Modern Slavery (Victim Support) Bill [HL]

Lord Kennedy of Southwark Excerpts

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

[Lord Kennedy of Southwark (Lab)]

My Lords, as other noble Lords have done, I congratulate the noble Lord, Lord McColl of Dulwich, on bringing his Bill forward and on securing such an early spot in the ballot for Private Members’ Bills. That certainly bodes well for the future. It is a good Bill. As we have heard from the excellent speeches today, there is considerable support across the House for it to become law, and I am delighted that that is the case. Every single speaker from every Bench today has spoken in support of it.

Like my noble friend Lady Thornton, I am a Labour and Co-operative Party Member of your Lordships’ House. The Co-operative Party and the Co-operative Group are fully supportive of the Bill and are ready to give the noble Lord, Lord McColl, any assistance they can in order to secure this legislation. A swift passage through this noble House will help the Bill enormously on its way to the statute book.

As we have already heard this afternoon, the Modern Slavery Act 2015 is an excellent piece of legislation. When she was Home Secretary, the Prime Minister brought the legislation into law. It has been welcomed in all quarters, and rightly so. The draft Bill, the Joint Committee and the consensual approach by the Government to the parliamentary proceedings were enormously helpful in securing that legislation. Having said that, the significant omission in the legislation is its response to victims, which my noble friend Lord Anderson of Swansea referred to.

The noble Lord, Lord McColl, was right when he told the House that the needs of victims must be at the forefront of efforts and we must work to restore the dignity, health and opportunities that abusers have taken from the victims. The noble Baroness, Lady Bottomley, also referred to the need to develop a pathway for abused people to move from being victims into recovery. The noble Baroness, Lady Newlove, made a powerful case in support of victims, as she always does in this House. The noble Baroness, Lady Stroud, again spoke of the need to have a framework to help the move from victim to survivor.

In both Northern Ireland and Scotland, legislation passed at Stormont and Holyrood means that help and support to victims is provided during a reflection and recovery period, so the legislation in both Northern Ireland and Scotland is superior at least in that respect in comparison with what applies in England and Wales. The noble Lord, Lord Morrow, who is no longer in his place, spoke about the Bill that he took through the Northern Ireland Assembly and how that Act provides for victims’ care. I support his call for the legislation in England and Wales to be updated. The noble Lord, Lord Bew, also made that point in his contribution. The Bill corrects that and is very welcome. It brings England and Wales into line with best practice and delivers the equality of access that the noble Lord, Lord McColl of Dulwich, referred to in his contribution.

The Bill will guarantee all confirmed victims of modern slavery a minimum recovery period with casework support. As we have heard in this debate, at the moment, once a victim has been confirmed by the competent authority, government-funded specialist support quickly ends. That position is unrealistic and potentially very damaging for the victims. Vulnerable people are left at risk of destitution or the nightmare of returning to the hands of the traffickers and being subjected to horrendous abuse in a vicious circle.

The Human Trafficking Foundation, in its excellent briefing, highlighted how the existing provisions are failing victims in legal cases where individuals have been found by the UK authorities to have been trafficked and were co-operating with the police but were then left destitute. There is also a case referred to by the noble Lord, Lord Morrow, where, in November 2016, Bristol City Council accepted that local authorities in England and Wales had a responsibility to provide welfare support to victims or would be in breach of their obligations under the European Convention on Human Rights and the Convention on Action Against Trafficking and/or the EU anti-trafficking directive. The noble Lord, Lord McColl, referred to that when introducing the Bill. This came about after a trafficking victim brought legal action because she was only able to provide for herself by engaging in prostitution.

We have further heard about the findings of the Work and Pensions Committee’s inquiry into modern slavery, which was published earlier this year and is critical of the lack of support for victims. The committee recommended that all confirmed victims of modern slavery be given at least one year’s leave to remain with recourse to benefits and services. The committee was also very clear that it found no evidence that granting 12 months’ discretionary leave would create any sort of pull factor. It would be fair to say that it is just not plausible to believe that it would.

The noble and right reverend Lord, Lord Carey of Clifton, spoke of the need for individuals to receive personalised support as they begin the process of recovery. The noble Baroness, Lady Cox, also made an important point about the risk of retrafficking and how important the 12 months’ support is.

The Independent Anti-slavery Commissioner Kevin Hyland, who was mentioned many times in the debate, has also called for more support for victims and has highlighted the fact that the present system is not serving them well. If it is not serving these victims, that is a major failing of our present legislation and must be rectified. When you consider the horrendous abuse and threats that the victims of modern slavery have endured, and the risk of threats and violence to them and their families, it takes great courage to come forward to the authorities. They put themselves at risk of further suffering and not being properly supported.

The right reverend Prelate the Bishop of Derby rightly drew the attention of the House to the evidence-based policy that underpins the Bill following the work of the anti-slavery commissioner, the Work and Pensions Select Committee and those who work in the charity sector on behalf of victims.

The noble Lord, Lord Shinkwin, stressed the need to complete this unfinished business and properly support victims. I fully support him in that call.

The Bill would ensure that victims, when identified, would have guaranteed access to front-line specialist support that includes any necessary medical treatment, safe accommodation and further long-term support to take the victim through the next stage of the recovery process where understandably very serious and complex needs can be addressed.

I particularly want to pay tribute to the work of the Co-operative Group in helping victims through its Bright Future initiative. Along with other charities, the Co-op is supporting individuals who have been granted special leave under the present system by providing work placements in its businesses and helping to equip people with the skills they need. As the noble Baroness, Lady Bottomley, said in her contribution, the Co-op is an excellent example of what a good employer should be doing.

While I am on the subject, I commend the Co-operative Group on how it has worked to prepare its statement on modern slavery and the work it has done to ensure that its supply chains are free of this evil. I am proud to have been a member of the Co-op for 40 years, which is as long as I have been a member of the Labour Party. It has set an example of best practice for business and all should be aspiring to it.

The benefits of granting an automatic right to leave would, as I mentioned earlier, help with the long-term recovery programme and rehabilitation programme and would also prevent retrafficking. It also would further strengthen the original Modern Slavery Act and empower victims to co-operate fully with police investigations and help to secure convictions of the people involved in this evil crime. Victimless prosecutions are possible, but the testimony of victims can provide compelling evidence to put before a jury in order to help secure a conviction, as the noble Lord, Lord McColl of Dulwich, told us, and as was referred to by the noble Baroness, Lady Redfern. There is the further argument that the automatic grant of leave would free up valuable resources to be used in other ways to deal with this horrendous crime.

My noble friend Lord Prescott referred to the international framework and how that affects modern slavery and the challenges that we are all seeking to combat today.

Every Bill before your Lordships’ House can of course be improved by amendment, and I have moved many amendments here. It is also widely accepted that Private Members’ Bills have an honourable tradition of dealing with issues that have widespread support but perhaps not always the support of the Government. They can also be narrow in their scope because they deal with particular issues. The process of going through Parliament is a precarious one for Private Members’ Bills without the active support of the Government, so I hope that amendments are tabled only if there is no other way of seeking changes; namely, that they cannot be delivered through regulation or another mechanism. The last thing anyone would want is for this Bill not to become law because it had been dashed on the rocks and lost through amendments in Committee or on Report. As my noble friend Lady Thornton said, piecemeal amendments would cause problems. People should think very carefully before they seek to move amendments to the Bill.

This has been an excellent debate on a truly important Bill that will strengthen an otherwise excellent Modern Slavery Act. I hope that when the noble Baroness, Lady Williams of Trafford, responds to this debate imminently, she will be able to indicate that the Government are supportive of its aim and will give it their wholehearted support, and if necessary give it government time to secure it. As has everyone else, I thank the noble Lord, Lord McColl, for his campaigning, his tenacity, his compassion and his defence of the victims of this truly horrendous crime, and his steely determination to get this Bill on to the statute book.

Brexit: UK-EU Movement of People (EUC Report)

Lord Kennedy of Southwark Excerpts

Monday 17th July 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, like others, I start by thanking the noble Baroness, Lady Prashar, and her committee for their excellent report, which was published on 17 March this year and debated in your Lordships’ House today. It is disappointing that, again, we have had no response to the report from the Government. This has become something of a regular occurrence and is most regrettable. No doubt the Minister will apologise for this failing on behalf of the Government when she replies to the debate shortly. I know that her apology will be sincere. I have great respect for her, but she really must impress upon her colleagues in government that not responding to these reports is disrespectful—in this case, to the noble Baroness, Lady Prashar, to the committee and to the whole House. The Government really must sharpen up their act here.

The noble Lord, Lord Green of Deddington, thinks that the report is a missed opportunity. I do not agree with him in that respect. I think the report highlights key concerns and poses key questions for the Government, although, again, the lack of government response is remiss and would have helped our debate here today.

No one can doubt that we are in a tricky situation at the moment. The general approach taken by the Government to Brexit is at best puzzling. It could also be described as mean-spirited and it certainly does not put jobs and the economy first. We seem to be approaching the negotiation with a kind of scorched-earth policy: everything concerning the EU must be thrown out. My noble friend Lord Judd was right to say that we are moving forward on the basis of an amateur intuition, and that is just not good enough.

