Sanctions and Anti-Money Laundering Bill [HL]
(Limited Text - Ministerial Extracts only)
Read Full debate17:46 - Division on Amendment 71A - Ayes: 264 / Noes: 184 - Amendment 71A agreed.
19:09 - Division on Amendment 73 - Ayes: 201 / Noes: 211 - Amendment 73 disagreed.
Lord Collins of Highbury (Lab)
My Lords, my name is attached to Amendment 74, and of course to Amendment 71A. I will not repeat what the noble Baroness, Lady Bowles, said on Amendment 74, but this demand has been made for some considerable time. It is important that we act to ensure that all players involved in such criminal activity are brought to justice. That was reinforced by the Serious Fraud Office, too. On Amendment 71A, I concur wholeheartedly with the noble and learned Lord, Lord Judge, but the noble Lord, Lord Pannick, hit the nail on the head. On Monday this House spoke very clearly on this principle. It is of concern that the Minister, who has been in effective listening mode on a lot of the amendments, particularly in this group, has not reflected properly on Monday’s decision. How do we constrain these powers, as the noble Lord, Lord Pannick, said? If the Minister is not prepared to say how he will do that, I have no doubt that this House will speak with the same voice as it did on Monday.
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the opening line here says “I wish to thank noble Lords for putting forward this amendment”. I am not sure whether that best reflects the sentiments of the House. However, as I have said before, I deeply appreciate that this is a matter of great interest and concern to many in your Lordships’ House. In proceeding, I hope that in part I can reassure noble Lords that the powers in the Bill are taken with the utmost regard to your Lordships’ concerns. In the wider context, I also thank noble Lords for the practical, helpful and constructive engagement we have had. As a government Minister, I always approach legislation with the view that there will be times when we will disagree, but equally, we disagree with great respect to the House and to the incredible experience and wisdom in it. Where we are unable to agree, that does not mean that we have not listened. The Government’s position is a listening one, as the noble Lord, Lord Collins, said, and as we have demonstrably shown on both parts of the Bill. I also thank the noble Baronesses, Lady Kramer and Lady Bowles, for the constructive engagement we have had on the anti-money laundering aspects, and I am grateful for the key co-ordination role—I hope she will not hold this against me—that the noble Baroness, Lady Northover, played on this. I also very much appreciated the expertise that the noble Baroness, Lady Bowles, in particular, brought to this group.
Amendment 71A seeks to prevent regulations from making provisions that create new criminal offences. It is not unusual for requirements to be set in delegated legislation which can be enforced using criminal penalties, both in financial services legislation and other regimes such as health and safety. As I am sure all noble Lords are aware, in accordance with standard practice when implementing EU directives, criminal offences in this area have already been created in delegated legislation, in the Money Laundering Regulations 2017, made under the powers given by the European Communities Act 1972. This was also the case in their precursor, the Money Laundering Regulations 2007, which were brought into force—notwithstanding the contribution made by the noble Lord, Lord Collins—by the then Labour Government. The Bill therefore makes no changes to the current position in this sense and reflects the Government’s firm intention to continue imposing criminal penalties for breaches of anti-money laundering requirements.
These detailed provisions, setting standards and procedures for regulated businesses, should also be seen in the context of a separate penalty regime for the key substantive money laundering offences. Such offences are established under Part 7 of the Proceeds of Crime Act 2002, which provides for more punitive prison sentences of up to 14 years—for example, for those guilty of directly laundering the proceeds of crime.
The Government’s view is that removing their power to create criminal offences under secondary legislation would seriously weaken the enforceability of new regulations and therefore lower the effectiveness of the UK’s anti-money laundering regime.
Viscount Hailsham
Will my noble friend explain to the House why he is impliedly asserting that he cannot use primary legislation for this purpose?
Lord Ahmad of Wimbledon
As I have indicated, this is not a departure from what already exists. I have already quoted previous Acts and talked about the ways in which Governments of different political colours have used secondary legislation in the past for this purpose.
More generally, noble Lords may recall that it is not unusual for requirements, which can be enforced using criminal penalties, to be set in delegated legislation. In response to my noble friend, in the area of financial services, for example, the Regulated Activities Order under the Financial Services and Markets Act 2000 specifies which activities are or are not regulated. Carrying on such activities without permission from the regulator is a criminal offence.
I assure noble Lords that I am sympathetic to the arguments on the constitutional position, and I say to the noble and learned Lord, Lord Judge, that I have listened very carefully to his contributions—we have had positive engagement on various parts of the Bill. However, as I have indicated, it remains the Government’s position that it is neither unusual nor improper for Parliament to confer powers of this type on Ministers, as we have done previously and has been accepted. I shall turn to the appropriate safeguards relating to these powers in a moment.
