Digital Markets, Competition and Consumers Bill

Robert Buckland Excerpts

Consideration of Lords amendments
Tuesday 30th April 2024 Commons Chamber

[Kevin Hollinrake]

I thank the hon. Lady for her intervention and for the amendment, which I will speak to in a moment. The Government have agreed to undertake a review of both primary and secondary markets, and I will deal with those issues later in my remarks. [Interruption.] I hear from the shadow Front-Bench spokespeople, but I think that is something that Labour proposed in earlier amendments, so obviously they have changed their position on that issue—not for the first time.

Finally, the Government made a number of minor amendments to the Bill in the other place. The majority are tidying-up measures, or otherwise small tweaks to the Bill, to ensure that it achieves its policy intent as effectively as possible.

I will now set out the Government’s position on the 11 non-Government amendments that were made to the Bill in the other place. The majority of the amendments seek to reverse or alter amendments made to the digital markets part of the Bill on Report in this House. There were three aims behind the Government’s package of amendments on Report in the Commons: first, to provide greater clarity to parties interacting with the regime; secondly, to strengthen the regime’s safeguards for the extensive new regulatory powers; and thirdly, to enhance the accountability of the regulator. The Government tabled the amendments following careful consideration of the views expressed by hon. Members across the House. We remain convinced that our amendments struck the right balance between the accountability of the CMA’s regulatory decisions and the flexibility to allow for targeted and proportionate action that tackles the unique competition challenges in digital markets.

[Sir Robert Buckland (South Swindon) (Con)]

My hon. Friend is right that the amendments that were agreed on Report in this House struck the right balance, and I am afraid that on this occasion I wholly disagree with the way their lordships characterised the matter in their debate. We are not arguing for a wholesale replication of the telecoms regime; we are simply making sure that, particularly with regard to penalties, which will be pretty onerous—and rightly so—there is proper discretion to allow a reviewing tribunal and reviewing court to consider the matter carefully, in a way that balances out the need for rigour and for temper when it comes to the power of the regulator.

Post Office (Horizon System) Offences Bill

Robert Buckland Excerpts

2nd reading
Wednesday 20th March 2024 Commons Chamber

[Kemi Badenoch]

I am very happy to consider a sunset clause. My hon. and learned Friend makes a very good point, and I really appreciate the fact that he can see the tightrope that we are walking: getting justice for postmasters while not interfering with judicial independence.

[Sir Robert Buckland (South Swindon) (Con)]

I think it is important that we emphasise the wholly exceptional nature of this legislation, but we are dealing with wholly exceptional circumstances—we hope. The point about disclosure is one that I cannot make strongly enough, and we have to look again at our presumptions about machines and what they produce when it comes to criminal litigation.

Can I press my right hon. Friend to reiterate the wholly exceptional nature of this legislation? I think we need to be careful when it comes to a sunset clause, because we do not want to end up frustrating the purpose of the Bill, which is to deal with the hundreds of people who have lost faith in the system and might be difficult to track down and identify. I am not particularly in favour of a sunset clause, but we do need to emphasise the exceptional nature of this legislation.

[Kemi Badenoch]

I am grateful to my right hon. and learned Friend for his intervention. I am very happy to emphasise that, and will do so again later in my speech. I do enjoy it when we have two lawyers who disagree on a particular point; I will be taking this as their application to join the Bill Committee.

The Bill includes a duty on the Government to take all reasonable steps to identify convictions that have been quashed. It also creates a duty to notify the original convicting court, so that records can be updated and people’s good names can be restored. Other records, such as police records, will be amended in response. The Bill makes provision for records of cautions for relevant offences relating to this scandal to be deleted. While the financial redress scheme will be open to applicants throughout the UK, the Bill’s measures to overturn convictions will apply to England and Wales only.

Post Office Horizon Scandal

Robert Buckland Excerpts

Wednesday 10th January 2024 Commons Chamber

[Kevin Hollinrake]

I thank the hon. Gentleman for his work; he has been a constant campaigner on behalf of his constituents, and has contributed to every debate I have seen on this issue. However, I think his challenge is a little unfair. As he knows, I worked on the issue as a Back Bencher, and as a Minister I have made it my No.1 priority for the past 15 months. This is not something that we have just picked up, and he can see how much we have done.

Of course, during this process we have learnt things, and things have happened that we did not expect. We did not expect it to be so difficult for people to overturn convictions after the overturning of the first convictions, and we did not expect it to be so difficult to assess the damages and losses. We have tried at every point to accelerate compensation. We introduced the fixed-sum award last November, long before the TV series was broadcast, and before then there were measures involving tax treatments. We also started to look at different ways of overturning convictions long before the TV series was aired. So it is not the case that the series, excellent though it is, has resulted in these changes.

I think it is fair to say that the whole House and the whole country were shocked by what they saw on television, and that has made it easier to push certain developments forward more quickly, but I believe that we would have arrived at this position in any event. Nevertheless, I am glad we are here today moving things forward at this pace.

[Sir Robert Buckland (South Swindon) (Con)]

I warmly welcome the statements from the Prime Minister and from my hon. Friend. I thank my hon. Friend for his hard work, and I am also grateful for the work of other Ministers, such as my hon. Friend the Member for Sutton and Cheam (Paul Scully), in pursuing and dealing with this injustice.

The key point to bear in mind is that, owing to the number of people who have refused to come forward, Parliament has an obligation to act. In the case of existing appeals, the matter can be dealt with by the Court of Appeal in respect of the quashing of any convictions, pursuant to an Act of Parliament, but the key challenge lies in all the people who are not in the court system. Will my hon. Friend work with me and others to ensure that the system he envisages—I think he is talking about statutory declarations, which would perhaps come under section 5 of the Perjury Act 1911—is got right in order to avoid further disincentives for innocent people to clear their names and, in the words of judges up and down the country, “walk from the court without a stain on their character”?

[Kevin Hollinrake]

I thank my right hon. and learned Friend for his work and for his advice over recent days. As he has said while we have been trying to resolve this issue, there is no perfect solution and there are going to be compromises. We are keen to reach out to the people he has identified who have not entered the system because they are deterred by the processes that they would have to go through in order to gain access to compensation. I am keen to continue to work with him on all the measures that we will need to put in place over the next few weeks to ensure that we get this right, and get it right first time.

Horizon: Compensation and Convictions

Robert Buckland Excerpts

Monday 8th January 2024 Commons Chamber

[Kevin Hollinrake]

Well, the hon. Gentleman raises an important point about accountability. We have given Sir Wyn Williams the chance to look at all these issues and determine accountability and individual responsibility. I have dealt with a number of different scandals over the years, from the Back Benches as well as in my ministerial role. They happen at a corporate level too often for us to simply carry on in the way we have done in the past, so I am happy to take away the hon. Gentleman’s points about the potential penalty for the offence he describes, which I will discuss with officials and others.

[Sir Robert Buckland (South Swindon) (Con)]

Anybody who cares about the interests of justice in our country will be horrified not just at the nature of these miscarriages of justice, but at the sheer scale of them. Does that not beg a very important question? This is an unprecedented set of circumstances and, in my judgment, it requires an unprecedented approach: there should be legislation on the Floor of the House to deal with the convictions of this huge class of people who are not just not guilty, but victims. I urge the Minister and the Lord Chancellor to look urgently at the question of legislation—I know that it would be supported in this House—to create a presumption of innocence that will cut the Gordian knot and support the victims and their families who have been enduring this horror for too long.

