Clause 15
Fraud Bill [Lords]
5:45 pm
Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)
The hon. Member for Somerton and Frome is quite right: new clauses 2 and 9 set out different ways to achieve the same thing. I prefer my amendment, because the implication in the hon. Gentleman’s is that although the common law offence of conspiracy is abolished, that can be delayed to enable a review to take place. I drafted my amendment on the basis that we should have a five-year period to see how the new Act operates, after which it would be incumbent on the Government, if they decided to keep the common law conspiracy to defraud offence, to get a resolution of both Houses of Parliament to do so. I was trying to reflect the debate on Second Reading. I was persuaded by the Solicitor-General and by rereading the Bill that in the next five years we may conclude that, despite best efforts, the common law offence of conspiracy to defraud must be retained. I am open-minded about that. The arguments about why it would be desirable to get rid of the offence—if that is possible—have been well rehearsed.
The common law offence is wide and has some unintended consequences, the worst of which is the possibility of an individual being prosecuted for conspiracy to commit an offence which, if he had acted on his own, would not amount to a substantive offence at all. That has always been the greatest criticism levelled against it. However, having said that I also accept—after conversations with others who have had greater use of the conspiracy offence—that it is and may remain an important tool in bringing prosecutions that cannot be covered by the offences that we have identified.
I am open to persuasion. I should like the common law conspiracy offence to go, but that might not be possible. New clause 9 would enable that to happen in a straightforward fashion. If there were unanimity that it should not go within five years, the Government would only have to introduce a resolution in both Houses of Parliament, on which we could vote pretty readily—it is a matter of half an afternoon’s business in both Houses—in which case we would have decided that it should remain. Knowing after nine years in the House how the place works, my worry is that if we do not do that or accept the proposal advanced by the hon. Gentleman, it will be difficult to find Government time even for a short Bill to get rid of the common law offence of conspiracy. I should add that it would be difficult whether the present Government or a Conservative Government were in office. That is the reality, so I do not want us to let this moment pass and lose the opportunity for what I think can be relatively short consideration, probably backed up by a report produced by the Government or a further report produced by the Law Commission on which Parliament can base a final decision, having had an opportunity to see how the Act works in practice.
I urge the Government to consider in a constructive light either my proposal or that of the hon. Member for Somerton and Frome, because it is difficult to see, particularly as regards new clause 9, any real downside for the Government in accepting it, or any downside in the operation of the courts system or the bringing of justice. It is a simple device that would ensure that, within the next five years, the matter would be reconsidered in a manner that did not take up too much of the House’s time, and we could make a final decision with the benefit of a more informed view of the operation of the legislation.