I would like to set out why the ability to create criminal offences specifically for the UK’s anti-money laundering regime is necessary. When the Government consulted on whether to remove the specific criminal offence provisions in previous money laundering regulations, the British Bankers’ Association stated that removing such provisions would be at odds with the objective of driving an effective anti-money laundering regime. Furthermore, the Crown Prosecution Service argued that provisions for creating criminal offences in the money laundering regulations different from those in the Proceeds of Crime Act 2002 serve a separate and useful function in tackling money laundering. In some instances, prosecuting according to the Proceeds of Crime Act 2002 could jeopardise ongoing investigations. It said:
“In such cases, the ability to prosecute for a regulatory offence relating to defective”,
anti-money laundering or counterterrorist financing,
“systems can be an important tool”.
Finally, in response to the same consultation, HMRC noted that abolishing criminal sanctions for breaches of regulations “carries significant risk” to its ability to tackle money laundering. In lieu of such sanctions, if the UK wishes to maintain a functioning anti-money laundering and counterterrorist financing regime post our departure from the European Union, it is vital that the Government continue to have the power to create criminal offences for those regimes.
As the noble Baroness, Lady Bowles, pointed out, there are other amendments in this group. Amendments 90 and 92 envisage the same effect as that of Amendment 71A. Amendment 90 aims to prevent future regulations containing provisions to create new criminal offences, while Amendment 92 deals with provisions relating to penalties for such offences. As I set out to noble Lords previously, removing the Government’s ability to create criminal offences would seriously weaken the enforceability of new regulations, thereby, we believe, lowering the effectiveness of the UK’s anti-money laundering regime.
Amendment 72 proposes to restrict the scope of anti-money laundering regulations in several ways. First, it aims to prevent the making of regulations that are detrimental to the UK’s anti-money laundering and counterterrorist financing regime. Secondly, it aims to ensure that future regulations prescribe measures which are duly proportionate. Thirdly, it seeks to ensure that regulations cannot create new criminal offences, and, fourthly, it makes provision restricting the ways in which powers in the Bill can be used to update the definition of “terrorist financing”.
I have stressed from the Dispatch Box many times that the Government are listening to concerns expressed by noble Lords about the aims of these regimes, the need for a proportionate approach and the best way to keep definitions up to date. I am pleased to be able to confirm to the House that, having engaged directly with noble Lords on this matter, we will be tabling new amendments for Third Reading which aim to address the concerns contained within limbs (a) and (b) of Amendment 72. I have set out my position on criminal offences in relation to limb (c), and so do not propose to repeat that. I can further confirm that the Government will seek in the other place to restrict the ability to add to the definition of “terrorist financing” in Clause 41. This was also something that we discussed very constructively. I assure noble Lords that it will be limited to cases where any relevant regulations under Clause 1 are for the purposes of compliance with UN or other international obligations or to further the prevention of terrorism, or both. I hope that this is sufficient reassurance to enable the noble and learned Lord not to press this amendment so that we can table amendments and engage constructively with those issues again at Third Reading.
Amendment 74 proposes to create a corporate criminal offence of failure to prevent money laundering. The effect of this amendment would be to provide that a company or partnership is guilty of a criminal offence in cases where the company’s employee, agent or other service provider commits one of the substantive money laundering offences contained in Part 7 of the Proceeds of Crime Act 2002. The relevant company would have a defence if it could prove that it had adequate procedures in place to prevent its employees and agents from committing such an offence.
I would like first to note that, as noble Lords may be aware, in 2017 the Ministry of Justice carried out a call for evidence on corporate criminal liability for economic crime, such as money laundering, fraud and false accounting, to establish whether further reform of the law was necessary. Noble Lords will accept that this is a complex and controversial area of the law, attracting views from across a broad spectrum. Responses were received from a wide variety of stakeholders and expressed diverse and often conflicting views, as well as raising several important issues that need careful consideration. As I have told the House when dealing previously with this Bill, the Government’s response is being finalised and will be published in due course. I hope we can agree that it would make no sense to muddy the waters by introducing a further failure to prevent offence before there has been a proper review of the evidence.
I emphasise and assure noble Lords that there is no gap in the regulatory regime for financial services that would be addressed by the introduction of a failure to prevent offence for money laundering, which was a concern expressed. The senior managers regime requires that relevant financial services firms, such as banks and building societies, allocate a senior management function for overseeing the firm’s efforts to counter financial crime, including money laundering, to a specific senior person.
