Data Protection Bill [HL]

Baroness Hamwee Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I, too, thank the Minister for his careful introduction of the Bill, and the organisations and individuals who have briefed us, including the individual who wrote, “It does your head in”. I was glad to hear the assurance that the Bill may—I hope I have this right—with repeated readings come close to comprehension.

At later stages, I hope to focus on Parts 3 and 4 of the Bill, but this evening I make some points about young people and the age of consent. I have to say—I may be out of step with other noble Lords—that I am not entirely convinced that the age of 16 would provide more effective protection than 13. I was struck by the recent launch of a report by the Children’s Commissioner for England. The report contains a jargon-busting guide,

“to give kids more power in digital world”.

The commissioner’s launch paper remarked:

“For children, there is no difference between online and offline life. To them, it’s just life … You wouldn’t drop a 12-year-old in the middle of a big city and expect them to fend for themselves. The same should be true online”.


The jargon-busting guide is intended to help children and teachers negotiate and understand what they are signing up to when they use Facebook, Instagram, YouTube, Snapchat, WhatsApp and so on. It uses simplified terms and conditions—it is acknowledged that it is not a legal document but is designed to be an accessible and child-friendly tool to help children understand their digital rights and make informed choices.

Noble Lords will have received a briefing from the Carnegie UK Trust on digital skills. Among other things, it reminds us that so many young people— I think actually that should be “so many people”—are unaware that “delete” does not actually mean “delete”.

I do not think that achieving the age of 14, 15 or 16 would address this. The route of information and education is much more important than a diktat in legislation. I suspect that we could be in danger of being unrealistic about what life is like for children and young people these days. We should not ignore public opinion but, quite honestly, times have changed. We will debate both the age threshold and age verification, which is clearly inseparable from this, during the course of the Bill.

Like other noble Lords, I am concerned about public trust and confidence in the system. At the moment there is a need for guidance on preparation for the new regime. I visited a charity last week and asked about the availability and accessibility of advice. The immediate, almost knee-jerk response was, “It’s pretty dire”—followed by comments that most of what is available is about fundraising and that there is a particular lack of advice on how to deal with data relating to children. The comment was made, too, that the legislation is tougher on charities than on the private sector. I have not pinned down whether that is the case, but I do not disbelieve it. The Federation of Small Businesses has made similar points about support for small businesses.

On confidence and trust, my view is that the use of algorithms undermines confidence. This is not an algorithm but perhaps an analogy: we have been made aware recently—“reminded” would be a better term—of the requirement on banks to check the immigration status of account holders. I took part recently in a panel discussion on immigration. The participants’ names were Gambaccini, Siddiq, Qureshi and Hamwee. With those names, although we are all British citizens, I should think that we are pretty suspect. Algorithms will be used by the policing and intelligence communities, among others. My specific question is: have the Government considered independent oversight of this?

My confidence in the system is also not helped by the fact that the data protection principles applied to law enforcement do not include transparency. I am prepared to be told that this is because of the detail of the GDPR, but I find it difficult to understand why there is not transparency subject to some qualifications, given that transparency is within the principles applying in the case of the intelligence services.

“User notification” is another way of talking about transparency and is a significant human rights issue in the context of the right not only to privacy but to effective remedy and a fair trial. I am sure that we will question some of the exemptions and seek more specificity during the course of the Bill.

We are of course accustomed to greater restrictions—or “protections”, depending on your point of view—where national security is concerned, but that does not mean that no information can be released, even if it is broad brush. I wonder whether there is a role for the Intelligence and Security Committee here—not that I would suggest that that would be a complete answer. Again, this is something we might want to explore.

Part of our job is to ensure that the Bill is as clear as possible. I was interested that the report of the committee of the noble Lord, Lord Jay, referred to “white space” and language. It quoted the Information Commissioner, who noted trigger terms such as “high-risk”, “large scale” and “systematic”. Her evidence was that until the new European Data Protection Board and the courts start interpreting the terms,

“it is not clear what the GDPR will look like in practice”.

I found that some of the language of the Bill raised questions in my mind. For instance—I am not asking for a response now; we can do this by way of an amendment later—the term “legitimate” is used in a couple of clauses. Is that wider than “legal”? What is the difference between “necessary” and “strictly necessary”? I do not think that I have ever come across “strictly necessary” in legislation. There are also judgment calls implicit in many of the provisions, including the “appropriate” level of security and processing that is “unwarranted”. By the by, I am intrigued by the airtime given to exams—and by the use of the term “exams”. Back in the day there would certainly have been an amendment to change it to “examinations”; I am not going to table that one.

Finally, I return to the committee report, which has not had as much attention as the Bill. That is a shame, but I am sure we will come back to it as source material. I noted the observation that, post Brexit, there is a risk that, in the Information Commissioner’s words, the UK could find itself,

“outside, pressing our faces on the glass … without influence”,

and yet having,

“adopted fulsomely the GDPR”.

That image could be applied more widely.

