The CSC is cooperating with the World Bank and other academic and development partners to solicit ideas for using data analytics as an anti-corruption tool in public administration. In this post, CSC Director Liz David-Barrett explains how such tools might help policy makers.
Read more ›Robert Barrington, Professor of Anti-Corruption Practice at the Centre for the Study of Corruption, looks at how the new Biden administration will change the international anti-corruption scene – and what this might mean for the government of the UK.
The election of Joe Biden is a game-changer for the UK government in the global fight against corruption. A mere five years ago, at the London Anti-Corruption Summit of May 2016, David Cameron and John Kerry were setting out an ambitious agenda for global leadership. Cue Brexit, Trump, China. Since 2016, neither the UK nor the USA has shown the same leadership on corruption, allowing China and Russia to take tentative steps to fill the vacuum.
Read more ›Recently, the Local Government Association published a ‘model’ Code of Conduct, which it advises the approximately 21,000 elected Council representatives in England and Wales to follow. Guest blogger and Independent Councillor Paul Millar argues that, rather than setting a ‘gold standard’ for conduct in local authorities, the Code is less strict than many councils’ existing codes and includes a significant loophole.
The Local Government Association, the representative body of Councils in England and Wales, in December 2020 published a ‘model’ Code of Conduct. It includes some really progressive changes such as promoting equalities and not discriminating unlawfully against any person. This is welcome: too many Councils still offer no maternity pay protection for Councillors in senior positions.
But the new advised codes regulating gifts and hospitality do not go nearly far enough.
Read more ›The 2020 Corruption Perceptions Index was published on 28 January 2021. One score that was eagerly awaited was that of the USA. Perhaps predictably, the US performed worse than it did in 2019. Is Donald Trump’s departure likely to mark a turning point in the anti-corruption thinking in the USA? Highly likely. That shouldn’t distract from the fact that the USA’s corruption problems go deeper than making sense of the behaviour of one now former president. It’s going to take time (and no little effort) to genuinely turn the ship around.
On 28th January 2021 Transparency International (TI), one of the world’s most prominent anti-corruption NGOs, published its annual Corruption Perceptions Index (CPI). The USA continued its recent downward slide, coming in 25th (out of 180) with a score of 67 (out of 100). The drift has been gradual but pronounced; as recently as 2017 the USA was in 16th (with a score of 75).
The CPI ranks countries based on how much public sector corruption is believed to exist. The data comes from 13 expert surveys plus information gleaned from polls of business executives. The better a country is doing in terms of counteracting corruption, the closer its score will be to 100. The closer to 0 the worse the corruption. Denmark and New Zealand top the list (88 points), Syria (14), Somalia (12) and South Sudan (12) fill the bottom three places.
As I’ve noted elsewhere, the CPI is not a failsafe way of measuring corruption. For one thing, and as its name suggests, it’s an indicator of perceptions and not reality. Its focus is on public sector corruption rather than indiscretions that take place within the private sector. Coming up with a simple score that does justice to complex corruption networks is also a task fraught with difficulty. But, as an indicator of broader trends, the CPI still gives corruption-watchers a feel for how corruption patterns are developing.
COVID RESPONSES AS WEATHER VEINS
The rollercoaster presidency of Donald Trump has certainly played a role in the USA’s worsening performance. But, getting a grip of ideas of good and bad governance also helps us understand how and when patterns of corruption are likely to change. Good governance matters all the time. But it is particularly important in times of crisis. When the quality of governance slips, expect crises to highlight all of the weak points in political systems. The USA in 2020 is a perfect case in point.
Strong oversight mechanisms, for example, are important in preventing abuse of hastily put together relief packages. That’s true whether the relief concerns supporting victims of weather-related disasters such as Hurricane Katarina or indeed health crises such as Covid 19. In the case of the former claims have been made that over US$1bn was siphoned off by fraudsters. In the case of the latter, it’s been argued that close friends of Donald Trump received in excess of $10bn dollars of that relief spending to distribute whilst blanket exemptions from ethical reviews were seemingly granted. In the words of TI, this sort of approach to relief package management “raised serious concerns and marked a retreat from longstanding democratic norms promoting accountable government”.
