Baroness Finn
Main Page: Baroness Finn (Conservative - Life peer)Public Authorities (Fraud, Error and Recovery) Bill
Baroness Finn Excerpts
Baroness Finn
“PurposeThe purpose of this Act is to enable public authorities to identify and prevent fraud and error and recover monies lost through fraud or error, and to strengthen mechanisms for reducing fraudulent activity across public services.”
Member’s explanatory statement
This amendment sets out the purpose of the Bill—to identify, prevent and recover public funds lost through fraud and error, and to strengthen mechanisms used to reduce fraud across public services.
Baroness Finn (Con)
My Lords, this is a serious Bill. It deals with a serious problem. Fraud against the taxpayer is not a footnote. It is not a rounding error. It is a threat to public trust and the integrity of government. We on these Benches support the purpose behind the Bill. We want it to succeed. We want it to be strong, clear and capable of making a difference from the moment it takes effect. In the days ahead, we will approach Committee with purpose. We will work with the Government where we can; we will press them where we must. Our proposals will be focused, practical and aimed at making the Bill stronger.
At Second Reading, we raised a number of issues. These remain our priorities. We want proper oversight of the powers granted to the Public Sector Fraud Authority. We want strong review mechanisms. We want protection for those who may be exposed or vulnerable and we want recognition of the cost burden placed on those who are asked to deliver these powers. These concerns are not confined to one party or one corner of the House; they are widely shared. They reflect a simple truth: good intentions are not good enough. If we are to defeat fraud, we need sharp tools, clear lines of responsibility and laws that do not fold under pressure. That is the task before us and the spirit in which we will proceed.
We will be starting our Committee stage discussion by covering some of the proposals put forward in relation to the Cabinet Office. We broadly support the intention of these measures, but we have several key concerns and suggestions around the Bill as it stands. First, the role of the Public Sector Fraud Authority remains ill defined, particularly in relation to other public authorities. At present, the PSFA can only act when invited by the very bodies it is supposed to scrutinise. This is not effective oversight; it is an invitation to avoidance. Departments can simply choose not to refer themselves.
More importantly, if they lack the legal powers to investigate fraud internally, these powers should be given to them directly. If they already possess them but fail to act, a central authority merely serves as a convenient place to offload difficult or politically awkward cases. Yet the Bill does not address this gap. It does not strengthen departments or build capacity at source. Instead, it hands sweeping new powers to the Cabinet Office and places responsibility for tackling fraud across the entire public sector in the hands of a team of now just 25 civil servants. That is not a credible model. It concentrates accountability at the centre without providing the means to exercise it effectively and it leaves the rest of the system with little incentive to act.
PSFA officials are handed sweeping PACE powers with no direct authorisation or legal requirement to pass a reasonableness test and can refuse to undertake an investigation with no duty to report the reasons why. The risk is obvious. Complex fraud will be passed from hand to hand, referred and re-referred, until it disappears altogether into the undergrowth of government.
Secondly, the Bill grants the Public Sector Fraud Authority powers of remarkable breadth. These include the ability to obtain information notices, issue civil penalties, apply for search warrants under the Police and Criminal Evidence Act 1984 and extract funds directly from bank accounts by order. These are not judicial decisions; they are executive powers exercised administratively.
Critically, the Bill allows these functions to be exercised not by Ministers but by civil servants, as junior as high executive officer grade, acting as authorised officers under Clause 66. There is no requirement for ministerial sign-off and, in many cases, no real mechanism for contemporaneous parliamentary scrutiny. The only oversight comes in the form of an independent reviewer appointed by, and reporting to, the same Minister whose powers they are reviewing. That reviewer cannot intervene, stop action or compel disclosure. They merely write a report after the fact, which the Minister is then required to publish. That is not accountability; that is delegation without control, power without visibility and scrutiny without consequence. A system that concentrates coercive legal powers in the hands of junior officials outside of clear ministerial direction not only is constitutionally careless but risks creating a grey zone of enforcement where power is exercised without responsibility and mistakes cannot be traced back to those elected to answer for them.
Ensuring that we find the right balance, where we develop the PSFA into an authority that has proportionate powers, a credible anti-fraud function and proper oversight, is the objective of our amendments today. Our first amendment, the purpose clause, is intended to ensure that the use of sweeping powers in the Bill is limited only to the purpose of identifying and preventing fraud and the recovery of public funds lost through fraud and error, as well as to strengthen mechanisms to prevent this in the future. We believe that it is a sensible, proportionate amendment that will ensure that the powers in the Bill are used only in pursuit of that explicit objective. A legal protection against the abuse of powers is a responsible safeguard and, given the extent of some of the powers granted in the Bill, anchoring that to the core purpose on which noble Lords across the House agree is, in our view, a reasonable measure.
Our role as the Opposition, as I said, is to question the Government, to challenge them on their reasons and their rationale and to make suggestions on how to improve legislation. I look forward to this Committee day, and those upcoming, to play that role. I beg to move.