The Government seem more concerned with the internal troubles of the Conservative Party, with various Cabinet Ministers briefing against each other. You have only to look at today’s newspapers to see the shambles the Government are in: Philip Hammond complaining about being briefed against and being outed for his ridiculous comments; Boris Johnson and David Davis fighting over who will succeed the Prime Minister, who has been fatally wounded by the appalling general election she ran—it is a matter of when she steps down in this Parliament, not if; and I am sure Michael Gove is in there somewhere, rummaging around. This is not a great advert for the country or the best way for us to prepare. In Brussels, the European Commission and every capital city and country in the European Union, there will be no doubt in anyone’s mind—or in any briefing written for the Ministers of other nations—about the mess we are in.

This excellent report looks at one of the key pledges of the Government—to control the number of people who come to Britain from the European Union—and what that can mean in practice. The noble and right reverend Lord, Lord Eames, spoke about the particular issues faced by people living in Northern Ireland, which will share the only land border with the European Union. Making sure that people’s basic needs are protected is important, and it is essential that reassurance is given to people who live in the border areas. I have many friends who live on both sides of the border, and my parents and many members of my family live in the Republic. I understand the issues the noble and right reverend Lord raises.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred to the ECJ and the Government’s current take on it, which in the end I am sure will prove to be unsustainable in seeking agreement. He is right that this is an absurd red-line issue.

The free movement of people is one of the four freedoms that underpin the single market; the others being, of course, the free movement of goods, services and capital. As we have heard previously in your Lordships’ House, the Maastricht treaty introduced the concept of EU citizenship and the 2004 citizens’ rights directive codified various rights for citizens, which have been transposed into UK law. The Government have made it clear that they are going to put an end to the free movement of people and will not be seeking membership of the single market; instead, they will seek access through a free trade agreement. Membership of the EEA, or the arrangement Switzerland has, involves accepting the free movement of people in return for broad-based preferential access to the single market. The more recent EU-Canada agreement does not include the free movement of people but provides for much more limited tariff-free access to the single market.

Immigration to the UK comes from the EU and from non-EU countries, and immigration from non-EU countries has generally been higher than from EU countries. Those arriving from EU countries have generally come to work, with 72% of people arriving in the UK stating that as their reason. The exact opposite is the case in respect of UK citizens leaving the UK, with a much larger proportion nearing retirement or having retired already. The noble Lord, Lord Kirkhope of Harrogate, made an important point about why people immigrate and what a wide term “immigration” is. He is right that lots of work has taken place to integrate people and that this country has a proud record as a safe haven. I agree with his comments about the International Passenger Survey, which the noble Lord, Lord Bilimoria, among others, also referred to.

The noble Baroness, Lady Jones of Moulsecoomb, was right to say that we live in a kind and considerate country. I could not agree with her more when she said that if you go into hospital you are more likely to be treated by an immigrant than be in the queue with one. I am the eldest son of immigrants: my parents came from Ireland to make a life for themselves. They worked their whole working life, paid their taxes and made a positive contribution. My mum was a nurse in the NHS for many years. The noble Lord, Lord Oates, was right to point out that the Conservative Party had made a pledge on immigration that had been very damaging and it had never sought to champion the positives that immigrants can bring to the UK.

The noble Earl, Lord Clancarty, looked at the spontaneity of free movement and rightly highlighted the issues that Brexit will bring to the creative industries. I fully support the campaign by the Musicians’ Union to highlight the problems faced by musicians working for short periods needing quickly to find work moving round the European Union. The industry is worth billions and billions of pounds to the UK economy and cannot operate effectively if their right to move freely is lost. We have some of the most talented people in the world working in the creative industries, and they need the support of the Government to protect their ability to move and work to make a living for themselves, and contribute to our economy.

The noble Lord, Lord Bilimoria, referred to the desire of the Government to reduce net migration and the disconnect between immigrants coming here to work and people leaving the UK to retire. He also made valid points about the International Passenger Survey. The report highlighted the problems there are with data, and this is not a good place to be. Policy must be evidenced based and, if the evidence is under question or not available, that does not provide Ministers and other policymakers the solid evidence base they need to make decisions.

My noble friend Lady Massey of Darwen highlighted how little consideration has been given to children when Brexit has been discussed. Her contribution was a timely reminder of how much work needs to be done in this area.

The report also highlighted the problems with different measures. We have discussed the problem with UN-recommended definitions, and I recall debates in this House where it has been suggested that other measures should be used alongside the UN definition in respect of counting students. Whatever decisions are made in respect of immigration from the EU, jobs and the needs of business, industry and the economy must be at the forefront of government policy. The Government have said that they want to protect the entitlements that UK nationals currently enjoy as a result of EU free movement rules. That is a welcome aim, which I support, but, as the committee highlighted, how realistic it is will depend on what the UK proposes, and we are all well aware that the proposals made by the UK Government have not received a warm welcome. It could have been so different, as many of us have said. A generous statement right at the start could have got the negotiations off to a much better start, but the Government took a different view and we are living with that decision.

The report highlights that the UK and EU may find themselves negotiating which elements of full integration they want to get out of the single market, which the noble Lord, Lord Bilimoria, referred to. Again, that seems to be an absurd position. It is possible that the UK could find itself in the same position in respect of free movement of people. The worst situation would be to end up with UK nationals being treated as third-country nationals in EU countries, and vice versa. The noble Baroness, Lady Janke, referred to those points in her contribution. I hope that, as the report highlights, we get new reciprocal and preferential arrangements for EU-UK migration, although, as the report also says, this will not be easy. There is some question as to whether it would be in scope. There could be a real risk of UK citizens becoming third-country nationals for the purposes of EU law and the domestic immigration rules of EU member states, once the UK leaves the EU. This is a matter of huge concern, in particular to UK nationals living elsewhere in the EU. I hope that the Minister will be able to respond to that specific point and address those concerns when she speaks shortly.

The report also focuses on the fact that, with the link between free movement of people and the single market, arrangements for future migration and a free trade agreement could require much longer than the two years provided for as part of the Article 50 negotiations, so transitional arrangements may be needed while these negotiations continue. Can the Minister comment on the attitude of the British Government to transitional arrangements?

The free movement of persons will of course end when we leave the European Union and any agreement will set out the arrangements for people from the EU wanting to come to the UK and for those UK citizens wanting to move to a country in the European Union. As I highlighted earlier, immigration to the UK from the EU is primarily for work. Employer organisations are understandably worried as to the effect this will have on business and their ability to bring the workers who are needed. The noble Lord, Lord Trees, highlighted the problems regarding the challenges Brexit poses to the veterinary profession, and to other science and healthcare professions. He made the point well in respect of Brexit further exposing the risk and the crisis that is looming large. The noble Earl, Lord Kinnoull, made an important point about the need for frictionless movement. He referred to how the employer organisations were fundamentally against any sort of system that would increase the paperwork—the pages and forms to be filled in—and how unattractive that could be for everyone involved.

Like other noble Lords, the noble Lord, Lord Stunell, referred to high and low-skilled employment and the fact that pay levels are no indicator of skill levels. I agree with him that the nursing profession is a highly skilled profession, which we all have need of from time to time. However, it perhaps does not command the highest salaries.

The report highlights that the Government may be tempted to introduce a work permit scheme, with numerous exemptions for seasonal workers and other categories. This would fail to deliver a meaningful reduction in immigration while proving to be onerous and costly for employers, the workers and the enforcement agencies, as we have heard from other noble Lords. I agree very much with the committee: the Government must not close off options for themselves as negotiations proceed, while there could be many benefits to the UK in offering preferential treatment to EU nationals.

The report also presents some challenges to the Government and their thinking in respect of migrant labour from the EU. Perhaps the Minister could address the specific question of preferential treatment for high-skilled migration in relation to low-skilled migration, as there does not appear to have been an increase in highly-skilled jobs in the UK.

The committee also questions the link between the availability of migrant labour from the EU and the incentive to train or upgrade the skills of resident workers in the UK. If there is an issue here, should not government have been dealing with this anyway—and by that I mean previous Governments as well as this one—over many decades, through vocational education and training plans and policies? Investing in the skills of the workforce should be a priority for the Government across a range of industries and specialisms. The fact that there are problems here could be one of the issues that led people to vote to leave the European Union last year.

I agree with the committee that reducing EU immigration is unlikely to deal with the problem of low wages. Other factors at play here go beyond any effect of EU nationals coming to work here in the UK; the committee rightly points to that fact. We should look at the self-employed EU migrant worker but also at the deregulation and flexibility of working life generally, and whether we have struck the right balance. The report questions assumptions about UK workers filling jobs vacated by EU migrant workers and challenges the evidence for that assumption.

As I said earlier, these are difficult times for our country, and decisions made by the Government should be on evidence-based policy. Changes to the availability of migrant workers will vary from sector to sector. I see huge concerns in the agriculture industry, for example. I agree very much with the committee’s point that it is important not to endanger the UK economy and that any transition should be phased in over time.

I again thank the noble Baroness, Lady Prashar, for the excellent report she has brought to the attention of the House today. I wish the Government every success in negotiating an exit from the European Union. I fully respect the decision taken, although some of the claims made by the leave campaign were outrageous. Equally, key members of the Cabinet conducting their leadership campaigns and making ridiculous statements do not help us, as we saw with the Foreign Secretary only last week.

In conclusion, I have enormous respect for the noble Lord, Lord Cormack, and always listen carefully to his contributions. I did not know until this debate that he had been chucked off the committee and I was sorry to learn that. It is a shame. He was right to speak about people needing appropriate skills when picking certain crops. I know Lincolnshire very well and lived in the East Midlands for many years, so I agree with him very much on that. I thank the noble Baroness again for her report and look forward to the Minister’s response.