The requirement to maintain this role is in addition to the requirement for a money laundering reporting officer, or MLRO, who is directly responsible for ensuring that measures to combat money laundering are effective. Noble Lords may wish to note that the MLRO has a personal responsibility for the oversight of the firm’s compliance with Financial Conduct Authority rules on anti-money laundering systems and controls.
The senior managers regime is robust in the additional requirements it places on senior managers responsible for overseeing firms’ defences against financial crime. Such senior managers are required to obtain pre-approval as fit and proper from the Financial Conduct Authority and the Prudential Regulation Authority. If there is a contravention of the money laundering reporting requirements by a firm, the Financial Conduct Authority can take action against the responsible senior manager, if they can prove that they did not take such steps as a person in their position could reasonably have been expected to take to avoid the contravention occurring. This enforcement action includes fines and disbarment from undertaking regulated activities.
The senior managers regime currently applies to banks, building societies, credit unions, Prudential Regulation Authority-designated investment firms and UK branches of foreign banks.
The Government have legislated for it to apply across all financial services firms, and this will be implemented in due course—the regulators have been consulting on the final design of this extension of the regime. The introduction of the senior managers regime has significantly enhanced the ability to hold individuals responsible for failures of the systems and controls of relevant firms. Its expansion across the financial services sector will do more in this regard.
Lord Higgins (Con)
I am extremely grateful to my noble friend. It is quite clear that the grouping of these amendments is not a convenient way of proceeding. I understand that my noble friend has given careful thought to the wide range of issues covered by the amendments, and I understand that he is saying that he will make further changes to the Bill at a later stage. What I am not clear about is whether any of these will cover the points made by the noble and learned Lord, Lord Judge, in his opening remarks. Perhaps my noble friend will clarify that.
Lord Ahmad of Wimbledon
My noble friend is right to raise the point and I admire all noble Lords who have followed the thread. The reason I have gone into detail, as my noble friend has articulated, is that the range of amendments in this group is quite extensive. Also, as I have said before, it reflects the importance of the discussions we have had.
On the specific issue of Amendment 71A, on this occasion I regret that we are unable to meet the views of the noble and learned Lord. However, I hope that I have indicated at least in part that this is not a departure from the existing system. Indeed, it is something which has been applied previously and continues to be so. I hope, therefore, that I have convinced noble Lords that the Government’s proposed changes—aside from the differences set out by the noble Baronesses, Lady Kramer and Lady Bowles, which we have talked about and I appreciate and acknowledge—will ensure that proper safeguards are put in place in the Bill regarding offences, rather than removing the ability to create them and leaving a vacuum that we believe would weaken the UK’s anti-money laundering regime.
I hope also that I have convinced at least some noble Lords—I am looking behind me as well as ahead; it does not say that in my speaking notes. I have gone into detail but I believe that it was necessary to do so since, as I have always said, this is an important Bill. With those reassurances, I hope that noble Lords who have tabled amendments in this group will be minded to withdraw them.
Lord Mackay of Clashfern
Just before my noble friend sits down, can he help me on one point? There is already authority to make regulations in respect of money laundering which have criminal sanctions. If so, why is another provision to the same effect necessary? Can he help us further by explaining why it is necessary to do this not only for money laundering but in other areas where authority in primary legislation already exists to lay statutory instruments?
Lord Ahmad of Wimbledon
What I have been saying in the examples I have quoted is that the use of the regulations is not something new.
Baroness Kramer
Perhaps the Minister could confirm that at present, the primary legislation takes place in Europe through the various processes of the European Parliament and Council. It is from those that the current regulation flows. The issue here is that in the future, there will be no mechanism for primary legislation to sit behind the regulation; it will be the regulation disembodied.
Lord Ahmad of Wimbledon
The noble Baroness has correctly pointed out that all this is to do with what we do after we leave the European Union, which I have sought to make clear to my noble and learned friend. We will set up the mechanism and put in place the provisions to allow the Government to address the issue of criminal offences. The Government’s proposal would be to continue on the same basis as we do now—through the use of regulatory powers. As I indicated earlier, this is not different. I have also stressed that this would be subject to the affirmative procedure, which would allow for debates in both Houses. We covered that area extensively both at Second Reading and in Committee.
Lord Collins of Highbury
My Lords, I do not want to take up too much time. The noble Baroness, Lady Stern, made an incredibly powerful speech in support of her amendment, to which I added my name. I want to say something in relation to setting international standards and trying to reach international agreement. Ultimately, that is the correct way. It is the solution. But there are many ways of achieving that. David Cameron realised that, actually, setting the standards and taking the lead is the way to reach international agreement—not sitting on our hands and saying, “Let’s see what others do first”. We need to take the lead and set the standards. When we talk about reputation, it is our family of nations that will suffer reputationally if we do not adopt this amendment tonight.