[Kevin Hollinrake]

I thank my right hon. and learned Friend for his question and for his work on this issue, and I appreciate the engagement that he has had with the Lord Chancellor. As my right hon. and learned Friend said, this situation is unprecedented. We certainly discussed legislation on the Floor of the House at length today in a meeting with the Lord Chancellor and officials. He will be aware that the Lord Chancellor is speaking to the judiciary about these matters. He may want to do the same and make his feelings known to ensure that there is no barrier to making sure that we can legislate in the way that he describes.

Economic Crime and Corporate Transparency Bill

Robert Buckland Excerpts

Consideration of Lords message
Wednesday 25th October 2023 Commons Chamber

[Alison Thewliss (Glasgow Central) (SNP)]

I knew that when you referred to us all as distinguished and experienced Members you did not mean me, Madam Deputy Speaker.

This is the third time we have been back here, and I think it incumbent on the Government to listen to the Lords. They have made it clear that they feel strongly about their very reasonable amendments, which shows how important they are and how we should be getting this right. There is no question that, as the Minister suggested, we are going to let the Bill fall today. I think that if he were worried about that he would accept the Lords amendments this afternoon, rather than allowing the process to go on and on. We did not need to be here at the last minute; he could have accepted many of the amendments at a much earlier stage, because fundamentally he agrees with them. We know that, because he said it on many occasions before he took ministerial office. I think that a great deal can be done if the Minister will make that compromise this afternoon.

The notion that 99.5% of businesses can be exempted from the “failure to prevent” offence is absolutely mad. Small businesses are both part of and victims of economic crime. Some figures from UK Finance arrived in our inboxes earlier today. According to its findings, criminals stole £580 million through unauthorised and authorised fraud in just the first half of 2023. UK Finance says that that is a 2% decrease, but it is still a significant amount of money. Businesses as well as individuals are losing out, and the Government should be paying more attention to that.

The Minister described “failure to prevent” as a distraction for business. I wonder if he also thinks, for consistency’s sake, that the “failure to prevent bribery” offence in the Bribery Act 2010 and the “failure to prevent tax evasion” offence in the Criminal Finances Act 2017 are distractions for business. If he thinks that “failure to prevent” economic crime is a distraction for business, he must surely think that those other offences are also an unnecessary bit of bureaucracy that businesses have to carry out. It does not make any sense.

I fully support the level playing field for cost protections. We must give our enforcement agencies both the tools and money to do their job. No enforcement agency should be thinking, “We cannot afford to take on this case. We cannot afford to prosecute these economic criminals.” The Government should be supporting law enforcement, allowing this Lords amendment to go through, and ensuring that we make the best possible legislation. There is no excuse for the Government not to do these things. The Government agree with them, and we in the House agree with them on a cross-party basis. The Government should get on with it, and not return the Bill to the Lords.

[Sir Robert Buckland (South Swindon) (Con)]

I will certainly remember your exhortation to brevity, Madam Deputy Speaker. As you know, that is something of a challenge for me at the best of times.

[The Secretary of State for Levelling Up, Housing and Communities (Michael Gove)]

No, no.

[Sir Robert Buckland]

I think my right hon. Friend may suffer from the same affliction, dare I say; but I will draw a veil of charity over that.

My hon. Friend—and my friend—the Minister has campaigned assiduously with us in the trenches on this issue for many years. I yield to none in my admiration for him, and I want to put on record how grateful I am that he is in this place, in that spot, doing the job that he is doing. We have come a long way. I well remember being on the Parliamentary Business and Legislation Committee giving authorisation for this Bill in the first place, and knowing then that it would require heavy amendment during its course.

It was inevitable that, in the light of the appalling incidents in Ukraine and the changed world situation, the Bill would develop and mature, and mature it has. The identification principle changes are truly radical and reflect a view long held by the Law Commission and others that we needed to update the Tesco v. Nattrass principle, which is now 50 years old. I salute the Minister and colleagues in the Lords for making sure that that has happened, but I must press him again about the basis upon which the Government make assertions, very much at the last minute, about the regulatory or administrative cost burdens on small and medium-sized businesses. I do not think that they are going to be as dramatically high as they assert. We have not had proper time to test the estimates, and I do not think that they stand up to scrutiny. They do not reflect the Government’s position on previous “failure to prevent” offences—namely, for tax evasion and bribery—and this begs a huge range of questions.

There is no doubt that my colleagues in the legal profession—I refer the House to my entry in the Register of Members’ Financial Interests on every occasion, and I do so now—will feast upon these threshold definitions. Worse than that, unscrupulous operators in the field will exploit these threshold definitions and find clever ways around the law. We know what that means. We will see shell companies and people of straw. We will see the same behaviour that we are rightly trying to eradicate because we want this country to be one of the best places in the world to invest.

This is chiefly an economic argument. Yes, there is a morality to it, but chiefly it is an economic argument. That is why, at the last minute as we come up to Prorogation, I remind my hon. Friend the Minister of the increased majorities in the other place for these amendments and in particular of the attempt we have made to compromise with the Government. At the last minute, I imposed myself upon the goodwill of the Clerks in order to get a further amendment in before the time limit. It was a manuscript amendment to increase the period of one year mentioned in the amendment to 18 months. It has not been selected for debate, but the important political point that we wish to make is that we are seeking at the last minute to come up with reasonable compromises.

I will give the Minister another idea. Bills normally come in with Royal Assent, which we imagine will happen either today or tomorrow with the Prorogation ceremony. Two months is the normal period for Bills to then come into force but he has the power to lay commencement orders to ensure that certain parts of this Bill do not come into force until a statutory instrument has been laid. He has that power, so why not use it in this case and accept the amendment tabled in the name of my right hon. Friend the Member for Barking (Dame Margaret Hodge)? He can see that we are commanding all the ingenuity that we have to come up with reasonable compromises that will allow the Bill to pass in the best possible order. I make a last-minute plea to him to accept these exhortations and not to oppose the amendment in the name of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) and me. I can say no more to my hon. Friend the Minister, other than to thank him and ask him to go that extra yard.

[Dame Margaret Hodge (Barking) (Lab)]

This is another leg in a long journey. I want to focus on the amendment that stands in my name, which is supported by the right hon. and learned Member for South Swindon (Sir Robert Buckland) and the hon. Member for Bromley and Chislehurst (Sir Robert Neill).

May I place on the record my thanks to everybody across the House, some of whom are here today, for the way in which we have managed to work together as Members of Parliament and put our political affiliations behind us in trying to find a common-sense, pragmatic way to tackle a horrific problem and to improve the Bill that was laid before us almost a year ago? I also pay special tribute to Members of the House of Lords, who have again worked incredibly hard to improve the Bill in a practical way. In particular, I thank Lord Garnier, Lord Agnew, Lord Vaux and Lord Edward Faulks, all of whom have moved important amendments that have been supported by Members across the House, many of whom are members of the all-party parliamentary group on anti-corruption and responsible tax.

I draw to Members’ attention what happened to the amendment to the “failure to prevent” measures. When it was first considered by the House of Lords it was passed by a majority of three. When it was considered a second time, it was passed by a majority of 26. When it was considered a third time, last week, it was passed by a majority of 41. So the strength of feeling in the other place about the importance of the propositions in the Bill simply grew over time, as the argument was heard by more and more members of the House of Lords, and I bet that if it goes back again, it will get through again with an even greater majority. I say to the Minister that people are voting for this and it is not just a partisan issue; Cross-Benchers and members of the Conservative party are either voting or choosing to abstain. That is why we are securing those majorities in the House of Lords.

Our amendment is moved in the spirit of compromise. All we are saying in that amendment is that we would require the Secretary of State to carry out a review a year after Royal Assent, with a report to Parliament within 18 months of Royal Assent, where it would assess the impact of excluding so many businesses from having duties to prevent fraud. It would also look at the impact of that on the incidence of fraud and assess the potential merits of bringing more companies into scope.

