Criminal Finances Bill

Lord Faulks Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 3rd April 2017 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the right reverend Prelate the Bishop of Peterborough reminded us that corruption in the modern world is a moral issue—and so it is; perhaps one of the greatest moral issues that we face. I was reminded by the speech of the noble Lord, Lord Naseby, that the great moral issue of the late 18th century and the beginning of the 19th century was slavery. It was the judgment of Lord Mansfield in the 1780s that put an end to slavery in this country.

The anti-slavery movement then began to campaign on the basis that if slavery is abolished in this country, how can it be that we permit it in our colonies, so that when a slave from the colonies comes to this country, the shackles fall away? It took until 1833 for William Wilberforce to lead a movement to pass the anti-slavery Act. Even then, it did not abolish slavery in the East India Company territories or in Ceylon.

However, at that time slavery continued in the United States; it took a civil war to put an end to slavery in the United States. The arguments advanced then were that if we abolished slavery in the colonies and the West Indies, it would undermine the economies of those territories. The same argument again was used: how will those colonies in the West Indies be able to compete with the United States in the production of sugar and cotton if slavery is abolished there?

The important point is that this country laid down the standard. We did not wait for global standards to be brought about; we took the lead. I urge the Government to take the lead, along the lines that have been advanced today by the noble Baroness, Lady Stern, who sees not only the importance of having registers in the overseas territories but that there should be something behind it—the possibility of an Order in Council to deal with that moral issue if they do not take up the cudgels in the way that they should.

[Lord Faulks (Con)]

I have a very short and slightly less theatrical point than the noble Lord’s—although the point he made was good. It relates to Amendment 169, which concerns the Crown dependencies. As at Second Reading, I declare an interest as the former Minister with responsibility for the constitutional relationship between the Crown and the Crown dependencies. It is a relationship of considerable importance to all parties involved, and of particular importance now with the prospect of Brexit. It is important that we maintain the competence of the Crown dependencies and it is also important that we do not exceed our constitutional role, as the noble Lord, Lord Beith, said, in seeking to make laws that in my view are not consistent with the specific constitutional relationship that we have with the Crown dependencies.

I notice that the noble Baroness, Lady Stern, eschewed any reference to the Crown dependencies. Amendment 169 does not, however. Quite apart from the point made by the noble Lord, Lord Eatwell, in relation to subsection (4), I invite the Minister to accept that there is a real problem legally with this amendment and to endorse what I said at Second Reading: that all the Crown dependencies have made very real progress in co-operating to produce a register which is available to all law enforcement agencies.

[Lord Borwick (Con)]

My Lords, I became alarmed when I saw Amendment 167, and I then received a joint briefing on this specific amendment from groups such as Christian Aid, Oxfam and Save the Children—all great charities doing tremendously important work around the world.

What is clear is that this group of NGOs believes that countries like Bermuda cannot be trusted to run their own affairs and need orders from legislators in Britain. Noble Lords will know that Bermuda started its central register of beneficial ownership some 70 years ago—long before it was started in Britain. It is therefore offensive to believe that it is only the great parties here, and a bunch of patronising charities, that can help them. In fact, according to the IFC Forum, information on beneficial ownership of companies will be centrally held by all overseas territories from next year.

Data can be provided to the relevant authorities on the same day that it is requested. So Bermuda is actually ahead of other jurisdictions in this area. Targeting them, as has been done in this amendment, is especially misguided. In fact, the UK is the outlier. International standards do not require that we adopt a public register—and, unsurprisingly, most other countries are not adopting public registers. Our competitors in the US, Hong Kong and elsewhere will not be doing so.

We should consider what we risk losing. Reinsurance provision from Bermuda covered over 20% of flooding losses from the 2015 winter. It supports around 70,000 jobs in the UK and has provided our economy with £10 billion of capital since 2008. Forcing the overseas territories to go beyond what is required will simply mean that business moves elsewhere. It will move to financial centres that are less well regulated than ours—centres that will not co-operate with UK authorities—which is surely the opposite of what noble Lords are trying to achieve with this amendment.

Most politicians and civil servants simply do not understand the rule of unintended consequences. They think in straight lines, but the real world works differently. There are a large number of urgent problems in the world to be solved, and the efforts of these NGOs to create the ability for self-selecting, worldwide tax collectors to examine registers is unwise. Have these charities really decided that they have not got anything better to do?

[Baroness Williams of Trafford]

My Lords, I thank all noble Lords who have taken part in an excellent debate. I pay particular tribute to the noble Baroness, Lady Stern, along with others who have spoken with passion and given considered contributions on a crucial issue.

I have addressed much of what has been raised in correspondence with noble Lords, but I hope that the House will allow me to put certain points on the record. As David Cameron said last year, international corruption,

“is the cancer at the heart of so many of the world’s problems”.

The Panama papers revealed the extent to which anonymous shell companies are used to hide large sums of wealth and circumvent sanctions. The UK is a global leader in the fight against corruption, and we are proud to be at the forefront of international efforts to increase corporate transparency. This includes working with all UK overseas territories with financial centres, and with the Crown dependencies, to tackle money laundering, terrorist financing, corruption and fraud. The territories and dependencies are, in turn, committed to fully meeting international standards, and in some respects are going beyond them, and to working with us to ensure that they do not act as a hiding place for illicit financial flows.

Last year, the UK signed an exchange of notes with all overseas territories with significant financial centres and with the Crown dependencies, setting out new arrangements on law enforcement access to beneficial ownership data. The exchange of notes provides that, when they have not already done so, overseas territories and Crown dependencies must all set up central registers or similarly effective systems of beneficial ownership information. It also provides that UK law enforcement authorities should have the automatic right to access this information, which means that beneficial ownership information will be available within 24 hours, or within one hour in urgent cases. Ensuring that law enforcement authorities are able to establish who is the ultimate owner of companies registered in the overseas territories and Crown dependencies is a crucial part of tackling the complex criminal networks that can exploit the system.

These arrangements are due to be implemented no later than June this year and will put them well ahead of most jurisdictions in terms of transparency, including many of our G20 partners and other major corporate and financial centres, including some states in the United States. Once in place, these arrangements will bring significant law enforcement benefits. They will prevent criminals hiding behind anonymous shell companies and mark a significant increase in UK law enforcement authorities’ ability to investigate bribery and corruption, money laundering and tax evasion.

The noble Baroness and other noble Lords started off by asking for a global standard definition, and I thought that I might address that up front. There is no single definition of a global standard for reach and coverage, but organisations such as the OECD and the Financial Action Task Force are key to the development of international standards in this area. As the noble Lord, Lord Eatwell, said, the UK believes that a public register is a powerful tool, and we will continue to make that point in international fora. However, the OECD has focused on accurate, independently verifiable data as an important standard, which all the overseas territories are looking to implement.

The EU has also played an important role in advocating transparency, but the fourth anti-money laundering directive does not require EU states to make their registers public. In this context, I reiterate that the overseas territories and Crown dependencies are actually ahead of the current standard in implementing the exchange of notes. I will come back to this when I address the point made by the noble and learned Baroness, Lady Butler-Sloss. We are not saying that the global standard means that every country must have a public register, but we would certainly expect it to reflect the recommendations of groups like the OECD and FATF. The UK is leading the way in this area and we are, of course, working on transparency issues with international partners through these groups. I make it clear that the UK firmly believes that public registers are the gold standard. Our position has not changed, but putting a timeline on this work simply does not reflect the scale and complexity of these issues. The OTs and Crown dependencies will be significantly ahead of the global standard as it stands. They have their existing commitments and this, in itself, is moving the standard in the right direction.

Many noble Lords have asked about progress to date and I am pleased to be able to talk about that. We have been working closely with both the overseas territories and the Crown dependencies on implementation by the deadline. I can confirm that significant progress has been made and I will briefly share some highlights with noble Lords. The British Virgin Islands, one of the overseas territories, has already completed the technical construction and testing of its new cloud-based platform. It is now taking forward engagement with corporate service providers to ensure that data formatting is fully standardised in order to enable beneficial ownership data to be uploaded on to the system in advance of the deadline.

In December, the Cayman Islands Government passed an amendment to the Police Law, which is necessary for law enforcement co-operation, and have recently successfully amended three key pieces of legislation to underpin the functioning of their new system: the Companies Management Law, the Companies Law and the Limited Liability Companies Law. Bermuda has a long-standing central registry of beneficial ownership data. It is currently moving legislation through its legislature to enhance the register, including a requirement on legal entities in Bermuda to maintain registers of up-to-date information on their beneficial owners, and to file updated beneficial ownership information with the Bermuda Monetary Authority. Gibraltar is already committed to implementing the EU fourth anti-money laundering directive and has prepared legislation to take forward these commitments and the exchange of notes. The technical construction of its system is well advanced and it is now considering steps to populate the registry with data.