Lord Ahmad of Wimbledon
My Lords, I am grateful to all noble Lords who have taken the time to contribute to this important debate. The amendment would require the Secretary of State to provide all reasonable assistance to the Governments of certain of the British Overseas Territories with significant financial centres to enable each of those named overseas territories to establish a public register of company beneficial ownership. It further provides that, if by 1 January 2020 such overseas territories have not established such a register, the UK Secretary of State should take all reasonable steps to ensure that the Privy Council legislates to require the overseas territory to do so.
I am again grateful to the noble Baroness, Lady Stern. We have had a constructive discussion where we laid out the differences over our approach. I do not object to the fact that we are all seeking—that is clear from all contributions today—to ensure fairness and transparency but also to do the right thing to ensure progress in this regard. I appreciate that the deadline set in this revised amendment for preparation of an Order in Council has been put back by one year compared with the amendment tabled by the noble Baroness and others in Committee. I previously addressed many of these points in Committee. But I hope that the House will bear with me if I reiterate certain key points.
I first want to inform noble Lords of the commitments that the territories have made to advance transparency in the company and tax fields. We heard the noble Baroness, Lady Kramer, talk about taking leadership, having that relationship and allowing the British Government to work with the overseas territories and that this amendment is the way to achieve that. But we are already doing it. The overseas territories are part of my responsibilities as a Minister. They are totally engaged on this agenda. With respect, the noble Baroness laid out a series of assertions on how money laundering and certain activities occur. Is it right that these six territories alone are singled out? Where is the evidence base? That is important, but so is the action that is being taken. We need to focus on that.
For example, the overseas territories with financial centres are leading the world. They are among the early adopters of the OECD common reporting standard. I say to the noble Lord, Lord Collins, that the overseas territories, working with the British Government, are taking the lead. There is an agreement under which they automatically exchange offshore financial account information with taxpayers’ jurisdictions of residence. They started exchanging information with third jurisdictions in September last year. I join many noble Lords in the Chamber in commending our previous Prime Minister, David Cameron, and the steps that he took. But the process that we are now following is exactly the same process that was agreed during the coalition years with the Liberal Democrats. Since September 2016—in other words, a year before the common reporting standard came into effect, so I say to the noble Lord, Lord Collins, that this is another example of taking the lead—HMRC has been receiving data on accounts held in the overseas territories by UK taxpayers and has used this to further its compliance work.
The issue of public registers is relevant here. None of this means that we do not want to see the overseas territories take further action to move forward on the transparency agenda. We should, however, acknowledge the significant steps that they have already taken in this area and build incrementally on that progress, in partnership and with support.
As noble Lords will acknowledge, the UK is at the forefront of promoting corporate transparency. The UK is the only G20 country to have fully established a public register of company beneficial ownership and we continue to push for this to become—in the words of the noble Lord—a global standard. As I noted in Committee, however, the international standards set by the Financial Action Task Force do not require this, reflecting a lack of international consensus in this area. I am grateful to noble Lords who contributed on this. These standards state:
“Countries should ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion by competent authorities”—
for example, tax authorities and law enforcement authorities. The OTs are moving ahead on this agenda. Nevertheless, should public registers become the global standard, we would of course expect the overseas territories and Crown dependencies to meet this standard. The territories themselves have indicated their willingness to adopt a public register in that event.
I will highlight something important to this debate: namely, the progress that the overseas territories have already made on the beneficial ownership agenda in a relatively short time. Since we concluded our arrangements with them in the run-up to the Anti-Corruption Summit of 2016, the territories, which have their own legislative bodies and elected representatives, have passed new primary legislation and delivered technological improvements to comply with the terms of the arrangements known as the exchange of notes. I am grateful to my noble friends Lord Leigh and Lord Flight for highlighting the positive progress that the OTs have made in this respect. My noble friend Lord Naseby also pointed to the positive steps taken by Cayman.
Under these arrangements, each of the overseas territories with a significant financial centre committed to hold beneficial ownership information in a central register or a similarly effective system and to provide UK law enforcement authorities with automatic access to such information within 24 hours of a request being made—or within one hour in urgent cases. These arrangements, which have been put in place since 2016, are already bringing benefits to UK law enforcement. They mark a significant increase in the ability of UK law enforcement authorities to investigate bribery and corruption, money laundering and tax evasion. I am sorry that I do not share the opinion of the noble Baroness, Lady Kramer, that somehow these law authorities are very limited in scope. They make an incredible contribution.
