Clause 15
Fraud Bill [Lords]
5:45 pm
David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and Frome, Liberal Democrat)
We come now to the clauses on commencement. The amendments deal with the common law offence of conspiracy to defraud. We could have a long debate on the merits or otherwise of the offence, but that would not be a productive use of the Committee’s time because there is broad agreement on both sides that the common law offence should be abolished. That is the theoretical position of the Law Commission, which indicated that it was insupportable to retain the offence in law once the new statute was in place as a replacement. However, on Second Reading, the Minister said, quite properly, that although he wanted the common law offence to be abolished, he had to take note of the very strong reservations expressed in the consultation process, not only by the wider spectrum of consultees but specifically by parts of the judiciary, who together with some of the prosecuting authorities perceived the offence of conspiracy to defraud as being of value.
I slightly discount the opinions of prosecuting authorities, because it is always helpful to them to have the widest possible number of offences at their disposal to secure a conviction. For them to argue that they should have a wider spectrum, even in the context of new offences, is to some extent to be expected and is natural. However, it is not a position that we as a legislature should take if we are content that the full range of offences under the broad title of fraud is covered by the new law.
The offence of conspiracy to defraud has been widely criticised. As I said on Second Reading, one of my principal concerns about it is that, because it is a catch-all offence, it provides a very straightforward route by which the dual criminality requirements of an extradition application can be met. It is easy to establish that someone has, or could have, committed the offence in this country and that that person is therefore extraditable on a related fraud offence in another country. I instinctively feel that that is a dangerous position.
Despite having listened to the arguments on both sides and being firm in my conviction that the offence of conspiracy to defraud should be removed at the earliest opportunity, I accept the Minister’s comment that he would prefer a “suck it and see” approach in the short term, so that an assessment can be made of how the new offences bed down and of the pattern of prosecutions. He was kind enough to provide the draft guidance for prosecutors, which I think is extremely helpful.
We therefore have a choice. The first course of action open to us is to have a period of review in which the Solicitor-General or the Attorney-General carefully consider the prosecution patterns and whether there have been offences that have proved impossible to prosecute except under conspiracy to defraud, followed by introduction of new primary legislation to abolish the common law offence. Alternatively, at this stage and as a better process, we could incorporate into the Bill a provision for abolition, with safeguards for the Minister in the form of a delay in commencement, as I have suggested, or a sunset clause for the offence, as suggested in the amendment tabled by the hon. Member for Beaconsfield. Either approach ends at almost precisely the same result. The hon. Gentleman’s approach has an automaticity that mine does not—mine simply allows for a delay in commencement of the relevant part of the Bill until such time as the Minister introduces an Order in Council. To some extent mine is a more Government-friendly amendment than the hon. Gentleman’s in that his forces their hand, whereas mine invites them to consider the point. The merit of both courses is that we would not have to start from square one with a new Bill or find another suitable vehicle for the repeal or abolition of the conspiracy to defraud offence. Either way, the spade work is done, the legislation is on the statute book and someone only has to press the button to make it happen.
Given that the Solicitor-General has made it clear that he would prefer to abolish the offence in due course, it is unquestionably better in procedural terms to deal with it in the Bill now, rather than revisit the matter later. However many Home Office and Department for Constitutional Affairs Bills we have to deal with month in, month out and year in, year out, hon. Members can bet their lives that someone will say that none of them are appropriate for the specific purpose and there will be a substantial delay, which is avoidable and unnecessary. I commend my amendment and the new clause to the Committee.