Rural Crime: NFU Mutual Report

Lord Garnier Excerpts

Thursday 12th September 2024 Lords Chamber

[Lord Hanson of Flint (Lab)]

I am grateful to my noble friend. He may not know that I served on the Metal Theft (Prevention) Bill Committee in Opposition in 2013. We pressed that very strongly. In co-operation with the then Government, we reduced metal theft by 50% over that period. More legislation and security allowed thefts to be tracked down through scrapyards and known routes of criminal activity. It was a really effective piece of cross-party legislation: we amended it in Opposition, the Government accepted it and improvements were made. Of course I will happily meet with him. There is downward pressure and there will continue to be downward pressure, but if he and his all-party group have suggestions, we will happily look at them and consider them.

[Lord Garnier (Con)]

My Lords, the Minister will understand that it is not just crimes of acquisition and anti-social behaviour that affect rural areas. They are also affected by fraud offences. Does the Minister have any idea when Section 199 of the Economic Crime and Corporate Transparency Act 2023, which provides for an offence of failure to prevent fraud offences, will be implemented? It cannot be implemented under the Act until six months after the publication of Home Office guidance. We have been waiting for the Home Office guidance. Does the Minister have any idea at what stage the consideration of that guidance is within the Home Office?

[Lord Hanson of Flint (Lab)]

I am grateful to the noble and learned gentleman. I have been tasked by both the Prime Minister and the Home Secretary to be the Minister responsible for fraud. This week, I met with officials and I will be meeting with stakeholders. We have a potential examination of a future fraud strategy based on the work of the previous Government. The points that the noble and learned Lord makes are a part of our reflection on that strategy. I will certainly go away and inform myself of what happened under the previous Government in relation to that delay, and how I can expedite this as a matter of some urgency.

King’s Speech

Lord Garnier Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Garnier (Con)]

My Lords, I gladly follow the noble Lord, Lord Browne. I could have made exactly the same speech that he has just made when we came into government in 2010. I spent quite a time as shadow Prisons Minister studying the state of our prisons in the period from 2005 to 2008, and I wrote a paper called Prisons for a Purpose. I suggest the noble Lord reads it; he will find a lot of what he has just said in it.

Before reading the Henley report into the Criminal Cases Review Commission’s conduct in the Andrew Malkinson case, I had intended to speak about prisons and indeterminate sentences for public protection. But I will now concentrate on the CCRC and rely on other noble Lords to say what needs to be said on those subjects —save to say that I reject the new Lord Chancellor’s assertion that the current state of our prisons is all the fault of the last Conservative Government. As I indicated to the noble Lord so politely, the Blair-Brown Government still have plenty to answer for, and the noble Lord, Lord Hanson of Flint, knows that as well as I do because he was the Minister for Prisons for part of that period. That said, I genuinely welcome him to your Lordships’ House. I shadowed him in the other place when he was Minister for Prisons and he was an honest and hard-working opponent for whom I have and had the greatest of respect. I know that he will bring his skill and determination to his work in the Home Office.

I also welcome the noble Lord, Lord Timpson, the former chairman of the Prison Reform Trust, of which, as I said in earlier business, I am a trustee. He has spent his adult life and fortune thinking constructively about caring for the welfare of prisoners and former prisoners. I congratulate him on his appointment and the Prime Minister on making that appointment. I also congratulate him on his fine maiden speech this afternoon. I urge him to achieve direct access to the Prime Minister on prisons policy, as he must be seen to be speaking with the direct authority of the Prime Minister. Without it, he could well be lost in the quagmire that is Whitehall. For far too long, under Conservative and Labour Governments alike, prisons policy has been delegated to Ministers without adequate political power—as a job to fill, rather than a central part of the conduct of good government. The noble Lord, Lord Ponsonby of Shulbrede, needs no welcome, but I congratulate him on his appointment within the Government.

The Henley report opens to urgent public examination a state of affairs that those in charge of the CCRC should be ashamed of. It should lead them to consider their positions. In 2023, the Court of Appeal quashed Andrew Malkinson’s rape conviction. In 2004, he had been sentenced to life imprisonment, and he spent 17 years in prison before he was released, with a further three on probation. Throughout that time, he steadfastly maintained his innocence, but it took 20 years and two Court of Appeal hearings for his conviction to be overturned. He made three applications to the CCRC in 2009, 2018 and 2021 to refer his case to the Court of Appeal. The first two were refused, and the third resulted in a successful appeal hearing in July 2023.

From 2021 to 2022, the noble Baroness, Lady Stern, and I co-chaired the Westminster Commission on Miscarriages of Justice. We were set up to review the work of the CCRC after 25 years of operation. It can refer a case to the Court of Appeal if it considers that there is a real possibility that the court will quash the conviction or reduce the sentence in the case. It receives over 1,000 applications every year.

Our report was written in ignorance of the Malkinson case and before the 2023 Court of Appeal decision. We recommended that the roles of the chair and commissioners should be strengthened and that the processes for their appointments should be reviewed. We also found that the CCRC was underfunded, a problem exacerbated by the financial restrictions on the public provision of advice and representation for applicants. But one has only to read the 2024 Henley report on the Malkinson case to see that, even without the hideous facts of that case, we reached very similar conclusions.

We urge that the test for the CCRC should be altered to something less predictable. It should refer a case if it considers that the conviction rate may be unsafe, that the sentence may be manifestly excessive or wrong in law, or that it is in the interests of justice to make a referral. That would encourage a more independent mindset. The CCRC is presently too deferential to the Court of Appeal. It needs bold and determined leadership. It is my experience, having read the Henley report, that it is simply not getting it.

After the 2023 Court of Appeal decision, I publicly criticised the chair of the CCRC, not least because she said nothing in public to recognise what had happened to Mr Malkinson or to atone for the CCRC’s failures. I met her so that she could explain her position, but I came away from that meeting even more convinced that the CCRC needed new leadership. Had the Westminster commission known in 2022 what Mr Henley now tells us, we would have been less kind.

Having read the Henley report, it is now my view—in this I agree with the new Justice Secretary—that the CCRC unquestionably needs new leadership. If the chair and the chief executive will not resign immediately, they should be replaced. The CCRC cannot move forward with them in post. We need a full-time executive chair, with at least the standing of a High Court judge, and full-time salaried commissioners rather than the current part-timers. It needs better and better-resourced case managers. The CCRC, as presently organised and managed, is moribund.

Economic Crime and Corporate Transparency Bill

Lord Garnier Excerpts

Consideration of Commons amendments
Wednesday 18th October 2023 Lords Chamber

Moved by

[Lord Garnier]

Leave out from “House” to end and insert “do insist on its disagreement with the Commons in their Amendment 151A, do not insist on its Amendments 151B and 151C, to which the Commons have disagreed for their Reason 151D, and do propose Amendments 151E and 151F in lieu—

151E: As an amendment to Lords Amendment 151, in subsection (1), after first “body” insert “which is not a small organisation or which is a large organisation (see sections (Section (Failure to prevent fraud): small organisations), (Section (Failure to prevent fraud): large organisations) and (Large organisations: parent undertakings))”

151F: After Clause 180, insert the following new Clause—
“Section (Failure to prevent fraud): small organisations
(1) For the purposes of section (Failure to prevent fraud)(1) a relevant body is a “small organisation” only if the body satisfied two or more of the following conditions in the financial year of the body (“year P”) that precedes the year of the fraud offence—

Turnover	Not more than £10.2 million
Balance sheet total	Not more than £5.1 million
Number of employees	Not more than 50.

(2) For a period that is a relevant body’s financial year but not in fact a year, the figure for turnover must be proportionately adjusted.
(3) In subsection (1) the “number of employees” means the average number of persons employed by the relevant body in year P, determined as follows—
(a) find for each month in year P the number of persons employed under contracts of service by the relevant body in that month (whether throughout the month or not),
(b) add together the monthly totals, and
(c) divide by the number of months in year P.
(4) In this section—
“balance sheet total”, in relation to a relevant body and a financial year—
(a) means the aggregate of the amounts shown as assets in its balance sheet at the end of the financial year, or
(b) where the body has no balance sheet for the financial year, has a corresponding meaning;
“turnover”—
(a) in relation to a UK company, has the same meaning as in Part 15 of the Companies Act 2006 (see section 474 of that Act);
(b) in relation to any other relevant body, has a corresponding meaning;
“year of the fraud offence” is to be interpreted in accordance with section (Failure to prevent fraud)(1).
(5) The Secretary of State may by regulations modify this section (other than this subsection and subsections (6) and (8)) for the purpose of altering the meaning of “small organisation” in section (Failure to prevent fraud)(1).
(6) The Secretary of State may (whether or not the power in subsection (5) has been exercised) by regulations—
(a) omit the words “which is not a small organisation or” in section (Failure to prevent fraud)(1), and
(b) make any modifications of this section (other than this subsection) that the Secretary of State thinks appropriate in consequence of provision made under paragraph (a).
(7) Before making regulations under subsection (5) or (6) the Secretary of State must consult—
(a) the Scottish Ministers, and
(b) the Department of Justice in Northern Ireland.
(8) Regulations under subsection (5) or (6) may make consequential amendments of section (Failure to prevent fraud: minor definitions).””

[Lord Garnier (Con)]

My Lords, the cracked record is up and at it yet again, but I make no apology because, although I fully understand the timetabling difficulties that the Government face—namely, that they would like to see this Bill receive Royal Assent before the close of the Session—I think we all ought to agree that it is better that, if we are to give this Bill a route through to Royal Assent, it should be a good Bill.

Most of the Bill is good, but this particular provision in relation to failure to prevent fraud offences falls down. I will not make the same speech that I made on 11 September, nor the same speech that I made in July, nor the same speech that I made in the spring, nor the same speech that I have made probably half a dozen times since I came into this House and probably a dozen times when I was a Member of the other place. Suffice to say that nothing I have heard from the Government, and nothing I have heard from those representing the Government in the other place, has come anywhere near meeting the case that has to be met.

First, it seems to me as a matter of straightforward principle that the criminal law should be uniform. It should apply to all in exactly the same way, and any defence that is available to a criminal offence should also be the same and applied to all uniformly. Of course, it will be up to the prosecuting authorities to consider the evidence and whether it is in the public interest to bring a prosecution on the evidence available, but we should not leave this Bill in a position where there is a different failure to prevent fraud offence for most companies than there is for 0.5% of the corporate and partnership economy.

