Independent Inquiry into Child Sexual Abuse

Lord Garnier Excerpts

Monday 21st November 2016 Commons Chamber

[Sarah Newton]

I am absolutely delighted, as the Minister responsible for vulnerability, safeguarding and counter-extremism, to be here to answer this question. It is absolutely at the core of this Government’s priorities to safeguard children in our country. The Home Secretary was in this House as recently as 17 October answering questions in detail. The Home Affairs Committee has asked detailed questions of the permanent secretary to the Home Office. The hon. Lady is really quite wrong in asserting that there is some sort of smokescreen and hiding behind independence. It is absolutely essential that this inquiry is an independent inquiry. The terms of reference of the inquiry were shaped with the voices and the opinions of the victims, and it is very important that this independence is maintained.

The hon. Lady asked a series of operational questions, all of which are for the chair and the leadership of the independent inquiry. It would be totally wrong for me to answer those questions here, because we would be intervening in the independence of the inquiry. I am confident, as are the Prime Minister and the Home Secretary, in the ability of Professor Jay to lead this inquiry. It is really important that we all get behind the inquiry so that it can get on and do its really important work in making sure that it gets to the truth and delivers for victims.

[Sir Edward Garnier (Harborough) (Con)]

I do not for one moment undervalue the intentions of those who set up this inquiry and those who are working with it, although it has had a very rocky road since it was begun. Nor do I underestimate for one moment the trauma felt by those who have been affected by child sex abuse. I have acted in a number of criminal cases in which I have seen with my own eyes the terrible consequences for adults of what happened to them as children. I want to ask my hon. Friend a question from a slightly different angle. I have a constituent who, since the early part of this century, has been left in a hideous, Kafkaesque limbo. He does not know whether he is an accused person or a witness. What is his status in relation to this inquiry? He, like the victims, needs to be told when this is all going to finish, both for him and for the victims. Will my hon. Friend please make some inquiries of the inquiry to ensure that this man can either be prosecuted or set free?

[Sarah Newton]

I thank my right hon. and learned Friend for the customary thoughtfulness with which he asked his question and reflected on the importance of this inquiry. As he quite rightly points out, child sexual abuse can have a devastating impact not just on the victims, but on the people caught up in such inquiries. He referred to a particular case that is an operational matter for the police. While I can understand why he wants to bring this matter to a swift conclusion on his constituent’s behalf, these are operational matters for the police, who, quite rightly, are independent of the Home Office.

Criminal Finances Bill

Lord Garnier Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 25th October 2016 Commons Chamber

[Ms Abbott]

My right hon. Friend is right. We need to look at the case of people who serve a prison term that may be relatively short, but are able, in effect, to flout the compensation order.

[Sir Edward Garnier (Harborough) (Con)]

I take the point that my neighbour, the right hon. Member for Leicester East (Keith Vaz), makes, but often when a criminal is sentenced, along with a compensation order or a proceeds of crime order, he is sentenced to an additional term of imprisonment in the event that he does not pay back the money. Sometimes those extended sentences can be very long—indeed, as long as or even longer than the original sentence.

[Ms Abbott]

Far be it from me to bandy words with the many lawyers in the Chamber. I repeat that as the Bill goes through Committee we will seek to examine the question of people flouting compensation orders. Overall, in relation to bearing down on money laundering, we welcome the relevant provisions, including the unexplained wealth orders, the reform to the suspicious activity reports regime, information sharing and the new disclosure orders.

The Bill also deals with tax evasion. In recent years there has been a great deal of public interest and a raft of Government measures on tax avoidance. Arguably, less attention has been paid to tax evasion. There is some blurring between the two terms, but broadly, tax evasion occurs when an individual or corporate entity acts in breach of the law, and tax avoidance occurs when an individual or corporate entity complies with the letter but not the spirit of the law. In recent years Her Majesty’s Revenue and Customs has produced estimates of the tax gap—that is, the difference between the tax that is collected and that which is theoretically due. Clearly, any such estimate must be speculative, but I draw the attention of the House to the fact that HMRC’s most recent estimate of the gap is £36 billion, which is the equivalent of 6.5% of total tax liabilities. Of that £36 billion that is lost, £5.2 billion is lost to evasion and only £2.2 billion is lost to avoidance.

We welcome the measures to bear down on tax evasion, and we welcome the provision that makes it a criminal offence for corporations to fail to stop their associated persons facilitating tax evasion. We particularly welcome the fact that this will have extra-territorial jurisdiction. However, we regret that in the tax evasion measures in part 3 there is no reference to the British overseas territories and Crown dependencies. That is a startling oversight. There are 14 British overseas territories. Just one of them, the British Virgin Islands, is mentioned no fewer than 113,000 times in the Panama papers. BVI, with a population of just 29,000—fewer than my own constituents in Hackney—is home to 452,000 international businesses. Maybe the 29,000 population is particularly skilled at accountancy and banking, but maybe some of those business entities are shells for tax evasion.

There are three Crown dependencies, Jersey, Guernsey and the Isle of Man, and it is frequently argued that the British overseas territories and the Crown dependencies are the largest tax evasion network in the world, so the failure to mention them in a Bill which purports to deal with issues surrounding tax evasion is a major omission. We will be seeking amendments as the Bill goes through Committee. It is frequently asserted that it is not possible to legislate for the British overseas territories and the Crown dependencies, but the Ministry of Justice seems to think differently. This is an issue that we will explore.

The Minister referred to the beneficial ownership register that we are encouraging the overseas territories and the Crown dependencies to introduce, but he must be aware that at least some of the overseas territories are boasting that they are in practice evading the Government’s efforts to get them to set up beneficial ownership registers, and many of them are saying that these registers will not be publicly available. The Opposition insist that if this Government are serious about dealing with tax evasion, they must ensure that the overseas territories and Crown dependencies not only set up beneficial ownership registers, but make them publicly available.

We note that there is little distinction in the Bill between corporate or partnership bodies which facilitate tax evasion, and those that do it routinely and as a central part of their business model. We believe that we should look into a new provision specifically criminalising entities and individuals for whom tax evasion is at the heart of their business model, and punishing them more harshly.

I shall not conclude my remarks on tax evasion without mentioning the Labour party’s tax transparency enforcement programme. We want a public inquiry to examine the loss of tax revenue, and increased powers for HMRC, including a specialised tax enforcement unit. We want to force foreign firms to list their owners and beneficiaries, and we want the introduction of a general anti-avoidance principle and the extension of current rules to cover offshore abuses.

The Bill deals with the important issue of terrorist finance. Those of us who have watched with horror terrorist atrocities all over the world, and here in London, know that terrorism is an existential threat to us and our society. We share the Government’s aims in reducing the terrorist threat, not just to us in the UK but to our allies and interests overseas, and agree that one way of doing this is to deprive terrorists of the financial resources required for terrorism-related activity. Globalisation means that we must constantly update our legal instruments. We note the changes that the Bill will make to the law enforcement and intelligence agencies in relation to investigations of offences under the Terrorism Act 2000, but we will examine these proposals because we are anxious that they do not have too harsh a bearing on genuine charities.

Labour Members support the Bill in principle. We will scrutinise its detail with care. We insist that it is vital that agencies such as the National Crime Agency get the money they need for implementation, because otherwise the Bill will be a dead letter. For too long, London has been accused of being a hub for money laundering, with all its terrible effects not only on the take of our Treasury but on the lives and countries of many of the poorest people in the world. We hope that this Bill is the beginning of a process that brings the curtain down on the era when London could be described as a money-laundering hub, instead ensuring that London and the UK set an example internationally about what can be done to bear down on money laundering and tax evasion.

[Sir Edward Garnier (Harborough) (Con)]

I begin by declaring an interest. I have been instructed in the past, and I am currently instructed, by the Serious Fraud Office in a number of matters that touch on this Bill and some of its predecessor legislation.

I apologise to my right hon. and hon. Friends on the Front Bench, and to the shadow Home Secretary, the hon. Member for Hackney North and Stoke Newington (Ms Abbott), for the fact that I might not be able to be here for the wind-ups. I hope that my right hon. Friend the Minister for Policing and the Fire Service will forgive me. All being well, however, the debate may run short—if I do not talk too much—in which case I shall be here.

Like the shadow Home Secretary, I broadly support the principle behind the Bill, which I assume is entirely uncontroversial. We all want the criminals whom we hope will be touched by it to be caught and to be prevented from committing such financial crimes. The days when people went into banks with sawn-off shotguns are long over. Criminals are now much more sophisticated: they go round the back with a set of wires, metaphorically, and extract money out of banks and other financial institutions through computer crime, rather than by using violence. We need to keep up with them. As my hon. Friend the Minister for Security said, we have to be craftier than the crafty hoods.

