(12 years, 6 months ago)
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( ) There shall be a Director General, who is to be one of the NCA officers, and who shall be responsible for the exercise of the NCA’s operational and administrative functions.
( ) Schedule (The NCA Board) has effect.”
Baroness Smith of Basildon
My Lords, in many ways this is quite a difficult Bill to scrutinise fully. Some information relating to the Bill is missing today: we do not have the framework document, which would be extremely useful as your Lordships consider how the NCA board will operate.
Our amendments today are intended to bring some sense to the Government’s words, which is not necessarily reflected in the Bill, and to ensure that the new National Crime Agency has operational independence. The Government have quite rightly gone to great lengths to emphasise that the NCA—the body that takes over from the Serious Organised Crime Agency, the National Policing Improvement Agency and CEOP—will be operationally independent, but I am somewhat puzzled about how this is going to operate. SOCA was, of course, a non-departmental government body, or NDGB. The NCA has been classified as a non-ministerial department, or NMD, and that is similar to other bodies such as the Crown Prosecution Service and Her Majesty’s Revenue and Customs, as the Home Office fact sheet identifies. This is significant and appropriate because, as a rule, NMDs are considered to be more independent of Government. I quote from a research paper on the Public Bodies Bill from the House of Commons Library, which says that they,
“answer directly to Parliament on issues where it has been deemed appropriate to remove executive political interference”.
Examples given by the Library in the other place are Ofgem and the UK Statistics Authority. Both the Crown Prosecution Service and HMRC, which the Government give as models for the designation of the National Crime Agency, have corporate governance structures which have a strategic direction and strategic accountability exercised by a board, and that board reports to the Secretary of State. That is true currently for both SOCA and the NPIA. The benefit of that is that it ensures and preserves the agency’s independence from Government, but it also maintains, quite rightly, the ultimate strategic oversight by Government.
In this Bill, the Government seem to be proposing a departure from that. Under current proposals, the NCA will have no board and instead will be governed by just one individual, the director-general, who will report directly to the Home Secretary. The Home Secretary’s responsibilities are to set the strategic priorities for the NCA. He will authorise the director-general’s annual plan of strategic and operational practices and priorities. The Secretary of State has the power to appoint and fire the director-general and the power to designate the director-general’s operational powers on the direction of an advisory panel, and we shall return to both those issues in later amendments.
It seems to us that this kind of structure is not conducive to operational independence and is at odds with other NMDs that the Government have set up and support. Compared with Ofgem, the Financial Standards Authority, the Serious Fraud Office, the Office of Fair Trading, the CPS and HMRC, the National Crime Agency would be unique in its level of direct ministerial oversight and influence. There seems to be some contradiction within the Bill and within the Government’s priorities because although they are talking about devolving operational power to the police, they seem to be retaining more power, but without responsibility, to the Secretary of State. The Bill does not seem to do what the Government have said they intend, which is to put power in the hands of the police force. It is very much a top-down structure and, if one were being unkind, one could say that the Secretary of State is happy to devolve responsibility but, at the same time, is centralising power.
The amendments that we have tabled today have two impacts. Amendment 1 will remove the responsibility for direction and control of the NCA from the director-general, and instead the NCA board will have responsibility for the strategic direction and control of the NCA, while the director-general will be responsible for the exercise of the NCA’s operational and administrative functions. Amendment 4, which is quite long, sets out the structure of the new NCA board and is modelled on the existing governance structure of SOCA. We would be quite happy if, at some later stage, the Government were to bring back this amendment to look at the detail of it. There may be items within it that are not as appropriate for the NCA as they are for SOCA. However, broadly speaking, it seems to us that the governance arrangements for SOCA, with a board structure, would be more appropriate for the National Crime Agency than the sort of direct-line accountability to the Secretary of State for one individual, the director-general.
I suppose we are seeking answers to a number of questions from the Minister, in trying to understand why the Government have proposed this structure. Can the noble Lord explain why the Government believe that there are benefits to the National Crime Agency from not having a board? The organisations that are to become part of the National Crime Agency have had boards, so the Government should really explain that and justify their reasons for having a different governance structure in this case. Why does the NCA have to be directly accountable to the Home Secretary, unlike the Serious Organised Crime Agency? Again, that is a departure from current practice.
