How Cameron is misleading over prosecutions for price fixing

The real obstacle is not an absence of applicable law, but the woeful underfunding of fraud investigation and prosecution.

Downing Street is trying to persuade us that if oil traders deliberately distort the price of petrol they cannot be prosecuted under existing criminal laws. This assertion is deeply misleading. If there is substance to the allegations against the oil companies said to be involved, there is now a very real danger that perpetrators will escape justice.

It has been reported that the government is in the process of drafting a new law targeting the manipulation of energy prices. However, because laws don't work retrospectively, wrongdoing prior to the law getting royal assent will not be captured. A Number 10 spokesman has said as much: "The law is the law so it will apply at the point it comes in. A change in the law that makes something illegal takes effect from the moment it takes effect."

If you accept the government's line that passing a new law is necessary, the resulting legislation will not bring anyone to justice or get to the bottom of what has been going on. It will do the opposite. It will draw a line under it and allow the sector to move on quickly and largely unruffled. That Number 10 is so quick to give up on the prospect of prosecuting under current law once again reflects the desire of Cameron, Osborne and company to let the City off the hook.

If people have been deliberately fixing prices to benefit themselves then it is already against the law. This has always has been the case. A scam is a scam. A fraud is a fraud. Different rules don't apply in the City than they do for you and me. There are some very plain, very simple offences in the Fraud Act 2006 that can be applied to price manipulation. For example, there's fraud by false representation. This is aimed at people who say something misleading to line their pockets or cause financial harm to someone else. There is also fraud by abuse of position for those who scheme against those whose interests they are not supposed to harm. And then there is good old fashioned common law conspiracy to defraud.

These are very broad offences and that is deliberate. The principles that underpin these offences are supposed to be applicable whoever is perpetrating the fraud, whoever they are defrauding and by whatever means they are doing it. The law must be interpreted this way otherwise criminals will always be ahead of the game. What a nightmare it would be if we individually had to criminalise every single abuse of every single commodity, market or financial product. There are thousands of these and new ones being invented every day. Such an approach would have disastrous implications for regulation and policy-making. Any slide towards it must be resisted.

The reason why City criminals are not in jail is not an absence of applicable law. The law is there for prosecutors who are front-footed and creative enough to apply it when the opportunity arises.

The real obstacle here is that fraud investigation and prosecution is woefully underfunded. The budget of the Serious Fraud Office is being slashed by 25 per cent. It has already had to ask for extra money to investigate the Libor scandal. If the director of the SFO does decide to investigate the energy market allegations, he is unlikely to be able to do so within the agency's current budget. A system has been established whereby he has to go to the Treasury and ask for the funds, giving that department an effective veto on high-value investigations. He will almost certainly have to go cap-in-hand to George Osborne and ask his permission. He has already had to do this for the Libor investigation.

In the US, the government easily recoups the money it spends on serious fraud investigations because its laws make it easier to fix liability on to companies and imposes much higher penalties. If reform is needed, surely that's where we should look.

So, in the event that there is something to these allegations, if there is no criminal investigation it will be down to two things: a lack of will and a lack of resources. It will not be down to a lack of applicable criminal law. The financial elite do not need special laws for themselves. This is one nation and there is one criminal law.

Emily Thornberry is MP for Islington South & Finsbury and shadow attorney general

Shell is among oil companies being investigated by European competition authorities. Photograph: Getty Images.

Emily Thornberry is MP for Islington South & Finsbury and shadow minister of state for employment.

Photo: Getty
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The Republican nightmare shows no sign of ending

The Republican establishment is no closer to identifying the candidate who can stop Trump or Cruz, while Hilary Clinton finds herself in a similar position to Barack Obama eight years ago.

After being cruelly denied by the people of Iowa, we were finally treated to a Donald Trump victory speech in New Hampshire last night. While Trump’s win will come as a “yuge” shock to anyone waking up from a yearlong nap, it was very much in line with more recent expectations. More surprising is John Kasich’s second place finish ahead of the tightly packed trio of Ted Cruz, Jeb Bush and Marco Rubio.