I add this. There should be a form of consistency between each of the Government’s Bills dealing with failure to prevent. The Bribery Act 2010 has a failure to prevent bribery offence. The Criminal Finances Act 2017 has a failure to prevent the facilitation of tax evasion offences. Neither of those two failure to prevent offences is limited in its scope, in so far as neither of those Acts of Parliament provide an exemption for anybody, still less for 99.5% of the corporate economy. For some extraordinary reason which is yet to be explained this Bill provides that only 0.5% of the corporate and partnership economy should remain liable for any failure to prevent fraud offences. I have yet to find an answer.

I read in Hansard the House of Commons debate of 11 September which overturned my successful amendment. My right honourable friend Mr Kit Malthouse said that, clearly, I do not understand anything since I have never run a business. Well, he is wrong about that, quite apart from being offensive, because I have run my own business as a self-employed barrister for nearly 50 years. Furthermore, I have been a head of a set of chambers, which is, if I may say so, quite a respectable business to run.

[Noble Lords]

Hear, hear!

[Lord Garnier (Con)]

If one wants to learn anything from the speeches made in the House of Commons, I suggest that my noble friends on the Front Bench— and other noble Lords if they have a moment—read those of Sir Robert Buckland and Sir Jeremy Wright, two former law officers. They agree with my remarks of 11 September and find it puzzling that their own Government, a Government who are in favour of producing cogent and cohesive criminal law, have come up with this dog’s dinner.

I have done my best to be accommodating. It is not an accusation that is often levelled at me, but on this occasion, I think that it can be, justly. I have done my best to meet some of the Government’s less organised thinking. As I said at the outset, as a matter of principle. I cannot understand why there should be an exemption for anyone from the proposed criminal law, just as there is not under the Bribery Act and the Criminal Finances Act. However, to make life easier for the Government, on the last occasion I suggested that microbusinesses should be exempted from the failure to prevent fraud offences provision. I abandoned my provisions relating to the failure to prevent money laundering. The Government did not find that attractive, even though I tried to explain my abandoning of the principle on the basis that just as we have an age limit for criminal responsibility—10—we could perhaps also, by a rather clumsy analogy, exempt microbusinesses from criminal responsibility under the failure to prevent provision. That did not seem to go down very well with the Government—certainly not with Mr Kit Malthouse.

I have now moved a little further towards the Government. You may say, “Well, that’s a bit wet. If you’ve got any principles, why not stick to them?” Well, okay, accuse me of being wet, but I am doing my best to help the Government get out of an unnecessarily sticky hole. I have amended my proposal so that rather than microbusinesses being exempted, “small” businesses should be exempted—I define a small business on page 5 of the amendment paper, which states that, for the purposes of this provision,

“a relevant body is a ‘small organisation’ only if the body satisfied two or more of the following conditions in the financial year of the body … that precedes the year of the fraud offence”.

Those conditions are that the turnover of the business should be

“Not more than £10.2 million”,

the balance sheet should be

“Not more than £5.1 million”

and the number of employees should be “Not more than 50”.

In speaking against my own case, I rather wish that I had not put that down, but I have because I am trying to assist my noble friend on the Front Bench in getting his Bill enacted before the end of this Session.

I repeat that the criminal law should be uniform. Defences to the criminal law should be uniform. We should not have exemptions based on the size of the business. The Theft Act applies to all suspects—I am seeing whether my noble friend still enjoys my old joke about the six feet six burglar—regardless of whether they are six feet six or five feet six. We do not exempt people on the basis that they are small people or do not fit a particular height, so why are we doing it here? I have yet to find out. I am afraid that unless the Government move a little closer to me, I will invite your Lordships to join me in the Division Lobby.

[Lord Faulks (Non-Afl)]

My Lords, I shall speak to my Motion B1, as an amendment to Motion B, which is being debated within this group. It would

“leave out from ‘House’ to end and insert ‘do insist on its disagreement with the Commons in their Amendment 161A, do not insist on its Amendment 161B, to which the Commons have disagreed for their Reason 161C, and do propose Amendment 161D in lieu’”.

That is very clear.

We return to what has been described as a cost-capping amendment. Since this is not the first time that we have had the debate, I will try to be brief. This Bill has been a welcome, if late, addition to the government agencies in their fight to combat fraud. The scrutiny of the Bill through your Lordships’ House has been thorough and constructive. It has also been non-party political. I do not think that either the noble and learned Lord, Lord Garnier, or I would consider ourselves to be natural rebels.

All noble Lords have participated in this debate—and I very much include the Ministers in this—with a common purpose: to make this legislation as effective as it can be. Two themes emerged during the many debates. The first was the scale of the problem. The Government estimate, for example, that £100 billion was laundered through the United Kingdom last year, and yet under the Proceeds of Crime Act assets of only £345 million were recovered: that is 0.3%. The second theme was the frequent imbalance that exists between the resources available to enforcement agencies and those of the fraudsters, who may well employ expensive lawyers and have significant resources to enable them to do so. This modest amendment tries to do a little to restore that balance. I would have liked the enforcement agencies to have had complete protection against costs orders in the event that they lost a recovery claim, but in the course of ping-pong I have had to compromise somewhat, hence the form of the current amendment before your Lordships’ House.

The amendment does not prevent a judge from doing what is fair on costs in any particular case, but it is a nudge towards him or her to take into account the reasonableness of the agency bringing proceedings at all and the potential impact on its ability to carry out its functions if left with a substantial costs order. I struggle to understand the Government’s objection to this amendment and its predecessors; they seem, with respect, to be adopting a somewhat tender approach to fraudsters.

There is a clear precedent for this sort of amendment: when your Lordships’ House introduced a provision concerning the much-underused unexplained wealth orders. If it loses a case, the enforcement authority will have to pay costs only if it has acted unreasonably. As to the objection that it offends the “loser pays” principle, that is a misconceived argument. Judges regularly, in ordinary cases, make orders that each side bear their own costs, or make issue-based costs orders, or other orders which reflect the justice of the individual case. Parliament has legislated in ways that depart from this so-called principle: for example, QOCS—that is Qualified One-Way Costs Shifting—in personal injury litigation; or by Section 40 of the Crime and Courts Act; or in relation to unexplained wealth orders. This amendment is intended to reduce the possibility of an agency saying to itself, “We cannot afford the risk to the budget if we lose a case, even when we’ve got good evidence to bring it”.

Spotlight on Corruption suggests that a number of cases are in the pipeline which bear costs risks. These are said to include over 60 cases being reviewed by one agency, and close to £1 billion in assets frozen by an enforcement body.

Another advantage to this amendment is that those defendants or respondents to an application who defend these cases will know that, even if their legal strategy prevails, they may not recover their costs. This may mean that they are keener to reach a compromise.

The amendment has the support of all those bodies that are concerned with anti-corruption. Incidentally, it also has the support of Bill Browder, who regards it as one of the most significant potential improvements to the Bill. Let us please not kick this into touch and have yet another report, which is the Government’s suggestion. If necessary, I will move Motion B1 and test the opinion of the House.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have contributed to this relatively short debate. Like my noble and learned friend Lord Garnier, I am in danger of sounding like a cracked record on this subject, so I will keep my remarks brief. I reassure my noble and learned friend that I still find his joke funny and I am glad he keeps making it. I thank him for being incredibly gracious although we continue to disagree on these matters. I have to say I do not believe the Bill is a dog’s dinner or that these arguments are dog’s-dinnery. We are not in a sticky hole on this; it is a difference of opinion, and I will make a couple of the arguments that I have rehearsed before in support of that.

I shall deal with my noble and learned friend’s amendment by first reminding him and the House that this may be a relatively small number of companies but, as I have said many times before from this Dispatch Box, they account for 50% of economic output in this country. The heart of the argument comes down to why there is a threshold for this offence but not for the offences of failing to prevent bribery or the criminal facilitation of tax evasion. As I have reminded the House on numerous occasions, the Law Commission has identified the disparity here: it is easier to prosecute smaller organisations under the current law, which this failure to prevent offence will address. The new offence is less necessary for smaller firms, where it is easier to prosecute individuals and businesses for the substantive fraud offence. The Government therefore believe it would be disproportionate to impose the same burden on them. The fact is that this is not an exemption from the law; the law applies in a different way to these smaller companies, as we have tried to explain on a number of occasions. I think I will leave that there.

On Motion B1 in the name of the noble Lord, Lord Faulks, I do not think that this represents a tender approach to fraudsters. As we have said and made the case on a number of occasions, fundamental changes are being proposed here, and the review that we have proposed seems like a fair way of assessing precisely the implications of making those changes.

I thank my noble friend Lord Wolfson for highlighting some of the complexities in this area in his particularly acute legal way, which I am not equipped to follow. However, I can perhaps answer the question about the difference in introducing the cost protection amendment for civil recovery compared with unexplained wealth orders. This issue has come up in previous debates as well. The fact is that the difference between the changes made to the unexplained wealth order regime by the first Economic Crime Act last year and what is proposed in this amendment is that unexplained wealth orders are an investigatory tool that do not directly result in the permanent deprivation of assets, whereas the civil recovery cases covered by the amendment could do so. There could therefore be a host of serious unintended consequences of such a change to the wider civil recovery regime, so the Government cannot support the amendment. A review is the appropriate way to look at this issue. As I tried to make clear in my opening remarks, that may well be a very good idea, but we would like to be convinced of that and to do the work before we actually accept it.

I thank the noble Lord, Lord Coaker, for generously accepting that we have made significant improvements to the Bill through its passage. I say to the noble Lord, Lord Wallace of Saltaire, that we have engaged extensively with all noble Lords in this House on the Bill. I thank him for his explanation of how he believes a revising Chamber should operate. The fact is that we are not sufficiently persuaded of the arguments against this, so there is a genuine difference of opinion. I do not think the noble Lord would mean to imply that this House should necessarily have a veto where there is such a difference of opinion. I think that is a fairly straightforward argument and a perfectly respectable one.

Throughout the passage of this Bill, the Government have worked hard to ensure the right balance between tackling economic crime and ensuring that the UK remains a place where law-abiding businesses can flourish without unnecessary burdens. The Motions tabled by the Government today achieve that balanced and proportionate approach. I therefore urge all noble Lords to support them.