MOVING FORWARD
How does the USA begin to row back against this? The consensus in the anti-corruption would suggest looking at three specific things. Firstly, politicians will inevitably make mistakes. That goes with the territory. Being able to spot the difference before a genuine mistake and a potentially corrupt act is vital. The best way of doing that is to strengthen oversight institutions. Those institutions are briefed to look at and unpack potential acts of corruption (understood in its broadest sense). They need to have sufficient resources and sufficient independence to then be able to do their jobs properly. If a politician is scared of outside eyes looking in, then that in and of itself might be a telltale sign of something untoward happening.
Secondly, information on links between government and those who formally interact with it are often clouded in secrecy. Data on which firms win which public contracts, for example, need to be put into the public domain as a matter of course. How much are the contracts worth? What links do the bidders have to those inside government? At times there are good reasons to withhold information (i.e. national security concerns), but the norm has to be transparency first and secrecy second. Not the other way round.
Thirdly, facts matter. There are no ‘alternative facts’. The world is a complex place, but policy-making needs to done on a clear evidential base. That won’t make every policy the right policy, it won’t mean that there isn’t debate on the right course of action. It won’t prevent all mistakes. But it will at least help onlookers understand why decisions have been made. That is important in helping build and maintain legitimacy. Given the tumultuous end to Trump presidency, that’s something that all advocates of democracy to need actively embrace.
Dan Hough
University of Sussex
The everyday use of new technologies entangles with both corruption practices and anti-corruption efforts. One strand of research argues that new technologies help us curb corruption, for example by empowering citizens’ monitoring capacity and facilitating grassroots anti-corruption initiatives. Another strand of research shows that digital media can support corruption and related illegal activities by facilitating the expansion of fake news and propaganda, the misuse of personal data by tech giants or the use of cryptocurrencies for money laundering activities. CSC Lecturer in Corruption Analysis Dr Roxana Bratu explains how these issues will be explored in an upcoming ECPR joint session.
In the contemporary context of rapidly changing technological environment there is a distinct need to understand what corruption means, how it is manifested and practiced by various actors and what are the best policies to tackle it. We explore this issue in an ECPR joint session: Digital Media, Machine Learning, and Corruption: How the Newest Technological Development Facilitate and Curb Corruption Practices Across the World held online 25-28 May 2021. The workshop is chaired by Dr Alice Mattoni (University of Bologna) and Dr Roxana Bratu (University of Sussex).
This workshop aims to develop a nuanced understanding of how digital media, machine learning, and other types of recent technological developments can simultaneously support anti-corruption efforts and corruption practices. We bring together two strands of research (one regarding how technology can support and the other regarding how technology can subvert anti-corruption policies and practices) and invite papers linked (but not limited) to one or more of the following questions:
We invite papers that employ qualitative, quantitative, or mixed-methods research designs. We welcome papers based on empirical research and are open to submissions based on solid theoretical and methodological reflections on the overall workshop’s topic as well as policy-based contributions.
For additional details on the workshop outline in the ECPR Joint Sessions webpage.
Papers must be submitted via the ECPR submission platform by February the 8th 2021.
The confiscation of criminal proceeds is a key global weapon against corruption, intended to ‘take the profit’ out of the crime – with the aim of returning that money to the public and, hopefully, deterring future corruption. The UK confiscation regime has been criticised, but in this blog post, Tristram Hicks argues that the criticism is misplaced and in fact the UK sets a global example of how to use this tool in the fight against corruption and other crime.
In December 2020, the Law Commission of England & Wales finished a consultation on the post-conviction confiscation regime. They described this as a “once in a generation”, “root and branch” review. The project started in November 2018, the consultation had over a hundred questions, arising from a report of over 700 pages. It is a detailed and thorough piece of work.
