Lord Faulks debates involving the Home Office during the 2019 Parliament

Wed 18th Oct 2023
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Public Order Bill
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Consideration of Commons amendments
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Report stage: Part 1
Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, the Government have stuck with the Rwanda scheme despite the Rule 39 decision in Strasbourg in June 2022 and despite the decision of the Supreme Court, which concluded that Rwanda was not safe.

The Strasbourg court’s interim ruling has been described as a ruling by a foreign court delivered by a judge in pyjamas. I do not think that is a helpful way of characterising it. All courts need to have the ability to make interim orders, sometimes at inconvenient times of day, and the court is not foreign to us as long as we remain members.

However, the decision was based on the Strasbourg court’s own rules rather than on what is in the European convention. It was made by a still-anonymous judge. No reasons were given and there was no chance for the Government to come back on a return date. This breaks just about every rule of natural justice and procedural fairness that normally applies in applications for interim relief.

As to the Supreme Court’s decision, it said that Parliament should not legislate to reverse the decision of what is the final court of appeal in this country. But Parliament has done precisely that in relation to three decisions, to my certain knowledge, in the last two years. I was chairman of the Independent Review of Administrative Law and the panel considered carefully whether it was appropriate for Parliament to reverse decisions of the Supreme Court. We concluded that Parliament should think long and hard before doing so, but that it was perfectly orthodox for it to take such a course. Indeed, the submissions we received from all senior judges did not suggest otherwise.

Viscount Hailsham Portrait Viscount Hailsham (Con)
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I thank the noble Lord for giving way. Is there not a difference here—a difference between disagreeing with a view and disagreeing with a finding of fact?

Lord Faulks Portrait Lord Faulks (Non-Afl)
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I am grateful to the noble Lord; I am coming on to that point. There were certain unusual aspects of the decision of the Supreme Court, which is normally concerned with points of law of general public importance rather than findings of fact. It might be better to describe the decision as rather more of a risk assessment based on the evidence before it rather than a finding of fact but, in any event, the Government have since responded to the court’s concerns, as your Lordships have heard.

I ask the question rhetorically: if the matter were before the Supreme Court today, would the judges come to a different conclusion? One should bear in mind that, even before the new steps taken by our Government and that of Rwanda, this case was finely balanced. The Court of Appeal was not unanimous on the matter and the Divisional Court found in favour of the Government. I also note Lord Sumption’s evidence to the Joint Committee on Human Rights acknowledging the Government’s response to the Supreme Court.

The Bill tackles some really big legal issues. In the view of the lawyers for the Government, it has gone as far as it can go without infringing international law. We know that there remain opportunities for litigation—lawyers have already announced their intention to take them—but the arguments on the law will have to wait until Committee.

At this stage, it is important to consider what the alternatives to the Rwanda scheme are, and so I turn to Labour’s position, and here I would like to mention Sir Keir Starmer. He has been criticised as being a “lefty lawyer”. I have had the privilege of being against him in court and, if he is a lefty lawyer, he is certainly a good one. I think it inappropriate to criticise him for the fact that some of his clients would not necessarily feature high on everybody’s desired guest list for a dinner party. What is his policy vis-à-vis the boats? There has been some talk of better relationships with France and better safe routes, but at the absolute centre of what is said to be the strategy is apparently Sir Keir himself. He reminds us regularly that he was DPP from 2008 to 2013. He was not in charge of Border Force or the National Crime Agency; he was supervising prosecutions at a very macro level—which is why I am reluctant to blame him for shortcomings in relation to the prosecution of, say, Jimmy Savile, or even the poor victims of the Horizon scandal. But he cannot have it both ways. Is it really suggested that, on the very arrival of Sir Keir, a former DPP, at No. 10, the smugglers will simply roll up their rubber dinghies and give up their promising and profitable business model? Is Labour’s alternative deterrent none other than Sir Keir himself? I am afraid I am unconvinced by that.

It comes to this: Rwanda is, at the moment, the only game in town. We all agree that we must stop the boats. The Government have made progress but need to go further. This Bill will enable the scheme to take effect—courts here and in Strasbourg permitting—and I admit it may deter those who sustain the people smugglers’ business. Other European countries face the same challenges and are actively considering similar schemes. Of course your Lordships’ House will scrutinise this Bill carefully, but we should retain some constitutional modesty. The elected House has passed the Bill. Many people in this country consider that their Government should be able to control our borders against illegal migration, and we should not ignore them. In the absence of any cogent alternative, while we should strive to improve the Bill, we should not wreck it.

Economic Crime and Corporate Transparency Bill

Lord Faulks Excerpts
Lord Garnier Portrait Lord Garnier (Con)
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If one wants to learn anything from the speeches made in the House of Commons, I suggest that my noble friends on the Front Bench— and other noble Lords if they have a moment—read those of Sir Robert Buckland and Sir Jeremy Wright, two former law officers. They agree with my remarks of 11 September and find it puzzling that their own Government, a Government who are in favour of producing cogent and cohesive criminal law, have come up with this dog’s dinner.

I have done my best to be accommodating. It is not an accusation that is often levelled at me, but on this occasion, I think that it can be, justly. I have done my best to meet some of the Government’s less organised thinking. As I said at the outset, as a matter of principle. I cannot understand why there should be an exemption for anyone from the proposed criminal law, just as there is not under the Bribery Act and the Criminal Finances Act. However, to make life easier for the Government, on the last occasion I suggested that microbusinesses should be exempted from the failure to prevent fraud offences provision. I abandoned my provisions relating to the failure to prevent money laundering. The Government did not find that attractive, even though I tried to explain my abandoning of the principle on the basis that just as we have an age limit for criminal responsibility—10—we could perhaps also, by a rather clumsy analogy, exempt microbusinesses from criminal responsibility under the failure to prevent provision. That did not seem to go down very well with the Government—certainly not with Mr Kit Malthouse.

I have now moved a little further towards the Government. You may say, “Well, that’s a bit wet. If you’ve got any principles, why not stick to them?” Well, okay, accuse me of being wet, but I am doing my best to help the Government get out of an unnecessarily sticky hole. I have amended my proposal so that rather than microbusinesses being exempted, “small” businesses should be exempted—I define a small business on page 5 of the amendment paper, which states that, for the purposes of this provision,

“a relevant body is a ‘small organisation’ only if the body satisfied two or more of the following conditions in the financial year of the body … that precedes the year of the fraud offence”.

Those conditions are that the turnover of the business should be

“Not more than £10.2 million”,

the balance sheet should be

“Not more than £5.1 million”

and the number of employees should be “Not more than 50”.

In speaking against my own case, I rather wish that I had not put that down, but I have because I am trying to assist my noble friend on the Front Bench in getting his Bill enacted before the end of this Session.

I repeat that the criminal law should be uniform. Defences to the criminal law should be uniform. We should not have exemptions based on the size of the business. The Theft Act applies to all suspects—I am seeing whether my noble friend still enjoys my old joke about the six feet six burglar—regardless of whether they are six feet six or five feet six. We do not exempt people on the basis that they are small people or do not fit a particular height, so why are we doing it here? I have yet to find out. I am afraid that unless the Government move a little closer to me, I will invite your Lordships to join me in the Division Lobby.

Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, I shall speak to my Motion B1, as an amendment to Motion B, which is being debated within this group. It would

“leave out from ‘House’ to end and insert ‘do insist on its disagreement with the Commons in their Amendment 161A, do not insist on its Amendment 161B, to which the Commons have disagreed for their Reason 161C, and do propose Amendment 161D in lieu’”.

That is very clear.

