Bribery Act 2010: Post-legislative Scrutiny (Select Committee Report)

Lord Stunell Excerpts

Wednesday 3rd February 2021 Grand Committee

[Lord Stunell (LD) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Gold, one of the many distinguished and high-powered members of the committee, on which I too served, under the very effective chairmanship of the noble and learned Lord, Lord Saville. It was as well-informed and expert committee as your Lordships would expect.

However, I was not one of those experts. I came on to it straight off the Clapham omnibus, via the Committee on Standards in Public Life. For me, the test was: how can we get to the gold standard of effectiveness in the fight against corruption, in the punishment of bribery, and in the deterrence of anyone from using bribery or corruption in other forms as a route to business success?

The UK has one of the better legal frameworks for tackling bribery—certainly up to silver standard but definitely not gold standard. We are high in the international corruption perceptions index, which is good, but we are not top of that list. Our score has fallen from 82 points out of 100 in 2017 to 77 points last year. A five-point decline in four years is not a world-beating performance, and we have now dropped out of the top 10 on that index. Surely we should be moving towards the gold standard, and not dropping down to bronze, in the years ahead. I will pick out two of our recommendations that show where we could reverse that decline and comment on another where I fear that the UK is now anyway committed to going further downhill.

First, regarding our skilfully drafted recommendation 9 on vicarious liability, on which others have already spoken, the issue for me is whether, when the ship sinks, the captain should go down with the ship or whether, so long as he did not realise that someone was steering on to the rocks, he should get away in the lifeboat with no court of inquiry to follow. To the lawyers, it is “mens rea”—not much spoken of on the Clapham omnibus. What normal people expect the law to do is to hand out just deserts to those in authority who show reckless ignorance of wrongdoing on their watch.

Instead, protected by the current law, it is absolutely in the best interests of those who run large businesses and multinational companies to keep themselves carefully ignorant of any evidence of bribery by underlings when they bring home big contracts and boost company profits. When knowledge means taking legal responsibility and ignorance means acquittal, the incentives are perverse. The committee noted evidence that, as a result of that, it is much easier to convict the boss of an SME than the boss of a multinational company. That, too, is a wholly perverse outcome of the current framework of legislation.

The committee’s recommendation does not endorse this perversity, but nor does it recommend any change. But if we ever want to get to gold standard, we will have to find a way to reconcile our legal principles with common sense, as has already been achieved in the United States and other jurisdictions to good effect. My question to the Minister is: does he actually want to be world-beating? Does he aspire to reach gold standard on corruption? If it is not via vicarious liability provisions, what does he propose as the alternative?

That brings me to the committee’s recommendation 20, where we pressed the Government to introduce a “failure to prevent” offence to a wider range of economic crimes and corrupt practices. There is clear evidence that a “failure to prevent” offence is an effective inducement to companies to put in place a culture of compliance and systems and processes to support that culture. Among other important benefits—like actually stopping bribery happening—it means that bosses cannot so easily shelter behind ignorance if a case does come to light. It is, therefore, very disappointing that the Government have given a very tepid response to our recommendation. I could quote the Government’s response at length, but I will summarise it by saying it was pretty much a lemon. It is a clear opportunity to raise our score on that index, so I hope to hear the Minister say that he will now quickly revisit this key issue and get things moving in the right direction.

Lastly, recommendation 14 focused on the European arrest warrant, where we said:

“The fight against international bribery will be significantly impeded if there are not in force … measures with equivalent effect to the European Arrest Warrant.”


In his evidence to us, the Minister, Ben Wallace MP, said that the loss of the EU arrest warrant

“would have a degrading effect on our ability”.

In the event, as your Lordships will know, the UK has ditched the European arrest warrant—a clear step backwards in the fight against corruption. So my final question to the Minister is: what concrete plans do the Government have to reverse this slide down the league and to rebuild our record of ethical business practices, both at home and abroad?