[Lord Garnier (Con)]

My Lords, I will make one point in total agreement with my noble friend the Minister—we are not having a row, we are having an argument. He and I have a different view about the merits of our respective arguments. If the House listens to no other speeches, and if it wishes to forget mine, I urge noble Lords to remember what the noble Lord, Lord Eatwell, and my noble friend Lord Agnew said. From both sides of this House, they perfectly summed up the lacuna in the Government’s case.

I thank all noble Lords who have taken part in this short debate. Despite the fact that this is not an argument about party politics—it has nothing whatever to do with the Salisbury convention—I regret that I am insufficiently persuaded by my noble friend the Minister that he has quite got the point. I must therefore ask the House if it will join me in agreeing with my Motion by testing the opinion of the House.

Illegal Migration Bill

Lord Garnier Excerpts

Report stage
Wednesday 5th July 2023 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I rise in support of Amendment 168AZA. The noble Lord, Lord Swire, has explained why it is a very modest but important part of this discussion.

One reason why I think there is substantial public support for the Bill, at least in terms of the headlines and broad brush strokes, if not the detail—we have heard from the wide range of amendments the potential problems when looking at the detail of the Bill—is that people feel as though things are out of control. That is viscerally expressed by people seeing the boats arriving. The difficulty is that, in a discussion—even in this Chamber, but certainly beyond this Chamber—about what is really going on, many people feel as though they are confronting smoke and mirrors. They do not know who is here and under what status they are here.

I said at Second Reading—or at some stage, anyway—that many people feel as though they are being gaslit. When they raise concerns, they are told—as we have just heard a bit of—that these are trafficked people and victims. One reason why I support the amendment introduced by the noble Baroness, Lady Stroud, a moment ago is that I feel that the terms “asylum seeker” and “refugee status” are being sullied by being used in a way that is unhelpfully broad and vague, often quite promiscuously and illegitimately, in order to say to the British public, “What are you worried about?” The problem is that the generosity of spirit around refugees is being tested, to say the least.

Therefore, we need to have a sense of proportion and to know what is going on. It is quite straightforward: we do not, which means that people bandy around emotive headlines and accusations against the British public—often unfairly—as though they are all xenophobic, they do not care, and so on. Also, quite grand statements are made. I think people want to know very clearly who is here illegally and in what category they are here.

I commend the noble Lord, Lord Swire, for making the point that it is the obligation of this Government—or a Labour Government or any Government—to know who lives within our borders. If you do not know, then you do not have national sovereignty. You cannot run a country in which you say, “Oh, sorry, it is too difficult to know”. Anyone who says, “Find out for yourself” has not tried. We have all tried and we want to know that the people who run this society do know and therefore have a handle on it.

[Lord Garnier (Con)]

My Lords, before I speak in support of my noble friend’s Amendment 168AZA, which I supported also in Committee, I want to make two very quick points about Amendment 168 in the name of the noble Lord, Lord Coaker. I entirely sympathise with the sentiments expressed by the noble Baroness, Lady Meacher, but it strikes me that there is already a responsibility on the National Crime Agency to tackle organised crime of all types, not just immigration crime. I think we go a step too far if we legislate the internal administration of a police authority. There can be a debate and a disagreement about whether that is right; and perhaps the supporters of Amendment 168 are making a rhetorical point, and I can accept that; but I just caution against passing legislation that imposes a duty on the National Crime Agency that already exists.

Turning to Amendment 168AZA, I complained in Committee that, absent this information, we had government by guesswork, and government by guesswork is not a very attractive way of running anything, let alone an immigration system. For some of the reasons advanced by the noble Baroness, Lady Fox, a moment ago, ignorance creates suspicion, and suspicion leads to poor community relations and general dissatisfaction in the way in which the governed look at the governors. So I urge my noble friend on the Front Bench to provide us with a convincing response, which I have not yet heard; nor have I been given any information by any Minister since we last debated this in Committee. It cannot be suggested that the Government do not like annual reports. One has only to look at Clause 60(1):

“The Secretary of State must, before the end of the relevant period … prepare and publish a report on safe and legal routes by which persons may enter the United Kingdom”.


The detail of what that report is supposed to contain each year is set out in Clause 60(2), and it has to appear within six months of the Act being passed.

The information that we think should be made public and brought together in a single annual report is set out in proposed new subsections (a) to (e) of our amendment. Proposed new subsections (b), (c), (d) and (e) cover information that is available somewhere in the government system: some clever person can press a button and the numbers will come spewing out—easy. I accept that counting the number of illegal immigrants in the United Kingdom presents one or two more problems, because not every illegal immigrant is going to present himself at a counting centre; however, they can make an intelligent estimate.

I ask the Government to condescend to move a little bit towards us and provide the public with the information they feel they need to see and which the Government must know in order to run a sensible, humane and legitimate immigration system. That is all this is about, so let us get on with it.

Economic Crime and Corporate Transparency Bill

Lord Garnier Excerpts

Report stage
Tuesday 27th June 2023 Lords Chamber

[Lord Cromwell (CB)]

My Lords, I start by sincerely thanking the noble and learned Lord, Lord Bellamy, and his team for meeting me and others to discuss SLAPPs and for the subsequent correspondence with me on areas of concern that remain, to some of which I will return briefly in a few moments.

As noble Lords will know, I have been rather tenacious in arguing for the inclusion of provisions against SLAPPs in the Bill, so I welcome government Amendments 102 and 103 before us today. They reflect positive listening by the Government, in particular the new Lord Chancellor, to a long campaign by Members of both Houses, as well as a coalition of non-governmental organisations. The amendments do not deliver everywhere —Scotland is excluded, I believe—nor do they cover everything that I and others have been seeking. I shall put these, as succinctly as I can, on the record.

My main concern, because it goes to the heart of SLAPP tactics, is the lack of sufficient provision in Amendment 102 for the courts to bring matters to a halt pending a decision on striking out under subsection (1) of the new clause inserted by the amendment. In his letter to me on this point, the Minister characterised such an approach as unfair and restrictive on the court, but as others have said, those using SLAPPs will do all they can to run up the costs of their opponent, not as a route to justice but as a tool of harassment. For example, in relation to new subsection (1)(b) in the amendment, deliberate pursuance of disclosure pending resolution of an anti-SLAPP motion can easily ratchet up costs.

To be effective in assessing cases and in preventing SLAPPs, to which Amendment 102 is directed, the court should be inclined to call a halt to the litigation process until it is decided whether the case should be struck out. I therefore ask the Minister whether he agrees that the courts, guided by the Civil Procedure Rules, should as a default position take the approach of putting a stop on proceedings pending a decision on striking out and allowing processes to proceed only where a very compelling reason exists for them to do so.

On Amendment 103, subsection (1)(d) of the new clause inserted by the amendment refers to harassment, expense and other harms which are

“beyond that ordinarily encountered in the course of properly conducted litigation”.

It is exactly the use of so-called “properly conducted litigation” that SLAPPers weaponise in order to intimidate their victims. While some amount of emotional and financial cost is inevitable in court proceedings, I do not accept that harassment should ever be part of properly conducted litigation. The phrasing of the amendment appears to suggest that it is acceptable. This creates a significant opportunity for the SLAPPer’s legal team to claim its harassment tactics are just part of the machismo and cut and thrust of legal process and, perhaps, as if a bit of harassment never really hurt anyone. That is the bully’s excuse.

It also leaves the courts struggling to make a subjective judgment about what is in the minds of the claimant and the defendant. In his helpful letter to me, the Minister stated that the courts are well versed in deciding such matters. However, I remind the House, as I elaborated at some length in Committee, that courts have always been very shy of inferring intention, and I am not aware of any instance where a court has struck out a case for improper purpose.

Even the recent case involving Charlotte Leslie and Mr Amersi was thrown out pursuant to CPR part 3.4 —namely, that the statement of case disclosed no reasonable grounds for bringing the claim. The court judgment was explicit that the court was not making a decision on whether the case constituted an abuse of process. The most the court judgment was willing to say was that there were several aspects of Amersi’s behaviour which gave “real cause for concern” that it was brought with an improper purpose. That illustrates how high a hurdle the test for improper purpose currently is.

The courts’ hands need to be strengthened here. Unless we enable the courts more effectively to label an action as an abuse of process, the current shyness about ever striking out a case on those grounds seems set to continue. I therefore ask the Government to reconsider my suggestion, which I have written to the Minister about, that the phrase about “properly conducted litigation” is removed and that the court, in considering the claimant’s behaviour, should decide if it could be reasonably understood as

“intended to cause the defendant … harassment”,

et cetera.

I have two other brief points. I understand that the intention of subsection (3) of the new clause inserted by Amendment 103 is to draw a wide definition of economic crime. However, in practice, it puts a potentially costly burden on the defendant to show that it is a SLAPP, and to require a subjective, and perhaps lengthy, assessment of intent by the court. Above all, it seems redundant, because subsection (1)(d) already establishes whether a case is a SLAPP. I therefore hope that the Minister will consider a revised drafting in order to encompass the purpose of having a wide definition of economic crime while not creating a new area of difficulty for the defendant.

Finally, subsection (4) of the new clause inserted by Amendment 103 covers factors for the court to take into account. It misses a typical SLAPP intimidatory tactic of bringing an action against individuals as well as their publishers. An example of the latter is the case brought in the UK against Swedish investigative journalists by a Swedish business. By bringing the claim in the UK, the claimant was able to sue not only the publication and its editor but the journalists as individuals. This would not have been possible in Sweden where, tellingly, the claimant decided not to sue. Individuals do not typically have legal insurance, and bringing individual action in this way is a classic intimidatory tactic. I therefore urge the Minister to include this as a factor for the court to take into account under subsection (4).

In conclusion, like the song by Messrs Jagger and Richards says,

“You can’t always get what you want

But if you try sometime …

You get what you need”,

these amendments give us a good chunk of what we need. By highlighting SLAPPs as unacceptable, they will make lawyers think harder about engaging in SLAPP tactics, as the noble Lord, Lord Faulks, highlighted. It is a great start, but there is more to do, as I and others have tried to outline today. I hope that these points will yet be reconsidered, either in the other place or in the wider legislation on this subject that the Government have promised. I look forward to the Minister’s response.

[Lord Garnier (Con)]

My Lords, I too declare an interest as a member of the Bar who has, over the past several decades, specialised in defamation.