We return to what has been described as a cost-capping amendment. Since this is not the first time that we have had the debate, I will try to be brief. This Bill has been a welcome, if late, addition to the government agencies in their fight to combat fraud. The scrutiny of the Bill through your Lordships’ House has been thorough and constructive. It has also been non-party political. I do not think that either the noble and learned Lord, Lord Garnier, or I would consider ourselves to be natural rebels.

All noble Lords have participated in this debate—and I very much include the Ministers in this—with a common purpose: to make this legislation as effective as it can be. Two themes emerged during the many debates. The first was the scale of the problem. The Government estimate, for example, that £100 billion was laundered through the United Kingdom last year, and yet under the Proceeds of Crime Act assets of only £345 million were recovered: that is 0.3%. The second theme was the frequent imbalance that exists between the resources available to enforcement agencies and those of the fraudsters, who may well employ expensive lawyers and have significant resources to enable them to do so. This modest amendment tries to do a little to restore that balance. I would have liked the enforcement agencies to have had complete protection against costs orders in the event that they lost a recovery claim, but in the course of ping-pong I have had to compromise somewhat, hence the form of the current amendment before your Lordships’ House.

The amendment does not prevent a judge from doing what is fair on costs in any particular case, but it is a nudge towards him or her to take into account the reasonableness of the agency bringing proceedings at all and the potential impact on its ability to carry out its functions if left with a substantial costs order. I struggle to understand the Government’s objection to this amendment and its predecessors; they seem, with respect, to be adopting a somewhat tender approach to fraudsters.

There is a clear precedent for this sort of amendment: when your Lordships’ House introduced a provision concerning the much-underused unexplained wealth orders. If it loses a case, the enforcement authority will have to pay costs only if it has acted unreasonably. As to the objection that it offends the “loser pays” principle, that is a misconceived argument. Judges regularly, in ordinary cases, make orders that each side bear their own costs, or make issue-based costs orders, or other orders which reflect the justice of the individual case. Parliament has legislated in ways that depart from this so-called principle: for example, QOCS—that is Qualified One-Way Costs Shifting—in personal injury litigation; or by Section 40 of the Crime and Courts Act; or in relation to unexplained wealth orders. This amendment is intended to reduce the possibility of an agency saying to itself, “We cannot afford the risk to the budget if we lose a case, even when we’ve got good evidence to bring it”.

Spotlight on Corruption suggests that a number of cases are in the pipeline which bear costs risks. These are said to include over 60 cases being reviewed by one agency, and close to £1 billion in assets frozen by an enforcement body.

Another advantage to this amendment is that those defendants or respondents to an application who defend these cases will know that, even if their legal strategy prevails, they may not recover their costs. This may mean that they are keener to reach a compromise.

The amendment has the support of all those bodies that are concerned with anti-corruption. Incidentally, it also has the support of Bill Browder, who regards it as one of the most significant potential improvements to the Bill. Let us please not kick this into touch and have yet another report, which is the Government’s suggestion. If necessary, I will move Motion B1 and test the opinion of the House.

Lord Agnew of Oulton Portrait Lord Agnew of Oulton (Con)
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My Lords, I support both Motion A1 and Motion B1. I turn first to my noble and learned friend Lord Garnier’s Motion and offer three reasons why I believe the Minister is completely wrong.

First, the smallest SMEs include some of the most unscrupulous enablers. Take estate agents, for example: they are a conduit of bad money into this country from all over the world. The gaps that the Minister is proposing to leave in the Bill will ensure that this continues. I have seen one case, for which I had to sign an NDA, of an individual who spent £150 million buying property but is apparently allowed to take only $12,000 a year out of the country. How did he manage that? That is a perfectly good example and no doubt we will hear more like it.

Secondly, on this set of rules, I offer the Minister an example. We do not say to the manufacturers of small cars that they do not need seat belts and that for some reason they are exempted. That would be an absolute nonsense and the same applies here. He mentioned costs—£300 million and £40 million—but they are entirely specious. We have seen no proper analysis of these figures; they are just waved around as a convenient excuse not to do something.

My last reason is that these smaller businesses need to be most alert to fraud. A failure to prevent helps them to make sure that their own systems are able to face these risks. We know that 40% of crime in this country is economic crime, but we deploy less than 1% of our resources on dealing with it. Surely smaller businesses should be equipped to know when they are dealing with crooks. I will have to support my noble and learned friend Lord Garnier if the matter is put to a vote.

In relation to the Motion in the name of the noble Lord, Lord Faulks, we again pursued this relentlessly for six months. Bill Browder said to me on several occasions that, if this Bill is to go through, we must make sure that we have some cost capping in it. It is a war of very unequal proportions. We know that the agencies have small budgets and that they have to go cap in hand to the Treasury if they need more money, which is never given. They even have to return the costs they recover to the Treasury. All this is doing is sending a message to these bad actors that, if they take on this kind of behaviour, they will have significant risks. We have amended this on several occasions to give more discretion to the courts to ensure that, if an agency overreacts and behaves rapaciously or capriciously against individuals, those individuals are not penalised.

If we are serious about dealing with the tidal wave of economic crime that is coming to this country, the Minister will give us the assurance that this is being dealt with. If not, I will have to support the noble Lord, Lord Faulks, in his Division.

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Moved by
Lord Faulks Portrait Lord Faulks
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Leave out from “House” to end and insert “do insist on its disagreement with the Commons in their Amendment 161A, do not insist on its Amendment 161B, to which the Commons have disagreed for their Reason 161C, and do propose Amendment 161D in lieu—

161D: After Clause 187, insert the following new Clause—
“Civil recovery of proceeds of crime: costs of proceedings
Civil recovery: costs of proceedings
After section 316 of the Proceeds of Crime Act 2002 insert—
“316A Costs orders
(1) This section applies to proceedings brought by an enforcement authority under Part 5 of the Proceeds of Crime Act 2002 where the property in respect of which the proceedings have been brought has been obtained through economic crime.
(2) When assessing what order to make in relation to the costs of proceedings, the court should take into account—
(a) the merits of the case,
(b) whether the enforcement authority acted reasonably in bringing proceedings,
(c) whether costs were reasonably incurred by any party to the proceedings, and
(d) the impact of any order on—
(i) the enforcement authority, and its ability to carry out its enforcement functions, and
(ii) any other party to the proceedings.”””
Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, I will not amplify what has already been said. I am grateful to all noble Lords, including the Minister, for engaging in this debate. He said that it was not a bad amendment, which was kind of him; I would say that it is an amendment that this House, for the reasons that I have already given, should welcome. It is an improvement to the Bill and I beg to test the opinion of the House.

National Crime Agency: Fraud and Economic Crime

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Monday 11th September 2023

(8 months, 3 weeks ago)

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Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, the Minister will know well that one of the themes that emerged during our debates on the Economic Crime and Corporate Transparency Bill was the inequality of bargaining power that often existed between the agencies that have to pursue fraudsters and those fraudsters, who were often heavily lawyered-up to enable them to resist any applications. One of the initiatives brought forward by this Government under the Criminal Finances Act was unexplained wealth orders. Can the Minister explain why they have been used on so few occasions? Is it because of lack of resources? Is it because of the risk on costs? What other explanation is there for such a powerful potential weapon not being utilised?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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The noble Lord will be aware, from other conversations that we have been having around the various aspects of the Bill that will go through the House this afternoon, that the agencies tell us they are appropriately resourced. I cannot account for the small number of UWOs that have been issued, but I will continue to keep it under review and report to the noble Lord.

Illegal Migration Update

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Wednesday 6th September 2023

(8 months, 3 weeks ago)

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Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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Clearly, safeguarding is a significant consideration. The Kent Intake Unit, where unaccompanied asylum-seeking children are initially triaged, is certainly somewhere where safeguarding concerns are taken very seriously. The staff there pay very close attention to ensuring the best possible care for the children who pass through the centre. Careful consideration is given in the cases of very young children that they are not sent to hotel accommodation but, rather, to local authority accommodation if it is at all possible.

