Sanctions and Anti-Money Laundering Bill [HL]

Baroness Kramer Excerpts

Wednesday 17th January 2018 Lords Chamber

[Baroness Kramer (LD)]

My Lords, my name is also attached to this amendment. The case has been so clearly and emphatically made by the noble and learned Lord, Lord Judge, that I cannot see that there is anything that I have to say that could strengthen that argument. There are other arguments in favour of Amendment 71A, but they are frankly of second order. It is the constitutional issue, right at the heart of our constitution, that is the fundamental one that we have to consider today. I hope that the Minister takes that on board and responds accordingly.

I want to use this opportunity, because this amendment is part of a much larger group, to pay tribute to the Minister and the Bill team. On quite a number of the other amendments in this group—and my noble friend Lady Bowles may speak for a moment or two to them—the Minister and the Bill team have recognised that the issues in contention are those that concern all of us and there was a great deal of common ground. The Minister and the Bill team have listened—in fact, the Bill team have come many times and listened—and they have responded. I expect that by the end of the Minister’s comments on this grouping, we will feel that, with one exception, it is going to be possible to withdraw the amendments, because the response has been satisfactory and respectful on both sides. I attribute a lot of that to the real skill in the Bill team in understanding the core issues and finding ways in which to respond to them that meet the Government’s requirements, as well as the requirements of those scrutinising the issues. I thank noble Lords for this opportunity and hope very much that this House recognises the importance of Amendment 71A.

[Viscount Hailsham]

My Lords, I rise briefly to say that I found the observations of the noble and learned Lord extraordinarily persuasive. I have had a look at the regulations set out in Schedule 2 and, in particular, paragraphs 15 and 18 of that schedule, which make the point that the regulations create criminal offences and deal, too, with the defences that can be advanced as well as the evidentiary requirements. Furthermore, paragraph 18 makes the point that the regulations can impose custodial sentences of not in excess of two years. If we accept what the Government are asking us to accept, we would create powers that are very intrusive in criminal processes and impose custodial sentences—and we are being asked to do so by regulations, which are not amendable. I regard that as the chief vice of this process, because the resolution procedure is simply not amendable.

If we were being asked to contemplate an emergency situation, I might find these exceptional powers acceptable, but I do not think—for the reasons advanced by the noble and learned Lord—that we are dealing with emergency situations, because no such situations, or the likelihood of the same, have been identified. There is a raft of existing legislation that covers the kind of issues that are likely to arise.

I am personally always against giving delegated powers to Ministers whenever I can avoid doing so. There is a fundamental rule in politics that I have observed over nearly 40 years in Parliament, which is that, if you give powers to Ministers or officials, on occasion they will be abused. That is a fundamental rule of politics. Consequently, you give powers to Ministers and officials only where you must and, when you do, you ensure that there are as many safeguards as possible. I find the observations of the noble and learned Lord wholly persuasive. If he seeks the view of this House, he will have my support.

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[Lord Ahmad of Wimbledon]

What I have been saying in the examples I have quoted is that the use of the regulations is not something new.

[Baroness Kramer]

Perhaps the Minister could confirm that at present, the primary legislation takes place in Europe through the various processes of the European Parliament and Council. It is from those that the current regulation flows. The issue here is that in the future, there will be no mechanism for primary legislation to sit behind the regulation; it will be the regulation disembodied.

[Lord Ahmad of Wimbledon]

The noble Baroness has correctly pointed out that all this is to do with what we do after we leave the European Union, which I have sought to make clear to my noble and learned friend. We will set up the mechanism and put in place the provisions to allow the Government to address the issue of criminal offences. The Government’s proposal would be to continue on the same basis as we do now—through the use of regulatory powers. As I indicated earlier, this is not different. I have also stressed that this would be subject to the affirmative procedure, which would allow for debates in both Houses. We covered that area extensively both at Second Reading and in Committee.

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[Baroness Kramer]

My Lords, my name is added to the amendment and I am delighted that it is. However, I did not think that when I got up to speak I would need to make a vigorous defence of public registers, yet I find that I must because the objections that we have heard from so many around this House have been to public registers per se.

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[Lord Ahmad of Wimbledon]

My Lords, I am grateful to all noble Lords who have taken the time to contribute to this important debate. The amendment would require the Secretary of State to provide all reasonable assistance to the Governments of certain of the British Overseas Territories with significant financial centres to enable each of those named overseas territories to establish a public register of company beneficial ownership. It further provides that, if by 1 January 2020 such overseas territories have not established such a register, the UK Secretary of State should take all reasonable steps to ensure that the Privy Council legislates to require the overseas territory to do so.