In our enthusiasm to pass the Bill, however, there are one or two matters about which we need to be a little cautious, although I am sure that, during its passage, the Government will think about how to get the detail right. It could be said that many of the points I am going to set out would be better made on Report than on Second Reading, but I might as well make them while I am on my feet.

Unexplained wealth orders, as a matter of principle, are in line with provisions in the Proceeds of Crime Act 2002 and similar measures, in that they reverse the burden of proof by making the respondent to the order explain himself, rather than requiring the prosecution or the state to make the case against him. That principle is now accepted in our criminal law, and that will continue as long as there are sufficient protections for the respondent. Under the Bill, the High Court may, on an application made by one of the prosecution authorities or enforcement agencies, make an unexplained wealth order in respect of any property if it is satisfied that each of the requirements for making the order is fulfilled. The order will be made in the High Court and the application will be made to the High Court in relation to a respondent who has a criminal connection, but also to politically exposed persons. We need to be careful that politically exposed persons, who will, as I understand it, be foreigners, are sufficiently protected from the making of an application that could trash their reputation and that, even when that is not acceded to by the High Court judge, none the less still leaves him or her exposed to the allegations made against them. I suppose that, to a lesser extent, the same could be said of a respondent with some form of criminal connection.

It seems to me that the way around that is to do what has been done with deferred prosecution agreements in the Crime and Courts Act 2013. Paragraphs 7 and 8 of schedule 17 to that Act provide a way of dealing with those issues so that reputations cannot be damaged until the necessary time when a particular state of affairs has been proved. In deferred prosecution agreements, the parties—the Serious Fraud Office in this case—apply to the court for a declaration that entering into a deferred prosecution agreement with the respondent is likely to be in the interests of justice and that

“the proposed terms of the DPA are fair, reasonable and proportionate.”

That hearing takes place in private. Once the court is satisfied, and the parties are agreed, that the terms of the order are correct, the judge makes an order that is made public, and also makes public the judgment that he made in the private hearing some days or weeks earlier.

That is a perfectly sensible way of maintaining the interests of doing justice in public, while holding in private the initial hearing in the event of an order not being made, or of it being altered in a way that makes the respondent look a lot less guilty than he might otherwise have looked. That allows a hearing to be heard without damaging an innocent man’s reputation. That is simply a matter of mechanics, and if the Government can spare the time between now and when the Bill leaves the House of Commons, we could achieve the end that we all want, without causing collateral or unintended damage.

I am also a little concerned—perhaps this can be dealt with at a later stage—that clause 1 deals with income as though that were all that needs to be considered. Proposed new section 362B(3) of the Proceeds of Crime Act 2002 states:

“The High Court must be satisfied that there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property.”

Proposed new subsection (6)(d) notes that

“‘known’ sources of the respondent’s income are the sources of income (whether arising from employment, assets or otherwise) that are reasonably ascertainable from available information at the time of the making of the application for the order.”

If “income” simply means money received, I understand that; but if it means income as opposed to capital, we need to make clear that by income we mean not just the interest from capital or a salary, but all that the respondent owns, so that we can capture the distinction between income and capital. A respondent could be capital-rich, but income-poor. We need to avoid a situation where he can get away from the order by saying that his income does not amount to much when we all know, or can anticipate, that his capital is larger. I am sure that plenty of the houses that the shadow Home Secretary spoke about are bought with cash—essentially, they are bought for great lumps of capital—rather than from borrowing.

I am concerned about the Bill’s use of the words “purports to comply”. I appreciate that that expression is to be found in earlier, similar Acts but, to me, purporting to do something means either doing or attempting to do one’s best, or doing something speciously—appearing, falsely, to do something. Albeit that we accept that that expression is used in earlier legislation, we need to be clear that to pretend to do something should not be a defence or an answer to an accusation of failure to comply with an unexplained wealth order.

I turn to the question of enforcement, which has been brought up on several occasions. Let us assume that an unexplained wealth order is made, and let us assume that there is a hearing, initially perhaps ex parte—singlehanded—by the authority. The matter then either comes back for a hearing between both parties, or moves on in some other way. It is all very well making these orders, but that will do no good if we do not have the necessary police officers or investigators to ensure that they are enforced.

I have noticed that in the past with confiscation orders. Very often, the courts make an order, and either the order is never put into action or very little of the amount required from the offender is ever recovered. We need to make sure that this legislation is not simply written in air; it must have real teeth to deter those who think they can get away with this sort of misbehaviour, and to enable the Treasury to recover the ill-gotten gains. I dare say that the same could be said in relation to suspicious activity reports.

Finally on unexplained wealth orders, is there to be any form of appeal system? It strikes me that under proposed new section 362H, an application for an unexplained wealth order may be made without notice, and I have dealt with points about that. Will the procedure be susceptible to any sort of appeal, and if not, why not?

I turn to the “failure to prevent” provisions, which my hon. Friend the Minister mentioned in his opening speech. I heartily approve of this new system for dealing with corporate misconduct. We saw it first in our jurisdiction under section 7 of the Bribery Act 2010. Although there have been only a few cases involving section 7, it strikes me as being a sensible way of dealing with the difficulty that we face, under English law at least, in pinning criminal liability on corporations. In the United States, a corporate body can be held to be criminally liable because it employed the criminal. It is vicariously liable for employing the criminal and his activities are pinned on the company. In this country—certainly in this jurisdiction—we rely on the Victorian principle of the directing mind. Nowadays, in huge international companies that have hundreds of thousands of employees posted right across the world, albeit that the headquarters of the company may be in this jurisdiction, it is extremely difficult to demonstrate that the directing mind of the company knew what the criminal employee was up to. Section 7 of the Bribery Act gets around that.

[Richard Arkless (Dumfries and Galloway) (SNP)]

Although I accept the directing mind principle, does the right hon. and learned Gentleman agree that when employees engage in less than ethical practices—such practices have caused a lot of the problems that we have seen in the UK over the past six or seven years—unless the liability goes to the top of an organisation, the organisation will never develop the protocols and processes required to make sure that those employees are responsible for their actions? Does he accept that point?

[Sir Edward Garnier]

What the hon. Gentleman says is perfectly true, but I am not sure whether that constitutes accepting what he says. The point I am trying to get across is that companies can avoid liability in the absence of the “failure to prevent” system under section 7 of the Bribery Act. Individuals can be prosecuted and imprisoned, but the company gets away free. The advantage of section 7 is that it brings the company within the ambit of responsibility.

Yes, the compliance system in banks and financial institutions is nowadays much more sophisticated and vigorously engineered, so that everybody from top to bottom should know what they are supposed to do and not do, and so that such a culture goes right the way through the company. It seems to me that there is no excuse for failing to behave properly, since we should all now know what to do. The compliance world is certainly keen to ensure that employees in banks and so forth know what they are supposed to do.

I want the Government not to limit the “failure to prevent” provisions to section 7 of the Bribery Act and those clauses in this Bill that deal with tax evasion, but to expand the regime to all offences that can sensibly be brought under it, as set out in part 2 of schedule 17 to the Crime and Courts Act 2013. The schedule covers 40 or 50 economic or financial crimes that corporations should be required to prevent. That would put a blanket across a range of criminal financial offences that are not dealt with at the moment, such as fraud, theft, false accounting, the suppression of documents, dishonestly retaining a wrongful credit, the exportation of prohibited or restricted goods and so on. There is a list for the Government to look at. I hope that thought will be given not just to expanding the regime to the evasion of taxation both in this country and abroad, but to some of, if not all, the offences listed in the schedule.

Finally, I want to make a small point, which I suppose comes back to resources. In an online article in “The Brief” from The Times this morning, a senior lawyer at a City firm of solicitors complained that tax officials were failing to use existing tools against tax avoidance schemes while seeking to expand their powers. He said:

“The huge range of swingeing powers HMRC has been given in recent years may have helped its image…but to date they have been little used as an enforcement tool, and some may question whether public time and resources could have been better spent.”

He also said:

“Before granting HMRC yet further powers…parliament should consider very carefully whether such powers are actually needed and ask HMRC to explain why some of the powers it has been granted in recent years have been under-utilised.”

I do not know whether that is pinpoint accurate, but it seems to me that we can do both: we can make better use of the powers provided to HMRC and ensure that it uses them; and we can also widen the ambit of our ability to catch those involved in financial crime and our ability to prevent it by introducing the “failure to prevent” provisions in this Bill in, I hope, an expanded form.