I should add that, of course, the vast bulk of unaccompanied asylum-seeking children are nearer the age of 18—that is, 16, 17 or 18 years old.

Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, the Statement and, indeed, the Minister emphasised how lawyers have been, and are, capable of frustrating this process in ways that would often constitute serious criminal offences. Of course, those are matters for prosecuting authorities or the Solicitors Regulation Authority if the stories that the Daily Mail has helpfully published are true, and there is no reason to think that they are not true.

The Statement talks about the Professional Enablers Taskforce. Can the Minister set my mind at rest about whether this will help very much? Is there not a danger that having a bureaucratic organisation such as the Professional Enablers Taskforce may get in the way of the fairly straightforward process of prosecuting by the authorities or, indeed, pursuing professional matters under the regulation authority?

Lord Murray of Blidworth Portrait Lord Murray of Blidworth (Con)
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I thank the noble Lord for that question. The Professional Enablers Taskforce will perform the important function of ensuring that information is shared between the Home Office—of course, it has access to the documents relating to the various cases and could arguably provide witnesses in relation to them—the regulatory bodies of the various lawyers concerned, the police and the prosecuting authorities. The exchange of information in such circumstances is a great enabler to the successful prosecution and conviction of these people who would abuse our asylum system and our system of humanitarian protection for personal or professional financial gain.

Moved by
94: After Clause 183, insert the following new Clause—
“Strategic lawsuits against public participation
(1) It is an offence for a person or entity without reasonable excuse to threaten civil litigation against another person or entity with intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime.(2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales, to a fine;(b) on summary conviction in Scotland or Northern Ireland, to a fine not exceeding the statutory maximum;(c) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).”Member’s explanatory statement
This amendment introduces a new criminal offence to deal with groundless threats in pursuance of SLAPPS in order to suppress investigations into economic crimes.
Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, we now come a group of amendments about strategic lawsuits against public participation, or SLAPPs. These were much debated at Second Reading and in Grand Committee. As noble Lords will be aware, SLAPPs is the rather ungainly acronym to describe the abusive threats of litigation and actual litigation by deep-pocketed individuals with the intention of preventing journalists or others from revealing the truth, very often about economic crime or, at the very least, economic activity which the claimant would much rather was not revealed at all, or certainly not to the general public. This is a worldwide problem which has received a variable response.

In a sense, there is nothing new about SLAPPs. Powerful men have often used litigation to try to silence their critics, but there have recently been some egregious examples. The difficulty always exists in separating out genuine complaints by powerful men or organisations and those which have been commenced for a collateral purpose. When SLAPPs were debated at Second Reading, it was thought that amendments to prevent or limit such lawsuits would be outside the scope of the Bill. I am glad to say that that has now proved not to be the case, although it is clear that the relevant amendments, either mine or the Government’s, are focused on economic crime as opposed to wider areas of criminal activity which might provoke a strategic lawsuit. The Government’s position at Second Reading appeared to be that they were sympathetic to the notion of legislation in this area. However, they thought that the whole issue needed separate and mature consideration and should not be part of any amendment to this Bill.

I am delighted that the Government have changed their mind and brought forward amendments in this group which we will debate. I understand that the new Lord Chancellor has had much to do with this, and I thank him and the Minister for tabling the amendments.

A number of noble Lords have spoken about SLAPPs, including the noble Lords, Lord Agnew and Lord Cromwell, who gave a graphic description of the mischief at which any change in the law should be directed. My difficulty with any potential amendment was always that the courts have powers already to strike out abusive proceedings, but they tend to be extremely cautious about doing so, on the basis that striking out is a somewhat draconian remedy. Courts tend to be persuaded that it is better to see how the evidence emerges before putting a case out of its misery, but that can be too late. Huge expenditure will have been incurred, often by relatively impecunious defendants. Sometimes they have no realistic alternative but to capitulate—delay is plainly the friend of those who use SLAPPs. The best chance, in my experience, of striking out a claim is when there is a clear point of law, but even then there can be appeals and further expense, which work in favour of an abusive claimant.

The government amendments are clearly aimed in the right direction, but I can already foresee a few difficulties. There will be significant arguments as to what does or does not constitute a SLAPP, for example. That issue of itself has a lot of litigation potential. I am also concerned about the process of making the relevant Civil Procedure Rules. This can be a lengthy process, and is always a carefully considered process. I have studied the recent minutes of the Civil Procedure Rule Committee, so as to inform myself as to how the committee approaches rule changes. I would be grateful if the Minister could explain to the House how this amendment will make its way into the rules and the likely timescale.

Those reservations apart, my view is that we should go further. As pointed out at Second Reading by the noble Lord, Lord Thomas of Gresford, who has put his name to this amendment, there is no obvious reason why there should not be a criminal offence in this area.

I invite the House to consider a client consulting his expensive lawyers. He wants to take every step he can through litigation to suppress and exhaust the funds of those who would expose him. He utters those words which lawyers tend to love: “I don’t mind how much it costs”. The advice that he will or should receive after the government amendments become law is that there is a risk that the courts might decide to stop the litigation if it is regarded as abusive. “But”, the litigant says, correctly, “It will surely still be a lengthy and expensive process before a court even gets to consider that option”. However, if the Government were to accept my amendment, then the advice he should receive is that he risks criminal prosecution if he, without reasonable excuse, threatens litigation with the intent to suppress the publication of any information likely to be relevant to the investigation of an economic crime. This potential offence gives room for a defence, of course, but its very existence should act as a considerable deterrent against the sort of behaviour we want to stop. If this amendment becomes law then the hypothetical client might think much more carefully before threatening or embarking upon abusive litigation.

This amendment is particularly relevant to journalists, who have a huge role in tackling economic crime. I declare my interest as chair of the Independent Press Standards Organisation. It is also of importance to anyone who wants to reveal economic crime. It is entirely consistent with the aims of the Bill. Let us bear in mind that the opportunity to legislate in this space is unlikely to present itself again, or at least not for some time. I beg to move.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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My Lords, I remind your Lordships that, at Second Reading of this Bill, on 8 February, I referred to a legal action brought by Yevgeny Prigozhin, founder of the Wagner Group, who has been somewhat in the news over the last weekend, against the journalist Eliot Higgins, who had investigated his activities. When his case was justly struck out last May, Prigozhin said that he brought court cases against journalists because

“in any issue there should be room for sport”.

The cost to Mr Higgins was in the region of £70,000, although he won his case. That is the sort of abuse of the English legal system that the current crop of so-called reputational lawyers have brought on behalf of Russian oligarchs and many other large co-operations that resent too close a look into their operations.

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I think and hope that I have answered the various points that have rightly been raised. I therefore urge my noble friend Lady Stowell not to press her amendments and I will move the government amendments in due course.
Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, the Minister quite rightly emphasised that these amendments are concerned with two fundamental points: free speech and the public interest that exists to expose wrongdoing. He also said that the power, to be further elaborated by the rules, already exists. He is absolutely right to do so. In a way, the government amendments, which I welcome, tell the courts to do what they already can do. The question is whether they go far enough.

I have already indicated that I see a great deal of litigation potential in the definition of what SLAPPs may or may not be, notwithstanding the drafting. The Minister said that, with the comfort of these new rules, editors will be able to say to their journalists, “Well, we can go ahead. Sit back and do your worst”. I wonder how realistic that is, given that a journalist seeking after truth and attempting to expose wrongdoing will nevertheless expose him, her or their journal to a considerable hurdle before there is any chance of a striking out taking place. We hope the rules will come into effect in due course to encourage courts to take that view, but my experience, sadly, is that courts are reluctant to strike out claims on the basis that it is very difficult, without evidence, to come to a conclusion that something is an abusive process.