Brexit: Acquired Rights (EUC Report)

Lord Kennedy of Southwark Excerpts

Tuesday 4th July 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, first, as have other noble Lords, I congratulate my noble friend Lady Kennedy of The Shaws and the other members of the European committee on their excellent report. I should make it clear that I wanted the United Kingdom to remain a member of the European Union. That, for me, was the best place for us to increase our prosperity, protect jobs and living standards and maximise our influence in the world, where we increasingly see spheres of influence on a global rather than national basis.

It is disappointing that the Government have not responded to the report. It is not the first time that House reports have been either not responded to before debates or responses have arrived just a day or two before the debate. It is disrespectful to the House, and the Government need to sharpen up their act in this respect.

Having said that, I fully respect that the decision of the UK was to leave the European Union, although I sometimes feel that some of the outrageous claims made by the leave campaign need referencing again. We forget “£350 million a week for the NHS if we leave Europe”, when Boris Johnson, Michael Gove and others stood in front of that poster during the leave campaign. Of course, they were given the opportunity to vote for that in the Commons, but they voted against it. We need to keep reminding people what went on in that campaign; some of it was quite outrageous.

We need a Brexit that protects British citizens, jobs and investment. For all the Government’s claims, it has not been going too well so far. Their position can be characterised as to talk big and tough in the UK, threaten walkouts and demand that a trade deal be the first thing on the table, but, when we get to the detail, there is a climb-down and a negotiation set out on the timescale determined by our 27 European partners. The noble Baroness, Lady Bloomfield of Hinton Waldrist, referred to the Government’s offer to the European Union. It is a start, that is for sure, but I suspect that it is far from where we will need to get to for an agreement acceptable to both UK and the European Union.

The Government’s approach so far has been far from sensible in the preparation for and the process of negotiating our exit from the European Union, as the noble Viscount, Lord Waverley, mentioned. He is right to say that we need an equitable agreement to separate, but that this could get out of hand and the Government could be accused of playing poker with people’s lives.

My noble friend’s report considers one of the most important aspects that has arisen from Brexit: what happens to the rights on which so many of us rely when the UK leaves the European Union. The report focuses specifically on the rights of those European Union citizens who have chosen to live here in the UK and those UK citizens who have chosen to live elsewhere in the European Union. In both cases, they are choosing to exercise their right to live and work anywhere in the European Union. The report looks at the issue of acquired rights and whether people will be able to rely on this protection under international law. There is great concern for those European Union citizens living here and British nationals living elsewhere in the European Union that this protection will not be enough, and to ensure proper protection it must be enshrined in the Brexit agreement.

Since the referendum we could have struck a very different note, of course, and straightaway made it clear that the rights of European Union citizens would be protected in full in the UK, as long as a similar guarantee was given to British citizens living elsewhere in the European Union, as the noble Baroness, Lady Smith of Newnham, said. That is not giving away a card or a negotiating point; it would have been a sensible move, acting in good faith with your friends, allies and partners, whom we want to remain our friends, allies and partners after we leave the European Union.

The concept of being a citizen of the European Union was first introduced into EU law by the Maastricht treaty in 1992; the citizens directive codified many of these rights, and it applies to the EEA states as well. All these rights are directly enforceable; they do not need to be granted by a member state. The rights of non-EU nationals in the UK are considerably more restrictive than the rights of EU nationals in the UK, meaning that the loss of EU citizenship would create a major loss of rights. After Brexit, the UK will become a third country for the purpose of EU law. UK nationals in other EU member states will become subject to common EU immigration rules for third-country nationals. I accept that all this depends on the agreement finally reached, which is why we should be on the front foot and positive.

Third-country nationals would have considerably fewer rights and have more restrictions when it comes to living, working and studying in the EU. British citizens may have to satisfy integration rules and apply for EU long-term residency status if resident in a member state for five years. There are concerns from citizens of other member states living here in the UK. This was brought home to me the day after the referendum result. There is a cafe that I often call into for a coffee and a croissant on my way into the Lords, which is run by two French people. They asked me the following morning whether they would be made to go back to France. These are people who have built up a business here; they employ local people and provide a great service to the local community. They play by the rules and make a positive contribution to the economy. They will be fine; they have lived here for many years, but they are one example of people living in uncertainty every day. My noble friend Lord Judd made a similar observation from the village where he lives in Cumbria.

There are thousands of EU nationals in the same uncertain position, and with uncertainty comes loss of confidence and loss of opportunity, and we all lose. My noble friend Lord Judd correctly identified how much uncertainty has been caused for families. I just do not understand how the Government think that that attitude will benefit the UK and its reputation and standing in the world.

The largest group of EU nationals living here include Polish, Romanian and French nationals. We have seen a rise in hate crimes and xenophobic abuse, which is shameful. The UK has a proud reputation as a safe, tolerant country which welcomes people and is a safe haven for people in peril, and on a number of fronts that reputation in recent times has been tarnished. UN statistics estimate that there are 1.2 million UK nationals living elsewhere in the European Union. Concerns have been expressed by UK citizens resident abroad to consular officials through FCO channels, including worries such as whether they will be able to continue living abroad or have to apply for residency. Will their qualifications be recognised? Will they require work permits? These concerns of UK nationals living elsewhere bear a striking similarity to those of EU nationals living in the UK. The noble Duke, the Duke of Somerset, made reference to this; there are huge concerns about the effect that it is having on people’s lives, and I agree very much with the remarks that he made today.

Those are the two groups of people most affected individually by Brexit, and neither is supportive of how the British Government have handled the negotiations so far. I agree very much with the committee when it says the Government have a moral obligation to provide certainty to UK nationals living, studying and working in the European Union. I agree that the most certain way to protect acquired rights is to put them into the agreement. The noble Baroness, Lady Williams of Trafford, could tell the House whether she agrees with that when she responds to this debate, because the protection of these rights by any other means seems fraught with difficulty. Article 70 of the Vienna convention protects acquired rights, but refers to states rather than individuals or companies. The principle of acquired rights in international law relates primarily to property rights. Public or civic rights to vote or reside in a particular state are not enforced under this agreement.

It could be said that the protection of acquired rights can be sought and enforced under the European Convention on Human Rights, as my noble friend Lady Kennedy of The Shaws referred to when moving the Motion. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, was entirely correct when he referred to the “unfair demonisation” of the convention by various individuals and organisations. He is right that the Government are going to have to modify their ideological opposition to the convention. Thankfully, we have not pulled out of the convention—we are still a signatory—and I hope we never do. However, it all gets very messy, complicated and difficult; not effective, not good for individuals, not good for the UK. While any rights safeguarded in the withdrawal agreement should be enforceable, the agreement should freeze the legal situation at the moment of exit, so that all rights are at that point until repealed or altered by Parliament. My noble friend Lady Kennedy of The Shaws referred to that and her point about who is the final arbiter needs answering.

There is still time for the Government to make a more positive offer to our partners in Europe. Whether we are in or out of Europe, in whatever form, Europe will remain our major trading partner in all respects. It is the place our citizens will interact with first, be drawn to and enjoy. For Europe’s citizens, the same is true of this wonderful country, with our culture, history, love of sport, aptitude for business and the generosity of the British people. The country deserves better from the Government as we bring into effect probably the most important decision we have made since the Second World War.

This excellent report, so ably introduced by my noble friend Lady Kennedy of The Shaws, shows the Government what they need to do in respect of acquired rights. They should follows its recommendations; it will go a long way to getting the good deal that we all want as we leave the European Union.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

I want to ask the noble Baroness a similar question. I raised an issue that arose from a letter that the committee received. It involves a family where an Englishman is married to an Italian wife, his wife is an only child and her parents are elderly and in Italy. It is expected that, when one of her parents—the in-laws—dies, the lone in-law is allowed to come here, but it may not be within the next two years. What happens in that situation? Will it be possible for an in-law left alone in another country in Europe to be able to join their daughter or son to live here?

[Lord Kennedy of Southwark]

Can I possibly ask a question and then we can get it all out in one go? The noble Baroness just said that families can apply for settled status. Is applying for settled status a formality, or could it be refused?

Terrorist Attacks

Lord Kennedy of Southwark Excerpts

Thursday 22nd June 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the Minister for repeating the Statement made by the Home Secretary in the other place earlier today. I first pay tribute to the emergency services, the police, the fire brigade, the ambulance service, the doctors, nurses and other staff in our NHS and the other security services which responded with courage, bravery and dedication to duty to preserve life and protect the public. We owe these heroes a great debt of gratitude, and we must never forget that.

I also send my thoughts and prayers and those of the whole House to the victims of these disgusting terrorist atrocities and to their families and friends. Since the Dissolution of the previous Parliament there have been atrocities in the Manchester Arena, at London Bridge and Borough Market and at Finsbury Park mosque. I support the police and the security services in investigating these matters fully and bringing the perpetrators to justice. I was pleased to see the bravery of PC Keith Palmer, who gave his life protecting us in this palace, recognised with a posthumous George Medal and that pensioner Bernard Kenny, who was stabbed trying to help Jo Cox MP when she was murdered in her constituency last June, also received the George Medal in the Queen’s Birthday Honours List announced on Saturday. There were countless other acts of bravery from the police, the other emergency services and members of the public dealing with the recent atrocities. Civilians stood up and stepped in to help those in need, and we are very grateful to them all. They are true examples of the British spirit and show why no terrorist will ever win.