[Richard Arkless (Dumfries and Galloway) (SNP)]

Before I go through my speech, I think I can sum up our position on the Bill very succinctly. The crux is that we support in principle the aims of the Bill. To be truthful, there is not much within the four corners of the Bill that we would dispute. Our problem is not with what is in the Bill but with what is not in the Bill, as I will make clear in my speech.

When I studied the financial system at university in the 1990s, the focus of financial crime and of the Government with regard to it was on anti-money laundering regulations and proceeds of crime legislation, which were specifically geared towards getting at the proceeds of drug traffickers and, quite frankly, bank robbers. For the most part, that has worked. Long gone are the days when criminals could easily legitimise buckets of cash from ill-gotten gains. Thankfully, long gone are the days when the only concern involved in robbing a bank was being caught red-handed. The perception of criminals was that if they could evade capture and did not flash the cash, they could eventually spend the money. In many cases, criminals could be incarcerated for crimes and still look forward to spending loot they had stashed when they were eventually released. Money now needs to be accounted for; banks must consider the sources of funds and be satisfied that they are indeed legitimate. Police now have powers to recoup proceeds of crime even if they have been spent by the criminals, and pass them back to the victims.

In my view, we simply could not believe in the rule of law unless we supported such an evolution in rules and regulation. Fairness and the rule of law should be at the heart of everything we do as a society. It is not fair to anyone to live in a world where criminals are free to generate cash and spend it without fear of repercussion. There simply must be a level playing field for the vast majority of society who play by the rules. The past changes did not merely disincentivise criminals; they drove a police coach and horses right through their plans. There are many famous bank robbers and drug traffickers. We know them; we have watched all the films. I suggest that they simply would not have committed those crimes had we had tougher money laundering regulations then.

The challenges today are very different. We live in an era of evolving financial crime and now face a very different threat from that which we faced a generation ago, when I was at university. It is the threat of grand corruption, particularly in relation to politically exposed people, facilitated for the most part—perhaps unwittingly —by the City of London.

Earlier this year The Guardian revealed through the Panama papers how a powerful member of Gaddafi’s inner circle had built a multimillion-pound portfolio of boutique hotels in Scotland and luxury homes in Mayfair, Marylebone and Hampstead in London. He was head of Libya’s infrastructure fund for a decade and has been accused by Government prosecutors in Tripoli of plundering money meant for schools, hospitals and archaeology. Scottish police have confirmed that they are investigating. Libya has made a request for an asset freeze, but that has not yet been implemented.

These challenges are such that new and tougher legislation is required to give law enforcement the tools to really do something about this problem. We in the Scottish National party support that principle. Although I do not wish to undermine your Office’s consideration of the Bill, Madam Deputy Speaker, I respectfully suggest that the Bill applies to Scotland. There are specific clauses on how the provisions will apply to Scotland.

As far as devolved competencies go, the SNP Scottish Government have demonstrated their commitment to tackling criminal finances and tax avoidance, and boast a successful track record in doing so. In Scotland we have introduced robust anti-avoidance rules on devolved taxes, described by commentators as among the toughest in the world. The SNP Government’s approach to devolved taxes demonstrates that we are deadly serious about tackling tax avoidance in Scotland. For example, the Revenue Scotland and Tax Powers Act 2014 established the Scottish general anti-avoidance rule, which will allow Revenue Scotland to take counter-action against artificial tax avoidance schemes, making it more difficult for people to circumvent the requirement to pay tax.

That said, although we support the broad principle at stake here, we note with interest the clear terms of the most recent Tory manifesto:

“We will continue to lead the world on tax and transparency…We are also making it a crime if companies fail to put in place measures to stop economic crime”

and

“We will…crack down on tax evasion and aggressive tax avoidance”.

Admirable principles, and ones we support, but we have real doubts that the Bill goes far enough to achieve those goals, as I and my hon. Friend the Member for Kirkcaldy and Cowdenbeath (Roger Mullin) will make clear as we move through the debate.

Many mechanisms and vehicles are provided for in the Bill. One of the most important, and perhaps the easiest for the public to understand, is the unexplained wealth order. The Bill will enable a court—in Scotland, the Court of Session, upon application by Scottish Ministers—to make an unexplained wealth order. The order will require an individual or organisation to explain the origin of assets if there are reasonable grounds for suspecting that that individual or organisation may be involved in criminality or intend to use that wealth for criminal purposes, and the value of the assets exceeds £100,000.

The order will be available to the court where assets appear disproportionate to known legitimate income—for example, as recently reported, when a taxi driver owns a £1 million fish tank. Failure to provide a response to the order and explain the legitimate source of funds would give rise to a presumption that the property was recoverable, making any subsequent civil recovery action much easier.

As a lawyer, the notion of reversing the burden of proof is not one that sits comfortably with me, but, as in other areas, I consider it to be proportional to the issue at stake. Sound legal principles, such as the presumption of innocence and the burden of proof being on the Crown, should not inadvertently protect criminals, which I suspect may have happened thus far.

Unexplained wealth orders will also help to expose the owners of property. Land Registry figures show UK real estate worth more than £170 billion is held by more than 30,000 tax haven companies. The key to this provision is that a criminal conviction will no longer be necessary before law enforcement can pierce the criminals’ veil that camouflages their wealth. Getting away with the crime itself will no longer protect a criminal’s wealth. The Bill will allow for this power to be applied to foreign politicians and officials, or those associated with them, known as politically exposed persons, helping to tackle the issue of proceeds of grand corruption overseas being laundered in the UK.

I have a couple of specific questions for the Minister relating to unexplained wealth orders. There is a provision relating to interim freezing orders. If an unexplained wealth order is made, one could presume that the respondent would be keen to hotfoot it out of the country with a stash of cash. Freezing orders are available if the court is satisfied that they are necessary. Will the Government consider strengthening this position to ensure that the hotfoot temptation is not available to these criminals? I could imagine the rush to flee—I think we all could. Perhaps an automatic freezing order on the granting of the application for the unexplained wealth order can be considered. Will the £100,000 threshold create a new “out” for grand corruption? Will politically exposed people collaborate with many people to do numerous transactions under £100,000? That should also be considered and we should ensure that the provisions catch those types of activities.

Current legislation does not make it easy to seize criminals’ assets in the form of bank accounts and other value assets, such as precious metals and jewels, or indeed casino chips and high value betting slips. There is evidence, however, that these moveable items are being used increasingly, both domestically and across international borders. The Bill will create new civil powers similar to existing cash seizure and forfeiture schemes in current legislation, which would close that gap. The powers will be exercisable where there is reasonable suspicion that the property is the proceeds of crime or will be used in unlawful conduct.

The SNP’s 2016 manifesto stated:

“We will argue for changes in the law at Westminster to enable the police to seize items of monetary value from criminals, such as high value betting slips and casino chips.”

I was pleased to hear the Minister state that the changes will be included in a forthcoming amendment. I was struggling to conceive how criminals could be caught by the face value vouchers provisions currently in the Bill, so I was grateful for that statement and I thank the Minister for making it.

On corporate failure to prevent tax evasion, the Bill attempts to legislate on what we understand as corporate economic crime. As we heard from the Minister, the Bill will create two new offences. We support the measures as far as they go, but we see this as a huge missed opportunity. For example, nothing in the Bill would criminalise the banks themselves for their employees rigging the LIBOR market. I suspect that when the public begin to understand which corporate crimes are dealt with in the Bill and which ones are not, they may see this as a slight cop-out and a continuation of the status quo that has got us into so much difficulty. It is uncontroversial to hold companies to account for the tax evasion of their employees. It is tax evasion, for goodness’ sake. The public would expect it to be criminally sanctionable as is. What the public want are stronger measures to hold companies, in particular banks, liable for the crimes of their resident rogue bankers. It seems strange that the Government have ducked this issue.

Speaking as someone who has worked for a well-known retail bank—something that I do not advertise as much these days as I used to—I can testify with absolute certainty that until the banks themselves are in the frame they will never, as I claimed in my intervention, develop the risk management and other protocols necessary to make sure that their agents or employees do not commit these crimes. Only when liability goes to the top will we ever begin to solve these issues.

Will the Government consider reacting to what the public understand as corporate crime, and make banks liable for practices that have caused so much economic heartache to so many ordinary people since 2008? Why should the innocent ordinary punter pay for the mistakes of rogue bankers? If we make these bosses liable, we will see a tightening up almost instantly.

[Sir Edward Garnier]

As a first step, would the hon. Gentleman encourage the Government to look at the schedule to the 2013 Act, where the economic and financial crimes are set out, to see whether we could get “failure to prevent” provisions added to this Bill on a wider basis? Perhaps the hon. Gentleman and I could then get together to try to persuade the Government to introduce the American vicarious liability system of corporate criminal liability.