Lord Palmer of Childs Hill (LD)
My Lords, there is really not a lot to say at this stage. We support the purposes of the Bill. Obviously, it is not meant to be a contentious Bill, but the interesting thing is the fine line that it draws between chasing people who have made honest mistakes and those who enter into fraud. As with income tax—if we still use the old words from my accountancy days—the difference between evasion and avoidance is sometimes a very thin line. We will explore where you draw that line in terms of how you chase people for mistakes that have been made, perhaps on purpose or perhaps in error. We look forward to the progress of the Bill to see where those lines are drawn.
Baroness Finn (Con)
My Lords, our first amendment —to insert a purpose clause—has a clear and simple aim. The Bill grants sweeping powers, many of which can be altered and wielded through secondary legislation. Our purpose clause would ensure that any Administration exercising powers under the Bill will be tied to the core purpose that we have defined: to identify and prevent fraud, to recover public funds lost through fraud and error, and to strengthen mechanisms used to reduce fraud across public services.
As we begin Committee, we do so with a clear and constructive purpose. We support the principle of the Bill and share the goal of tackling fraud against the public purse. But as I said at Second Reading, support for the goal must not mean silence about the means. Our focus now must be on ensuring that the legislation is as effective, proportionate and accountable as it needs to be.
Through our amendments and contributions, we aim to improve the Bill—strengthening its safeguards, clarifying its powers and ensuring proper oversight. In doing so, we hope to help shape a framework that is both robust in its fight against fraud and respectful of the principles of fairness and transparency. We look forward to working with the Government and colleagues across the Committee to achieve that outcome. I beg leave to withdraw the amendment.
Baroness Finn
Member’s explanatory statement
This amendment probes the Government’s plans for the extent of the role of the Public Sector Fraud Authority in supporting other public authorities in tackling fraud against them.
Baroness Finn (Con)
My Lords, I apologise for not congratulating the Minister for choosing to spend her honeymoon in these august surroundings. What better way?
At Second Reading, I highlighted the cultural problem with tackling fraud—that it is often safer to overlook than to uncover—so we have to change the culture and ensure that proper tackling of fraud is a cultural practice embedded within every public authority and government department. There is merit in creating a body with the powers to investigate fraud externally, but we need to make sure that proactive prevention and investigation into fraud start at home. Our Amendment 2 seeks to create an obligation for the Minister for the Cabinet Office to support public authorities in undertaking their own investigations into fraud when it occurs in said public authorities. In further developing the PSFA, the Bill provides us with a new resource and opportunity to support departments to intervene early and create mechanisms through which they can tackle this issue internally.
This objective has several key advantages. One major advantage is that this approach recognises that public bodies are complex, with unique funding mechanisms and operational procedures. Internal fraud teams bring intimate knowledge of these environments and have greater capacity to pursue targeted objectives, using knowledge that external agencies may lack. This allows for swifter detection of anomalies, targeted interventions and smarter use of data and insight.
Another significant advantage is that conducting internal fraud investigations inspires deterrence. Internal investigations can often begin before fraud escalates or becomes systemic. Timely action minimises losses and creates a departmental culture that stands more firmly against fraud. Not waiting for an external body to point out what has already gone wrong can embed a culture of deterrence and proactive interdepartmental counterfraud measures, which are an opportunity to minimise losses and therefore departmental damage.
Of course, internal investigation must never mean internal cover-up. The answer is not to sideline external oversight but to complement it. We must ensure that departments are equipped with the right skills, resources and authority to carry out investigations properly and that they are held to account when they fall short.
Our Amendment 24 seeks to strike this balance by requiring public authorities to conduct an internal review if they lose £50,000 or more through an overpayment or fraud, and to provide that report to the Minister for the Cabinet Office. This measure seeks to meet the benefits that I have just outlined, while embedding in law that responsibility for fraud cannot be outsourced. Authorities that lose money must take account of why this has happened and, fundamentally, they must also take responsibility for it. Making them accountable to the Minister is a mechanism through which we can achieve this.
I hope that the Government will consider supporting the amendments in this group, which seek to embed departmental accountability for fraud while utilising the resources of the PSFA to create intradepartmental cultures that deter and counteract fraud. I beg to move.
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, if we continue at this speed, the Chief Whip will be disappointed that we are doing only seven groups. It is probably unlikely that we will continue at this speed, but I can aspire.
While I appreciate the comments from the noble Baroness, Lady Finn, I want to be clear that Amendment 2 is unnecessary as it is duplicative. It would insert “investigating”, as a way that the Minister can support other public authorities’ actions in response to fraud, separately from the explicit function of investigating if a request is made of the Minister by the public authority, which is earlier in the same clause. It is unnecessary because the word “tackling” in the same line of the clause cited covers any activity to support a public authority dealing with fraud and supporting them in their own investigations too. It is deliberately drawn broadly so, if adopted, this amendment would not change the scope of Part 1.
The Government’s intention with Part 1 is for the PSFA to become one of the ways that public authorities deal with fraud, by requesting that it take on a case for investigation, enforcement or recovery. The PSFA is also happy to support other public authorities in their own fraud investigations, and already does so. Which option is best will depend on the facts of the case.