However, I accept that, for the moment, the view is taken that this amendment to create a criminal offence goes too far. I am afraid I do not accept the characterisation that it would “criminalise access to justice”; that was a most unfortunate phrase. In fact, it would create an offence that would help prevent the suppression of the publication of any information likely to be relevant to the investigation of economic crime. That is not criminalising access to justice; that was a most unfortunate characterisation.

However, I accept that the Government are with the spirit of the debate entered into in various stages on the Bill, and that they want to encourage the courts to intervene where necessary. I accept that, although it has expressed real concern, the House does not, for the moment, want to go as far as my amendment suggests. With some reluctance, but accepting the will of the Front Benches and of the Minister, I beg leave to withdraw my amendment.

Amendment 94 withdrawn.
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Lord Agnew of Oulton Portrait Lord Agnew of Oulton (Con)
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My Lords, I shall be very brief. First, I thank my noble and learned friend the Minister for his active engagement on this; he knows how strongly I feel about it.

We have a complete mishmash on the principles of cost capping at the moment. For example, cases taken in the magistrates’ courts have cost capping, as do cases taken by the SRA. However, we do not have cost capping for the most important of all: those large cases where the enforcement agencies are trying to take on big-time oligarchs.

The only other thing I would say is that we have heard about Bill Browder tonight. I have spoken to him a lot over the past few months. He said, “The one clause you must get through in this Bill is the one on cost capping”. I beseech the Government to listen to us on this and bring forward a clause on cost capping.

Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, I rise briefly to support the noble Lord. Two key themes emerged from our lengthy debates on the Bill. The first was that the scale of economic crime is a major threat to the prosperity of the country. The second was that there is a significant inequality of arms between the enforcement authorities and the perpetrators of economic crimes. I could weary the House at length but I will not do so. This is an attempt to redress that inequality and not provide a disincentive for the authorities to pursue the perpetrators of economic crime.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, if the noble Lord chooses to move to a vote, we will support him. This amendment would build on last year’s Bill, which introduced similar changes to unexplained wealth orders. It is a welcome development, and I hope that the noble Lord presses his amendment to a vote.

I go back to what the noble Lord, Lord Fox, and other noble Lords have said all the way through the passage of this Bill. We basically support the Bill and want it to work, although there are improvements that need to happen. However, if the Bill has no teeth and no enforcement, and there is no way in which it will change the culture and deal with some of its seriously dysfunctional parts, it will not achieve what it wants. That is not what we want. Everyone in this Committee wants it to succeed, so I hope that the Minister will respond positively to my amendment and those in the names of the noble Lord, Lord Fox, and the noble Baroness, Lady Bennett.
Lord Faulks Portrait Lord Faulks (Non-Afl)
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I want briefly to add to that. I am sure that the Serious Fraud Office is full of capable and conscientious men and women who go about their jobs with enthusiasm. However, they are often pitted against rather formidable adversaries in terms of lawyers and the resources that are available to those lawyers to defend people who are the potential targets of the Serious Fraud Office.

It may be that one of the problems with the Serious Fraud Office is the career structure. The American equivalent often engages lawyers with very considerable abilities who are at a relatively stage in their practice. They may not be paid particularly well when they do it, but it is a feather in their cap. In other words, the Serious Fraud Office’s equivalent in America often has extremely high-quality lawyers. I wonder whether thought has been given to restructuring our whole approach to those who prosecute these matters so that we can somehow incentivise the very best people to get engaged in this business to render the playing field a lot more level than it currently is.

Lord Agnew of Oulton Portrait Lord Agnew of Oulton (Con)
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My Lords, I rise to support the amendments tabled by the noble Lord, Lord Coaker, in particular Amendment 106B. He is becoming quite an expert on an area that has troubled me for 18 months or so.

The figure of £37 billion used in Amendment 95 is only a small part of the story. The National Audit Office talks about a separate £30 billion bottom-end estimate of losses to fraud in the public sector, so this is a huge issue; that is why I have tried to put as much effort into it as I can. The noble Lord, Lord Coaker, made the point that it is a hotchpotch landscape. There are 22 economic crime-fighting agencies scattered across the whole landscape. They do not join up or talk to each other. They have different remits and different legislation to use to effect any kind of outcome.

A report of the kind that the noble Lord suggests would bring real clarity to this. It would explain to people what is going on. It would not cost very much; indeed, as usual, it would save money because there is, I am sure, a great deal of duplication going on in the system. I urge my noble friend the Minister not to respond today, because it is so hard to respond on the hoof to these sorts of things, but to take this away and write to us to explain what is against the logic of a single reporting point once a year for all the agencies involved in economic crime.

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Baroness Wheatcroft Portrait Baroness Wheatcroft (CB)
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My Lords, I shall speak to Amendment 103. Thanks to the comprehensive introduction from the noble Lord, Lord Oates, I can be relatively brief.

The International Criminal Court in the Hague was established in 2003. Later this month, it will take evidence from representatives of some of the victims of war crimes in Darfur. That is typical of the essential work that the International Criminal Court can do. It is no wonder that there are now calls for Putin to be indicted to this court. Few today would question the need for such an organisation, and now it seems clear that there is a need for an international anti-corruption court.

The noble Lord, Lord Oates, made the case very positively. Kleptocrats are financial war criminals, inflicting huge damage on their countries but, like the dictators who commit genocide and other war crimes, they have impunity to act as they wish in their home countries. They control the police, the prosecutors and the courts. The damage that their greed inflicts on their countries is huge, but those countries are rarely able to bring them to justice. That is why this new court is so essential.

The Panama papers and Pandora papers provided appalling glimpses into the scale of the corruption in which senior officials in many jurisdictions have been involved. The proceeds are scattered around the world. The international anti-corruption court would provide a mechanism for prosecuting those individuals and retrieving those funds.

The United Nations has demonstrated its ineffectiveness in this area. The General Assembly adopted the UN Convention against Corruption in 2003. Getting on for 200 countries have signed it but, sadly, those signatories include most of the worst offenders on Transparency International’s corruption index. Too many countries treat the convention with contempt because their leaders and senior officials preside over corruption-rife regimes. That is why we need this court, and why I put my name to this amendment. It could be set up relatively quickly and could be hugely effective. Its very existence would deter corruption. If the Government want to fight corruption, why would they not support this project?

Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, of course, I echo the concern that has been expressed in the speeches so far about international corruption on an enormous scale.

In our debates, we have very much focused on what happens here in the United Kingdom. In our attack on the Government, it is worth bearing in mind that, in 2016, this Government hosted an international corruption summit; it was hosted by the then Prime Minister David Cameron, so many Prime Ministers ago. It was partly as a result of that that we had the then Criminal Finances Bill and there was an impetus—a very slow one, sadly—to set up a register of overseas entities. It was felt that, at least in this country, we should do all we could not to allow our properties and companies to be infected by corruption. Indeed, this Bill seeks to improve what has already been achieved although, in many ways, it has not gone far enough.

I respectfully submit that what is contained in this amendment is pretty aspirational stuff. There is nothing wrong with being aspirational. The International Criminal Court—I have been to conferences there—has had some success, but it must be remembered that Russia is not a party to the ICC and nor is the United States. It is one thing to say that it is relatively easy to set up a court, but you must have the proper means to enforce it and you have to invest huge sums of money in infrastructure. There has to be a degree of realism about this. Surely we should sort out matters at home as best we can first of all; that in itself will contribute to reducing international corruption. Putting on the statute book an obligation to set up an international court of this sort, which is what this amendment suggests, is premature at this stage, although one can do nothing but applaud the sentiments that lie behind it.

Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, this has been a very interesting debate; it is the first debate in which we have spoken on a more international level. As we heard in our earlier debates, a large proportion of the quantity of money involved in fraud—well over 90%; probably 99%—has an international element; that is at the core of so much of the fraud with which we are dealing.

I congratulate the noble Lord, Lord Oates, on the way in which he introduced this group. I found his introduction rich and compelling. He set out things very fully. The other noble Lords who have spoken have talked about the aspirational nature of this amendment. I do not think that that is a criticism. It is good to hear about the other countries that are already taking a lead in trying to get the IACC set up.

From the Labour Party’s point of view, I have looked at what David Lammy has said on this matter. He has spoken about working internationally—I know that my noble friend Lord Hain led the work on that when he was a Foreign Office Minister—and promised that an incoming Labour Government would fight against dirty money in the UK by creating a transatlantic anti-corruption council alongside the US, EU and other allies. That is a different model from the one proposed in these amendments.

I do not want to stand here as an opposition spokesman saying that we are against what the noble Lord, Lord Oates, and the noble Baroness, Lady Bennett, are proposing but there are other potential models for bearing down on corruption. I listened with some interest to what the noble Lord, Lord Faulks, said about the practicalities of doing this and using legislation such as this to do everything we can on a domestic level, and internationally where we already have direct interest, to bear down on this huge level of corruption. Nevertheless, I thank the noble Lord for introducing this amendment.

I am under no illusions that these discussions will continue—I say to the noble Baroness, Lady Bennett, that even Ministers get that. However, given those reasons, I respectfully ask the noble Lord to withdraw his amendment.
Lord Faulks Portrait Lord Faulks (Non-Afl)
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Before the noble Lord sits down, during the passage of the first economic crime Bill, when the question of sanctions was discussed, much reference was made to the very lengthy Explanatory Notes which accompanied that Bill—the longest I have ever seen—particularly as regards the human rights implications of depriving people of their assets in the sort of way that the noble Lord, Lord Alton, envisages in his amendment, in particular A1P1 of the European convention and various other rights. Is it part of the Government’s position that the sort of suggestions made in this amendment are in fact stymied or may be frustrated by the provisions of the European convention and the Human Rights Act?

Lord Sharpe of Epsom Portrait Lord Sharpe of Epsom (Con)
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The noble Lord has strayed into an area with which I am not familiar. I shall have to write to him.

I would strongly endorse the approach of the noble and learned Lord, Lord Hope. What we are dealing with here is not a risk; it is something that is actually happening. We do not want a test of “reasonable” or “tolerable”, where it is all in the eye of the beholder. We need a test where you can see it and you know whether it exists or not, and I would suggest that, for those reasons, “more than minor” really hits the nail on the head.
Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, I respectfully agree with what the noble Lord has just said. The House may remember that the whole question of the definition of “serious disruption” emanated in part from a recommendation of your Lordships’ Constitution Committee. I supported an amendment put down by the noble and learned Lord, Lord Hope. I think the Opposition then accepted that it would be useful to define “serious disruption”. So, there was a measure of agreement, and what we were concerned with was where the threshold lay.

It is clear that the amendment the Government are seeking to put into the Bill is lawful. There had been some doubt, but various decisions, including the decision on Ziegler and the subsequent decision in the Northern Ireland case, show that this is well within the legality required by the European Court of Human Rights. The question is: how do you balance the undoubted right to demonstrate—I do not think there is any doubt that everybody in this House accepts the fundamental importance of that right—against the rights of others to go about their business, to go to hospital, to go to school and to do all the other important things? They must put up with inconvenience, but whether their lives should be seriously disrupted is a different question.

What worries me about the amendment put forward by the noble Lord, Lord Coaker, is that, for example, it would require there to be a “prolonged disruption” before we get to the stage that an offence has been committed or, more realistically, that the police can do anything about it. Imprecision in adjectives is of course inevitable, but “prolonged” worries me. We have to achieve a difficult balance in this legislation, and it seems to me that that put forward by the noble and learned Lord, Lord Hope, is the right one.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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My Lords, one thing that is significant is when the noble Baroness, Lady Chakrabarti, congratulates the Government. I think that is a significant and not minor moment. But she was right to do so; the importance of journalistic freedom cannot be overestimated, and I would like to thank the noble Lords who put that amendment forward on this Bill and turned something which has been discomfiting into something positive at the end of it all. So that is very positive.

I also want to note that, when I was considering how I was going to intervene today, I actually said to colleagues that it was terrible that the noble Lord, Lord Paddick, would not be with us, because I would have been relying on him to give us a steer. Then I walked in and he was in his place, and I would like to pay tribute to his courage for being here and the reassurance it gives many of us. That really takes some courage.

On the substantive point, I think that the noble Lord, Lord Coaker, did us a great service when he spent his weekend not demonstrating but looking at everybody else’s demonstrations on an average weekend, as it were, and laying them out for us. They were not particularly big, glamorous or headline-grabbing demonstrations, but all of them undoubtedly caused disruption to the people in the local area, in the way that he explained, and blocked roads quite substantially.

That is important because, throughout the discussions on this Bill, it has always felt as though we have had in our sights the likes of Extinction Rebellion and Just Stop Oil. The noble and learned Lord, Lord Hope, explained well that their aim is to disrupt, not even to protest. That is their tactic and their raison d’être. It has caused a lot of problems for me as somebody who supports the right to protest very strongly, and it has certainly aggravated the British public in all sorts of ways.

The reason the intervention from the noble Lord, Lord Coaker, was so useful was that it remembered the laws of unintended consequences. I say to the Government that those groups are not the only people who are going to be caught up by this law, which is why I would like us to make the threshold higher. The Government will not always be the Government—if we are talking about things being “prolonged”, it might not be that long. There will be all sorts of different people out on streets protesting. Sometimes it might even involve members of the Government at the moment and their supporters.

All the protests the noble Lord described covered all types of members of the British public who felt the need to take to the streets one way or another. They are voters of all parties and voters of none. They might well be disruptive, but they are certainly not using disruption as a tactic. My concern, straightforwardly, is that they are not criminalised by this law in an unintended way because we had one group of protesters in mind and forgot the wide variety of protesters who support all parties across the board. I anticipate there will be more protesters in turbulent times ahead.

My final point on Motion A1 is, as the noble and learned Lord, Lord Hope of Craighead, said, when you are making laws, you cannot use algorithms or numbers, so you are using words. We are having an argument about words. It is tricky and I cannot pretend that, when I hear the noble and learned Lords speak, I always understand the way language is understood by courts. However, I was thinking about how language might be understood by the police. They are the people who will potentially, as has already been explained, look at a bunch of tractors or what have you and say, “That is capable of causing disruption which is more than minor”. This seems to be a much lower threshold than thinking it will cause “significant” disruption. I would like the word “significant” there so that the police pause and do not just say “It’s more than minor: let’s stop it”. They should pause and think that something has to be quite serious. Is that not the way the language will be understood? As a consequence—maybe I am wrong, and they are all legal scholars—my fear is that they will read those words and see it in a particular way. Therefore, there will be the unintended consequences of sweeping up people who, after all, are democratically demonstrating.

Finally—because I realise that this is what is done and so that I do not speak on Motion D—despite supporting wholeheartedly the Labour amendment, I am disappointed with Motion D1 from the Labour Party. I think I understand what is meant by conduct which is

“frivolous or vexatious, beyond a genuine expression of their right to protest.”