Baroness Kramer
Perhaps I might ask the Minister a question. Does he not agree that one reason we have public registers in the UK is that law enforcement authorities here said that they could not successfully track down those crimes if they were not backed by public register arrangements? If we in the UK cannot be effective as law enforcers without public registers, how will we be effective as enforcers across the sea without public registers?
Lord Ahmad of Wimbledon
I have already said—and I repeat to the noble Baroness—that the OTs are already moving in this direction. I will put it very simply and in context. We have agreed legislation in both Chambers. We have passed it. We have had anti-corruption summits. We have asked OTs to step up to the mark. They are stepping up to the mark. They are taking the action required. Half way through the process, before we have even tested the very objectives that the noble Baroness has just outlined, we say to them, “Sorry, we’re changing the rules”. That to me is unacceptable.
Lord Collins of Highbury
My Lords, I agree with all the sentiments that have been expressed. This is about a very strong commitment given by David Cameron, and what we want to hear from the Minister is a clear timetable. The noble Lords, Lord Faulks and Lord Hodgson, are absolutely right. In the previous debate we talked about transparency and those who pay. On this issue, it is not just those in the poorest countries who are paying because of this hidden money; it is our own communities. I have said before in this Chamber that to look down the river and see a skyscraper that is 60% foreign-owned, with 40% of that ownership hidden through companies, is clearly scandalous. We do not have to look far. So we need action and a very clear timetable. I hope the Minister will give us that timetable tonight.
Lord Ahmad of Wimbledon
My Lords, this amendment seeks to set down in legislation the commitment made at the 2016 anti-corruption summit to establish a public register of company beneficial ownership information for foreign companies that already own or buy property in the UK or that bid on UK central government contracts.
As we have readily acknowledged in various debates during the passage of this Bill and others, the UK is a world leader in promoting corporate transparency. As I said in the previous debate, we are the only country in the G20 to have established a fully publicly accessible company beneficial ownership register. I assure noble Lords that the Government are committed to leading the world in improving this transparency.
First—and here, I refer to my noble friends Lord Faulks and Lord Hodgson but also to noble Lords across the House—I know this issue has been debated and discussed through various vehicles. I congratulate them on ensuring that the Government remain accountable and the issue remains in the public eye. Let me assure my noble friends and all noble Lords that the Government appreciate the work that all have done in this respect, particularly my noble friend. I assure him that we share his desire, the desire expressed by all noble Lords, to reduce the opportunity for money laundering through UK property as swiftly and effectively as possible. We all acknowledge that it is a serious issue, so let me address that question head-on.
First, what has happened? Following last year’s call for evidence, the Department for Business, Energy and Industrial Strategy sent more than 100 pages of drafting instructions to the Office of the Parliamentary Counsel, and work preparing the clauses for the Bill is under way. The drafting instructions prepared so far cover just the application of the land registration elements of the policy in England and Wales. Once the clauses for England and Wales are complete, an exercise will be undertaken to make specific provision for how they will apply in Scotland and Northern Ireland, both of which have different land registration systems and their own Land Registries. The approaches taken to land registration and overseas entities by the Land Registries have differed until now, so all three approaches will need to be brought together to deliver a streamlined policy, consistent across the UK. I anticipate that exercise taking some months and it will involve expertise from many different teams across the UK Government and the devolved Administrations.
The department has also commissioned a piece of research on potential impacts of the policy, including on investment decisions. That research is ongoing and will feed directly into an impact assessment, work on which is also under way. I am sure my noble friend will agree that this is a crucial moment for the UK’s future trading relationship with the rest of the world, and we must proceed with as good an understanding as possible of the potential impacts on legitimate inward investment.
Having brought noble Lords up to date with the Government’s work so far, let me turn to our next steps. Since our last debate on the matter in Committee, the Government have considered carefully the proposals in front of us and had detailed discussion with my noble friend in this regard. Noble Lords were quite right to point out that the anti-corruption strategy published last month stated that we would publish a draft Bill during the current Session of Parliament. Doing so will help to ensure that any potential weaknesses in the policy are spotted and addressed in what will be new and complex legislation.