The background to their review is the ground-breaking Proceeds of Crime Act, 2002, which transformed the ability of the UK justice system to confiscate the proceeds of crime. By any sensible measure POCA has been a world-beating success. The average annual revenue reaped by virtue of the Act increased more than eight times, from £15m to £130m per year, in the two decades before and after 2002. It was a transformational change:
Total value of receipts in England & Wales and Northern Ireland
Average in the 10 years pre-POCA 1992-2002: £15m p.a.
Average in the 10 years post-POCA 2003-2012: £130m p.a.
Average in the 5 years 2013-2017: £206m p.a.
(Source: FOIA response from the Home Office)
In addition, the number of people who have been deprived of criminal assets under the Act was transformed from a few hundred each year to an annual average of somewhere between 5,000 and 10,000. (The Home Office does not publish this information regularly, so this is the author’s estimate, based on ten years’ service on the UK Criminal Justice Board).
In 2018, just as the Law Commission started its project, the Financial Action Task Force, the global standard setter for Anti-Money Laundering, reviewed the United Kingdom. It conferred on the UK the highest aggregate grading for any jurisdiction at the time. For the specific immediate outcome of “Confiscation” the UK was evaluated at a “Substantial level of operational effectiveness”, meaning that the “Immediate Outcome is achieved to a large extent.” Only 20% of jurisdictions achieve this level of success (out of just over 100 evaluated).
It is surprising, then, that the Law Commission found that the confiscation regime was perceived as ineffective. It explained that “The perception that the confiscation regime was ineffective took hold from various media reports and the NAO report of 2013 which drew attention to the high value of unpaid orders”.
Yet the conclusions of the NAO Report contrasted starkly with the record of ten consecutive record-breaking years of asset recovery since POCA was first enacted. The NAO concluded that “the process was not working well enough and did not provide value for money”, whilst simultaneously finding that the regime generated £133m, comfortably exceeding the £100m cost of administering the regime (in 2012/2013). In other words, unlike any other aspect of the criminal justice system, it not only generated a substantial amount of money but actually turned a tidy profit.
The key focus of criticism has been the supposedly high value of unpaid orders. This was first reported in the press around 2005 and has been almost the exclusive focus of media reports on the confiscation regime every year since. But the reality is that almost all these unpaid orders are uncollectable, they are an artefact of the system.
A significant part of the uncollected amount is the value of “hidden assets”. Hidden assets are typically criminal assets abroad that have been found by British financial investigators. Their recovery is not possible because the equivalent confiscation regimes do not exist in the relevant jurisdictions which host the assets. Some success over the years has been achieved through British technical assistance to these regimes, although this could be more strategically directed to benefit the UK and the international effort against corruption and crime.
The fact that these amounts are uncollectable is not disputed. This was confirmed by the National Audit Office itself in 2013, finding that 81% was uncollectable[1], and by the latest Law Commission Review, which found that this proportion had increased to 92%.
The nature of the uncollected backlog is fully explained in an excellent paper by Helena Wood of the Royal United Services Institute, who concludes: “In sum, to judge the success of the system on the uncollected total is to misrepresent the results”.
And yet, the obsession with these unpaid amounts continues to feed into other reports which use this as evidence that the system is failing. The NAO Report directly triggered a Public Accounts Committee review of the regime and a concurrent Home Office Committee review of the same topic. The current Law Commission review is itself driven by the perception of failure created by the NAO.
The Law Commission is aware of this problem. It quotes the NAO report at some length, making clear that its headlines have contributed to the adverse perception of the UK confiscation regime. The Commission states that the NAO Report “has influenced strongly the continuing debate about POCA’s effectiveness to the present day” and further find that it “included eye-catching data which appeared to demonstrate that the regime was not working” – strong words when set against a convention that UK government bodies do not criticise one another.
The Law Commission consultation has finally found a solution to this problem that had escaped the NAO, the Public Accounts Committee and the Home Affairs Committee. They are to be commended for proposing, in Question 77: “We provisionally propose that the court should be able to direct that enforcement be placed in abeyance where it is satisfied that an order cannot be enforced.”
In other words, the simplest solution would be to administratively write off these uncollectable amounts, to avoid misleading the public and undermining public confidence in the system.