Rubio’s underperforming his polling average by about four points at time of writing (with 89 per cent of precincts reporting) – perhaps partly the natural erosion of his post-Iowa bump, perhaps also due to his mauling at the hands of Chris Christie in Saturday night’s debate. Meanwhile Ted Cruz’s 12 per cent compares favourably with past Iowa winners’ New Hampshire performances: Mike Huckabee got 11 per cent in 2008 and Rick Santorum 9 per cent in 2012, but neither came close to winning the nomination.

The result offers little help to those “establishment” Republicans who’d been planning to coalesce around whichever of Jeb Bush, Chris Christie, John Kasich and Marco Rubio emerged from New Hampshire in the best position.

Christie and Carly Fiorina are probably done. Both got less than 2 per cent in Iowa; both finished in single digits in New Hampshire after focusing heavily on the state; both are stuck at the bottom of the national polls, and neither has raised all that much money (relatively speaking). Christie is heading back to New Jersey to “take a deep breath”, “get a change of clothes” and “make a decision” tomorrow.

But who will party elites rally around to stop Trump and Cruz? Kasich, who came second in New Hampshire but is on just 3 per cent nationally? Rubio, who beat expectations in Iowa and is best of the bunch in national polls but disappointed badly tonight after a terrible debate performance? Or Bush, who’s had more than $75 million spent on him by the “Right to Rise” super PAC with just three per cent in Iowa and 11 per cent in New Hampshire to show for it? Nobody has won either party’s nomination in the modern primary era without a top-two finish in New Hampshire – does either Rubio or Bush really seem like the candidate to break that trend?

Jeb does have plenty of money and organisation, and is guaranteed some extra support from one prominent establishment Republican in South Carolina: his brother. George W has recorded an ad for the Jeb-supporting “Right to Rise” PAC, calling his brother “a leader who will keep our country safe”, which is already running on South Carolina TV (and which ran in New Hampshire during the Super Bowl). He will also join his brother on the campaign trail in the run up to the primary. Bush 43 left office very unpopular and remains the most disliked former President, but he is very popular with Republicans. A Bloomberg/Selzer poll in November found that 77 per cent of them have a favourable opinion of him, making him far more popular than any of this year’s candidates. (Jeb calls his brother “the most popular Republican alive”, which is a bit of a stretch. Nancy Reagan? Clint Eastwood?)

Trump leads convincingly from Cruz in the most recent polls in both South Carolina and Nevada, but there haven’t been any polls from either state since the Iowa caucus. Neither state is as friendly territory for “establishment” candidates as New Hampshire: South Carolina’s electorate is much more evangelical, and Nevada’s much more conservative. Newt Gingrich won South Carolina handily in 2012 and Huckabee came a close second in 2008. Cruz and Trump are doing best with evangelicals and very conservative voters this time around. Thanks to the state’s winner-take-all rules, whoever prevails in South Carolina will get the small ego boost of going into Super Tuesday with the most delegates.

On the Democratic side, Bernie Sanders secured a big win over Hillary Clinton (60 per cent to 38 per cent with 90 per cent of precincts reporting). What seemed incredibly unlikely a year ago has been almost certain for the past week or so. As he heads south and west, though, Sanders faces a new challenge: winning over African American voters.

Just two per cent of those who voted in the two Democratic contests so far have been black; in the next ones that number will be a lot higher. (In 2008, it was 15 per cent in Nevada and 55 per cent in South Carolina). In national polls, Clinton holds a 58-point lead among African American voters compared to her six-point lead with white voters, and she’s 31 points ahead overall in FiveThirtyEight’s average of South Carolina polls (all taken pre-Iowa).

Ironically, Clinton now finds herself in a similar position to the one Barack Obama was in when battling her for the nomination in 2008: heading to South Carolina, having won Iowa but lost New Hampshire, hoping African American voters will help her win big and regain the momentum as we head towards Super Tuesday.