All these jurisdictions have also committed to the automatic exchange of beneficial ownership information, along with 50 other countries. This is important progress, but there is more to be done and we are not resting on our laurels. We are committed to following up on these arrangements to ensure that they deliver in practice. The exchanges of notes with all overseas territories and Crown dependencies make explicit provision for the Secretary of State and the Premier or Chief Minister to undertake a review of the arrangements six months after they come into force—that is, on 31 December 2017—and for further reviews to take place annually thereafter. The arrangements also provide for continuous monitoring by both parties. I hope this provides clear assurance that the effectiveness of the arrangements will be kept under careful scrutiny to ensure that they are meeting our law enforcement objectives.

The NCA has confirmed that it is already seeing enhanced co-operation from some overseas territories, and much shorter turnaround times for processing requests for information. We expect to see this further improved to meet the agreed standards by June this year. This progress demonstrates what can be achieved by working consensually with the overseas territories and Crown dependencies. It is reaping benefits and I believe it will continue to do so.

I turn to the amendments. Amendment 167 is similar to one tabled on Report in the Commons, in that it envisages a timetable for the adoption of public registers of beneficial ownership by the overseas territories. If they have not done so by the end of 2019, it would require the Government to force them to do so. The key difference with this amendment is that it does not cover Gibraltar.

Amendment 169 also requires the Government to support the Crown dependencies to establish public registers of beneficial ownership by the end of 2019, and to report to Parliament on the progress made. However, it does not require the Government to impose public registers on them.

A key feature of the Government’s approach is that it creates a level playing field between all of the overseas territories with financial centres and the Crown dependencies. By taking a different approach to the Crown dependencies and territories, these amendments risk disrupting this level playing field, creating weaknesses in certain jurisdictions that could be exploited and damaging the spirit of co-operation we have been able to create between them.

The noble and learned Baroness, Lady Butler-Sloss, made the point that Gibraltar need not be covered by Amendment 167 as it is committed to implementing the EU’s fourth anti-money laundering directive. However, it is important to note, as I said earlier, that the fourth anti-money laundering directive does not require member states to establish publicly accessible registers of beneficial ownership information, so to impose such a requirement on the overseas territories and Crown dependencies would go beyond what has been agreed with our neighbours in Europe. The provisions in the exchange of notes also go beyond the fourth anti-money laundering directive in providing UK law enforcement with access to information within 24 hours, and within one hour in certain cases.

Rather than imposing new requirements on the overseas territories, the Government feel strongly that we should continue to work with them and focus our efforts on the implementation of the existing arrangements, including the passage of new primary legislation in the territories and complex technological improvements. I recognise that it is the wish of some noble Lords that a timetable be set for public registers. However, the UK Government respect the constitutional relationship with the overseas territories and the Crown dependencies. My noble friend Lord Faulks queried whether there might be a legal issue. I suspect that he is right but I shall look into that before Report.

As I noted earlier, legislating for the overseas territories is something we have done only very rarely. It is done on issues such as the abolition of the death penalty, which raised issues of compliance with human rights obligations for which the UK retains responsibility. While tackling this kind of complex criminality and its consequences is extremely serious, there is a clear constitutional difference in the fact that financial services is an area that is devolved to territory Governments and, in the case of the Crown dependencies, the UK has never legislated for them without their consent. That may be the point to which my noble friend Lord Faulks referred.

[Lord Faulks]

I confirm that that is precisely the point I was making.

[Baroness Williams of Trafford]

I am so glad that I read it right. The UK is directly responsible for the OTs’ and the CDs’ compliance with international obligations, including the European Convention on Human Rights. It is our responsibility in international law, as the overseas territories have no legal personality under international law. That was a key factor in the UK taking the rare step to legislate for the OTs on the issue of, for example, the decriminalisation of homosexuality. While I acknowledge the moral dimension of tackling criminal finances, the same responsibility does not exist for financial services policy, which is OT government responsibility.

Criminal Finances Bill

Lord Faulks Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 28th March 2017 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords—

[Lord Faulks (Con)]

My Lords, my name is on a number of amendments. I wonder whether the noble Lord will allow me to expand on them a little.

My noble friend Lord Hodgson suggests in his amendment that the High Court should be satisfied beyond reasonable doubt in relation to the requirements before making an unexplained wealth order. For reasons that I will come to, I do not support the amendment, but I think my noble friend seeks to provoke, understandably, a debate about the scope of UWOs and to understand how the Government intend to use them and what sort of evidence the agencies will obtain before seeking one.

The Government are absolutely right to bring forward these provisions in relation to unexplained wealth. Indeed, it is an exciting and significant new development. There is a precedent, provided principally by Ireland and Australia. I had the opportunity to read an extremely lengthy worldwide overview of the use of these orders, The Comparative Evaluation of UWOs by Booz Allen Hamilton, and a useful selection of essays from the White Collar Crime Centre dated January 2017 and edited by Jonathan Fisher QC of Bright Line Law Services Ltd. The main questions appear to be: who can UWOs be appropriately aimed at; how effective will they be; and, are there adequate safeguards? The other way of putting the last question is: do they have the potential to be unfair?

--- Later in debate ---

[Lord Sharkey (LD)]

My Lords, I will speak to Amendments 10, 13, 20 and 22 to 25 in this group, all of which are probing amendments. Amendment 10 modifies subsection (4) of the newly inserted Section 362B of the Proceeds of Crime Act 2002. The subsection sets out one of the three conditions that must be satisfied before an unexplained wealth order may be made:

“The High Court must be satisfied that … the respondent is a politically exposed person, or …there are reasonable grounds for suspecting that … the respondent is, or has been (whether in a part of the United Kingdom or elsewhere), or … a person connected with the respondent is, or has been, so involved”.


As I read it, it means that simply being a politically exposed person satisfies the condition. That is enough for the High Court: it does not need,

“the reasonable grounds for suspecting involvement in serious crime”,

to be satisfied as well. That seems unnecessarily and dangerously broad.

It is probably unnecessary to remind the Committee that we are all PEPs. So are our families and our close associates. As the Government have made clear, and as the FCA is about to say in guidelines, most Back-Benchers, their families and associates should not require additional due diligence. Given that, we or our equivalents abroad should not be exposed to a harsher, more extensive and more intrusive regime. By replacing “or” with “and”, and by qualifying the definition of PEPs by inserting,

“who merits additional due diligence according to Financial Conduct Authority guidelines”,

my amendment removes this harsh, special treatment of non-EEA PEPs. For the condition to be fulfilled, the amendment requires that the PEPs are not ordinary PEPs but merit this additional due diligence and that there should be reasonable grounds for suspecting involvement in serious crime.

Amendment 13 removes the exemption of UK and EEA PEPs from the conditions in subsection (4) of new Section 362B, in order to give the Minister the opportunity to explain why UK and EEA PEPs should not be treated exactly as all other PEPs.

Amendment 20 gives the Minister an opportunity to clear up an apparent anomaly. On page 5, subsection (2)(b) of the newly inserted Section 362E sets out the penalty for failure to respond properly to an unexplained wealth order. For summary conviction in England and Wales—and later, we see, in Scotland too—the penalty is imprisonment for a term not exceeding 12 months, or a fine, or both. However, on the very next page, in subsection (2)(c), the penalty on summary conviction in Northern Ireland for exactly the same offence is set at imprisonment for a term not exceeding six months, or a fine, or both. So in England and Wales and Scotland, you can go to prison for up to 12 months, but in Northern Ireland it is up to six months. Why? I would be grateful if the Minister could explain.

[Lord Faulks]

Before the noble Lord goes on to the next amendments, could he help the Committee with one point? He points to the position of PEPs and describes the potential vulnerability that quite ordinary people might have to these orders, but does he not think that subsection (3) of new Section 362B is a sufficient protection? It provides that the High Court,

“must be satisfied that there are reasonable grounds for suspecting that the known sources of the respondent’s lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property”.

That provides a hurdle that has to be surmounted, as well as establishing that someone is a PEP.

[Lord Sharkey]

If it were absolutely clear that you cannot obtain an unexplained wealth order without satisfying that condition, I would be happy, but I am not entirely sure that it is, and I would welcome the Minister’s confirmation that the noble Lord is correct.

Amendments 22 to 25 will allow the Minister to point out—if other noble Lords do not do so beforehand—where I have entirely missed the point. They refer to page 7 and subsections (2), (3) and (4) of new Section 362H. These subsections allow rules of court to provide for the practice and procedure to be followed relating to unexplained wealth orders before the High Court in Northern Ireland. There are similar but not identical subsections later in the Bill dealing with the same matter in Scotland. However, the Bill seems to be silent on how these matters are to be dealt with in the English and Welsh courts. I am sure I have missed something obvious here and would be grateful for enlightenment from the Minister.

There is another apparent anomaly in the sections dealing with the variation or discharge of an unexplained wealth order. I notice that the provision in Scotland is significantly different from that in Northern Ireland. On page 18, line 43, to line 1 on page 19, the Bill allows applications for variation or discharge to be made by “Scottish Ministers” or by,

“any person affected by the order”.

That is not the case for Northern Ireland, where application can be made only by the enforcement authorities or the respondent. Why is there this difference between Scotland and Northern Ireland? My Amendment 24 makes the process in Northern Ireland the same as in Scotland but, again, what about England and Wales? I look to the Minister to put me right on all this.