Do the Government accept the committee’s recommendation in paragraph 166 that they should start to address retaining UK influence by,

“seeking to secure a continuing role for the Information Commissioner’s Office on the European Data Protection Board”?

My noble friend Lord McNally referred to running up the down escalator, and his alternatives to the Henry VIII clauses are well worth considering—I hope that that does not sound patronising.

This is one of those Bills that is like a forest in the points of principle that it raises. Some of us, I am afraid, will look closely at a lot of the twigs in that forest.

Children: Refugees

Baroness Hamwee Excerpts

Wednesday 13th September 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, we continue to work with the French Government to ensure that those children are also transferred.

[Baroness Hamwee (LD)]

My Lords, the UK’s homegrown family reunion rules, as it were, are much narrower than the Dublin III convention in that families are defined much more narrowly—limited to parents under the UK’s rules. What will happen to the Dublin III convention when we leave the EU?

[Baroness Williams of Trafford]

My Lords, when we leave the EU the Dublin convention will need to be reassessed under our own laws. Noble Lords will appreciate that this country has been a welcoming and safe haven for refugees and asylum seekers over the years—I have just given the staggering figure of more than 42,000 children since 2010—and we will continue to meet our commitment to those who need our help.

Modern Slavery (Victim Support) Bill [HL]

Baroness Hamwee Excerpts

2nd reading (Hansard): House of Lords
Friday 8th September 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the number of speakers in today’s debate seems to tell a story as far more of us are present in the Chamber than was the case during the passage of the Act. Some noble Lords will recognise that comment. That, I think, reflects the increasing awareness of the importance of uncovering and addressing what the noble Lord, Lord Anderson, called a scourge.

I, too, thank the noble Lord, Lord McColl, and the many organisations and their dedicated staff and volunteers who work with and for the victims of slavery. They will have contributed to the Bill both directly and through their work. However, let me add that the noble Lord is a role model for us all in his quiet, effective persistence.

It is a mark of the importance of the 2015 Act that it has prompted the arguments advanced for further proposals. I know that the noble Lord, Lord McColl, is, rightly, engaging in the art of the possible, so let us get the Bill enacted. Then we can turn to further issues, ranging from a name change for the national referral mechanism, mentioned by the independent commissioner, to perhaps a single-stage process, to which he also referred, to a specific actionable tort to enable compensation to be awarded to victims. The latter is constrained at present. In a recent report entitled Human Rights and Business, the Joint Committee on Human Rights said that the Government’s approach is,

“weakest in the area of access to remedy”.

Clearly, discussion must be had and action taken with regard to children.

As a society that has failed to see slavery in its midst—or perhaps seen it but failed to recognise it—we have a responsibility to its victims that extends well beyond the point of release. As the noble Baroness, Lady Massey, said, this is a moral and ethical issue. Modern slavery demands modern standards of support and protection and an up-to-date understanding and application of a trauma-informed approach.

We have just had six weeks’ recess, so it must be fresh in our minds how little 45 days is—I am in no way making an analogy with our situation. The term “reflection” in this context is so inappropriate for most victims. Processing traumatic events and adjusting to a new life demand a very different lexicon. I doubt that in many cases it would feel as though recovery had even begun within 45 days. The noble Baroness, Lady Newlove, said that “the words have a long journey behind them”. I might plagiarise that description. Without effective support, 45 days is certainly too short. The uncertainty which victims experience must do its own damage, both intrinsically and because, I suspect, it adds to the distrust of officialdom which I am sure some victims feel.

The Anti-Trafficking Monitoring Group briefed noble Lords, and said of the current situation regarding discretionary leave that while it is,

“theoretically available to victims, there have been consistently low numbers of victims who have successfully applied for it”.

It talked about the,

“lack of clarity and consistency on what is deemed to be ‘particularly compelling personal circumstances’”—

the term used in the guidance—

“and uncertainty felt by some organisations regarding whether individual victims of trafficking should be applying for”,

discretionary leave. Anything that reduces the workload of the Home Office, which has to consider discretionary leave, must be a good thing, because it seems to be impossibly overloaded at the moment.

There is a very big mismatch, too, between the numbers who go into the NRM and the convictions of perpetrators. I have been critical of the use of the term “hostile environment” by the Home Office, but I would be entirely happy to see a more hostile environment for perpetrators—which should mean a benign environment for victims.

Consistent support and certainty will help victims, who need time to tell their story. It would also help the police, who currently seem, from discussions I have had with those involved in the system, to be forced into taking statements too soon. The fact that a victim changes his story does not necessarily mean that what has been reported is a deliberate falsehood. A statement given before a victim is really able to give it can be gold dust for the defence, which will pick up inconsistencies. Support for the police in the process may be for another day.

There is also the issue of a victim remaining in the UK to give evidence. That decision should, to my mind, be quite separate from whether a victim, as a victim, should have “assistance and support”, as described in proposed new Section 48B. That term is defined in proposed new Section 48C, and I wonder—although I am not expecting an answer today; it might be an issue to be explored in Committee—whether that extends to re-establishing contact, and indeed relationships, with the victim’s family.