I want to take Members back to when the Government promised to introduce a “failure to prevent” offence on the basis of new clauses introduced by the right hon. and learned Member for South Swindon and the hon. Member for Bromley and Chislehurst when we considered the Bill on Report. They were detailed new clauses to which we had given great thought. The Government agreed at that point to adopt our proposals on the basis that we would not seek to divide the House on the issue. We kept our side of the bargain but, sadly, the Government have failed to deliver on their commitment. So Lord Garnier tried valiantly three times to hold the Government to their word, and every time he put it to a vote he got a greater majority in favour of what he was proposing.

This measure was first championed when the Minister was a Back Bencher, as he is well aware. He was the individual on our all-party parliamentary group who argued the case for it with the greatest passion and commitment, so it is especially sad that the effectiveness of the new offence has been so undermined and weakened by the changes he has chosen to make or been forced to make by colleagues in his own Department or in the Treasury. He often argues that we were the first country to introduce a “failure to prevent” offence. I agree with that, but I would simply say to him we are also the jurisdiction of choice for dirty money, so surely we have a duty, more than any other jurisdiction, to lead on reforms and to clamp down on this evil matter.

The Government’s changes have substantially weakened the power of the new offence, and the Minister has to accept that. He has taken out the failure to prevent money laundering, and the offence now covers only fraud. He has excluded all medium-sized, small and micro-businesses. That means that his carveout has excluded 99.9% of all businesses. It has excluded two thirds of all the people employed in private enterprise. It has excluded half the turnover that flows through private enterprise. I say to the Minister that this is a missed opportunity by his Government that represents a failure to act firmly and decisively against the scourge of dirty money.

The Government’s own report, “National SME Fraud Segmentation”, found that medium-sized companies employing between 50 and 250 employees were significantly more likely to experience fraud than larger companies. The Metropolitan police and UK Finance have warned that SMEs are particularly vulnerable to fraud, and the procedures to prevent companies from committing fraud are exactly the same as the procedures to prevent companies from experiencing fraud. Why on earth and on what basis have the Government chosen to excuse them? I cannot understand the logic.

Economic Crime and Corporate Transparency Bill

Robert Buckland Excerpts

Consideration of Lords message
Wednesday 13th September 2023 Commons Chamber

[Kevin Hollinrake]

It is always a pleasure to speak with right hon. and hon. Members on the Economic Crime and Corporate Transparency Bill, which they will know is close to my heart and contains many vital measures for which I have long campaigned. The Bill will give us the powers we need to crack down on those who abuse our open economy, while ensuring that the vast majority of law-abiding businesses can grow and flourish.

I am grateful that both Houses have reached agreement on several issues, including those relating to the register of overseas entities and on removing the extension of the failure to prevent offence to money laundering. However, we are here today as agreement is still outstanding on a handful of remaining issues. I urge this House to accept the Government amendments, to settle those remaining topics and ensure that we can proceed to Royal Assent and implementation of these important reforms without delay.

I will now speak to those remaining topics. In the other place, the Government tabled two amendments on nominee shareholders—amendments 23B and 23C, in lieu of Commons amendment 23A, and in response to Lord Vaux’s amendment 23 on this topic from Report stage in the other place.

The Government’s amendments will allow the Secretary of State to make regulations to make further provision for the purpose of identifying persons with significant control in cases where shares are held by a nominee. This will allow the Government to work with relevant stakeholders to target the regulations in an effective and focused way that does not impose disproportionate burdens. Members of the other place agreed with the Government’s proposal and I trust that Members of this House will therefore agree with it today.

Lords amendments 151B and 151C would apply the exemption from the failure to prevent fraud offence to micro-entities only, rather than the Government’s position of excluding all small and medium-sized enterprises. The Government appreciate that Lord Garnier has moved closer to the Government’s position in agreeing to the principle of applying a threshold. However, our position remains that such an amendment would still incur significant costs to businesses. Reducing the exemption threshold to only micro-entities would increase one-off costs for businesses from around £500 million to £1.5 billion. The annual recurrent costs would increase from £60 million to over £192 million.

[Sir Robert Buckland (South Swindon) (Con)]

Where do those figures come from?

[Kevin Hollinrake]

We used very similar analysis to that used for the failure to prevent bribery and failure to prevent tax evasion offences. We have used a common methodology. I have not seen any figures that contradict our figures here, but in my view—having run a business and dealt with some of the failure to prevent bribery provisions—there is no doubt that there are significant costs. There may be external consultants to bring in, for example. Even if one is compliant, one might not know whether one is compliant, so there are definite associated costs to ensuring that reasonable efforts are made to prevent fraud, as it would be in this case.

Those costs would still be disproportionately shared by small business owners, when law enforcement can attribute and prosecute fraud more easily in these smaller organisations; and, as I have set out before, we must be mindful of the cumulative impact on SMEs across multiple Government requirements and regulations. In all the work I have done in the past from the Back Benches on failure to prevent, it was invariably the case that all cases involved larger businesses, not SMEs.

Large companies have the resources and specialist expertise to cope with additional burdens, whereas small businesses often have to dedicate a significant amount of time and resource, often paying for external professional advice to assess what new rules would mean for them. That is the case even where they subsequently assess that they already have adequate controls in place. That is time and resource that could otherwise have been used to grow and generate wealth for their businesses and jobs for their staff. The Government are extremely mindful of the pressures on companies of all sizes, including SMEs, and therefore do not feel it is appropriate to place this new unnecessary burden on over 450,000 businesses. I therefore urge Members of this House to support the Government motion to disagree with the Lords amendments, to ensure that we take a proportionate approach and do not impose unnecessary measures that would curb economic growth.

Turning to Lords amendment 161B, made by Lord Faulks, on cost protection for law enforcement in civil recovery cases, the Government remain of the view that the amendment would be a significant departure from the loser pays principle and therefore should not be rushed into without careful consideration. There is no clear evidence that such changes would help to achieve their intended aim of increasing the capacity of law enforcement to take on more civil recovery cases. There have been no adverse cost rulings against an enforcement authority carrying out this type of civil recovery in the past six years.

Costs are just one of many factors that determine whether law enforcement will take on a case. For example, the evidence available to pursue a case, particularly where evidence is required from overseas, often proves more vital to an operational decision. There are already a number of ways in which an enforcement agency’s liability to legal costs can be protected under the civil procedure rules in England and Wales. For instance, rule 44.2 gives the court discretion as to the payment of costs by either party, including whether they are payable to another party, the amount, and when they are payable. In addition, a cost-capping order can be applied for under rule 3.19 to limit any future costs that a party may recover under a later costs order. If we are to introduce further legislation, we must consider what gap this is trying to fill. We should also consider civil liberties and property rights that underpin our economy. We will potentially be handing huge powers to the state, which could be held over an individual.

--- Later in debate ---

[Alison Thewliss (Glasgow Central) (SNP)]

I strongly very much with what the hon. Member for Bromley and Chislehurst (Sir Robert Neill) said. Let us just agree with the Lords. Let us get on with this. Let us do this legislation, and do it properly.

Let me say first that it is important for us to have as much information as possible about those who own companies. It is clear from all the evidence that has come before us that the lack of such information causes people to find ways of hiding their money, and the UK has become a magnet for that. The Minister has suggested that there will be a significant cost to businesses, but businesses are already doing work on failure to prevent bribery. As Lord Garnier said on Monday, there is a clear read-across: it would be easy to add fraud to the current provisions. It would not be difficult, and it would bring about an economic benefit. The Minister also suggested that economic growth would be hampered in some way, but he himself has said that

“ a corporate offence of failure to prevent economic crime and money laundering would reduce the amount of money that is illegally shifted out of the UK into foreign jurisdictions and increase the amount of tax that is paid.”—[Official Report, 22 February 2020; Vol. 672, c. 220.]

