King’s Speech

Lord Sandhurst Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I am delighted to respond in this debate on His Majesty the King’s gracious Speech. In doing so, I declare my interest as chair of the executive committee of the Society of Conservative Lawyers.

It is a pleasure to welcome the new Government Front Bench. I have great respect for the noble Lord, Lord Ponsonby of Shulbrede, who has distinguished himself in his work in opposition. I welcome the noble Lords, Lord Timpson and Lord Hanson. I congratulate the noble Lord, Lord Timpson, on his excellent maiden speech and look forward to hearing from the noble Lord, Lord Hanson, shortly. Finally, but not least, I congratulate the noble Lord, Lord Goodman, whose maiden speech I particularly enjoyed; it was very moving. We will benefit from his arrival.

I commend the ambition of the crime and policing Bill, which continues the good work of the last Government’s Victims and Prisoners Act. However, my focus today is on what is not in the gracious Speech. To protect victims and run effective criminal courts, we need properly funded and competent prosecutors and defendants require competent defence lawyers. However, for serious sex offences, there is a real shortage of lawyers who are “ticketed”—in the jargon—to appear in such cases. Delays follow, justice suffers and victims suffer. Thus, Ciara Bergman, chief executive of Rape Crisis England & Wales, recently called for a government strategy to retain barristers in this field. A recent Criminal Bar Association survey of 780 criminal barristers found that almost two-thirds of prosecutors said they would not reapply to be ticketed on the rape and serious sexual offences list. These are skilled professionals who can sell their services in the market elsewhere. Government must act fast. Pious aspirations and new laws are not enough.

My noble and learned friend Lord Garnier has already addressed Mr Malkinson’s appalling case. That and the postmasters’ scandal have highlighted the need for top-quality prosecution and defence lawyers. Worse still, Mr Malkinson’s case was let down badly by the Criminal Cases Review Commission. That commission has been forced to apologise following Christopher Henley KC’s inquiry, which found grave shortcomings in its conduct. That body needs better resources and new leadership. I ask the Front Bench to please note that.

The sub-postmasters’ scandal would not have been uncovered but for the judgment in the civil action they brought. That action was possible only because it was backed by litigation funders. A Supreme Court decision last year, by a side wind, has thrown the market of funding into confusion. Before the Dissolution, there was a short Bill before Parliament to put that right. It was lost. There was no mention of it in the King’s Speech. What plans do the Government have? Where is the Bill, and why is it not mentioned? We need it now.

Next, on private prosecutions, we do not need to await the outcome of Sir Wyn Williams’s inquiry to know that there must be a major change in the way that these are conducted. The Post Office was a private prosecutor, and it highlights what can go wrong. It had a vested interest in the outcome; it should have been the CPS. What plans do the Government have to review the extent and use of such powers? We do not need to await the result of the inquiry—so action, please.

On SLAPPs, we have heard already that a Private Member’s Bill that was going through was lost. We have been assured that such a Bill is a work in progress, and I do not doubt Ministers’ good faith. However, they should note that there are plenty on all sides of the House who will make them subject to questions and pressure if such a Bill is not forthcoming soon.

Lastly, on coroners’ courts, we must do much more to achieve an efficient coronial system. In fact, we must do as the recent senior coroners have urged and put the coronial system on a proper national footing. It must be taken away from the ambit of local authorities; they do not have the resources. The Government must have plans for that, and I would like to hear what they are.

Asylum: UK-Rwanda Agreement

Lord Sandhurst Excerpts

Monday 22nd January 2024 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, this treaty with the Republic of Rwanda underlies the safety of Rwanda Bill. If were not ratified by Parliament, the Bill would lose its foundation stone; but today, as I hope Members understand, this House cannot by its own resolution block the ratification process. Only a resolution passed in the other place can do that.

I have read with care the committee’s report. It sends an important message to the Government, but—and this is important—whatever it says about the arrangements in Rwanda going forward and its anxieties about whether they will be effective, it does not complain about the terms of the treaty. I stress that. The treaty, as this careful report notes, puts into legally binding form the arrangements previously set out in the 2022 memorandum of understanding, with enhancements, which, the report notes, if effective—I emphasise the word “effective”—will provide important safeguards for persons transferred to Rwanda. That is what the report says. Of course, we shall know whether that is so only if and when the Bill becomes law and the process begins.

To adopt what my noble friend Lord Howell has said, this report provides a useful agenda for the Government—and, indeed, for all of us when we debate the Bill. The report acknowledges that the treaty will improve the protections previously set out in that earlier memorandum. It identifies practical steps that need to be taken before the protections could be deemed operational, and such that they might make a difference to the assessment reached by the Supreme Court.

Like my noble friend Lord Howell, I hope that the Government will read this report with care and not just pay lip service to it. The report argues that evidence is also needed that the arrangements have been effective in practice. One can see that that evidence will be available only if the process is embarked upon and after it has been in practice; that is, if it has taken place.

The authors of the report, members of this distinguished committee, are doubtful that the treaty would change the position in Rwanda in the short to medium term. That will arise only if this treaty is in effect and the arrangements have been tested. Clearly, when we debate the Bill, we will have to see what reassurances we receive from the Government. On that basis, the authors recommend that the treaty not be ratified until Parliament is satisfied that the protections have been fully implemented.

It is worth looking again at Article 3(1) and (2) of the treaty:

“The Parties agree that the obligations in this Agreement shall be met in respect of all Relocated Individuals, regardless of their nationality, and without discrimination”.


