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Mr. Weir: That is not the point. What matters is the scale, which is different in Scotland. If the hon. Gentleman wishes to pursue his point, he should have tabled an amendment that applies to Scotland and the appropriate Scottish scale.
Mr. Davidson: The hon. Member for Angus (Mr. Weir) should have tabled an amendment in Committee.
Mr. Grieve: The hon. Gentleman was not in Committee, but he is here and can contribute to the debate by telling us what the penalty should be.
The Minister of State, Scotland Office (Mr. George Foulkes): The hon. Gentleman could have tabled an amendment on Report.
Mr. Grieve: He could had he bothered to read the amendment paper before he came into the Chamber. His contribution borders on the absurd. Throughout our proceedings, hon. Members on both sides of the House have done their best to improve the Bill. We might have got things wrong and we might have fallen out, but we did not descend to the nit-picking banality that characterise his interventions.
John Robertson (Glasgow, Anniesland): I thoroughly agree with the hon. Gentleman's sentiment, if not his point. However, can I drag us back to the issue of negligence? Does he not accept that he is inventing an excuse or a get-out for criminals who could use negligence in their defence instead of being charged with a view to sending them to prison? They could claim that they are negligent and happily pay the money. The hon. Gentleman is giving them a cop-out that allows them to get away with it.
Mr. Grieve: Let me set out the approach that the hon. Gentleman should take. People who work in the regulated sector are for the most part—there may be terrible exceptions—likely to have been law-abiding citizens prior to the events covered by the Bill. I should be surprised if there are many chartered accountants lurking around who have strings of previous convictions.
I would apply the same test to a criminal matter as that which applied to any other. Let us suppose that the hon. Gentleman picks up a book in a book shop and, because his mind is elsewhere and he is not concentrating, walks out clutching it. If he is prosecuted for that, he knows that provided that he satisfies the court that it was unintentional, he will be acquitted. He would probably agree that to convict someone of a serious criminal
offence of dishonesty when he had no intention of being dishonest would be a parody of the legal system. In the light of such circumstances, why should a different test apply to somebody who commits a mistake by wrongly assessing the information that he receives, which would lead him to make the disclosure?4.15 pm
The Minister argued that, in the regulated sector, people should be fully trained, aware of the issues, and capable of picking up the problem and shouldering the burden—just as employers have to shoulder the health and safety burden in respect of their employees, including being criminalised for potentially negligent acts. I disagree, however, that that would provide an easy refuge. Any prosecutor who had to consider whether an offence was committed wilfully or negligently would probably have little difficulty extrapolating the answer to that question, and he could still pursue both offences and leave the jury to make up its mind.
The point at issue is that it is wrong as a matter of principle to establish a criminal sanction with a potential maximum penalty of five years' imprisonment for somebody who may ultimately be found to have acted inadvertently, given that, with the benefit of hindsight, others might say, "You ought to have realised that there was something funny about this transaction." That is an overly onerous provision.
If Parliament passes excessively onerous legislation that appears to weigh down heavily on people, the danger is that it will lead to all manner of unintended consequences. First, it will bring the law into disrepute, and when applied the sanction itself will appear to outsiders to have little merit. Secondly, people in the financial sector will be in a state of fear and less willing to participate.
The oddity is—the Minister will doubtless agree—that the entire money-laundering provision is dependent on the good will and honesty of the regulated sector in co-operating with implementation. The sanction exists for the rogue element who might not co-operate, but the assumption is that people will be willing to come forward and help. If, however, they are so fearful of the sanctions that they close down the hatches and do not want to co-operate, it will remain very difficult to gather the information because the regulated sector will provide none at all. That is a compelling reason why we should be particularly careful about criminalising people by imposing a penalty of up to five years' imprisonment for what will ultimately prove an offence committed purely through negligence.
Mr. Davidson: In discussing negligence, the hon. Gentleman mentioned shoplifting, and I can give him an example with which Conservative MPs will doubtless be familiar. Their former colleague Jeffrey Archer was caught shoplifting suits from a shop in Canada, but was given the benefit of the doubt because he had no previous. He pleaded negligence, rather than deliberate intent, and was let off, but he proved to be a proper bad'un, didn't he?
Norman Baker (Lewes): Then he copped it.
Mr. Davidson: Then he copped it, as the Liberal Democrat so eloquently puts it. Given those
circumstances, are we not entitled to be a trifle suspicious of the defence of negligence and innocence? After all, the people involved in financial services are not babes in arms. Most of them are well aware of the way in which they operate, and in general they are exceptionally sharp in their dealings. Surely negligence should be no defence.
Mr. Grieve: I disagree with the hon. Gentleman. Ultimately, a court or judge will decide in such cases. The particular matter that he mentions never came to court, so it could not be ruled on and I am unable to comment on it. A court and, potentially, a jury will have to decide whether a person has acted wilfully, negligently or with no negligence at all. The court will be able to consider those three possible outcomes. I simply want to make sure that where the court finds that there has been negligence, there will be an appropriate criminal sanction that properly reflects the gravity of the offence, and in my view that should be a fine, not a sentence of imprisonment. When the hon. Gentleman considers that argument, he may see some force in it.
Before I sit down—I do not want to take up too much time, but my remarks have taken longer than I expected—I shall make a few comments about Government amendment No. 93. The Government have attempted to go some way towards dealing with the anxiety expressed in Committee, but they have done so by tabling an amendment that will, for the purposes of negligence, decriminalise those who have not been provided by their employer with
- "such training as is specified by the Secretary of State by order for the purposes of this section."
The amendment does not solve the problem of the excessive penalty for the negligence offence. I am concerned also that it will require the defendant in such cases to prove a negative. At the very least, it will complicate the issues. I have some anxiety about how a court will establish that a person was not provided by his employer with such training as is specified by the Secretary of State. For those reasons, I commend new clause 7 to the House and, subject to what I hear in the debate, I can tell the Minister that I am likely to press the matter to a vote, but I wait to hear from the Minister and other hon. Members how they view the matter.
Mr. Paul Stinchcombe (Wellingborough): As the hon. Member for Beaconsfield (Mr. Grieve) said, in Committee I expressed considerable concern about both the principle and drafting of clause 330. My concern arises from the inclusion in a single subsection of two offences, the first of knowing or suspecting and the second of negligence.
The question of principle is a simple one: do we believe that there should be a crime of negligence in the regulated sector? As a matter of principle, I do believe that. I disagree with the Tories on that point for two reasons. The first is that money laundering causes huge social problems. In my constituency, which is in leafy middle England, in Northamptonshire, there are some estates where up to 10 per cent. of young mums and dads are addicted to drugs and every single eight-year-old whom I have talked to has found needles in their garden. Those communities are ravaged by crime.
The second reason for establishing a crime of negligence in the regulated sector is that that is where we should be making regulations. We should be regulating
people who, as my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson) said, are not babes in arms and, moreover, are making huge amounts of money out of the business that they conduct. For both those reasons we should establish the strongest possible professional codes of conduct.
Mr. David Wilshire (Spelthorne): The hon. Gentleman seems to be under the impression that we are seeking to remove the offence of negligence from the Bill. Is he not aware that new clause 7 would simply move the offence elsewhere?
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