I agree with quite a lot of what the noble Lord, Lord Cromwell, has just said in that, first, this is in essence economically driven; and that, secondly, the decision in Amersi v Leslie and others did not designate that particular claim as a SLAPP. None the less, there was plenty in the judgment of Mr Justice Nicklin to demonstrate that the judge was quite acute about the motivation behind the claim. Essentially, it was a claim that he considered to be bullying and designed to cause the defendants the most financial embarrassment possible; he saw through that.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, my apologies again for my early start on this; my enthusiasm keeps getting the better of me today.

As I was saying, corporate criminal liability is a topic that many across the House care deeply about, and one where the Government are committed to making significant reforms. I thank noble Lords for the robust and constructive debate we had in Committee on this topic and for the ongoing engagement which many noble Lords have afforded me in the weeks leading up to this debate.

I reiterate the Government’s commitment to reforming corporate criminal liability and tackling fraud. Since this Bill was introduced, significant steps forward have been taken. I hope, with the further government amendments to which I will speak shortly, noble Lords will recognise that we have gone to great lengths to strengthen the Bill in this area. In addition, government action continues outside of this Bill. The recently published Fraud Strategy further demonstrates the ongoing work across government and with partners to take action to tackle fraud.

I will speak first to government Amendments 104, 105, 106, 109, 138, 139, 140, 144 and 145, which introduce new clauses to this Bill to reform the identification doctrine. As noble Lords will be aware, the identification doctrine is outdated and ineffective in the way in which it holds corporates to account, given the breadth of business we see in the 21st century. Companies have grown tenfold since the “directing mind and will” test was devised in the 1970s. As companies have grown, their operations and governance have become spread across different areas, making it incredibly difficult to pinpoint the directing mind of a company, particularly in a large organisation. Individuals with significant authority can escape corporate liability by asserting that the directing mind and will is elsewhere.

Meanwhile, there is an unfairness here. Smaller companies, perhaps with one or two directors, have much more easily identifiable directing minds, meaning that corporate liability is more easily attributable and a prosecution is more likely to be successful. It is this inequality in the law that we need to address. The government amendments place the identification doctrine on a statutory footing for economic crimes for the first time, providing legislative certainty that senior managers are within the scope of the rule.

Under these new measures a corporate will be held liable if a senior manager has committed an offence under the new schedule, or if they have encouraged or assisted an offence by another, or have attempted or conspired to commit an offence under the schedule. The corporate will be criminally prosecuted and, if convicted, will receive a fine, in addition to any sentences imposed for individuals who are separately prosecuted and found guilty of the same offence. The reform will apply to all corporate bodies and partnerships established in England and Wales, Scotland and Northern Ireland.

These amendments build on the extensive work and consultation conducted by the Law Commission in this area. Building on feedback from prosecuting bodies, business representatives and Members of both Houses, some tweaks have been made to the Law Commission’s proposal to ensure the reform is applicable to the widest set of cases. Under the Government’s reform, economic crime is defined according to a new schedule in the Bill—introduced via Amendment 109—which reflects existing Schedule 10 but without those offences that principally apply to a corporate body, such as failure to prevent bribery.

For the purpose of these amendments, “senior management” will be defined in accordance with the well-established definition provided for in the Corporate Manslaughter and Corporate Homicide Act 2007. This model considered the senior managers’ roles and responsibilities within the relevant organisation and the level of managerial influence they might exert, rather than their job title.

The clauses tabled by the Government also seek to capture instances where a senior manager commissions or encourages a lower-ranking employee to do their “dirty work” by making it clear that the corporate can also be held liable where the senior manager encourages or assists a listed offence in the schedule.

To be clear to the House, subsection (3) of the new clause introduced by Amendment 104 ensures that criminal liability will not attach to an organisation based and operating overseas for conduct carried out wholly overseas simply because the senior manager concerned was subject to the UK’s extraterritorial jurisdiction; for instance, because that manager is a British citizen. Domestic law does not generally apply to conduct carried out wholly overseas unless the offence has some connection with the UK. This is an important matter of international legal comity.

However, some offences, wherever they are committed, can be prosecuted against individuals or organisations who have certain close connections to the UK. Subsection (3) makes sure that any such test will still apply to organisations when the new identification doctrine applies. Extending the identification doctrine test to senior management better reflects how decision-making is often dispersed across multiple controlling minds, mitigating the ability to artificially transfer, remove or create titles to escape liability. This is a positive step to increasing lines of clear governance and accountability in corporations.

Looking forward, although these government amendments are a strong step to improving corporate criminal liability laws, they are not the final step. The Government have committed in the Economic Crime Plan 2 and the Fraud Strategy to introduce reform of the identification doctrine to apply to all criminal offences. This will take place when a suitable legislative vehicle arises.

I move on now to the government amendments on failure to prevent fraud. In Committee, the Government tabled amendments which introduced a new corporate offence of failure to prevent fraud. Under the new failure to prevent offence, a large organisation will be liable to prosecution where fraud was committed by an employee for the organisation’s benefit and the organisation did not have reasonable fraud prevention procedures in place. The new offence will help to protect victims and cut crime by driving a culture change towards improved fraud prevention procedures in organisations and by holding organisations to account through prosecutions if they profit from the fraudulent actions of their employees.

Following this, noble Lords have raised further points with me on where the Government clauses could be strengthened. I have listened to the points raised, and the Government have tabled further amendments on the definition of large organisations and the treatment of subsidiaries. I thank the noble Lord, Lord Vaux of Harrowden, for bringing this point to my attention.

As I have set out on many occasions, the failure to prevent fraud offence is designed to balance the fraud prevention benefits with minimising burdens on small business. Amendments 111, 112, 113, 114, 115, 116, 118, 119, 122, 123 and 124 will help prevent companies from avoiding responsibility by moving high-risk operations into subsidiaries that fall below the size threshold for the offence. They will also ensure that groups of companies with significant resources are incentivised to take steps to prevent fraud.

First, we have made a clarification to ensure that an assessment of whether an organisation meets the size criteria, and is therefore in scope of the offence, is made cumulatively across the parent company and its subsidiaries—that is, the group—rather than being based on each individual entity. We then have to consider where liability would attach within that group. The group itself is not a legal entity so cannot be liable. It may be more appropriate for the subsidiary or the parent to be accountable directly, depending on the circumstances. We have therefore clarified that whichever of the individual entities within a group was responsible for the fraud can be directly liable for a failure to prevent fraud, in the same way as any other entity in scope of the offence.

Additionally, we have clarified that an employee of a subsidiary can be an associated person of its parent or owning company. That makes it more feasible to attach liability to the parent company should the approach of targeting the specific subsidiary be inappropriate. A test would still have to be met that the fraud by the subsidiary employee intended to benefit the parent, and the parent would have the defence that it was reasonable to take no steps to prevent the fraud—for example, if the structure was such that the parent had no say over the activities of the subsidiary.

Finally, Amendment 120 ensures that the views of the Scottish and Northern Ireland Governments are taken into account before any future changes to the offence threshold based on organisation size.

I hope noble Lords will recognise that this is a hugely meaningful package of amendments. I recognise that a number of noble Lords will have hoped the Government would go further, particularly around the threshold in the failure to prevent fraud offence. However, I stress that we have already taken tremendous strides forward. The Government firmly believe that our reforms to the identification doctrine; the introduction of a failure to prevent fraud offence covering around 50% of economic activity; measures to prevent avoidance via subsidiaries; and our existing ability to identify and prosecute fraud more easily in smaller organisations will cumulatively have the desired effect of tackling and deterring economic crime, without unnecessarily imposing billions of pounds of burdens and bureaucracy on actual or potential small businesses. I hope noble Lords can recognise the great progress we have made, and I beg to move.

[Lord Garnier (Con)]

My Lords, I thank my noble friend the Minister for his opening remarks and for the advance that the Government have made on two fronts. The first is by clarifying the senior management officers within a company; in doing so, they have clarified the way in which the identification doctrine can be applied in modern Britain.

As I have said on previous occasions, I have an interest to declare. I will not specifically recite it again because I did so in Committee, at Second Reading and, I think, on the three or four previous pieces of legislation into which a failure to prevent amendment could have been inserted—but of course it was not the right Bill, the right vehicle or the right time, and in fact it was just not right. So here I am again.

I shall speak to my Amendments 110 and 125A, which at the appropriate time I will move to a Division unless the Government persuade me otherwise. I am not engaging here in party politics or even in a rebellion. I am doing nothing by surprise; anyone who has followed discussions on economic crime over the last 13 years will know precisely what I am going to say. Indeed, my noble friend the Minister is adept at moving from one corridor to the next to avoid having a yet further conversation with me about my favourite subject. He has also heard all my jokes before, but not every Member of our House has had that advantage so it may be that, unless the Government accept my amendment, my little Aunt Sally will have another canter around the course. However, I will take things in stages.

First, I thank the Government, as I hope I have done —and I mean it sincerely—for their Amendments 104 to 106 and 109—essentially, the modernisation of the identification principle, so far as it goes. We are now slowly catching up with the Americans; they did something similar to this in 1912, but this is the United Kingdom and we must not rush.

--- Later in debate ---

I thank my noble and learned friend Lord Garnier and the noble Baroness, Lady Bowles, for their amendments, but I hope that they can recognise the need to strike the right balance and do not seek to press them.

[Lord Garnier (Con)]

My Lords, I thank my noble friend the Minister for his patience and tolerance in listening to my arguments over and over again—

[Lord Fox (LD)]

I am sorry, but it was the amendment of the noble Lord, Lord Sharpe, that was being moved.

[Lord Garnier (Con)]

We both seem to be making as many mistakes as each other.

Amendment 104 agreed.

--- Later in debate ---

Moved by

[Lord Garnier]

110: Clause 188, page 177, line 23, leave out “which is a large organisation”
Member’s explanatory statement
This amendment, together with the amendment to leave out Clause 190, would remove the exemption for organisations that are not “large organisations” from the failure to prevent regime so that there are no exemptions, although the statutory defence will apply to all organisations.

[Lord Garnier (Con)]

My Lords, clearly, I have not persuaded the Government, but I hope that I have not treated their arguments with disrespect. We have had not a row but an honest disagreement. As with all sorts of disagreements, I invite the House to arbitrate and will press this amendment to a Division.

[The Deputy Speaker (Baroness Barker) (LD)]

I advise the House that, if Amendment 110 is agreed to, I cannot call Amendment 111 because of pre-emption.