That is the core agreement. It continues:

“The Parties agree to take all steps that are necessary or appropriate to ensure that their obligations can both in practice be complied with and are in fact complied with”.


That is the obligation on the Rwanda Government and on our Government. It continues:

“Those steps shall include continuing discussions, support”—


that is a matter that the committee was concerned about—

“and the fullest cooperation between the Parties with a view to maintaining and enhancing their practical ability to do so. Both Parties recognise the importance to that end of the monitoring arrangements set out in this Agreement, and the taking of all reasonable steps to ensure that that monitoring is as effective as possible”.

The committee none the less recommends that the treaty is not ratified, as have several speakers today, until Parliament is satisfied that the protections provided have been fully implemented. However, if it is not ratified there will be no Bill. That will end the process. The time for advancing those arguments is when we debate the detail of the Bill and ask: are we confident that it is right to have a second go?

I suggest that the report does not identify anything objectionable or contrary to principle in the treaty itself. The report’s concern is that the treaty obligations imposed may not be adhered to by the Republic of Rwanda when and if the Bill is passed and the migrants are sent to that country for processing. I remind this House that, as an earlier speaker said, the Supreme Court did not doubt the good faith of the Government of Rwanda. So the true question today is whether Parliament, when it debates the Bill, should have confidence that the aspirations on which it is founded are sound. Will the aspirations contained in the treaty be fulfilled? That is a judgment to be made then by Parliament and ultimately by Members of the other place as the elected representatives.

The second resolution therefore puts the cart before the horse, although obviously I have no problem with the first Motion. I suggest that the treaty itself is entirely reasonable. It contains clear obligations on both parties. The points made in the report can be given effect to either by amendment to the Bill or ultimately by not passing the Bill in its current form. I am not urging either of those courses at this stage, but that is what is open to Parliament.

It is in that debate that the proper forum will arise. First, Parliament is entitled to proceed on the basis that Rwanda now will act in accordance with its obligations under Article 10, which bind Rwanda in both international law and its own domestic law not to remove persons except to the United Kingdom. Secondly, if there is structural failure—even passing imperfections arise in practice—we can be confident that the matter will be taken up in Parliament and that Ministers, particularly in the other place, will be given a hard time. They will be pressured to act and there will be action. The Rwandan Government have made it clear that they see compliance with international law as paramount—not least, as we know, because they wish to replicate their United Kingdom deal with other countries.

In the Bill, as we have heard, Clause 2 will impose an obligation to treat the Republic of Rwanda as a safe country. That is something this House can debate when the Bill comes before it. It will have the committee’s report. If this House is satisfied that the country is unsafe, no doubt it will say so. That may be because, for example, no judges have been appointed; it might be for any number of reasons, but we can address Clause 2 then. But that does not go to the validity or the value of this treaty.

Today, I respectfully submit to this House and to those who have drawn up this very careful report, is not the place to oppose ratification and certainly not for the reasons advanced. If the House divides, I shall of course support the first Motion to Take Note, but I shall vote against the second Motion.

Metropolitan Police: Operational Independence

Lord Sandhurst Excerpts

Thursday 9th November 2023 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I have already spoken about the operational independence of the police, which I think we all regard as sacrosanct. The Answer that I repeated included the line:

“it would be disrespectful and demonstrably wrong for protests to take place on Armistice Day and Remembrance Sunday”.

Actually, I do not think that my right honourable friend the Prime Minister used the word “demonstrably”, but what he did say was “disrespectful”. However, he went on to say:

“part of that freedom is the right to peacefully protest. And the test of that freedom is whether our commitment to it can survive the discomfort and frustration of those who seek to use it, even if we disagree with them. We will meet that test and remain true to our principles”.

I happen to think that is exactly right and describes the country I am proud to be a citizen of.

[Lord Sandhurst (Con)]

My Lords, as we have heard, Peel’s fifth principle requires the police to demonstrate complete independence of policy. Of that, it is equally plain that my noble friend the Minister is well aware. Will he therefore remind the Home Secretary of this principle, since her public criticisms of the Metropolitan Police make it impossible for the commissioner to retain his operational independence or at least the appearance of operational independence, which is vital to public confidence? The Home Secretary seems either to be ignorant or to be flouting it.

[Lord Sharpe of Epsom (Con)]

My Lords, I have already referred to the policing protocol, which governs all the actors’ principal responsibilities. We should focus on taking steps to reassure the various communities that are coming under pressure; —the police are definitely doing that. Police forces up and down the country have stepped up neighbourhood patrols to support local Jewish and Muslim communities, including visiting schools, synagogues and mosques. Sadly, we have seen a significant increase in hate crime reported since Hamas’s terrorist attack in Israel, and the Metropolitan Police has made a number of arrests to date linked with that. That shows that the Metropolitan Police is more than capable of exercising its responsibilities and is doing a good job.

Perhaps I may say from a personal point of view that the virulent anti-Semitism that we have seen makes me feel physically sick. My Jewish friends are afraid, and in this country that is disgusting.

Fighting Fraud (Fraud Act 2006 and Digital Fraud Committee Report)

Lord Sandhurst Excerpts

Friday 30th June 2023 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, the committee, of which I was a member and which was so excellently chaired by my noble friend Lady Morgan of Cotes, reported last November. We heard from 56 witnesses. They covered a range of experience: academics, Ministers, the police, the Crown Prosecution Service, prosecutors in the courts, the Home Office, financial services, regulators and a range of internet platforms and service providers, as well as telecoms companies. Above all, we heard from the victims.