I am not going to trade figures on the number of police officers and other specialists as they are all in the public view. There were more in 2010, and there are fewer in 2017. We welcome the increase in the number of police officers and other specialists to give the law enforcement agencies the staffing, powers and resourcing to do their job effectively, but we need to look carefully at what is being proposed as we must have sufficient resources in place to have people in post to be able to use the full range of powers to full effect. More powers without staffing and other resourcing is not going to be effective and will not provide the reassurance and protection our citizens need.

I very much welcome moves to get the internet companies to block and take down content promoting terrorism. Every effort must be made for further action in this area. It is just not acceptable. Swift action must be taken by these companies to take this content down. In her response, will the Minister refer to the following matters? What will be the role of the Independent Reviewer of Terrorism Legislation before any new measures come before Parliament? Are the Government planning any review of the Prevent strategy? What reassurance is being given to the Muslim community and other faith communities? It has been reported that individuals involved in the Manchester and London Bridge terror attacks were reported to the authorities but were no longer thought to be an immediate threat. Can the Minister confirm that an urgent reassessment of any other individuals in this category is being done and that all intelligence that suggests any sort of activity, no matter who the perpetrators are, is constantly reviewed and assessed? We need to stand up to the terrorists wherever they come from—from Islamist terrorists to far-right extremists with their messages of death, destruction and hate. They are all murderers and vile preachers of hate.

Finally, I suggest to Members that if they have a spare moment they pop down to Borough Market. It is a wonderful part of the London Borough of Southwark and somewhere I have known for most of my life. I am a trustee of the United St Saviour’s Charity, and I declare an interest. It owns a number of the affected properties around Borough Market and has been helping businesses get back on their feet over the past few weeks. Borough Market is a wonderful place and well worth a visit.

[Lord Paddick (LD)]

My Lords, I, too, thank the Minister for repeating the Statement and express the condolences, thoughts and best wishes of those on these Benches to all those affected by these tragedies. I also express our thanks and admiration to the emergency services involved in each of these incidents, particularly the armed officers who had to take the difficult, split-second decision to shoot the suspected perpetrators of the London Bridge/Borough Market attack. Our thoughts should also be with those officers and their families.

I have four questions. Can the Minister confirm that central government funding for the police service is increasing in real terms? What account has been taken of the additional financial pressures on the police service, such as the apprenticeship levy, and the additional operational pressures, such as the public inquiry into covert policing and the post-event investigations into these terrorist incidents? Is it not time to restore community policing, an invaluable source of community intelligence, after a cut of 20,000 police officers and 24,000 police support staff since 2010? Does the Minister agree with the Commissioner of Police for the Metropolis that the Met is struggling because of a lack of resources? We welcome David Anderson’s role in reviewing the handling of recent terror attacks. We welcome the idea of a commission for countering extremism, but we need to understand what that means. We also welcome an independent, evidence-based review of Britain’s counterterrorism strategy, including an independent, evidence-based review of Prevent. Can the Minister give any more detail about the commission and can she confirm that the review will be independent and evidence-based?

Criminal Finances Bill

Lord Kennedy of Southwark Excerpts

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

[Lord Judge (CB)]

I wish to add a few words of my own on purported compliance. I am not quite sure what we are supposed to cover. Obviously, there will be the individual who is potentially made subject to this order who will try his or her best to produce the necessary information. That may not be good enough, in which case the court will allow an adjournment so that a genuine attempt to produce the information can be made. That will then be compliance. On the other hand, some people will obfuscate and deliberately make life difficult to avoid the true facts coming to light. They will say, “That is purported compliance”, but it will not be—it will be a failure. Therefore, the words “purported compliance” simply do not apply and will not help.

[Lord Kennedy of Southwark (Lab)]

My Lords, the noble Lord, Lord Faulks, has raised some very serious issues, expressing the concerns of a number of noble Lords, and he made some of those points at earlier stages. The Government have clearly not satisfied him or many others in the House, and we share their concerns. The noble Baroness, Lady Hamwee, made similar remarks.

The point about “purports to comply” was particularly well made by the noble Lord and others, including the noble and learned Lords, Lord Mackay of Clashfern and Lord Judge. I hope that, in responding, the noble Baroness, Lady Williams of Trafford, will be able to satisfy the noble Lords who have spoken, as well as the rest of the House, that we have got this issue right. We are all very keen to get this legislation on to the statute book as quickly as possible. We certainly support its general aims—it is a good Bill—but the worst thing to do would be to put something on to the statute book that is not very well drafted and would cause more problems or be an aid to people who do not want to comply properly with the orders. This is a very important point and, although we want the Bill to pass quickly, the noble Baroness needs to satisfy the House that we have this measure right.

Immigration Act 2016 (Consequential Amendments) (Biometrics and Legal Aid) Regulations 2017

Lord Kennedy of Southwark Excerpts

Monday 24th April 2017 Lords Chamber

[Lord Campbell-Savours (Lab)]

My Lords, I wish to intervene in a narrow area. As I understand it, Section 141 of the Immigration and Asylum Act 1999 provides a power for “an authorised person” to take fingerprints from an individual in circumstances as set out in that section. One of those circumstances concerns an individual who has been,

“refused leave to enter … but has been temporarily admitted under paragraph 21 of Schedule 2”.

The power is engaged,

“if an immigration officer reasonably suspects”

that the individual might break the conditions of temporary admission relating to residence or reporting. I understand that that group of persons is regarded as high-risk, and that is the justification for taking that action.

However, in the United States of America, under the US-VISIT programme run by the Department of Homeland Security, at least 10 fingerprints are taken. A digital photograph is also taken to log and register facial characteristics. That is done for a group of persons entering the United States who are considered a lesser risk than the group referred to in these regulations. To what extent should we widen the amount of information that is held in the United Kingdom, which is described generally in the regulations as simply fingerprints? The regulations do not describe how many fingerprints are taken but refer merely to fingerprints. Should not the regulations be widened to cover a more comprehensive acquisition of information in the way that I have suggested? Will the Minister give us more information on precisely why we are not going down the more comprehensive American route? Are we absolutely convinced that the amount of data we are collecting is satisfactory and adequate in the circumstances?

[Lord Kennedy of Southwark (Lab)]

My Lords, the regulations before us are not in themselves controversial. As the Minister outlined, they make relatively minor changes in respect of provisions contained in the Immigration Act 2016, the Immigration and Asylum Act 1999 and LASPO. I have read the regulations and the Explanatory Notes and am content that the Government have the required powers. As I said, these are relatively minor changes. No concerns have been raised by the Joint Committee on Statutory Instruments. My noble friend Lord Campbell-Savours raised an interesting point. I look forward to the Minister responding to it. Paragraph 7 in the Explanatory Notes is particularly helpful as it sets out the policy background and why these regulations are needed. Therefore, I will detain the House no longer. I am content with the regulations.

[Baroness Williams of Trafford]

I thank the two noble Lords who have spoken. I say to the noble Lord, Lord Campbell-Savours, that these statutory instruments make consequential amendments to legislation. Legislation is constantly kept under review. As regards widening the scope of the measure, I cannot predict the decisions of a future Government, who may, of course, not be a Conservative Government. However, I am sure that a future Government will consider that measure when keeping legislation under review. At the moment, we have no plans to extend the current practice. Section 141 does not limit the number of digits from which fingerprints may be taken. However, officials who decide to take fingerprints must ensure that their actions are proportionate to the reasons why they are taking them.

Misuse of Drugs Act 1971 (Amendment) Order 2017

Lord Kennedy of Southwark Excerpts

Monday 24th April 2017 Lords Chamber

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

My Lords, the Misuse of Drugs Act 1971 (Amendment) Order 2017 was laid in Parliament on 20 April. I am very grateful to the Advisory Council on the Misuse of Drugs for its very valuable advice. The council’s recommendations have prompted the order before you today.

This order relates to three groups of substances. The first is the synthetic opiate known as U-47700; the second consists of 12 methylphenidate-related new psychoactive substances; and the third is etizolam and 15 additional designer benzodiazepines. The effect of this order is to insert these 29 drugs into Schedule 2 to the 1971 Act. This will make it an offence to possess, produce, import, export, supply, or offer to supply these drugs without a Home Office licence.

U-47700 is a synthetic opiate which was originally developed as a research chemical but has found no legitimate use. It is reportedly 7.5 times more potent than morphine. The order will insert U-47700 into Part 1 of Schedule 2 to the Act as a class A drug, due to its high addiction potential.

On methylphenidate-related new psychoactive substances, the injecting of ethylphenidate, an amphetamine-type stimulant, was considered a public health issue in Edinburgh in 2015. Following ACMD advice, ethylphenidate and six similar substances were placed under a temporary class drug order. This temporary class drug order was relaid in 2016 for a further year, and the ACMD has now advised that these substances, plus an additional five related substances, be controlled under the Act. The order will insert these methylphenidate-related NPS into Part 2 of Schedule 2 to the Act as class B substances.

On etizolam and designer benzodiazepines—saying these things correctly is always a test for a Minister at the Dispatch Box—the abuse of benzodiazepines has been well known, and as such, many of these are controlled under the Act. The ACMD had become aware of increasing reports of the harms caused by designer benzodiazepines—those which are not licensed medicines in the UK but imported specifically for their psychoactive effects. Of particular concern was etizolam, which is related to a number of deaths in Scotland. The order will insert etizolam and the further 15 designer benzodiazepines into Part 3 of Schedule 2 to the Act as class C substances.

