My Lords, I shall speak to Amendments 24, 25, 26 and 27. That suite of amendments has one purpose which is to make a financial penalty compulsory as a requirement of a DPA.
I suggest that there is an anomaly in the Bill as drafted. There is no compulsion to agree a financial penalty. It is one of a series of optional requirements. However, if a DPA contains a financial penalty, that penalty has to be broadly comparable to the fine that a court would impose on a plea of guilty. Therefore, the DPA has to have either no financial penalty at all or a full financial penalty comparable to the penalty that would be imposed by a court. The reason why I suggest that a financial penalty should be compulsory is to maintain public confidence in the new system and to prevent DPAs being seen as a soft option. That is particularly important if they are to be used only for economic and financial crime by corporations rather than more widely. At the moment, if a DPA can be agreed between an offender and a prosecutor without being subjected to the penalty that a court would
impose, the innovation runs the risk of being tainted by the allegation that it amounts to no more than plea bargaining, the sort of suggestion made by my noble friend Lord Phillips of Sudbury.
I entirely accept that there might have to be an exception allowed for cases of genuine inability to pay, either at the agreement stage or at the stage when a breach or possible variation is considered under paragraphs 9 and 10, or at both stages. Subject to that qualification, I suggest that a financial penalty comparable to a court fine in lieu of prosecution should be at the heart of the new arrangements. I beg to move.