Given that the Government have rightly changed the structure from that of the Serious Organised Crime Agency, which is a non-departmental government body, to a non-ministerial department, can they give any indication of the model that they used for the NCA? I am not aware of any significant body that is a non-ministerial department and that has the same kind of structure reporting directly to the Secretary of State, but not through a board. In looking at these areas, it would be very helpful if the Minister were to give some explanation of those issues and say whether he will consider looking again at governance and introducing a board, which we think would be the appropriate way to manage and run the agency.
Baroness Hamwee
My Lords, we have tabled Amendment 5 in this group. The amendment, in my name and that of my noble friend Lord Thomas of Gresford, does not seek to change the architecture of the proposal—I thought I would get that in quite quickly because my noble friend hates the term. It is not a governing board and accountability would still be that of the Secretary of State. However, it is good practice to provide infrastructure and support in this sort of situation.
The Home Office itself has a supervisory board. I would have taken my amendment from that, had I been able to get into the Home Office website at any time when I tried over the past few days. The form and function of the model is, I suppose, not very different from that of other government departments, so I looked at CLG, another department with which I am fairly familiar. The description of its roles seemed to be very much what I was looking for. It tells us that:
“The Board’s role is to advise and support ministers on the operational implications and effectiveness of policy proposals, focusing on getting policy translated into results”.
It refers to leadership, effectiveness, accountability, and sustainability—that is, sustainability in the sense of taking a long-term view about what the department is trying to achieve.
“The board advises on, and supervises, five main areas: Strategic Clarity … Commercial Sense … Talented People … Results Focus … and … Management Information”.
Those are listed with descriptions that I will not trouble your Lordships with this afternoon, because I think the CLG website is pretty accessible. I am not wedded to any particular model but I am wedded to good governance. In 2012, as has been the case for some years, the private and voluntary sectors have had to focus very much on governance, and I think that a new government agency should focus on it too.
Lord Condon
My Lords, I would not seek to challenge the architecture in the Bill for control and accountability, but it is not a question of all or nothing—there can remain clear direction and control by the director-general and clear accountability to the Home Secretary and onwards to Parliament. Nevertheless, I hope that the Minister will find ways to reassure your Lordships’ House and the wider public that in this day and age notions of good governance demand that there should be something more than just that naked architecture of the DG in control and the Home Secretary being accountable. It would be good to have reassurance around the notion of a management board, a supervisory board, an advisory board or some board mechanism that allows both stakeholder interest and independent voices to contribute to the health and well-being in the future of the NCA so that issues such as value for money, good governance, priorities and so on could somehow be part of a wider debate within that family than just between the DG and the Home Secretary. I understand that the Bill and this agency will deal with some of the most challenging criminal matters facing the country. Should terrorism subsequently also be transferred as a responsibility to the NCA, I understand that there must be very clear direction, control and accountability, but a committee-type model does not fit well with those demands. Nevertheless, there is ample scope for reassurance around the notion of a management board that involves stakeholders from the police service, the emerging police and crime commissioners, the wider local authority family and the business community. I hope that the Minister, today or subsequently, will be able to give us some reassurance that the Bill will be able to move us in that direction.
Lord Harris of Haringey
My Lords, I certainly do not want to fall into the trap of automatically accepting the Government’s architecture for these proposals. However, the amendment put forward by my noble friend does not necessarily undermine that architecture. The key point of this part of the proposed legislation is the creation of a new National Crime Agency. That is the key concept, and in this group of amendments we are dealing with some of the accountability mechanisms and the arrangements that will be put around the agency to ensure that its governance is of an appropriate and effective standard.
Let us be clear why this is important. The National Crime Agency, as proposed, will be a tremendously significant organisation. It will be responsible for ensuring that as a country we deal effectively with the most serious types of crime. In due course, it may be responsible for dealing with terrorism. This is not some minor government body; it is an extremely important part of the arrangements that we put in place to ensure that our citizens are properly protected against serious crime.
The other fundamental part of the architecture of the Bill, if you are wedded to that architecture, as no doubt the Minister is—no doubt we will come onto this in due course—are the provisions within the legislation that enable the director-general to require from police services around the country various things to happen. There is a potential power of direction—and certainly the expectation in terms of individual operations—that local police forces will work with the National Crime Agency to ensure that certain operations proceed. The relationship between the director-general and individual chief officers of police will be a fundamental one. That is precisely why, when we look at the governance structures and the arrangements that will be put around the director-general, we need to ensure that there are appropriate mechanisms for chief officers of police and those responsible for their governance, in terms of police and crime commissions, to be adequately represented within them.