Amendment 24 would require departments to conduct an internal review if, following a PSFA investigation, it is confirmed that they have lost more than £50,000 to overpayment or fraud. All losses at this scale should already be investigated and reported on. There are established audit, assurance and reporting processes for this.
In addition, the facts of the case would already have been established by the PSFA, and learnings taken from it will be shared on a cross-government basis to aid the prevention of fraud—hence the establishment of the PSFA within the Cabinet Office. This amendment would create an extra burden on each department and replicate the work of the PSFA, and is unnecessary as its core aim will already be addressed through other activities.
I hope that this explanation reassures the noble Baroness, Lady Finn, and that she can therefore withdraw her amendment. I expect that we will discuss more of this in great detail as we continue.
Baroness Finn (Con)
My Lords, I thank the Minister for her response. As we draw the debate on this group to a close, I thank all noble Lords who have engaged with the issues—so I thank the Minister. We are clear in our recognition that tackling fraud must go beyond enforcement. It must be a culture embedded across every public authority and government department. Although it is right that the Public Sector Fraud Authority must have the powers and resources it needs to act decisively, with these amendments we highlight that fraud prevention cannot and must not rely on external investigation alone. The work must begin within departments themselves.
Amendment 2 reflects our view that the Minister for the Cabinet Office should have a duty to support public authorities in carrying out their own investigations, and the amendment seeks to use the resources of the PSFA to encourage early intervention, the development of internal counterfraud capability, and ensuring that every public body has the tools to act on fraud swiftly and effectively to counter fraud at home.
Our Amendment 24, which would require internal reviews for significant losses, is a proportionate and reasonable step towards building a culture of accountability across the public sector. If a public authority loses £50,000 or more through fraud or overpayment, it is right that the public body must work to understand what went wrong, and it is right that it must explain this to the Minister. Without our amendment, we risk allowing the same mistakes to recur, with no mechanism for learning or redress within the public body itself.
Our amendments seek to promote a culture of responsibility. They seek to ensure that no department or authority sees fraud as someone else’s problem or as a matter that will simply be dealt with elsewhere. The message that these amendments send is clear: tackling fraud must begin at home. These proposals are balanced, targeted and grounded in practical experience. I hope the Government will reflect carefully on these points and consider working with us to embed this into the Bill. I beg to withdraw the amendment.
Baroness Finn
Member’s explanatory statement
This amendment seeks to probe the circumstances in which a public authority would recover an amount paid in error.
Baroness Finn (Con)
My Lords, our amendments in this group seek to address some of the limitations that the Bill places on the powers of the PSFA to undertake investigations on behalf of the Minister for the Cabinet Office when it is made aware that fraud is suspected or has occurred in a public authority. It is vital that, in further developing this resource, we ensure that it has the powers and the relevant responsibilities to tackle fraud properly and pose a deterrent to those who seek to commit it in our public authorities.
Amendment 4, standing in my name, seeks to probe the circumstances in which a public authority would recover an amount paid in error. It is important that we distinguish, throughout our discussions over these Committee days, between funds that were acquired by deliberate fraud and funds that were acquired because of a mistake. We hope that, in responding to this amendment, the Government are able to make clear their distinction between these two things and how this will be reflected in the exercise of the powers in the Bill.
Amendment 5 removes the requirement that public bodies must first request an investigation into suspected fraud before the Minister for the Cabinet Office may undertake an investigation. The Bill as it stands contains a considerable loophole that can easily be exploited if any public authority wishes to avoid an investigation into its affairs. The PSFA needs to have the legal capacity to undertake proactive investigations into fraud when it is made aware of appropriate instances or concerns. To rely on public authorities that may be conducting illegal activities to find it within themselves to own up before an investigation could even commence is far too weak. We need a counterfraud authority that proactively goes after fraudsters, not one that waits to be invited to investigate.
We are also concerned that the PSFA, even if a case were referred, could simply refuse to take it out of hand. There is no requirement for the PSFA to justify when a case has been refused if it chooses to do so, and we cannot therefore be certain that the information referred would be acted upon. This creates a direct disincentive for organisations to make representations to the PSFA to initiate an investigation. Why risk the reputational damage of an investigation if it could simply be refused for no apparent reason? This is an issue that we will seek to address and that I hope the Government will consider as an amendment to the Bill.
Amendment 6 would enable the PFA to undertake fraud investigations into HMRC and the DWP. This is an opportunity for us to simplify and co-ordinate counterfraud efforts across the public sector. We must ensure that we do not create a two-tier system in which some authorities are accountable to the Cabinet Office and others are not. This amendment would ensure that the PSFA can exercise these powers to prevent fraud and recover funds across these major public bodies to address the asymmetry that the Bill creates.
