Economic Crime and Corporate Transparency Bill

Debate between Geoffrey Cox and Robert Buckland

Report stage
Wednesday 25th January 2023 Commons Chamber

[Sir Robert Buckland]

I think that there are two things: time and capacity. I do not criticise officials. I have never believed in doing so: it is a bad Minister who blames their officials, just as a bad workman blames his tools. Officials have a lot of work to do under immense pressure, and obviously they want to get it right. I want to get it right, too—we all do—but the Bill might be our last chance to do so in this Parliament. My goodness me, if we cannot get it right here, the Government are really going to have to get it right in the other place.

Let me deal further with the identification doctrine. Opposition new clause 40, which is very well worded, alludes to the US concept of respondeat superior. In effect, it is a wrap-all approach to vicarious liability that captures the acts or omissions of even very junior members of a corporate, which can lead to that corporate being liable. In some ways that has proved advantageous to prosecutors in the US: they have been able to identify more junior officials in corporates and, in effect, get them to co-operate with the authorities, which has opened up evidence that might not otherwise have been available.

The Law Commission looked at that approach. It also looked at what I might call the corporate culture approach in Australian Commonwealth law, and at Canadian legislation on the acts and mental states of senior managers. The Law Commission said—rightly, I think—that neither the US approach nor the Australian approach would be right for our jurisdiction.

The wording of my new clause 5 reflects the Law Commission’s recommendations in two ways. First, as the Law Commission’s report sets out, it would allow conduct to be

“attributed to a corporation if a member of its senior management engaged in, consented to or connived in the offence.”

Senior management is defined as

“any person who plays a significant role in the making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or the actual managing or organising of the whole or a substantial part of those activities.”

We have taken the Canadian approach.

[Sir Geoffrey Cox (Torridge and West Devon) (Con)]

I draw the House’s attention to my entry in the Register of Members’ Financial Interests.

I am intrigued by and have a great deal of sympathy with my right hon. and learned Friend’s amendments. As he knows, we discussed the issue when we served as Law Officers together. In the light of the Law Commission recommendation from which he has just quoted, I wonder why his new clause 5 includes the

“neglect of a senior manager.”

It seems conceptually a rather odd proposition that a fraud could be committed by neglect. The Law Commission did not go that far. Why has my right hon. and learned Friend included that provision?

[Sir Robert Buckland]

That is a fair question. What I seek is to tease out from the Government the juxtaposition with the money laundering regulations. My right hon. and learned Friend will remember my making mention of regulation 92 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, which uses the word “neglect”. To be frank, I think that there is a problem with that, but it is important for us to tease out from Ministers a way to find a wording that is comprehensive.

[Sir Geoffrey Cox]

I have enormous sympathy with my right hon. and learned Friend, who is doing the House a service by bringing these amendments to its and the Government’s attention. However, is it not reasonable—Opposition new clause 40 has this purpose in mind as well—that there should be quite a detailed consultation within the financial services industry and among any other commercial organisations that might be affected? New clause 5’s use of the word “neglect” creates an extraordinarily broad possibility for the application of the criminal offence.

I know what my right hon. and learned Friend is doing, and I applaud it. However, it seems to me that it is reasonable to require of the Government that they get it right, but, as the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) said, that must not become an excuse simply to say “mañana” and kick this into the long grass.

[Sir Robert Buckland]

I am always grateful to my right hon. and learned Friend; I greatly enjoyed our time working together as Law Officers, and I yield to no one in my respect for him. He is right to make that point. I think I couched my remarks in a way that was faithful to the Law Commission’s options, which say that the Government do not necessarily have to do it all—there is a choice here, potentially. On a wider basis, I think that the identification doctrine needs to be looked at. There could be an opportunity for further refinement, perhaps in the other place, and for provision to be made that refers specifically to the offences that I list in new clause 5.

Let me take my right hon. and learned Friend’s point in the spirit in which he made it, and build on it. New clause 5 includes the specification in Law Commission’s option 2B that an

“organisation’s chief executive officer and chief financial officer would always be considered to be members of its senior management.”

We have sought to be faithful to option 2B.