The Government have to put forward a clear justification as to why this very lean approach to governance has been included in the Bill. As a number of your Lordships have already indicated in Committee, there is a virtue in having a proper governance structure, a group of non-executives and a group of individuals to whom the director-general must report or explain or expand on his or her proposals on how the agency goes forward. That is not to decry the direct accountability to the Home Secretary because it will be the Home Secretary who will, whatever is written into the Bill, have to answer to Parliament as to whether this new structure works. It supports that function and gives the Home Secretary reassurance that all the processes and procedures that any sensible Home Secretary would expect to be around the director-general are in place.
I am not suggesting that the Home Secretary is incapable of providing adequate supervision of the agency. I am simply saying that it is not necessarily the most effective or efficient way of doing it and that some board structure supporting that process is better and more likely to be successful. I have looked for precedents for this sort of one-to-one relationship between the Home Secretary and significant agencies. For 175 years the Home Secretary was the police authority for London and at the end of those 175 years the Metropolitan Police was so well governed, despite the excellent leadership at that stage provided by the noble Lord, Lord Condon, that it did not have a system in place—it was a £2 billion business at the time—for telling whether it had paid a bill more than once. I rather suspect that had the Home Office—I absolve previous Home Secretaries from day-to-day responsibility for this—been doing its job properly proper accountancy systems would have been installed within the organisation. However, the supervision of the Home Office and the Home Secretary was quite properly on the main policing issues, which would have been advised by the noble Lord, Lord Condon, and his predecessors as Commissioner of Police of the Metropolis. This was not about the way in which the organisation was run, administered or governed. That is the natural tendency. Home Secretaries are busy people. They have broad responsibilities. They are not going to be involved in day-to-day issues about the robustness or otherwise of governance structures. The history of the Metropolitan Police is not a sound precedent.
More recently we have the precedent of the border agency. Here, the opposite problem seems to have occurred. You seem to have a Home Secretary—perhaps successive Home Office Ministers would be a fairer way of putting it—who wanted certain things to happen and applied pressure on the border agency to do so. You then end up in arguments about what was said to whom by whom because of that one-to-one relationship. In all the fuss that there was a few months ago about whether certain expectations were being bypassed to let people into the country and remove queues, would it not have been better for there to have been a supervisory board between the Home Secretary and the chief executive of the border agency where there would have been a record, minutes, and perhaps an opportunity for dissent to be expressed? All that would be missing in the arrangements for the National Crime Agency, which raises the question of whether we are not in danger of creating a structure where the Home Secretary has too much of a role in respect of a policing body.
In this country, we have always expressed real concern about politicians having direct operational control of policing. That is part of the reason why there was a little bit of debate about the creation of police and crime commissioners, but that debate has moved on and we are now well into the process with the Labour Party having today announced a selection of candidates for those positions that includes my noble friend Lord Prescott. The Labour Party will clearly have an excellent set of candidates and we wait to see whether the Conservative list will be quite as exciting or interesting. The reason that there was some concern about that and there is even more concern about a national agency directly under the control of a single politician is the danger that that power is abused. I am certainly not accusing the present Home Secretary of having any desire to abuse that power. I am simply saying that we are creating a structure where such an abuse is possible and that it might happen in future.
Imagine occasions when there is a considerable threat from some organised crime group or a terrorist organisation, if that is the direction that the new agency goes in, and it is the responsibility of the Home Secretary to direct what the agency should do. The guarantees in the Bill for operational independence do not amount to very much in those circumstances. There is no place for control freakery here. This has to be about a proper system of governance. In a few years’ time, I would not want people to be making all sorts of sinister connections between policing operations that happen under the auspices of the National Crime Agency and saying that there are sinister implications that they have been personally directed or required by the Home Secretary, but that is the danger of the governance model that the Government have created.
My final point returns to what I mentioned in passing earlier. A critical part of this new agency will be the ability of the National Crime Agency to say that it wants local police forces to carry out or collaborate on particular operations. The danger of having a National Crime Agency that is divorced from the rest of the police structure is very real. I recall the discussions that took place over several years to try to get a system that worked on counterterrorism with primacy for one force and the ability to make operations happen across the country. It was not an easy process. The Government are making it more difficult for the director-general of the National Crime Agency if there are not police and crime commissioners or chief officers of police playing an active part in the governance of this new organisation. If they are there, if they are around the table and able to say, “This is a better way of doing that”, or to encourage the director-general to do things in a way that ensures their collaboration, that is surely going to mean that it is more likely that this new agency will succeed.