--- Later in debate ---

[Baroness Williams of Trafford]

The noble Baroness is right that both ends of the scale should be tackled, so I hope that law enforcement agencies will use the orders in a proportionate way to tackle criminal activity at both ends of the scale. I hope that that will satisfy the noble Baroness. She looks satisfied.

[Lord Faulks]

When questions were raised at Second Reading about the scope of the orders and how many might be issued, I referred to an assessment that was provided—with some difficulty—by the Government that only about 20 might be sought during the year. The Minister understandably said that that was only an estimate, based on general experience of civil recovery. However, does it not indicate that, rather than grasping low-hanging fruit, if anything this will be considerably resource-heavy and will probably be directed only at cases where the amount of wealth is significant enough to make the expenditure of time and money worth while?

[Baroness Williams of Trafford]

My noble friend and the noble Baroness have made the case for both ends of the threshold. My noble friend talked about resources generally. One thing that came from the law enforcement agencies was that the issue was not resources but the tools to be able to tackle criminals. Also, law enforcement agencies do benefit from a proportion of the money recovered, so they are incentivised at both ends of the scale—and it will be up to legislators in this House and the other place to decide on the right balance to strike. But that was our rationale for the lower amount—and I know that the Government originally suggested £100,000.

The point about compensation is covered in government Amendments 28 and 56, and Amendments 29 and 57, in the name of the noble Baroness, Lady Hamwee. Amendments 28 and 56 introduce a compensation scheme in relation to the interim freezing orders that can support a UWO. Other powers to freeze property in POCA have connected compensation provisions. It is absolutely right that a person who has genuinely suffered a loss should have the ability to seek compensation where there has been serious default on the part of the enforcement agency. The “serious default” test is already used in POCA and is applicable here too. I hope that on that basis, the noble Baroness will agree that her amendments probably are superfluous in this instance.

--- Later in debate ---

[Baroness Williams of Trafford]

Is the noble Lord talking about the high point with regard to the UWO triggering point? The Government have considered all options; they have suggested £100,000. The point was made that £50,000 was more appropriate, particularly in some of the devolved Administration areas, where property prices are generally lower, and the noble Baroness, Lady Hamwee, has made an argument for setting the bar higher. However, my noble friend also made the point that by setting the bar lower we might end up having more success, reaching not only the low-hanging fruit but the high-hanging fruit as well. I therefore hope that the noble Lord accepts that explanation. It is an objective consideration, but there are obviously many views about where the threshold should be set.

On Amendments 2, 5, 7, 16 and 18, tabled by my noble friend Lord Faulks, Amendments 2 and 7 seek to replace the term “holds” with “has a financial interest in” as the test for the High Court to consider. It is only fair that in serving a UWO the respondent must have some direct connection with the property that is of interest. “Holds” is a well-established concept in civil law, including in the Proceeds of Crime Act 2002, and we believe that requiring a person to “hold” property is a proportionate approach. It is also our view that “holding” property includes holding an interest in that property. I hope that noble Lords are reassured by that assessment.

[Lord Faulks]

I am sorry to interrupt the Minister. I thought that the answer to this point was provided by the Government’s Amendment 21, therefore there is no need to refer to the provisions of POCA, because there is an internal reference to what “holding” means.

[Baroness Williams of Trafford]

That is correct, but I thought I might go through it. I am just being thorough.

Amendment 5 seeks to add the ability to interview a person “under oath” as a possible requirement of a UWO. It would already be a criminal offence for the respondent to knowingly or recklessly provide false or misleading information. We must also remember that this is only an investigative power; if the case leads to criminal proceedings, it would be subject to the usual rules of giving evidence and allow for interviews “under caution”.

Amendments 16 and 18 address the issue of “purported compliance”. If a person does not comply with a UWO, their property is presumed to be recoverable under civil recovery proceedings. Given the severe consequences of not complying, it is right that this rebuttable presumption should not apply to a person who purports to provide a response. This avoids any legal ambiguity as to when the presumption will apply. However, where that individual provides responses that do not satisfy the enforcement agency, he or she then runs the risk that the poor quality of the responses will encourage the agency to take further action, and in those circumstances the burden of proof switches back to law enforcement, as is normal.

Purported compliance applies to a scenario where all the requirements of a UWO have been met but where the response is less than satisfactory. The agency is able to tailor the request for information very specifically, so will have some control over this. We do not want to get into arguments before the courts as to whether the presumption should apply and whether the individual has complied.

Finally, the UWO provisions will allow the enforcement authority to make very specific requests for information, reducing the risk of a low-value response being provided. I hope that my noble friend will feel that this addresses the point he has so expertly raised. He also raised a point about gambling. With regard to the Ladbrokes test or the William Hill defence, we would expect a high level of evidence to prove that, and we would expect it to meet the requirements of the UWO. The UWO will have achieved its purpose by flushing out information.

My noble friend also asked whether we would publish the code of practice before Report. The answer is yes. I undertook to discuss publication of the update to the relevant code of practice with my officials and ministerial colleagues, and it is my intention that the draft code will be available to noble Lords prior to Report.

I now turn to Amendment 1, moved by my noble friend Lord Hodgson of Astley Abbotts. This would require the High Court to be satisfied “beyond reasonable doubt” with regard to each of the requirements before issuing a UWO. This is an investigative power, as the noble Lord, Lord Blair, said, so the test of “reasonable suspicion” is quite normal and consistent with existing law, including Part 8 of POCA. The balance of probabilities applies here, as the noble Lord, Lord Blair, and my noble friend Lord Faulks said, and I hope that my noble friend will agree that it would not be appropriate to impose a criminal law standard in such cases.

My noble friend Lord Hodgson asked about the reversal of the burden of proof. We accept that there is a reversal of the burden of proof but it is in very specific and narrow circumstances. There has to be a link to a PEP or a serious criminal. This is a proportionate use of operational need. As an investigation power, there is the opportunity to address this issue in any subsequent proceedings. As my noble friend said, Transparency International has approved this approach.

My noble friend also asked about the use of legal advisers if a client is subject to a UWO, but we do not consider that an amendment is required to the laws on legal privilege. The lawyer role is unchanged, and the lawyer has the same responsibility to file a SAR if he has a relevant suspicion. It will be a question of the facts in each case.

I now turn to Amendments 10, 13, 20, 22, 23, 24, 25, 35 and 37, tabled by the noble Lord, Lord Sharkey. I think that these broadly separate out into two topics: first, the application of UWOs to PEPs, and, secondly, the court process in Northern Ireland. UWOs can be made either where there is suspicion of involvement in serious crime or in relation to non-EEA politically exposed persons. In that sense, I want to make it clear that politicians and senior officials in the UK and the EEA are covered by the first element of this power where they are suspected of being involved in serious criminality.

The reason for the second limb is to plug a gap experienced by law enforcement agencies when they investigate politically exposed persons. The issue arises in cases where critical evidence is available only in the PEP’s home country, which lacks the capabilities necessary to gather it itself. Conversely, in relation to UK PEPs and those across the European Economic Area, if the evidence exists it will be obtainable, so the same issues do not arise. There is no gap in these cases. That means it should be possible to evidence suspicion of involvement in serious crime.

On the noble Lord’s point about the FCA guidelines, these relate to the regulatory obligations of banks and other institutions. UWOs are not to do with the regulatory burden and responsibilities of the financial industry, so reference to the FCA is not strictly relevant here.

On increasing the sentence on summary conviction in Northern Ireland to 12 months, the current provisions reflect the approach taken to sentencing for other “either way” offences in the Bill, and which also correspond to offences in POCA already. The 12-month point for England and Wales arises from an amendment to the approach to sentencing in the magistrates’ courts which derives from Sections 281 and 282 of the Criminal Justice Act 2003. Those amendments did not extend to Northern Ireland. In relation to the ability to make rules of court and other procedures in the High Court, including the variation or discharge of a UWO, specific provisions are not required in the Bill for England and Wales. However, express provision is required for the High Court in Northern Ireland to put them on the same footing.

The noble Lord also asked about Scotland. There is a constitutional division of powers between Scottish Ministers and the Lord Advocate, which is obviously specific to Scotland. We need to be certain that there is an ability of the Scottish Minister to disclose information onwards. The provisions presume that if a response is made to a UWO, this information could be disclosed onwards for consideration of a criminal investigation and/or prosecution. Therefore, in the Scottish context, Scottish Ministers apply for UWOs so that they will receive any information in response to such. If they consider that this information suggests that a criminal investigation and proceeding may be appropriate, they would need to refer the material to the Lord Advocate. The amendments provide that Scottish Ministers can disclose the information to the Lord Advocate for this very purpose. They also make certain that there is no suggestion that Scottish Ministers are tasking the Lord Advocate, merely that the material can be referred for independent consideration by the Lord Advocate. That is important due to the constitutional structure in Scotland.

Amendment 24 provides for any person affected by a UWO to apply for its variation or discharge, and not just the applicant and respondent. As a specifically focused investigation order, only the applicant and respondent are directly affected by the UWO. This is because the UWO requires the respondent to provide information, but does not itself affect any other interests in the property.