If this simple solution is adopted, the undeserved and misleading publicity surrounding the UK’s confiscation regime might finally be laid to rest. The UK has an excellent system which is rightly applauded by the FATF and emulated by experts all over the world. It is high time it was recognised at home and actively promoted abroad.
The author is a former Detective Superintendent in the Metropolitan Police Service, who spent ten years on the UK Criminal Finance Board, responsible for implementing the Proceeds of Crime Act. He is now an independent international consultant on criminal asset recovery. A version of this post is also published on his blog.
[1] In 2012/13 the uncollected amount was £311m of £1.61bn, in 2018/19 it was £161m out of £2bn according to the relevant HMCTS Trust Statements.
2020 is coming to an end. Brexit’s (apparently) been ‘done’. Covid 19 has certainly not been ‘done’, but vaccines are on the way and there is reason to be hopeful that by the end of 2021 it will be a thing of the past rather more than a thing of the present.
Both Brexit and Covid 19 will nonetheless have long-term impacts on politics and policy in the UK (and beyond). One of the many areas where it’s not clear what that impact is likely to be is that of corruption and anti-corruption.
The UK and the Toon Army
Before we can say anything about where the UK is going to go in terms of anti-corruption thinking, it’s worth trying to work out where the country currently sits. Now, that’s not as straightforward as it may appear (although see here and here for good snapshots of what we need to be looking for). Defining what corruption actually is can be tricky, measuring it can be even more problematic. That’s before you even get round to actually enacting successful anti-corruption policies. Given that, where does one start?
Well, when thinking about this recently I began in an unlikely place; with Newcastle United Football Club. Now, I’m not saying that Mike Ashley, the club’s owner, has been up to any particular skulduggery (and that even though his management style is certainly not everyone’s cup of tea), it’s more that Newcastle’s position in the English football pyramid reminds me a lot of the UK’s position in the corruption world. Hear me out on this one.
If you take Transparency International’s Corruption Perceptions Index (CPI) as your starter for ten, the numbers stack up nicely. In the most recent edition of the CPI the UK is 12th out of 180. Newcastle, meanwhile, are mid-table (currently 13th) in England’s Premier League. If you take the UK government’s definition of elite football as your marker then that translates to being 13th out of England’s 158 elite level football clubs.
The vast majority of English football clubs would subsequently love to be Newcastle. Indeed, a place that high in the football pyramid seems all but a dream for most. The same applies to the UK and its place in the CPI; a place in the top 20 looks a long, long way off for much of the world.
A question of perception
Yet, from Newcastle’s perspective, things must look and feel a little different. There was a time when they were the very best; they are 4 time title winners, 6 time FA Cup winners. But no Newcastle fan realistically thinks those days are returning any time soon. Newcastle look like a club with a rich and decorated history but a future that will see them exist at best as a top flight also ran.
In corruption terms, Britain has never hit the top spot in the CPI. In pre-CPI days the UK certainly did enjoy a reputation for taking probity very seriously. That was never quantifiable, but it was nonetheless widely acknowledged. Is the UK going to be able to turn back the clock and challenge the Nordic countries for the CPI’s top spot? Unlikely.
Losing the love
Furthermore, there was a time when Newcastle United were everyone’s second favourite team. In the late 1990s and 2000s the side played marvellous, attacking football and came close to winning silverware; the likes of Kevin Keegan, Tino Asprilla, Peter Beardsley and David Ginola were not just entertainers, they were more pretty successful. There was lots of good will towards them. No longer. Mike Ashley and the regime he runs has seen to that. Newcastle fans bemoan the lack of investment and they hate the fact that survival in football’s top flight appears to be the only goal.
Read that across to the UK. Once (for many, if not all) an object of admiration, the UK is becoming seen as a something of a chancer that is frequently rather tiresome. The UK used to exude confidence and it had a soft power that was second to none. Four years of ugly Brexit discussions have changed all that. Second favourite team now? Less so than was the case before, that’s for sure.