Etizolam has been identified by some countries, including Italy, as having some therapeutic benefits, so the Government have asked the ACMD to keep its scheduling under the Misuse of Drugs Regulations 2001 under close review. There are no legitimate or recognised uses of any of the other substances before your Lordships today beyond potential research. For these reasons, my honourable friend the Minister for Vulnerability, Safeguarding and Countering Extremism accepted the advisory council’s advice that these substances should be subject to the order before you today. It is intended that two further related statutory instruments will be made to come into force at the same time as the order to add these substances to the appropriate schedule to the Misuse of Drugs Regulations 2001 and to the Misuse of Drugs (Designation) Order 2001.

This order, if made, will provide enforcement agencies with the requisite powers to restrict the supply and use of these harmful substances in this country. It will also provide a clear message to the public that the Government consider these substances to be a danger to society. I beg to move.

[Lord Kennedy of Southwark (Lab)]

My Lords, I am supportive of the order before us this afternoon. I will not be attempting to pronounce any of the names in it. I have carefully read the order and the Explanatory Memorandum and am content to agree it. The Explanatory Memorandum is very helpful, particularly section 7, which sets out the policy background.

It is worth noting that the drugs are being permanently listed as controlled substances in each of the classifications today—namely, class A, class B and class C—on the advice of the independent experts who make up the Advisory Council on the Misuse of Drugs. This is being done following a review they carried out, and they are the experts in these matters. It is also worth noting—again, this is in section 7—that in each of these classifications these drugs have led to the loss of life. I suspect that those affected are more likely to be younger people, and of course that is devastating for their families. Losing anyone at any age is terrible, but in circumstances where that could have been avoided it is all the more heartbreaking.

In conclusion, I am content to approve the order and, with the other measures that are in force with the police, the NHS and the community drug projects, I hope that it will go some way towards ensuring that the people responsible for bringing these substances on to the street are caught and punished, and that their operations are shut down. Then the people taking these substances can get the help they need to get off them and deal with the problems they have in their lives. I am very happy to support the order.

[The Earl of Sandwich (CB)]

My Lords, I have to declare an interest in that my son suffered from benzodiazepines for several years and has only recently, mercifully, recovered from them. Therefore, I have been very well aware of this word.

I am delighted to hear the Minister say that the department is much more aware of the harmful effects of these legally prescribed drugs. However, is she also aware that a proposal has been put forward to the department on providing the minimum help of a helpline for people who are afflicted? This has been put on the table and, if she is not aware of it, she might be able to write to me about it.

[Baroness Williams of Trafford]

I am most grateful to the noble Earl and the noble Lord for their very constructive comments, and I am very glad to hear that the noble Earl’s son is now in recovery. On his point about a helpline, a number of tools are certainly available to people through websites. I am trying to think of the name of the website—

[Lord Kennedy of Southwark]

FRANK.

[Baroness Williams of Trafford]

That is it. FRANK is an aid to guide people—particularly young people—away from drugs and the consequences of their use. Helplines are available. I do not know the answer regarding the one to which the noble Earl referred but I can get him some information.

On that note, I thank noble Lords for their comments.

Criminal Finances Bill

Lord Kennedy of Southwark Excerpts

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

[Lord Leigh of Hurley]

My Lords, I spent quite a lot of time reading the amendment and trying to understand it. I am grateful to the noble Baroness, Lady Hamwee, for explaining it to us. As I understand it, the clause does not require relevant bodies to put these procedures in place; it just mandates the Chancellor to produce some presumably helpful guidelines, which the amendment would then require those relevant bodies to adopt. I think that is the gist of it.

If the amendment is prompted by concerns raised about the guidance the Chancellor will have to offer as a result of the clause, I hope the Minister might consider returning to that issue at subsequent readings as no explanation is given in the clause as to what the guidance will be. It would be very helpful for corporations affected to understand how they can rely on the defence of “reasonable prevention procedures”, so that they can put in place an appropriate strategy to ensure compliance with their new obligations if those are put on them through this amendment, or possibly—as is perhaps my great concern—at a later stage in the Bill or by statutory instrument.

It must be sensible to allow corporations to build on their current policies and procedures already in place under other legislative requirements to show that they have a defence to this offence. If not, the compliance costs would be significant. Even where current policies are acceptable there will still be costs involved in training staff, certification and reporting processes. There is, therefore, clearly a need to ensure that the measures can be implemented in a way that mitigates additional costs as far as possible.

Guidance can help corporations to identify how they can demonstrate that they have followed satisfactory due diligence procedures and have a “reasonable care” defence in the event that one of their associates is discovered to have criminally facilitated tax evasion. However, it must be recognised that every business is different. The importance of the guidance will be enhanced if the legislation explicitly states that the courts should “have regard to” it. This would provide a valuable extra—although not absolute—safeguard for corporations that have relied on the guidance when implementing their procedures, although, of course, it cannot be a safe harbour.

In short, the amendment will be onerous to apply to every relevant body. I therefore speak against it.

[Lord Kennedy of Southwark (Lab)]

My Lords, I support Amendment 162, proposed by the noble Baroness, Lady Hamwee. It would strengthen Clause 44, which is in a part of the Bill concerned with corporate offences of failure to prevent tax evasion. Failure to pay the right levels of tax due as an individual or as a corporate body hurts everyone. Having robust procedures in place to combat these offences is important. Some corporate entities will employ lawyers and accountants to minimise their tax liability, but where that steps over the line into tax evasion we have to be prepared to take swift action.

The clause so far will place a requirement on the Chancellor of the Exchequer to publish and prepare guidance, using the word “must”, which is not something we often see in government Bills—I have always thought parliamentary draftspersons preferred “shall”—but since it uses the word “must”, noble Lords can draw from that that great importance is implied about this guidance on the procedures. The idea is to help relevant bodies. The Bill then moves on and says,

“can put in place to”,

which negates the emphasis in the earlier part of the clause.

The amendment from the noble Baroness would place the right emphasis, saying that relevant bodies “shall have regard to” this important advice prepared by the Treasury and published by the Chancellor. The Government clearly thought it was important that companies should be aware of this advice. I hope they will tell us why they think their wording is sufficient and that that of the noble Baroness is not necessary in this case.

[Baroness Vere of Norbiton (Con)]

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

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

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

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

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

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

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

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

--- Later in debate ---

Moved by

[Lord Kennedy of Southwark]

164: After Clause 47, insert the following new Clause—
“Exclusion of companies from public procurement
The Secretary of State must publish an annual report on the number of companies which have been excluded from tendering for public contracts under the Public Contracts Regulations 2015 or had an existing public contract terminated as a result of being charged with an offence under section 42 or 43 of this Act.”

[Lord Kennedy of Southwark]

My Lords, Amendment 164, proposed by myself and my noble friend Lord Rosser, seeks to add a new clause to Part 3 of the Bill requiring the Secretary of State to publish a report on the number of companies that have been excluded from tendering for public sector contracts, or had an existing contract terminated as a result of being charged with the offence of failing to prevent the facilitation of UK or foreign tax evasion offences. The more light that is shone into the whole area of corporate failure in respect of tax evasion, the better, as this in itself would force companies that are sloppy or that do not follow procedures to take more notice of the provisions, take greater care and be clear that the Government and the tax authorities do not take such matters lightly.

Amendment 165, again in my name and that of my noble friend Lord Rosser, would be, in effect, a supervision order imposed by a court on a company convicted of a serious offence in these matters. The court could appoint a third party, such as an expert or body, to supervise the probation period of companies that co-operate with law enforcement bodies to the extent that they are offered a deferred prosecution agreement. Companies convicted under the Corporate Manslaughter and Corporate Homicide Act 2007 may have an order imposed on them to remedy the management system that allowed the manslaughter to occur. However, there are currently no powers available to a court to impose such an order on companies convicted of non-manslaughter offences which have not co-operated sufficiently with law enforcement agencies for a DPA. The perverse result is that companies that co-operate with law enforcement bodies have greater external scrutiny of their corporate governance programmes than companies that do not co-operate with enforcement agencies. This lack of scrutiny represents a missed opportunity to improve corporate governance among convicted companies, but also a powerful disincentive for companies to co-operate with enforcement authorities.

Corporate probation orders are used in other jurisdictions. The US Sentencing Commission, for instance, has given the courts the power to introduce any probationary condition relating to the nature and circumstances of the entire case when sentencing companies convicted of criminal offences. Introduction of such a power in the UK would add another significant tool to the armoury of courts and prosecutors in dealing with financial crime and ensure that the discrepancy of treatment for companies that co-operate with law enforcement authorities and those that do not is evened out, creating a more level playing field for business.

Amendment 170, in the names of the noble Baronesses, Lady Bowles of Berkhamsted and Lady Kramer, and the right reverend Prelate the Bishop of Oxford, addresses the very real issue that senior executives rarely face any consequences when companies they run engage in criminal activity—a point made numerous times from all sides in Committee. The lack of senior executives being held to account properly is a serious matter of public concern. I look forward to the contribution of the noble Baroness, Lady Bowles, who will shortly be speaking to her amendment, and I beg to move.