On the detail of the terminology, the term “necessary” intrigues me. I know that it is used in the Council of Europe Convention on Action against Trafficking in Human Beings, where Article 14 requires a residence permit to be issued to a victim where,

“the competent authority considers that their stay is necessary owing to their personal situation”.

I am not entirely sure what that means. It is certainly less restrictive than personal circumstances being “particularly compelling”, as in the Home Office guidance, but I wonder—again, perhaps for later in the passage of the Bill—whether the term “necessary” has been developed in case law or otherwise. I mention that because I am concerned that proposed new Section 48A(7) may be more restrictive than we thought it to be.

Before I leave the question of support and the term “support”, although it is not a matter for legislation, we should not ignore the importance of support for the organisations and individuals who do the supporting.

The briefings that we have received—and I think also the Commons DWP Select Committee and certainly its chair—have been rightly dismissive of the notion that what the Bill envisages could be a “pull factor”. I admit that I am not particularly imaginative but I simply cannot begin to imagine how allowing a year’s leave to remain, with some entitlements dependent on a conclusive-grounds determination of slavery, could “pull” somebody into slavery in order to access that leave. The organisation Hope for Justice points out that the more generous visas—more generous than in this country—granted by other countries have not done so.

I have referred to society’s responsibility to the victims of slavery. The shortfalls in the current system give rise to a lot of concern about victims’ vulnerability to being retrafficked. What a failure on the part of society is retrafficking. Our responsibility is extensive and it must extend to restoring to victims support and dignity. From these Benches, we give our wholehearted support to the Bill.

Psychoactive Substances Act 2016

Baroness Hamwee Excerpts

Wednesday 6th September 2017 Lords Chamber

[Baroness Williams of Trafford]

I do not disagree, and on previous occasions I have not disagreed, that evidence-based policies are absolutely the right way forward. In fact, WHO is undertaking some work of its own and it will report next year on the various elements of cannabis. We await with interest the results of that work.

[Baroness Hamwee (LD)]

My Lords, there was plenty of criticism of the Government’s approach to the Psychoactive Substances Bill, as it was, and the substances it covered. First, did the Government not seek advice on differentiating between the use and misuse of medicine? Secondly—this is one uncritical point about the Act—is it not a good thing that it is dealers and not users who are the focus of the Act, and should we not extend that approach to other areas of drug policy?

[Baroness Williams of Trafford]

I wish that I had been there for the passage of the Psychoactive Substances Act now. It would have benefited me greatly, although some people seem to have scars on their backs from it. We have been talking about nitrous oxide, which has a medicinal benefit. However, in this case it was clearly used for recreation.

Domestic Violence and Abuse

Baroness Hamwee Excerpts

Thursday 6th July 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, the importance of addressing domestic abuse is moving up the agenda, which is to the good. As the noble Baroness made quite clear, it is a people’s issue and not just a women’s issue, so I congratulate the one man in our debate—he contributed very effectively.

We are all aware of the significance of public awareness, in general and on the part of those affected—a point made by the noble Viscount—and those who abuse. None of today’s speakers come new to this subject, but we will all have been shocked by what we have heard and been reminded of, not least by the noble Baroness, Lady Newlove. I suspect we all have experience of discussing this with other people and seeing disbelief or dawning belief on their faces. That is particularly so in the case of coercive control, now recognised in law and by more, but not all, of the public.

I want to think aloud about two prominent points in the Government’s proposals. The first is the creation of a new offence. I am not arguing against consolidating what we have, but when legislation is proposed I always wonder whether it is because the Government do not quite know what to do, or know but want to avoid the issue of resources, or want to transfer responsibility to local government or the third sector, usually without resources. My concern is that violence and abuse are crimes now. We must all have argued against the characterisation of “just a domestic”, and I do not want us to do anything that diminishes the seriousness of the criminality. I might be more comfortable if we built on current offences but with recognised aggravating factors that can affect sentencing.

On that point, has the Sentencing Council been part of discussions about the proposed legislation? Indeed, what consultation has there been generally and what responses have the Government received? We all know that although legislation is important, and can indeed sometimes lead the way, it is attitude and culture that really matter. I have to acknowledge that a number of noble Lords made very powerful cases for changes in the law, but I do not think that that is inconsistent with the point I am making.

My second thought is on the creation of a commissioner—we used to have tsars, but I much prefer the term “commissioner”. I query whether the position is appropriate here, but that is not to question the energy or ability of those who fill various commissioner roles at present. Will the Government be transferring to the commissioner what should be their role and responsibilities?

Noble Lords have rightly emphasised the horrifying statistics. There is one trend I would like to mention: the prevalence of domestic violence in teenage relationships. To me, that says a lot about gender stereotyping and the importance of very wide PHSE. Perhaps domestic violence is one aspect of a set of wider issues.