Finally, we reach the other amendments from the noble Baroness, Lady Hamwee. Amendments 26 and 54 would provide that the application to freeze property need not be made at the same time as the application for a UWO. It is right that all matters relating to the person and property should be dealt with in one hearing. This also gives certainty to the respondent. Should the enforcement agency wish to freeze the property at any other time, it will be able to do so under the main freezing order provisions in POCA, provided that the relevant test can be met.

With reference to UWOs, the noble Baroness asked about the need for the ownership register. Open source material that already exists can be of assistance; for example, the Land Registry, public accounts and records at Companies House. Other countries may already have public registers of ownership and income. In these circumstances, our law enforcement agencies would have access to them. We should also note that the UK has public registers of beneficial ownership.

I turn finally to the point raised by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He talked about altering the threshold but still having the safeguards. On the threshold, it must be remembered that the High Court has to be satisfied that there is still a link to serious crime or that someone is a PEP. That is a significant test. It focuses the use of the power in relation to the amount, and that is dropped by our amendments. The court has to show not only the value of the property but that the respondent does not have any obvious legitimate income.

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Moved by

[Lord Faulks]

11: Clause 1, page 3, line 5, at end insert—
“(c) the respondent has a financial interest in land or property in England and Wales which is registered in the name of an overseas company.”

[Lord Faulks]

My Lords, a walk around the centre of London after dark reveals that large parts of the city are wholly unilluminated. Why are the lights off? Is it that most Londoners are getting an early night? I think not. The fact is that many high-end properties are unoccupied and are used as investment vehicles by those who regard London as a safe haven for their money, often unlawfully acquired. In September 2016 the Mayor of London, Sadiq Khan, launched an inquiry into the impact of foreign investment flooding into London’s housing market. Lest my submission be considered too London-centric—I declare an interest as a resident of central London—such investment has also been going on in Manchester, Liverpool and Birmingham, among other cities. Mayor Khan said on launching the inquiry that we all need to be reassured that dirty money is not flooding into the property market.

Property that is the subject of a UWO does not have to be real property, but real property has the advantage of being less easy to dispose of informally and quickly. Your Lordships have already heard me and others discuss the importance of tightening up the provisions in relation to compliance with UWOs to deal with the potential for evading the orders. In this context, I am particularly concerned about property owned by overseas companies. On 17 March 2016, the Land Registry published the fact that it had registered 100,000 freehold and leasehold properties in the name of overseas companies. I should make it clear that the list excludes private individuals, UK companies, UK companies with an overseas address and charities. Noble Lords may be aware that unlike in most countries, there are absolutely no restrictions on foreign ownership of residential property in the United Kingdom.

Do we really think that all this property is being acquired with clean money? Are solicitors and agents complying with anti-money laundering provisions? I know that tightening up those provisions is the subject of later amendments. I read last week in the Times that only five people have been convicted of money laundering in the 10 years since the legislation was apparently tightened. The Law Society is on record as saying:

“Compliance with money laundering obligations is one of the greatest challenges for solicitors in the UK today”.


What about the obligations of estate agents? Of these properties owned by overseas companies, how many are polluted by dirty money? I mentioned at Second Reading the envelope tax. This was a reference to the super-rich being prepared to pay something like £218,000 a year in tax rather than identify who owns property. I asked the Minister whether the Government were happy with this state of affairs. Her answer was that UWOs will,

“make it easier for our law enforcement agencies to investigate money laundering in the London property market and recover the proceeds of crime”.—[Official Report, 9/3/17; col. 1519.]

She also mentioned the importance of ensuring that lawyers, estate agents and other professionals comply with their money laundering obligations. Apparently the Treasury will in due course publish its findings in relation to the supervisory regime.

The noble Lord, Lord Rooker, referred to his kleptocracy tour in his speech at Second Reading, while the noble Baroness, Lady Kramer, cited the report of the All-Party Parliamentary Group on Anti-Corruption, which takes the view that more than £4 billion-worth of properties have been bought with suspicious wealth. My noble friend Lord Patten endorsed all the comments that were made at Second Reading about the devastating effect of dirty money on the occupancy of London properties. The Minister said that,

“the Government intend to publish a call for evidence, seeking views on a new register of overseas companies that own property in the UK”.

She said that the Government,

“hope to do so shortly and will then introduce the relevant legislation when parliamentary time allows”.—[Official Report, 9/3/17; col. 1519.]

As I have explained in relation to other amendments, I do not think that parliamentary time is likely to be available in the foreseeable future, so we must seize the legislative opportunity as it now presents itself.

London is in danger of becoming a safe haven for dirty money. This is partly because of our reputation for maintaining the rule of law and because we are generally regarded as a good home for foreign investment. I certainly would not want to deter investment, particularly in the uncertain economic times that lie ahead, but I deprecate this assault on the London property market, the effect it is having on Londoners and how it is adding to the pressure that exists in the London property market, which falls particularly harshly on those seeking to acquire their first properties. We should do everything we can to make these provisions effective.

The legislation currently provides that the court must be satisfied that a respondent is a PEP, has been involved in serious crime, or that there is at least a reasonable suspicion of involvement. The amendment in my name and that of the noble Lord, Lord Anderson of Swansea, who unfortunately is unwell, would add to that,

“the respondent has a financial interest in land or property in England and Wales … registered in the name of an overseas company”.

This would make it easier for the agencies to obtain a UWO in circumstances where they do not have much evidence of involvement in serious crime or the respondent is not a PEP, but they have suspicions about the source of money used in the acquisition of property. My noble friend Lord Leigh referred to his familiarity with questions being posed by the Revenue. The High Court would still have to be satisfied that there are reasonable grounds for suspecting that the respondent’s lawfully obtained income would have been insufficient, but this should not be too high a bar to surmount.

Would this create any unfairness? I do not see why. If the property has been acquired with honest money, an explanation could be provided that would comply with the order. I ask the Minister: how, if at all, will UWOs be used to get at the problem that has been identified by me and a number of other noble Lords? Will she explain why she objects, if she does, to this amendment, or at the very least explain what improvements will be made to deal with this very real problem? Her answer may be partially to rely on the very recently proposed government Amendment 21. I am not sure that that does the trick. This a very important point and a real opportunity. I beg to move.

[Lord Rooker (Lab)]

My Lords, I had not intended to speak on this amendment, but it gives me the opportunity to raise the point that I wanted to raise today anyway following Second Reading. I agree with everything that the noble Lord just said. From memory, I think the figure is that 9.3% of the properties in Westminster are owned by overseas companies from jurisdictions that maintain secrecy. That is a huge percentage of the properties in one local authority area.

The issue I want to raise is that the money comes into this country from somewhere. Basically, it must come through the banks. At Second Reading I made the point:

“As far as I know, no bank has ever been prosecuted in the UK for laundering corrupt wealth from another country”.—[Official Report, 9/3/17; col. 1487.]


The Minister responded by saying:

“The noble Lord, Lord Rooker, talked about fines on banks in the UK. He raised the issue of banks in the UK not being penalised for laundering funds from overseas. I have a huge list of fines, which I will not read out today, because it would take up valuable time in responding … I will send it to him … and place a copy in the Library”.—[Official Report, 9/3/17; cols. 1520-21.]


When the noble Baroness wrote to Members who had participated at Second Reading, she neglected to mention anything about that exchange, so I contacted her office just to remind them. I was sent a letter, which I presume others would have had, dated 21 March. Attached to it were details of some of the most significant fines imposed in recent years on financial institutions with a presence in the UK. They related to tax fraud, money laundering and financial crimes. The vast pile of papers that the Minister said she had at Second Reading amounts to four sheets, but only three banks in the UK are mentioned: Barclays, Deutsche Bank and Sonali. Not one of them has been prosecuted for money laundering. They have had fines levied on them by the Financial Conduct Authority, but not one has been found guilty of money laundering.

--- Later in debate ---

[Baroness Williams of Trafford]

I hope the noble Lord does not think that I have ever tried to mislead the House. I talked about fines, but where a bank was found to have committed a criminal offence, a prosecution could be undertaken. Investigations and prosecutions are a matter for law enforcement agencies and prosecutors. I take the point that he is making, but this is open to law enforcement. Last month, a £163 million fine was issued to Deutsche Bank, and I would suggest that hitting them where it hurts probably involves hitting them in their pockets. It is open to law enforcement to prosecute banks, but I take the noble Lord’s point in that, today, I know of no prosecutions of banks. But the fines regime is in place.

I am very grateful for the amendment but hope that my noble friend has been assured that there is not a gap in existing powers that would justify extending UWOs in the way proposed. I hope he will feel content to withdraw his amendment.

[Lord Faulks]

My Lords, I am grateful to all noble Lords who took part in the debate and for the general support for what lay behind this amendment, which is a widespread concern about the London property market in particular and the degree to which it is clear that corrupt money has entered it. The noble and learned Lord, Lord Brown, made a number of important points—particularly that I am not learned. He was also correct to say that the word “or” was missing from the amendment, and made some other drafting suggestions. He was also right to suggest that this is not a panacea, but it was not designed to be. The amendment was intended to provoke the sort of debate we have had and to ask the Government whether they are truly satisfied that the evil we have identified is being answered, and in particular whether anything in the Bill can be used to deal with the problem.