[Baroness Bowles of Berkhamsted]

My Lords, I shall indeed speak to Amendment 170 and I thank the noble Lord for his comments on it. This concerns the procedure for disqualification of directors where there has been a criminal conviction of a company, or a deferred prosecution agreement. The amendment seeks to make it possible, following a criminal conviction of a company, for the court to consider whether any directors should be disqualified. This is not seeking to make a criminal conviction against directors—disqualification is a civil procedure—but to put company criminality procedures on a par with that which exists when there is a breach of competition law.

--- Later in debate ---

[Baroness Williams of Trafford]

The noble Baroness foxed me when she asked that question the first time and she is still foxing me. I shall write to her before Report because I really do not know the answer.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords who have spoken in this short debate, and I am pleased that the Minister understands the spirit and intention behind our amendment. The comments of the noble and learned Baroness, Lady Butler-Sloss, and the noble and learned Lord, Lord Judge, are points well made. They have vast legal experience and if I bring the issue back at all on Report, I shall take on board their comments and wise legal advice and draft my amendment accordingly. I certainly thank all noble Lords for their contribution today, and beg leave to withdraw the amendment.

Amendment 164 withdrawn.

--- Later in debate ---

[Baroness Hamwee]

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

[Lord Kennedy of Southwark]

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

[Baroness Vere of Norbiton]

I thank the noble Baroness for her comments and, of course, I will write with further clarification.

Criminal Finances Bill

Lord Kennedy of Southwark Excerpts

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

As a PEP, I was keen to support Amendment 10, in the name of the noble Lord, Lord Sharkey. I also had a chap from the Royal Bank of Scotland come round to see me and ask me what my first salary was in 1982—bizarrely, I remember that it was £4,900—and he spent a lot of time going through records that I had long forgotten about. I am not convinced that there is the protection that the noble Lord, Lord Faulks, specified earlier. One particular concern is that the provision talks about income, not capital. In any event, I am not sure why it should not be absolutely clear-cut that the Government’s intention is not to attack PEPs in this House or in the other place.

[Lord Kennedy of Southwark (Lab)]

My Lords, the Bill was welcomed by all sides of the House at Second Reading. Unexplained wealth orders are a device to give law enforcement agencies powers to require a person suspected of involvement in or association with serious criminality to explain the origin or source of assets which appear disproportionate to their income.

Amendment 1, in the name of the noble Lord, Lord Hodgson of Astley Abbotts, seeks to insert the words, “beyond reasonable doubt” after the word “satisfied”, when requiring a person to comply with an order. This raises an important point, but I am not convinced that introducing this higher test is needed here. It would make it more difficult for law enforcement agencies to get permission to seek the source of the wealth which has led them to suspect that the person’s lawfully obtained income would be insufficient for the purposes of obtaining their assets. I agree with the remarks made about this amendment by the noble Lord, Lord Faulks, who said that the higher evidential test would not be welcome in this regard. I also agree with the comments made by the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Phillips. I also agree with the comments by the noble Lord, Lord Blair of Boughton, on the investigatory role—the test and procedure would be difficult there as well.

Amendments 2 and 7, in the name of the noble Lord, Lord Faulks, give a better definition in relation to a person’s connection to a property, and the Government should reflect carefully on this during the passage of the Bill and possibly bring an amendment forward on Report.

Amendment 5, also in the name of the noble Lord, Lord Faulks, would provide an additional power to require a person to answer questions under oath. Again, that seems a reasonable additional power to take, which could be used at the discretion of the court. I very much take the point that the noble Lord made about the William Hill defence in terms of how one acquires assets and wealth. We need to look at that important point.

On Amendments 8 and 9, I thought that the £100,000 value in respect of a property was about right, that the £50,000 figure proposed by the noble Baroness, Lady Williams of Trafford, was too low, and that the figure proposed by the noble Baroness, Lady Hamwee, was far too high. However, having sought advice from law enforcement agencies, I understand the motivation behind the amendment of the noble Baroness, Lady Williams of Trafford, and I am content that the figure she proposes may well be right.

There is a whole series of government amendments in this group which I am content with, as they seek to prevent a person subject to one of these orders seeking to circumvent it through complicated financial means and transactions.

This has been a very useful debate, with some well-informed contributions that posed a number of questions for the noble Baroness. I am sure that she will reflect on those as we may want to come back to some of those points on Report.

The noble Lord, Lord Leigh of Hurley, made important points about property and the problems associated with it. I think that we shall debate an amendment in the name of the noble Lord, Lord Faulks, in the next group which concerns property.

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

My Lords, I thank all noble Lords who have taken part in this excellent debate. We have had some very good contributions from noble Lords from around the Committee on the significant new powers of the unexplained wealth order. I will do my best to respond to all the points that were made. I apologise in advance if I take some time to do so.

As noble Lords will know, the measures in this Bill are largely focused on serious and organised crime, but it also provides important new powers to tackle terrorist financing. Last week’s horrific attack reminds us all of the very real nature of this threat. I would like to take a moment to pause and think about the families of those who have been killed and those who still lie injured in hospital. I again pay tribute to the men and women of the police and other law enforcement and intelligence agencies who are so committed to keeping us safe—to PC Keith Palmer, but also to his many colleagues who work in Parliament and across the country. We must ensure that they have the powers they need to investigate and disrupt terrorists and terrorist groups. The powers in Part 2 of the Bill, which we will come to later, will do just that.

I return to the amendments in this group on unexplained wealth orders—or UWOs. The UK is a world leader in the fight against global corruption and the UWO is a substantial new power that will assist UK law enforcement agencies to do so. I welcome the continued cross-party support for these measures. I remind noble Lords that a UWO is a court order that requires a person to provide information which shows that they obtained identified property legitimately. If the person provides information in response to a UWO, the enforcement authority can then decide whether to investigate further, take recovery action under POCA or, if they are satisfied, take no further action. If the person does not comply with a UWO, either by not responding or not responding fully to the terms of the order, the property identified in the order is presumed to be recoverable under any subsequent civil recovery proceedings.

There are a number of government amendments in this group and I turn to them first. These are, by and large, technical changes to the provisions to help them function most effectively, but I will highlight a few for the benefit of noble Lords. As regards trusts, we have tabled government Amendments 3, 4, 6, 12, 14, 15, 17, 19, 21, 30 to 32, 36, 38 to 40, 52, 53, 174 and 175. Perhaps the biggest addition to the provisions made by the government amendments are the measures to ensure that a UWO can be served in situations where property of interest is held in trust or involves corporate structures. This, I believe, picks up some of the concerns raised by my noble friend Lord Faulks. The amendments will also allow subsequent UWOs to be obtained on additional individuals such as trustees in complex cases where this is necessary. The amendments are not a silver bullet in cases where trusts and corporate entities are involved. However, they are a significant improvement and will close a potential gap.

UWO thresholds are addressed by government Amendments 8 and 33, which would reduce the threshold for a UWO to be obtained from £100,000 to £50,000. Noble Lords rightly questioned how we settled on the balance. It followed representations from authorities in Scotland—including from the SNP during Commons consideration of the Bill—and Northern Ireland. It reflects the fact that the higher threshold could disadvantage law enforcement agencies in certain parts of the country where financial returns may not be as high or may be spread more evenly across criminal groups, and where property, in particular, has a lower value.

The threshold, however, is still an important safeguard, together with the other qualifying criteria that must be met before a UWO can be made by the court. It remains our view that the orders should be used in the most complex cases, where obtaining evidence has proved difficult, and this will be reflected in the supporting guidance.

The noble Baroness, Lady Hamwee, tabled a related amendment to push the threshold up rather than down. She helped us to reflect on the balance that must be struck in circumscribing the new power. However, based on our consultation with law enforcement agencies, I suggest that her proposed threshold of £500,000 would be prohibitive. It would stop the agencies using this power in significant cases involving serious and organised crime, and noble Lords have been clear that they want to see the most effective use of UWOs. I hope that the noble Baroness will be satisfied that our approach strikes the appropriate balance.

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[Lord Hodgson of Astley Abbotts]

My Lords, I support this amendment and the sentiments that have been expressed. Like other noble Lords, I am not sure whether it will do anything other than send a signal that this is something we are very serious about. An important aspect of not allowing it to become too London-centric—the darkened squares that my noble friend referred to in his opening remarks—is the ripple effect. What happens in central London ripples out through the country. I think the Lloyds Bank review says that Oxford is now the most unaffordable town in the country in terms of local wages to local house prices. If we can stop the ripple, or at least inhibit the ripple, that will have an effect much wider than merely the darkened squares to which my noble friend referred. As my noble friend Lord Deben said, if we take this further out, there are implications for social cohesion, as some of our less well-off and less well-resourced fellow citizens are finding themselves squeezed out by gentrification in an increasingly wide range of towns and cities across the country.

[Lord Kennedy of Southwark]

My Lords, Amendment 11 is tabled in the names of the noble Lord, Lord Faulks, and my noble friend Lord Anderson of Swansea. My noble friend was taken ill yesterday, and I am sure we all wish him a speedy recovery. This amendment would add a new paragraph to subsection (4) which clearly specifies that where,

“the respondent has a financial interest in land or property ... which is registered in the name of an overseas company”,

which could be being used as part of a complicated financial arrangement to hide from the authorities their unexplained wealth, the court can make an unexplained wealth order. I support the aims of this amendment. It highlights another way that a person can seek to avoid having to explain their wealth. This amendment seeks to address that in a very clear way. My noble friend Lord Rooker raised some important points, and I am sure the Minister will respond to them in her remarks.