Our Amendment 7 balances our proposition that the PSFA be empowered to undertake proactive investigations with the control measures that would limit the use of the powers granted under Part 1 by requiring the Minister to be satisfied that there are reasonable grounds to suspect that fraud or attempted fraud has occurred. This test would ensure that investigations could be initiated only on reasonable grounds. The Bill as it stands provides considerable powers to the Cabinet Office in order to combat and prevent fraud. We need to ensure that these powers are exercised responsibly, carefully and for good reason. Our amendment would hold investigators in the Cabinet Office to a higher threshold before they could begin to exercise these powers, which will protect both the Cabinet Office and the people under investigation from abuse.
Finally, our Amendment 8 would ensure that the fee charged to any public authority by the PSFA would not exceed the amount of money that was recovered. This is a sensible amendment that would ensure that a fraud investigation did not come at a net detriment to the public authority. We feel that providing a legal guarantee to public authorities that they will not be left out of pocket as a result of an investigation is an important reassurance that must be made in the Bill.
Our amendments in this group seek to implement sensible, balanced improvements to the powers and role of the PSFA. By allowing this body to undertake proactive investigations into public authorities, which will include the DWP and HMRC, we will close the loophole in the Bill that allows public bodies to dodge investigations simply by failing to request one. This is balanced with controls on the powers of the PSFA requiring a reasonable grounds test to be met before commencing an investigation, and ensuring that any charges made out to public authorities do not exceed the amount of money recovered. We broadly support the Government’s proposition, although we feel that the purpose of this part—to recover money, combat fraud and deter future offences—will be better met if our amendments are incorporated. I beg to move.
Lord Maude of Horsham (Con)
My Lords, I will speak to Amendments 5 and 6 in the names of my noble friends on the Front Bench.
As I have said, I was the Minister for the Cabinet Office for five long years, during the entirety of the coalition Government—I am not sure that anyone else has been there for that long. Despite the best efforts of some in the higher levels of the Civil Service to have me promoted, moved sideways or eventually fired, I survived and outlasted them all. This was when the coalition Government took over—a time of fiscal crisis, with a budget deficit of some 11% of GDP—and it was urgent that the costs of government should be reduced. We were pretty successful in that: we reduced the running cost of government cumulatively over five years by £52 billion. We were DOGE before anyone had thought of it, and, frankly, we did it much more effectively.
One of the elements that we pursued was fraud and error, and indeed debt. We were surprised to discover that activity to counter fraud, reduce error and recover debt was not being seriously co-ordinated. You would have thought that this would be a core function of the Treasury but it was not; the Treasury’s view was that this should all be done in each of the individual silos, and of course that militates against effectiveness.
On the skill sets around countering fraud, et cetera, we concluded that this was a cross-cutting function that runs right across government and needs to be seen in that way. We started to introduce in a slightly makeshift way—piecemeal, making it up as we went along—what we now call the functional model. This is where these cross-cutting functions—procurement, IT and digital, major projects, and HR—are strongly led from the centre of government, with visibility into what is happening in those functions right across the Government. Of course, it is through all those functions, including financial management, that the money gets spent. However, the Treasury’s view, which is true of most finance ministries anywhere in the world, is that it looks at the verticals, and if something is in an approved budget line, that is it—you get on and do what you like.
There is an underlying assumption that all public servants are equally concerned about conserving public money but, regrettably, that is not universally the case. It is essential that there should be proper central oversight. Given the reluctance of the Treasury to take this seriously—as my noble friend Lord Agnew demonstrated vigorously when he resigned in the middle of a speech on exactly this subject, highlighting the reluctance of the Treasury to give it sufficient focus—the Cabinet Office is the place for this to be done. There needs to be proper oversight into how these functions are being run and are operating, and providing some real-time accountability rather than waiting for the Public Accounts Committee some time after the event, generally after the horse has bolted.
That is why allowing the Minister, through the Public Sector Fraud Authority, to intervene only at the request of a public authority seems justifiable in relation to the wider public sector, but in relation to central government departments, agencies, authorities and so on, it seems to be wholly indefensible. There is an assumption that all these authorities and entities will be so concerned to disclose what has gone on in their departments, in their own backyards, that they will willingly ask the Cabinet Office to intervene and be charged a fee for the privilege. I have to say that real life tells us that this is unlikely to happen because we have real-life experience to look at. When, during the coalition Government, it was disclosed that in one major department two suppliers to government had been systematically overcharging that department over not just a short period but a decade or so, it turned out that this had been known about for some time.
Baroness Finn (Con)
My Lords, on this occasion I want to thank all noble Lords who have contributed. I hope that the Minister will recognise what we are proposing in this group are a series of amendments that would make meeting the objectives and purpose of the Bill easier. I thank her very much for her constructive approach. I especially enjoyed listening to the quotations from Managing Public Money, which used to be quoted extensively at me when I was in the Cabinet Office.
The proposals in the amendments would ensure that fraud could be proactively investigated and counteracted. That is the only way that we will bring fraud rates down, provide an effective deterrent to potential fraudsters and prevent departments dodging oversight by failing to request an investigation. The noble Lord, Lord Palmer, made the sensible case that public authorities must not go only after low-hanging fruit and duck difficult investigations.
