If not now, when? I entirely agree.
I had not quite finished outlining the Law Commission’s point correctly refuting, or at least addressing, the perception of any problems with a knock-on effect on civil law liability. It sets out the case very well, giving two basic reasons why it does not think that there will be extensive consequences.
First, the Law Commission rightly says that in civil law, vicarious liability or liability for negligence will very often apply to civil disputes between companies and third parties even if the identification doctrine test threshold is not met, so those very important parts of civil liability will not be undermined.
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Secondly, many civil cases in which the identification doctrine is invoked involve matters of liability existing between culpable directors—usually people who have gone—and those now running the company. Culpable directors often try to invoke the doctrine of illegality to try to seek some form of immunity or to resist any liability. That is usually dealt with under the doctrine that if someone has behaved fraudulently they cannot use that as a means of evading liability. That is right. We should not baulk, therefore, at addressing this issue head on.
In new clause 6, I seek to introduce new concepts of “failure to prevent” an individual liability. It is important that we make sure that when corporates are prosecuted it does not become a binary choice. Prosecutors should not seek to focus exclusively on the corporate at the expense of bringing individuals to book. I am afraid we have seen numerous examples in recent years of individuals who have escaped with impunity, rather than being held to account for their wrongdoing. I repeat all the arguments I have made about the international reputation of this jurisdiction, which is so important for our economy. Nothing under the sun is totally new: the language in new clause 6 is taken from section 36 of the Financial Services (Banking Reform) Act 2013, and we have taken
the definitions of an “officer” in a corporate from the Online Harms Bill—that Bill keeps popping up in ways that people may not expect.
All these issues are inextricably linked. Let us view this issue not as some arcane question of criminal liability, but as a reputational issue, an economic issue, a security issue and an issue that matters for the future life and health of our society. If we are to make this work, it is essential that we give prosecutors the tools that they need to do the job. I have long been a supporter of the Roskill model, the Serious Fraud Office and the way that it has sought to prosecute crimes, but I am worried that the current structures do not allow us to put the focus on fraud that we need to maintain and enhance. Gone are the days, when I was not even a young barrister but still a law student—I am much younger than perhaps I look—of the big corporate prosecutions in the 1980s that occupied suites of rooms in Chichester Rents. In those days we made a virtue of going after the big boys and girls and making sure that they were brought to book. That seems to have gone out of fashion, and I do not think that is a good thing. Things are slipping through the cracks, whether it be what might be regarded as minor fraud or even major fraud: we are not giving them the seriousness they deserve.
We need to look again at the architecture of the prosecution of fraud. Indeed, Clare Montgomery KC spoke eloquently about this in the media the other day. She is a very experienced and senior prosecutor. I am where she is: after many years of thinking that the SFO was the right model, I am no longer so sure. We need to start a proper and mature debate about the mechanism and framework for prosecution in England and Wales. That is why the idea of a Committee commends itself to me and, I hope, to right hon. and hon. Members. A Joint Committee of both Houses considering this in proper time might produce a mature set of recommendations that could lead to an improvement in the practice of these measures. The House is littered with good intentions. We pass legislation with the best will every year, but we are constantly disappointed when it is not utilised properly. It is our responsibility as legislators to make sure that those who are given the job of carrying out legislation are able to do so in a way that restores our public reputation.
My exhortation is twofold: if the Government cannot accept the amendments, they should bring measures forward in the other place to make sure that the thrust of this reform will happen, and for the Government to work with me and other right hon. and hon. Members to help us improve the way in which we deal with the prosecution of fraud in this jurisdiction.