[Richard Arkless]

I have a great deal of sympathy with both of the right hon. and learned Gentleman’s points. I suggest, however, that the first one is rather a half-house measure that does not go far enough. It will not pin criminal liability on the banks. On the second point about vicarious liability, it is interesting to note that the United States is often considered as the free market monster of the entire world, yet the US feels comfortable with criminalising banks for the actions of their rogue employees. I suggest that we should do the same in the UK.

Removal of Foreign National Offenders and EU Prisoners

Lord Garnier Excerpts

Monday 6th June 2016 Commons Chamber

[Mrs May]

I am grateful to the hon. Gentleman for his reference to how complex some of these cases can be. That is the point. Very often there are barriers, such as lack of documentation, which need to be overcome before we are able to make these deportations. As a number of people have indicated, in the EU, the prisoner transfer framework decision gives us the framework under which we can deport foreign criminals from European member states.

[Sir Edward Garnier (Harborough) (Con)]

Does the Home Secretary agree that the problem, which is of some standing and goes way back to the early part of this century, when the Labour Government faced it, is not one of law or the interpretation of legal instruments, but one of proper administration? Is there not a second problem, in that there are far too many barrack-room lawyers who keep following their own advice?

[Mrs May]

I would hesitate to come between my right hon. and learned Friend and any other lawyer in this Chamber or elsewhere.

Investigatory Powers Bill

Lord Garnier Excerpts

Tuesday 15th March 2016 Commons Chamber

[Andy Burnham]

I do not believe it is. I put it to the hon. Gentleman that national security is a very broad term that is not defined in the Bill. The Joint Committee encouraged the Government to define it in order to give people greater security. As I have just said, activities have been carried out in the past under the banner of national security that I think he would struggle to justify as such.

The problem with the “economic well-being” test is that it potentially opens up a much wider range of activities to the most intrusive powers. The Bill states that matters of economic well-being must be only “relevant” to national security, not directly connected to it, as the Home Secretary seems to imply. This raises the issue of what extra activities the Government want to cover under this banner that are not covered by national security. A cyber-attack on the City of London has been mentioned, but surely that would already be covered by national security provisions.

Let me put two suggestions to the Home Secretary. First, I suggest that she accept the Joint Committee’s invitation to define “national security” more explicitly. Alongside terrorism and serious crime, it could include attacks on the country’s critical or commercial infrastructure. Secondly, if she were to do that, the economic well-being test could be dropped altogether. That would build reassurance among Opposition Members that there could be no targeting in future of law-abiding trades unionists, as we have seen happening in the past.

The third area of concern is with ICRs themselves—both their content and their use.

[Sir Edward Garnier (Harborough) (Con)]

Is the right hon. Gentleman seriously suggesting that a judicial commissioner would permit a politically motivated interception on a trade union?

[Andy Burnham]

I would gladly share with the right hon. and learned Gentleman some of the papers I have about the historic injustices that we have seen in this country—[Interruption.] But it is relevant, because those convictions still stand to this day. I said earlier—I do not know whether he was in his place—that revelations have been made that information supplied to blacklist people in the construction industry came from the police and the security services. I welcome the move to codify all this in law so that those abuses cannot happen again, but I hope that he will understand that Labour Members want to leave nothing to doubt. Why should the most intrusive warrants be used on the test of economic well-being? What does that mean? Are we not entitled to say that national security alone can justify intrusion on people’s privacy in that way?

--- Later in debate ---

[Sir Edward Garnier (Harborough) (Con)]

Any Bill that fundamentally affects the relationship between the citizen and the state is bound to be controversial. This Bill is no exception, even though much of what it does is to consolidate in one statute powers to interfere in the citizen’s private life and communications that are presently to be found in existing statutes. Although article 8 of the European convention on human rights permits interference with the rights protected by it if

“in accordance with the law and…necessary in a democratic society in the interests of national security”

and so on, Parliament has a particular duty to examine closely legislation of this sort to ensure that the Government and the security and law enforcement agencies are not asking for too much and that we are not supinely giving them too much. We find the words “necessity” and “proportionality” frequently in this Bill, and that is not an accident.

Today’s debate is not new. Much of what will be said today will have been said in the debates on the 20th-century and early 21st-century legislation that is to be consolidated in this Bill. As technology has advanced we have had to adapt our laws, first, to cope with the ability of those who wish to do us harm to do so more quickly and effectively, and, secondly, to ensure that technology is not used by the state improperly to interfere with the citizen, just because it can.

As long ago as the 14th century, Parliament outlawed eavesdropping under the Justices of the Peace Act 1361. In essence, for the past 600 years or so, the intrusion into the private lives of others by use of illegal listening devices, be it the human ear or electric surveillance machinery, has been a topic of public debate. No one doubts that our law enforcement agencies and the security services need to be able to detect and prosecute serious crime, and to counter terrorist and other threats to the country and our fellow citizens. The threat to our country and its interests is, I am sure, as serious today as it has been since the second world war, and the capacity of the criminal underworld or our national enemies to transfer money, to traffic people for enslavement or sex or to move drugs, weapons and explosives has been greatly enhanced by the internet and other forms of electronic telecommunication. Whereas in 1361, the dark, a disguise and the speed of a horse were all that the King’s men had to contend with, so much of what we have to contend with now is unseen, unheard, instantaneous and undetectable. It is getting more and more difficult to stay ahead of the criminal gangs and terrorists who have access to the most sophisticated of communication systems, which can be operated from an iPhone anywhere in the world.

[Nusrat Ghani (Wealden) (Con)]

Does my right hon. and learned Friend agree that to help our police and security services to transfer what they do in the physical world, they need the powers to do that work in the digital world, and that without the Bill we are asking our security services to do their job with one hand tied behind their back?

[Sir Edward Garnier]

I agree with that.

I do not have time in this Second Reading debate to do more than state that, as a matter of principle, I wholeheartedly support the aims and policy behind the Bill. The proposals to enable the state to intercept others’ communications or to interfere with equipment in a way that would, without this legislation or the laws it replaces, be unlawful, are sensible. The requirement for the Secretary of State to issue warrants that have to be approved by judicial commissioners, and other protections against the state’s misbehaviour with regard to the collection and retention of communications data, are rightly in the Bill. The ability to acquire bulk data is necessary. The checks and balances governing the police, and the internal supervision arrangements referred to in schedule 4, are right, subject to further consideration of the seniority of the officers involved. All that and more is justified and defensible in the interests of protecting us from harm.

That said, there is no room for complacency or any suggestion that the Bill is the perfect answer to a difficult set of problems, which are most obviously defined as the border between public protection and freedom on the one hand, and excessive state power on the other. In my time as a Law Officer I had, from time to time, to deal with the security services and the law enforcement agencies. I hope that I will not be accused of undue naiveté, but my experience of them in government was that they were scrupulous to obey the will of Parliament and the law. I was impressed by the fact that, from the top down, there was a genuine desire to do only what was right and to seek clarification where the law was complicated or capable of being misconstrued, so that they did not stray across the line between what was possible and what was lawful.

Based on my experience, I am sure that those entrusted with the type of work described in the Bill will conduct themselves within the law and that, if errors are made, it will not be for want of trying to keep on the right side of the law. The number of intercepts warranted every year by a Secretary of State may not be large in comparison with the billions of emails sent, mobile telephone calls made and internet searches carried out every year. It may be—I am guessing—that the three Secretaries of State will collectively issue fewer than 5,000 each year. If the law is to be obeyed, however, every warrant must be considered by the Secretary of State or a Scottish Government Minister. The Foreign Secretary, the Defence Secretary and the Home Secretary will have to give every application for a warrant from an intercepting authority the time and the close attention that it deserves.

Of course, I believe what the Home Secretary said in her response to the intervention from my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), and no doubt she will never take shortcuts. The current holders of those offices are hard-working Ministers, who are capable of reading a closely argued and complicated brief late at night after a long day of other work in their Departments, in Parliament or travelling here or overseas. Even if I have overestimated the number of applications for warrants that they will receive each year, I am reasonably sure that they will consider several every day. That is much reinforced by what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) had to say a moment or so ago.

This should not be a tick-box exercise. Although I accept that some applications will be more straightforward than others, I do not expect that even in the easier cases, it will be a question of skim-reading the application and initialling it. Each application must be fully argued on paper on its own facts and considered personally by the Secretary of State. I hope that no submission to the Secretary of State will merely recite the wording of clauses 17 and 18; I hope that all submissions will go into detail about why the warrant is necessary, not least because they will have to be carefully reviewed by a judicial commissioner. That is all the truer in urgent cases when a judicial review follows the issuing of the warrant, or in cases involving legal privilege under clause 25.