Why does the Minister now disagree with himself? Why does he disagree with statements that he has made in the past? He knows that this is an important measure, and that this is an issue that we can deal with here today and it will be done. We will not have to come back to it, we will not have to keep debating it, and the Minister will be able to see that he has finished it off and done a good job.

On the issue of adverse costs, I agree with what Bill Browder said in his evidence to the Bill Committee. By not introducing such a measure, we are inhibiting law enforcement when it comes to economic crime. We know that those on the other side of the equation who want to hide their money have plenty of it to throw at the best lawyers and at the best accountants to make things look a particular way. If we are to be in this fight, we need to give the law enforcement agencies the resources that they require, and cost capping is a key element of that.

As I said the previous time we debated these matters, there is no need for a review. We need to get on with things. An election is coming, and we do not know when we will pass this way again. The Minister should accept the Lords amendments, and get on with the work.

[Sir Robert Buckland (South Swindon) (Con)]

I shall be brief. The hon. Member for Glasgow Central (Alison Thewliss) repeated her phrase of last week—and, indeed, we have passed this way again. I will resist the temptation to be too biblical today; I will simply reiterate to the my hon. Friend the Minister the points that I made last week. Lord Garnier has moved on the position in the Lords and offered an olive branch to the Government, in the sense that this is a different amendment. It rightly now affords what, in the opinion of many of us, will be greater protections for businesses. What is being ignored in this debate is the fact that businesses that take reasonable measures will not be the subject of a prosecution or investigation. Businesses that are not within this regime will not have that protection, so there is a cogent argument that failing to extend the “failure to prevent” offence to more businesses would leave them less well protected.

--- Later in debate ---

[Kevin Hollinrake]

I have listened carefully to my right hon. and learned Friend’s points. He said a few seconds ago that this would relate only to fraud that benefits the body concerned. Paragraph 1(b) of Lords amendment 151 also covers the body or an associate within that body providing services, so this is not just about the benefit to the organisation itself.

[Sir Robert Buckland]

I will take that qualification. I was seeking a short cut because time is brief. My hon. Friend is right to mention the agency point, but it is still a much narrower ambit of the offence than fraud in general. That is the point I would ask him to take away, because I am not persuaded. I think the amendments should remain within the body of the Bill as amended, and I will be voting accordingly.

[Dame Margaret Hodge (Barking) (Lab)]

Mr Deputy Speaker, I am conscious that we must vote in five minutes to remain in order, so I will simply say that economic crime is a national security issue and should not be a partisan issue in this House. I urge the Minister to set aside the party political views that he is expressing and to go with the consensus that has been built, not just in the House of Commons but in the House of Lords and in the non-governmental organisation sector outside.

--- Later in debate ---

[Mr Deputy Speaker (Mr Nigel Evans)]

I thank the right hon. Gentleman for his point of order. As he knows, we are now going to move on to the motion on amendment 161B, and if that is annulled there will be other opportunities, I am sure.

After Clause 187

Civil recovery: costs of proceedings

Resolved,

That this House disagrees with the Lords in their amendment 161B in lieu of Commons amendment 161A and insists on amendment 161A in lieu.—(Kevin Hollinrake.)

Motion made, and Question put forthwith (Standing Order No. 83H(2)), That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing with their amendments 151B, 151C and 161B.

That Kevin Hollinrake, Scott Mann, James Sunderland, Jane Stevenson, Rushanara Ali, Taiwo Owatemi and Alison Thewliss be members of the Committee;

That Kevin Hollinrake be the Chair of the Committee;

That three be the quorum of the Committee.

That the Committee do withdraw immediately.—(Kevin Hollinrake.)

Question agreed to.

Committee to withdraw immediately; reasons to be reported and communicated to the Lords.

[Sir Robert Buckland (South Swindon) (Con)]

On a point of order, Mr Deputy Speaker. May I seek your guidance about how I properly place on the record a reference to my entry in the Register of Members’ Financial Interests in the context of my speech in the debate about the Lords message on the Economic Crime and Corporate Transparency Bill?

[Mr Deputy Speaker (Mr Nigel Evans)]

I thank the right hon. and learned Member for his point of order. He has recognised that he made an omission and he has corrected it at the earliest opportunity. I thank him for doing so.

Economic Crime and Corporate Transparency Bill

Robert Buckland Excerpts

Consideration of Lords amendments
Monday 4th September 2023 Commons Chamber

[Kevin Hollinrake]

I thank my hon. Friend for all his work in this area. He makes the point very well. We need to ensure that when we bring forward these measures, they are properly considered and do not result in unintended consequences. He may want to raise those points as part of that consultation when we launch it.

The Government firmly believe that their own amendment and their commitment to consult better achieve the aim of improving trusts’ transparency, as intended by Lords amendment 117, while ensuring that we have time to analyse and stress test the risks in greater depth, including legal risks. We therefore do not support the amendment.

Lords amendment 151, in effect, removes the threshold, as right hon. and hon. Members have already raised, that the Government introduced as part of the failure to prevent offence, which exempts small and medium-sized entities. As I have set out, the Government are extremely mindful of the significant pressures that small companies are under, and do not want to place unnecessary and duplicative burdens on legitimate businesses.

[Sir Robert Buckland (South Swindon) (Con)]

I agree that we have made huge progress on the Bill, but why is the threshold on small businesses not present in the failure to prevent bribery and tax evasion offences? They are alike offences that have caused a regulatory burden to already exist. What difference will the Bill really make? Why are we not giving it the full fat treatment?

[Kevin Hollinrake]

I think there is a difference in the regulatory burden of failure to prevent fraud versus failure to prevent bribery and tax evasion. It is more complicated to do it, so it would have a much greater impact on SMEs than bribery and tax evasion. It is a balance of risk and benefits when making sure where those regulatory burdens sit.

--- Later in debate ---

[Kevin Hollinrake]

I do not accept that. It would be extraordinary if someone set up a business just for the purpose of keeping turnover below £36 million. Besides, it is already much easier to pinpoint fraud in small organisations than larger organisations. That is already the case. It is easier to take forward those kinds of prosecutions on that basis.

[Sir Robert Buckland]

My hon. Friend is being very generous. I have two points on that. First, I take the point that the Government amendments have already mitigated the issue about parent companies and the division into subsidiaries—that is welcome. But the threshold has been taken from modern day slavery legislation. What is the separate rationale for that threshold in the context of economic crimes? I have not heard any.

Secondly, money laundering is already a criminal offence under the Proceeds of Crime Act 2002, just like fraud, false accounting and theft. Why on earth are we conflating the regulations that are all about neglect, which are used by the FCA admittedly on some major cases, but not that often, with what is already a criminal offence? Why can we not just extend money laundering, which already is part of the regulatory burden of businesses in any event?

[Kevin Hollinrake]

I will come to the point about money laundering and broadening the sectors that money laundering regulation applies to, but, on SMEs, in my experience, in the work I did as a Back Bencher and in the work others have done, every case of fraud or money laundering I have seen has been by larger companies, not small companies. A number of cases the Serious Fraud Office has tried to take forward have been against larger companies, which is where the failure to prevent requirement comes in. It is much easier to take forward—

[Sir Robert Buckland]

rose—

[Kevin Hollinrake]

I will just finish my point.

