Alleged Spying Case: Home Office Involvement

Lord Garnier Excerpts

Tuesday 21st October 2025 Lords Chamber

[Lord Hanson of Flint (Lab)]

I welcome the fact that the Intelligence and Security Committee is undertaking its statutory duties to look at these issues. Of course the Government will co-operate fully with the Intelligence and Security Committee and give information on whatever issues are requested.

[Lord Garnier (Con)]

My Lords, the problem for the Government is not the collapse of the spy trial, embarrassing though that may be, but the fact that this story keeps dribbling on from day to day and the Government do not seem to be able to get off the hook.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble and learned Lord. It dribbles on from day to day because Members continue to ask similar questions to those being covered, which they are entirely within their rights to do. He will know that the trial collapsed because the Director of Public Prosecutions and the Crown Prosecution Service deemed that the evidence they had was not sufficient to secure a conviction. That was their decision, made independently of the Government. They made that decision, and that is why the trial has collapsed. Members of both Houses seek to press the Government still further on a range of issues around that, which is their absolute right, but the basic facts are that that is what happened.

Crime and Policing Bill

Lord Garnier Excerpts

2nd reading
Thursday 16th October 2025 Lords Chamber

[Lord Garnier (Con)]

My Lords, yet again we are being asked to digest a lengthy criminal justice Bill which covers far too many diverse areas of conduct. Churchill might have said that this Bill has no theme. Before the Bill began its progress through the other place, the Government proclaimed that it contained 35 headline measures. Andy Slaughter, the chairman of the Justice Select Committee, said the Bill introduced 27 new criminal offences. I think he was congratulating the Government.

Had I been discussing the Criminal Justice Bill—that is to say, the Bill that my noble friend Lord Davies referred to, which fell at the last election—I would have said of that what I now say of this Bill. It covers too many subjects. It makes criminal activities that are already criminal. It has 430 pages, 203 clauses and 21 schedules. Just look at it: it is like a telephone book. It is a catalogue, in my view, of Early Day Motions rather than a practical answer to the problems it seeks to identify. It reminds me of the Criminal Justice Act 2009, which included provisions for, among other things, the appointment of senior police officers, prostitution and lap dancing, the supply of alcohol to children, gang-related violence, aviation security, border controls and extradition, and more besides.

I am sure that many of the measures in this Bill are, on their face, worthy, and, assuming they are not already criminal offences, no doubt good measures are taken from the Criminal Justice Bill. But passing laws is not of itself a solution to an actual or perceived problem. Movement is not productivity. Too often, Governments of all political persuasions think that sounding vigorous is a substitute for action.

Between 1815 and 1914, remarkably few laws—about 15 or 20 statutes—were passed that affected the criminal law. Several of them are still in force, in whole or in part. When Tony Blair was Prime Minister, between 1997 and 2007, more than 50 criminal law statutes were enacted. The Criminal Justice Act 2003—another doorstop of a Bill—even repealed earlier sections of earlier Acts of Parliament passed after 1997 that had not even been implemented. I tabled Written Questions in the other place, asking how many criminal law provisions had been implemented, how many had been repealed before implementation, and how many had been brought into force. The answer I used to get was roughly one-third had been implemented, one-third had not been implemented and one-third had been repealed before implementation or soon afterwards. I am not making a politically antagonistic point: I am simply pointing out that the early 21st century legislative equivalent of Dreadnought building is ineffective unless the Government—any Government—do more than pass laws and pat themselves on the back.

The court system is under strain. The police are under strain. Our prisons are under strain. Yet we blithely pile more and often repetitive legislation on them for political effect, without calculating whether the new provisions already exist or can be managed within the present creaking criminal justice system. The Lord Chancellor recently promised 1,250 new Crown Court sitting days. With the Crown Court trial backlog leading to serious criminal trials now being scheduled for 2028 or 2029, and with literally hundreds of courtrooms unused, 1,250 additional days is insignificant. A senior Crown Court judge recently told me that he could use those days in just his own court centre.

The Home Secretary’s Second Reading speech in the other place in March amounted to empty jargon interrupted by loyal Back-Benchers reading out interventions drafted by her spads or by Government Whips, and by the Opposition complaining that she was ignoring the previous Government’s achievements or claiming that they were her own. This is not a satisfactory way to amend the law, still less to create new law.

