standards similarly recognised the difficulty in identifying individuals and holding them to account. One of its key recommendations was to introduce a senior managers regime to hold named executives personally responsible for key risks in the bank. That issue was raised by my hon. Friend the Member for Aberavon, who made a powerful speech about encouraging better and more responsible management within companies in order to change bad practice where it is found. The commission recommended that the regime place a burden of proof on those named executives, who would have to show the regulator that they had done all they reasonably could to prevent failings or misconduct if they were to avoid sanction.

Christina Rees MP: Does my hon. Friend agree that even though we have the legislation in place in section 7, there is no will to use it? That is the problem. There has not been a single prosecution.

Catherine McKinnell: My hon. Friend raises a concern relating to the Bribery Act, but there are two ways of looking at the Act’s implementation and the fact that no prosecutions have yet happened under it. There is evidence that it has already brought about significant changes in corporate culture, and that the managers tasked with the responsibility of ensuring that they have taken all the steps they could reasonably be expected to have taken to prevent bribery in their organisations have taken those steps. Some positives can therefore certainly be derived from the situation, but I agree that a very close eye needs to be kept on prosecutions. I note that there are already murmurings from the Government about backtracking on the Bribery Act and trying to weaken that legislation, and we must stay vigilant about that.

On the senior managers regime, the Commission recommended that the regime place a burden of proof on those named executives. The recommendation was accepted by the Government and enshrined in the Financial Services (Banking Reform) Act 2013. However, the Bank of England and Financial Services Bill, which is currently in the other place, is set to reverse that burden of proof, meaning that instead, the regulator—the Financial Conduct Authority—will be required to prove that senior managers have failed in their duty to prevent misconduct or prudential failings. The onus will be back on the regulator, and not on the named senior executives. Is that just more backtracking from the Government, who seem to be going soft on economic crime? I would be grateful if the Minister provided reassurance that that is not the case.

Ministers urgently need to look again at their approach to tackling economic crime, because without change, the prospect of ensuring that justice is served to those who have mis-sold financial products, evaded tax, laundered money and defrauded seems as remote as ever, and the risk of the scandals of recent years being repeated has far from disappeared.