It is much easier to take that forward where the failure to prevent offence comes in, of course. The act of money laundering is a criminal offence—of course it is—and the act of fraud is a criminal offence. This is about a failure to prevent those activities and imposing that would, in our view, impose a significant regulatory burden on businesses.

[Sir Robert Buckland]

I am grateful. The Minister is right to cite the SFO, but he knows that the threshold the SFO applies is very high. It will only prosecute high-value, complex or novel cases. It does not deal with the warp and woof of fraud in this country. He is right to say that the majority of this fraud is committed by byzantine, large organisations, but I have to ask him again: what is the regulatory burden? We know that companies already have to face regulations anyway. We have failure to prevent offences. Why is it—I suspect it is the hand of the Treasury, with respect to him—that the Treasury is trying to hold things back on this offence?

[Kevin Hollinrake]

My right hon. and learned Friend says it is the Treasury. Actually, I am responsible for the business framework and I am concerned about putting £4 billion of regulatory burdens on businesses. That burden has been calculated in the same way that we calculated the burden for bribery, so I think it is a figure we can rely on. Our natural position is that we do not regulate businesses that would find it more difficult to deal with that regulation. That tends to be SMEs. They might find it more difficult to deal with regulation, rather than larger companies, where it is easier to put those controls in place.

We have heard arguments that the threshold means 99% of companies will not be in scope, but we do not think the number of companies is the right metric by which to assess the effect of the new offence. We believe economic activity is more appropriate. I can assure the House that 50% of economic activity would be covered by the organisations in scope of this new offence with the threshold in place. It is, of course, already easier for law enforcement to prosecute fraud in smaller organisations that fall below the threshold. Given those factors, the Government cannot support the amendment.

Lords amendment 158 seeks to introduce a failure to prevent money laundering offence. The UK already has a strong anti-money laundering regime which requires the regulatory sector to implement a comprehensive set of measures to prevent money laundering. Corporations and individuals can face serious penalties, ranging from fines to cancellations of registration and criminal prosecution if they fail to take those measures. The money laundering regulations and the money laundering offences in the Proceeds of Crime Act are directly linked and can be seen as part of the same regime. A failure to prevent money laundering offence would be hugely duplicative of the existing regime. In our conversations with industry, it has been very clear that that duplication would create a serious level of confusion and unnecessary burdens on businesses. We should be supporting legitimate businesses, rather than hampering them with overlapping regimes. The Government therefore do not support the amendment.

Lords amendment 160 would prevent enforcement authorities from having to pay legal costs in unsuccessful civil recovery proceedings, subject to certain intended safeguards. This type of amendment would be a significant departure from the loser pays principle and therefore not something we should rush into without careful consideration. The risk of paying substantial legal costs is just one of a multitude of factors that inform an operational decision to pursue an asset recovery case.

Several hon. Members and noble Lords have pointed to the similar changes made to the unexplained wealth order regime by the first economic crime Act, the Economic Crime (Transparency and Enforcement) Act 2022. The key difference is that UWOs are an investigatory tool that do not directly result in the permanent deprivation of assets, whereas civil recovery cases covered by the amendment could do so. There could, therefore, be a host of serious unintended consequences of such a change to the wider civil recovery regime, so the Government cannot support the amendment. However, we recognise the strength of feeling on the issue and the potential merits of reform. We have therefore tabled an amendment in lieu which imposes a statutory commitment to review the payment of costs in civil recovery cases in England and Wales by enforcement authorities, and to publish a report on its findings before Parliament within 12 months.

I hope the House is assured that the amendments the Government have laid are minor but sensible tweaks to the Bill. As I have set out, the Government have listened and made substantial important amendments to the Bill throughout its passage, significantly improving and strengthening the package where we recognise improvements could be made and where it makes sense for businesses. We must now, however, stand firm where we believe the amendments will not work or will place disproportionate burdens on businesses. I very much hope Members will support our position today and that the other place will note the Government’s movement on cost protection and reconsider its position on the six amendments when the Bill returns there. We must get on with implementing the vital measures in the Bill without further delay.

--- Later in debate ---

[Alison Thewliss]

I will not give way, as I am conscious of the amount of time for this debate. As I was saying, it is important that we recognise the significance of this to small businesses—this is there to help them, not hinder them.

I move on to the cost protection for civil recovery cases. Again, this is incredibly important, because the balance we have is not right. Those who can pay—the enablers, the lawyers, the sharp accountants—have a huge advantage over law enforcement agencies, which do not have significant resource and expertise to do this. As Bill Browder said when he gave evidence to the Bill Committee in October 2022:

“What has to happen here—this is plain as day—is that you have to get rid of this adverse costs issue in a civil case brought by the Government… If you make that point, it will change the whole dynamic—the whole risk-reward—for these people.”––[Official Report, Economic Crime and Corporate Transparency Public Bill Committee, 25 October 2022; c. 66, Q140.]

On adverse costs, the Government are saying that they are sympathetic to this, and they are going to consult and do some other things later on, but by not putting this measure in this Bill, they are allowing this uneven playing field to continue and be perpetuated. Because the law enforcement agencies know that it is going to cost them an absolute fortune, which they do not have, these cases go unpunished and those who perpetrate all of this money laundering, with all this money washing through the UK financial system, will see this continue, because people can afford to get away with it. The Government should be deeply concerned about that.

Let me recommend to the Minister Bill Browder’s latest book—if he has not already read it. It exposes the capture of all of these enablers, from lawyers to everybody else; we need to be looking to close the door on that in this Bill. The Government have an important opportunity here. This important situation does not come along very often and we do not know when we will pass this way again. We have a Bill in front of us. The Government could go for accuracy and for transparency in the register. They could close the door, fix the loopholes and do all of these things that they must do. They could accept these Lords amendments tonight. They could fix this Bill and do it right, and we would not have to come back here to legislate again.

[Sir Robert Buckland]

It is a pleasure to follow the hon. Member for Glasgow Central (Alison Thewliss). She said that we might not pass this way again. Indeed, this has been a very long way for me and for many others in this House who have been making the case for a failure to prevent offence for many years, both in office and as Back Benchers. I am delighted that the Under-Secretary of State for Business and Trade, my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) is in his place, because he is a true believer as well.

I hoped that tonight could have been a Simeon moment—I could have sung my Nunc Dimittis and departed in peace—but no, I am afraid that, as a result of the welcome but somewhat limited amendments made by the Government in the Lords, I am reduced to the role of Moses; I can see the promised land but I am not, it seems, according to the Government, destined to get there. Therefore my exhortation to my good friend the Minister is, “You can be Joshua. You can knock the walls of Jericho down. You can go the extra mile and finish the job.”

We have heard a lot about this failure to prevent offence, and the word “fraud” has been bandied about as if we were dealing with fraud in general. May I, perhaps uncharacteristically for some hon. Members, draw the attention of the House to the Lords amendments themselves, because they are what we are considering?

I, like you, Madam Deputy Speaker, am a stickler for ensuring that we stick to the point, so I turn to page 46 of the bundle and, in particular, amendment 151, which is the proposed new clause “Failure to prevent fraud”. It ain’t any old fraud; it is fraud intending to benefit “the relevant body”. That is not a fraud in general, about loss to the taxpayer or the company—in fact, there is a specific defence on that basis that says if the fraud causes loss to the company, it is not a criminal offence—but a very targeted type of fraud that is about benefit to the company.

As a lawyer, Madam Deputy Speaker, you know that we have something called the criminal standard of proof. This is not any old regulatory device; this is a criminal offence. The threshold and standards that have to be applied by the police, the investigating authorities and the prosecutors are high. As my right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) said, the defence set out in clause 4, about reasonable prevention proceedings, is crucial. When I hear people talk about regulatory burden, I have to say, in all candour, that that is a misplaced understanding of what this rather limited offence will achieve.