Let me now provide some of the certainty requested by my noble friends Lord Faulks and Lord Hodgson. I can confirm that we will publish the draft Bill by the Summer Recess this year. I can also confirm that formal introduction of the Bill will be a priority for the second Session of this Parliament. We anticipate that being in summer 2019, and doing so will put us on track to implement the register itself, which will be operational by early 2021. I further recognise noble Lords’ concern for greater certainty of the Government’s intention. We will shortly formally confirm our intention to meet these deadlines—a point mentioned by the noble Lord, Lord Collins—through a Written Ministerial Statement. We will continue to look at both legislative and delivery timetables for opportunities to implement sooner if at all possible.
Let me say why publishing a Bill in draft is the right approach. As I have said before, the register will be first of its kind in the world and will affect people’s property rights. A robust enforcement mechanism will be essential. As set out in last year’s call for evidence, the Government believe that criminal sanctions may not be sufficient in isolation, but that additional enforcement through land registration law will also be needed if the register is to have teeth. A key proposal is that those who own property who do not comply with the register’s requirements will lose the ability to sell the property or create a long lease or legal charge over it. This will be reflected in a restriction on the register of title.
I am sure that my noble friend will recognise that these are significant steps and will constitute a robust enforcement mechanism. As such, the regime must be able to withstand legal challenge from those who have the means and motive to make such a challenge. That is a key reason why delivering the register through dedicated primary legislation, in accordance with the will of Parliament, is preferable to doing so through secondary regulations to the Bill we are debating today. It is also the key reason why this House should welcome the fullest possible scrutiny of the draft clauses and the mechanisms behind a regime which will be a world first.
But that is not the only reason. New functions must be delegated to Companies House and the land registries, and we must ensure they have the tools and time needed to deliver this successfully. A protection regime must be established, balancing legitimate concerns for personal safety with the need for transparency. All those issues were considered in last year’s call for evidence, but only once we can scrutinise the draft clauses can we really stress-test whether they are going to be effective. We anticipate there being in excess of 50 clauses in the Bill.
Let me say why early 2021 is the appropriate timescale. First, it is because a dedicated primary Bill is the right way of delivering such a policy, and that will take time, given other pressures on Parliament at present. The Government will therefore introduce legislation as soon as possible, but it is impossible for me to make commitments to do so in the very near term—and I have already indicated the specific timetable, which will also be qualified in the Written Ministerial Statement.
Secondly, it is appropriate because that must be followed by secondary regulations, in which we will set out the more technical details underpinning the regime, such as the essential changes needed to the land registration rules. New systems must also be built between Companies House and the three land registries. Their design will depend on the precise content of those regulations. While much preparatory work will be done while the legislation and secondary regulations are passed, there are some inevitable lead times, because the systems and processes can be finalised only after Parliament has approved the legislation.
Finally, an appropriate transition period will be needed to ensure that lenders and other stakeholders can adjust to the new requirements. We believe that the policy must be robust, but fair. Overseas entities that have bought property in the UK, in some cases many years ago, will not have had this in their contemplation at the time. In most cases, the property will have been bought for legitimate and innocent purposes and by those who expected the degree of privacy offered by ownership through a legal entity. We should give those entities, and their beneficial owners, time to understand the requirements and consider their options.
There is a parallel with the development of the register of people with significant control. That policy was announced in 2013, following several rounds of consultation and primary and secondary legislation, and a fully populated register was delivered by June 2017. It may have taken four years, but it still put the UK’s framework in a world-leading position. The new register will take a similar path, but there are numerous additional considerations.
I hope that the detail that I have outlined and the timetable that I have given provide the House and my noble friend in particular with the reassurance of the Government’s continued commitment to enact this policy. But to go slightly further, my intention is also to bring forward an amendment on Third Reading to require the Government to provide regular updates to Parliament on progress on the timetable that I have outlined.
I hope that my noble friend feels that we have had a productive engagement and that what I have offered today from the Dispatch Box are not just warm words but specifics. For those reasons, I hope that he is minded to withdraw his amendment.
Lord Faulks
My Lords, I am grateful to all those who have spoken—and, indeed, to many others who might have spoken but who exercised restraint on this matter. I am also very grateful to my noble friend the Minister for giving, for the first time, an actual timetable for this legislation. A number of queries have provoked soothing words and not much else. We now have a timetable, although it is not happening as fast as many of us would like—but he has explained in some detail the difficulties involved in setting up this register.
I would have been a little more impressed had this been the first time that this issue was raised. We are talking about an undertaking by the Government in 2016, so with respect I should have thought that much of this could have been done a great deal earlier. For example, why do we need to commission an inquiry into the danger of inward investment being put off from coming to this country when the whole idea is to stop inward investment of corrupt proceeds from Russia and the like? I found that one of the less impressive parts of the reassurance given by my noble friend.
