Public Authorities (Fraud, Error and Recovery) Bill

Lord Harper Excerpts

Report stage
Tuesday 21st October 2025 Lords Chamber

I will listen very carefully to what the Minister has to say before deciding what action to take and which way to go in respect to these amendments. I remain to be convinced that DWP needs the power to use reasonable force at all, especially since the PSFA, which in theory is dealing with larger and more organised frauds, does not. Why should benefit recipients who are suspected of fraud be subject to reasonable force and organised crime not? It seems peculiar. At the very least, whatever we do, we must restrict the powers to those that are required to meet the objectives of this Bill—that is, force against items and property—and no more. I beg to move.

[Lord Harper (Con)]

My Lords, I strongly support the case that has been made by the noble Lord for a number of reasons. I strongly agree with his opening proposition that the Government should take only powers that are absolutely necessary, and I will listen, as he will, to the Minister, when she sets that out.

I come at this from previous experience. When I became Immigration Minister, it was in the wake of a tragedy that had occurred when force had been used to deport somebody from the United Kingdom who sadly, in the process, lost their life. As a result, we set up an independent inquiry. We took these matters very seriously. That inquiry reported and set out very clear steps and processes that should take place when the state uses force, as is sometimes necessary, to carry out policy. One of the things that came through very clearly was about the high standards of training and oversight that are necessary before reasonable force is used. Otherwise, the result can be people losing their lives. As a result, that was something that we took very seriously. The Home Office now puts a lot of effort into training officers who carry out deportation work to make sure that that work is properly authorised, training takes place, and it is done in a safe and reasonable way.

That experience then came to the fore during the Covid pandemic, when the Department for Housing, Communities and Local Government attempted to give similar powers to use reasonable force to local government officials to enforce some of the Covid regulations. My party was in power at that time, and I had private conversations and some conversations in the other place about the unwiseness of giving those powers to officers of the state who were not properly trained to use them and where there was not the proper safeguard of oversight. I am happy to say that, in that particular case, I persuaded the Minister, who then brought forward a revised set of regulations that no longer gave local government officers the power to use reasonable force.

I made the case, as the noble Lord has, that if there are cases where reasonable force should be used, it should be used by a constable—somebody who is properly trained to use reasonable force, and where there is proper oversight from a command and control system that means that, first, it is used properly, and that if something goes wrong, there is a proper process to scrutinise and to learn from mistakes that are made.

From what the noble Lord said about what the Minister said in Committee, and from what the Explanatory Notes say, the intention is that the power will be limited to being used against things, not people. It seems to me that the legislation should reflect the policy intent and we should not just rely on Ministers telling us what the power is going to be used for.

I should say that I am a bit reluctant even to accept the compromise that the noble Lord has put forward. The danger is this: what if the officer of the DWP is using reasonable force to deal with things and the person concerned tries to intervene to stop the reasonable force being used? You do not have to think very far forward to see that you could end up with a very difficult situation, potentially with vulnerable people, where the result is that somebody is injured or tragically loses their life.

I say to the Minister—I felt this very keenly when I was Immigration Minister, even though this particular loss of life happened before I came into post—that if this legislation was passed and a DWP official used reasonable force and the consequence was that someone was injured or sadly lost their life, it is the Minister who would be held to account at that Dispatch Box. People would want to know why that power was given to that official and to understand in incredible detail, possibly in a public inquiry, what steps had taken place about that use of force being authorised and what training had taken place. I can tell her that it is a very uncomfortable experience when there have been failings and you have to set up an independent inquiry and say the result has been that somebody has lost their life.

In the case that we were talking about, it was somebody who should not have been in the United Kingdom and who had committed an offence but, even so, it should not have resulted in that person losing their life. That was a failing of the state, and it was something that we took very seriously.

I would say to the Minister, when she comes to the Dispatch Box to justify the legislation as it is drafted, that, unless I have missed something, it does not correctly set out the policy intent. Even if she thinks that the amendments that have been tabled are defective, I think it would be wise to accept them and then for the Government to come forward and tidy them up during ping-pong. Also, we should not just rely on the Minister saying how the powers are to be used. Even if that is the Minister’s intent, there are many thousands of officials in the department. With the best will in the world, if the powers are there and somebody attempts to use them, this will end very badly.

In Section 117 of the Police and Criminal Evidence Act, which is referred to—and I have checked it—there is not a limitation on the power to be used just “against things”. The “reasonable force” power is available to a constable for the full breadth of the thing that they are trying to do. So far as I can see, the legislation as drafted does not deliver the policy intent that is set out in the Explanatory Notes. I may have got that wrong. If I have, I will be delighted for the Minister to point it out, but I would urge her, for her own sake and that of her successors: do not give power to use reasonable force to people who are not trained to use it and do not have proper oversight.

There is a perfectly reasonable compromise in Amendment 76, although, personally, I would be more comfortable if the power was just taken out completely, even if you have to beef up the ability of the DWP officials to work with the police. I am not saying that there are never errors or tragedies with the police’s use of powers, but the police are properly trained and they have a proper structure of oversight. There is also a proper, independent complaints process and mechanism to account for the use of that power—as the noble Lord said, it was set up recognising that the use of force against citizens is a power of last resort for the state.