[Richard Fuller]

rose—

[Sir Robert Buckland]

I will give way to my hon. Friend and then explain why he is wrong.

[Richard Fuller]

I thank my right hon. and learned Friend. He seems to have some mixed views on the point of regulatory burden, particularly on this measure. He makes the point about fraud being a crime, but this legislation is about actions to prevent fraud, as he knows. What do I tell the good, upstanding owners and managers of small businesses in my constituency that they are doing wrong about fraud today? How are they letting him down because they are not taking the actions to prevent fraud that he thinks they should be taking?

[Sir Robert Buckland]

Tell them that this offence is about fraud intended to benefit themselves, not about a fraud that causes them loss. This is a limited offence. It is the misunderstanding of the term “fraud” in the clause that is so important to the debate; we have to focus, laser-like, on that.

My hon. Friend the Member for North East Bedfordshire (Richard Fuller) is well experienced in business, over many years in financial services, and I bow to the expertise and experience that he has brought to the House, and indeed to ministerial office—all too briefly, which was a shame. He will understand the law of corporate liability in the United States—a vigorous free market economy, the biggest economy in the world, where people go to invest and grow businesses. I can tell him that corporate criminal liability in the United States is pretty draconian, because companies there are liable, even if their employees go off on a frolic of their own and defraud to their hearts’ content, yet corporate criminal liability there will bite upon United States entities. That is far more draconian that anything we have in this jurisdiction and far more onerous, potentially, when it comes to regulatory burden, yet my hon. Friend cannot argue with me that the United States is anything other than a vigorous free market economy.

[Richard Fuller]

I do not want to argue about that point, but the United States is also an incredibly litigious society. The main beneficiaries of much of this are the legal community, with which my right hon. and learned Friend will be particularly familiar. As a result of the clause applying to smaller businesses in my constituency, can he tell me specifically what they will need to do differently that they do not do today?

[Sir Robert Buckland]

They will have in place reasonable procedures to prevent people from acting on their behalf and unjustly benefiting their own companies and entities. Let us not forget it is a partnership offence as well. I do not see that as some sort of general exhortation to small and medium-sized businesses to suddenly put in place measures to prevent fraud in general—that is not what the offence says.

[Sir Jeremy Wright]

Does my right hon. and learned Friend agree that part of the answer to the point made by our hon. Friend the Member for North East Bedfordshire (Richard Fuller) is that the vast majority of businesses will not need to do anything differently, because what they do now is perfectly reasonable. If what they are doing is reasonable, they will be perfectly safe from this legislation. This legislation is intended to catch those who do not behave reasonably and those who behave dishonestly, which will be a tiny minority. We accept that the legislation will not lead to a huge number of prosecutions or convictions; it is supposed to lead to a change in behaviour where that is needed.

--- Later in debate ---

[Sir Robert Buckland]

Exactly, and that is the point. What the Government have done is set up a legislative Aunt Sally. I welcome their putting in place mitigating measures to deal with parent companies and subsidiaries—Lord Bellamy explained that very well indeed—but the threshold they have set is entirely unnecessary. It does not reflect what the Law Commission said in its report. When I was in office, I was delighted to ask the Law Commission to do the work on failure to prevent fraud. It did the work and, hey presto, it produced proposals that had nothing about thresholds in them, so where on earth has that come from?

I am sorry if I might have inadvertently upset my hon. Friend the Minister by mentioning His Majesty’s Treasury, but I detect the hand of my friends in Parliament Street. I know their view about failure to prevent fraud; they do not like the offence and never have done. They have always put up arguments against it. Perhaps it is their role to do that—I do not know—but I detect their hand in this. That is an unfortunate coda to what would have been a magnificent symphony, had my hon. Friend the Minister stuck to the line and done what I thought he was going to do.

To return to the point made by my hon. Friend the Member for North East Bedfordshire, I agree that the United States is a litigious society. We, in the United Kingdom, do not necessarily want to go down that road when it comes to civil litigation, but what the United States does well is prosecution of fraud. It regularly and rigorously enforces the criminal law of fraud, particularly in the jurisdiction of New York and in other major financial centres, which enhances the reputation of that jurisdiction as a safe place to do business.

Here is the argument that you, Mr Deputy Speaker, do not hear, in contradistinction to the argument about the regulatory burden. Where there is a criminal legal framework that is clear, certain and stable, that can only encourage investment into the United Kingdom, not discourage it. A jurisdiction with a robust and independent judiciary and a fine legal tradition, which rigorously polices the law of corporate criminal liability, is one that investors can have the greatest confidence about investing in. What on earth is happening here to undermine that very powerful argument?

Prosecutors, including the Crown Prosecution Service and the Serious Fraud Office, have made the case consistently that a “failure to prevent” offence of this nature would help them in the important work they do in bringing wrongdoers to book. We do not want to be a jurisdiction where it is too easy to commit fraud that benefits corporates. We do not want to be that sort of place—that is not a healthy place within which we should be operating. If we are truly committed to a vigorous free market economy, then, in the traditions of Adam Smith, we should be absolutely committed to its policing and its boundaries. I sound a bit evangelical about this—a bit biblical, a bit Old Testament—because it is important that we get this right at this last stage of the Bill.

That brings me to my noble Friend Lord Garnier’s amendment about money laundering. He made the argument very well and, having read his entry in Lords Hansard, I will adopt it. I am in danger of sounding like a broken record, but I make no apology for that. Money laundering is already a criminal offence. The regulatory argument does not cover the full gamut of what we are dealing with, and Lord Garnier’s amendment is a sensible reflection of the importance of ensuring we cover offences of money laundering. Remember again that this is about benefiting the company; it is not money laundering in general, but a targeted offence, with the same caveats and qualifications that I mentioned in the context of the “failing to prevent fraud” offence. So I say to my hon. Friend, “Repent!”. He should follow the true path and come back and finish the job. We can all then take equal pride in the work that he and others have done to make sure that this jurisdiction is a fairer and better place in which to do business.

Let me end on this note. I will not dwell too much on the rather milquetoast amendment about the capping of cost orders for proceedings for civil recovery. We know that it is a problem. We know that it is a disincentive to the bringing of civil proceedings under the Proceeds of Crime Act 2002. We should just get on with it. The particular rules and proposals about costs are well reflected in other parts of legal procedure and other types of proceedings, so this is nothing new. I think that it is time that we grasped the nettle rather than having yet another report.

Finally, Lord Agnew made a very powerful point: just a few words is all it takes to make a difference when it comes to trusts and the arguments that have been very cogently made about that by others. Only a few small steps need to be taken by my hon. Friend and His Majesty’s Government to allow us to reach that promised land. I urge him to take us there and then we can all celebrate in a land of milk and honey.

[Dame Margaret Hodge]

I shall start where that brilliant speech by the right hon. and learned Member for South Swindon (Sir Robert Buckland) ended. I would also say to the Minister, and also to the Minister for Security, the right hon. Member for Tonbridge and Malling (Tom Tugendhat) were he still in his place, that they have shown from their time as Back Benchers a real understanding of all the issues around economic crime. They knew what needed to be done. They helped to develop the agenda that would work through smart regulation, transparency, tough enforcement and proper accountability. When the Bill arrived in the House, it was, I hope the Minister will agree, a bit half-baked. I am not blaming the civil servants in the box, but it was a bit half-baked. It was full of loopholes and serious omissions. But in this year that we have been considering the legislation, it has gone through tremendous transformations, so I salute the Minister for what he has done, but urge him to go that step further. I thank the Labour Front-Bench team for their assiduous and detailed work on this, but I particularly salute the Back Benchers—Back Benchers from all parts of this House who have joined together to bring forward a set of pragmatic, practical amendments that really will make this Bill fit for purpose. I also thank those in the House of Lords who have worked across parties, with the Cross Benchers, to ensure that we have some serious amendments that will give us a good framework to start the eradication of the malignant infection that we have with dirty money.

