Serious Fraud Office

Stephen Timms Excerpts

Tuesday 7th February 2017 Westminster Hall

[Stephen Timms (East Ham) (Lab)]

I beg to move,

That this House has considered funding of the Serious Fraud Office.

It is a pleasure to serve under your chairmanship, Mr Owen. The Serious Fraud Office owes its origins to the work of the fraud trials committee, set up under the chairmanship of Lord Roskill in 1983 after a series of failures to secure convictions in relation to high-profile City of London scandals. The SFO began its work in 1988.

I know from previous discussions on the SFO in the House that the Minister values its work very highly. He said in one debate that the Roskill model on which the SFO operates is

“essential when it comes to this type of offending. It works and it must continue to be supported.”

He also said:

“It is important that we give our full-throated support to the work of the SFO”.—[Official Report, 2 July 2015; Vol. 606, c. 1610.]

I very much agree with the view that he expressed and I hope it will be shared by other hon. Members contributing to this important debate. It was in the spirit of wanting the SFO to do the best possible job that I applied for this debate on how it is funded. However, it is worth just revisiting at the outset the case for the SFO, because the model has had its detractors, including the current Prime Minister when she was Home Secretary, so the case needs to continue to be made and the arguments need to be spelt out.

The SFO is unique among UK law enforcement agencies. Under the model recommended by Lord Roskill at the conclusion of the fraud trials committee in 1985, it is both investigator and prosecutor of the cases that it handles. A string of failed City of London fraud cases undermined public trust and inspired the recommendation and decision to break with the usual division between those two roles that we see in most of the rest of the English and Welsh legal system. I want to return to the issue of public confidence that justice will be done in fraud cases when arguing that the Government need to look again at the mechanisms by which the SFO is funded.

Legal cases are often complex, but the cases that the SFO deals with are frequently an order of magnitude more complex than others. They involve thousands of documents and a huge amount of complex financial data. The SFO requires multidisciplinary teams working under its case controllers: they are made up of lawyers, investigators, forensic accountants and so on. Those multidisciplinary teams ensure that legal scrutiny is applied to investigations from their commencement.

The Roskill model also ensures that there is no hand-off point, when specialist knowledge and insight developed by investigators and accountants who have been studying a case may be lost as it is transferred to the barristers. That does not happen in the SFO model. Institutional memory and continuity are very important in the prosecution of complex fraud cases, and I am concerned that that important virtue of the Roskill model might be being undermined by the way the SFO is funded at the moment.

The Prime Minister, when she was Home Secretary, tried in 2011 and again in 2014 to bring the SFO into the new National Crime Agency. The Financial Times reported on 5 October 2014 that she was

“to revive plans to abolish the UK’s main anti-fraud and corruption agency and bring it into her new FBI-style national crime force, according to officials familiar with the situation.”

I am glad to say that that move was resisted. The director of the SFO from 2012 to the present, David Green, QC, was clear in his statement that it would

“distract and destabilise the SFO in a really bad way at a time when”

it was “grappling with what” was

“probably its heaviest-ever workload and making real headway.”

He was not alone in making the case against abolition of the office. Bond, the umbrella organisation representing 370 international development organisations, which sees the impact of corporate corruption at the sharp end, with millions lost to public services and community wellbeing in developing countries, co-ordinated a letter to the then Prime Minister in 2015 from seven charity chief executives, in which they suggested three key tests for the Government on bribery and corruption. First, they stated:

“Investigation and prosecution teams should be combined in the same agency.”

The Roskill model achieves that requirement, and a number of observers think that moving the work into the NCA would probably end that beneficial arrangement. Secondly, the letter stated:

“Corruption must be a top priority for that agency, and not simply one amongst many.”

Thirdly, it stated:

“There must be specialist corruption teams”

in the agency.

The current arrangements for the make-up of the SFO meet those requirements, and as a result the UK is one among only four countries that are officially recognised as “active enforcers” of the OECD’s anti-bribery convention. I hope that maintaining that status will be an important concern of the Government and the Minister. Moving the anti-corruption role of the SFO into another agency would undermine UK leadership in this area. I agree with Transparency International UK, which says that it

“strongly opposes the abolition of the SFO unless an alternative is proposed which is demonstrably better. We believe that is highly unlikely given the SFO’s recent success, the instability and damage to caseload that would be caused by abolition, the detailed analysis that went into the creation of the SFO, and the lack of expertise and track record in any other government agencies regarding prosecutions of corporate corruption.”