I spent five long years as my noble friend Lord Maude of Horsham’s special adviser while he was in post. I spent that time learning from him, especially on the reluctance of the Treasury to engage properly with recovery on fraud. I am delighted that the PSFA has a dual remit and will report to both HMT and the Cabinet Office, but working closely with the Treasury was always a construct where the Treasury would assert its primacy, and I hope that does not happen in this instance if it works negatively.
I had a strong sense of déjà vu while listening to my noble friend Lord Maude of Horsham. He is correct when he says it is wholly indefensible that the PSFA must wait to be invited to conduct investigations into wrongdoing, and we will be probing on that. The DWP does not wait to be invited before it goes after benefit cheats, and there is no reason why public officials should be held to a different standard. The exclusion of DWP and HMRC is perplexing. My noble friend Lord Maude of Horsham correctly picked up on that and made the case—convincingly, I thought—for their inclusion in the remit.
The PSFA must always operate in the public interest, and ensuring that we have adequate thresholds for investigations is a well-established, sensible proposition. Our amendment would ensure that that threshold was included in the Bill so that we could be reassured that the PSFA would operate only once the reasonableness test had been satisfied, a point that was picked up by the noble Baroness, Lady Fox. The same can be said for a legal guarantee that recovering fraud must not come at a cost to the public authority in question.
In conclusion, we believe that our amendments in this group would improve what the Government have already set out in the Bill, and we hope the Committee will support us in incorporating these improvements. On that basis, I beg leave to withdraw the amendment.
Baroness Finn
Member’s explanatory statement
This amendment seeks to ensure the Minister is required to have a reasonable belief that an information notice would be proportionate in each case.
Baroness Finn (Con)
My Lords, the powers granted in this part of the Bill are necessary in principle, although the core principle of proportionality, which guides our approach on these Benches, means that we have some suggestions for improvement. We need to make sure that this system has adequate safeguards, protections and balance. I want to reiterate the view that in pursuit of a legitimate objective, we do not succumb to a temptation for overreach or powers which are too sweeping.
Our Amendment 9 introduces a reasonableness threshold, which has to be met before an information notice can be submitted. This amendment is designed to ensure that the information notice, which imposes a duty on the relevant person to provide information to the Minister, is imposed on that person only if there is a reasonable belief that the information notice would be proportionate.
We need to bear in mind throughout these discussions that the Bill establishes a substantial array of duties and responsibilities, and we need to make sure that when powers are exercised, they are done so with those burdens in mind. Our proposal that these powers can be exercised only when seen as reasonably proportionate incorporates this balance and will ensure that additional operational burdens are not imposed unless thought necessary.
Further, Amendment 10 seeks to protect the person to whom the information notice relates from unfair treatment ahead of any final conclusion about their liability. Banks and financial institutions, particularly when the Bill first comes into effect, will naturally be concerned that they are being asked to provide information about one of their customers in relation to fraud. It is feasible that the said bank may want to withdraw some banking services from the person in question, and it is therefore a reasonable demand that the Government make clear that the person in question is not necessarily guilty of the suspected fraud. We need to make sure that the verdict is not inadvertently passed on the person before a conclusion is reached, and this amendment would ensure that an investigation does not end up constituting a sentence.
Our Amendments 11, 12, 13 and 14 all address the technicalities of the review mechanism and seek to probe the Government on why they have set up the review mechanism in the way that they have in the Bill, Amendment 11 questions the Government on why they have defined 10 working days as the lower limit for the period in which the person to whom the information notice is given has to comply with the demands in the notice. Can the Minister assure the Committee that this period has been set based on a discussion with relevant persons to whom this duty will apply? Again, we need to recognise that this is a duty being imposed on third parties, and we need to balance it with the other activities undertaken by those persons.
Amendment 12 seeks to clarify how a review process could be initiated by the person to whom an information notice is given, which, alongside Amendment 13, seeks to make it easier for the person to review this decision with a longer timeframe. Amendment 14 would oblige the reasons for any decision reached following a review to be set out in writing, placing an additional duty of responsibility and accountability to the Minister for the steps they decide to take.
Alongside the reasonableness test outlined in our Amendment 9, these provisions work to make sure that the powers under the Bill are exercised proportionately and that they are balanced alongside adequate provisions for review, which will promote the sensible application of these notices.
Finally, Amendments 15 and 16 seek to protect the information of a person which has been shared with the Minister by limiting the people with whom that information can be shared. Defining in law that only specific people can have sight of personal, sensitive information is a proportionate check on the power of the Minister and will have the twofold benefit of protecting people who, we must remember, are not actually necessarily guilty of fraud, with the need to check their information to ascertain this fact.
The principle of obtaining information about a person is necessary for the provisions in the Bill to work and the objectives we all share to be met. Our amendments seek to nuance and improve the exercise of these powers by adding a reasonableness test, a clarification of the review process and additional controls on data sharing to protect those to whom the information notice relates. We hope that the Government and noble Lords across the Committee will recognise these improvements to the provisions currently set out in the Bill on information notices and the relevant review processes, and that these will be supported as measured and balanced proposals. I beg to move.