Like the noble Lord, Lord Deben, I have had a bank account for 38 years. I have only ever had one—I opened it when I was 16. I went into the bank at Camberwell Green and have kept it in pretty reasonable order for those 38 years. All the things you have to do—saying who you are and having to give your mother’s maiden name—are very irritating, but there are clearly issues with funds travelling backwards and forwards that must have gone through a bank somewhere. If they are ever to be brought to account for things, that is something we must address in these debates.

A lot has been said about the London housing market. Any suggestion that it could be a safe haven for corrupt money should be of concern to us all. What a terrible thing that we even have to contemplate that. It contributes to the housing crisis in London. I referred to the Transparency International report in my contribution at Second Reading. It did some work in 14 developments and found that 1,616 companies and individuals bought properties and that only 450 were registered to people who were living in the UK. Forty per cent of purchases in London, totalling £1.6 billion, were bought by investors from countries with a high risk of corruption. We do not want any suggestion of our capital city being seen as a safe haven for corrupt money, as that must concern us all. The noble Lord, Lord Faulks, made the point that whole parts of central London are in darkness. Ten per cent of Westminster is owned by faceless companies. Properties with an abnormally low use of electricity suggests that they are not lived in on a regular basis. Transparency International also found that 140 properties with a value of £4.2 billion have been bought by investors who represent a high money-laundering risk. My friend the Mayor of London, Sadiq Khan, has launched an inquiry into the impact of foreign investment flooding into London’s housing market. The noble Lord, Lord Faulks, referred to this.

The other problem is the trickle-down effect. It causes property prices to be abnormally raised and is putting whole sections of the capital out of the reach of ordinary law-abiding citizens. That must worry us all, and very regrettable it is. About a year ago, I was standing at this Dispatch Box discussing with the Minister the Housing and Planning Bill—the cost of rents, how we get people living in safe, warm, dry properties, how people can afford to buy property and whether starter homes are the right answer. The way money has come in has made it more difficult for families, which must be of regret to us all. That is something we need to address in this Bill. The noble Lord, Lord Faulks, made the point that there may well be very little legislative time in the next Session, so we should take the opportunity that this Bill gives us.

The noble Lord, Lord Deben, talked about housing. I am happy to accept that all parties have failed in the past. There is no question about that—we all need to do very much more about it. I live in Lewisham. The noble Lord was the Member of Parliament for Lewisham at one time; I am a councillor in his old constituency. It is a great area to live in, not the most expensive part of London, but I could not now afford to buy the house that I live in. I have lived there for 13 years and the rent the people in the house next to me pay is more than my mortgage. It is ridiculous. If corrupt money has led to that, it is a bad situation.

This amendment raises important issues, and the Minister should reflect on them very carefully. If we can find some way forward before the Bill becomes law, we should do that.

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[Lord Faulks]

My Lords, I am sure the whole House shares the concern that the noble Baroness has expressed about whistleblowing and its importance generally. However, I respectfully submit that this amendment is a pretty substantial response to that. It seeks to set up a whole department—the office of the whistleblower. I accept that this is something of a probing amendment and therefore bears the standard for what the noble Baroness may hope to come, but it is little short of a job-creation scheme. The proposed functions of the office of the whistleblower are extensive and it would have powers. Of course, if an office is created, those who are given that office will appoint others to work for them and powers will be exercised. If they are not exercised it would be suggested that they were not doing their job. Before we know where we are, we will have a substantial bureaucracy that runs the risk of having the same problems that exist in other areas of bureaucratic supervision of financial institutions.

The question of incentives is interesting. I accept that that they have had some success in the United States and, as we heard from the noble and learned Lord, in Mauritius too. But as to the question of “retaliatory action against whistleblowers”, a whistleblower has remedies in civil law in any event. When she comes to respond to the Minister, will the noble Baroness give us some idea what is meant by the provision with regard to “retaliatory action against whistleblowers”? The criminal law exists and civil remedies exist for employees and I wonder whether that is not inviting something rather too much. Of course, she rightly acknowledges that whistleblowers are not entirely based in the financial institutions; they exist in the NHS and have recently been considered by Sir Robert Francis and in all other government departments.

The real question is whether the establishment of this no doubt expensive bureaucracy will deter and whether it will result in the detection of what would otherwise not have been detected. While I applaud the general thrust of the amendment, I wonder whether it is something of an overreaction.

[Lord Kennedy of Southwark]

My Lords, the noble Baroness, Lady Kramer, raised the issue of whistleblowing in her contribution at Second Reading and now proposes this new clause today with the noble Baroness, Lady Hamwee. As we have heard, it would establish an office of the whistleblower. The purpose would be to offer much-needed protection to whistleblowers who expose criminality, corruption, fraud and other illegal activity. The price that whistleblowers often pay for alerting the authorities to illegal and criminal activity is to lose their jobs and have their careers ruined and destroyed.

The noble Baroness is right to highlight that we need to do more to offer protection and compensation to people who come forward and alert the authorities to the illegal activity. The noble and learned Lord, Lord Phillips, supported action and I agree. However, I agree with the noble Lord, Lord Faulks, that setting up an office may not be the right way to go about that. What is definitely needed is further protection in statute and regulation. It may not need an office to be established. I will be interested to hear the response from the noble Baroness, Lady Williams of Trafford, to this amendment. I entirely accept that it is a probing amendment and I think that we should take the opportunity that this Bill affords us to do something to address the issue of whistleblowers and the precarious position that they can find themselves in, which the noble Baroness, Lady Kramer, has highlighted to the House today. I accept that whistleblowing goes across a variety of sectors, but we are dealing with the financial services sector and this would be a good place to start.

[Baroness Williams of Trafford]

My Lords, I am grateful to the noble Baroness for allowing us to debate this important issue. Whistleblowers play a valuable role in society by bringing wrongdoing to light that could otherwise go unchallenged. Individuals should be able to report malpractice in the workplace without fear of reprisal; and employers should be prepared to work with staff to resolve concerns, particularly by means of effective internal procedures.

The Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998 and subsequently, provides employment protection for workers in all sectors who have blown the whistle. It enables them to seek redress if they are dismissed or suffer detriment at the hands of the employer because they have made a “protected disclosure” about wrongdoing that they have witnessed at work. To qualify for the protections, a worker must generally make their disclosure either to their employer or the relevant “prescribed person”. “Prescribed persons”’ are typically regulatory bodies for the sector in which the whistleblower works or the type of wrongdoing involved.

I assure noble Lords that, over recent years, the Government have taken steps to support a cultural change in relation to whistleblowing in all sectors, including financial services. A number of statutory and non-statutory improvements have been made. This includes guidance for whistleblowers on how in practice to make disclosures while preserving their employment protections; and guidance for employers including a non-statutory code of practice which we will review this year. We have fulfilled the commitment to keep the prescribed persons list up to date with annual reviews, and we now have guidance in place for prescribed persons. The next update will require prescribed persons to report annually on the number of whistleblowing disclosures they have received and broadly the action that resulted.

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I hope that noble Lords and the noble Baroness are reassured that the Government are taking action to address barriers to people coming forward to whistleblow, and she will feel able to withdraw her amendment.

[Lord Kennedy of Southwark]

I agree with the Minister that the office is not the right way forward, but is she saying that everything is fine?

[Baroness Williams of Trafford]

I am saying that the Government looked at this in 2014, certainly in terms of the financial incentives, and there are various mechanisms in the different sectors for whistleblowers to come forward. The ultimate sanction for employers is unlimited compensation, depending on the type of wrongs that that employer engages in.

[Lord Kennedy of Southwark]

I am sorry to come back on this, but I take it that the Government do not think that anything further needs to be done on this at the moment.

[Baroness Williams of Trafford]

The Government are never complacent in any area of law they introduce; I would never say that everything is perfect.

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[Baroness Vere of Norbiton (Con)]

My Lords, we now come to two proposed changes that the Government are seeking to make to the seizure and forfeiture powers set out in Chapter 3 of Part 1 of the Bill. In the House of Commons we introduced amendments to allow law enforcement agencies to seize casino chips and gaming vouchers where they had the suspicion that they were either the proceeds of crime or would be used to commit further offences. The Government were also asked to consider whether similar provisions could be introduced to allow the seizure of betting slips. Government Amendments 80, 82, 83 and 138 to 140 make such provision. If law enforcement agencies suspect that the funds used to place a bet are the proceeds of crime, they will be able to seize the betting slip. These provisions will be subject to the same safeguards as for cash seizure and we will be working with bookmakers and their trade associations to ensure that they are used effectively.

At present, Clause 14 allows for the seizure and forfeiture of moveable stores of value but makes no allowance for deductions for legal expenses on the part of the person the item was seized from. Government Amendments 88, 90 to 101 and 142 to 155 will therefore allow for a deduction to meet legal expenses from recovered sums following the forfeiture of the item. Where appropriate, the court will determine whether legal expenses should be paid and will provide for that as part of the forfeiture order. These amendments make similar provisions in Schedule 3 in relation to items seized where there is a suspicion of terrorist financing. I beg to move.

[Lord Kennedy of Southwark]

I am happy to support these amendments, which are both sensible and proportionate. Ensuring that betting slips can be seized is a sensible move, as indeed is the whole series of amendments.