I therefore hope that the model will be maintained, but how well is the current SFO doing? It is quite difficult to assess its effectiveness. Its case load is deliberately small: under David Green, it has focused its attention, taking the most serious and complicated cases through to prosecution. However, we can say that over the four-year period, 2012-13 to 2015-16, it had a case conviction rate of 81%, although that goes up and down from year to year, and since then it has achieved some important successes, including the first individual prosecutions for LIBOR rigging, which are welcome, and the recent landmark deferred prosecution agreement with Rolls-Royce, which resulted in a fine of £671 million, which was equivalent to the company’s entire operating profits. The SFO is undoubtedly making an impact. The question is whether it is as effective as it could be and as we would all wish it to be.

[Alex Chalk (Cheltenham) (Con)]

I declare an interest as someone who has previously been appointed to the SFO’s “A” panel of counsel. Does the right hon. Gentleman agree that in looking at the SFO’s achievements, it is right to focus also on the sums recovered under the Proceeds of Crime Act 2002 through confiscation? Its track record on that is certainly better than that of equivalent agencies.

[Stephen Timms]

The hon. Gentleman is absolutely right. I certainly do not want to argue that the SFO has not been effective; there is good evidence that it has been. The question is whether it is as effective as it could and should be, and that is why I now want to come to the numbers and my concerns about the way it is funded. It receives its funding as a mix of core costs and what is termed “blockbuster” funding.

[Marie Rimmer (St Helens South and Whiston) (Lab)]

Blockbuster funding can make up a significant amount of the total funding for the SFO. Does my right hon. Friend share my concerns about the lack of transparency around the process for blockbuster funding, which will inevitably cover the most serious and complex cases?

[Stephen Timms]

Yes, I do share concerns about that, and I will come to it in a moment. I hope the Minister might tell us a bit more about how the process works and how decisions are made about whether blockbuster funding is provided. I noticed that in the exchange between my hon. Friend and the head of the Serious Fraud Office in the Select Committee on Justice, he made the point:

“I would like to move to less dependence on blockbuster funding and more core funding”.

I think he is on to something and I want to explain why, in my view, that shift would be worth making.

Blockbuster funding is additional funding allocated on a case-by-case basis where individual, high-profile cases are likely to cost more than 5% of the SFO’s core budget—those costing more than around £1.5 million. To access that funding, the SFO has to apply directly to the Treasury. As I understand it—I hope the Minister will tell us a bit more about this—applications bypass the Attorney General’s office. However, as my hon. Friend the Member for St Helens South and Whiston (Marie Rimmer) has pointed out, the basis on which they are approved or denied is not transparent. I certainly do not know—I would be grateful if the Minister could shed some light on this—what the criteria are for allocating the funding. I know the system was renegotiated by Mr Green in 2012.

[David Simpson (Upper Bann) (DUP)]

Does the right hon. Gentleman think that the way in which the Serious Fraud Office is funded has a detrimental impact on recruiting the proper staff required to do the job?

[Stephen Timms]

Yes, it inevitably does. We have seen a big shift over time away from core funding towards blockbuster funding. That inevitably means fewer permanent staff at the SFO and more temporary staff. That raises a serious concern about how the SFO is able to function. In 2008, core funding was £52 million. In 2015-16, the total budget was about the same, but core funding was only £34 million. For each of the last three complete financial years, the blockbuster funding element was large: £24 million in 2013-14, £24.5 million in the following year and £28 million in 2015-16. In 2015-16, the blockbuster funding was more than 80% on top of the core funding. The SFO’s total expenditure has been as much—perhaps rather more—in recent years as it was in 2008, before core funding started to be reduced as part of the Government’s efforts to cut public spending, but a big slice of the funding today is in the form of this one-off, exceptional Treasury grant. I am grateful to the hon. Gentleman for drawing attention to the fact that, as a result of that, a large proportion of those working at the SFO are temporary staff brought in for a particular case and then laid off when it is concluded.

I would be grateful for the Minister’s comments on whether that is an effective way to run an organisation as important as the SFO. Her Majesty’s Crown Prosecution Service inspectorate certainly thinks that it is not. In its view, the current model is not satisfactory, and I think it has an important point. In its 2016 report, it stated:

“The blockbuster funding model is not representing value for money and it prevents the SFO building future capability and capacity. Temporary and contract staff are often more expensive than permanent staff and managing surge capacity is a constant drain on Human Resources (HR) and other staff. Increasing core funding would provide the SFO with the ability to build capacity and capability in-house and lead to less reliance on blockbuster funding.”

That is the case that I want to press upon the Minister this morning. The evidence is on the inspectorate’s side. At the time of the inspection, 21% of SFO staff were temporary. As of March 2016, 106 of the 510 staff were there on an agency basis and another 35 were there on a fixed-term basis. That level of instability and impermanence would damage any major organisation.

