Lord Palmer of Childs Hill
Main Page: Lord Palmer of Childs Hill (Liberal Democrat - Life peer)Public Authorities (Fraud, Error and Recovery) Bill
Lord Palmer of Childs Hill Excerpts
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.
Viscount Younger of Leckie (Con)
My Lords, I shall speak briefly as the other opposition Front-Bencher working on the Bill. I shall make a few introductory remarks on the purpose of the Bill as we begin Committee. I join my noble friend Lady Finn in welcoming this opportunity to have a productive, collaborative opening discussion on what the Bill is actually about and what it should be about.
Public sector fraud, as we have debated, is a crime that hurts every taxpayer in the country. It hurts every public service user and is an insult to everyone who works hard, pays their taxes and contributes to our society. This is a problem that we need to take steps to address, and the Government are right to reintroduce legislation and restart the process, which I know both Ministers acknowledge was started under the previous Government.
As noble Lords will be aware, my main focus will be on the second part of the Bill, which covers the DWP. This will not be covered so much in the amendments under discussion today, although I want to take the opportunity at the outset to flag up in advance and highlight some of the concerns that I have around these provisions and where my focus will be in the forthcoming Committee days. I hope this is helpful to the Committee.
First, on banks, there are still many questions over how the relationship between the DWP and the banks will manifest itself. We do not have clarity from the Government over how the process will work in practical terms or the costs that will be incurred by the DWP and financial institutions as a result of compliance under the terms of the Bill. As we highlighted at Second Reading, the Government, if they remain committed to human oversight of all decisions and reviews of information obtained from banks, could see a massive increase in their workload. Gaining greater clarity on this relationship, how it will work, the impact that it is anticipated to have and the resources required will form part of our approach on this part of the Bill.
Linked to this is the need to test the means to the end. What will be the cost for the expected return? How will the return be defined? That is the identity and recovery of fraud; also, the measurement of the deterrent factor in taking greater and more stringent measures to combat fraud—to take the challenge to the fraudsters, who have been seen to become ever more sophisticated. We will wish to challenge enforcement. What works? What are the sanctions for those who are convicted? Are they effective? What costs and resources are judged to be estimated in respect of this aspect of the Bill?
Secondly, we want to ensure that the Bill protects vulnerable people and recognises additional factors that may lie behind, for example, an overpayment. Proportionality in the exercise of these powers is vital, and we need to ensure that we do not cause greater harm than good in the pursuit of our shared objective. This concern is shared by noble Lords in this Committee. I am hopeful that we can reach an understanding with amendments that protect vulnerable people.
Finally, we see the Bill as an opportunity to combat those who seek to share information, allowing people to defraud the benefits and welfare system—the so-called “sickfluencers”. This is a serious problem. Thousands of people every day are consuming content that informs them of how to play examiners and score certain points based not on their actual health condition but on a script they have been taught online. These assessments are the mechanism through which the state determines eligibility for welfare payments. “Sickfluencers” who actively encourage dishonesty and make money out of a dishonest gaming system for exploitation must be stopped. We shall support amendments that seek to make this an explicit offence, so that there can be no room for doubt that these actions are wrong and could be criminal.
This is an important discussion on a topic that deeply affects everyone in our country. I welcome the opportunity to discuss ideas and suggestions for improvements to the Bill, which attempts to achieve a noble task. I and my noble friend Lady Finn will work in good faith with the Government and noble Lords across the Committee to improve the Bill and to make it effective and responsible.
Lord Palmer of Childs Hill (LD)
I intervene only because the whole debate on these amendments seems to dwell on what a public authority is. We have heard from the noble Lord, Lord Maude, about the Treasury and central government, but my version of public authority would come down to local authorities, which as far as I am aware are public authorities.
I will talk from experience because I was a councillor in the London Borough of Barnet for 28 years, and for the last four years of that I chaired its audit committee. To my mind, what is missing in the Bill and the amendments is the use of audit procedures, which exist in many public authorities. That is where the investigation should start, at the lowest cost and more effectively.
The noble Lord talks about HMRC. The reason why it failed is that the outside body that had this work subcontracted to it collected the low-hanging fruit. It collected the frauds that were easy to collect because there was money in the individuals, companies or organisations involved. I ask the Minister and her team to think about how to stop attacking only low-hanging fruit. It is the ones that are not dealt with by the existing organisations that we are looking at. Encourage local authorities to set a gold standard where they and anything like them will look at the situation internally and assess where the fraud is. At that stage, it may well be that they want to call in these organisations. The noble Lord, Lord Maude, says they perhaps should not be called in, but they should be if needed. We need to use the things that exist already. To me, the fact that the word “audit” does not appear anywhere here is a negative part of this measure.
Lord Maude of Horsham (Con)
The noble Lord’s point about what we mean when we talk of a public authority is really important. I make a distinction between entities that are part of central government—where the writ of the Cabinet Office and the Treasury should absolutely run without exception for these purposes—and the wider public sector. I believe in localism; local authorities should be responsible for what they do and have access to a centre of excellence of great capability in central government. But there should be a sharp distinction made between central government and the wider public sector.
Lord Palmer of Childs Hill (LD)
My Lords, I apologise; to some extent I moved onto what sounded more like a Second Reading speech, but it comes out of the comments that the noble Lord made. Not just central government bodies but other public bodies must use the investigatory powers, where they are already there, and bring in the heavy guns only when needed. So I accept what the noble Lord, Lord Maude, says.
Baroness Fox of Buckley (Non-Afl)
My Lords, I feel rather inadequate after hearing the last few speeches, which were excellent in their expertise and in making me think about the issues, and after the earlier discussion led by the noble Baroness, Lady Kramer, on whistleblowers. I feel as though I am going to learn a lot from these debates, so I apologise, as I am raising just a few simplistic issues in this group on the chapter that has been labelled “Key concepts”.
As we start Committee, I draw attention to how the Government have been explicit that the powers in the Bill are designed to target error in addition to fraud. Error does indeed account for substantial losses of public money, so I have no problem with the Bill doing both but, too often, it seems that its powers—many of which are too draconian—are applied equally to fraud and error without distinction.
I am broadly in favour of looking at Amendment 4, which seeks to probe the circumstances in which a public authority would recover an amount paid in error, as we need to make a distinction between error and fraud. In general, many of my concerns, although largely confined to the section of the Bill dealing with the DWP and welfare, are on the dangerous conflation between fraud and error. If we do not keep them distinct, there will be unintended consequences from this Bill, and I am very worried about disproportionality in justice and so on. I would be interested to hear how the Minister responds to Amendment 4.
I am also very sympathetic to Amendment 7, which requires that:
“the Minister is satisfied that there are reasonable grounds to suspect that fraud or attempted fraud … has occurred”.
That notion of reasonable grounds is very important for this Bill and, sadly, it is too often absent. I think it can lead, for example, to suspicionless surveillance, which we will be talking about later in Committee.
I want to quote the written evidence given to the Public Bill Committee by the cross-party law and human rights organisation Justice. It emphasised that:
“This requirement for reasonable grounds is a well-known legal requirement in the context of state investigations: it is a safeguard to protect individuals from baseless state interference and fishing expeditions”.
It is very important that the requirement for reasonable grounds is taken very seriously throughout our discussions, so I was glad to see Amendment 7.
Although it is now completely after the effect, and I feel like this is a cliché, I will say congratulations to the noble Baroness, Lady Anderson. I kind of feel like the moment might have passed, but I have to say that her announcement at the start of the debate cheered me up.