As this debate progresses, I would urge the Minister to think carefully about whether, at the end of it, she should, in effect, force the noble Lord—without putting words into his mouth—to test the opinion of the House. On reflection, could the Minister perhaps accept one of these amendments or offer to come back herself with something that the House will be more comfortable with? As drafted, the Bill gives too much power to Ministers and goes far further than the Minister herself has said previously is the policy intent of the Government. If the noble Lord were to test the opinion of the House, I would be happy to support any or all of his amendments.

[Lord Sentamu (CB)]

My Lords, I want to speak to Amendment 75. There is a lot of wisdom in what the noble Lord has said. What happens when this reasonable force is being exercised by members of the DWP? On the way there, everything looks okay, but you get into the house and, before you know where you are, fighting breaks out. In that house, there is a criminal gang, which is part of the fraud. What will happen? What number will they ring to ask for reinforcement?

Of course, it will be 999. The police get up there and they realise that the case has already been messed up. It is not very easy to clear things up when people think, “These could be robbers”. Whatever force and power you thought you had given to these DWP officials, you could end up with a very awkward, difficult situation.

In some places such as London, the police may get a very bad report, but generally, throughout England and Wales, people know that the police have authority. The uniform has given them something very definite. In most cases, apart from where organised crime is pretty furious, when they turn up they get good entry, they get people talking to them, because they are there to keep the King’s peace.

--- Later in debate ---

[Baroness Sherlock (Lab)]

My Lords, a lot of questions have been asked and I will do my best to answer them all. I will start by making clear what we are seeking to do. These powers would give authorised and trained DWP officers the ability to use reasonable force. We want them to be able to use that against property, not against people. Making a distinction in the way that the noble Lord, Lord Vaux, does in one of his amendments is not straightforward, despite the wishes of the noble Viscount, Lord Younger.

A number of noble Lords have said that they would be horrified to see civil servants using powers meant for the police. I am sure that members of the previous Government will be aware that HMRC, Border Force and the Gangmasters Licensing Authority already have these powers. This is not unprecedented.

[Lord Harper (Con)]

My Lords, I have not spoken on this Bill before, and I was genuinely trying to be helpful to the Minister. She has just said that you cannot make an easy distinction between the use of force against things and people. That is exactly the point. If you give powers to be used against things, you will get drawn into using them against people. I am well aware that Border Force has these powers, but if she talks to her noble friend sitting next to her she will find out that, as a result of the independent inquiry we had, there is extensive training for Border Force and for immigration enforcement officers before they are allowed use that force. That is my counsel; I urge her to be cautious.

[Baroness Sherlock (Lab)]

My Lords, I will come on to answer all the noble Lord’s questions if he will give me a moment to do so. I have not got there. That was my opening paragraph. I will answer the points one by one, so I hope he will be patient with me.

I am sure that the noble Lord, Lord Vaux, did not mean to do this, but the impression he and some other speakers gave is that the DWP will seek to use these powers against an average benefit claimant who has accidentally overclaimed by £20. I make it clear that this power cannot be used in those circumstances. It will be used where the DWP has a reasonable belief that someone has intentionally committed sophisticated, often high-value fraud against the DWP. These operations seek to find evidence of criminality that is not obtainable through the DWP’s other criminal investigation powers, such as its information-gathering powers, which would be the normal route for obtaining evidence in investigations. To use these powers, we have to seek a warrant from the court. The warrant application will go to the court, which will be the ultimate arbiter of whether a warrant is approved, based on a relevant justification. Those warrants have to be used for investigating serious organised criminality, and those offences tend to be high-value and complex. For that to happen, there would need to be reasonable suspicion related to indictable offences. We are not talking about individuals who have accidentally been overpaid a small amount of money.

I will go through the specifics that have been raised. I understand what the noble Lord, Lord Vaux, wants to do with his amendments and his desire to limit the use of reasonable force to property and not people. However, the use of reasonable force is set out in the Police and Criminal Evidence Act 198, which, as he pointed out, does not distinguish between the use of force on items and persons. There is no precedent for breaking down the PACE power of reasonable force to restrict it to people or items. As I will go on to explain in a moment, to do so could result in unintended consequences.

The DWP has been clear from the outset that its intention is that reasonable force will be used only against things, not people. That will be made clear in guidance and training. The power will enable DWP-authorised investigators to use reasonable force to access locked cabinets and digital devices once they are lawfully on a premises. Without that ability to secure evidence, the DWP would have to continue to be reliant on the police, who would need to remain on the premises for the duration of the search activity. Imagine a situation where, for example, a significant universal credit fraud has taken place. There are potentially a lot of papers, either in filing cabinets in a premises or on devices. The police effect entry to a premises and secure them. The police stay there, and we ask them to carry on picking up every single file so that DWP officials can tell them if it is right or not. The police could be out on the streets tackling real crime and protecting people or they could spend that time in the premises while the DWP searches devices.