My noble friend the Minister has said that the provision covers those who are PEPs within the definition of the Bill or those suspected of serious criminality. But what, I ask, about those who may not easily be defined as being “suspected of serious criminality” but are in fact gangsters? What of those who have high office but do not come within the definition of PEPs? With many of the properties, it will be difficult to determine precisely who owns them. All that we ask for is an unexplained wealth order—it is not a criminal offence; it is a civil procedure which results, if there is no adequate explanation, in civil recovery. That, I suggest, will help deter the incursion of corrupt money. The provisions contain safeguards on self-incrimination and compensation. Let us not be too pusillanimous about this. My noble friend said that she had received my request for information about the envelope tax at Second Reading and she has again, but she has not yet replied. On the face of it, that is in stark contradiction to the policy that underlies the UWOs.

We will miss a legislative opportunity if we do not do something through the Bill to sort out the problem we have identified. I hope that my noble friend will speak to her officials and be satisfied that there is no gap, no lacuna, in this approach.

[Lord Rooker]

Perhaps through the noble Lord, as the Minister talks to her officials, I can invite her to watch two films: “From Russia with Cash” and “From Ukraine with Cash”. They are on the same CD. If she does not have access to them, I will provide her with a copy. They spell out that there is a serious problem.

[Lord Faulks]

I am very grateful for that intervention, which supports the point that these effective owners may not be PEPs within the definition and it may be difficult to pinpoint serious criminality. We must do something about this. I look to the Minister to provide a better solution than exists at the moment. If not, we will be letting the country down and letting Londoners down, particularly young, aspirant Londoners. However, at this stage, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

--- Later in debate ---

[Lord Phillips of Worth Matravers]

My Lords, I support this amendment. I suggest that whistleblowers need to be both protected and rewarded in order to encourage them. The Mauritian legislation of which I spoke earlier makes provision for rewards to be paid to whistleblowers whose information leads to the confiscation of unexplained wealth. Indeed, the board that I chair has the function of making such awards. In my view this is a salutary provision as one of the weapons in the fight against crime and corruption. Therefore, I support in principle this amendment, but as a starting point because I suggest that it is a principle that should be applied much more widely in the case of action taken that leads to the recovery of the proceeds of crime.

[Lord Faulks]

My Lords, I am sure the whole House shares the concern that the noble Baroness has expressed about whistleblowing and its importance generally. However, I respectfully submit that this amendment is a pretty substantial response to that. It seeks to set up a whole department—the office of the whistleblower. I accept that this is something of a probing amendment and therefore bears the standard for what the noble Baroness may hope to come, but it is little short of a job-creation scheme. The proposed functions of the office of the whistleblower are extensive and it would have powers. Of course, if an office is created, those who are given that office will appoint others to work for them and powers will be exercised. If they are not exercised it would be suggested that they were not doing their job. Before we know where we are, we will have a substantial bureaucracy that runs the risk of having the same problems that exist in other areas of bureaucratic supervision of financial institutions.

The question of incentives is interesting. I accept that that they have had some success in the United States and, as we heard from the noble and learned Lord, in Mauritius too. But as to the question of “retaliatory action against whistleblowers”, a whistleblower has remedies in civil law in any event. When she comes to respond to the Minister, will the noble Baroness give us some idea what is meant by the provision with regard to “retaliatory action against whistleblowers”? The criminal law exists and civil remedies exist for employees and I wonder whether that is not inviting something rather too much. Of course, she rightly acknowledges that whistleblowers are not entirely based in the financial institutions; they exist in the NHS and have recently been considered by Sir Robert Francis and in all other government departments.

The real question is whether the establishment of this no doubt expensive bureaucracy will deter and whether it will result in the detection of what would otherwise not have been detected. While I applaud the general thrust of the amendment, I wonder whether it is something of an overreaction.

[Lord Kennedy of Southwark]

My Lords, the noble Baroness, Lady Kramer, raised the issue of whistleblowing in her contribution at Second Reading and now proposes this new clause today with the noble Baroness, Lady Hamwee. As we have heard, it would establish an office of the whistleblower. The purpose would be to offer much-needed protection to whistleblowers who expose criminality, corruption, fraud and other illegal activity. The price that whistleblowers often pay for alerting the authorities to illegal and criminal activity is to lose their jobs and have their careers ruined and destroyed.

The noble Baroness is right to highlight that we need to do more to offer protection and compensation to people who come forward and alert the authorities to the illegal activity. The noble and learned Lord, Lord Phillips, supported action and I agree. However, I agree with the noble Lord, Lord Faulks, that setting up an office may not be the right way to go about that. What is definitely needed is further protection in statute and regulation. It may not need an office to be established. I will be interested to hear the response from the noble Baroness, Lady Williams of Trafford, to this amendment. I entirely accept that it is a probing amendment and I think that we should take the opportunity that this Bill affords us to do something to address the issue of whistleblowers and the precarious position that they can find themselves in, which the noble Baroness, Lady Kramer, has highlighted to the House today. I accept that whistleblowing goes across a variety of sectors, but we are dealing with the financial services sector and this would be a good place to start.

EU Court of Justice Ruling: Religious Signs

Lord Faulks Excerpts

Wednesday 15th March 2017 Lords Chamber

[Baroness Williams of Trafford]

The noble Baroness is right. As I pointed out in my Statement and in responding to the noble Baroness, Lady Burt, we shall be working with the ECHR on updating our guidance for employers on dealing with religion or belief in the workplace. I see no reason why our country’s stance should change in the light of this judgment.

[Lord Faulks (Con)]

My Lords, these are complicated matters, but does the Minister agree that they are not made any easier by judgments from the European courts? Surely our Parliament and our courts are perfectly capable of deciding these things. As it is, we have the European Court of Justice or CJEU, of which we shall no longer be part in two years’ time, and we have the ECHR, which, frankly, ought to be granting us a margin of appreciation so that we can have clarity for employers and clarity for employees.

[Baroness Williams of Trafford]

My noble friend makes a good point, because from the discussions in this House this afternoon we can see the confusion in which such judgments result and some of the fears that they create. In a short time—a matter of a couple of years—we shall have control of our own courts.

Criminal Finances Bill

Lord Faulks Excerpts

2nd reading (Hansard): House of Lords
Thursday 9th March 2017 Lords Chamber

[Lord Faulks (Con)]

My Lords, the Bill is largely a legislative reflection of the Action Plan for Anti-Money Laundering and Counter-Terrorist Finances published jointly by the Home Office and HM Treasury in April 2016. The objectives of both the plan and the Bill are to be welcomed. This country has a remarkable reputation for the rule of law, the independence of the judiciary and the integrity of our law enforcement agencies, but we face significant challenges from money laundering, financing of terrorism and major fraud. At a time of significant change in our international role, it is vital that we maintain this reputation. To do this we need to work with international groups and with the private sector. We should also ensure that our enforcement agencies have the resources they need. The Bill should help considerably, although legislation on its own will not be enough.

The National Crime Agency estimates that serious and organised crime costs the United Kingdom at least £24 billion annually and that money laundering could be taking place at a scale between £36 billion and £90 billion per annum, as the noble Lord, Lord Rosser, suggested. For understandable reasons these latter figures are rather vague.

The Bill was broadly welcomed when it was introduced and debated in the House of Commons. Some useful amendments expanding the definition of cash were made and, as we have heard, the Magnitsky amendment. The definition of cash to which the amendments referred was that in the Proceeds of Crime Act 2002—I have always pronounced the acronym “pokka” rather than “poker”; we may get into the same debate that they had in the Supreme Court about the pronunciation of “De Keyser”.

The amendment was introduced by a cross-party group of Back-Bench MPs led by my former ministerial colleague, Dominic Raab. The new provisions, although not as robust as those who put forward the amendment would have liked, nevertheless provided that the High Court could make an order to freeze the UK assets of individuals implicated in gross human rights abuses. A number of MPs emphasised that it was important that the new clause be actually used. The Minister in the Commons, Ben Wallace MP, agreed that the Government would collect data on the exercise of the new clause. I am glad about that confirmation, since it will enable Parliament to see whether the clause does not remain simply an aspiration.

UWOs mean that an individual or company will have to explain the origin of the assets that appear to be disproportionate to their known income and if they are suspected of involvement in or association with serious criminality. There are safeguards for this power and the decision to make an order will be made by a High Court judge. The orders have been widely used in Australia, among other jurisdictions, and are broadly considered to have been successful, although there was some pushback from the courts there where it was felt they had been used as a trigger response by enforcement agencies. It seems to me, however, that there are sufficient safeguards to ensure that the power is not resorted to in lieu of normal investigations. I understand that there will be a statutory code of practice, about which the House will no doubt want to hear.