The picture was absolutely clear. We face in this country a really serious problem with fraud. Too many of our institutions have failed to take it seriously enough or to address it effectively. We have to act, and now. Our report identified the issues. It provided in one easily readable, if quite long, document a route map for police, government, regulators and major commercial players. There is no excuse to say that they do not know what to do, or to deny that there is a problem.

I will remind the House briefly of some core findings. Fraud is the most commonly experienced crime in England and Wales, yet is excluded from the crime figures. It accounts for approximately 41% of all crimes against individuals. Losses total at least £4 billion a year. The Bank of England has admitted that it directly affects consumer confidence. Most fraud happens online; 80% of reported frauds are cyber-enabled. The exponential growth in fraud and scams, we found, has been invisible. Fraudsters face little risk of being caught. Victims are embarrassed to report it. Law enforcement is underresourced.

We found that this underprioritisation has created a permissive culture across the Government and law enforcement agencies. This then permeates through to affect the attitudes of the private sector players in the fraud chain—internet service providers, telecoms companies and the like. They have not stepped in to do what they can to prevent customers being scammed. Indeed, I received an email to the effect that they feel they have not had a fair hearing from our committee; I do not know whether others did.

Organised criminals around the world turn to the UK as a lucrative market to commit fraud. As we have heard, their proceeds are used to fund human trafficking and the drugs trade. The telecoms sector has to date had no real incentive to prevent fraud and has allowed blame to be placed elsewhere for too long. There have been no sticks, and certainly no carrots. It must do more to tackle phishing emails, smishing texts and fraudsters making spoof phone calls, as well as those emails that infiltrate our machines.

Until all fraud-enabling industries fear significant financial, legal and reputational risk for their failure to prevent fraud, they will not act. We were clear that the Government must act to introduce a new corporate offence of failure to prevent fraud across all sectors to address this, and we did not limit that to so-called large companies.

I welcome the important measures in the Online Safety Bill to prevent fraudulent content and scam advertising on online platforms and to hold tech companies accountable when they fail, but these will bite only on fraudulent advertisements. They are an important plank but they are only one plank—you cannot build a house from them. The telecoms industry, financial services, the insurers, indeed all our great service industries in this country, must face the same requirements and get their act together.

The Government published their Fraud Strategy in May and appointed Anthony Browne MP as anti-fraud champion. That is a good start but it is not enough. Let me explain: I applaud the proposals to ban cold calls on all financial products, to ban SIM farms, to make it harder for fraudsters to spoof UK numbers making it look like they are calling from a legitimate UK business, and to stop people hiding behind fake companies, and I applaud the plans to create new powers to take down fraudulent websites—but we need a facilitation offence. Telecoms companies must be put under duties to do more. Plans to improve the law enforcement response and trade and charters addressing areas of business activity are welcome, but they are not enough to ensure the changed culture needed to drive down fraud in this country.

Surprisingly, to date the Government have been reluctant to introduce what we regarded as adequate provisions to push business to take steps to prevent fraud. Regulation has to be proportionate, of course, but reasonable steps to prevent fraud taken by all businesses will reduce the opportunities for these scammers. They will help our economy grow; everyone will be more prosperous as a result. Thankfully, on Tuesday this week, this House expanded the scope of the duty to prevent fraud imposed by the economic crimes Bill. I just hope that it will not be taken out in the other place, because it would likely bounce back again here.

Only if all businesses are driven to take proportionate steps to stop fraud will things change. Economic benefits for all will flow. The costs to business and the consumer will be off-set by a clean, fraud-minimised environment. We will all win. People have to look at the big picture, beyond the ends of their noses. If the Government are serious about their promise to make sure that every part of the system is incentivised to take fraud seriously, they must not only introduce new charters for business but ensure that the different sectors, whether banking, finance, tech, insurance or telecoms, are all driven to make life much more difficult for the fraudster. That requires a duty to prevent fraud applied across the board.

Enforceable obligations must apply not just to large businesses. The six key steps we identified in the report are critical. Ministers must act now, and they must act decisively.

Illegal Migration Bill

Lord Sandhurst Excerpts

Committee stage
Monday 12th June 2023 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, I shall speak to Amendment 119 and to the overall challenge to Clause 53. To be absolutely clear, there is no reason why the Government should not ignore and override an interim measure by the Strasbourg court. The requirement that Amendment 119 seeks to impose is also neither necessary nor appropriate. I regret to say that I disagree with the conclusion of the Joint Committee: what is proposed does not breach Article 34 of the convention.

Neither is Clause 53 a circuitous route to block interim measures. It permits Ministers to disapply the duty to remove a person to whom interim measures under Rule 39 have been asserted by the European court. Equally, the Minister will retain the power to ignore the interim measure if he or she so wishes. There are a number of reasons for this. First, as has been explained by my noble friend Lord Wolfson on previous occasions—I think he will add more later this evening—our treaty obligations have force in our domestic law only when Parliament enacts legislation to this effect, hence the Human Rights Act direct effect. Secondly, and of importance to others in this House who, like me, value this country’s good name and reputation, the interpretation which is now used to found this interim measure was placed only in 2005 on Rule 39 by the Strasbourg court. That decision was contrary to previous decisions of that court: in other words, it did not follow what we would call precedent. Indeed, it was contrary to the express intentions of those who drafted the convention, as a study of the travaux préparatoires would make plain.