--- Later in debate ---

Moved by

[Lord Garnier]

125A: After Clause 194, insert the following new Clause—
“Failure to prevent fraud and money laundering
(1) A relevant body is guilty of an offence if a person who is associated with the body (“the associate”) commits a fraud or money laundering offence intending to benefit (whether directly or indirectly)—(a) the relevant body, or(b) any person to whom, or to whose subsidiary, the associate provides services on behalf of the relevant body.(2) The relevant body is not guilty of an offence under subsection (1)(a) where the conduct underlying the offence was intended to cause harm to the body.(3) It is a defence for the relevant body to prove that, at the time the relevant offence was committed— (a) the body had in place such prevention procedures as it was reasonable in all the circumstances to expect the body to have in place, or(b) it was not reasonable in all the circumstances to expect the body to have any prevention procedures in place.(4) In subsection (3) “prevention procedures” means procedures designed to prevent persons associated with the body from committing fraud or money laundering offences as mentioned in subsection (1).(5) A “fraud or money laundering offence” is an act which constitutes—(a) an offence listed in Schedule 11 (failure to prevent fraud: fraud offences) (a “listed offence”), or(b) aiding, abetting, counselling or procuring the commission of a listed offence.(6) For the purposes of this section a person is associated with a relevant body if—(a) the person is an employee, agent or subsidiary of the relevant body, or(b) the person otherwise performs services for or on behalf of the body.(7) Whether or not a particular person performs services for or on behalf of a relevant body is to be determined by reference to all the relevant circumstances and not merely by reference to the nature of the relationship between that person and the body.(8) Where a relevant body is liable to be proceeded against for an offence under subsection (1) in a particular part of the United Kingdom, proceedings against the body for the offence may be taken in any place in the United Kingdom.(9) Where by virtue of subsection (8) proceedings against a relevant body for an offence are to be taken in Scotland—(a) the body may be prosecuted, tried and punished in a sheriff court district determined by the Lord Advocate, as if the offence had been committed in that district, and(b) the offence is, for all purposes incidental to or consequential on the trial or punishment, deemed to have been committed in that district.(10) A relevant body guilty of an offence under this section is liable—(a) on conviction on indictment, to a fine;(b) on summary conviction in England and Wales, to a fine;(c) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum.(11) In this section—“relevant body” means—(a) a body which is incorporated under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere),(b) any other body corporate (wherever incorporated) which carries on a business, or part of a business, in any part of the United Kingdom,(c) a partnership which is formed under the law of any part of the United Kingdom and which carries on a business (whether there or elsewhere), or(d) any other partnership (wherever formed) which carries on a business, or part of a business, in any part of the United Kingdom,and, for the purposes of this section, a trade or profession is a business;“sheriff court district” is to be read in accordance with the Criminal Procedure (Scotland) Act 1995 (see section 307(1) of that Act).(12) It is immaterial for the purposes of section (1) whether— (a) any relevant conduct of a relevant body, or(b) any conduct which constitutes part of a relevant fraud or money laundering offence,takes place in the United Kingdom or elsewhere.”

[Lord Garnier (Con)]

With respect, I wish to test the opinion of the House.

Illegal Migration Bill

Lord Garnier Excerpts

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Lord Garnier (Con)]

My Lords, I follow my noble friend since I too am a signatory of this amendment. I thank him for what he said. I will not take up much of the Committee’s time in supporting him.

Essentially, we are inviting the Government to find out the evidence and bring an end to government by guesswork, particularly within this area of public policy. Government by guesswork creates all sorts of frustrations and unwittingly encourages some of the less humane members of our population to behave badly and, because of that guesswork, to hold some utterly unattractive views. I entirely agree with my noble friend about the need for a humane and organised immigration policy. Until we have the numbers, the Government can do nothing other than stick their finger in the wind and say that it is “probably this” or “probably that”. That is government by guesswork, and it is time that it stopped.

I will stop now, to save the ears of noble Lords and the patience of my noble friend the Minister. Having heard my speech at Second Reading, he may never want to hear from me again, particularly on this interesting Bill. I am grateful to my noble friend Lord Swire and hope that the Government listen carefully to him. I hope that others in the Committee will come behind us and speak in favour of what my noble friend asks for.

[Lord Coaker (Lab)]

My Lords, I say to the noble Lord, Lord Swire, and the noble and learned Lord, Lord Garnier, that I have for months been calling for more statistics from the Government and for the publication of the impact assessment. They join me in calling on their noble friends on the Front Bench to publish the impact assessment.

I would be delighted if we knew how many people the Government were detaining and removing. The noble and learned Lord, Lord Garnier, made the point that numerous noble Lords have made all the way through: we have no statistics. Clearly, the Government have them and will not tell us them. I suspect that is because they are embarrassed or worried, or because it would set up some sort of mechanism by which they could be judged on whether they have succeeded or failed. We have all said it would be helpful to publish the number of people we are detaining, whom the Government regard as illegal, and the number we are removing. We have not demanded it for a year after the passing of the Bill. That would be helpful, but we are demanding to know now what the assumptions are behind the planning within the Bill.

Perhaps, just to help the noble Lord, Lord Swire, the noble and learned Lord, Lord Garnier, and the rest of us, the Minister could tell us now what assumptions the Government are working towards as to the number of people they expect to detain under the Bill and the number they expect to remove. That would make that part of the amendment from the noble Lord, Lord Swire, unnecessary, and it would help our deliberations.

There is one further thing that would be helpful on the amendment from the noble Lord, Lord Swire. Before we had the cut-off date of 7 March 2023, how many people had failed their asylum application and were at that time waiting to be deported? It would be interesting to know how successful the Government’s policies had been up to that point in assessing whether people needed to be detained.

I particularly wanted to say a couple of things. I will leave Amendment 137; those debates about compatibility with various international conventions are well made, and we will return to them. I am grateful to the noble Baroness, Lady Ludford, for signing and supporting that amendment. I do not want that to be seen as somehow meaning that they are not important. I hope the Minister will respond to the amendment, but the compatibility of the Bill with various international conventions has been debated all the way through Committee and I do not want to repeat those debates now. That is not to be taken to mean that those debates are not important; they are essential and will no doubt be returned to on Report.

I will focus particularly on Amendment 139FB in my name, which relates to our ability to tackle the gangs. There has been a lot of emphasis on victims, the potential number of asylum seekers and so on. These are government statistics. I repeat what I said earlier: the number of convictions for people-smuggling gangs has reduced considerably, has it not? Can the Minister give us an up-to-date figure on the number of smuggling gangs and a helpful comparison? Can he try to do us a favour by comparing with a year that gives a true reflection, rather than picking a year that gives a good percentage outcome? That would be helpful, because it is in all our interests to know exactly what is going on. Can he confirm my figure that over the last 12 months, the criminal smuggling gangs have made £180 million, and can he therefore tell us why so few people in smuggling gangs have been convicted?

As I understand it, there is some debate about whether the number of officers, officials and National Crime Agency staff working on this has gone up or down. Can we have an indication of the number of them involved in tackling this? My amendment deals with the National Crime Agency. Can the Government confirm that it is the law enforcement agency that is leading all this work? What other agencies, both national and international, are working to tackle the criminal gangs? My amendment says that to tackle organised immigration crime across the channel, there is a need to maintain a specific unit. Is a specific unit already in existence, making my amendment unnecessary? If not, would that help?

Essentially Amendment 139FB is a probing amendment to try to understand the current law enforcement activity with respect to tackling this heinous crime, from a national perspective but also an international one. I join the noble Lord, Lord Swire, in demanding from his Government some statistics, please.

Economic Crime and Corporate Transparency

Lord Garnier Excerpts

Committee stage
Thursday 27th April 2023 Grand Committee

[Lord Fox (LD)]

My Lords, I rise to speak to the amendments in my name. As the Minister has set out, amendments were brought forward in the other place on Report by Sir Robert Buckland and Sir Bob Neill. The Government undertook to produce their own amendments, which they have indeed done. We should recognise that these amendments, on failure to prevent fraud, are a positive move forward, but they are overdue. Without sounding too churlish, had this offence been in place at the time of the financial crisis, the authorities could have had effective prosecutions during, for example, the Libor and Euribor scandals. So, good news, but there are some qualifications, as set out in my amendments.

The government amendments have a considerably reduced scope in limiting it to large businesses, which was certainly not the intention of the Buckland/Neill process in the other place. As we have heard, there is an exemption for small and medium-sized businesses, but it does not address the fact that SMEs are just as much, if not more, at risk of fraud as big companies. It is just as important to encourage them to have the right procedures in place as it is large companies.

Hence my Amendments 84CA, 84CB and 84CC. Together, they seek to amend the Government’s amendments, extending their failure to prevent offence to all relevant organisations regardless of size. Instead of allowing the Government to amend or remove the applicability to large organisations, these amendments would apply the offence to all organisations by default. However, the Government would be able to restrict it to large organisations by a subsequent affirmative resolution, if experience required them to do so.

The Minister said that small and medium-sized enterprises had been excluded to avoid a disproportionate burden on them. It would be useful for him to explain on what basis that assessment has been made and what evidence there is to support that. We have not seen it, so it would be very useful to know. In my view and that of others, the carve-out for SMEs is short-sighted and unnecessary. The Law Commission did not accept arguments for thresholds to apply to failure to prevent offences in its June 2022 options paper and the House of Lords rejected exemptions for SMEs when scrutinising the Bribery Act 2010. SMEs are not excluded from AML or the National Security and Investment Act, so why have the Government taken this view in this case?

There is also concern that this amendment is limited to offences that take place in the UK or have UK victims. If the offence takes place abroad, in cases where a UK company has failed to prevent fraud and there are no UK victims, UK enforcement agencies would have no grounds to pursue the corporate body. This lack of extraterritoriality is not present in already existing FTP, bribery and tax evasion offences. It is unclear why the Government are creating such inconsistencies in the corporate criminal liability framework. Why have they made this carve-out? There is a lot of expertise waiting to speak on this group, so I will stand aside, except to say that I strongly support Amendments 96, 97, 98, 99, 100 and 101.

[Lord Garnier (Con)]

My Lords, I thank my noble friend Lord Sharpe for the courtesy he has shown to me and other noble Lords in holding meetings, along with his officials, to explain the Government’s case on failure to prevent and the adjustment of the law of corporate liability. It has been very helpful to have some understanding of where they are coming from and where they intend to go. It is fair to say that he was more forthcoming in those meetings than he was in providing an explanation for the SME carve-out this afternoon. I thank not only him but the noble Lord, Lord Fox, for tabling his amendments, which I support, and for his mention of the amendments I have tabled.