The same can be said if you bring the issue of finance into the equation. For a number of seasons Mike Ashley has been trying to sell the club and appeared prepared to dip into the murky waters of potential Saudi ownership. The response on Tyneside was muted; potentially bringing in extra cash will always find advocates, but significant questions about the legitimacy of the source were also very much in play. The UK, meanwhile, has increasingly dabbled (and arguably facilitated) the (even murkier) world of global money laundering. It’s no secret that the UK has become a potentially attractive option for those with ill-gotten gains. Two sorry stories.
Finally, even as you get closer to the field of play there are similarities. Whilst political battles take place around the Newcastle boardroom, Steve Bruce, the Newcastle manager, carries on. He’s a competent and under-rated custodian. He’s ‘doing the right thing’ with chaos never seemingly far away. The UK civil service, meanwhile, finds itself in much the same position. Corruption allegations are regularly made against UK politicians, yet UK bureaucrats try relentlessly to keep things on an even keel.
One can, of course, push all this too far. But the similarities do nonetheless seem rather apt.
Dan Hough, University of Sussex
The confiscation of criminal proceeds is a key global weapon against corruption, intended to ‘take the profit’ out of the crime – with the aim of returning that money to the public and, hopefully, deterring future corruption. But legal regimes around confiscation vary in the extent to which they embrace corruption, bribery and fraud as appropriate crimes that can trigger confiscation. In this blog post, Tristram Hicks argues that the UK is missing an opportunity to use this tool in the fight against corruption.
The definition of ‘being a criminal’ is currently part of a wider review of post-conviction confiscation by the Law Commission, the public consultation for which has just finished (in December 2020). A key question is whether “corruptors” should be subject to enhanced confiscation measures.
Section 75 of the UK Proceeds of Crime Act, 2002 was originally written to define “being a criminal” in a way that an ordinary member of the public would understand the term. It describes someone like Norman Stanley Fletcher (from legendary TV series Porridge) or Bill Sykes (from Oliver Twist) or even Keyser Söze (from The Usual Suspects). These would all meet the definition in Section 75. It’s a clever piece of law. To qualify as a criminal under Section 75 it’s necessary to be convicted of any listed habitual or occupational crime, such as counterfeiting, drug or human trafficking; or any offence that takes six months or more to commit; or a collection of offences that together produce a serious financial gain.
If a person is convicted under Section 75, the criminal court is allowed to assume that all their assets are the proceeds of crime and confiscate them. There are multiple safeguards, of course, because this is intentionally draconian legislation.
Since 2004 all these convicted criminals, investigated by any agency, such as the Police, Revenue & Customs, NHS Fraud, local authority, Environment Agency or Trading Standards, have all been listed on one database, held at the National Crime Agency.
The Law Commission consultation is therefore important to criminal justice policy makers, legal practitioners, criminal investigators, Chief Officers and Police and Crime Commissioners.
For legal experts reading this post, when I describe “being a criminal”, I am referring to the “criminal lifestyle” provisions of POCA which trigger the “confiscation assumptions”. It is one of the tragedies of legal drafting that this clever statutory definition of “being a criminal” was misnamed “having a criminal lifestyle”, which is not the same thing at all. As a result of this misleading terminology, significant policy benefits have been missed.
This comprehensive list of criminals is part of the Joint Asset Recovery Database held at the NCA. The people listed have had their qualifying status clearly defined and then validated by the rigour of the Crown Court. If your agency’s mission is tackling habitual criminals such as fraudsters, smugglers, corruptors, illicit traders, counterfeiters, money launderers or any criminal motivated by money it’s a really useful list. This could have been used for policy, performance and strategic purposes by multiple agencies, but this opportunity has not been taken up.
The Law Commission say that stakeholders in their pre-consultation raised bribery and corruption as potential candidates for inclusion in Schedule 2. The consultation itself asked for views about Section 75, but proposed that “bribery” and “fraud” should not be included in the list of offences that trigger enhanced confiscation.
This is an odd decision. Including bribery and fraud would make the court’s ability to confiscate much easier and strengthen the toolkit against corruption. You might think that these offences are very definitely the kind of offences committed by habitual or occupational criminals and that they should be on the list; that was certainly the view of the Metropolitan Police Fraud Squad detectives who wrote the early drafts.