My noble friend cites the difficulty of setting up the register and uses the fact that the previous register of persons of significant control took four years to set up. My response to that is that, presumably, a great deal of the work that was done in setting up that register would enable a great deal of piggy-backing to go on in setting up this register—something of a dry run, I should have thought. However, despite that minor carping on my part, I want this legislation to succeed and I want the obscenity of having our property market corrupted to be stopped—and I want it done effectively, as I am sure other noble Lords do.
Lord Lennie (Lab)
My Lords, in Committee, the Minister—I think it was the noble Lord, Lord Bates—said that the OPBAS is being set up to deal with this stuff at some time in the future. I do not know when that will be and whether it is a consequence of our withdrawal from the European Union or is a separate matter. However, I would expect reassurance that that body will be up and running at least by the time that we leave the European Union, if and when we do so. Of the 250,000 companies to which the noble Lord, Lord Naseby, referred, thousands open and shut before anyone has had a chance even to notice them. Presumably, they do not always open and shut because they go bust but rather because they are concealing their activities. That needs to be addressed. I do not intend to prolong the proceedings other than to say that—I did not think I would ever say these words—I support the amendment of the noble Lord, Lord Naseby.
Lord Ahmad of Wimbledon
My Lords, I say to the noble Lord, Lord Lennie, that I often find myself in agreement with my noble friend. I very much appreciate the spirit behind this amendment, which would require anti-money laundering checks to be undertaken before any UK company can be incorporated by preventing the Registrar of Companies registering a company unless they are satisfied that such checks have been carried out. The amendment goes on to say that the registrar is entitled to accept the anti-money laundering registration number of the UK body that has submitted the application. The effect would be to require all incorporations to be made through a UK body that is regulated for anti-money laundering purposes.
In Committee, the Government made a number of points about the effect of requiring Companies House to operate in the same fashion as company formation agents. My noble friend Lord Naseby has clearly reflected on the points made, and the amendment responds to our concerns by allowing Companies House to accept the anti-money laundering registration number of the UK body making the application. However, this would still prevent people incorporating companies directly with Companies House and would therefore make company formation only possible via an agent that is also a registered money laundering supervisor. In doing so, it will end the current streamlined service offered by the Government under which companies can incorporate directly at Companies House and register with HMRC for certain taxes, such as corporation tax, as part of the same process.
The Government also recognise that there are sincere concerns here, which my noble friend outlined. We have listened to them, and I hope that I can set out some detail of what conclusions we have drawn thus far as a result of considering them. Before I do so, I will make one practical point. As my noble friend will be aware, the UK’s anti-money laundering regime will be evaluated by the Financial Action Task Force in March of this year. We expect the report to be made public in late 2018. This review will explicitly cover the effectiveness of how the UK prevents the misuse of legal persons such as companies for money laundering or terrorist financing. The Government have already provided extensive documentation to the FATF team conducting the review, which will be followed up by the team conducting an on-site visit within the UK. This will greatly inform the future of the UK’s anti-money laundering regime, including on the important point my noble friend made on how we can best prevent the misuse of legal entities. It will therefore be of great assistance in moving forward in this area and many others.
Following the FATF evaluation, which will report back later this year, the Government will actively consider areas where the AML/CTF framework can be improved. I can also confirm that the Government will look in particular at controls over who registers companies in the UK, what information they have to provide, and how assurance is provided over that information, which were concerns highlighted eloquently by my noble friend.
It is of course absolutely right that we should take steps, as was pointed out in Committee, to avoid corporate vehicles being used for money laundering. However, it is equally important that we balance tackling illicit finance with proportionate regulation for what I know all noble Lords acknowledge is the vast majority of legitimate businesses. The UK rightly prides itself on being one of the easier countries in the world to set up and run a business, and we are ranked in the top 10 countries for doing so. To register a company at Companies House is not in itself a suspicious act, which I know my noble friend acknowledges. It is a strength of our system that people can set up an off-the-shelf company or can incorporate online at little cost. This is particularly relevant to our smaller businesses sector and those starting businesses for the first time. I am sure that all noble Lords acknowledge that it is of great benefit to our economy and encourages a more entrepreneurial culture in the UK as a whole.
I am sure that my noble friend acknowledges that a newly formed company is not itself a money laundering risk; it must carry out some other transaction to achieve an illicit purpose. When a company undertakes an activity that may increase the risk of money laundering activities—for example, by opening a bank account—at that stage it becomes subject to quite stringent due diligence measures. Regulated firms, such as banks, solicitors and accountants, are also then required to conduct due diligence on existing customers on an ongoing, risk-sensitive basis.