Time does not permit tonight a lengthy exegesis, but for those who would benefit from further learning on this topic, I recommend the recent policy exchange paper, Rule 39 and the Rule of Law, by Richard Ekins KC (Hon), professor of law and constitutional government at the University of Oxford, with a preface by Lord Hoffmann, formerly a judge of the House of Lords, and a foreword by Lord Sumption, a former Supreme Court justice. It is important for us all to understand that Rule 39(1) states:

“The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings”.


That is just an indication of view or, as Lord Hoffmann says, a shot across the bows. It is not a power to make an order or direction against a contracting party. The court has not been given power under the convention to make an interim order binding on a party to the convention. The convention does not, in terms, as it would have to, confer a power to grant binding interim relief. The member states, including this country, made a deliberate decision in 1949, and subsequently, not to empower the court in this way.

I have already referred to Lord Sumption. He described Professor Ekins’s arguments as timely and powerful. In the preface to the paper, Lord Hoffmann explains that a ruling of a court such as the Strasbourg court is binding upon parties only if the court had jurisdiction to make it, and that not only is there nothing in the language of the convention which expressly confers such a power but that the usual aids to the construction of a treaty—the travaux préparatoires and the subsequent practice of the court—reflect a clear understanding that no such power exists. The court does not have jurisdiction.

What has happened in the court’s recent jurisprudence is that this advisory power—a sensible advisory power—has been assumed to be a power to grant legally binding interlocutory relief. In short, there is no breach of treaty obligations by the United Kingdom if it does not comply with an interim direction, so Clause 53 should remain and Amendment 119 is inappropriate.

Illegal Migration Bill

Lord Sandhurst Excerpts

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am glad that the noble Lord, Lord Kerr, brought his copy of Hansard from Second Reading with him. My recollection of the Minister’s explanation regarding Section 19(1)(b) was that the matter had not been tested by the courts. That sticks in my mind because I thought it was curious, since the Government are rather critical of people running off to the courts for interpretations of the law.

I will say quickly, because I want to put it on the record, that I subscribe to the view that no asylum seeker can be illegal and to the comments about international law which have been made. I am afraid that I am going to retreat from the big picture and Second Reading to Amendment 1—possibly unconventionally. I am grateful to the noble and learned Lord for tabling it, because it made me start thinking about the definitions of a lot of other terms used in Clause 1. The term he has singled out—I agree with him that it needs clarity—raises a lot of issues. There is a sort of endless loop of argument about compliance by the individual and compliance by the Government in their assessment of what they are doing.

In my mind, that is not the only phrase in Clause 1(1) that needs to be clearer. The same sentence uses the wording,

“and in particular migration by unsafe and illegal routes”.

That raises a lot of issues, does it not? Unsafe, of course, is a matter of judgment. As for illegal routes, in legislative terms, how does a route become illegal? What does “and in particular” signify in this context? Does the reference to unsafe and illegal routes exclude other routes? I really do not know. It is good prose, but not in this context.

Another phrase which bothers me at a technical and, I have to say, a political and a practical level is

“in breach of immigration control”.

Superficially, one understands what that means, but I do not know and was unable to find whether this is a technical phrase and so legally clear within domestic law. Immigration control is breached by a contravention of legislation, I would think, at a given time. That is clear enough. However, in the area we are discussing, the Immigration Rules—which we know are constantly changing and which come from Ministers and do not touch the sides for parliamentary scrutiny—are part of immigration control. So, I would be interested to know what that means in this context. It seems to me that one could portray this as delegation to Ministers by another mechanism. It is not clear—this is the political point, I suppose—so it is not a deterrent. I think it is inappropriate and gives more power to the Executive, which the Constitution Committee reports are given

“an unusual degree of power”

by the Bill.

I have added my name to Amendment 84. The noble Lord, Lord Alton, is not in his place; I did not expect to find that the debate on this would come today, and possibly neither did he. I am grateful to the right reverend Prelate for highlighting compliance with the anti-trafficking conventions. I agree with the noble Baroness, Lady Chakrabarti, that we need to come together with a single list that we can gather around.

I do not want to pre-empt debates on the substantive issues regarding trafficking and slavery—I say that without intending to suggest that the conventions and directives are not significant; they are—but will simply say that I expect the term “world-leading” to be used quite a lot with reference to the Modern Slavery Act when we get to that part of the Bill. The international nature of trafficking means that the UK has to consider it internationally and comply with conventions and directives—which brings us directly back to the point that many other noble Lords have made.

[Lord Sandhurst (Con)]

My Lords, I will speak to Amendments 2, 4, 84 and 148. I shall not speak to Amendments 1, 3 and 5. As for those later amendments, I will wait to hear what the Minister has to say about their meaning and effect on the Bill.

I turn to Amendment 2. Let me begin by way of introduction by explaining what I understand to be the effect of Clause 1(5) of the Bill, which will disapply Section 3 of the Human Rights Act 1998. Importantly, it does not mean that the convention ceases to apply to matters covered by the Bill or to acts by Ministers and officials; they will still be covered by it. Section 3 provides that

“primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.

--- Later in debate ---

[Lord Hacking (Lab)]

If the noble Lord looked at the national statistics on immigration for 2022, he would see that the figure is about 47,500 immigrants coming in by boat, but of those, there was a large portion of Albanians, and none of them were permitted to stay; they were shipped back to Albania.