In a sense, because the burden of proof will be on the individual or company to explain the origin of the assets, there will be very little that can be done to conceal matters, but one should not underestimate the ingenuity of lawyers who may be involved, at considerable expense, in representing wealthy individuals and companies that may be the subject of UWOs. I have seen the helpful Home Office flowchart indicating how the UWOs will work in practice, and my one concern is what happens if the subject responds with some sort of explanation but not much of one. It is suggested that the law enforcement agency will then decide whether the issue has been resolved or further investigation is required. I can imagine there may be something of a stonewall response; is it anticipated that the agencies will go back to court, or how will matters proceed generally?

Criticism of the Government was made in the House of Commons—and by the noble Lord, Lord Rosser, here—about the absence in the Bill of provisions covering overseas territories and Crown dependencies. I should declare an interest, having been the Minister at the Ministry of Justice with responsibility for the constitutional relationship between the United Kingdom and the Crown dependencies. I know that Jersey, Guernsey and the Isle of Man have been anxious to work effectively with the United Kingdom to assist in the international efforts to increase corporate transparency and to tackle tax evasion and corruption. All three have agreed to hold company beneficial ownership information in central electronic registers, or similarly effective systems, with near real-time access for UK law enforcement. Jersey has a non-public central register, accessible to UK law enforcement on request. Both Guernsey and the Isle of Man have agreed to establish a central register or similarly effective system, and work is under way to ensure implementation. In the case of the Isle of Man, legislation will be introduced in 2017; as to Guernsey, work is under way to ensure implementation by 2018.

The cost of taking measures to obtain the proceeds of crime from individuals and companies, or indeed to prosecute for fraud or related offences, can be very considerable. It is necessary sometimes to be pragmatic about these things and in this context I pay tribute to the Government for accepting the use of deferred prosecution agreements. These were introduced following an initiative by the former Solicitor-General, Sir Edward Garnier QC, and have been used effectively to obtain significant sums of money and to avoid the costs of prosecution. Most recently, the SFO entered into a DPA with Rolls-Royce, which was approved by Sir Brian Leveson, the President of the Queen’s Bench Division. The total sum in the UK settlement was £497.25 million plus interest and the SFO’s costs of £13 million.

We will no doubt discuss in Committee the provisions about terrorist financing, disclosure orders and suspicious activity reports. I accept the point made by the noble Lord, Lord Rosser, about not being obsessed by de minimis provisions in SARs. They will assist in the overall strategy that lies behind the Bill. Most of the changes seem sensible.

I cannot sit down before mentioning a story published in the Observer last Sunday about the enormous price the super-rich pay to keep their privacy. It appears that they are prepared to pay some £218,000 a year in tax rather than declare who owns the £20 million-plus megamansions in which they live—or do not live. The Government introduced this so-called envelope tax. The idea, presumably, was to crack down on dirty money. It has certainly brought in tax. The story suggests that tax receipts on all envelope properties worth more than £1 million came in at £178 million. Privacy is one thing, but this sort of tax deal seems contrary to the underlying philosophy which informs the Government’s approach, or certainly should. There may be respectable reasons for privacy, but equally, there may be some very far from respectable reasons. As many noble Lords know, large parts of the most expensive areas of central London are dark at night, and I suspect that many of these properties are owned by rich international financiers, some of whom will not have obtained their money honestly. Are the Government happy with this state of affairs? Perhaps the Minister can tell the House.

With some difficulty, and with the invaluable assistance of the Printed Paper Office, I managed to obtain a revised impact assessment in relation to UWOs. It suggested that perhaps 20 UWOs a year might be obtained. This was based on practitioners’ experience, presumably with freezing orders. This seems a rather modest ambition. Are UWOs going to be considered as simply part of the investigative toolkit, as the Minister seemed to suggest, or are they likely to be the basis of a major initiative? There are clearly opportunities, as I have indicated, but the agencies may have to be ready for expensive legal tactics to frustrate them.

I hope that some modest improvements in the Bill may be effected. The Minister always displays a willingness to listen, and she can count on my support in taking this Bill through your Lordships’ House. However, I ask all those who may be contemplating amendments to bear in mind what the noble and learned Lord, Lord Brown, said about the complexity that these provisions have previously involved and the risk that further elaboration may be required by the courts, so I hope amendments can be kept as simple as possible.

I hope that the legislative ambitions are reflected in an increase in the recovery of assets from criminals and in the enhancement of our reputation both nationally and internationally.

Policing and Crime Bill

Lord Faulks Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will make some brief observations. When the Government come to consider the recommendations concerning funding at inquests, I hope they will agree to the concept of parity of funding, for all the reasons that have been ventilated on previous occasions. But I repeat what I have said to your Lordships’ House before about the triggering mechanism: I do not believe that the police and crime commissioner should be the trigger for that. The coroner should be the trigger for it. There are three very brief reasons for saying that.

First, the coroner is much better placed to form a view as to the relevance and importance of the representation in question. I do not see that the police and crime commissioner would necessarily have access to the relevant information. Secondly and differently, in some inquests, where the conduct of the police or, indeed, the police and crime commissioner could itself be in question, there is a danger of a conflict of interests. Thirdly, sometimes the integrity of the decision of the commissioner will be in question. What happens when the commissioner is facing an election in short order? He or she may well make a decision influenced by the electoral consequences of that decision. All these things seem to suggest very powerfully that the trigger should be the decision of the coroner, not of the police and crime commissioner.

[Lord Faulks (Con)]

My Lords, the noble Lord, Lord Rosser, seemed to suggest that the Government are using the Bishop Jones report as some sort of excuse to not respond to what is suggested by the amendment. Of course, I will hear what my noble friend has to say, but as I understand the position, the question is being considered very seriously by the Government but it would be rather strange not to consider a report of this magnitude dealing with the best-known example of a series of inquests with improved legal representation before coming to the conclusion, to which they may or may not come, that a response to the amendment is appropriate.

[Baroness Williams of Trafford]

I thank noble Lords who have made points on this Motion. My noble friend Lord Faulks is absolutely right that the whole point of establishing an inquiry or a review—one of such magnitude on an event that will be ever seared on people’s minds; that is, the horrors of Hillsborough—is to learn the lessons of that event so that they can be applied to similar cases in the future. The noble Lord, Lord Laming, is not in the Chamber, but I was reflecting on the lessons that local authorities learned from the terrible death of Victoria Climbié at the hands of her relatives. These reviews always have that wider learning that can be applied in the future. The terms of reference do not require Bishop Jones to look wider but the learning from the review will have wider application.

I understand the point made by my noble friend Lord Hailsham about the coroner. We talked at length both in Committee and on Report about an independent assessment of these matters. Of course, for me to respond about whether or not that is the right way would pre-empt the review so I will not go there. But I hope that noble Lords find those comments helpful.

Policing and Crime Bill

Lord Faulks Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

[Lord Faulks (Con)]

My Lords, I will not delay the House long, either. We have rightly concentrated on the rights of the innocent; they are fundamental to our system. But I will address your Lordships very briefly on the position of victims. Victims’ groups complain, not without justification, that in the past they have not always been taken seriously by the police or prosecuting authorities. Victims need to be encouraged to come forward. We should not underestimate the courage it takes to report offences of the sort we are concerned with to the police. You may not be believed. You may have to face—so you think—the ordeal of being cross-examined by men in wigs who suggest that you have lied. You may feel very alone, particularly if you have been abused by someone in authority.

Noble Lords will have seen the footballers coming forward many years after the event, and the courage that it took and the incredible upset that it caused them in a macho culture to admit what had happened so many years ago. I take the example given by the noble Lord, Lord Carlile, of someone in a care home. They come to the police many years later. Their evidence is the first of any sort of being abused in a care home by somebody who runs the care home. After they have given their account, the man who is running the care home denies vociferously that he abused this character. There is a suggestion that he may have come forward for financial motive. But what if others come forward? The first complainant may feel that he cannot go through with the matter at all unless some of the other people, whom he knows very well have been abused, do so.

In Committee, I raised the point with the noble Lord, Lord Paddick, that I was concerned that his amendment might result in the police charging rather earlier than they would otherwise have done because they want to flush out potential corroborative witnesses; and that that might be inappropriate. I did not suggest there was any lack of bona fides on the part of the police; this is a very difficult decision to make. However, I suggest that there is that real risk, even with CPS involvement. It is most important that people are encouraged to come forward to give evidence in appropriate cases.

Of course, safeguards have been mentioned, whether in the magistrates’ court or the High Court, but this is a police operational matter. Despite judges’ ability to deal with many difficult things, it is not the right case for them to consider. I suggest that if there is a need for a tightening of the guidelines or for further offences that deal with police behaviour, so be it. But, focusing on the victim, I am for the moment not satisfied that there needs to be a change in the law.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other.

I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally.

A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence.

The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge.

I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee.

Under this amendment a judge is entitled to say that he is,

“satisfied that it is in the interests of justice to remove or vary a restriction provided for”,

and to,

“direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require”.

The amendment further states:

“In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person”.

I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard.

It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.