However, it seems to be an unnecessary concession and I will find it very hard to vote for. Beyond that I urge everyone to support the amendment in the name of the noble Lord, Lord Coaker, in this group.

Baroness Stowell of Beeston Portrait Baroness Stowell of Beeston (Con)
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My Lords, I will add a few remarks to what has already been said in the debate. My noble friend Lord Black comprehensively and powerfully set out the case for his amendment, which I support and have added my name to.

I emphasise that, like everyone else, I think, I support the Bill. It may be of interest to noble Lords to know that I signed the Official Secrets Act when I was just 18 years old, on my first day as a junior secretary in the Ministry of Defence. I knew very little about the world that I had entered, but it was impressed upon me from the start that I would be in possession of information that could endanger lives. I learned from an early age about protecting any information that could be weaponised against the UK or our citizens.

I also learned that part of what makes us such a powerful and important nation is our freedoms, especially our free press. I learned that it is critical that we do not do anything that risks journalists not being able legitimately to expose serious failings or wrongdoing by government or public servants, especially when those government failings themselves could threaten the lives and well-being of British citizens.

In Committee, we heard some powerful examples that could be at risk of being exposed in the future, for the reasons that were set out. That is why I believe it is essential that we do not legislate to protect our national security in a way that could stop journalists doing their legitimate job, however inconvenient to Ministers or public servants the results of this sometimes are. Journalists should not be threatened with prison for exposing the truth about ineptitude, incompetence or corruption within government, whoever is in power.

I echo what my noble friend Lord Black and the noble Lord, Lord Marks, said about the commitment of my noble friend the Minister, his ministerial colleagues and officials across Whitehall, who have given time and effort in trying to find a way forward. As the Minister laid out, the Government have come a long way towards addressing the concerns expressed during debates in Committee. Like others, I support all of the amendments that my noble friend tabled on behalf of the Government.

However, as my noble friend Lord Black explained, we need to go a little further and provide greater clarity than the Government’s amendments if we are to avoid a chilling effect on journalism, which could so undermine the public interest. That said, I fear that my noble friend the Minister may be unwilling to accept our amendment. That troubles me, because a Bill on national security and how a new offence could apply to journalism is not one on which I would like to see the House divided.

I can see why the Government might be struggling with the amendment or to come up with something else that provides the clarity that we need. As unthinkable and unlikely as it may be, I suspect that there is a fear within Whitehall that a journalist working for a recognised news publisher could collude with a foreign state seeking to do us harm and use this as a defence to get away with it.

I say to the noble Baroness, Lady Jones, that I want to listen to what my noble friend the Minister says at the end of the debate. It is important that we give him the opportunity to speak very clearly about this. I remind my noble friend that his words at the Dispatch Box are incredibly powerful in legal terms if they are made deliberately with the purpose of ensuring that there is complete clarity and no ambiguity when it comes to the intention of legislation.

If he will not accept this amendment, I want him to be very clear about the explicit limits of this offence. Can he put beyond any doubt that no journalist doing a legitimate job of exposing wrongdoing and failure by the state will be caught by this future Act of Parliament —if that is what it becomes—if they are not working on behalf of a foreign Government or agency? As I said, I want to listen to him, and I urge the noble Baroness, Lady Jones, my noble friend Lord Black and the rest of the House to do the same, because that is what I will do.

Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, I declare my interest as the chairman of the Independent Press Standards Organisation. I have also added my name to Amendment 18. I have very little to add to what has already been said by those who have spoken in the debate. The noble Baroness, Lady Stowell, has given a very good summary of the ruling of Pepper v Hart, although there first has to be ambiguity for the Minister’s words to have particular effect. None the less, I entirely agree with her that we will listen with great interest, as indeed will the media in general, to what the Minister has to say, to see whether he can give the assurance that is genuinely needed.

All I will add to what noble Lords have said already is that public interest journalism is genuinely under threat. It is very expensive to undertake, and editors can easily be deterred by the possibility of a wild goose chase. It would be an additional impediment to their encouraging proper journalism if they felt that one of their journalists or their publication was in some danger of finding themselves contravening the provisions of this very important Bill, which I also support in all respects. That is why this is a very significant group of amendments. As the noble Lord, Lord Black, said, citing Roosevelt, freedom of expression is fundamental. The press and the recognised publishers reflected in this amendment represent a very significant part of that freedom, and I hope that, in the Minister’s response to this group of amendments, we will get the reassurance that is so badly needed.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed (LD)
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My Lords, I have added my name in support of my noble friend’s amendments seeking further clarity on

“the interests of the United Kingdom”.

I remind the House of the very significant penalties that are associated with these offences. Since this is my first opportunity on Report, after speaking in Committee, I thank the Minister and his team for listening, and not just listening but acting, engaging with us on these Benches and bringing forward amendments that we believe will make the Bill fundamentally better. Ministers have been true to their word in acting, and I appreciate that. The way the Minister and his officials have conducted themselves is to be commended, and I put that on the record so that it is perfectly clear.

The area that is outstanding, however, as my noble friend indicated, is that we still retain a concern that simply referring to “interests” and relying purely on the judgment within the 1964 Chandler case is insufficiently wide. As I stated in Committee, I am in a significant minority in not being a lawyer but, from reading the judgment in Chandler, which I remind the House also related to nuclear and defence policy, the only reference the Government have given to highlight what the case law definition would be of

“the interests of the United Kingdom”

is a defence and security interest. That is the only reference to the only case the Government have referred to. Therefore, it is not a significant leap to simply state in the Bill that this legislation is linked to security and defence interests. Without that, as my noble friend indicated, there is a concern that any government policy of the day that is not associated with defence interests, but is nevertheless activity that is directed by a foreign power, could be covered within this. Therefore, we still believe that there is a case for that to be defined.

I hope the Minister will respond to that point and say whether the Government are open to having further clarification of how “interests” are going to be defined, rather than just relying on that individual case. The reason I believe that that will now be necessary is because of one of the welcome concessions by the Government, which is to have an independent reviewer. We will come to government Amendment 85 later, but there will be a reviewer of this part of the legislation. For that reviewer to do their job properly—and we have noted reviewers and former reviewers in the House today—clarity on the Government’s intent regarding these interests will be important for the reviewer to look at the proper functioning of the legislation. I hope there will not be a grey area where there needs to be clarity, as the noble Lord, Lord Faulks, indicated.

My second point is that I welcome the Government seeking to narrow the area of information known to someone who is likely to fall foul of this legislation. Journalism is incredibly important. Unlike the noble Baroness, Lady Jones, I do not have friends at the Telegraph or the Sun to message me—we on these Benches do not often receive friendly messages from those journals—but I defer to her contacts with the Sun. Of course, she raises an important point in the context of what we debated last week in Grand Committee, the situation in Iran. We know that not only, as the noble Lord, Lord Faulks, indicated, is free, fair, impartial and independent journalism under threat around the world, but journalism is under threat in this country. There are countries that are persecuting journalists for operating within this country; therefore, the strongest defences for journalism are important. We believe very strongly that my noble friend’s Amendment 79, on a public interest defence, will provide a very sound defence for journalists carrying out their activities.

I have a question for the noble Lord, Lord Black. My understanding of the way that his Amendment 18 is written is that it would also cover whistleblowers. We have made the case for there to be protection for whistleblowers but, as I read his amendment, the defence is for a person who is not necessarily a journalist, but the intent is that the action will be for

“publication of material by a recognised news publisher”.