My concerns about the practicalities of all this are added to when one considers this point, which was also made by my right hon. and learned Friend. Authorisations under part 3 of the Bill are likely to be numbered in the many hundreds of thousands every year and will be made by what, to my eye, look like middle-ranking police officers and other officials. As one can see from schedule 4, those officials are inspectors and superintendents, majors and lieutenant colonels, and other civil servants of that rank. As I learned yesterday, some of them will be part-timers. I need to be assured that the necessity or expedience of every case will not outweigh the need for formality and proper scrutiny of every such application. If we are to have complete confidence in the vetting system, I urge Ministers on the Front Bench and the rest of the Government to think very carefully about those aspects of the process.

Finally, clause 222 requires the Secretary of State to prepare a report on the operation of the Act five and a half years after the Bill has been passed. In any view, that is too long. I suggest that it should be done after two years. If the Government refuse to reduce the period, I hope that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and the ISC—as well as Mr David Anderson, the independent reviewer, who produced an invaluable report last summer—will want to do so themselves.

Oral Answers to Questions

Lord Garnier Excerpts

Monday 6th July 2015 Commons Chamber

[James Brokenshire]

Given the numbers and the scale of the challenge, the focus should be on regional aid in the areas affected. That is why the International Development Secretary has committed another £100 million to assist in tackling the Syrian crisis, with the total reaching £900 million. We are focused on the most vulnerable individuals, which is why we have been operating the vulnerable persons relocation scheme.

[Sir Edward Garnier (Harborough) (Con)]

Does my right hon. Friend accept that the problem of people coming from Syria is reflected in the people leaving here to go to Syria? Will he have discussions with his fellow Ministers to ensure that the extremism Bill deals with youngsters and other vulnerable people being taken away from this country to Syria, so that they can be protected before that happens?

[James Brokenshire]

My right hon. and learned Friend makes an important point about the way in which people can be radicalised, and about how they can be vulnerable and exploited in that way. The new Prevent duty has been introduced precisely to ensure that all governmental agencies are focused on those issues to prevent such travel.

Anderson Report

Lord Garnier Excerpts

Thursday 11th June 2015 Commons Chamber

[Mrs May]

I am tempted to ask the hon. Lady that if she, a lawyer, could not understand the legislation, how does she think the rest of us managed? She will have seen the Leader of the House in the Chamber when the shadow Home Secretary called for a day’s debate, and I am sure that my right hon. Friend will reflect on that point.

[Sir Edward Garnier (Harborough) (Con)]

We are all concerned about getting the balance correct between security and civil and human rights, and I have absolutely no doubt that the Home Secretary will devote her time to ensuring that, but is she concerned about reports that the social media websites in the United States are threatening to refuse to co-operate with legitimate requests for the provision of information about suspected terrorists and other serious criminals? If the reports are true, what conversations will she have with her American counterparts to ensure that that does not happen, and will she remind them during the course of those discussions that there is still a great deal of concern in this House and elsewhere about the lack of balance in the United Kingdom-United States extradition treaty?

[Mrs May]

On my right hon. and learned Friend’s last point, we did make changes to the extradition arrangements between the United Kingdom and the United States when we brought in the forum bar—I think that it has been an important addition—which ensures the balance between the UK and the US in the extradition treaty. We of course talk regularly with communication service providers and social media platforms, and I talk about these measures with my counterparts in the Department of Homeland Security and the Department of Justice in the United States. Of course, it is precisely those sorts of issues that the Prime Minister asked Sir Nigel Sheinwald to look at. As I indicated in response to the right hon. Member for Slough (Fiona Mactaggart), as a result of that work we will be taking forward work to enhance the mutual legal assistance treaty with the United States, but we will also be looking at a broader international framework within which the companies will operate in order to enable access to the data.

Counter-Terrorism and Security Bill

Lord Garnier Excerpts

Tuesday 6th January 2015 Commons Chamber

[Mark Durkan]

Like other Members, I have listened to the debate and to the various points that have been made. What strikes me is that the parties, in the political ballet of this place as people swap Benches, have taken different positions on judicial oversight on previous occasions, adding to the observation that irony in politics is often hypocrisy with panache. It also reflects the fact that people are trying to deal with a Bill that may not be the Bill we designed. Certainly, I have profound reservations about the whole idea of temporary exclusion orders, based on my experience in Northern Ireland where counter-terrorism legislation was often counter-productive. Along with all the other dangers that other hon. Members have rightly highlighted in terms of the dangers posed directly by terrorism itself, we have to remind ourselves of the dangers of feeding what we are trying to fight. If people are trying to foster alienation and radicalism, we have to take care not to propagate the seeds they are trying to sow with legislation that might be misdirected or misguided.

Following your strictures, Mr Deputy Speaker, I will focus on the clauses and amendments before us. I want to make a point that relates to both the Opposition amendments and the Bill. The Bill contains conditions A to D in respect of temporary exclusion orders, while the Opposition new clause proposes conditions A to E. The difference is whether there should be judicial oversight to the issuing of a TEO. In some of the previous exchanges and interventions, questions have been raised about whether the option of a judicial review mechanism would provide a degree of judicial oversight. People have questioned where a court might be asked to look at something differently.

A court may find itself asked to consider whether an order has been issued appropriately, for example when somebody is prosecuted for breaching an order by returning. It may well be that somebody who has been found and charged in the UK, and who is the subject of a TEO, will say, as part of their defence, that condition C of the order was flawed. Part of their defence may be that they were in the United Kingdom when the order was made and that the Secretary of State should have had cause to know that. They may well be able to point to evidence that an element of the security services or police could, would or should have been aware that they were in the United Kingdom at that time. The order might well be challenged at the stage when it is meant to apply most—at the point of prosecution for a breach of the order. That would be a huge point of weakness. The Secretary of State could then be left to try to smother things, under closed material proceedings, and say that no evidence had been given that that person was known to the security services and that the security services knew that they were there.

We have seen that happen often. The hon. Member for Stone (Sir William Cash) referred to the experience of the troubles in Northern Ireland. How many times were there cases in Northern Ireland in which people, who found themselves in court in relation to charges for illegal paramilitary activity, gave evidence as part of their defence, and as part of the obfuscation against the charges brought against them, that they were actually acting as an agent or with the full cognisance of elements of the security services, the police or somebody else? That created a whole situation of disrepute and a sense of scandal around the application of the law, which did not do the rule of law, or confidence in the administration of justice, any good. It helped the propaganda efforts of many of those who were trying to challenge, with a subversive interest, the order of the state. There will be those who say that, in passing the Bill, we have to be alert to those dangers and to the wider malicious agendas of all sorts of nefarious forces and interests. We need to be alert to that.

The Bill states:

“Condition C is that the Secretary of State reasonably considers that the individual is outside the United Kingdom.”

If an order has been issued under judicial oversight on the subject of court approval, when it comes to any subsequent prosecution for breach of the order, the court making the criminal decision will have already known that a court had decided that the Secretary of State was acting reasonably. If the person claims that they were in the United Kingdom at the time of the order, the criminal court would be able to rely on the fact that the person should have challenged the order at that stage, by virtue of the fact that they were in the United Kingdom and could have presented themselves or got a legal representative to make that case or that suggestion, and so could remove that ground of challenge.

I raise that point not as some vague, remote technicality that somebody might say that they were in the United Kingdom when they were thought not to be. In current circumstances not related to the troubles in Northern Ireland, there is a situation—I will not go too deeply into the specifics of a case that is ongoing—where a constituent of mine was believed to have been fighting in Syria. It turns out that in the period the authorities believed that that person was in Syria, the person had in fact already returned to the United Kingdom and to my constituency. That person has been arrested and is now before the courts, but a judge has already said that he is minded to give consideration to the fact that in Syria the person was fighting against Islamic State and against the Assad regime.

That is not the material point I want to address, but the fact is that there have been circumstances where the authorities seemed to believe for a period that a person was outside the United Kingdom when the record now shows that they were inside the UK. The person may not have been making it evident, or going out of their way to advertise the fact that they were present in the UK. However, if the arrest of that person had been on the basis of breaching a TEO, they could well have been able to say that it did not stand or apply because they were in the UK and that the authorities should have known that.

