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Norman Baker: I am grateful for that interesting intervention. I made the mistake of believing that Scottish National party Members would know what the position is in Scotland. I shall not make that mistake again.
Norman Baker: I am informed that there is no need to specify, but I am tempted to say, as would the hon. Member for Glasgow, Pollok (Mr. Davidson), that it is a pity that that was not raised in Committee, but it might be inappropriate to make that comment in response to the point made by the hon. Member for Angus (Mr. Weir).
There is a serious issue relating to a general point that I made throughout Committee. The Government have the best intentions and want to make sure that the Mr. Bigs of this world who commit such acts are caught and that loopholes are closed. No one disagrees with those aims. However, as we proceed we must be careful to ensure that in catching the guilty, we do not accidentally entrap the innocent.
Vera Baird (Redcar): As has been said, I, like my hon. Friend the Member for Wellingborough (Mr. Stinchcombe), expressed disquiet in Committee about the whole notion of criminality by negligence, but I did so in a context different from the one in which my hon. Friend has set the issue today.
My hon. Friend refers to the regulated sector as though it were necessarily full of high-powered and highly trained people. On many occasions that will be so, but the schedule that defines the regulated sector is broad enough to include and specify building societies and credit unions. In building societies, transactions can flash across the screen before the eyes of people who may not be highly trained and may work part-time and who therefore do not fall within the category of persons whom we would regard as being capable of being complicit in money laundering. I worry about such people.
Throughout, the issue has been raised whether criminality should result from inadvertence and error. I merely mention in headline terms that the people whom we will be capable of criminalising by mistake include those whose child has kept them awake all night, so that they have not had much sleep; those who are worried about something, or who are not paying much attention and letting the job tick over; and those who have been divorced or bereaved.
We are all aware of the many reasons why someone might not pay proper attention to their job for a while, but some police officer, rightly, astutely and observantly, might come along later and say to such a person, "You should have seen that", with the result that that person is liable to the penalties that we have discussed. It is a less sympathetic example, but it is not uncommon for someone simply to make a mistake because they have had a bad day, and without real justification. Such people, too, may be criminalised. I am greatly concerned.
I am grateful for Government amendment No. 93. Another category of persons about whom I was concerned in Committee was learners, who might exercise all the diligence that they can but still fall below a reasonable standard and so be criminalised. The amendment brings into play the defence of lack of training. That helps and I am grateful for it. It provides evidence that a good deal of thought has been applied to the arguments advanced in Committee. That is proper, but generous as well.
Clearly, negligence in one form or another as a basis of criminality will remain in the Bill. NCIS says that that is important, and in Committee the Minister quoted NCIS's view that professionals have facilitated money laundering but claimed that they had no suspicion or knowledge. If it is to remain in the Bill, I ask that three issues be considered again in more depth than the evidence suggests has been the case up to now. I, too, raised an issue of drafting that was not dissimilar to that raised by my hon. Friend the Member for Wellingborough. If one considers closely the drafting of clause 330(2)(b), one sees that it is an offence if a person does not disclose when he has
Drafting such a provision might be over-elaborate. Is the Minister therefore prepared to confirm to the House that the defence in clause 330(5)(a) of a reasonable excuse is intended to cover a person who simply did not know that there was anything to report, and that the reason the person was negligent in not knowing about it is one of the things that would offer a reasonable excuse? Will he confirm that the clause is big enough to cover that situation?
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): As the hon. Member for Beaconsfield (Mr. Grieve) said, we discussed this matter in Committee at length. As he has graciously acknowledged, I have tried to pick up some of the points of concern. My reading of clause 330(5)the legal mind of my hon. Friend the Member for Redcar (Vera Baird) may be sharper than mineis that it does not confine itself to not disclosing and refers to having a reasonable excuse for not disclosing. That would apply to a situation in which a person did not disclose because he did not know, and it would equally apply to a situation in which a person should have known but did not disclose in any case. It would cover both situations.
Vera Baird: If my hon. Friend is satisfied, I shall accept his assurances and not press the point. However, I am sure that the original drafting of the clause contains a non-link between the aspects that I have set out. I am nevertheless reassured and grateful to my hon. Friend.
I want to mention two more points. One of those has already been referred to extensivelythat it would be wise to have two separate offences. I shall not repeat all the reasons that have been put forward for that, but there is an additionalif not hugeone. It is inappropriate that a person who is convicted of an offence that is the result of negligence, which could be seen as a disciplinary offence, should be labelled with the same criminal conviction as a person who has deliberately laundered money. Fair labellinga well-known sociological conceptrequires that there should be two charges so that a person who has had a bad night and missed a trick is not categorised by his previous convictions as a serious money launderer when he makes subsequent job applications. I therefore add my support to the proposal to have two offences.
Mr. David Ruffley (Bury St. Edmunds): To return to the analogy with shoplifting, I am reminded of something that a legal jurist once said to me. He said that we have come across cases where people are so confused that they walk out of a shop without paying for an item, but they are never so confused that they pay for it twice. We are in the territory of legalistic definitions and passes being sold. We have subjective tests, and they were discussed in Committee; we also have an objective test, and I am afraid that we are stuck with it.
I support the observation of the hon. Member for Redcar (Vera Baird) that there should be a distinction between offences whereby the negligent failure to disclose should be punished by a fine not exceeding level 5 and those committed by someone who clearly should have known that money laundering was going on and, knowing that it was going on, failed to take the appropriate action. That distinction should be flagged up clearly for the reasons that she set out. However, it appears that someone who has had a bad night or a bad day will not be treated in a proportionate fashion by the legal and sentencing system in this country.
I am particularly concerned by clause 330(5). The Minister has just referred to that subsection in an intervention, so will he explain whether, when a legal adviser claims privilege, that adviser must also have a reasonable excuse for not disclosing information? I do not understand what such a reasonable excuse might be. It appears as though the legs are being cut from underneath the privileged defence if the type of reasonable excuse must be of the type expected elsewhere in the clause. I am not at all clear how privilege will operate in that respect. It may be my lack of acutenesswhich is uncharacteristic, I hasten to addso perhaps the Minister will enlighten me.
The hon. Member for Redcar also made an excellent point about training. The level of training expected has not been made clear in the Bill or in any of the Minister's comments that I have heard. We all know that the British Bankers Association, among many other distinguished bodies, has training days and training courses, but they are for employees of a certain level in a banking or financial services institution. That is fine, but unless we are given a clearer idea of the sort of accredited courses that will be run, we shall remain in the dark. For that reason, Government amendment No. 93 is defective, and this debate is important in flushing out what exactly Ministers have in mind.
The Secretary of State will draw up regulations and prescribe certain forms of training so, for the reasons that the hon. Member for Redcar outlined, I hope that it will be clear what level of functionary will be involved. Will it be Tracey or Wendy in back office accounts or will it be Alan or someone else? Will it be someone with no interest in financial services? Perhaps they will come across the issue only when it flashes across their computer screens.
The Minister may smirk, but I characterise the issue in that way to make my point forcefully. We are talking not about managing directors of banks, or even branch managers of banks; we are talking about back-office staff.