I understand the intention behind the amendments—

[Lord Harper (Con)]

My Lords—

[Baroness Sherlock (Lab)]

I remind the noble Lord that this is Report.

[Lord Harper (Con)]

I know, but I am trying to ask some sensible questions. The noble Lord, Lord Vaux, will have to decide whether to press Amendment 76. I encourage him to press Amendment 75 and take this out completely. The Minister just talked about the police having to stay there to pick up files and devices. Why would they need to use force to do that? That is an administrative exercise. She is in danger of defending the indefensible in an unnecessarily complicated way. We are trying to be helpful.

[Baroness Sherlock (Lab)]

I am grateful to the noble Lord for his help but I will try to manage for now. To open a filing cabinet or to open a device without the consent of the owner requires using reasonable force. I fully accept that he does not think that the DWP should have any of those powers. I hope he will bear with me and allow me to move through the arguments to make a case as to why I think it is necessary. If I cannot persuade him then I accept that, and he will go into the other Division Lobby, but I hope he will allow me to explain why I think this is necessary and proportionate.

One of the risks of the approach that has been taken to try to limit the use of reasonable force as set out by PACE is that it could have the unintended consequence of removing an authorised investigator’s common-law right to self-defence—for example, if they were physically threatened during a search and seizure activity. Clearly, the safety of our authorised investigators is paramount and they, like anyone else, must have the right to defend themselves if threatened. We will of course take a number of steps to ensure staff members’ safety. That includes conducting risk assessments on application for the warrant and during the search and seizure activity itself, and equipping staff with critical safety equipment and protective clothing.

The noble Lord, Lord Harper, asked about training. All DWP-authorised investigators will be required to complete training to the equivalent standard of the police before they can use these PACE powers. I assure the noble Lord, Lord Deben, that money will be made available to pay for that. We will not expect people to use these powers if they have not had appropriate training. That was a good question and I am pleased to answer it. In addition, DWP criminal investigators undertake investigative training as part of the Government Counter Fraud Profession. All staff must have training to industry standards before they can be considered even for authorised investigator status. That will ensure that staff are benchmarked to the same standard.

The DWP will not have the power of arrest. I remind the noble Viscount, Lord Younger, that the previous Government’s fraud plan, including the version put out in 2024, when he was standing where I am, proposed not only the powers we have here but that DWP staff should have the powers of arrest. We decided that was not appropriate but, as I have said, we do think that the power to have reasonable force against property is reasonable. We have taken what I think is a proportionate view. In the situation described, where the DWP arrives at premises but the police are not there and its staff find their entry is obstructed, the policy will be that they should remove themselves from any potential danger and request police presence.

The noble Lord, Lord Vaux, also mentioned oversight. We will be commissioning His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services to inspect the use and effectiveness of these powers in England and Wales and His Majesty’s Inspectorate of Constabulary in Scotland to do so there. These inspections can focus on any part of the end-to-end criminal investigation and their reports will be published by the Secretary of State. In addition, the Independent Office for Police Conduct will be responsible for reviewing any serious incidents or complaints in relation to these powers in England and Wales, with the Police Investigations & Review Commissioner responsible in Scotland.

While I am here, two other questions were asked on the IOPC. In one, I think the noble Lord, Lord Vaux, said that the IOPC regs were a Henry VIII power. I am advised that they are not, because they do not seek to amend or repeal primary legislation. The proposed amendments to Part 2 of the Police Reform Act are contained in the Bill itself. On the question of funding, the DWP has secured the necessary agreements with the IOPC and will continue to work closely and in partnership with it to ensure that its needs are considered, including financial arrangements. The regulations will make provision as to payment for this service and permit the lawful disclosure of sensitive files and information relating to the exercise of the functions and powers. I hope that reassures the noble Lord on that point.

On the other questions that have been mentioned, just to be clear, the drafting in Schedule 4 for Scotland is intended to clarify that force cannot be used to compel individuals to provide information when required to do so by a court protection order. This mirrors PACE as it applies in England and Wales. On the exercise of reasonable force when executing search warrants, the provisions in the Bill both in Scotland and in England and Wales are comparable. I hope that reassures noble Lords who think that we think that people in Scotland are less dangerous than people in England and Wales. I can assure them that is not the case.

Noble Lords asked about the difference between the PSFA and the DWP. Primarily, this is a matter of scale. A tailored approach has been adopted by the DWP and the PSFA. The PSFA is likely to do a smaller number of investigations; the scale at which the DWP operates would be a very different use of police resource than it would be in the case of the PSFA. Therefore, we think it is appropriate.

Finally, I think somebody—I am sorry, I have forgotten which noble Lord this was—asked whether we would use this provision against vulnerable people, benefit claimants being vulnerable. Again, another form of reassurance is that the law requires any warrant application to include information about any vulnerable individuals who may be present on the premises. As a result, the DWP has to conduct risk assessments before even applying to the court.

I understand the comments that have been made. I hope that I have been able to reassure noble Lords that our proposals are proportionate. On that basis, I urge the noble Lord to withdraw his amendment.