The fact is that we have experience in Northern Ireland, and not just in Northern Ireland, where elements of the security services have known people to have been involved in certain things and have not necessarily shared that information with all the other forces of law and order, including the police service. We are to believe, from the de Silva report and so on, that often, and for their own purposes, different elements of the intelligence and security services know things that they do not share with others, and allow Ministers to act, speak and issue orders in full ignorance of what the intelligence and security services know. We cannot rule out that possibility in the future for all sorts of reasons. The best way of proofing against the risk of TEOs being brought into disrepute whenever someone is arrested for breaching the order, the best way of protecting the Secretary of State’s position in those circumstances, and what Members who support the Bill more than I do want to see, is judicial oversight when orders are made.

[Sir Edward Garnier (Harborough) (Con)]

The experience of the constituent of the hon. Member for Foyle (Mark Durkan), which I was interested to learn about, illustrates the difficulty that faces us. I do not suppose that anybody in the House—certainly not the Home Secretary or the Minister—wants to do anything that makes it more difficult to catch terrorists and others who wish to do us, our allies and our citizens harm. None the less, in our enthusiasm to deal with the problem, we need to come up with the best answer, and in my view the best answer includes much greater judicial oversight than is currently in the Bill.

I share the great honour, with my hon. Friend the Member for Stone (Sir William Cash), of being a former shadow Attorney-General. In fact, I was shadow Attorney-General twice, although I do not know whether that makes my arguments twice as good or half as good—I do not imagine it is of any relevance whatsoever. However, I think we need to extract from the Government a little movement. I hope that the Minister, in his response, can reassure me on this matter. I do not mind whether that movement comes in this House or the other place. I do not share the objections of my hon. Friend the Member for Cities of London and Westminster (Mark Field) to altering the Bill in the House of Lords. We are a bicameral Parliament, and if the Lords can come up with an answer that is politically acceptable, elegant and efficacious, let them do it. If it satisfies me and the Government, I am all for it.

[Mark Field]

My objection is not that there is not a great power of intellect in the House of Lords; it is that if the Government have already made up their mind to do it, they should do it here, rather than waiting for a defeat in the Lords.

[Sir Edward Garnier]

I see. That is a different point from the one I was addressing, so I apologise to my hon. Friend. Either way, I want the Bill adjusted for greater judicial oversight.

My hon. Friend is not as anxious as I am about the temporary exclusion orders in clause 3. I would not be as anxious as I am if the expression “temporary” related to a period far shorter than two years. To me, a temporary exclusion order means a matter of months, at the most, and possibly only days and weeks. Once one moves from days, weeks or a few months, one moves into something other than temporary, which bolsters the arguments behind the need for judicial supervision. I do not like the word “permission” in new clause 2 tabled by the right hon. Member for Delyn (Mr Hanson), but I do not think we should be frightened of judicial supervision. By “judicial supervision”, I mean getting to grips with the substance of the case, not judicial review, irrespective of the fact, as my hon. Friend accepted, that judicial review is a bit meatier and has more teeth than when it started. I share the concerns of many hon. Members, therefore, that although the Home Secretary—particularly this one—will be entirely well motivated, we should not allow her or her Ministers to persuade us that their motives trump our concerns about the absence of judicial oversight.

[Sir William Cash]

Would my hon. and learned Friend be kind enough to give way?

[Sir Edward Garnier]

I give way to a fellow member of the former shadow Attorney-General’s club.

[Sir William Cash]

The old cabal.

I wonder if my hon. and learned Friend would be good enough to answer this simple question: does he believe that the charter of fundamental rights could not get involved in this process? If so, what would his answer be?

--- Later in debate ---

[Sir Edward Garnier]

I am not going to answer that question, because it is not central to my point. When my hon. Friend and I meet elsewhere—perhaps in some shadow Attorney-Generals’ afterlife—we can have a long and fascinating conversation about the matter he has just raised, but if he does not mind, I want to make a few brief points.

Temporary is not two years; to my mind, it is something far shorter. I have no objection to the Home Secretary making a temporary exclusion order, but I prefer the expression used by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) on Second Reading when he talked about “managed return”. That is a much more accurate description.

[Sir Alan Beith]

Would the hon. and learned Gentleman be happier, as I would be, if, by the time the Bill returned from the Lords, it was a Bill about managed return, not exclusion, and if exclusion were the back-up to enforcing managed return?

[Sir Edward Garnier]

For all sorts of reasons, “managed return” is a more accurate description of what we are about, and I do not see there is any harm in being accurate. I do not know whether the Government will change the Bill to the extent of removing the expression “temporary exclusion”, except in the sense the right hon. Gentleman means, but I will not go to the cross over the matter; I just happen to think that “managed return” is a better description.

[Sir Menzies Campbell]

The hon. and learned Gentleman might recall that when the Home Secretary introduced the Bill she referred several times to “managed return” rather than “temporary exclusion order”, so perhaps he is pushing at a door that is more open than he expected.

[Sir Edward Garnier]

One never knows if the draught is going one way or the other, but let us hope that there is some meeting of minds. As I said, it is not a matter of fundamental principle; I just think it would be neater and more accurate to use the expression “managed return”.

I have no objection to the Home Secretary, in an emergency, making an order that governs the return of British citizens to this country, but within a short space of time—by that I mean hours and, at the most, a fortnight, three weeks or four weeks—the order should be supervised by the courts. Most obviously, it could be supervised by the Special Immigration Appeals Commission, which is now used to hearing matters in private. I know there are objections, but it is used to hearing from special advocates who can present information to the court on behalf of the respondent to the application, who, although the client, cannot hear all that is being said about him. SIAC would be the most obvious court to deal with these cases. The sooner they get to a court experienced in dealing with issues of national security and evidence that cannot be revealed to the wider world, the better. I have a little difficulty, however, with the Secretary of State being given the power to manage someone’s return and exclude them for as long as two years. We need to think about that, and I hope that the Minister, when he responds, will give me some comfort.

I am attracted by the thrust of new clause 2 tabled by the right hon. Member for Delyn, but I am not yet sufficiently persuaded that it will not be bettered by something the Minister, who is a man of great acuity, could come up with, if not this afternoon, then soon. I ask the right hon. Gentleman, therefore, to keep his new clause on hold and let the Minister, either here or in another place, deal with the problem in a way that is acceptable to the Government, the Opposition and those of us on the Government Benches—their loyal supporters—who would like to see the Bill adjusted. That way, before long, we could have a Bill that satisfies us all and deals with the problem of what to do about people who want to do disobliging things to us and our allies, either here or abroad.

[Mr David Davis (Haltemprice and Howden) (Con)]

I associate myself almost entirely with the assessment of the Bill by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier).

Over the past several decades, any number of counter-terrorism Bills have been put before the House. Some have been justified; some have not. Some have been effective; some have not. Some have, in the words of the hon. Member for Foyle (Mark Durkan), fought terrorism, while some have fed terrorism. This Bill is a complex mix of measures, most of which I suspect are necessary, but it shares one characteristic with every single other counter-terrorism Bill I have seen here before: it brings more unfettered power to the Executive. With that go two problems. One is the increasing power of the Executive, which is a bad thing in itself, and the second is an increase in the likelihood of a miscarriage of justice.

I do not have a particular objection to a “managed return” approach to some of the individuals currently abroad committing crimes in other states. I do not subscribe to the “stateless person” concern, particularly when people have deliberately rejected their own allegiance to the state. I think there is a reasonable argument to be had on that, but I am concerned that this power will be effectively unfettered, which is what the Bill says at the moment, in the hands of the Home Secretary.

In common with my hon. and learned Friend the Member for Harborough and indeed others who have spoken, I shall listen very closely to what the Minister has to say. In my view, reform is necessary to bring about, ideally, judicial decision rather than judicial oversight. I would prefer this power to be one for the courts full stop—with all the proper appeal procedures that go with it. Judicial review is not good enough: it is too restrictive, too procedural and insufficiently material. My preference is for a judicial decision, but in its absence, for a close and unfettered judicial oversight. I say to my honourable and old friend the Minister that I hope he will be able to put the conscience of the House at rest today with his proposals. If not, I fear I shall have to support the Opposition in a number of their amendments and new clauses in the group.

--- Later in debate ---

[James Brokenshire]

I promise that I will come back to my hon. Friend’s points, but I would like to get to the Opposition Front-Bench amendments. These amendments would require the Secretary of State to apply for permission from the courts before imposing a temporary exclusion order. The mechanism provided for in these amendments is almost identical to that in the TPIMs Act. As the Home Secretary stated in Committee, as the Minister with responsibility for national security it is right that she, not the courts, imposes an order of this kind. This is a discretionary power which will be used only in a limited number of cases where it will have the greatest impact.