Independent Inquiry into Child Sexual Abuse

Lord Faulks Excerpts

Monday 21st November 2016 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord makes a very good point. On the current chairman’s intentions, she has said she will operate with pace but also with clarity. The longer time goes on, the harder these things become. We will not press the inquiry to a timetable, but the chairman has laid out quite clearly that she intends to do it with clarity and pace.

[Lord Faulks (Con)]

My Lords, I wonder whether my noble friend will appreciate a suggestion pursuant to the internal review as to how the inquiry might be somewhat more focused. Rather than deciding who abused who when, which would involve a trial of some sort, would it not be better to focus on the complaints system so that there is an examination of when a complaint was made, why it was not heard, and, if a complaint was not made, why it was not made so that we can learn about the systems that will protect children in the future? The ambit of that would be much smaller and it should be possible to report much more closely. In asking that question, I declare an interest as being instructed on behalf of the estate of Lord Janner.

[Baroness Williams of Trafford]

My noble friend demonstrates that there are a number of views on how the inquiry should be conducted and just what focus it should take. I totally bow to his rich experience in this area, but I come back to the point that the Government are very clear that this is an independent inquiry. Therefore, the way it is conducted is entirely a matter for the inquiry itself.

Policing and Crime Bill

Lord Faulks Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Baroness Grender (LD)]

My Lords, I support the amendments in this group. I am delighted to see the noble Lord, Lord Faulks, in his place, as the Minister who announced the changes in the legislation when some of us were campaigning to get it transformed. It was a very proud moment when he announced it—quite late in the evening, as I recall—and we had watching in the Gallery a whole row of ladies, plus one man, who had broken their anonymity and shared with us the appalling experiences that each of them had been through as a result of revenge porn.

I am very proud that, even with the limited amendments that we managed to get through to the Criminal Justice and Courts Act 2015, we are now as a nation a little further ahead than most others in trying to deal with a very difficult issue. But there are so many more who are not caught in the current legislation. While in 2015-16 we know that 206 individuals were prosecuted under the new law, a survey by “Good Morning Britain” revealed that police forces in England and Wales had dealt with a total of 2,130 cases. There is quite a difference between these numbers in terms of what is going forward to prosecution, and we have already heard what some of the difficulties in that area are likely to be.

It is also critical that we as parliamentarians stay ahead of the speed of change in attitudes and behaviour that smartphones and social media bring in their wake. In the US, a McAfee study revealed that 36% of people had sent or intended to send an intimate picture. As legislators, we have to understand that, whatever our attitude to and opinion of that, we need to create laws that foresee the way that society is changing. These amendments therefore necessarily go further and we must credit the Women’s Equality Party for its part in doing some of the drafting, which resulted in us trying to amend this in the other place.

I particularly want to address the issue of anonymity. When we ran this campaign a year ago, some women stepped forward and were prepared to be named when they recounted what they had gone through. But part of the problem was that many victims were too scared to put their names out there. This happened to one lady whom we dealt with—because her name was out there and she was campaigning against this, it ensured that she got far more coverage on some of the websites that she was deliberately trying to avoid. It has now been accepted in current legislation by this Government that victims of forced marriage are given that anonymity; I see this as being a very similar area.

I will conclude here. I think that we are aware that in this area there are issues of suicide, self-harm and damaged reputation. As we talk now there are hundreds, perhaps thousands, of young men and women who are sharing intimate images that, frankly, will have a devastating impact on their future. It is up to us, through some of these amendments, to be ahead of the law at every stage.

[Lord Faulks (Con)]

My Lords, I am most grateful to the noble Baroness, Lady Grender, for mentioning my small part in the acceptance of revenge porn as part of the list of criminal offences that the Government accepted ought to enter the calendar of criminal offences. The Government looked carefully at this and, in many ways, some of the conduct that was embraced within so-called revenge porn was probably covered by existing criminal offences. However, it was accepted that such was the need to identify specifically this sort of behaviour that it was appropriate to include it as part of the Criminal Justice and Courts Act 2015.

While I entirely accept what lies behind these amendments and the evil that they are directed against, I think that one has to bear in mind that we have had only a very short time for this legislation to bed down. I am glad that there have been prosecutions; it appears that there was a need and the prosecuting authorities have acted accordingly. But I am not sure that I am, at the moment, satisfied that there is a need to go further in terms of definition. For example, Amendment 217 talks about threats to disclose. The Minister will no doubt correct me, but all these areas are probably covered by existing criminal law—for example, blackmail, threatening behaviour, theft or other offences. A threat may be something substantial but it may be something very trivial and we do not want to have relatively trivial matters embraced in what is often a very serious offence.

As to Amendment 218, of course, on the face of it, it seems attractive that there should be some compensation. I am a little concerned, however, about a judge in a criminal case having to assess anxiety and the degree of anxiety in terms of the appropriate quantum of damages. How is he or she going to do that? Will there be evidence from somebody expressing how affected they were, and the degree of the affection—whether, for example, it caused them to go to a doctor? There is a slight danger that we could lose sight of what is really important—a criminal offence, rather than whether there should be compensation.

Quite apart from the questions of appeal raised by my noble friend Lord Hailsham, there is some work to be done on this. On the question of appeal, surely there would be an appeal from the magistrates’ court to the Crown Court as of right, and to the court of criminal appeal in appropriate, and possibly restrictive, circumstances. It may be that in due course there would be some informal tariff, perhaps involving the Sentencing Council—but I would not like it to be thought that the criminal prosecution of matters should be used as some proxy for obtaining compensation.

[Lord Rosser (Lab)]

My Lords, I will be brief. These amendments cover a serious and disturbing issue that has received considerable publicity in recent months. The purpose of the amendments, as I understand it, is to tighten and extend the reach and scope of the law in respect of disclosure of private sexual photographs and films without consent and with malicious intent. They include new clauses on compensation and anonymity for victims. At this stage we will listen with interest to the Government’s response, including the extent to which they consider that the law as it stands is sufficient—or, alternatively, needed—to deal with any or all of the issues addressed in the amendments.

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[Lord Faulks]

My Lords, we know that this is an issue on which it is very difficult to find a satisfactory compromise. I am also conscious of not taking drafting points which might serve to divert us from the central issue. However, I am a bit concerned about this proviso. I understand that it is a sensible idea to have one, so that a judge can be satisfied that it is in the public interest to remove the restriction in respect of a person. If that is to be meaningful, will the noble Lord, Lord Paddick, explain to the Committee in what circumstances he envisages an application being made and who will make it? How is the public interest going to be defined? Whose interest is the public interest? Reference was made to a case where there was corroborating or forensic evidence being circumstances in which a judge would be satisfied. However, many of these claims may concern young people who did not know they could complain. Many years have gone past; there is no forensic evidence. As far as they know, there may be no corroborating evidence. Are they to come within that exception? How is the judge to assess this? If this is to be a meaningful exception to change the law, we need to set out with some precision the sorts of factors that ought to be taken into account.

[Lord Beith (LD)]

My Lords, I have great respect for both my noble friend Lord Paddick and the noble Lord, Lord Pannick. On this occasion, it is with the former, rather than the latter, that I agree, although one takes on either of them with a measure of reluctance and trepidation. I was partly struck to say something in this debate when the noble Lord, Lord Pannick, asserted that to impose obstacles to convicting the guilty is a very high cost. We actually pay this cost throughout our criminal justice system. It would be a lot easier to convict some people that we and the police think are guilty if we did not have to prove that they actually are, to the satisfaction of a jury, or if various procedures, such as disclosure, did not have to operate—the prosecution must disclose any evidence it comes across that might support the innocence of the accused. Many of these things make it more difficult to convict people, but they are part of the protection for the innocent and uphold the principle that someone has to be proven to have committed an offence.

Much of the argument about whether the kind of prohibition which my noble friend has advanced—and I agree this should be done—revolves around whether people who have had similar experiences of the accused will come forward. There are several points at which, if this clause were in operation, they would still be able to do so: between charge and trial or between the various stages of a trial process, for example between committal and trial. I am not an expert in this, but it appears that in most of the cases where this has happened it has been at that stage, rather than at the stage of initial accusation, except perhaps in some of the most notorious cases, which have been referred to this afternoon, where injustice has been done by publicity.

As the noble Lord, Lord Faulks, correctly pointed out, the proviso has to be precisely worded. The point of the proviso is that anonymity might be broken if the police and prosecuting authority consider that they would like to go to trial and the evidence is not quite strong enough for them to do so but there is some knowledge that it is likely that people will come forward. A case where there is substantial evidence that does not quite meet the Crown Prosecution Service’s normal criteria, yet there is reason to believe that there may be others, might be just the circumstances in which an earlier breach of anonymity would be justified.

The weakest point put forward by the noble Lord, Lord Pannick, was the one about gossip and speculation. The whole process is attended by the risk of these. If the name of an accused person cannot be disclosed prior to charge, there may be those who seek to gossip about it. That is something we should try to deal with in whatever way we can. But of course the same applies to the anonymity of the victim. Most of us have read newspaper stories which speculate and hint at who the victim might be in such a case. We cannot use that as a reason not to afford protection to the victim, and we should not use it as a reason not to afford protection to the accused at a stage in the process when it is unreasonable to visit a punishment more severe than applies in many other criminal offences, arising out of the publicity and shame and loss of office and other consequences that have attended some of the cases that we have heard about.