As I read it, Amendment 18 is therefore not limited to journalists. There may be unintended consequences that we may consider positive but the Government may not. I do not know whether the noble Lord, Lord Black, will an opportunity to respond, so I ask the Minister whether his interpretation of Amendment 18 is that it could include whistleblowers. The main result may be to protect those who have a public interest defence in operating within all these parts. We will debate this in the next group on Amendment 79. I hope that will be our opportunity to draw the ditch—if not die in it—fight our case and divide the House on ensuring that there is a defence for journalists and a proper public interest defence for those carrying out legitimate activities not to be captured by this Bill.

Public Order Bill

Lord Faulks Excerpts
Lord Coaker Portrait Lord Coaker (Lab)
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That is the point I am making: there is of course going to be a debate about what various words mean. I have admitted it. I said to the noble Lord and to others that I have asked in the debate what “significant” means in certain situations. All I am saying is that I want to set the threshold higher; I want the threshold to be at a level at which “serious” can be used, rather than the “minor” level which the Government seek to introduce, supported by other noble Lords. Of course there will be a debate, whether about what I have put forward, or about “minor”, or about what “hindrance” means in certain situations. But this Chamber should be saying to the courts that what we mean by “prolonged” is that it has to happen not just once. It has to be more than a daily activity; it has to be something that impacts on the life of the community more than once or twice. That is what we are saying and that is why I am putting forward these amendments. I want the courts to realise that, when this Chamber passes these amendments, we are saying that serious means serious.

Of course there will be a debate about what that actually means. It is the same as with any other law we pass—it does not matter which one. The noble Lord, Lord Pannick, has much more experience in this than I do, but, in the end, the courts will have to determine what it means. We will come on to “reasonable excuse” in a minute, but I think the courts would want to know that this House has debated it. I am saying that “serious” means more than minor, and that “prolonged” means more than daily. In the end, the courts will have to determine that. But I say to the noble Lord, Lord Pannick, that that would be true whatever wording we use in the Bill: there will be a debate in the courts as to what it actually means. I want the courts to debate what “serious” means and what “prolonged” means. I do not want them to debate what “minor” means because the threshold starts too low.

Lord Faulks Portrait Lord Faulks (Non-Afl)
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I think the noble Lord said, just before the intervention from the noble Lord, Lord Pannick, that it would not be necessary to prove serious disruption. That cannot be right, with respect; I hope it was a mistake on his part. I understand that the proposed new clause inserted by the amendment is to go before the definition of the offence, which includes the words “serious disruption”, which will have to be established. Is that correct?

Lord Coaker Portrait Lord Coaker (Lab)
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Yes, of course. If I gave that impression, it was a mistake on my part. This is the whole point: there has to be “serious disruption”, as in my amendment. The debate—not the argument but the debate, as the noble Lord, Lord Pannick, just raised—is about what we actually mean by serious disruption. I thank the noble Lord, for pointing that out. If I said that, it was a mistake.

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Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, as the noble and learned Lord, Lord Hope, said, the Constitution Committee considered that a definition of “serious disruption” would be useful. I think there is a measure of agreement around the House that it would be, but the debate is about how best to define it. The amendment tabled by the noble and learned Lord, Lord Hope, to which I have added my name, is an attempt to provide that clarification. I can well imagine a court asking itself, “What is a serious disruption?”, and looking to see whether Parliament has given any help. None is provided at the moment. So I welcome that the Government have accepted, albeit somewhat at the 11th hour, that a definition will be useful.

Amendment 1, moved by the noble Lord, Lord Coaker, and which has the support of others who have already spoken to it, places the bar high. When combined with the necessity of proving not only intention or recklessness on behalf of the putative offender but the absence of a reasonable excuse, which—if the amendment tabled by the noble Baroness, Lady Chakrabarti, is accepted—is a prerequisite before you get to the other elements in the offence, it seems to me that, with all those requirements combined, it would be very difficult, if not impossible, to establish that an offence had been committed. That may well be the underlying purpose behind the combination of amendments. The opposition parties may not approve of the legislation, and, if they cannot get rid of it altogether, they may wish to emasculate it to such an extent that, practically, it cannot be relied upon. That is a perfectly tenable point of view, but not one that I share—and neither do the general public, I think, having seen the effect of some recent demonstrations.

The definition proposed by the noble and learned Lord, Lord Hope, does not place the bar as high as the noble Lord, Lord Coaker, does in his amendment. The former provides for an act that

“will result in, or will be capable of causing, serious disruption if it prevents or would hinder to more than a minor degree”—

he emphasised that last phrase—

“the individuals or the organisation from carrying out their daily activities.”

Clearly, that would exclude mere inconvenience, but it would include “disrupting”—that is an important word—people going to work, hospital, a funeral or a sporting event or taking a child to school; in other words, their “daily activities”. If they were inconvenienced only to a minor degree, that would not be a serious disruption, but the amendment tabled by the noble and learned Lord, Lord Hope, would, I suggest, be a useful guide to courts in determining what amounts to a serious disruption. If it is suggested that it sets the bar too low, we should bear in mind those additional requirements: mere accidental interference is not enough. We should bear in mind, too, how those are bespoke amendments to deal with locking on or tunnelling; they are not general or vague attempts to raise the bar to a particular level.

I also think the opposition parties may wish to bear in mind what the Labour Party shadow Justice Secretary said in connection to this:

“Our brave emergency services are being held up from helping those in distress, and lives have been put at risk. On top of that, the public has been stopped from going about their everyday business.”


I do not suppose that the Opposition would wish to disassociate themselves from that. It seems entirely consistent with the amendments tabled by the noble and learned Lord, Lord Hope, on serious disruption—and, when we come to them, on “reasonable excuse”.

Of course, I entirely accept that the right to protest is fundamental, and we must, as citizens, be prepared to put up with inconvenience caused by those exercising that important democratic right. We may find it noisy and annoying—depending on how much we sympathise with the cause, even very annoying—but that would not be enough to be a serious disruption. It must be something more than annoying, but less than the very high hurdle which must be surmounted by the wording of the amendment moved by the noble Lord, Lord Coaker. Ultimately, it may come down to whether your Lordships consider that the right to protest is so fundamental that it must trump the rights of ordinary people going about their everyday lives. It is a difficult balance to strike, but although I profoundly respect the right to protest and have sympathy for many of the relevant causes, it seems to me that one has to counterbalance that with the rights of others to go about their lives—those rights are entitled to protection, too, and this amendment attempts to achieve a balance between those respective rights.

Lord Anderson of Ipswich Portrait Lord Anderson of Ipswich (CB)
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My Lords, I am also glad that your Lordships’ House is trying to explain for the benefit of protesters and police what is meant by “serious disruption”, even if we are not finding it very easy.

I will start with the new tunnelling offences in Clauses 3 and 4, which, as I said in Committee in support of the consistent approach of the noble and learned Lord, Lord Hope, are in a very particular category. The key point, recognised in Amendments 14 and 24, is that the disruption liable to be caused by tunnelling is not to the general public but to construction or maintenance works. Delays to the delivery of time-sensitive products, and prolonged disruption of access to a rather specific range of goods and services specified in Amendment 1 of the noble Lord, Lord Coaker, are not really to the point. The one-size-fits-all approach in Amendment 1 is neither designed for nor appropriate to the tunnelling offences. I would add that to require disruption to be “more than minor” in order to constitute the new offences seems quite sufficiently generous to tunnellers who are seeking to disrupt those engaged in lawfully organised works. That is why I put my name to Amendments 14 and 24 and shall support them if they are put to a vote.

The arguments are more finely balanced in relation to Amendment 5. The locking-on offence, as the noble Lord, Lord Coaker, has said, can be constituted by a remarkably wide range of actions. I am wary of a test that is too easy to satisfy, bearing in mind that serious disruption, or the prospect of serious disruption, is the trigger for the no-suspicion stop and search power, and for SDPOs, the whole existence of which is controversial, at least to me. But I take comfort from the fact that, as the noble and learned Lord, Lord Hope, has explained, hindrance to the public needs to be significant before it can meet the test of being more than minor. Indeed, “significant”, not “substantial”, is the very word used in Amendment 1 when it refers not only to “significant harm” but to “significant delay”.