[Lord Sandhurst (Con)]

That may be so, but the numbers are on a rising plane, and it is not simply Albanians now, they are coming from elsewhere. All I say is this. This is a carefully interlinked package of provisions. It may not be attractive or how we have done things in the past, but we face very different circumstances, and I suggest we should not seek to unpick its structure.

[Baroness Ludford (LD)]

I just ask the noble Lord about his point on Section 3 of the HRA, which he regards as disadvantageous. He talked about courts having to make a strained interpretation. I wonder whether he would give me some idea of how many cases there have been where the courts have had to strain to make this interpretation. Presumably, if they felt they had to do that, they would have had to resort to Section 4, declaring incompatibility. The review by Sir Peter Gross did not have a major problem with Section 3—I think there was a little tweak that has escaped my memory for the moment. It was broadly satisfied with the operation of Section 3, so I wonder why it is so difficult. With Section 4 and declarations of incompatibility, there is the disadvantage of having to make remedial orders—and there is not really capacity in the Commons to do that—and/or end up in the Strasbourg court. It seems to me much better to give some leeway to the courts to interpret legislation compatibly with the convention.

[Lord Sandhurst (Con)]

, I looked at Sir Peter Gross’s report yesterday and the night before to remind myself of what it said. Two points are important. One is that it was not unanimous on that point, unlike on everything else. We are not told where the disagreement was, but at least one member did not agree that nothing should be done. Secondly, it lamented the fact that there had been no statistics kept of the cases in which the court has gone down the route of Section 3, so we do not actually know when there has been what might be called a strained interpretation or when it has been a perfectly natural interpretation. You can read it if you look at individual judgments. The one in which Lord Steyn spoke is the case of Ghaidan—I cannot remember the other name in the case—

[Baroness Chakrabarti (Lab)]

Godin-Mendoza.

[Lord Sandhurst (Con)]

I am obliged. So there we are.

[Lord Etherton (CB)]

I have a very short point to make. I was delighted to hear the noble Lord, Lord Hodgson of Astley Abbotts, say that he was a great fan of the rule of law, but he, like the noble Baroness, Lady Fox, seems to think that it is something that can be moulded in accordance with political desire in Parliament. We should be quite clear about this, and the point is not a difficult one.

The rule of law is made up of various ingredients. One of those ingredients is compliance with international obligations. If you do not like the obligations and wish to comply with the rule of law, you either secede from the convention or international obligation or you change it. So long as it is there, you have to comply with it if you want to say that you are a country that observes the rule of law. We are a leading world democracy. If we do not abide by the rule of law, we place ourselves in the company of numerous rogue nations. This country deserves better than that.

Economic Crime and Corporate Transparency

Lord Sandhurst Excerpts

Committee stage
Thursday 27th April 2023 Grand Committee

[Lord Cromwell (CB)]

The noble and learned Lord, Lord Garnier, referred earlier to making feeble jokes. Anyone who was here on Tuesday heard my feeble joke for this year, so the Committee will be relieved to know that I am not going to make any more.

I agree with all the previous speakers that the idea of creating a legal cliff edge, with whole, untouched schools of fish swimming in the sea below the cliff, is both problematic and fundamentally pointless. I agree with the noble Lord, Lord Agnew, and the noble Baroness, Lady Morgan, about enablers; we will be coming to that issue later, and it is a real concern. To me, it is rather like saying that SMEs do not need to worry about health and safety or do not need cyber security, and only the big firms do. Both those assertions are patently nonsense, but that seems to be the flavour of what we are faced with here with this cliff edge. I hope the Committee enjoyed my analogy about the fish.

[Lord Sandhurst (Con)]

I apologise for not speaking to the Bill at Second Reading. I was unable to take part because I could not commit to be at both the start and the finish that day. I hope noble Lords will forgive me. I declare my interest as a member of last year’s Select Committee, chaired so ably by my noble friend Lady Morgan, who is sitting beside me.

I shall speak to all the amendments in this group, which are directed globally at the failure to prevent fraud. Some of what I will say now will be relevant to what I will say in respect of Amendments 91 and 94, when I shall be much briefer. It is much easier to get the whole thing over at this point.

Amendment 84A is a start, but I am afraid it is an inadequate start. I wonder, with all respect, whether the Government actually read carefully and understood our committee’s substantial report. The committee heard a welter of evidence from everyone across the whole gamut. It was absolutely plain to us that a vast amount of fraud is happening and nothing is being done.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

Absolutely; I shall get my abacus out. I turn to Amendment 101 on senior managers’ liability for failing to prevent economic crime, also tabled by my noble and learned friend Lord Garnier.

I agree that it is important that individuals, particularly the most senior ones, do not go unpunished for their involvement in committing economic crimes. Prosecutors already have a range of powers at their disposal to pursue decision-makers who enable or commit criminal offences in a corporate setting. This includes the power to prosecute individuals for substantive offending. For example, last year an individual was jailed for 12 years following a Serious Fraud Office investigation into a £226 million fraud.

Additional powers also exist which enable senior managers and directors to be prosecuted where they consent or connive in fraud, theft, money laundering or bribery. A director or manager who is convicted on the basis of their consent, connivance or neglect can be dealt with accordingly by the courts, including being sentenced to imprisonment. Also, under the Serious Crime Act 2007, a person, including a senior manager, is liable for encouraging or assisting the commission of a criminal offence. That includes fraud, false accounting or money laundering—the offences captured by the amendment tabled by my noble and learned friend Lord Garnier. The individual found to be encouraging or assisting the commission of the offence can be prosecuted in the same way as if they commit the offence itself.