Queen’s Speech

Lord Stunell Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Stunell (LD)]

My Lords, it is a pleasure to contribute to this debate. I will speak primarily on the climate emergency. I would have spoken in the debate on Thursday, but I had, in parallel with it, a meeting of the Committee on Standards in Public Life, the work of which is needed at present, as the noble Lord, Lord True, reminded the House. I therefore missed the introduction to that debate by the noble Baroness, Lady Vere of Norbiton, but I was careful to read it and was able to listen to much of the remainder of the debate in the afternoon. Many noble Lords spoke about the need to revolutionise our transport system, the technology of power generation and the lifestyle choices that we make. I will focus on another vital ingredient of tackling the climate emergency which is relevant to today’s subject: the need to tackle carbon reduction in our built environment. That crosses so many ministerial and departmental policy silos that I could have spoken in any debate. I hope that, when she winds up, the Minister will be able to give reassurance on some of my points.

The heating, lighting and powering of buildings is responsible for about one-third of the United Kingdom’s CO₂ emissions. That includes our homes, schools, hospitals, care homes, offices, factories and shops. It also includes colleges, universities and civic buildings. I point out to the noble and learned Lord, Lord Keen of Elie, that it also includes courts and prisons—we are clearly going to be needing some more prisons. It includes national and local civic buildings and places of entertainment and worship. The typical house emits more carbon dioxide in a year than a typical car. Yet public policy is focused towards cutting emissions from road vehicles, for which significant subsidies are available, with public policy on saving energy for buildings actually going backwards since 2015. I speak as the Minister who was responsible for getting the zero-carbon homes policy ready to go live in 2016, only to share the frustration and anger of the industry when that policy was abandoned by the new Conservative Government in 2015, together with the scrapping of the Green Deal, which aimed at upgrading the performance of existing homes. However, I acknowledge the work of the previous Chancellor, Philip Hammond. His Spring Statement this year gave notice of the future homes standard, aimed at resuming forward progress. I am sure it is completely coincidental that he has since had the Tory Whip removed.

The Government are now consulting on new, higher standards of energy performance for new homes. If they go forward, these would come into force in two stages in 2025. The Government dress up this nine-year delay in reaching the standard that was going to come into play in 2016 as evidence of their being “the greenest Government ever”—I think that comes under the heading of “classic Dom”. We have had a Queen’s Speech with almost nothing to say about the urgent steps needed, in every policy area, to combat the climate emergency. We have got an Environment Bill, and it offers some useful and interesting ideas but, as drafted at the moment, it will make no measurable impact on cutting CO₂ emissions. We have a belated consultation on introducing higher standards for newer homes, but that will not be until 2025. There is absolutely nothing planned to raise the energy performance of the 20 million homes that are already built and whose planned life extends beyond 2050. There is nothing about raising new building standards for all the other kinds of buildings, new or existing. There is nothing even about enforcing energy performance certificates for homes, nor displaying them on all the other buildings to which the public have access. That would be the safest of nudge policies, yet the current Government have deliberately allowed them to fall into misuse and no use. I asked a Question about how many of the Government’s buildings actually had a display energy certificate—which, incidentally, is a legal necessity—but they have not got the slightest idea.

The Liberal Democrats have plans to tackle all these things and more and an intention to reach the target of carbon neutrality for our country in 2045, not 2050. The climate emergency requires urgent action on all fronts now. The built environment has to be rapidly moved up the Government’s agenda for action. Sadly, the Queen’s Speech is a feeble and disappointing signal of their intentions.

Immigration Bill

Lord Stunell Excerpts

Monday 1st February 2016 Lords Chamber

Finally, will the Minister tell the House what examination has been made, as Shaw did, of experience elsewhere? Currently, there is no statutory maximum time limit on how long an individual can be held in immigration detention, but this makes the United Kingdom an outlier among EU member states, most of which are signatories to the European Union returns directive, which specifies a six-month time limit. Many member states operate a shorter time limit. For example, in France the time limit is 45 days, in Spain and Portugal it is 60 days, and in Belgium it is two months. In Ireland, which along with the UK is the only EU member state not signed up to the returns directive, the maximum time limit is 21 days. What account have we taken of experience overseas and why are we not signatories to the returns directive? Is that still on the agenda and, if not, why not?