Several Members have shared their views on the matter of oversight of this measure. I think a distinction is being drawn, and I will come on to the other amendments tabled in the group. It must be clear that, with responsibility for all other national security and counter-terrorism matters, it is the Secretary of State who is best placed to make an informed judgment about whether a temporary exclusion order is appropriate in each case, taking into consideration the wider context of the terrorist threat that we face. Indeed, as my right hon. Friend the Home Secretary outlined in Committee,

“to vest the power to impose one of these orders in the Secretary of State without first requiring an application to the courts is in line with the comparable use of the royal prerogative to cancel the passport of a British citizen.”—[Official Report, 15 December 2014; Vol. 589, c. 1208.]

We must also consider in this context the level of interference with an individual’s rights as a result of the power, and I reiterate that a temporary exclusion order does not take away the right of an individual to return to the UK. The in-country elements that might be imposed on an individual as part of it are much less restrictive than those available under TPIMs, and for this reason do not require the same level of review. That is the approach we have taken.

[Sir Edward Garnier]

What the Minister has just said seems to support the suggestions made by me and others that this is not a temporary exclusion order. It is not an exclusion order at all; rather, it is a managed return order. If we get the semantics right, a lot of the other stuff fits better into place.

[James Brokenshire]

I hear the point my hon. and learned Friend makes, and the issue came up when we considered this in Committee, but I think it is right to describe it as a temporary exclusion order because although it clearly facilitates return—it manages return; it manages the control of an individual once they have returned to the UK and consent has been granted—it is exclusionary in its nature during the period prior to return. It seeks to prevent someone from returning without that permission being granted, because there is that other aspect: if someone does seek to return to the UK when they are subject to one of these temporary exclusion orders, it is potentially a criminal offence unless they can show due justification as set out in the Bill. I appreciate that my hon. and learned Friend would like to describe this in a particular fashion, but the focus is on the substance of it, and I hope he will understand the approach we are seeking to take, and how this is intended to operate in practice.

The Bill as currently framed would allow judicial review to be brought. That has been used by people to challenge decisions of the Secretary of State in other contexts from abroad. We frequently receive challenges of this nature from individuals abroad in relation to the use of other powers. It is important to recognise that.

Amendments 18 to 20, tabled by the hon. Member for Walsall North (Mr Winnick), go even further than the amendments tabled by the Opposition Front Bench, and would give the courts the power to impose a TEO following an application from the Secretary of State. The Government do not consider these amendments to be appropriate for the reasons I have outlined. I highlight to the House that requiring the Secretary of State to apply to the courts before a TEO can be made could create undue delay and decrease the operational value of the power. It is sometimes important that we are able to act quickly to obtain the maximum benefit from the operation of the powers, to meet the goal of keeping the British public safe from terrorism.

The Government are committed to the appropriate and proportionate use of the temporary exclusion power, but I note the views of David Anderson, the independent reviewer of counter-terrorism legislation. I have a great deal of respect for him and the contributions he has made on a range of matters, including the issue of judicial oversight of the process of granting a temporary exclusion order. Although this issue arises at a late stage in the Bill’s passage through this House, it is important, as has been reflected in many of the contributions. The House has not had the chance properly to consider the Opposition amendments. I hope they will be minded to withdraw them at this stage, and I can assure the House that the Government will look very carefully at the constructive suggestions from David Anderson and return to this issue in the other place.

On a point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), the Government have listened to the arguments made both in Committee and—with, I think, sincerity—in today’s debate, and also to the comments of David Anderson. I can give my hon. Friend the assurance that we will reflect on them and that the next stage when we would be able to respond to them is in the other place. No discourtesy is intended. Rather, we want to get this right and to reflect on the views that have been put forward. That is why I judge that this is the most appropriate way of addressing the issues highlighted today.

Counter-Terrorism and Security Bill

Lord Garnier Excerpts

Tuesday 2nd December 2014 Commons Chamber

[Yvette Cooper]

Again, my hon. Friend raises important questions. The independent reviewer said that the policy was an announcement in search of a policy. It started with an announcement by the Prime Minister at a press conference. To be fair to the Home Office, it probably worked hard to try to turn it into some kind of sensible measure that might achieve something as part of the Government’s counter-terror policy but that could still have the label “temporary exclusion order” attached to it in order to keep the Prime Minister happy. The House needs to understand exactly what the Home Secretary’s intention now is. This is not a hugely responsible way to make counter-terror policy or for us all to be able to understand whether it gets the balance right between the powers and measures that are needed and the safeguards that are needed as well.

The Home Secretary has described this as a policy to manage return. The intention behind that is sensible, requiring people to co-operate with the police and security agencies and to attend Channel interviews if they have been involved with ISIL or have been in the region. That is important, but there are some practical questions about how the policy will work—first about co-operation with other countries, secondly about bureaucracy in the process, and thirdly about the safeguards and the judicial oversight.

What happens if a country does not want to co-operate? Have countries such as Turkey said that they will co-operate? Will they immediately deport people? Will they detain people at the airport? How will those orders be served and what will the response be?

[Sir Edward Garnier (Harborough) (Con)]

What are the right hon. Lady’s suggestions, therefore?

[Yvette Cooper]

There are some changes that could be made and we will table amendments to that effect, but we need to know from the Home Secretary what discussions have taken place with other countries. It is very hard for anybody in the House to propose appropriate amendments without knowing what discussions have taken place and what other countries intend to do in response. Will the measure work because other countries will co-operate, or will it struggle because other countries have said they will not co-operate?

[Sir Edward Garnier]

rose—

[Yvette Cooper]

I will give way to the hon. and learned Gentleman if he can tell me whether Turkey, for example, has said that it will co-operate.

[Sir Edward Garnier]

It may well be that the right hon. Lady is making a good argument, but I cannot judge that until she tells me what her position is.

--- Later in debate ---

[Sir Menzies Campbell (North East Fife) (LD)]

My right hon. Friend the Home Secretary opened the debate by referring to the nature of the threat, as did my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) in his contribution. The truth is that in some quarters there is a continual effort to suggest that the characterisation of the threat is in some way designed for political purposes. Both my right hon. Friend the Home Secretary and my right hon. and learned Friend have been closer to the centre of the ring of secrecy than I ever have, although we on the Intelligence and Security Committee do acquire a degree of information that is not public. It is important that people understand that what we are facing is unprecedented, and that in such conditions, in deciding where the balance rests between security and privacy, it may be felt necessary to tilt the balance in a direction other than that in which one would normally wish to tilt it.

May I make one preliminary point? I happened to be at St Andrews university yesterday conferring degrees on grateful students, and in the course of that it became clear to me that there is some anxiety among the university authorities about how they would properly implement the obligations that may be placed upon them. I therefore agree with the shadow Home Secretary that my right hon. Friend the Home Secretary’s guidance in this matter is going to be of enormous importance. I am sure it will be as well drawn as possible, but the sooner that guidance is available, perhaps even for consultation, the better.

In my intervention on my right hon. Friend the Home Secretary, I made it clear that I am still not yet persuaded about the legality of the temporary exclusion order. It is helpful to look briefly at the conditions that would apply to someone against whom such an order was pronounced. They would be required not to return to the United Kingdom unless one of two conditions was satisfied: either the Secretary of State has issued a permit, or the individual has been deported to the United Kingdom. Some concern has been expressed about the fact that it is entirely within the power of my right hon. Friend the Home Secretary, or indeed her successors, to apply the terms of such a permit. We are entitled to assume that they will be reasonable, but they may not be reasonable in the mind of the person against whom they are directed.

So far, it has been perfectly clear from the contributions that have been made that everyone accepts that the exclusion of a British-born national from the United Kingdom is contrary to both law and practice. The right hon. and learned Member for Beaconsfield was eloquent in his description of what the common law amounted to. Is it not the case that the effect of exclusion is to remove the right of statehood to return, even if only temporarily, if the individual accepts the terms of a permit? If an individual does not accept the terms of a permit—subject to the fact that the orders have to be renewed at two-yearly intervals—the individual may, in effect, be unable to return in perpetuity to the United Kingdom, of which he or she is a national.

The Prime Minister’s original statement on 1 September suggested that some kind of blanket ban on return could be effected, and my right hon. and learned Friend the Member for Beaconsfield and I were both at pains to say that we doubted the legality of that. I understand that the temporary exclusion order is designed to bring within the sphere of legality the provision that the Government consider to be appropriate. However, I maintain my reservations for this reason: if the right to return is a matter of such principle, it can be neither capable of modification nor subject to conditionality. We are told that we are dealing with managed return. If it is managed return, why is it described in the Bill as a temporary exclusion order? The sense is turned right around by the description in the Bill, notwithstanding the explanation that my right hon. Friend the Home Secretary has given.