On the point of connections, I want to mention a project run by Safer London—here I declare an interest as a member of the board. The project stems from its gang exit work, which includes relocating young people and their families when they are determined to get out of gang membership and activity. Safer London’s pan-London housing reciprocal agreement serves London boroughs and registered housing providers with reciprocal offers of housing to enable women and their families, who for their own safety need to get away from their home area, to move within London. It is very small-scale, but it is important.

Mentioning resources, in his contribution to the Queen’s Speech debate my noble friend Lord Paddick referred to local authorities outsourcing the provision of refuges, with contracts whose requirements are narrow so that the provision is the bare minimum of a roof—the physical provision—but not the very necessary support. We cannot avoid the issue of local authority funding.

The issues that any Government must address rarely exist in a vacuum but are related to other concerns. I want to draw attention to the circumstances faced by women whose experience of abuse leads, directly or indirectly, to them committing offences, usually minor. The Prison Reform Trust is undertaking a programme aimed at reducing women’s imprisonment. It seems from that work that the criminal justice agencies need better to understand the dynamics of domestic abuse, the behaviour of perpetrators and the effect on victims and survivors.

The Minister will not be surprised to hear me talk about training in this context, as the noble Baroness, Lady Royall, mentioned, and the need for joint working by and with specialist services. Again, it comes down to money, but also attitudes. I do not know whether the noble Baroness heard it, but this morning on the radio reference was made to police training comprising 25 minutes of a desktop module at the discretion of the police chief. I cannot comment on whether that was complete or accurate, but that was what was being discussed. It seems that this is affected by the turnover of police staff and officers.

Given that each speaker has the luxury of making a long speech, I will read part of the work done by the Prison Reform Trust:

“HMIC found in 2014 that in 30% of cases of actual bodily harm which were identified as domestic abuse related, there were counter allegations with both parties claiming to be the victim, and stated: ‘Information on the previous history is vital if officers are to be able to identify who the victim is in instances of counter allegations’”.


The work goes on to refer to a recent focus group, at which women commented that if the police attended an incident of domestic violence, it was more likely that their partner—the primary aggressor—would be calm, while they the victim would be agitated and lashing out, and therefore more likely to be arrested. One victim said:

“When the police do arrest you after a domestic incident, maybe because you’re the one that’s suffering you tend to be the one that’s going to kick out at the police. And the chap, you know your abuser, tends to be … dead calm …You just think, ‘I’m trapped again, I’m trapped.’ And my arrests have been when I feel trapped and then it’s just like everything’s like a volcano because you think, I’m getting framed here by my abuser and nobody seems to understand”.


The briefing I have seen refers to the need for police discretion in these circumstances. It goes on:

“Prosecutors must make the same judgement when deciding whether it is in the public interest to pursue a prosecution. Similar expectations must be placed on offender managers, defence solicitors and barristers, to identify where a defendant has been a victim of abuse or coercion and to ensure this is taken into account in decisions throughout the criminal justice process. Sentencers also have a critical role to play in ensuring that appropriate account is taken of women’s experiences of abuse and coercion. The provision of high quality pre-sentence report is essential here”.


I saw the noble Lord, Lord Bates, in the Chamber a few minutes ago. This would have been familiar to him as it was an issue in the Modern Slavery Bill and was taken into account in that Act.

This leads me inexorably to the importance of strategy and its implementation for women in the criminal justice system. The Corston model, as it has become known after the noble Baroness, of women centres is more effective than prison and much less expensive.

On joint working, can the Minister confirm that the Home Office is working with colleagues in the MoJ, the Department of Health and DCLG to deliver the long-promised strategy on women offenders that will improve the response of criminal justice agencies to victims and survivors of domestic abuse, including through ongoing training and sustained investment in the national network of women-specific services in the community?

Like other noble Lords, I have had connections with these issues for some time. This valuable debate has given us an opportunity to think afresh and to hear new points. However, I fear that this will not be last time we will need to debate these issues.

Immigration Centre Detainees: Pay

Baroness Hamwee Excerpts

Tuesday 4th July 2017 Lords Chamber

Asked by

[Baroness Hamwee]

To ask Her Majesty’s Government what plans they have to review rates of pay for work undertaken by immigration centre detainees.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, paid work is provided in immigration removal centres as a means to meet the recreational and intellectual needs of detainees and to relieve boredom. The work is not compulsory. All policies and processes are kept under review, and an internal review of the rate of pay of detainees is under way.

[Baroness Hamwee (LD)]

My Lords, does the Minister accept the irony of providing menial, albeit voluntary, work—as she says, it is to meet detainees’ recreational and intellectual needs and provide relief from boredom—when asylum seekers are not allowed to work at all? Is the rate of £1 an hour for people who have committed no crime something that as a society we can be proud of?