[Lord Stunell (LD)]

My Lords, I support this run of amendments. I do so not with a lot of expertise but with real puzzlement. I hope that the Minister can deal with one or two of my puzzles relating to the cost, effectiveness and impact of the current policy and the possible risks there might be should it ever be changed. Does the Minister have a ready list of other policies that cost £160 million a year and produce no measurable benefits what ever to anybody? If he has, I recommend that he talks to the Chancellor about how that might be used effectively elsewhere by the Government.

The percentage of people who are detained and who subsequently return is not that high. Does the Minister have the figures for the returns percentage of those who are not detained? I strongly suspect that detaining people is no more successful in encouraging them not to return than not detaining them. However, the Minister may have some evidence that would contradict my impression, and I think we should hear it.

There are two impacts that I would like to hear some evidence from the Minister about. One of those is the impact on the United Kingdom’s reputation for the rule of the law—the noble Lord, Lord Dubs, made the point just a few minutes ago—our reputation for fairness and our reputation for pragmatic common sense. We rather pride ourselves on our pragmatism and common sense when it comes to public administration. Does the Minister have any evidence that those countries that have a set time limit find that that leads to them having fewer returners than we do? What evidence is there that our asylum seekers—those who reach our shores—are more dangerous than those who get to France, Spain or Italy? Are they more likely to abscond than the people who go to those countries? In terms of the importance of having this policy at all, are we more successful in getting returners by not having that time limit than those countries are by having one? If that is a central part of the justification for the current policy, I am sure that the Minister will have those figures at his fingertips.

Then there is the impact on detainees themselves. The mental health impact and the impact on pregnant women have been mentioned. Bearing in mind that two-thirds of these people will be let out into the community eventually, the mental health costs and the costs for the children will fall on the National Health Service. What assessment have the Government made of the additional National Health Service costs generated by the impact of returning detainees to the community, with all the problems so ably set out in the Shaw report? I notice from an earlier debate that when it came to reporting complaints about treatment by immigration officers, the Government pointed out that there were five different routes to register a complaint. Obviously, if you do not speak English and have no experience of democratic public institutions and how they might be able to help you, those are formidable barriers to taking advantage of that help. So far as I understood from the puzzled looks around this Chamber, none of us knew how the process worked, never mind someone detained in Yarl’s Wood. What information is put in the way of detainees about how they can claim the rights that the Minister sets out as being available?

My final question is the same as the one I started with. What purpose does it serve to have the current policy, which costs public money, is not effective and has such a negative impact on the UK’s reputation abroad and on detainees themselves? I hope that the various amendments in front of the Committee today will provide some opportunities for the Minister to take back to the ministerial team a clear view that something has to change—to save money, to save the reputation of the United Kingdom and to save detainees the indignities that we are inflicting on them.

[Lord Green of Deddington (CB)]

My Lords, I find myself once again in a minority of one in the Committee, but I am reassured that I am not in such a minority in the country as a whole.

The Bill and these amendments should be considered in a wider context. The removal of immigration offenders is central to the credibility of any immigration system. Furthermore, detention is an essential component of the removal process. Of course it is undesirable for people to spend long periods of time in detention, but in practice that is not the outcome of a majority of cases. The noble Lord, Lord Hylton, mentioned some statistics, but there are others from the same year, 2014. About 30,000 people were detained in that year, but 63% were detained for less than 28 days, of whom 37% were detained for less than seven days. Only 11% of those detained spent more than three months in detention and, of those, 62% were eventually removed from the UK, which suggests that those cases were among the more difficult ones and that detention was necessary to achieve removal.