I say to the Minister: do not undo that good work; do not emasculate what has happened and where we have got to; and do not give into the voices of enablers who want to make a fortune on the back of dirty money. I wonder, as the right hon. and learned Member for South Swindon has wondered, why on earth is the Minister not listening to what we are saying. Everybody in Parliament wants this. Everybody in the country wants this. Nobody supports dirty money. As I have said time and again, the country will not sustain economic prosperity and wealth on the back of dirty money. There is no future in that. I give the Minister another commitment, which I really regret having to say. I will not be here, but I want a future Labour Government to commit to never having a system that allows any political party to exist on the back of donations of dirty money. I say: do not let this opportunity go. Do not betray the principles and do not cave into the lobbying. The Government should look at the excellent amendments and please go forward.

I wish to focus on some new points. Lord Agnew’s excellent amendment in relation to trusts needs to be considered. The Minister said that he did not accept the research that was published today by really respected academics. These are people I have worked with over the years in whose work I have total and utter confidence. I challenge the Minister to bring them in and talk to them and then see if he comes to the view that what they are saying is not true. What they are saying is that we do not know the beneficial owner of 70% of the properties identified as owned by an overseas entity. And we do not know the beneficial owner of two thirds of that 70% because there is a trust that hides the real beneficial ownership. The Minister should have regard to what they say, as they are distinguished. I urge him to talk to them. I am happy to join in a meeting with them. In 87% of cases where information is either missing or inaccessible, it is because of Government choices in the design of the scheme. It is not because people are not obeying the law. It is because the Government have chosen to design the scheme in that way.

--- Later in debate ---

[Mr Deputy Speaker (Mr Nigel Evans)]

Thank you for the way that you conducted your speech. I saw what you were doing, and thank you very much for helping.

[Sir Robert Buckland]

On a point of order, Mr Deputy Speaker, I seek your guidance on how I can put on the record that I refer hon. Members to my entry in the Register of Members’ Financial Interests.

[Mr Deputy Speaker (Mr Nigel Evans)]

I think you have already done it—thank you very much.

Local Radio: BBC Proposals

Robert Buckland Excerpts

Thursday 22nd June 2023 Commons Chamber

[Sir Robert Buckland (South Swindon) (Con)]

Mindful of the time, Mr Deputy Speaker, I will make sure that my remarks show—I hope—an admirable economy.

It is 100 years since the BBC was founded. Lord Reith took on that responsibility in the late 1920s and talked about BBC’s mission to inform, to educate and to entertain. Without the local radio network that we have seen developed over the last 50 years or so, I am afraid the first of his three maxims will not be fulfilled. Without the important network of journalists, supported by the staff to whom my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) quite rightly referred to in his excellent introductory remarks— I thank him for securing this debate—local people will not be informed.

Swindon sits right in the middle of the south of England, between the west of England and south central regions, and it is frankly not adequately covered by television; we are affected by a real dividing line where my community sits. BBC Radio Wiltshire is the only glue within the broadcasting network that links us with the historical country from which Swindon has developed. It is certainly the view of my constituents, and the constituents of my colleagues in North Swindon, Devizes and other local seats, that the loss and denigration of that service will really harm the way local people can access information.

It is all very well talking about digital coverage, and I accept that many of us use online services. However, without local journalists generating live coverage daily by ringing MPs here, ringing councillors or ringing local people and getting them on the show, there will be no material generated to put online. The co-ordination between the generation of live content—particularly for evening drivetime shows, in our case—and its transfer online seems to be being missed in all this.

[Dean Russell (Watford) (Con)]

I thank my right hon. Friend the Member for Hemel Hempstead (Sir Mike Penning) for securing the debate. BBC Three Counties Radio is a local radio station, but how can it be local if it is not able to deliver local news? To go back to the point that my right hon. and learned Friend the Member for South Swindon (Sir Robert Buckland) is making, the key thing is that the BBC is effectively getting rid of the local in local radio.

--- Later in debate ---

[Sir Robert Buckland]

I agree. The amalgamation of Wiltshire with Gloucestershire—a vast area—will put us back into the sort of regional miasma that affects the access to local news of the residents I represent.

We have great community radio in Swindon—105.5 is a wonderful community station—and it is doing its best to provide a public service, but the BBC is the public service broadcaster, and its obligation is to get public service right. In the reforms, it has paid lip service to consultation, and the way in which staff are being treated is unacceptable. This is, I am afraid, another example of poor decision making, poor communication and poor leadership from the BBC. We expect better of it. In the delivery of these botched reforms, it is failing in its duty.

Digital Markets, Competition and Consumers Bill

Robert Buckland Excerpts

2nd reading
Wednesday 17th May 2023 Commons Chamber

[Bim Afolami (Hitchin and Harpenden) (Con)]

It is an honour to follow the hon. Member for Salford and Eccles (Rebecca Long Bailey) and I cannot think of a subject that would generate more clicks than digital markets and the CMA. With that in mind, I mention that David Lloyd George, a long-serving and respected Member of this place, was known to remark to young Members who asked him in his later years how they should get on, make a speech and behave, that he had one main rule: Cabinet Ministers can make three points in a speech, junior Ministers can make two and Back Benchers can make one. So I shall try to make one fundamental point in my speech, which is about the accountability of the CMA.

Many Members, on both sides of the House, including the Chair of the Select Committee, have said—there was a session for Members of Parliament earlier this week at which I made similar points to the Ministers on the Treasury Bench—that, when we give power to an arm’s length body, we have to very careful about the use of that power. Members of Parliament, and the Government, must make sure it is exercised in the right way, as intended by primary legislation and by the policies of the Government of the day, in broad strategic terms. I do not mean we should do that day-by-day, decision-by-decision, where we second-guess our regulators. If we were to do that, we would get the worst of all worlds. Nobody sensible thinks that that is a good idea.

I chair the Regulatory Reform Group and I refer to my entry in the Register of Members’ Financial Interests. In recent weeks and months, my colleagues on that group and I have been thinking seriously about the broader regulatory system and how it can be improved to get the best outcome for our economy, and for individuals and businesses in this country. This is a good Bill. It does important things. I welcome the more flexible, less dogmatic, less box-ticky approach embodied in the Digital Markets Unit. That is a good thing. The Government are right to have taken into account a lot of work and thinking that has been done by many different people, both in this House and outside, over the past 18 months or so, and they should be commended for that.

However, I am worried about giving a lot more power to the CMA, if it is not checked. If it is not held to account more by this House and by the Government, we could inadvertently—the CMA has brilliant people who are trying to do their best job for the country—create an image of this country, or indeed of digital markets or any other market, that is not to the overall benefit of this country in comparison with our competitors.

In particular, I am thinking of the appeals mechanism. The Bill contains an appeals mechanism that is given a judicial review standard. That will mean—I can see two former Lord Chancellors next to me, who will correct me if this is wrong—that any appeal has to be broadly on judicial review grounds, which are on process, illegality and various other aspects that do not relate per se to the merits of the decision. In effect, if the Competition and Markets Authority has made a decision, having followed the correct process, not been irrational or done something illegal, and a party or parties do not agree with that decision, that decision cannot be challenged on its merits.