[Baroness Williams of Trafford]

My Lords, it is important to recognise that immigration detainees have lawfully had their right to work in the UK, if indeed they ever had one, curtailed by virtue of an immigration decision or by the decision to detain them. Therefore, their position regarding pay rights is not the same as for people who are not subject to immigration detention.

Terrorist Attacks

Baroness Hamwee Excerpts

Thursday 22nd June 2017 Lords Chamber

[Baroness Williams of Trafford]

My noble friend is absolutely right. We do not realise sometimes what far-reaching consequences the language that we use has. I am talking about all forms of prejudice or extremism et cetera. The noble Lord, Lord Singh, who is not in his place today, quite often talks in this House about religious literacy. We could all learn lessons when it comes to the consequences of the points that we make and how they might affect broader society. I also agree with my noble friend about schools being involved in some of the early education of our children. Some of the events of recent weeks have frightened children, and they are being misinformed, which may lead to them being hostile towards each other at a young age. I certainly know that after the Manchester attack, Muslim children of friends of mine felt more reticent on their way to school. Of course, local communities and local schools have worked very hard to educate in this sphere, but education starts in those early years.

[Baroness Hamwee (LD)]

My Lords, language is indeed important, and I wanted to ask about the use of the phrase “stamping out” extremism. It reflects understandable emotion, and indeed determination, but can stamping out achieve everything? Can the noble Baroness confirm that the extra staff referred to in the Statement will include psychologists, psychosocial experts and others who will work with no less rigour to approach the problem and address the issue? Secondly, I do not think that she replied, at any rate with any detail, to my noble friend’s question about the commission for countering extremism. Can she tell the House about the terms of reference and confirm, as I hope she will, that there will be wide consultation on those terms?

[Baroness Williams of Trafford]

I thank the noble Baroness for that question. I did not give much detail about the commission for countering extremism because I simply do not have much detail at this point. Recommendations will certainly come back to Parliament. There was a question in the other place earlier about Parliament feeling outside what the commission does, but Parliament will be consulted and have its say on the commission’s recommendations. As for stamping out extremism, will we always stamp out all types of extremism? No, we will not, but what we can do as a society is collectively be intolerant of extremism in our society, and the cohesion of our communities will, to a great extent, achieve this.

Criminal Finances Bill

Baroness Hamwee Excerpts

3rd reading (Hansard): House of Lords & Report stage (Hansard): House of Lords
Tuesday 25th April 2017 Lords Chamber

I do not pretend that this is a perfect solution to what is a real problem. Various attempts have been made around the world to deal with such problems but they have only ever achieved partial success. However, let us not miss this opportunity of doing what we can to deal with the cancer of corruption in our society. This House should send a clear message to the Government about the level of its concern. I beg to move.

[Baroness Hamwee (LD)]

My Lords, like the noble Lord, we want to see the Bill as strong as possible. I have a few questions on the noble Lord’s amendments but I am grateful to him for bringing these matters back to the House. Amendment 1 would require questions to be answered on oath. Like the noble Lord, I felt that the answer from the Dispatch Box at the previous stage did not take us a great deal further. The Minister said:

“It would already be a criminal offence for the respondent to knowingly or recklessly provide false or misleading information”.—[Official Report, 28/3/17; col. 496.]


Unexplained wealth orders are court orders, so my question—I am not sure whether it is to the noble Lord or the Minister—is: does contempt of court arise here? That is not to support the amendment or otherwise, but to flesh out understanding of the procedure.

On Amendment 2, has the noble Lord been more timid than necessary by referring to the respondent or others having taken the step of registration as a beneficial owner, rather than using the criterion that he is such an owner? I agree on compliance: one either complies or one does not. Surely purported compliance is not compliance. This is quite a difficult area in legislation and it should be clear, and not raise more questions about whether the criteria are fulfilled.

My final question is on government Amendment 6. Will the Minister explain why, unusually, “a person” does not include a body corporate? I was interested to see that it is apparently necessary to include a definition. The definition itself is interesting: if it is read literally, references include bodies corporate and so on, regardless of whether they hold or obtain property. Does that restrict which bodies corporate are the subject of this new provision? I gave the Minister notice of my question so I hope she will be in a position to assist the House. I reiterate our strong support for getting this Bill through. I have spoken as briefly as I can because I know the House wants to get on with it and do just that.

[Lord Mackay of Clashfern (Con)]

My Lords, I support these amendments. I first came across unexplained wealth orders in Inland Revenue fraud proceedings where people had been accused of not paying their income tax. One of the methods of revealing that is by demonstrating that they suddenly have more wealth than their Revenue account suggests. Therefore, there is a question about whether the assets came from taxable income. That was the presumption at that time. That was before the terrific expansion of other forms of unexplained wealth that could arise. The explanation that someone had done something unlawful would not be a particularly good answer to a tax inquiry but perhaps that was not thought of. Certainly, that was a very useful tool in the armoury of the Inland Revenue in days past and is still so today. It is a very valuable method of dealing with this trouble. I find it very hard, however, to understand what is meant by purported compliance. As has just been said, it seems to me that you either comply or you do not. I must say that the explanation given in the draft practice system does not enlighten me any further. It suggests, indeed, that purported compliance covers certain aspects of non-compliance. It is a difficult definition to put in. I would have thought the measure would be better without it.