Lord Vaux of Harrowden (CB)
My Lords, I will very quickly make a couple of comments on Amendments 9 and 10. First, on Amendment 9, I have an amendment later in Committee that inserts a reasonableness point in a similar way, so I support this. However, I wonder whether this amendment is actually in the wrong place; I suggest that it ought to be in the initial line—“the Minister should reasonably consider”—as opposed to “reasonably proportionate”, but that is a small issue. I support the concept of Amendment 9.
Amendment 10 is quite important. This issue has been raised by the banking industry, and there is a very real concern that the receipt of a notice might provide reasonable grounds for the financial services firm to know or suspect that the customer has defrauded the public sector. In that situation, the failure to take action, for example to close or restrict the account, might conflict with wider anti-money laundering obligations and, possibly—I am not sure this is right—the corporate criminal offence of failure to prevent fraud. That might include having to exit customer relationships and so on.
So there is a very real concern from the financial services industry here. I am sure that that is not the intention of the Government in this situation but it is something that we need to think about, as the receipt of a notice cannot be seen as reasonable grounds to suspect fraud, because that would set all sorts of hares running against people who might be entirely innocent.
Baroness Finn (Con)
My Lords, as we draw this stage of the debate to a close, I want to reiterate our position that the powers granted in this part of the Bill are in principle necessary. I thank the Minister for her response, but necessity must always be accompanied by proportionality. That guiding principle sits at the heart of the contributions we on these Benches have made today and of how we will approach the remainder of Committee. We have sought throughout to ensure that the powers conferred by this legislation are tempered by appropriate safeguards and a clear sense of balance. In the pursuit of the legitimate and shared objective of tackling fraud against the public purse, we must be vigilant not to reach for powers that are unduly sweeping or risk unintended harm.
Amendment 9 introduces the threshold of reasonableness before an information notice can be issued. This is about recognising that every power granted imposes a corresponding burden. We must ensure that those burdens are justified and not excessive, although I absolutely take the point the noble Lord, Lord Vaux, made about where the word “reasonably” should sit. We will look at this going forward.
Amendment 10 would provide protection for individuals who may find themselves the subject of an information notice and who are not yet found liable, but are potentially facing premature consequences. The noble Baroness, Lady Kramer, raised similar concerns in this area. We want to prevent a situation in which an investigation becomes, in effect, a sentence. Banks and financial institutions in particular need clarity that a notice does not equate to guilt.
Amendments 11 through 14 examine the review mechanism proposed in the Bill. We have asked the Government to justify the 10-day working compliance period in an information notice and whether this reflects realistic operational constraints for third parties. We have also sought to strengthen the ability of the recipient to initiate a review, to provide more time for that review to take place and to require that the Minister’s reasoning be clearly set out in writing. These are sensible and measured proposals that will promote accountability and reinforce the legitimacy of the process, as attested by the justice group in its review.
Lastly, Amendments 15 and 16 address the handling of sensitive information. We propose that any data shared with the Minister under these powers be subject to tightly defined restrictions on further disclosure. This is a proportionate and necessary check, protecting individuals who may never ultimately face action while still allowing the Minister to undertake the task of fraud prevention.
The underlying objectives of this Bill are ones that we all share. Our amendments have been crafted to ensure that these objectives are pursued in a way that is fair, balanced and lawful. They offer reasoned improvements, a reasonableness test, a clearer and fairer review process, and better protections for personal data. I hope they will be supported at a later stage, but for now I beg leave to withdraw the amendment.
Baroness Finn
“(5) Within six months of the day on which this section comes into force, the Minister must prepare and publish guidance on the process by which authorised investigators are appointed in accordance with subsection (3).”Member’s explanatory statement
This amendment would require the Minister to set out the process by which authorised investigators are appointed in statutory guidance.
Baroness Finn (Con)
My Lords, our amendments in this group are based on a recognition of the fact that we are granting sweeping powers to investigators in the PSFA, to be exercised in the name of the Minister. This is, again, all about proportionality.
Amendment 17 would require the Minister to set out in statutory guidance the process through which authorised investigators are appointed. In combating fraud, we must protect against the creation of opaque but powerful bodies with inadequate oversight and accountability. Justice, a cross-party law reform and human rights organisation working to strengthen the UK justice system, recognises this amendment as an effective measure that would bring much-needed clarity to the process of appointment and the standards under consideration in that process.
Amendments 18, 19 and 20 relate to property. Amendment 18 seeks to probe the Government on the sort of changes they anticipate may be deemed necessary by the courts in relation to seized property. Before we vote to endorse this part of the Bill, I hope that the Government will take this opportunity to provide greater clarity on how they expect that the powers provided for under this part will be exercised, which is a particularly important point of clarification given that we are talking about property seized by the state.
Amendments 19 and 20 combined would prolong the period of time that must pass before an order to dispose of or destroy the seized property can be enacted. The seizure and destruction of personal property is a substantial power, and we must balance the practical consideration of holding seized property with a view to protect the rights of the individual to property which is theirs and which they have a right to recover. We believe that extending this period from six months to one year is a proportionate measure that would balance the practicalities of the process with the rights of the citizen.