This suggestion has been pushed back in previous Bills that have come to this House when there has been discussion about whether the appeal standard should be a judicial review or a merit standard. In previous iterations, the House has always decided to take a merit standard. In this instance, we have taken a judicial review standard. That sends a subtle, but very important, signal to companies and investors outside of this country. They will say, “If something goes awry with the regulator in Britain, what is our appeal right?” They may feel that that appeal right is not sufficient compared with, say, the European Union, Singapore, the United States or wherever it is they are also thinking of investing. If they compare the two and we come off unfavourably, that will have a damaging impact on this country. That particular aspect of the Bill—the accountability—is very important.

[Sir Robert Buckland (South Swindon) (Con)]

I apologise, Mr Deputy Speaker, for not being able to join the debate until now.

Does my hon. Friend agree that one problem is that there seems to be a bit of a misreading from Ofcom to this appeals mechanism? The Government will have to look again at merit-based appeals, because judicial review principles are just too narrow, in order to deal with the potentially powerful and wide remit of the CMA. On the point about undertakings and breaches of undertakings, it seems that, on the current reading of the Bill, this will have a retrospective effect on undertakings prior to this legislation coming into force. I support the legislation, but does he agree that this needs very careful reading to make sure that we do not have either unintended consequences, or too big a reach for what will be a very important process?

[Bim Afolami]

I thank my right hon. and learned Friend for those points, which he made incredibly well. Retrospective decision making is worrying—reaching back to decisions that have already been made, notwithstanding whatever the future holds. That, again, goes to my central point about the impact of the Bill and the impression of this country as somewhere to invest and to do business in areas where the CMA will have considerable power.

To go back to the Lloyd George maxim and the one point that I want to make in this speech on accountability, a key part of the work of the Regulatory Reform Group, to which the Chair of the Select Committee referred, is to point out that this Parliament—both Houses—needs to have an enhanced view in looking at our regulators. We need to consider, on a day-by-day basis, how the regulator is performing. Is it applying the strategic policy statement that the Government have given it? Is it doing things in the right way? How is it dealing with stakeholders? We should not just have what happens currently: a Select Committee gets involved and calls the big boss—the chief executive officer, or the chair—when there is a big mistake, a mess-up, and it is in the newspapers. That is not sufficient. We need to enhance that. Both Houses should be involved. We have made some detailed proposals as to how to do that in our first report and we will continue to do that.

This point of accountability may seem academic, it may seem legal, and it may even seem political at times, but it is fundamentally about the economy and the competitiveness of this country. If we can have greater accountability, our excellent regulators’ authority will be enhanced because they will know, business will know, people will know and consumers will know that we have a better functioning system. In that context, with those changes, I strongly support the Bill.

In-patient Abuse: Autistic People and People with Learning Disabilities

Robert Buckland Excerpts

Tuesday 18th April 2023 Commons Chamber

[Barbara Keeley (Worsley and Eccles South) (Lab)]

The abuse of autistic people and people with learning disabilities is not raised frequently enough in this House. I am glad to have secured this debate today to outline some of the issues and to stress the urgency of the situation. The Government’s record on the scandals I am about to describe has been appalling. I would like to begin with the experiences of two young autistic women who were detained in in-patient units commissioned by the NHS.

[Sir Robert Buckland (South Swindon) (Con)]

I am very grateful to the hon. Lady for giving way. Before she goes into those two harrowing cases, the Government set themselves a target to reduce the number of people in mental health detention—let us call it that—by half by March next year. At current progress, they will not hit that target until 2028. What would be her words to the Government to ensure that they get on with it and start releasing people back into the community?

[Barbara Keeley]

I thank the right hon. and learned Gentleman for his intervention. That is very much the sentiment I will be expressing in this debate tonight, but I would go further and say we cannot just accept continual targets. I will remind Members that the original target was to reduce to zero the number of people in inappropriate in-patient units, and I shall say that that is the target we should get back to.

As I said, I would like to begin with the experiences of two young autistic women who were detained in in-patient units commissioned by the NHS. Their stories were told recently in a powerful Channel 4 “Dispatches” programme, on which they and their families spoke with immense bravery about the abuses they faced. I encourage all Members to watch it.

Amy is a 22-year-old autistic woman who was, until recently, detained at the Breightmet Centre for Autism in Bolton, run by ASC Healthcare. The unit is supposed to provide care tailored to the needs of autistic people that would not be available on a general psychiatric ward. While she was detained at the Breightmet Centre, Amy said that her eating disorder actually worsened and that “it’s all about punishment”, not treatment. Amy reported that not a day went by when staff members did not use restraint and that the threat of violence was used to make patients conform. She said:

“They’ve chucked me about…they will nip you, they have pulled my hair out, they will push your wrists down. When I tell them it hurts they do it more”.

After staff at Breightmet were told that Amy had spoken out in the Channel 4 documentary, they took her phone away from her. When she got it back, she sent photos of dark bruises covering her arms.

Amy was moved to a different hospital and the Care Quality Commission has taken further enforcement action against the Breightmet Centre, stating that

“if there is not rapid, widespread improvement”

it

“will start the process of preventing the provider from operating the service.”

The CQC reports there are still 12 patients at the Breightmet Centre, and I am deeply concerned that they may be having similar experiences to the abuse suffered by Amy. It should not have taken a TV programme for the CQC to take action, because the Breightmet Centre has been placed in and out of special measures since 2019. Amy had to return there even after the CQC rated it as inadequate in 2022—it was rated not safe, effective, caring or well-led.

Danielle is another young autistic woman who told her story to the Channel 4 “Dispatches” programme. Like many autistic people admitted to in-patient units, Danielle has spent not weeks or months but years detained. In one unit she was 320 miles away from her family. Her mother Andrea reported that Danielle had lost half her life—13 years—spent in hospital in-patient units. While she was held at the Littlebrook Hospital in Dartford, Danielle was placed in solitary confinement for 551 days—more than 18 months. She was locked in a room with just a mattress on the floor and drugged heavily. According to the UN’s special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, confinement lasting for more than 15 days and lacking meaningful engagement constitutes torture. Danielle endured that for 551 days, a punishment not even inflicted on violent criminals. Yet Kent and Medway NHS and Social Care Partnership Trust paid to impose that treatment on a young woman whose only offence was to be autistic in a society that does not understand or support that diagnosis.

Solitary confinement in those units is so commonplace that data on the practice is collected and published by NHS England and broken down by the kind of restraint used, from chemical injection to prone physical restraint and seclusion. From those datasets we can see that more autistic people and people with learning disabilities are held in solitary confinement now than three years ago. That is a failure of care, and people such as Danielle are paying the price.

Danielle’s story gets even worse. Her mother Andrea told the “Dispatches” programme that during her stay at Littlebrook Hospital, Danielle was taken by staff members to areas away from cameras. She was then molested and raped. That is no isolated incident. Further investigation by the “Dispatches” team found that 18 reports of sexual assault and 24 reports of rape at Littlebrook Hospital were made to the police between 2020 and 2023. No charges have been brought in any of those cases to date, including Danielle’s case. The programme later showed Danielle on a ward in a general hospital being surgically fed through a tube, because she is now refusing to eat. Danielle’s mother said:

“After 13 years of trauma and neglect, she can’t see an end to it, so she’s been starving herself. She just wants this to stop.”

As the Minister hears these stories and listens to the words of those parents speaking out, I wonder whether she really believes that the right support is being given to autistic people. I hope that she can pledge action to help Danielle. I understand that Danielle needs housing so that she can move back to the community with support. Will the Minister look at her case, to avoid Danielle being shifted from facility to facility? Her life seems to be at risk. I have discussed the case with the family’s MP, the hon. Member for Maidstone and The Weald (Mrs Grant).