I raise questions with regard to the register. It is required to be done within six months of the passing of the Act. However, the commencement provisions of the Act allow the Act to come into force in accordance with regulations or orders made by the Secretary of State. I assume that the passing of the Act in this amendment is intended to refer to its getting Royal Assent. Strictly speaking, however, the Act comes into force only in accordance with orders made by the Secretary of State under the commencement provisions except in relation to certain aspects of that.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

I am grateful to the noble and learned Baroness for that intervention, but I can glide this down to third man, if I may use a cricketing analogy, because this is a government proposal. The Government are proposing to set up this new body, so I am sure my noble friend, when she comes to wind up, will have all the detail of how this body will work. I merely wish to ensure that it is sent down the right channels. I know that my noble friend, with her usual aplomb and ability, will deal with that by stroking it effortlessly to the boundary, if I may continue the cricketing analogy.

It is important to do some serious re-engineering of the general approach to money laundering to increase its effectiveness and public confidence in it. That the National Crime Agency can, in its annual report, trumpet the fact that SARs went up by 7.82% over the last year as a badge of success without any reference to the impact it is having, shows that there is much to do. I beg to move.

[Baroness Hamwee]

My Lords, when the noble Lord responds to the debate, will he tell the House whether he thinks “I haven’t a clue” is purported compliance.

[Lord Rosser]

In light of the last comment from the noble Lord, Lord Hodgson of Astley Abbotts, one can only hope that the points he made will not leave the Minister stumped. I hope it gets better.

I thank the noble Lord and the noble Lord, Lord Faulks, for tabling these amendments, since they enable me to raise a concern that I expressed in Committee about the Government’s intention to create a new office for professional body anti-money laundering supervision through a statutory instrument, without any apparent reference to such a body in the Bill that we are currently discussing—which is why the noble and learned Baroness, Lady Butler-Sloss, had to raise her question. Nobody has a clue what the Government intend because they have not chosen to put anything in the Bill to enable us to have a discussion about it. It was only in a government document issued around the time of the Bill that the Government declared their intention to set up this body.

A briefing that no doubt we have all received from the Solicitors Regulation Authority refers to the amendment from the noble Lord, Lord Hodgson of Astley Abbotts, as “proposing” the creation of an office for professional body anti-money laundering supervision—which could, perhaps wrongly, be interpreted as meaning that the Solicitors Regulation Authority was unaware that that is what the Government were already proposing, albeit keeping rather quiet about it as far as proper parliamentary scrutiny is concerned.

--- Later in debate ---

[Lord Rosser]

I am not sure whether I should come in now but I just take this opportunity to thank the Minister and her ministerial colleagues in the Bill team for their willingness to meet and engage in what have been constructive and helpful discussions on not only provisions that are in the Bill but also provisions that are not, since it is with the latter that most differences of view or approach have centred. I also thank my Front-Bench colleagues for their hard work, not least—although he is not in his place—my noble friend Lord Kennedy of Southwark, who has not been exactly short of commitments in respect of other Bills as well. Finally, I thank the staff in our own office, not least Grace Wright, for their help and advice in navigating our way through this Bill.

[Baroness Hamwee]

My Lords, I echo those thanks to the Minister and the Bill team. As several people have said—most frequently the noble Lord, Lord Rosser —it is what is not in the Bill that has exercised us most. I can see an enormous amount of material for Private Members’ Bill in the next Session if we do not have government Bills that we can tack our—“demands” would be the wrong word—concerns on to. But the Minister has done an absolutely sterling job and I hope she gets five minutes to have a bit of a rest before she sets out campaigning. We have the luxury of knowing that we will be back to pursue these interests.

[Baroness Williams of Trafford]

As always with Bills such as this, it is what is not in the Bill. Also, sometimes we should have gone further. But we have had a challenge in this Bill and in the main the challenge has been lack of time, not of consensus. I place on record my thanks to the Front Benches—the noble Lords, Lord Rosser and Lord Kennedy, and the noble Baronesses, Lady Kramer and Lady Hamwee—and my noble friends behind me, who have kept me on my toes. I thank noble Lords for being so accommodating about having so little time to get through the business of the past 24 hours.

Criminal Finances Bill

Baroness Hamwee Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 3rd April 2017 Lords Chamber

[Baroness Williams of Trafford]

Perhaps I may look into that and let the noble Lord know because I am reluctant to make sweeping promises at the Dispatch Box without knowing exactly what the timescales will be. I will let him know, certainly before Report, what the expected timescales are.