Of course, this Bill will—either in this version or some other version of it—pass into law, and the Government will proclaim its enactment as one of their great achievements at the next election. In the meanwhile, the IPP scandal continues, despite the heroic efforts of the noble Lord, Lord Timpson, and other noble Lords from across the House to release the ghastly grip of its talons around the lives and hopes of those hundreds of prisoners still in prison well beyond their tariff. Governments and Ministers say a lot. The voters watch carefully and remember what they actually do.

Border Security, Asylum and Immigration Bill

Lord Garnier Excerpts

Committee stage
Monday 13th October 2025 Lords Chamber

Debate on Amendment 184 resumed.

[Lord Garnier (Con)]

My Lords, I will continue where other noble Lords left off. In particular, I commend the words of the noble Lord, Lord Faulks, who gave a very perceptive analysis of the problems that the noble Baroness’s amendment revealed. As he said, the amendment is legally coherent, and I also note that it is well motivated.

I add only this. We have adhered to the convention since 1951 or thereabouts, and it has not been domesticated into our law, as the European Convention on Human Rights has been, through the Human Rights Act 1998. I recall, when I was on the Opposition Front Bench in the other place, when discussing the Human Rights Bill, as it then was, and the then Government’s proposals to domesticate that convention into our jurisdiction, that one of the points I made was that one could be entirely in favour of our membership of the European convention—and I remain in favour of it—without necessarily supporting bringing it within the British domestic legal system.

I say in relation to the 1951 convention that one could be entirely in favour of our remaining a member of it without introducing the problems that are caused when these international treaties become part of domestic law. I said in 1998 that by bringing the European convention into our law and permitting British courts to adjudicate on cases which had to do with disputes under the convention would introduce a dangerous political element into the deliberations of our courts. I do not think I was wrong to say that. The last 25 or 30 years or so have demonstrated that a number of highly political cases have found their way through the courts, both at the lower court level, but also right the way up to the Supreme Court. Whether that has been to the advantage of the litigants or to the development of justice policy and to the development of the law in this country is a matter of debate, but it has created inconveniences, and it has created clashes between Parliament and the courts, and that is not to be wished for.

I gently urge the noble Baroness, when she comes to consider the good sense of her amendment and whether to push it, that she might find it better to leave things as they are. We have adhered faithfully, I think it is fair to say, to the 1951 convention since we ratified it, and there have been immigration and asylum statutes passed by Governments of both parties—the Labour Party and the Conservative Party—since, which have not, in my view, been unfaithful to the convention, either in its spirit or its implementation. I leave it there. I urge her to think carefully about what the noble Lord, Lord Faulks, and others have said, and perhaps to allow the convention to exist as a convention and to allow Parliament, this Government and any future Government to make up its or their own mind about the way in which it should be implemented on the local stage.

Hong Kong Democracy Activists

Lord Garnier Excerpts

Thursday 6th March 2025 Lords Chamber

[Lord Hanson of Flint (Lab)]

I reiterate what I said to the Liberal Democrat and Opposition Front Bench: we condemn this action. We have also seen the reports of letters being delivered to neighbours. We are trying to verify the source of those reports and of that information, but the police are certainly looking into this matter and are liaising with those who are in receipt of the letters. The police will assess, independently of government, whether action needs to be taken under any legislation we have to date.

I hope to reassure the noble Lord that, in the event of the circumstances he has described, the police and the Home Office would investigate whether illegal acts have been undertaken. It would be for the police, not the Home Office, to investigate independently in that event. I hope that our representations have been made very forcefully, and that the Chinese authorities will recognise them. We will monitor that situation accordingly.

[Lord Garnier (Con)]

My Lords, I fully understand the balance that there has to be between protecting British citizens under British law and the need for good diplomatic and trading relations with China. It is a difficult balance and sometimes it leads to uncomfortable conclusions. However, in the event that, as the noble Lord, Lord Alton, has indicated, Chinese diplomats break the law and then hide behind diplomatic immunity, will this Government, through either the Home Office or the Foreign Office, make it abundantly clear to the Chinese Government not only that their behaviour is wholly unacceptable but that they will be publicly condemned by our Government so that our citizens know how much we disapprove of it, and that the individual diplomats from the Chinese embassy who misbehave will be promptly expelled?

[Lord Hanson of Flint (Lab)]

The noble and learned Lord is tempting me to look at scenarios that may or may not occur. Any attempt by any foreign power to intimidate, harass and harm individuals or communities in the United Kingdom will not be tolerated. This Government will reflect on any actions like that, over and above the representations we have already made.

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.