The Law Commission argument is that bribery might qualify for enhanced confiscation anyway, if there were multiple offences or a single offence that took a long time to commit. This is a valid argument, but also true of other offences which are included on Schedule 2. It seems that this is really a matter of priority. They are basing their thinking on the handful of cases of bribery overseas under the Bribery Act, 2010, and seem to assume that deferred prosecution agreements rather than real enforcement are the answer.
The consultation report also omits corruption within the UK, perhaps because of the dearth of casework. In fairness the Commission does not have much to go on, in terms of ready information about domestic corruption. The UK has no criminal investigation team dedicated to domestic corruption, nor is there a specialist prosecution office. (The Law Commission has recently reviewed the misconduct in public office common law offence).
The Law Commission effort to modernise legislation is to be applauded, but this particular proposal seems to be a missed opportunity to strengthen an important weapon in the fight against corruption at home and abroad.
The author is a former Detective Superintendent in the Metropolitan Police Service, who spent ten years on the UK Criminal Finance Board, responsible for implementing the Proceeds of Crime Act. He is now an independent international consultant on criminal asset recovery.
An earlier version of this post appeared on the author’s website.
At every turn, and all around the world, the covid-19 crisis has created new corruption risks. As we enter a new phase of vaccine roll-out, CSC Director Liz Dávid-Barrett looks at how corrupt and criminal actors are likely to exploit this and how can we head them off.
Looking around the world, many individuals have exploited the covid-19 crisis for corrupt and criminal ends. News emerged early on of dictators abusing emergency powers to clamp down on civil society. Countless contracts for Personal Protective Equipment for healthcare workers have been awarded to political cronies, often meaning that PPE was substandard, late or never arrived. And even where PPE was delivered to healthcare providers, some of it was siphoned off and sold on the black market.
The vaccine rollout is likely to see similar behaviours, which threatens to undermine the vaccine’s ability to curb the spread of the virus and allow economic recovery to start. If vaccines do not reach healthcare workers, that will make it harder for them to provide care. If vaccines get siphoned off and sold on the black market, many vulnerable people will be unable to access them, and the much-needed herd immunity will not be achieved.
But equally, if people start to worry that the vaccines they receive might be substandard or counterfeit, that could undermine trust and feed the ‘anti-vaxxer’ rhetoric. That would also have very detrimental consequences.
So, how can we get a step ahead and prevent these corruption risks occurring?
First, many countries are creating special commissions for vaccines at national level, which invest in research and development of vaccines or make deals with vaccine providers. While it may make sense to centralise power from an efficiency point of view, it is important that such commissions are staffed by high-integrity figures appointed through meritocratic procedures, and that their decisions are transparent and open to scrutiny. Any special vaccine commission should also have a mandate to reduce corruption risks in the supply and distribution of vaccines as one of its key performance indicators.
Second, the vaccine rollout is going to involve a lot of public procurement – a key risk area for corruption. It is not just vaccines that will need to be procured, but also services for bringing them to a country and distributing them. Planning is the key to good procurement. These contracts should be given out through established framework agreements or streamlined open competitions. And bidders should be vetted to check that they are not receiving advantages as a result of links with politicians or public officials. Contracts should be published, to allow the public to scrutinise the prices.
Third, the government should protect vaccine distribution networks. They should ensure that there are sufficient storage facilities to keep vaccines at appropriate temperatures and prevent degradation. But they should also provide security for the delivery companies. Criminals will be keen to intercept vaccine deliveries and steal supplies so that they can sell them on the black market. Steps must be taken to prevent this.
Fourth, clinics that are vaccinating patients should be required to keep records about which patients have received a vaccination. These should be regularly audited to ensure that medicines are reaching the intended beneficiaries.
Fifth, governments should invest in communicating clearly about who is entitled to a vaccine and how to access it. This will empower individuals to ask questions should they be denied access, and will make it clear that black-market providers are not part of the regulated system. Buying on the black market brings risks that you might be buying a substandard product, and should be discouraged.