My noble friend’s amendments, which address precisely those points, are very welcome. There is a slight drafting error in that they make no reference to London, but I am sure that could be adjusted when we return to this at a later stage. The key issue that the Minister has to explain today is why this particular governance model has been put forward and why it is genuinely an improvement on a supervisory board which involves, for example, chief officers of police and police and crime commissioners.
The Minister of State, Home Office (Lord Henley)
My Lords, I hope that in due course I will be able to answer those points, in particular those final questions from the noble Lord, Lord Harris. I begin, though, with two points. First, my noble friend Lady Hamwee referred to “architecture”. I think that the noble Lord, Lord Condon, and the noble Lord, Lord Harris, also used that word. My noble friend did not particularly like the term and I agree with her. I find it inelegant, but as a form of shorthand, it is quite useful on this occasion. Therefore, I suspect that architecture is something that might be referred to. Secondly, I make a brief apology to my noble friend about the website.
I was discussing the Home Office website with the noble Baroness, Lady Smith, earlier during the Division that took place. We have had some problems with the Home Office website. This is true of other government departments, all of which have been targeted. I hope to write to the noble Baroness in due course and I am more than happy to copy my letter about the problems we are having with the website to my noble friend Lady Hamwee. It can be difficult for all noble Lords if, in trying to discover what the Home Office is doing—or any other department for that matter—they cannot get into our website. Obviously, that is the means on every occasion by which we learn what is going on. There have been problems and we hope to address them. Perhaps for the first of many times, I give way to the noble Lord.
Lord Harris of Haringey
My Lords, since the Minister raises the issue of the website, I believe that the Home Office’s explanation of why booklets will not be issued about the election of police and crime commissioners is that people will be able to access the information about candidates from the website. When the Minister writes to my noble friend, what reassurances will he give that the elections will not be interfered with by the same sort of malign intervention on his website?
Lord Henley
My Lords I am not sure that these booklets will come from the Home Office website. I will double check and make sure that I get an appropriate response to the noble Lord. All I am saying is that it is within the Home Office website that we have been having this problem. We want to get it right and are desperately keen to be open and fair. We want to get things across, and that is why I want to make sure that I can deal with all these matters and why I will write to the noble Lord’s noble friend, copying it to my noble friend and no doubt copying it also to the noble Lord, Lord Harris, and others who wish for a copy. We might discuss this later.
It might be useful if I set out—I hope not at excessive length—what we are trying to do with the National Crime Agency, where we are trying to get and why we think the Government’s arrangements are appropriate. Then we shall listen to the response from the noble Baroness. As she is aware, the National Crime Agency will be operationally focused, with a demanding mission to fight serious and organised crime and protect the public. We considered carefully how we would get the right governance arrangements for this agency to make sure that it maximises its effectiveness, accountability and, of course, minimises bureaucracy. That is something that the noble Lord, Lord Harris, did not stress, but might have done.
We have drawn up in the Bill the arrangements which we firmly believe achieve that right balance. Ever since I came to the Home Office, I have been talking about balance and it is important that there is the right balance between strategic oversight by the Home Secretary and effective operational leadership of the agency by the director-general. The director-general will lead and direct the agency and be directly accountable to my right honourable friend the Home Secretary and through her to Parliament, because she is answerable to Parliament. I must make it clear that this is entirely consistent with the tried and tested arrangements in place at many non-ministerial departments, of which there are a number. Let us, for example, take two that have a Home Office focus: law enforcement agencies such as the Serious Fraud Office—despite what the noble Baroness said—and the Crown Prosecution Service. As she will be aware, there are others outside what we could call the Home Office family. For example, there is the Food Standards Agency, which is chaired by the noble Lord, Lord Smith, and is answerable to the Department of Health or Defra—I forget which. Again, it is a non-ministerial department that responds to a department.
The noble Baroness proposes creating an NCA board, headed by a non-executive chairman, which would lead and direct the agency and to which the director-general would report. Instead of an operational crime-fighter, the Opposition want to put a non-executive chairman and board in charge of the NCA. Instead of the director-general being directly accountable to the Home Secretary, he would report through the board, which would inevitably be a slower and—I stress—more bureaucratic process. That is not the best governance model for a law enforcement agency that has to respond quickly and decisively to threats to protect the public. It would be like having your local police force, for example, run by a committee instead of by the chief constable.