The noble Lord, Lord Pannick, produced several convincing examples of drafting that might be improved in this Bill, but that is what it was—the principle needs to be addressed, and it is not adequately satisfied by guidelines. Even though the better the guidelines the better the situation, guidelines fall short of the value of a firm principle enshrined in law, which the criminal justice system can itself uphold.

--- Later in debate ---

[Lord Paddick]

My Lords, I am very grateful to the Minister and to all noble Lords who have participated in this debate. I am particularly grateful to the noble Lord, Lord Campbell-Savours, for supporting this amendment.

I have to make it clear to the noble Earl, Lord Attlee, that this amendment is not an attack on the Metropolitan Police. It operates in what some might find a very strange way but there are reasons the commissioner is distanced from the operational decisions made by his officers, although I will not go into them now. The police have always had the problem that when things go wrong they are held back from apologising by their own lawyers, for reasons which will be apparent to the lawyers in the Chamber.

On what the noble Lord, Lord Pannick, said, I agree with my noble friends that these are drafting issues. I said that the reason for this amendment was to allow a debate. The wording is actually a copy and paste of the protections provided to the victims of sexual offences; no doubt many of the noble Lord’s criticisms could therefore be directed at the current legislation. I will not go over what he said as criticisms have been made by other noble Lords and I do not want to carry on in that vein.

I am grateful to the noble Viscount, Lord Hailsham, for saying that, in principle, he felt this was correct. It is interesting that he said that the unauthorised disclosure of information by police officers should be addressed, particularly in light of the fact that the Government want to put a stop to part two of the Leveson inquiry, which is supposed to look at the relationship between the police and the press. The Government seem determined not to allow it to go ahead so maybe we should sidestep it and include this issue in the amendment, which we will no doubt return to on Report.

In response to the noble Lord, Lord Faulks, I gave an exact example of an exceptional circumstance where such an exemption might take place and I do not want to detain the Committee by repeating it. However, perhaps “in the interests of justice” might be a better phrase to use than “in the public interest”.

[Lord Faulks]

I am grateful to the noble Lord for giving way. Perhaps he could help the Committee with this: the amendment would change the moment when anonymity is lost from arrest to charge. As the decision an officer takes about whether to charge is a very difficult one, does the noble Lord not think that there might be a temptation on the part of the police to charge rather earlier than they should—or at all—because then anonymity would be lost and they might be able to get more evidence? That would be a distortion of proper police practice.

[Lord Paddick]

I am quite surprised that that argument is being put forward. The noble Lord will know that in serious cases such as sexual offences the police cannot charge on their own account but have to have the agreement of the Crown Prosecution Service. I am sure that the noble Lord is not suggesting that the Crown Prosecution Service would be tempted to charge somebody in the absence of available evidence—the police would argue that the contrary is the case.

I take my life in my hands in addressing the comments of the noble and learned Lord, Lord Judge. In answer to his question, yes, it is important, and my noble friend Lord Marks has come up with the solution of including in the amendment the proposal that the identity of the accused should not be put into the public domain without his consent. That would cover the example that the noble and learned Lord gave of alibi witnesses being sought.

We are not saying that sexual offences are more serious than murder or terrorism. We are saying that there are many sexual offences and that particularly when it comes to historic offences there are questions of consent—perhaps—or there is no evidence at all and it is one person’s word against the other. That is not the case with murder or terrorism. Even when there is conspiracy to commit a terrorist act, evidence is gathered, whether, for example, from emails or through security services bugging rooms in which these people are operating. For those offences, there is some tangible evidence and that is what makes sexual offences different in a real sense. That is not to say that they are more serious—they might be so in terms of the reputational damage done to the individuals concerned but not in terms of the offence.

As a police officer who exercised the power of arrest on hundreds of occasions, I am not as confident that the level of reasonable cause to suspect that leads the police to arrest somebody is as high as the noble and learned Lord suggested. Yes, liberty is taken away, and somebody should not be deprived of their liberty without anybody knowing about it. However, if we put it into the amendment that the identity of the person should not be released without their consent, that issue would be addressed. Presumably it could also be given by the lawyer in particular circumstances.

I am very interested in what the noble Lord, Lord Lexden, said about the presumption of innocence and what he referred to as a cultural shift away from it. Everybody agrees that the presumption of innocence is at the heart of our criminal justice system, but, in practice, it is not being reflected in the minds of the public or the editors of certain newspapers. We have to deal with that reality and not some theoretical construct, and regrettably that is where we are going as far as the presumption of innocence is concerned in the minds of many members of the public.

The noble Lord, Lord Rosser, cited Stuart Hall as an example of a case in which more people came forward as a result of an arrest, but Stuart Hall was arrested and charged on the same day. In the case of Jimmy Savile, people did come forward to the police and were not believed; that was not because he was given anonymity but because there was something fundamentally wrong with the culture of the police at the time and they did not believe vulnerable victims. That is the issue that needs to be addressed.

We also have to ask ourselves about publicising cases which inevitably collapse. What impact does that have on victims of sexual offences who may be afraid that their genuine concerns will also result in a collapsed case? That is no doubt what is happening at the moment with the man who made these allegations and is known only as Nick. I am sure there are tabloid newspapers trying to identify that individual in order to give him negative publicity.

In response to the Minister, this is a difficult and sensitive issue. It is a question of balance and we have heard from noble Lords who have spoken in the debate that the majority feel that it is not right at the present time. The noble Baroness said that legislation is not the way forward at this time, but times have changed, as the noble Lord, Lord Lexden, said. People’s attitude towards those accused of sexual offences has changed so we need to look at this again, which is why I have brought forward the amendment and why we are having this discussion.

As I said in my opening remarks, everything needs to be done to encourage any victim of a sexual offence to come forward and report it to the police. Systems need to be in place within policing so that if allegations are made in different parts of the country against a long-distance lorry driver, for example, they are then matched up in order to reinforce the situation. But in saying that the College of Policing is doing a review when guidance is already in place which says that the presumption should be against identifying the accused, how on earth does that square, for example, with the way Sir Cliff Richard was treated by South Yorkshire Police? How does that follow College of Policing guidance, and how is a review of that guidance going to change police practice in the future?

On guidance to editors or the code of practice for the press, I have to question whether the noble Baroness reads the press and the attitude taken by its members and how a coach and horses is driven through the guidance to editors on an almost daily basis. This is why guidance is proven not to work. In marginal cases there may be some loss in terms of people not coming forward after someone has been arrested if no publicity is given, but people come forward predominantly when someone is charged and there is some certainty that a court case will happen, not at the point of arrest. That is why we will return to this on Report, but at this stage I beg leave to withdraw the amendment.

Independent Inquiry into Child Sexual Abuse

Lord Faulks Excerpts

Monday 17th October 2016 Lords Chamber

[Baroness Williams of Trafford]

My noble friend makes a very valid point about the victims, because they are at the heart of the inquiry. If she wishes to raise any specific concerns with me, I will certainly take them up. If she believes that there are deficiencies in funding for the inquiry and victim support, again, I would like her to raise them with me. But the underspend tells me that funding has not been the issue here, and Alexis Jay herself said that she wants the inquiry to proceed with clarity and pace so that the victims from the past can be heard and we can all learn lessons for the future.

[Lord Faulks (Con)]

My Lords, of course we all want the victims to be heard and for there to be, as the chair herself said, a thorough examination of these issues—but how is it possible to have a thorough examination that is fair to the victims and to those who may be incriminated by any finding within any reasonable timescale so that lessons can truly be learned before so much time has elapsed that we will simply be left to treat this as a matter of history?

[Baroness Williams of Trafford]

Alexis Jay said today that,

“the concerns that our terms of reference cannot be delivered are founded on an assumption that we must seek to replicate a traditional public inquiry in respect of each of the thousands of institutions that fall within our remit. We will do so for some, but we would never finish if we did it for all”.

I understand from that statement that the inquiry intends to look at some things in more depth than others. I hope that that results in a thorough inquiry, and I am sure that it will.

Independent Inquiry into Child Sexual Abuse

Lord Faulks Excerpts

Tuesday 13th September 2016 Lords Chamber

[Baroness Williams of Trafford]

My Lords, on the terms of reference being too wide, the previous chairman and the new chairman agreed that the terms of reference are right. It was not until she left that the former chairman, Justice Goddard, talked about the terms of reference being too broad. The inquiry will report on a regular basis, including a review in 2018.

[Lord Faulks (Con)]

My Lords, nobody would wish to preclude anybody bringing an action a long time after the event, and there are generous limitation periods, nor to prevent any prosecution for historic sexual or other abuse, but we need to learn lessons. Those of us who have experience of multiparty actions know that by choosing sample cases and sample institutions, there is a much greater possibility of concluding swiftly and enabling lessons to be learned within a reasonable timeframe.

[Baroness Williams of Trafford]

The noble Lord is absolutely right.