The amendments that I have tabled are exactly the same, almost to the semicolon, as amendments that I have tabled not only in this Parliament, since the 2019 general election, to Bills dealing with economic and financial crime, but also to Bills that I spoke to when a Member of the other place. I have taken an interest in how we deal with economic crime since I became the Solicitor-General in 2010. I appreciate that that was a long time ago and that my noble friend the Minister probably did not have a particular interest in the subject all that time ago. None the less, I appreciate that many will find what I have to say unoriginal, not least because I have said it so many times before but also because it aligns with what others on all sides of the House and in both Houses have been advocating for some little while.

I will first deal with the SME carve-out, which is provided for in one of the government amendments. I suppose it is fair to say that half a loaf is better than no loaf and that a bird in the hand is better than two in the bush. However, after nearly 15 years, following the banking crash of 2008-09, the subject of economic crime and corporate misfeasance has been if not on the top of everyone’s agenda every day then certainly close to it. For the Government to come up with a carve-out in the way that they have—bear in mind that we are only talking about failure to prevent fraud at the moment—is disappointing.

What we are here required to understand by Amendment 84C, proposed by the Government, is that if a company or business has a turnover of less than £36 million, has a balance sheet total of less than £18 million and has fewer than 250 employees, it should not be caught by the failure to prevent fraud.

[Lord Leigh of Hurley (Con)]

Two or more of those.

[Lord Garnier (Con)]

My noble friend Lord Leigh is entirely right: you have to pick two of this lucky trio and you are away.

One only has to think briefly about start-up businesses and the pressures that they come under when they may have very few employees and a turnover of much less than the Government indicate to realise that the danger of an associated person committing an act of fraud is not predicated on the size of the company. It is also possible to say that there will be people who will so construct their corporate affairs that each bit of their corporate existence is by some happenstance just below or well below the Amendment 84C cut-offs.

In any event—I have bored my noble friend the Minister with my feeble sense of humour on a number of occasions—there is no similar cut-off for failure to prevent bribery under the Bribery Act 2010 and no equivalent cut-off under the Criminal Finances Act 2017. Although my noble friend tells me that, after much consultation and because they do not wish to impose unnecessary burdens on business, the Government have come up with these numbers, as I think the noble Lord, Lord Fox, indicated, I have yet to hear a reason why they have landed on those figures or why as a matter of principle they have chosen to have a carve-out at all.

Here comes my feeble joke, so stand by. A burglar of five foot four should be prosecuted just as vigorously as a burglar of six foot six. There is no carve-out for small people committing crimes and there should be no carve-out for small businesses that fail to prevent crimes. When the prosecuting authorities—I look with respect at the noble Lord, Lord Macdonald of River Glaven—come to consider whether it is in the public interest, assuming that there is evidence, to initiate the prosecution, no doubt one of the factors that they will take into account is whether it is in the public interest to pursue that prosecution, bearing in mind the small size of the company and the mitigating steps that it took to do its best to avoid an associated person committing a criminal offence.

--- Later in debate ---

[Lord Sandhurst (Con)]

My Lords, I will speak with a particular focus on Amendment 91 but, in so doing, it should not be thought that I do not think that Amendment 94 is important; the two run together, as other noble Lords have said—we want them, so to speak, before and after, for reasons I shall explain. We need to do something now to prevent fraud. In this context, I make no apology for reminding my noble friend the Minister of what my noble friend Lady Morgan said about page 22 of our report and paragraph 520, which, helpfully, is in bold. I ask the Minister and his officials, in the words of the collect, to

“read, mark, learn, and inwardly digest”

what we have to say, and then act on it with both the regulatory and the criminal proposals.

We need the criminal offence but also need the flexibility that proper regulation will give and the culture change that it will bring by the regulators talking to and influencing how the different industries behave. We know that regulators can achieve much in advance and drive changes in behaviour; that is important because we know that prosecuting fraud is very difficult and too often ends in failure—and anyway the resources are not there to do it. We have to stop it happening in the first place. You have the criminal offence as a backup when someone who could have prevented it has not done so, but that is very much the last resort. Regulators are fleeter of foot and can move with more flexibility, and they can influence behaviour.

The sort of regulations we have in mind would mirror what is said in Amendment 94, particularly in subsection (3) regarding the statutory defence—“Do you have in place such procedures as it is reasonable in all the circumstances to expect?”, and so on. Our regulations would say that that was what you had to do. Then the regulator would know what was going on because it would have all the data and the picture of what was happening in the particular regulatory sphere in which it was operating. The regulator could say to a particular operator or someone in the industry, “Look, others are doing this but you’re not”, or it could say to the whole industry, “Look, there’s a new scam about and you have to take steps to stop it. We’re going to call you together. What are you going to do, what do you think you can do, and what technology is out there?”, and so on. That is not covered directly by the criminal offence—it is very much a longstop—but the sorts of fines and penalties that a regulator can impose, and the regulatory damage to the reputation of large organisations in particular, are important and have great influence, as we know. If a company is small or indeed a one-man band then the regulator would approach it differently, because of course it does not have the resources to look everywhere and man every pump.

We have to do something. I suggest that what is reasonable will take into account the size of the potential offending business; the measures that it has in place to prevent fraud that are proportionate to its size; those which it does not have in place but could have; the prevalence of the offence within that particular field of activity; and, if it is looking at regulatory enforcement, and indeed in terms of criminal offence, the regulatory compliance history of the company and what others in that area are doing by way of comparison. I need not go on in more detail.

As I said, the regulators have flexibility. They can influence behaviour. They can pick up the telephone to a company and say, “We’ve seen this is going on. Unless you do something, we’ll be down like a ton of bricks”, or they can act directly. Unless we have the package that these two amendments would give, we are not going to see any important change in outcomes.

That is all I need to say. Everything else has been covered. As I hope I have made plain, I see Amendments 94 and 91 running in tandem.

[Lord Garnier (Con)]

My Lords, I agree with my noble friend Lord Sandhurst that they run in tandem. I was not able to run quick enough to be able to sign Amendment 91 but I managed to get my bulk into the relevant Room in order to sign Amendment 94, and I am happy that I managed to do so.

Public opinion must influence policy-making. Whereas 300 or perhaps 250 years ago, anyone who thought about it probably thought it was not a good idea, and certainly not a humane thing to do, to send small children up chimneys or down mines, it took a little while for the legislation to change. I make that exaggerated point—well, it was not an exaggerated point; it was a very bad thing. [Laughter.] I was not alive 250 years ago. I make that point to illustrate that we in this Parliament are in danger of allowing the Government to drag their feet reluctantly and, worse, to appear as if they are being reluctant to do the modern equivalent of stopping children being sent up chimneys. The modern equivalent is that the public, and I as a citizen, disapprove of companies failing to conduct their business in such a way that crimes are not committed by associated people. However, we mitigate the difficulties that these new laws may pose for a company by putting in the defence of reasonable provision.

If you look at the guidance published in conjunction with the Bribery Act 2010—my noble friend Lord Sandhurst mentioned some of the sensible work that has been highlighted in my noble friend Lady Morgan’s report—you can see that it is all there. If your company is one that has no risk of committing bribery, you do not have to have anything other than the most minor provision to satisfy the defence provision under the Act—and ditto in the Criminal Finances Act. So it is even in the government amendments that we discussed earlier. For example, to go back to government Amendment 84A, which we discussed earlier, new subsection (3) says that:

“It is a defence for the relevant body to prove that, at the time the fraud offence was committed … (a) the body had in place such prevention procedures as it was reasonable in all the circumstances to expect the body to have in place, or … (b) it was not reasonable in all the circumstances to expect the body to have any prevention procedures in place”.


The Government accept quite a liberal and permissive defence regime there, so we do not need to be frightened or to frighten SMEs, or the people to whom my noble friend’s report is addressed, about people being overburdened by regimes which will cause them to be distracted from earning profits and getting on with the job that they are primarily there to do.

The noble Lord, Lord Macdonald of River Glaven, highlighted, thanks to Sue Hawley from Spotlight on Corruption, the very small cost involved in running a compliance regime. If you have a small company, with no risk of committing bribery or fraud or whatever else it may be, the chances are that you will spend very little, and you may have to spend it only once.

I come to Amendments 91 and 94 with a sense of desperation that we are now providing the Government with yet another opportunity not to do very much, and they ought to be doing a lot more. When it came to the passage of what became the Health and Safety at Work etc. Act 1974, I can assure noble Lords that the corporate world said, “Oh no, you mustn’t do this—it’s going to make us spend money, look at lawyers, put bolts on doors and put safety notices down chimneys and near machinery. It is all far too expensive—we can’t be doing all that”. I think of the Corporate Manslaughter and Corporate Homicide Act 2007; in the lead-up to that—I was in the shadow Cabinet of my party in those days—we had anxious discussions about the hideous nature of the impositions that would be put on the corporate world to make things safe so that people did not get killed at work and factories were safe places to go to work in. Here we are again having to worry about companies being asked to behave themselves and not to commit crimes or to prevent others committing crimes to their advantage. It seems absurd.

There have been two good non-legislative reports in the last short period. First, there is the one from my noble friend Lady Morgan, which she introduced us to. I urge my noble friend the Minister, if he has time to read nothing else, to look at page 22 and paragraphs 496 to 498 and 520 to 522. It will take him three minutes—he should look at it, read it, learn it, and inwardly digest it.

The other one was the Joint Committee chaired by my noble friend Lord Faulks, of which I was privileged to be a member, on the draft Registration of Overseas Entities Bill, which sat in 2019-20. We heard all the same evidence as I am sure my noble friend did in her committee, and we heard all the same complaints about the burdens and expense of compliance that will have been heard every time these sorts of things come along. Yet every time, all you have to do is go back and look at the simple, common-sense guidance attached to the Bribery Act 2010; you will see how that Act has come into force and been implemented and worked through, and no one now fusses at all.

National Security Bill

Lord Garnier Excerpts

Report stage
Wednesday 1st March 2023 Lords Chamber

[Baroness Manningham-Buller (CB)]

My Lords, before we get on to the substance of the Bill, perhaps I might just correct something that the noble Lord, Lord Marks, said that I said in Committee. I did not speak for the protection of the lives of intelligence officers, such as I once was. I was speaking of concern for the lives of human sources who give us intelligence at the risk of their lives and those of their families. That was the concern I highlighted. There was no worry about my own safety; I was talking about those sources.