[Lord Stevens of Kirkwhelpington (CB)]

My Lords, I also support this group of amendments. I declare an interest as my son is the head of the financial recovery unit of the Metropolitan Police. This is one area of the Bill that had an immense weakness. To ensure that the provisions work properly as far as officers working on the front line are concerned, these amendments must be inserted into the legislation.

Criminal Finances Bill

Lord Kennedy of Southwark Excerpts

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

[Lord Stevens of Kirkwhelpington (CB)]

My Lords, I support Amendments 81, 82 and 83. I pay tribute to the Minister and her team, who have listened to the officers who are actually on the front line as well as to others. In general terms—and I know these are probing amendments—if there are direct links between money assets and anything that may be used as currency, can consideration be given to those links being widened? Pursuing that would be of great help to the agencies which are enforcing these laws. I stress my tribute to the Minister and her team for listening to those who have to enforce these laws.

[Lord Kennedy of Southwark (Lab)]

My Lords, the amendment proposed by the noble Baroness, Lady Hamwee, has merit and widens the Bill so that assets which can be used as currency can be included for the purposes of the forfeiture of cash. In some parts of the world, mobile phone credits are traded as cash and it would not be impossible to see situations where large quantities of these credits could be traded, hold the proceeds of crime and be used as currency. There will be other items that will be used in similar circumstances in the future.

However, I am not persuaded by Amendment 84 in the name of the noble Baroness, Lady Hamwee. I understand the arguments about what is included in this broad definition but believe that what is shown in the Bill as “listed assets” is better. However, I would want the regulations which may amend subsection (1) to use the affirmative procedure because it is important that we have a discussion about it at that time.

Amendments 85, 89, and 106 add the words “reasonable grounds for suspecting”. Those are proportionate clarifications which the Minister should adopt. I am not convinced that Amendment 87 is necessary. I see the point which the noble Baroness, Lady Hamwee, is seeking to address but hope that the Government will confirm that the words “safely stored” will cover this point and that valuable goods will be stored appropriately.

I am not persuaded of the merits of Amendment 102, although I do support Amendments 103 and 104 in the name of the noble Baroness. If the court is satisfied that the person has suffered a loss then they should be compensated for that loss and it is important that regulations made under this section are not used to restrict the payment of compensation. Amendment 105 is also a sensible addition, unless the Minister says very clearly today that a person’s reasonable living expenses include them providing for their dependants. Amendment 106, bringing in the term “reasonable grounds”, in respect of forfeiture is also a welcome provision.

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

I thank noble Lords for their contributions, and particularly the noble Lord, Lord Stevens, for his kind words. The noble Baroness, Lady Hamwee, has—as always—scrutinised the provisions in some detail and I am grateful to her for the points she raised. Her Amendments 81 and 84 seek to broaden the scope of the seizure and forfeiture powers at Clauses 13 and 14 so that they can essentially be used to seize any items deemed to be the proceeds of crime. However, these will create a number of issues. The test that the property “may be used as currency” is legally ambiguous and untested, and it could complicate the use of these powers. The effect of Amendment 81 would also be to include a wide range of property in the cash forfeiture procedure which is not easily severable, as would be required for these provisions.

The noble Baroness referred to bitcoin at the beginning of her speech. There are difficulties in defining what we would seize. While we would not include this in the Bill, we are continuing to work with law enforcement agencies to determine how we should approach this issue more generally, and specifically to determine whether there is a gap in law enforcement capability that requires legislative change.

In respect of the noble Baroness’s Amendment 84, I am sure she would agree that we must take a proportionate approach to ensure that there is clarity regarding what can and cannot be seized. The items listed in the Bill are there based on clear justification that they may be used to move or hide the proceeds of crime, and we drew on the advice of law enforcement practitioners in developing this list. Her amendments would move away from the principle of clarity, eroding the careful circumscription that the Bill provides for these provisions. We can add to the list when the need arises, subject to parliamentary approval. As we have demonstrated through our amendments during the Bill’s passage, we will do so where a clear case arises. This gives us and the police the flexibility and balance we need while ensuring that this is not a sweeping seizure power. I am very grateful to the noble Baroness for allowing me to emphasise how seriously the Government take these issues, particularly the need for stringent safeguards on the use of such powers. I trust that she will feel inclined not to press these amendments.

I turn to the other amendments tabled by the noble Baroness. Amendment 85 seeks to insert the principle of “reasonable grounds for suspicion” into the definition of a listed asset. However, this appears to insert this test in the wrong place in the Bill. We consider that the inclusion of the “reasonable grounds to suspect” test in the sections relating to the operation of the seizure powers is more appropriate, and this approach mirrors the existing provisions for the recovery of cash.

Amendment 86 seeks to require the Secretary of State to take the actions relating to the issuing of the code of practice for searches for listed items before it is issued. The provision in the Bill is consistent with existing wording in the Proceeds of Crime Act relating to codes of conduct. I assure the noble Baroness that all the relevant actions will be taken before a code is issued.

Amendment 87 seeks to require that items seized under these provisions should be stored in appropriate conditions. The agency seizing such property is liable for its storage, and would be liable for damage to such property if due care were not taken. Therefore, we believe that the agency responsible would take such action in any case.

Amendment 102 seeks to remove the provision allowing the release of the listed item if the victim was deprived of it through unlawful conduct. The provision is one of three principles that the court must consider when the victim applies to the court for the item to be returned. The removal of this provision would remove the requirement on the victim to show that they had lost the property through unlawful means. This is an important test that the court must satisfy itself on, and which already applies to the well-established system for the forfeiture of cash, and we believe that it should be retained.

Amendment 104 seeks to prevent the Secretary of State restricting the payment of compensation through regulation. The intention behind the power in the Bill is to ensure that the appropriate agency can be held responsible for any compensation that may be paid. It allows the Secretary of State to add to the list of those who are liable for paying compensation where appropriate. The provision already exists for cash forfeiture, and I see no reason not to replicate it here. It should be noted that the circumstances in which compensation would be payable are set out elsewhere in new Section 303W, and that the Secretary of State’s power does not extend to amending these provisions.

The noble Baroness asked why exceptional circumstances are required. This is modelled on the cash provisions. The seizure power applies to a limited number of assets. It is not anticipated that, in normal circumstances, seizure would result in loss being sustained. The items are not likely to change in value during the timeframe for seizure.

I turn to provisions relating to Clause 15. Amendment 105 seeks to extend the exclusions to an account-freezing order to include the living expenses of a person’s dependants. The provision for exclusions relates to the actions on the account and the owner’s ability to use the contents of the account to meet reasonable living expenses. I fully appreciate that there may be dependants of the account owner who would be adversely affected if no provision were made for the account to be used to meet their living expenses. That is why we have included this provision. The living expenses will be determined by a court and, if there are dependants, the court will take them into consideration.

Amendment 106 would include a provision that, where forfeiture is sought on the grounds that it will be used for unlawful conduct, the officer must have reasonable grounds for suspicion that this is the case. The existing provisions already require the officer to be satisfied that the property may be recoverable or may be used for unlawful conduct, and we do not want to lower that threshold.

I thank noble Lords for their patience. I hope that I have addressed the issues that the noble Baroness raised and that she will be happy to withdraw her amendment.

[Lord Kennedy of Southwark]

When I spoke about listed assets, on page 44 of the Bill, I said I preferred what was in the Bill to the amendment of the noble Baroness, Lady Hamwee. I mentioned regulations being made by the affirmative procedure. Of course, it does not say that here, so I am assuming that they are not—that they will be made by the negative procedure or in some other way. Perhaps the Minister could write to me on this.

[Baroness Williams of Trafford]

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

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[Lord Kennedy of Southwark]

I thank the Minister very much, but it does not say that in the Bill—it just refers to the regulations—and I think it needs to say that.

Amendment 81 withdrawn.

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[Baroness Hamwee]

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

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

My amendment would add to that,

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

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

[Lord Kennedy of Southwark]

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

[Baroness Vere of Norbiton (Con)]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for her scrutiny of these provisions. Her Amendment 107 seeks to require the Secretary of State to define the seniority of SFO staff so that not all have access to POCA powers. I appreciate her concern at the extension of the powers conferred by POCA but I hope I can reassure her by explaining our reasons for extending powers to SFO officers.

As the noble Baroness is undoubtedly aware, the SFO is responsible for investigating some of the most serious cases of fraud, bribery and corruption. To effectively combat complex crime, it is vital that SFO officers have access to the most effective legislative tools. Currently, only SFO officers who have accredited financial investigator status have access to POCA powers. This is at variance with other agencies such as the police, the NCA, HMRC and Immigration Enforcement, whose officers have direct access to these powers whether or not they are financial investigators.

It is logical and appropriate that these powers are made available to all SFO officers, both to ensure consistency of approach across agencies and to ensure that non-accredited SFO officers have access to POCA powers when investigating complex crimes, which may include investigating the proceeds of crime.

I hope I can further reassure the noble Baroness that all agencies adopt a process whereby applications made under POCA are considered and approved by an appropriate management chain before they are submitted to court. This ensures that all officers, of whatever grade or rank—even the janitor—are required to consider the necessity and proportionality of any application they make.

I am grateful to the noble Baroness for allowing me to explain the rationale for this position—particularly the need to make powers available to a wide range of officers involved in the investigation of complex, acquisitive crime. I trust that she will feel inclined not to press this amendment and, accordingly, I invite her to withdraw it.