This amendment seeks to extend liability for senior managers on a lower basis for culpability than is normally provided for. It would allow a senior manager who takes a decision to be imprisoned for taking that decision, even if the offence is the action of a rogue employee. That would place a disproportionate burden on corporations and their senior management, which is likely to deter legitimate business from seeing the UK as a fair and safe place to conduct business. This amendment is therefore not appropriate.

The noble Lord, Lord Coaker, asked about extraterritoriality. Our approach is focused on cutting crime in the UK and protecting UK victims. As he noted, the powers have sufficient extraterritorial extent to do this, even if the perpetrators or the organisation is based outside the UK. Other countries can take steps to prosecute fraud under their own law. As for the precise mechanics of how it would work, it would be on a case-by-case basis, so it is pointless to speculate.

The noble Lord also asked for more detail about guidance. As he knows, we intend to publish guidance setting out reasonable prevention procedures before the offence of failure to prevent fraud comes into force. It will give organisations clarity about what they need to do. It is important that we engage and consult the right stakeholders in this process and that we engage further with the organisations this will impact. Once the Bill has received Royal Assent, we will start engaging with law enforcement, prosecutors, relevant government departments, public sector organisations, trade associations for businesses, other organisations in scope and other experts to draft the guidance.

We anticipate that the guidance will follow similar themes to those seen in many regulatory regimes—albeit that in this case they are not requirements—and to guidance for existing failure to prevent offences. This includes regular risk assessments to establish the level and type of fraud risks to be addressed; establishing fraud controls and due diligence processes designed to prevent fraud or spot it in the early stages before the offence is carried out; leadership and training to ensure that employees implement controls and create a culture within the organisation that does not accept fraudulent practices as a route to boosting performance and profits; and monitoring and review to ensure that procedures remain effective. I am happy to hold further discussions on this subject at the noble Lord’s convenience.

[Lord Sandhurst (Con)]

I was waiting to hear the tenor of my noble friend’s response. He opened by saying that a relevant body includes a telecoms company. That is not my point. A telecoms company is obviously likely to be a relevant body. My complaint is that those within scope include only associated persons and not the fraudster who actually makes money indirectly or directly by paying charges to the telecoms company. That target is missed altogether by this Bill and the Online Safety Bill. Is it the intention that telecoms companies will continue to have no responsibility at all for spoof calls and so on?

[Lord Sharpe of Epsom (Con)]

We will come on to this in more detail on a later group. Perhaps we should leave the detail of this debate until the third group, which we will get to at some point.

--- Later in debate ---

As the noble Lord, Lord Vaux, said, these two amendments together—I put my name to Amendment 91 because there was not space on Amendment 94—tackle all the enablers in the fraud chain, taking us forward with the whole of society to tackle a problem that threatens all of us.

[Lord Sandhurst (Con)]

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

“read, mark, learn, and inwardly digest”

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

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

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

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

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

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

[Lord Garnier (Con)]

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

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

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

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


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

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

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

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

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

Code of Practice on the Recording and Retention of Personal Data in relation to Non-Crime Hate Incidents

Lord Sandhurst Excerpts

Wednesday 26th April 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)]

My Lords, I begin by acknowledging that non-crime hate incidents have attracted a significant amount of controversy, particularly in this place, due to concerns relating to free speech. I am grateful to all those who expressed their views on this topic during the passage of the Police, Crime, Sentencing and Courts Act 2022. The Government fully understand the strength of feeling on this matter, both within this House and among the public more widely, which is precisely why we laid this code before Parliament on 13 March.

Let me first explain that the collection of non-crime hate incident information is a key legacy of the Macpherson inquiry into the murder of Stephen Lawrence. This information pertains to incidents which are not crimes and provides the police with the means to understand tensions within communities or cases involving particular individuals before they can escalate into serious harm. In this respect, this data is vital for helping the police build intelligence to understand where they must target resources to prevent serious crimes or harms which may later occur. 

This Government are absolutely clear that vulnerable individuals and communities must continue to be protected. However, non-crime hate incidents must never be used to inhibit lawful debate, and we must also be very careful about what information is kept on an individual’s record. This balance has unfortunately not always been struck, and this issue is precisely what the code is designed to address.

Free speech is a cornerstone of our democracy. This code addresses concerns that those who express views which some consider offensive but are not against the law are at risk of becoming the subject of a non- crime hate incident report, and that this may result in their personal data being stored on a policing record. It addresses those concerns by introducing new safeguards to ensure that personal data may be included in a non-crime hate incident record only if the event is clearly motivated by intentional hostility and where there is a real risk of escalation causing significant harm or a criminal offence.

To be recorded as a non-crime hate incident or NCHI, the police must judge that any perception of hostility is valid; the complaint must not be irrational, trivial or malicious. This will ensure that the police record NCHIs only when it is absolutely necessary and proportionate to do so, and not simply because someone is offended. The code also provides detailed guidance on freedom of expression. Clear case studies to illustrate how this fundamental right should be considered in practice by the police are also set out.