I am again grateful to the noble Baroness, Lady Stern. We have had a constructive discussion where we laid out the differences over our approach. I do not object to the fact that we are all seeking—that is clear from all contributions today—to ensure fairness and transparency but also to do the right thing to ensure progress in this regard. I appreciate that the deadline set in this revised amendment for preparation of an Order in Council has been put back by one year compared with the amendment tabled by the noble Baroness and others in Committee. I previously addressed many of these points in Committee. But I hope that the House will bear with me if I reiterate certain key points.

I first want to inform noble Lords of the commitments that the territories have made to advance transparency in the company and tax fields. We heard the noble Baroness, Lady Kramer, talk about taking leadership, having that relationship and allowing the British Government to work with the overseas territories and that this amendment is the way to achieve that. But we are already doing it. The overseas territories are part of my responsibilities as a Minister. They are totally engaged on this agenda. With respect, the noble Baroness laid out a series of assertions on how money laundering and certain activities occur. Is it right that these six territories alone are singled out? Where is the evidence base? That is important, but so is the action that is being taken. We need to focus on that.

For example, the overseas territories with financial centres are leading the world. They are among the early adopters of the OECD common reporting standard. I say to the noble Lord, Lord Collins, that the overseas territories, working with the British Government, are taking the lead. There is an agreement under which they automatically exchange offshore financial account information with taxpayers’ jurisdictions of residence. They started exchanging information with third jurisdictions in September last year. I join many noble Lords in the Chamber in commending our previous Prime Minister, David Cameron, and the steps that he took. But the process that we are now following is exactly the same process that was agreed during the coalition years with the Liberal Democrats. Since September 2016—in other words, a year before the common reporting standard came into effect, so I say to the noble Lord, Lord Collins, that this is another example of taking the lead—HMRC has been receiving data on accounts held in the overseas territories by UK taxpayers and has used this to further its compliance work.

The issue of public registers is relevant here. None of this means that we do not want to see the overseas territories take further action to move forward on the transparency agenda. We should, however, acknowledge the significant steps that they have already taken in this area and build incrementally on that progress, in partnership and with support.

As noble Lords will acknowledge, the UK is at the forefront of promoting corporate transparency. The UK is the only G20 country to have fully established a public register of company beneficial ownership and we continue to push for this to become—in the words of the noble Lord—a global standard. As I noted in Committee, however, the international standards set by the Financial Action Task Force do not require this, reflecting a lack of international consensus in this area. I am grateful to noble Lords who contributed on this. These standards state:

“Countries should ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion by competent authorities”—


for example, tax authorities and law enforcement authorities. The OTs are moving ahead on this agenda. Nevertheless, should public registers become the global standard, we would of course expect the overseas territories and Crown dependencies to meet this standard. The territories themselves have indicated their willingness to adopt a public register in that event.

I will highlight something important to this debate: namely, the progress that the overseas territories have already made on the beneficial ownership agenda in a relatively short time. Since we concluded our arrangements with them in the run-up to the Anti-Corruption Summit of 2016, the territories, which have their own legislative bodies and elected representatives, have passed new primary legislation and delivered technological improvements to comply with the terms of the arrangements known as the exchange of notes. I am grateful to my noble friends Lord Leigh and Lord Flight for highlighting the positive progress that the OTs have made in this respect. My noble friend Lord Naseby also pointed to the positive steps taken by Cayman.

Under these arrangements, each of the overseas territories with a significant financial centre committed to hold beneficial ownership information in a central register or a similarly effective system and to provide UK law enforcement authorities with automatic access to such information within 24 hours of a request being made—or within one hour in urgent cases. These arrangements, which have been put in place since 2016, are already bringing benefits to UK law enforcement. They mark a significant increase in the ability of UK law enforcement authorities to investigate bribery and corruption, money laundering and tax evasion. I am sorry that I do not share the opinion of the noble Baroness, Lady Kramer, that somehow these law authorities are very limited in scope. They make an incredible contribution.

[Baroness Kramer]

Perhaps I might ask the Minister a question. Does he not agree that one reason we have public registers in the UK is that law enforcement authorities here said that they could not successfully track down those crimes if they were not backed by public register arrangements? If we in the UK cannot be effective as law enforcers without public registers, how will we be effective as enforcers across the sea without public registers?

[Lord Ahmad of Wimbledon]

I have already said—and I repeat to the noble Baroness—that the OTs are already moving in this direction. I will put it very simply and in context. We have agreed legislation in both Chambers. We have passed it. We have had anti-corruption summits. We have asked OTs to step up to the mark. They are stepping up to the mark. They are taking the action required. Half way through the process, before we have even tested the very objectives that the noble Baroness has just outlined, we say to them, “Sorry, we’re changing the rules”. That to me is unacceptable.