[Alex Chalk]

The right hon. Gentleman is making a powerful and important speech; however, the real question is whether the surge that we have seen in demand, which has given rise to the need for blockbuster funding, is likely to be sustained. Can he shed any light on whether that is perceived to be a likely outcome?

[Stephen Timms]

It certainly has been sustained over a lengthy period, although I think I am right in saying that in the most recent year the funding sharply reduced. For me, that accentuates the problem, because once the funding is sharply reduced, a large number of people get sacked or their employment at the SFO ends and the expertise and experience they have built up is dissipated. It seems to me that we should aim to hang on to that expertise and build up the capacity and skills that the SFO can deploy for its future work.

I am not saying that the 106 people who were there on an agency basis in March 2016 were second-rate or anything like that. I am sure that they were talented people, doing good work. However, as temporary staff they are more expensive than permanent staff and the additional expense does not make sense when the blockbuster funding is consistently high over an extended period—not permanently, but consistently over a long period. Temporary staff will build up skills and expertise during their work with the SFO, which will then be lost as soon as their contracts expire and they leave. That raises concerns about an inability to ensure consistency across the entire duration of a case and build institutional knowledge in the longer term, which was precisely the aim of setting up the Roskill model in the first place 30 years or so ago. Surely we want the SFO to build up its expertise, and having so many people on temporary contracts makes that a great deal harder. At a time when the Government are, for very good reason, pushing for the public sector to spend less on expensive agency staff in areas such as education, Ministers can surely see that the same considerations apply—I suggest even more powerfully—to the SFO.

Managing the human resources implications of blockbuster funding makes it harder, as the inspectorate points out, for personnel staff to do the other things they ought to be doing. The SFO is the only one of the Law Officers’ departments with fewer than half of its staff positions held by women and it has less than half the proportion of disabled people working for it than the civil service does as a whole, at only 3.6% of employees. We know that delivering diversity requires focused human resources effort, but with such high levels of turnover and agency staff at the SFO, HR attention is perhaps inevitably turned elsewhere. That weakens the organisation.

I am sure that the Minister will argue in his response that the director of the SFO has spoken favourably about the blockbuster funding system in the past. To an extent, that is true. Last October, he told the Justice Committee in the evidence session that I referred to:

“There are pros and cons to it.”

The SFO’s submission to the Committee prior to the session stated:

“It is a workable mechanism which allows the SFO to respond flexibly to a demand-led workload.”

That may well be the case, but “workable” is not the same as “optimal”.

I am not arguing that we should not have any blockbuster funding. I entirely accept that such a mechanism can enable the department to cope with fluctuations and ensure that it does not have to turn down a case on the basis of cost, but we have funded getting on for half the SFO’s budget for the last three or four financial years in that way. As a result, it has not been possible to build the expert, permanent workforce that I think we all want to see, so the balance must surely be wrong. Judging from the director’s comments to the Justice Committee, that appears to be his view as well.

There is another important issue. In requiring the SFO to ask the Treasury for additional funding on a case-by-case basis through a pretty opaque process, it is impossible to demonstrate independence about decisions on which cases are prosecuted. I do not want to make too much of that point, but being seen to be independent is important. Making the SFO dependent, case by case, on a Treasury sign-off does not provide that all-important assurance. That problem could be greatly reduced by making core funding a bigger proportion of the overall SFO budget. Another risk presented by the level of blockbuster funding—other Members have raised this matter in the House—is that justice may be delayed if an unnecessary layer of bureaucratic delay is added to the office’s work by its having to apply for blockbuster funding.

The model under which the SFO operates has established the UK as a global leader in tackling corruption, fraud and bribery. That is an important achievement, which we all want to maintain, and I commend the director of the SFO for his progress in focusing the organisation on its core purpose. The recent inspectorate report, however, was right to point out that over-reliance on blockbuster funding makes the SFO less effective than it should be. Will the Minister therefore commit this morning to looking again at the proportion of the SFO’s funding that comes from the blockbuster mechanism? Will he also look again at whether the SFO could do a better job, building up and maintaining better expertise more effectively in the long term, with more permanent staff, if a larger proportion of its funding was in its core budget?

--- Later in debate ---

[Stephen Timms]

I am grateful to everyone who has contributed to the debate. Sadly, I do not think I have time to discuss glam rock. I want to ask the Solicitor General if he will reflect on the fact that everybody who spoke in the debate before him—I think I am right in saying that—agreed that the current heavy reliance on temporary blockbuster funding for the SFO is not the optimal arrangement. He accepted that it was not elegant, but it is not really the elegance that is the concern—it is the fact that it is an expensive way to pay for the SFO’s work and undermines its ability to build up a cadre of long-term, committed expertise.

Motion lapsed (Standing Order No. 10(6)).