The vaccine has the potential to bring an end to the tragedy and disruption caused by covid-19. Let’s make sure that corruption does not snuff out the light at the end of the tunnel!
NB. Liz discussed many of these issues in a conversation with Onyi Ough, Executive Director of Step Up Nigeria, earlier this week. The podcast is available here.
Professor Robert Barrington of the Centre for the Study of Corruption and member of the government’s Procurement Transformation Advisory Panel, looks at the UK’s new proposals for post-Brexit procurement reform – and concludes that, if they are implemented, the UK will have a world-class system
The UK Government has this morning published a Green Paper (ideas for what a new law could include) on how it will reform public procurement post-Brexit. Leaving the EU has created a once-in-a-generation opportunity to reform procurement laws, and the Covid crisis has demonstrated how badly things can go wrong if good rules are not in place.
The UK spends £292 billion each year on buying goods and services; the Financial Times has noted that granting access to this pot of government money is one of the few significant cards the UK holds in striking new trade deals. Moreover, in a recovering economy, there will rightly be pressure to strike the correct balance between bureaucracy, efficiency, value for money and anti-fraud and corruption safeguards.
The good news is that other countries have already made progress in this field, notably South Korea and Ukraine – both of which were represented on the government’s procurement Transformation Advisory Panel, along with the OECD, which monitors and promotes best practice in this field.
So what does the Green Paper actually propose? My focus is naturally on corruption, and it is genuinely encouraging that this is incorporated into the paper, acknowledged as a risk, and addressed as such. I am not an expert in public procurement, so my analysis should be taken with a pinch of salt until the real experts have had a look. But at first glance, pretty much all the boxes I would have wanted to see ticked are there. These include:
Transparency by default (para 6) – a key principle that needs to underpin any genuine exercise of this nature
Beneficial Ownership Transparency (para 112) – ‘a new mandatory exclusion ground relating to the non-disclosure of beneficial ownership meaning that bidders who do not state their beneficial owner(s) will be automatically excluded’
Open contracting (Chapter 6) – and specifically the adoption of the Open Contracting Data Standard (OCDS) advocated by the Open Contracting Partnership
Debarment (para 116) – a bundle of reforms that will reward greater scrutiny, but at first glance look like a step-change from where we are today, including a recognition that companies under Deferred Prosecutions Agreements (DPAs) can be debarred
Social value (para 101) – ‘including social value as part of the quality assessment’ – in other words, not always awarding contracts to the lowest bidder when that might have negative social consequences. This will need some checks and balances to ensure it is not ‘gamed’ but is a very sound principle.
Three areas that need more work:
Tax: it is there – a search reveals 11 matches – but does not resolve the critical tension…should companies that do not pay into the public purse be allowed to take out from it? Much of the paper follows the thread of being fair on SMEs: but how is it fair if they are paying tax, and a giant supplier like Amazon is (allegedly) not paying its fair share?
Emergency response: the paper asks the right questions but will almost certainly need to do more to cover off all the loopholes exposed by the Covid procurement.
Freedom of information: companies often retreat into secrecy by default, arguing that almost everything they do is commercially sensitive. But if they are delivering public services, there is a legitimate expectation that they should operate under – and not block or evade – Freedom of Information rules. This is acknowledged in the paper, but as far as I can tell the paper does not make a proposal to apply FoI fully to the private sector when providing or operating public services.
There is lots more to digest- not least the proposal for a new independent monitoring arrangement, which also looks a very positive development, except perhaps in its non-receptiveness to corruption complaints that are at contract level and not at systemic level.
My conclusion – and again, I may stand to be corrected once the experts have had a look: it is big, and bold, and would give the UK a world class system. There is a risk that the best parts will be watered down in the consultation; and, as we have seen with Covid procurement, there is a risk that even if the rules are good they will not be followed. But whether you are for or against Brexit, my take is that – if implemented – these reforms will deliver some of the things that have been long promised for a post-Brexit Britain. The civil servants and minister responsible, while hoping that the inevitable backlash from vested interests can be seen off, should be quietly patting themselves on the back.
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