[Baroness Hamwee (LD)]

Before my noble friend responds, the Minister referred to the Modern Slavery Act. I do not want to be overly pedantic but I do want to be a bit pedantic because this is an important point. She mentioned the requirement on certain companies to report on the steps that they are taking under Section 54 with regard to their supply chains. I think that she will agree that their statement as regards the steps they are taking can be a statement,

“that the organisation has taken no such steps”.

That would be regrettable. However, there seems to be a feeling that every organisation has got to report the detail of the steps when that is not quite the case.

[Baroness Williams of Trafford]

My Lords, I would say that the statement a company makes reflects the company, and if a statement of no effort is made, it will be for others to judge the efficacy of that company.

--- Later in debate ---

Moved by

[Baroness Hamwee]

162: Clause 44, page 108, line 27, leave out “can put in place to” and insert “shall have regard to in order to”

[Baroness Hamwee]

My Lords, this is a probing amendment. Clause 44(1) provides that the Chancellor,

“must prepare and publish guidance about procedures that relevant bodies can put in place”,

to deal with certain matters. My amendment suggests that organisations should “have regard to” such guidance, and is really intended to probe precisely what is meant here. The phrase “can put in place” strikes me as an interesting one to use in the middle of a piece of legislation. Does it mean “must put in place”, or if they want to have guidance on procedures, it is only what the Chancellor prepares and there can be no other procedures? I wonder whether the Minister can explain what is actually required in subsection (1). I beg to move.

--- Later in debate ---

[Baroness Vere of Norbiton (Con)]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for tabling this amendment, which allows us to discuss the Government’s guidance on the new corporate offences in Part 3 of the Bill. Part 3 creates two new offences for relevant bodies that fail to prevent the criminal facilitation of tax evasion. It also provides a defence for a body to show that it has put in place reasonable prevention procedures designed to prevent such criminal facilitation.

The Government produced guidance on the offences, and the related defence, in 2015 and conducted a full public consultation on it. Much of the guidance focuses on the operation of the defence and helps to inform businesses’ understanding of how to determine what prevention procedures are reasonable in their circumstances. The guidance has been discussed extensively with a wide range of businesses and organisations both within the UK and overseas. Following the consultation, the updated guidance was published last year.

In addition to the government guidance, officials have been working with a number of representative bodies to support them in producing their own sector-specific guidance, which can be endorsed by the Chancellor if it is clearly in keeping with the overarching government guidance. The Chancellor’s endorsement of external guidance will provide a hallmark of quality for individual businesses to identify good practice for their sector.

The government guidance makes it clear that it is just that: guidance. It does not set out a tick-box exercise of mandatory requirements for businesses but rather six principles to help each business decide what prevention procedures, if any, are reasonable for them in their individual circumstances.

The government guidance makes it clear that, for each business, there may be a number of appropriate approaches for them to take and that departure from suggested procedures will not mean that an organisation does not have reasonable prevention procedures. Likewise, different organisations may implement the same or similar procedures differently due to their individual circumstances. For example, what is reasonable for a large, multinational financial institution will be different from what is reasonable for a small, domestic retail business.

Conversely, while departing from the guidance will not mean that a relevant body does not have reasonable prevention procedures, nor does complying with the guidance necessarily guarantee that prevention procedures are reasonable. The guidance is not intended to be a safe harbour.

The new offences also provide a defence for a business where it was reasonable for it to have no procedures in place. A business can therefore avail itself of the defence without having followed the Government’s guidance if it was reasonable for it to have no procedures in place; for example, because the risks it faced were so remote that it would be unduly burdensome for it to put in place prevention procedures.

I hope that noble Lords will therefore agree that it is not necessary, and may impose undue burden, to force businesses to have regard to the government guidance. Those businesses which need to put in place prevention procedures and which seek to be compliant will likely already have regard to the government guidance. This has been demonstrated by the excellent engagement from many sectors on the development of the guidance. Accordingly, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, the noble Lord, Lord Kennedy, understood my thinking exactly, although I wonder whether it would be helpful to this House to use a procedure which is often used in the Commons to explain that one is probing to try to understand whatever is proposed and the thrust of a particular amendment—I was probing, as I had indicated to the Bill team.

I had not expected that answer, but I now understand the range of things which can happen under this clause. One is accustomed to phrases such as “for different purposes and for different persons”, which is what I think we are being asked to read into this provision. I note that the Minister said that guidance,

“can be endorsed by the Chancellor”—

I was not sure what route that was taking me down. I am grateful to noble Lords for indulging me. I, for one, now understand better what is proposed. I beg leave to withdraw the amendment.

Amendment 162 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

My Lords, if the Minister needs to answer my question after today, that will be fine. I well understand what the noble Baroness has said but some of the provisions to which this amendment will apply deal only with one area—mostly with Northern Ireland but one or two with Scotland. If there is a provision that regulations may apply to areas, how does that work when you have only got one area, as I understand it, being one of the four nations? They are not sub-divisible after that.

[Lord Kennedy of Southwark]

I am happy with the amendment. It is, unfortunately, necessary in this situation. I hope the parties can get round the table and get the Administration back and up and running again.