Individual cases vary enormously. I do not think anyone would favour pregnant women being held in detention, but any specific time limit would be an invitation to those concerned and their lawyers to game the system. Let us not forget that 50% of all those who claim asylum in this country are in fact refused, and that includes those who have made an appeal and have lost it. That is the average over the past 10 years, so broadly speaking we are talking about a significant number of people who the immigration courts have decided no longer have the right to be in this country. Those are the people we are talking about here.

Those who attended the Second Reading debate will have heard the most eloquent intervention by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in which he stressed the complexities of the issues and the fact that detention is permitted only where there is a reasonable prospect of removal. That is the case law and he set it out clearly, and it seems to me a reasonable approach to this issue.

There are of course other entirely different approaches to reducing the time spent in detention. One example is to have effective returns agreements with third countries and to combine those with dedicated resources for enforcement so that the entire process speeds up. Meanwhile, any significant reduction in the use or indeed the prospect of detention could only encourage people to stay on illegally in the hope, and even the expectation, that they could dodge removal. Finally, we cannot be blind to the extraordinary events that are taking place in southern Europe. This is surely not the time to weaken our capability to return economic migrants to their countries of origin.

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie)]

I wonder whether I might, as it were, intervene at this point. I was obliged for the contributions from all corners of the House about what is a difficult and demanding issue. Having regard to the observations of the noble Lord, Lord Stunell, I notice that the immigration system with which he is struggling is a product, at least to a material degree, of the Immigration Act 2014, which is in turn the product of a coalition Government, in which I believe he was a Minister. That said, clearly there is room for improvement. On that we can agree, and that is why the Bill is before the House.

[Lord Stunell]

I thank the Minister for giving way, and of course he is absolutely right. I am very proud of the fact that we secured some mitigation of the existing scheme in what was achieved on child detention, which I am sure he welcomes.

[Lord Keen of Elie]

One of the points that the noble Lord referred to, and which was referred to also by the noble Lord, Lord Alton, was the question of set time limits, and the limits that apply in the context of the EU returns directive. It is important to have a full understanding of the EU returns directive. It sets a limit on immigration detention of six months and is extendable to 18 months. Some EU countries have shorter limits—France, for example—but Germany allows for the full 18 months’ extension under the directive. So one has to have regard to the full terms of the EU directive.

The United Kingdom has not signed up to the EU returns directive; we prefer to maintain control of our own borders. There are other issues to be considered as well. The very legal system within each of these European countries is distinct, so for example, in some there is no concept of judicial review of executive action, as we understand it, and therefore no scope for review of executive action in the context of immigration control and the application of immigration policy. So one has to be a little careful when seeking to rely on comparative law and comparative data.

We are, of course, working towards the voluntary return of illegal migrants to this country, as well as implementing various schemes to deal with those who refuse to return. I notice that during the last two years there have been more than 50,000 voluntary returns by migrants to this country. Again, that is simply to put the matter in context.

The noble Lord, Lord Ramsbotham, raised issues about the Bill itself and whether, given the amendments that have been made, it should not at this stage simply be withdrawn for the Government to consider many of the changes that they might have in mind, or, indeed, have regard to the amendments that have already taken place. Again, at a general level, I note that the Bill deals with a whole series of issues: labour market reform, housing, driving and driving licences, illegal working, the appeals process, immigration and bail. Only one or two aspects of that are immediately impacted by the issue that we are addressing in the context of detention.

The noble Lord also alluded to the number of amendments—but again, to put that in context, amendments took place following the consultation on labour market enforcement. When one examines them, one sees that a great number of the amendments address only a few discrete issues. For example, a whole series of amendments were required because of the nature of the local rules that apply to taxis and taxi licensing. From Portsmouth to John O’Groats, there seem to be varying rules regarding that matter. In addition, as the noble Lord, Lord Kennedy, noted, there had to be extensive amendments with regard to warrants under the judicial system in Scotland. So one has to get this into context and have a sense of proportion about what the Bill is doing.