[Sir Edward Garnier]

I may have misunderstood the point that the right hon. and learned Gentleman is making, and I hope that he will forgive me if I have done so. If the orders were to be called managed return orders, but the same procedures applied, would that make any difference? I am not sure that it would.

[Sir Menzies Campbell]

No, it certainly would not. I think that that points up the fact that perhaps the issue was to find a description that, as has been suggested, might easily fit a headline, rather than the substance of the proposal. I see heads shaking on the Treasury Bench, but it would not be the first time that a definition created for easy understanding by the public and the press did not accurately reflect the precise terms of the legislation.

One difficulty is that the Government, although they were no doubt informed by the advice of Law Officers, have none the less produced something that on any view innovates against the principle of the right of return. I respectfully say that if that principle is as inviolate as has been suggested, any such innovation must be contrary to law and contrary to practice. In that, I differ from my right hon. and learned Friend the Member for Beaconsfield but, as was pointed out to me on my first day as a law student, lawyers are well paid for being wrong 50% of the time. There are genuine differences of emphasis and understanding. The one thing we can be most certain about, however, is that this matter will be tested in the courts and, no doubt, in the Supreme Court in due course.

Business of the House (Today)

Lord Garnier Excerpts

Monday 10th November 2014 Commons Chamber

[Mr David Hanson (Delyn) (Lab)]

It looks like it, Mr Speaker.

[Sir Edward Garnier (Harborough) (Con)]

On a point of order, Mr Speaker. I am very grateful to you for the suggestion that you have just made. Would it not be even more convenient to the House if the Home Secretary did that now? We could then curtail this debate, and get on with it.

Modern Slavery Bill

Lord Garnier Excerpts

Tuesday 4th November 2014 Commons Chamber

Therefore, we support the principle of amendment 138 tabled by the hon. Member for Foyle (Mark Durkan), which seeks to clarify that children can be trafficked without being compelled—something that is recognised in clause 2, but not in clause 41. Labour supported amendments to this end in Committee and does so again here. The drafting of amendment 138 is slightly broader than we think is appropriate, and we do not want to exempt children necessarily from either the reasonable person test or schedule 3. But the principle that children should be able to rely on the defence without proving compulsion is one we support and will seek to address in the other place.

[Sir Edward Garnier (Harborough) (Con)]

The Modern Slavery Bill recognises our obligations under article 4 of the European convention on human rights and the 2005 European convention on action against trafficking of human beings, both of which will have informed section 71 of the Coroners and Justice Act 2009, which made it an offence to hold a person in slavery or servitude or to require them to perform forced or compulsory labour.

This Bill will replace section 71 of the 2009 Act but I believe there is a further and somewhat different menace that needs our attention. New clause 4 comes close to identifying it, which is why I have put my name to it. I am not sure that I can follow the hon. Member for Kingston upon Hull North (Diana Johnson) into the Lobby if she does force a Division on the new clause, and I suppose I am being somewhat disingenuous as I am using the new clause as a peg to talk about this further and different menace.

I want to urge upon the Government a few thoughts of my own on the subject of exploitation of vulnerable people. We have laws to protect children and those under a mental incapacity through intellectual impairment or disability or the effects of old age. We can prosecute those who take old and frail people's money through fraud and deception, but we leave unprotected adults who may succumb to pressure exerted upon them by others of malevolent intent but whose exploitative activities currently do not come within the criminal law.

I have in mind some young adult women whose experiences have been brought to my attention by their parents and families, some of whom have contacted other right hon. and hon. Members. In essence they have been brainwashed—I use the term unscientifically—or suborned by quack counsellors who have persuaded them to break off all contact with their parents and siblings and to pay them fees for the so-called counselling. Some of these young women are well-off and, I assume, suggestible but all of them for no apparent reason have broken off all contact with their families.

France and Belgium now have laws to criminalise the behaviour of these predatory charlatans—these quacks—who exploit others in a state of emotional or psychological weakness for financial or other gain. It must be assumed that these laws do not conflict with those articles of the ECHR that protect the rights to private and family life, to freedom of expression and to association or religion.

France has made it an offence to abuse the ignorance or state of weakness of a minor or of a person whose particular vulnerability due to age, sickness, infirmity to a psychological or physical disability or to pregnancy is apparent or known to the offender, or to abuse a person in a state of physical or psychological dependency resulting from serious or repeated pressure or from techniques used to affect his judgment in order to induce the minor or other person to act or abstain from acting in any way seriously harmful to him. That is punishable by three years’ imprisonment and a fine of up to €375,000. Where the offence is committed by the legal or de facto manager of a group that carries out activities, the aim or effect of which is to create, maintain or exploit the psychological or physical dependency of those who participate in them, the penalty is increased to five years’ imprisonment and to a fine of €750,000. I hope the House will forgive my somewhat inadequate translation of the French into English. But that is what the law says in France.

I accept that to create a new law as outlined by new clause 4 will not be easy but that is not a good reason not to try if the idea is a sound one. I can see that this short debate is not the best place to do this, but may I set out one way of considering whether any proposed offence will work by looking at the following questions? Is it prosecutable in theory and in practice? Can each of the elements of the offence be proved in a real life example? Does the measure deal with the mischief that is identified, and will it catch no one else? How will it affect partners, husbands, wives, teachers, gurus, salesmen, priests and employers, all of whom are likely to have power and influence? Will it allow the mentally capable who decide to give their fortunes away and leave their families to do so? Will it make sufficiently clear what is criminal behaviour and what is not? Will it comply with the European convention on human rights? What effect will it have on religious freedom or freedom of expression or association? That is unquestionably where we shall encounter the greatest controversy, because I suspect that it will not be enough to say that the measure does not outlaw any particular doctrine. If it is used to curtail a religious practice, freedom of religion will clearly be affected.

I have attempted to break the potential offence into a number of component parts or elements so that we can—or, I hope, the Home Office can—better construct the offence that is proposed in the new clause. I wish to criminalise behaviour that is characterised by four factors. The first is persistent or repeated pressure on a person. We shall need to be more specific about what constitutes pressure, and about the techniques employed. We shall also need to consider such questions as whether someone has a pre-existing weakness that can be exploited, or is of ordinary firmness but then becomes enfeebled or vulnerable by virtue of the exploitative pressure. The French law which I mentioned earlier specifies two offences: fraudulently taking advantage of someone who is already weak, and pressurising someone who thereby becomes weak.

--- Later in debate ---

[Mrs May]

I say to the hon. Lady, who was, I believe, a member of the Bill Committee and has obviously been working on this with others, that we looked at the issue of child exploitation and took a lot of advice on it. The worry was that if it were referenced in the Bill in the way suggested, that could lead to certain actions and activities falling within the description of child exploitation that were never intended to be part of the Bill. In short, I am afraid that the law of unintended consequences would have kicked in and a disbenefit would have resulted from having that aspect in the Bill.

However, as the hon. Lady knows, we have brought together various offences and made some changes to them in order to clarify some of the issues. There has been genuine debate, in Committee and throughout the stages in this Chamber, on the various issues in the Bill, and I think it is, in a number of aspects, a better Bill as a result. We have responded on the issue of supply chains. We have added the new provision on the statutory defence for victims of modern slavery who are compelled to commit crimes. That includes substantial safeguards against abuse but would not apply to a number of serious offences—mainly violent and sexual offences, as set out in the Bill.

The Bill extends to all modern slavery victims existing provisions that help victims of trafficking to gain access to special measures in court. I hope that that will give victims the confidence to come forward and give evidence.

[Sir Edward Garnier]

Will my right hon. Friend take time over the next few days to have a look at the record of this afternoon’s debates? I spoke about exploitation by brainwashing. Although that is not yet in the Bill, I hope that at some stage she and her team will consider the inclusion of some sort of offence along those lines. Will she also take this opportunity to mention Mr Anthony Steen, our former colleague, whose work outside Parliament has done a great deal to push this agenda forward?

[Mrs May]

I thank my hon. and learned Friend. I recognise that we were not able to respond to the specific points that he raised, and my hon. Friend the Under-Secretary or I will write to him about those.

I am indeed happy to pay tribute to the work that has been done by Anthony Steen, who, for a period of time, was my special envoy and produced a number of reports. He went to a number of countries to look at how they were dealing with this issue, and he was able to bring that experience back and help to inform us in dealing with the Bill.

This Bill will stand alongside our wider programme of work to tackle modern slavery nationally and internationally. It is an important step, but if it is to be implemented effectively we need concerted effort from all those involved. That is why we will publish a comprehensive strategy to tackle modern slavery that will complement the legislative framework that we are putting in place.