We are confident that the content of the code fully reflects the Court of Appeal’s judgment in the case of Harry Miller v College of Policing, which was handed down in December 2021. The court found that the recording of these incidents is lawful but must be subject to more robust safeguards to ensure that such recording is proportionate and protects free speech. As I have mentioned, this is exactly what the code provides. I particularly thank the National Police Chiefs’ Council, the College of Policing and senior police officers, who have engaged with Home Office officials throughout the drafting process to ensure that this code will work from an operational standpoint.

The College of Policing is also currently updating operational guidance for police on the recording of such incidents to ensure this guidance aligns with the new code. The college will also roll out the requisite training for police officers to ensure that the principles within the code are fully understood and embedded within everyday policing practice. This will ensure that the code is applied consistently by forces across England and Wales.

To reiterate, by taking these steps, we are protecting the vital changes that have been implemented by policing since the Stephen Lawrence inquiry. We continue to recognise the need to record intelligence that enables the police to intervene to prevent serious harms and future crimes, and we are determined to support the police in protecting the public. However, we have listened to the concerns raised in relation to the fact that this recording has at times gone too far, and we have acted on them. This code will better protect people’s fundamental right to freedom of expression, as well as their personal data, while still ensuring that vulnerable individuals and communities continue to be safeguarded. By bringing forward the code, we have also ensured that the process is subject to much-needed democratic scrutiny. With that, I commend the draft code to the Committee and beg to move.

[Lord Sandhurst (Con)]

My Lords, I must begin by acknowledging the role of my noble friend Lord Moylan, who sadly cannot speak in this debate today. My noble friend moved amendments, which I supported, to the then Police, Crime, Sentencing and Courts Bill in the autumn of 2020. We sought to make the Secretary of State responsible for determining five things in particular: first, the basis on which the record of the incident is to be kept; secondly, how those sensitive records are to be kept; thirdly, for how long they are to be kept; fourthly, what provisions there would be for review; and, fifthly, to whom and on what basis the information on them might be disclosed.

I remind the Committee that, until now, there has been no formal basis to ensure a proper system for selecting and recording what is to be logged, what personal data are to be kept, or when, if ever, the matter is to be reviewed. Nor was there any consistent basis as to when the subject would be given the opportunity, if at all, to respond. This code of practice, made pursuant to what is now the Act, is therefore the first such code of practice on this important matter. Having read it with care, I commend it to the Committee and believe we should approve it. It addresses all our core points and it is good to have it on a proper statutory basis.

Looking forward, however, there are a number of things. We must keep the code of practice’s application under review. I understand that the number of reports which are now on record runs well into six figures—a very large number. Remember that the subjects have committed no crime, but in many cases their names have been recorded and remain recorded.

Public Order Bill

Lord Sandhurst Excerpts

Consideration of Commons amendments
Tuesday 28th March 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, this Bill was always about political signals, not sensible policy. Finally, even signals must change. I respect the Minister, but others in the Home Office have been slow to respond to the concerns of the British public about abuses of broad police powers.

Much has happened and even more has been exposed since this Bill began its passage last May. Last July Wayne Couzens lost an appeal against a whole life sentence for the abduction, rape and murder of Sarah Everard while he was a serving police officer, after a purported stop and arrest for breach of lockdown laws in March 2021. Last month David Carrick was imprisoned for 30 years for an unrestrained 18-year campaign of rape and abuse while he was a serving police officer.

Also last month, YouGov reported that 51% of Londoners do not trust the Metropolitan Police very much or at all. Last week, as we have heard, the noble Baroness, Lady Casey, called for a “fundamental reset” of the use of stop and search, which she said is

“currently deployed by the Met at the cost of legitimacy, trust and, therefore, consent.”

Just yesterday the Children’s Commissioner, Dame Rachel de Souza, found that nearly 3,000 children aged between eight and 17 had been strip-searched under stop and search powers between 2018 and 2022. Nearly 40% of them were black. Half of those strip searches had no appropriate adult present.

All this relates to the use and abuse of current police powers. Still, today we are being asked yet again to green-light new powers to stop and search peaceful protesters without even a reasonable suspicion of criminality. When trust in policing and the rule of law is in jeopardy, if this House does not exercise its constitutional duty to say “enough”—no more power without at least the modest statutory responsibilities set out in Motion A1 in the name of my noble friend Lord Coaker—what are we for?

[Lord Sandhurst (Con)]

My Lords, I had not planned to speak, but it is important to remember that we are not dealing simply with peaceful protests. I remind the House of what I said on a previous occasion in respect of these amendments. We are dealing with organised, large-scale disruption, using implements. The purpose of the disruption, as the disrupters make plain, is not simply to protest but to stop citizens going about their lawful business for a disproportionate length of time. As I reminded the House previously, the European Court of Justice in Strasbourg has said more than once that such activity is unlawful and that protests that go beyond merely protesting can legitimately be stopped by government.

Public Order Bill

Lord Sandhurst Excerpts

Report stage
Monday 30th January 2023 Lords Chamber

[Baroness Meacher (CB)]

The noble Lord, Lord Deben, has made some very important points, particularly in relation to the police. It is worth elaborating for a couple more sentences. The fact is that the police already have great powers to deal with demonstrations and simply do not use them, as he suggested—partly because the police do not carry a huge amount of trust. The fact is also that these demonstrations reflect a huge amount of feeling among the public, and the police do not wish to stand out against those very strong feelings. Adding further powers for the police is not going to be helpful because the police will simply not use them for the reasons that the noble Lord, Lord Deben, very brilliantly—as always—pointed out. My main argument against these powers is that there is no point in them. They are designed to frighten people not to go out on protests. The police do not want these powers; they know that they would not use them. Therefore, they should not be introduced by Parliament.