[Lord Garnier (Con)]

After that intervention, the noble Lord, Lord Marks, had better watch out for his safety.

I begin by thanking the noble Lord, Lord Marks, one of the co-signatories of Amendment 79, for explaining the arguments behind it with such clarity and so dispassionately. I appreciate that he, along with many others, has invested a lot of time and thought in it, and I am somewhat of a latecomer to this particular party.

I have put my name to this amendment, along with those of the noble Lords, Lord Marks and Lord Pannick, not because I think the Government will accept it without question—clearly they will not—but because the question of whether such a defence should be available has long since arrived, and it is certainly possible to say that it is almost too late for us to start debating it now.

The noble Lord, Lord Marks, said that the Labour Party’s stance and its inability to whip its members to support this amendment in the Lobby was a shame. I am afraid that I will be the subject of shamefulness as far as the noble Lord, Lord Marks, is concerned, because I will not push this to a Division, and if others do, I am afraid that I will not join them. However, the reason why I think this debate is important is that, as I said before, it has not been had before, and certainly not in relatively recent memory. That may seem illogical but let me do my best to explain.

I realise that, in matters of national security, no Government, of either of the main parties, and certainly not a coalition Government, will cut and paste an amendment emanating from outside the Government. I can see that the noble Lord, Lord Evans of Weardale, and the noble Baroness, Lady Manningham-Buller, are in their places. I know from my time as a law officer, who had from time to time to consider matters to do with the Official Secrets Act, that the security services, as well as the lawyers who work for them, do not initiate prosecutions under the Act unless there is both a clear public interest in a particular prosecution and sufficient evidence to warrant it. It is my experience and clear recollection that they were all strict adherents to the rule of law in general and the provisions of any relevant statutes in particular, and wanted them applied lawfully and dispassionately in every case. In every case I dealt with I had their support and they had mine in ensuring that things proceeded with propriety and that no shortcuts were taken.

I therefore follow the previous debate on the first group and come to this amendment with a high degree of realism and more than academic or theoretical interest, albeit in a spirit of inquiry, to see where the Government’s thinking is on the matter. Clearly, anything that looks as though it may make the lives of those who want to damage our national interests less difficult, or make prosecutions in the right cases more difficult, must be considered with care, and will, at least initially, be likely to alarm those charged with the day-to-day care of our security. However, I hope that the arguments in favour of this amendment have been heard and that, once they have been digested, the Government will take some time to respond as fully and as openly as they can. My purpose today is to provoke that discussion, not to embarrass the Government. Nor is this group of amendments an opportunity to debate Clause 31 and the foreign power conditions, although Clause 31(3) and (6) clearly need careful attention. As I said at the outset, my intention is to raise the public interest issue firmly in Parliament.

--- Later in debate ---

[Lord West of Spithead (Lab)]

Perhaps I might intervene. Ships alter course and go in all sorts of directions. There is a general trend, of course, and the general trend of the “Belgrano” and her group was towards a sudden pincer that would have attacked our force. That was why she was sunk—quite correctly. It was the right decision. In the context of this amendment, I would not want that to be confused.

[Lord Garnier (Con)]

I would not describe the noble Lord as a young man in a hurry although, had he waited just a second or two, he would have discovered that he and I might be in closer agreement than he might otherwise have imagined. But there we are. Let us ignore for the moment the direction in which the ship was going, understand that it was sunk and understand that Ponting disclosed that it was going in a particular direction when the Government had announced it was going in another. That is the end of that little anecdote. I am grateful to the noble Lord for his intervention. In my view, the short point is that it was an enemy ship that was generally threatening our ships. We were at war with Argentina. Argentinian warships were at risk of being sunk if they came within range of British Armed Forces. I do not have any particular sympathy for the Argentinian ship—albeit of course that it led to the most appalling loss of life for many Argentinian sailors.

However, it is not satisfactory for juries faced with a case where they think that a conviction on the evidence before them is unjust to be forced to bring in a perverse verdict in breach of the judge’s clear direction on the law and how it applied to the facts of the case. I suggest that this amendment is conservative with a small “c” and not a traitor’s “get out of jail free” card. The burden of proof is on the defendant to demonstrate that the disclosure was in the public interest and that the factors set out in proposed new subsection (3) are met. It would not allow for someone to disclose national security information because they thought that their view of the world was more attractive than that of the Government or the security services, or out of greed; nor would it allow for a Snowden or a Wikileaks scenario where vast swathes of information were dumped into the public domain.

If, for example, there was a better way of dealing with the sensitive information—noble Lords should look at proposed new subsection (3)(f)—the defendant would be hard pushed to persuade the jury that public disclosure was in the public interest. In my view, the proposed amendment accepts reality and prevents juries bringing in perverse verdicts in order to achieve informal or dishonest justice. A law that is not respected or is avoided by perversity, perhaps following some intellectually dishonest advocacy, is not worth having. In an era of electronic media, when information gets out pretty much immediately across the world in vast quantities, it may be better to inhibit desperados and attention seekers by getting them to think about what they will need to prove to found their public interest defence.

It seems to me that we can either carry on pretending that perverse verdicts do not happen—and swiftly change the subject when they do—or face up to reality and legislate sensibly for a really very unradical public interest defence that will neither bring down the state nor damage respect for the rule of law.

[Lord West of Spithead (Lab)]

My Lords, although I sympathise with Amendment 79, which seeks to protect those who act genuinely in the public interest, I do not support it, for a number of reasons.

First, although I accept that, in its comprehensive 2020 review relating to the protection of official data, the Law Commission recommended that a public interest defence be introduced, that was in relation only to the Official Secrets Act 1989. Its recommendation did not suggest that such a defence should be incorporated into the rest of the Official Secrets Act regime, which is what in effect this Bill seeks to replace.

Secondly, in any event, the risks of introducing such a defence need to be carefully considered and balanced against the benefits of potential alternative approaches. This includes the creation of an independent commissioner to receive and investigate complaints of serious wrongdoing, which the Law Commission also recommended.

Thirdly, any introduction of a public interest defence needs to form part of a wholesale reform of the Official Secrets Act 1989, which this Bill does not seek to do. As I said at Second Reading, the ISC was disappointed to see that the Government were not reforming that Act. I will not repeat what I said then, other than to say that it is a very significant missed opportunity. That is particularly so because the Government have accepted the need to change the OSA for years, and this Bill represented a clear legislative route to do it.

Lastly, this amendment is very broadly drafted. It would introduce a public interest defence into a range of offences that do not require one, such as the offence of assisting a foreign intelligence service. For those reasons, I cannot support it.

Public Order Bill

Lord Garnier Excerpts

Report stage
Tuesday 7th February 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is hard to overemphasise the importance of this amendment. It is firmly rooted in Article 10 of the European Convention on Human Rights, which provides that:

“Everyone has the right to freedom of expression. This right shall include freedom to … receive … information and ideas without interference by public authority”.


The word “everyone” which begins that article is extremely important because it applies the rights to everybody, whoever they may be. It may be suggested that the point being made by the amendment is so obvious that it is unnecessary, but I simply do not believe that. In the highly charged atmosphere of the kind of public protest we are contemplating in these proceedings, it is too big a risk to leave this without having it stated in the Bill and made part of our law. It should not be necessary, but I believe it is necessary, and it is firmly rooted, as I say, in Article 10 and those very important words. I support this amendment.

[Lord Garnier (Con)]

My Lords, I could not put a cigarette paper between the arguments of the two previous speakers and those I would like to make. If we are not careful, we will move to preventing the media from creating fair and accurate reports of our courts and even of this place. I do not believe I am exaggerating in linking the two sets of arguments and I very much support this amendment.

[Lord Hogan-Howe (CB)]

My Lords, I do not support the amendment, and I do this at some danger, because one of my roommates in the Lords is proposing it. I do not support it for a reason of principle and a reason of practice. First, on the reason of principle, I quite agree that a journalist should not be arrested for doing their job: it is very obvious that this should not happen. However, if I understand it correctly, the only reason a journalist might be challenged about their behaviour is if they are doing an act contrary to the Bill—in other words, they are locking on or they are protesting in a way that is illegal. That is the behaviour that is being challenged.

Secondly, whether or not you accept that argument for journalists, I do not understand how you define these other people in a way that the police will understand, particularly in a protest. An observer, somebody who is monitoring: how are the police to know who these people are? I guess that as soon as a protester is challenged, they might decide that they are a monitor, an observer or any of the groups that might be protected.

I understand the principle behind it. None of us wants to stop people holding the police to account, but that is not really the problem. Even if you accept that journalists should be protected in this way, I do not understand how you define the group in a way that allows the police properly to do their job without asking people how they fall into this category—they are not registered anywhere. Journalists complain that many people now claim to be journalists but are merely reporting online. Is that group included in this definition as well?

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I apologise for my slightly tardy arrival.

Amendment 54, tabled by the noble Baronesses, Lady Chakrabarti and Lady Boycott, and the noble Lord, Lord Paddick, seeks to establish a specific safeguard for journalists and bystanders during protests. It follows the wrongful arrest and detention of the LBC journalist Charlotte Lynch in November. May I reassure the House that it is not okay? I agree with the noble Baroness, Lady Jones, that it is absolutely not okay to arrest a journalist who is doing their job.

I thank the noble Baroness, Lady Chakrabarti, for tabling this amendment, and agree with the need for journalists and innocent bystanders to be adequately safeguarded during protests. The Government are clear that the role of members of the press must be respected. It is vital that journalists be able to do their job freely and without restriction. I agree with the noble Baroness, Lady Fox, the noble Lord, Lord Coaker, and my noble friend Lord Cormack that a free press is the hallmark of a civilised society.

The police can exercise their powers only in circumstances where they have reasonable grounds to do so. Hertfordshire Constabulary has accepted that its wrongful arrests of journalists on the M25 were unlawful. Noble Lords will be aware that an independent review was conducted into Hertfordshire Constabulary’s arrest of journalists during the M25 protests. With your Lordships’ indulgence, I will go into a little of the detail on that. Cambridgeshire Constabulary’s report specifies that:

“The power of arrest is principally governed by PACE 1984 and to be lawful, the arrest must be necessary by reference to statutory powers set out within PACE 1984. Code G provides additional rules and guidance on the use of the power of arrest. Of particular relevance to this operation, it is important to observe the judgement laid out following O’Hara v Chief Constable of Royal Ulster Constabulary 1996—an officer cannot exercise the power of arrest based on instruction from a superior officer. In order to satisfy the requirements under section 24 of PACE 1984, the superior officer must convey sufficient information in order for the arresting officer to develop reasonable grounds.”