Amendment 21 relates to oversight of the exercise of powers granted to the Cabinet Office under the provisions in this clause. If the Government deem it necessary to grant powers of this scale to the Cabinet Office in order to combat fraud, this must come with the acceptance that proper oversight and review of how those powers are used is a concurrent responsibility. This should not be left to the discretion of the Minister and ensuring that oversight is properly exercised from day one is a vital change.
Amendment 22 is an important measure designed, again, to ensure that sensitive information can be disclosed only to relevant persons. Although I am sure that this is simply an oversight in how the Government have drafted the Bill, clarifying the persons to whom information can be disclosed is an important safeguarding measure that would inspire confidence in investigations and ensure that confidence in the relationship between the IOPC and the PSFA is strong from day one. I hope that the Government and noble Lords will recognise this as a sensible improvement, which seeks to facilitate the role of the IOPC in the way that the Government have outlined.
The amendments in this group are rooted in a single, guiding principle: the exercise of significant powers by the state must always be matched by strong safeguards, transparency and oversight. We recognise the necessity of equipping investigators with the tools to combat fraud, but we must not do so at the expense of proportionality or the rights of the individual.
From the appointment of authorised investigators to the seizure and potential destruction of personal property, these powers touch on serious questions of liberty, accountability and trust in our institutions. Our amendments seek to ensure that powers are not only effective but clearly defined, properly scrutinised and subject to checks that protect both the public interest and individual rights. In strengthening the role of oversight, clarifying the limits on data sharing and demanding clear standards in the appointment and exercise of authority, these are far from wrecking amendments; they are constructive and measured. They reflect the careful, balanced approach we must take when legislating in areas where the state touches most directly on the lives and property of citizens. I hope the Government will engage seriously with these proposals and that noble Lords across the House will support them. I beg to move.
Baroness Kramer (LD)
My Lords, I will be brief. The Minister will be aware that false bailiffs knocking at your door are a major scam, and the PSFA clearly would not intend or hope to be a source of opportunity for people pursuing a scam in claiming to be part of its activities.
Has the Minister had the opportunity to talk to people such as those from StepChange to try to get a feel for how to deal with people who are vulnerable from whom they need to collect property or recover items? Has that charity been involved in shaping the framework for this particular set of issues?
Baroness Finn (Con)
My Lords, as we conclude this group of amendments, I return to the fundamental point at the heart of our proposals. These powers, granted to investigators in the name of the Minister, are substantial. With them comes a responsibility on us as legislators to ensure that they are exercised fairly, transparently and proportionately. Once again, I thank the Minister for her courteous explanation and response.
This Bill seeks to equip public authorities to tackle fraud more effectively. We support that goal, but it is precisely because we support the objective that we believe that the framework within which these powers operate must be clear, balanced and just.
Amendment 17 would introduce a duty to set out statutory guidance on how investigators are appointed, which is a practical step, endorsed by Justice, that would ensure clarity and prevent the emergence of opaque, unaccountable enforcement structures.
Amendments 18 to 20 address the issue of seized property. I listened very carefully to the example of the seized laptop, but Amendment 18 seeks to probe the Government on the nature of the necessary changes to seized property that may be authorised by the courts, and we are asking the Government to clarify what kinds of modifications or uses they envision and under what circumstances. Transparency on how that property may be altered or used is essential.
Amendments 19 and 20 relate to the disposal or destruction of seized property. As the Bill currently stands, property may be destroyed or disposed of after six months. We believe that is too short a period, especially in complex cases where legal processes or appeals may still be ongoing. Our amendments would extend this minimum period to 12 months, offering individuals a more realistic opportunity to recover their property if it turns out that the seizure was not ultimately justified.
Amendment 21 addresses the question of oversight. The Government have taken the decision to grant significant new powers to the Cabinet Office in this section of the Bill. That is a serious move, and one that must be accompanied by serious scrutiny. Amendment 21 would ensure that oversight is built into the system from the start.
Finally, Amendment 22 offers a simple but vital clarification around the handling of sensitive information. This amendment would ensure that the information gathered under investigatory powers can be shared only with persons who are relevant and necessary to the investigation.
Taken together, these amendments form a coherent and proportionate package of improvements. They do not challenge the fundamental aims of the Bill; rather, they support them. But they do so while insisting that the exercise of power must be lawful, justified and always subject to scrutiny. I hope that the Minister will reflect on the points made, and on that basis I beg leave to withdraw the amendment.
Baroness Finn (Con)
My Lords, it is me again. Our proposal in this group is that Clause 7 and the corresponding Schedule 1 do not stand part of the Bill. The powers granted to civil servants under the provisions in this clause are sweeping, and we believe that they are better exercised by those with adequate training and experience—namely, police officers.