[Lord Sandhurst (Con)]

My Lords, I will speak to my Amendment 55. I am grateful to follow the speech of my noble friend Lord Faulks. My amendment addresses the legal difficulties caused by the judgment of the Supreme Court in 2021 in the case of Ziegler, in respect of offences in which it will be, and will remain, a defence for a person charged to prove that they had a lawful or reasonable excuse for the act in question.

The judgment in Ziegler concerned Section 137 of the Highways Act 1980, which makes it an offence for a person

“without lawful authority or excuse”

wilfully to obstruct

“free passage along a highway”.

The Supreme Court ruled that the exercise of the convention rights to freedom of expression and freedom of assembly and association—which might loosely be summarised as the right to protest—constituted a lawful excuse. This has the effect that, before a person may be convicted of obstructing the highway, the prosecution must prove that a conviction would be a proportionate and thus justified interference with that person’s convention rights. In practice, this has caused real difficulties for the police, who at times have appeared paralysed. It has made it difficult for judges to run trials fairly and for magistrates to reach decisions.

My amendment leaves in the word “reasonable”. It does not make it a strict offence to obstruct the highway. You can still do it if you have a “lawful authority or excuse”. What is to be judged in future would be the duration and nature of what is done, not the fact that you have what you consider to be a high motive—whether it is flat-earth or anti-abortion protesters, it does not matter. It is not about whether you are a good person, or you think you are a good person; it is about what you are actually doing and whether you are stopping ambulances and people going about their daily lives unreasonably and for too long.

The amendment means that conduct being intended or designed to influence government or public opinion will not, of itself, make it reasonable or lawful. That is consistent with the jurisprudence of the Strasbourg court. I stress that the court has said:

“In a democratic society based on the rule of law, the ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression”.


However, the law protects only the right to peaceful assembly. Articles 10 and 11 of the convention establish that public authorities are entitled to interfere with the right to protest for legitimate purposes such as the prevention of disorder, the prevention of crime and—importantly—the protection of the rights and freedoms of others. It is not about stopping every march, but about stopping prolonged obstruction. That is what we are about.

The Strasbourg court has gone on to rule that the rights of the public include the right to move freely on public roads without restriction, so there are two rights here; you have a right to protest, but the general public also have a right to move freely on public roads without restriction. It is a balancing exercise. The court has further recognised that states have a wide margin of appreciation in determining necessity when it comes to taking action against those who deliberately disrupt traffic or other aspects of normal life.

The right to protest in a public place exists, but it is not unfettered. It must be balanced against the rights of your fellow citizens. If the public are to be protected in the face of these novel types of protest we have not seen before, which in their duration and nature go far beyond what is fair and reasonable, the police must be able to intervene and not be paralysed by anxiety. Peaceful assembly and ordinary marches will still be protected. The public will still have to suffer and tolerate a measure of inconvenience and delay, but that will be within bounds.

My amendment would end the state of affairs in which persons who obstruct the highway, damage property or seek to avoid arrest can distort and upset the proper balance by asserting their motive. Peaceful protest will be permitted, but the balance will be restored. That is why, at the end of the amendment, it makes it plain that

“this section must be treated as necessary in a democratic society for the protection of the rights and freedoms of others”.

Henceforth, if my amendment is adopted, your assertion of a high motive will not suffice. You will be judged by what you did, how long it went on for, and the effect on other people.

[Lord Wolfson of Tredegar (Con)]

My Lords, as the House has just heard from my noble friend Lord Sandhurst, the area of law we are dealing with is the proportionate interference with convention rights. I respectfully agree with him that the decision of the Supreme Court in Ziegler raises the question of the correct balance and makes it important for the House to legislate in this area. However, it is my misfortune to disagree with him that we should take this opportunity to overturn the decision in Ziegler. Rather, I respectfully commend the approach of the noble and learned Lord, Lord Hope of Craighead, which has been set out for us this evening by the noble Lord, Lord Faulks.

Critically, the presumption of innocence is at the heart of our judicial process, and I do not think that any of these amendments cut across that. There are three reasons why I suggest that the amendment in the name of the noble and learned Lord, Lord Hope of Craighead, which is supported by the Government, ought to be accepted. The first is the point made by the Constitution Committee that we need precision in this area. Secondly, there is the fundamental point that we should not be leaving this to the police or the courts to decide on a case-by-case basis; as Parliament, we should take the opportunity, and indeed the responsibility, to draw the bounds of the offences in this area. Thirdly, we need to remember that, at the moment, Section 3 of the Human Rights Act requires the court to read any legislation, if possible, consistently with the convention. Absent, I suggest, the amendment of the noble and learned Lord, Lord Hope of Craighead, there is a real risk that the court will read down clauses to make them consistent with how it considers convention rights should be applied.

On the basis of the approach of the noble and learned Lord, Lord Hope, there is scope for reasonable excuse, but it is limited. That means we do not run the risk of the courts deciding cases on an unanticipated, or perhaps even incorrect, basis. We also do not need—despite my noble friend Lord Sandhurst’s amendment—to overturn the Ziegler case; what we will have, however, is a consistent, clear and precise approach to criminal law, which is precisely what we ought to have. I accept that some of my colleagues at the Bar may not be particularly happy with that, but, in this area and perhaps in others, their loss may indeed be the law’s gain.