I went into that in some detail because Section 24 —“Arrest without warrant: constables”—is very clear. A constable may arrest without warrant

“anyone who is about to commit an offence; anyone who is in the act of committing an offence; anyone whom he has reasonable grounds for suspecting to be about to commit an offence; anyone whom he has reasonable grounds for suspecting to be committing an offence. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.”

Under those criteria, I struggle to see how the primary purpose of being a journalist, which the noble Baroness, Lady Chakrabarti, referred to, and reporting on a protest, would ever constitute reasonable grounds.

Going back to the Cambridge case, the constabulary also specified that code G of PACE 1984 gives some separate guidance on necessity criteria:

“The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.”


It is very clear. We are all protected by those rules and that includes journalists. The review revealed that the issue was one of training and proposed several recommendations to fix this, including ensuring that all public safety officers and commanders carry out the College of Policing and National Union of Journalists awareness training. The constabulary has promptly implemented these recommendations. This is not an issue of law but one of training and guidance, which is already being addressed.

[Lord Garnier (Con)]

My Lords, PACE is nearly 40 years old. Is not the training completed?

[Lord Sharpe of Epsom (Con)]

My noble and learned friend makes a very fair point, but the College of Policing and the National Union of Journalists awareness training is a little more recent than the 40 year-old PACE codes.

The College of Policing’s initial learning curriculum includes a package of content on effectively dealing with the media in a policing context. In addition, the authorised professional practice for public order contains a section on the interaction of the police with members of the media. This includes the recognition of press identification. It should also be noted that it is entirely legitimate for a police officer to inquire why an individual may be recording at the scene of a criminal offence if they deem it appropriate. We do not want to suggest that this is unlawful.

In light of those factors, while I completely understand the direction and purpose of the amendment, we do not support it because we do not deem it to be necessary. These defences are already covered in law.

Police, Crime, Sentencing and Courts Bill

Lord Garnier Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Monday 13th December 2021 Lords Chamber

Moved by

[Lord Garnier]

55ZA: Clause 63, page 59, line 11, at end insert—
“(1A) The occupier, a representative of the occupier or a constable may only make a request under subsection (1)(d) if they have ascertained from the local authority within whose area the land is situated—(a) that there is a suitable pitch for P’s caravan or caravans and P’s other vehicles and property on a relevant caravan site, or(b) that, within 48 hours of their receiving notice of P’s presence on the land, a suitable pitch for P’s caravan or caravans and P’s other vehicles and property will become available within a negotiated stopping site in the local authority’s area, andthat in either case P has been informed of the availability of such a site.(1B) If there are no relevant caravan sites, or there will not within 48 hours of their receiving notice of P’s presence on the land be a negotiated stopping site within the local authority’s area, and P remains on the land in question for more than 48 hours, the local authority must compensate the owner or occupier of the land for all loss and damage suffered by them as a consequence of P’s entering upon and remaining on the land. (1C) Where P remains on the land under subsection (1B), P does not acquire any right of possession as against the owner or occupier of the land.(1D) In subsections (1A) and (1B)—“caravan”, “caravan site”, “relevant caravan site”, “relevant site manager” and “registered social landlord” have the same meanings as in section 62A(6);“a negotiated stopping site” is a site in respect of which an agreement has been reached between the local authority within whose area the site is situated and the trespassers which allows them to stay temporarily on a particular piece of land which is not an official site, in return for which the trespassers agree to certain conditions relating to, but not limited to, behaviour, tidiness of the site, the length of stay and payment for water, refuse collection and other utilities.”Member’s explanatory statement
The amendment would provide that a person only commits an offence where they are trespassing on land having been offered a suitable pitch at a caravan site or negotiated stopping site in the local authority’s area; and where they remain on the land because there are no other suitable sites, the landowner or lawful occupier are to be compensated for all loss and damage caused by their entering upon and remaining on the land.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, the noble Baroness, Lady Brinton, will be participating remotely in this debate.

[Lord Garnier (Con)]

My Lords, I begin by explaining that I will not be pressing my amendment to a Division. I thank the noble Baroness, Lady Whitaker, for prompting me—although she may not have realised this at the time—during the course of Committee, when we were debating other amendments in Part 4 dealing with unauthorised encampments. On that occasion, I explained that I thought there was an unfairness in the Bill in relation to the victims or respondents to criminal trespass—the tenant or landowning victims of trespass on the land; I know there are plenty of arguments about whether there should or should not be criminal trespass. I mentioned a particular example when I was a Member of Parliament some 25 years ago, in 1996 or 1997, when not only did a large group of travellers trespass on a constituent farmer’s land, but their dogs were troubling this farmer’s sheep. Some of them were killed by the dogs in question.

The noble Baroness, Lady Whitaker—perfectly fairly, I think—made the point in that debate, in which I was seeking to place the burden of proof that an activity on a landowner’s or tenant’s land was being conducted unlawfully, on the trespasser who wished to assert that the occupier of the land was conducting an unlawful activity, which could have been any sort of activity. Essentially, I was seeking to persuade noble Lords that it was far more just for the invader of the land to demonstrate that what they were seeking to stop—for example, the growing of genetically modified crops—was unlawful, and that it should not be for the owner or occupier of the land who was carrying out a lawful farming activity to show that he was not conducting an unlawful activity.

That aspect of the debate in Committee is not particularly relevant to what we are doing now, save that it prompted the noble Baroness, Lady Whitaker, to draw my attention to her argument that, because local authorities have historically failed to provide any, or any adequate, official sites for travellers to park their vehicles and reside on, this problem of invading other people’s land will continue.

--- Later in debate ---

[A noble Lord]

Yes, you have.

[Lord Garnier (Con)]

I am so glad to have the approbation of the noble Lords opposite, for whom I have the greatest respect—on their negotiated stopping site.

That is what I invite the House and the Minister to consider, and perhaps the Minister will respond in due course, saying why my idea is not quite as wonderful as I think it is.

[Baroness Brinton (LD) [V]]

My Lords, I am a patron of the Traveller Movement. I thank the Minister for reaching out to those of us interested in this issue and I am sorry that the change in date meant that I was unable to attend. I also thank the noble Baroness, Lady Whitaker, for her dedicated work in co-ordinating the efforts of those of us who remain very concerned about these clauses in the Bill.

In Committee, we had a full debate on how the clauses on authorised encampments are a breach of the human rights of the Gypsy, Roma and Traveller communities to live a nomadic life. I thank the noble and learned Lord, Lord Garnier, because he has tried to propose a compromise regarding stopping sites. It certainly merits listening to, and I hope the Minister will take account of it.

In my contribution today, I wish to focus on just one area. Clause 63 also creates the right for the police to confiscate a vehicle that may be an individual and their family’s main residence. That confiscation would have the most extraordinary consequences, giving the police very strong powers that they do not have in respect of other people’s principal residences. If the police were to confiscate a vehicle under this clause, families would not only become homeless, but because they would be deemed to have become intentionally homeless, there is a possibility that their children would be taken into care, especially if there was no appropriate emergency accommodation locally. By doing that, parents may also not be able to move on to their next planned place of work.

I support Amendment 55ZC from the noble Lord, Lord Paddick, which protects individuals by preventing police confiscating their vehicles if it would make the individual owner, and their family, homeless.

The National Police Chiefs’ Council could not be clearer. It said:

“We believe that criminalising unauthorised encampments is not acceptable. Complete criminalisation of trespass would likely lead to legal action in terms of incompatibility with regard to the Human Rights Act 1998 and the Public Sector Equality Duty under the Equality Act 2010, most likely on the grounds of how could such an increase in powers be proportionate and reasonable when there are insufficient pitches and stopping places?”


In Committee, the Minister said that these clauses are not targeted at the Gypsy, Roma and Traveller community, but it certainly looks that way, especially as the Government explicitly referenced Traveller caravans in the background briefing to the Queen’s Speech. The Government have also made it clear that they are not criminalising trespass more generally. Even if the outline of these proposals were in the Government’s manifesto, actions that target one particular community, infringing their human rights and giving the police powers that they have said repeatedly that they do not want, cannot be right. I hope that the Minister will rethink this deplorable legislation.

--- Later in debate ---

[Lord Garnier (Con)]

My Lords, 15 noble Lords have spoken in this debate. Most of them have concentrated on amendments other than mine, which is hardly surprising. Three broad points have emerged from this debate which I hope are uncontroversial.

First, there is an undersupply of official local authority Traveller sites. Regardless of quite how far along the pendulum one places this, that must be a reason why there is a high incidence of trespass. The Government say this is a problem and I am sure others do as well, but the more interesting question is, what do we do about it? If I may say so with the greatest of respect to my noble friend, this is not just a planning matter. It is a wider public policy issue, and this Bill turns it into a criminal justice matter. It is not an answer to complain that noble Lords are conflating unlawful occupation and damage. The two may be linked; none the less, they need to be thought about with some degree of care and not by sloganising.

The noble Lord, Lord Pannick, reminded us about Clause 63(6)(a) and (b), which provide for the reasonable excuse defence. I happen to agree with him, and his recent intervention on my noble friend saved me from making a speech of an additional 10 minutes—for which there is much relief. It strikes me that Clause 63(6) provides a second incentive to local authorities to get on and provide more official sites. The first incentive is the compensatory damages which I expect them to pay. Secondly, if they, the police or the CPS seek to rely on the criminal offences described in this part of the Bill, and there are no sites and therefore it is a reasonable excuse, surely, we come back to the fact that there is an undersupply of official sites so please, let us do something about it. I entirely take on board what the noble and learned Lord, Lord Hope, said about the point at which it is realised that this is a good defence. It is not a question of me being righter and you being wronger. It is a question of sorting out the problem sensibly, pragmatically and economically, in a way which does not cause additional, prolonged and unnecessary distress to local residents such as the neighbours of the noble Lord, Lord Young of Norwood Green, or to the families and children within the Travelling community. It is not impossible. It just requires political will.

I beg leave to withdraw my amendment. What others do with theirs is a matter for them.

Amendment 55ZA withdrawn.