I am sure that noble Lords will also acknowledge that the cornerstone of our anti-money laundering system is taking a risk-based approach. Indeed, anti-money laundering supervisory authorities are under a legal obligation to identify and assess the international and domestic risks of money laundering and terrorist financing to which its sector is subject. This ensures that the most intensive levels of supervision are applied to those entities which present the highest risks of money laundering.
I have outlined the steps we are taking and pointed out that we are awaiting the FATF evaluation, and I confirmed the important point that after the evaluation the Government will look at controls over who registers companies in the UK. I also say to my noble friend that I would very much look forward to working with him and appropriate Ministers from the BEIS department to see how we can perhaps reflect some of the key points he raised in any subsequent action the Government will take in the light of that report. With those reassurances, and acknowledging the important work he has done in this respect, I hope that my noble friend will be minded to withdraw his amendment.
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
Lord Ahmad of Wimbledon
Lord Berkeley of Knighton (CB)
My Lords, perhaps someone who is not well versed in the law could make an observation. I support my noble and learned friend Lord Judge and would say simply that the strength and logic of what we have heard from many noble Lords in this debate is absolutely compelling. Furthermore, the supremacy of Parliament surely rests in taking notice of his remarks along with those of my noble friend Lord Pannick and the noble Viscount, Lord Hailsham. It is imperative that we move through legislation on a primary course rather than a secondary one.
Lord Ahmad of Wimbledon
My Lords, I thank all noble Lords who have taken part in this debate. Let me say at the outset that between Committee and Report we have considered many matters raised by noble Lords. I listened very carefully to the points made by the noble and learned Lord, Lord Judge, and others, although I felt at one point, after hearing the contributions of my noble friend Lord Hailsham and the noble Lord, Lord McNally, that I should be handing over the Bill file to my noble friend Lord Young. I notice that he has escaped before I could avail myself of that opportunity.
Lord Ahmad of Wimbledon
I am sure, though, that the noble Lord will agree that I have a very formidable Whip to my left. I am delighted to be joined by my noble friend Lady Goldie, who I can assure noble Lords is very well equipped in the robust defence of the position and policy. However, I am sure noble Lords will understand that I cannot accept this amendment but I will offer some comments in this regard.
First, the power in the Bill is not unusual. It is worth noting, indeed, that the Delegated Powers and Regulatory Reform Committee, in its report on the Bill, made no comment on the inclusion of this delegated power. However, I recognise that the House has concerns, reiterated today, about the breadth of the regulation-making powers conferred by the Bill and I hope I can provide some reassurance that this particular consequential power is both appropriate and necessary. Importantly, the power can be used only to make savings provisions or other provisions that are consequential, supplemental, incidental or transitional to the sanctions or money laundering regulations. I assure noble Lords that it does not confer the power to make any changes to legislation that are independent of the sanctions and money laundering powers. It provides a tool to make changes to ensure that the statute book works but it does not give the Government the ability to change swathes of legislation without regard to that specific purpose.
Specific questions have been raised in this respect and, rather than detain the House, I shall offer those reassurances at this point. The noble and learned Lord, Lord Judge, and my noble friend Lord Hailsham both raised the issue of the substance. I believe the phrase, which is not the most legal of terms I have heard from the noble and learned Lord, was “nothing to bite on”. I will look up the constitutional books in that respect, but of course I understand the substance of his point. Let me assure the noble and learned Lord that the regulations in the Bill can be made only for the purpose set out in the Bill and impose sanctions of the type set out in the Bill. This clause permits only amendments consequential on the types of sanctions imposed for these particular purposes.
The noble and learned Lord also made a general point about Henry VIII powers. I assure him that they are there to serve a real purpose: to enable Ministers to make the necessary updates to the statute book that arise solely as a result of the sanctions and money laundering regimes.
My noble friend Lord Hailsham raised the list of uses of this power. I assure him that this can be used only to make amendments that arise as a consequence of the imposition of sanctions or rules against money laundering and not to make free-standing changes; for example, to change rules of evidence in an unrelated case. Finally, the noble Lord, Lord Pannick, rightly raised the issue of the courts and scrutiny, and how courts will police the use of these powers. I can say on behalf of the Government that we welcome and respect the scrutiny of the courts: they act, indeed, as a check on Ministers, as a useful safeguard which I hope will also reassure noble Lords. I hope that the assurances I have given have added clarity in the context of the powers in the Bill and shown that they are appropriately limited to what is deemed necessary. On the basis of this explanation I hope that the noble and learned Lord will feel able to withdraw his amendment.
Lord Ahmad of Wimbledon
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