Fraud Bill [Lords]

It is a pleasure to return to the discussions on the Bill, which seem to have taken place some time ago in Committee. I hope everyone’s recollections of the Committee stage are as clear as mine. I shall not delay the House long on either group of amendments, as we had a constructive debate in Committee. We went about our business then with considerable expedition and I see no reason to prolong our debate today. However, I wanted to give the Solicitor-General the opportunity to consider again the abolition of the common law offence of conspiracy to defraud. There is a great deal of commonality in the views of all parties on the subject. We all agree that the common law offence of conspiracy to defraud is probably not one that should be maintained. We hope that the provisions of the Bill will meet the needs of successful prosecutions in a wide context. Irrespective of our starting point on the need to abolish the conspiracy offence, we acknowledge that proper reservations have been expressed, not least by Lord Justice Rose’s Committee, so we should take account of the proper operation of the Bill when it becomes law before proceeding with abolition. That much is common ground. We heard from the Solicitor-General in Committee the approach that prosecutors will take in deciding whether to use the new offences or the old conspiracy offence. The Solicitor-General told us that the draft guidance will state:"““In selecting charges in fraud cases, the prosecutor should first consider whether the behaviour could be prosecuted under statute—whether under the Fraud Act 2006 or another Act or as a statutory conspiracy;””" and further,"““whether the available statutory charges adequately reflect the gravity of the offence.””—[Official Report, Standing Committee B, 20 June 2006; c. 73.]" So the guidance to prosecutors is that they should use statute law wherever possible, and only when that possibility is exhausted, proceed to conspiracy to defraud, with its slightly nebulous nature. Some of us have concerns not only because of the nature of the common law offence, but because of its knock-on effects. I raised those concerns in Committee, and they have become even more pertinent, although I shall not dwell on issues of controversy in recent days. It is a matter of concern when, for example, the common law offence could form part of the criteria for dual criminality in more than one jurisdiction and therefore be a proper ground for extradition. That is something that we need to at least be aware of in respect of whether to allow the common law offence to continue. However, I propose today not to disagree with the Government position, and to accept that there will be a review that will be concluded in three years and that the Government will then decide whether it is appropriate to abolish the common law offence. I simply say—I made this point in Committee, but I repeat it now—that it would be better to have the provision on the statute book in advance, by means of my new clause and the commencement amendment that accompanies it. They make it clear that the provision will not take effect until the review has been concluded, and even then not within a three-year period, so the period that the Government have in mind will be protected. That would provide the legislative support for the position that the Government wish to take. The alternative is that the Government will have to come back with new law—with a new Bill—after the review has taken place. That might or might not find parliamentary time, and it might or might not be tacked on to some other measure that could be considerably less popular, and in any case that will take parliamentary time—unnecessarily. My proposal offers a better way of doing our business, given that we have a clear joint intention in respect of this issue. The control would lie with the Minister. He would not have to continue with commencement if the advice from the review is that he should not do so. The only argument against is what the Minister said in Committee, which is that this somehow puts the sword of Damocles over the offence, and that therefore there is a discouragement to prosecutors to use it, even when it is the most appropriate offence to use. I cannot accept that: I cannot accept that there is a difference in kind between my new clause and its commencement amendment and the Government’s clear intention, stated in terms, that"““it remains our long-term aim to repeal this common law crime and we will review the position””." There is no difference between the two positions, other than that one of them saves parliamentary time and means that we have done the work already, while the other leaves it still to be done. Therefore, it seems to me that what I am proposing is in the interests of the Government and in line with the views of all the parties represented in this House. It is certainly in line with the Law Commission’s proposals. It said on conspiracy to defraud:"““On any view, the present system is anomalous and has no place in a coherent criminal law.””" Therefore, we are doing the right thing in terms of improving the law.