The recent Policy Exchange briefing, to which the noble Lord, Lord Coaker, referred, complains that the “more than minor” test may be interpreted in the light of the Strasbourg case law

“so as to maximise the space for protest”.

I agree that it will have to be interpreted in conformity with the ECHR. Policy Exchange seems dismayed by that; I am rather encouraged by it. When the definition offered by the noble and learned Lord, Lord Hope, is criticised from one side for being too easy to satisfy and from the other for being too difficult to satisfy, perhaps it is not too wide of the mark, even in this more sensitive context.

My main point is that whatever view noble Lords may take of Amendment 5, the case for Amendments 14 and 24 is a strong one. I hope we will have the chance to vote for them.

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Lord Faulks Portrait Lord Faulks (Non-Afl)
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My Lords, in the temporary absence of the noble and learned Lord, Lord Hope, from the Chamber, I speak to the amendments in his name, to which my name and that of the noble Lord the Minister have also been added.

The Constitution Committee, in its report published on 11 November 2022, considered the question of “reasonable excuse”—which is used, as has already been pointed out, in a number of contexts in this part of the Bill—and pointed out that it was not defined. It also said, at paragraph 14 of its report, that the offence does already

“require intent, which may render redundant the need for a ‘reasonable excuse’”.

The committee considered it unsatisfactory to leave to the court the task of determining what might be a “reasonable excuse” without Parliament indicating what it intends the defence to cover. Including a “reasonable excuse” defence invites arguments as to whether certain, but not other, political motivations might constitute an excuse. What the committee recommended was that that,

“unless a precise definition of ‘reasonable excuse’ is provided then the ‘reasonable excuse’ defence”

should be

“removed from Clauses 1, 3, 4 and 7”—

apart from anything else, in the interest of legal certainty.

This was a report from a committee looking at the constitutional aspects of the Bill. It included, as the House will know, Peers from all parties and none. I confess to some uncertainty as to what the Government can have intended by originally including a defence of “reasonable excuse”. If you cause serious disruption by attaching yourself to an object or land or otherwise locking on, as defined in the Bill, and you do so intentionally or recklessly, what could provide a “reasonable excuse” for doing so?

It seems to me that probably the only excuse that could be offered would be that your cause is a noble one: in particular, that you are concerned about the damage to the planet caused by climate change. I see the noble Lord, Lord Deben, taking a close interest in this debate, but I am not suggesting for a moment that he would be inclined to lock himself on—but that has been the stance taken by Extinction Rebellion and Just Stop Oil, as we know. It could be argued that any demonstration, however serious the disruption, is justifiable if it contributes in some way to putting extra pressure on the Government to take appropriate steps to, if not completely turn back climate change, at least substantially reduce its effect.

I suspect that “reasonable excuse” was put in the Bill in an attempt to ensure that the Bill then complied with the Human Rights Act: in particular, that it did not contain provisions that, in the light of the Supreme Court’s decision on Ziegler, might be said to be in breach of a demonstrator’s convention rights. The Ziegler decision has been controversial. Policy Exchange, in particular, in a number of publications has pointed out the flaws in the judgment, or at least the flaws in how the judgment has been interpreted.

Since the Supreme Court decision on Ziegler, there have been other cases which seemed significantly to water down its effect—the case of Cuciurean and the Colston statue case. However, the recent decision in the Northern Ireland abortion case, handed down in on 7 December 2022—after the Bill had progressed a long way in your Lordships’ House—has made it perfectly clear that Ziegler needs to be very substantially qualified. The ingredients of an offence can themselves ensure that it will be compatible with convention rights even if it does not include a defence of reasonable or lawful excuse.

It would be perfectly convention-compliant, in my view, to remove the defence of reasonable or lawful excuse altogether. I have to say that was my original preference, but I have been persuaded that it is better to retain the defence giving the possibility of a reasonable excuse that is restricted in the way the amendment allows. It would not be enough to say in relation to the offence that there is a worthwhile cause, such as combating climate change, and then to say that that is a reasonable excuse and have us ask a fact-finding tribunal, whether it be magistrates or even a jury, to give its views as to whether a reasonable excuse exists in the circumstances.

On the analysis of the relevant jurisprudence, the Supreme Court in the Northern Ireland case referred, among other cases, to the well-known animal defenders case decided in 2013. That case, and the European Court of Human Rights case law, shows that the state is granted a margin of appreciation in these areas. It would be a question of law rather than fact whether an offence sufficiently reflects the principle of proportionality. The prosecution will have to establish a serious disruption. It will also need to establish intention or, at least, recklessness. It seems entirely consistent with the Northern Ireland case that there is no need, as a matter of law, to provide for the free-ranging and imprecise defence of reasonable excuse.

The right to protest is extremely important. It is reflected in the ECHR, just as it was in the common law before the Human Rights Act was enacted, but this right should be balanced with the right of our citizens to go about their everyday life without interference. Inconvenience is something we should be prepared to put up with but where there is serious disruption involved, defined as the amendment which succeeded in the previous debate says, it should not be an answer for a defendant to say: my cause is so important that it trumps your right to go to hospital, to take your children to school or to go to work. This amendment is consistent with the law and with what the vast majority of the population would want.

Lord Skidelsky Portrait Lord Skidelsky (CB)
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My Lords, I support the amendments in the names of the noble Baroness, Lady Chakrabarti, and the noble and learned Lord, Lord Brown. They would require the police to prove that a person charged with an offence lacked reasonable excuse, rather than the person charged to prove that they had a reasonable excuse. In other words, they restore the presumption of innocence rather than guilt.

The presumption of innocence is not just an archaic legal point. The intricate legal arguments are worthy of great respect but I do not think they get to the heart of the matter. Presumption of innocence is a cardinal principle of a liberal society—a cardinal political principle. Governments and law-enforcement agencies are always disposed to believe that their citizens are potential lawbreakers, I am afraid, so placing the burden of proof on the police is an essential safeguard for civil liberties. That seems to me the crucial point because unless that cardinal political principle is there, you are reducing the extent to which the police are answerable to the courts—and lawyers should be very interested in that point. You are reducing their accountability to the courts and that is why, in systems such as those in Russia and China, there is very rarely an acquittal because the presumption is that the person charged with an offence is guilty. The bias is then all in favour of the conviction rather than the acquittal. It is on the basis that this group of amendments embodies a fundamental political principle that I support it.

--- Later in debate ---
Moved by
8: Clause 1, page 1, line 18, at end insert—
“(2A) The fact that the person did the act mentioned in paragraph (a) of subsection (1) as part of or in furtherance of a protest on an issue of current debate will not constitute a reasonable excuse for doing that act.”Member’s explanatory statement
This amendment seeks to limit the scope of the reasonable excuse defence, as the ingredients of the offence themselves ensure consistent with case law that its interference with a protester’s Convention rights is proportionate.
Lord Faulks Portrait Lord Faulks (Non-Afl)
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The House has heard the debate, and I am not going to repeat the arguments, which have been well set out. I suggest that it is clear as a matter of law that this is a perfectly sensible and legal amendment to the Bill that would provide clarity. The alternative approach is that the police somehow have to assess the absence of reasonable excuse. It is a difficult balance to achieve; what the amendment does is strike a balance between the undoubted and important right to protest and the right of people to go about their everyday life. I commend this amendment to the House, and I wish to test the opinion of the House.