I will cover in a little more depth what this clause is proposing. Clause 7 would allow junior civil servants in the Cabinet Office—relatively junior, at HEO level—to apply to a Justice of the Peace for a warrant to enter and search premises for material relevant to an indictable offence. These civil servants can enter the property whether the relevant person is present or not, and they will have the power to seize anything if they have reasonable grounds for believing that it has been obtained in consequence of the commission of an offence or is evidence in relation to an offence. Section 20 would grant these civil servants the power to seize computerised information, and Section 22 would allow PSFA investigators to retain seized property for as long as necessary in all circumstances.
These are police powers, yet under this clause they are to be exercised not by police officers but by civil servants who, however well intentioned, are under no legal obligation to have the legal training or operational experience that should be required to exercise such powers responsibly. We believe that if an intervention required as part of an investigation is serious enough to justify a search warrant and serious enough to justify entering a person’s private premises and removing their belongings, it is serious enough to require the presence of a police officer, who is recognised as the proper legitimate authority who should bear the responsibility for exercising these powers.
There is a practical point here too. If the Government believe that fraud against the state requires this level of intervention, they should work with law enforcement to build capacity, not bypass it. It is the job of the police to investigate crime, including fraud; that is the basis for their training. That is the established legal framework in which they operate and that is what the public expect. We should not seek to empower civil servants to do the job of police simply on the basis of current operational capacity. Once again, we return to our maxim of proportionality: we need to make sure that the necessary powers in the Bill are exercised responsibly and in a way that is both balanced and effective.
I want to be clear that what we are proposing will not prevent the PSFA undertaking its investigations. Once the threshold for the exercise of these powers has been met, the investigation itself will have had to progress considerably if a warrant is to be issued. Given the way these powers are set out in Clause 7, the Government are obviously certain that investigations will be able to proceed substantially without the need for these powers. Our proposal that they be removed from the remit of civil servants and held instead by the police, which is the established, recognised authority that largely wields these powers at present, will therefore not infringe on the capacity of the PSFA to investigate fraud, as recognised by the Government.
This is therefore another exercise in balance. We believe that our suggestion that Clause 7 and the corresponding Schedule 1 do not stand part of the Bill balances the need to counteract fraud with the imperative that we do not grant sweeping powers to civil servants who are not sufficiently trained, experienced or recognised to exercise them in the proportionate, measured and sensible way we need to be able to guarantee in the Bill. For those reasons we do not believe that Clause 7 and Schedule 1 should stand part of the Bill. We urge the Government to reconsider this approach and to ensure that powers of this magnitude are exercised only by those with the proper training, the proper accountability and the proper role: our police services.
Lord Vaux of Harrowden (CB)
My Lords, the noble Baroness, Lady Finn, has said it all, so I will be very brief. I have to say that I am extremely uncomfortable with giving these sorts of police powers to civil servants and others. We have an example in the recent past of powers being used inappropriately by a non-police agency in the Post Office Horizon situation. I am very uncomfortable about it. I am interested to hear why we should not allow the police to deal with these things and why we should give them to civil servants, but I will take some convincing.
Baroness Anderson of Stoke-on-Trent (Lab)
The noble Lord raises a very interesting point. It is in the guidance, but I will write to him so that he has a written record.
Baroness Finn (Con)
My Lords, I thank the Minister and repeat that to spend her honeymoon in this way is truly admirable.
Our proposal in this group is straightforward: that Clause 7 and the corresponding Schedule 1 do not stand part of the Bill. The powers set out in them are neither minor nor administrative; they are both sweeping and consequential, as the noble Lord, Lord Vaux, pointed out. They are powers to enter private premises, to search them in the absence of the owner, to seize property and to retain it indefinitely if deemed necessary.
Clause 7 permits junior civil servants in the Cabinet Office to apply for search warrants in connection with indictable offences. These officials, who are under no legal obligation to possess police-level investigative training or operational experience, would be empowered to enter someone’s property and seize anything they believe is linked to a criminal offence. They may seize computerised information. They may retain this property for as long as they consider necessary. These are serious powers. They are, in every meaningful sense, police powers, and we believe that it should be the police who exercise them.
That is not a theoretical objection; it is a practical one. If the Government believe that the investigation of fraud against the state demands this level of intervention, they should work with law enforcement to build capacity, not attempt to bypass it—as I said previously. The public expect these duties to be undertaken by the police, not officials from within the Cabinet Office.
We are not proposing an end to investigations by the PSFA—far from it. We recognise the importance of this work, and the Government’s own framing of this clause makes it clear that investigations can proceed substantially without the need for these powers. If that is the case, transferring this responsibility to trained police officers, rather than allowing civil servants to exercise it, would not hinder the PSFA’s ability to investigate fraud. It would ensure that intrusive state powers are exercised by those who are properly equipped to wield them.
This is a matter of constitutional balance and operational integrity. Clause 7 and Schedule 1 confer powers that go beyond the traditional remit of the Civil Service. They risk blurring the lines between executive authority and law enforcement. We therefore hope that noble Lords across the Committee, and the Government, will consider supporting this proposal as a measured change, keeping powers in the remit of those who are best placed to exercise them, while ensuring that PSFA investigations can continue in the pursuit of the objectives we all support.