Reference was made to Stephen Shaw’s report, which we welcomed, considered and continue to consider. Stephen Shaw did not make any recommendations about legislation. Much of what he says, so far as it is to be implemented, will be implemented by guidance, not by primary legislation. Again, it is important to get these points into context so that we understand what we are dealing with.

I will come back to some of the individual points raised, but first I will deal with the individual amendments, beginning with Amendment 216. This would require the Secretary of State to commission an independent report into the use of immigration detention, which would need to consider: how effective current use of detention is; how effective current safeguards are; how to reduce the numbers in detention; and the practical steps needed to introduce a maximum time limit for detention of 28 days.

While I understand the intentions behind the proposed new clause, in our submission it is not necessary. Stephen Shaw has undertaken an independent review of our approach to the detention of vulnerable individuals. The Government have published his report and our initial response to it, through a Written Ministerial Statement published on 14 January. It is not the length of that response that is material; it is the quality of it that truly matters. In it, we have set out our ambition to see a reduction in the number of those detained, and the duration of detention before removal, which in turn would improve the welfare of those detained.

The Government have broadly accepted the recommendations that Stephen Shaw made, and in particular will introduce a strengthened presumption that adults at risk should not be detained unless there is clear evidence of immigration risk factors. I take this opportunity, which I am sure that the whole Committee will echo, to thank Stephen Shaw for his thoughtful and in-depth consideration of these very material issues and for his associated recommendations.

If Amendment 216 is agreed it will simply duplicate the work that Stephen Shaw has undertaken and delay the Government’s programme of implementation while the outcome of the new review is considered. Here we are addressing this Government’s manifesto commitments.

Amendment 216ZA would place a statutory requirement on the Secretary of State to review our policy on detention and bail conditions, and consult as part of that exercise. Again, Stephen Shaw has already done much of this. He has undertaken an in-depth review of our policy and made recommendations for improvements. We will take forward this work and, again, it will be implemented not by primary legislation but by consideration of guidance.

Amendment 216ZB requires a review of the rules and regulations about how individuals are treated while in immigration detention. I wish to make it clear to the Committee that the Secretary of State takes her duty of care to these individuals very seriously indeed. Healthcare is provided by the National Health Service and there are meaningful activities provided. Individuals also have access to legal advice—a point that was raised earlier—and to translation services.

Immigration removal centres are not prisons and do not have as strict a regime as prisons. Individuals are allowed to associate and move freely throughout the centres. However, the Government have accepted the broad thrust of Stephen Shaw’s report and will be taking further action to review our policies and procedures to ensure that detainee welfare is at the heart of immigration removal centres’ regimes.

Amendment 216ZC would mean that an individual who claims to be vulnerable could not be detained on the authority of the Secretary of State; a request would need to be made to the tribunal to authorise detention. It would also have the effect of preventing the detention of pregnant women in any circumstances. I understand the intention of this amendment, and the whole House will agree that vulnerable individuals should not normally be detained. That is our current published policy. In response to Stephen Shaw we will be further strengthening our approach, introducing a new “adult at risk” concept into decision-making on immigration detention. This means adopting a wider definition than at present of what constitutes an adult at risk, with a clear presumption that people who are at risk, including pregnant women, should not be detained.

Oral Answers to Questions

Lord Stunell Excerpts

Wednesday 21st November 2012 Commons Chamber

[The Prime Minister]

The Government strongly support the growth in apprenticeships, and we have seen something like 1 million new apprenticeships under this Government. I know that housing benefit is a very important issue, but there is a problem, which needs proper attention: we seem to give some young people a choice today, in that if they are on jobseeker’s allowance they can have access to housing benefit, but if they are living at home and trying to work they cannot. We need to recognise that in many cases we are sending a negative signal to young people through our welfare system.

[Andrew Stunell (Hazel Grove) (LD)]

Is it still the Prime Minister’s intention that this should be the greenest Government ever?

[The Prime Minister]

Yes, it is. It is this Government who, in record time, have established a Green Investment Bank that is now in Edinburgh and starting to make loans.