Criminal Finances Bill

Baroness Hamwee Excerpts

Committee: 1st sitting (Hansard - continued): House of Lords
Tuesday 28th March 2017 Lords Chamber

Moved by

[Baroness Hamwee]

81: Clause 13, page 43, line 42, at end insert—
“(h) money or assets in any form which may be used as currency,”.”

--- Later in debate ---

[Baroness Hamwee (LD)]

Amendment 81 extends the debate we had immediately before the break with regard to the assets that may be liable to forfeiture. I understand the extension in Clause 13, which we have discussed, but I wonder why there should be any limits on what falls within the forfeiture provisions, because life changes. Items that come into common use change. Who had heard of bitcoins 10 years ago? That is the thinking behind my Amendment 81, which would extend cash, and Amendment 84, which would extend listed assets. The Minister in the Public Bill Committee in the Commons said of what is now Clause 14 that the Government did not want to use the power in new Section 303B(2) “indiscriminately”. I am puzzled what that term means. I can see that they would want to be careful about that use, but I do not see the relevance of discrimination.

In her letter of 17 March to noble Lords following Second Reading, the Minister referred to a balanced approach and said that allowing seizure of any type of property would not be proportionate. Again, that term puzzles me. Balance and proportion are relevant to the circumstances in which property can be forfeited—the conditions which have to be met, and so on—but are they relevant to the type of asset? We are in danger of allowing the owner of an asset to apply criminal ingenuity to remain a step ahead, finding new categories of property in which the proceeds of crime can be held. At Second Reading, the Minister said:

“As criminals adapt, so must we”.—[Official Report, 9/3/17; col. 1476.]


We should—but it would be even better if we were to anticipate and be a step ahead, not a step behind, because it is very hard to be in step precisely.

--- Later in debate ---

[Baroness Williams of Trafford]

I am looking for a yes or a no, but I do not think that I will get it, so I will write to the noble Lord.

[Baroness Hamwee]

My Lords, I am grateful to the noble Lords, Lord Stevens and Lord Kennedy. Mobile phone credits for cash? I have led a very sheltered life.

The Minister said that the problem was in the phrase “may be used as currency”. But it seems to me that one can know that only through experience. That is why betting receipts, gaming vouchers and so on have now been included. I am really not sure that I follow the argument, although I will think about it after this evening.

I mentioned bitcoins not because I was suggesting that they should be included but simply as an example of how some time ago we did not know what was coming.

One’s living expenses include the expenses of dependants—I think that is what the Minister said. She is nodding. It is not quite within the normal meaning of the words, but I will accept that, and I am glad that it has been confirmed.

I do not think that I adequately followed the argument about the term “exceptional circumstances”. The Minister said quite a lot about the rest of the clause and of course I shall look at that after this evening. For now, I beg leave to withdraw the amendment.

[Baroness Williams of Trafford]

Perhaps I may intervene to say that the regulations will be affirmative.

--- Later in debate ---

Moved by

[Baroness Hamwee]

107: Schedule 1, page 120, line 12, at end insert “of such minimum level of seniority as may be designated by the Secretary of State”

[Baroness Hamwee]

My Lords, we have had groupings which have covered half a dozen big issues; Amendment 107 would amend the definition of SFOs— serious fraud officers—in Schedule 1, where we are told that an SFO officer is,

“a member of staff of the Serious Fraud Office”.

My amendment would add to that,

“of such minimum level of seniority as may be designated by the Secretary of State”.

Realistically, of course, this aims to exclude a very junior member of staff who has perhaps simply administrative duties and so on—I seem to remember the noble and learned Lord, Lord Keen of Elie, saying, “It wouldn’t mean the janitor”. I want to make sure that it does not mean the janitor. The SFO officers are referred to for various purposes, and after all, staff include civilians. I hope that whoever is to reply to this from the Front Bench—it seems that it will be the noble Baroness, Lady Vere—will be able to reassure the Committee as to just what is meant in this context and why there is no obvious limit: or perhaps there is one somewhere else as regards what level of officer we are talking about. I beg to move.

[Lord Kennedy of Southwark]

The noble Baroness’s amendment is obviously a probing amendment, and I hope that we will get a response from the Government Front Bench that clarifies the situation.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I understand the need to broaden the scope but I cannot help but think that we have been told that there are a lot of organisations that could give responsibilities to their janitors. The point is that decisions on who is given responsibility to do what can be made by senior officers of the day in an inconsistent fashion. In most organisations that would be entirely reasonable but we are talking about very serious powers, so my amendment and my comments are not intended to be frivolous.

Of course, I shall not pursue this matter tonight, and indeed after two or three mentions of thanks for my careful scrutiny and, reading between the lines, thoughts of “I wish the noble Baroness would shut up”, I think that I probably will for tonight. As I said, it is not a frivolous point but I beg leave to withdraw the amendment.

Amendment 107 withdrawn.