In that example, chief constables must be held properly to account on behalf of the electorate, as must the director-general. However, people want to see effective accountability, not bureaucratic accountability. Creating more quangos, which is, in effect, what the noble Baroness suggests in her amendment, is hardly the way to protect the public from crime. Chief constables will be accountable to a single, directly elected police and crime commissioner in their force area. He will be visible and able to be held to account by local communities. In the same way, the director-general will be accountable to the Home Secretary, who can then be held to account by the taxpayer, noble Lords in this House and colleagues in another place. It is the Home Secretary who ultimately has responsibility for ensuring that the public are protected from crime and who will come before Parliament to account for the performance and impact of the NCA. Inserting a predominantly non-executive board and chair between the director-general and the Home Secretary will not increase accountability; it will just create more bureaucracy and more officeholders.
The amendments suggested here essentially replicate the arrangements that were put in place for the Serious Organised Crime Agency, which are more typical of non-departmental public bodies. However, SOCA is the only law enforcement agency with the sole responsibility of fighting crime that has this quango structure. It was always an anomaly. I do not know why the previous Government thought it was necessary, compared to, say, the Serious Fraud Office or the Crown Prosecution Service. Putting that non-executive chair and committee in charge of SOCA has inevitably led to more bureaucracy without adding to accountability. It has reduced the clarity over who is responsible for what.
In saying that, I make no criticism of the current SOCA chair and board members, who are distinguished professionals in their fields and who have done a very good job as a committee. However, I do not believe that it was the right structure for a law enforcement agency. The NCA is an agency that will have the power and responsibility to investigate serious and organised crime, and the officers of which will, like the police, be able to use coercive and intrusive powers. In its work to protect the public, there must be absolute clarity of accountability. What the noble Baroness proposes in her amendments would do away with that clarity.
Amendment 4 further specifies that the NCA board should include representatives of police and crime commissioners in England and Wales and of the police service. They are obviously key partners for the National Crime Agency and the director-general will want to work with them. However the Bill already clearly provides that these key policy partners will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency. Clause 3 requires the Home Secretary and the director-general to consult strategic partners before determining the strategic priorities for the NCA. Clause 4 also provides for these partners to be consulted on the agency’s annual plan.
The noble Lord, Lord Harris, put forward the idea of the importance of non-executive directors to be part of the internal governance of the NCA. He referred to the framework document, which will be issued in due course. In accordance with the principles of good governance set out by the Cabinet Office and the Treasury, in that document we will set out what those internal arrangements must be. They will include the role of potential non-execs, which we will consider carefully as regards the NCA but not in the manner suggested in the noble Baroness’s amendments. We will make an outline of that framework document available to Parliament in due course, as I think I made clear at Second Reading, to make sure that we can discuss these matters at later stages of the Bill.
Turning to Amendment 5, my noble friend Lady Hamwee is right to emphasise again the importance of good governance for the NCA, with which we agree. We will set that out in the framework document in due course. But the supervisory board proposed by my noble friend is a step too far. As I have said, we believe that the NCA should be led by the operational head, the director-general. Unlike the Opposition’s amendments which we have just discussed, this amendment sensibly leaves the director-general as the person responsible for “leadership and control” of the agency as set out in Clause 1.
However, creating a supervisory board headed by the Home Secretary muddies the waters over the director-general’s line of accountability. Therefore, I do not think that I can give it much support at this stage. I hope that those explanations are sufficient to deal with the concerns raised by noble Lords about the governance of the NCA. Obviously, we will discuss other more detailed matters on some later amendments. No doubt, we will come back to this issue at later stages of the Bill. I hope that I have largely dealt with most of the concerns put by noble Lords as regards this amendment and that the noble Baroness, Lady Smith, will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before the noble Baroness tells the House what she proposes to do with her amendment, perhaps I may raise with the Minister the way in which references to the framework document are set out in Schedule 2. We are told that the document will deal with ways in which the NCA is to operate, including how it,
“is to be administered (including governance and finances)”.
No doubt the Minister and his officials will consider further the points that have been made today—I am by no means certain what should happen after this stage on this issue—and at least they will consider whether the term “administered” covers the issues of governance which noble Lords have raised. To me, governance is not something which is included in administration; it is an issue on its own. To include it within administration downgrades its importance.
Lord Harris of Haringey
Before my noble friend responds to the debate, perhaps the Minister will also tell us precisely when we are likely to have this framework document. Clearly, he is saying, “Don’t worry your heads about the governance arrangements because when you see the framework document you will be entirely satisfied and it will all be all right. Therefore, this amendment is unnecessary.”. We are in Committee and have not yet seen the framework document. The Government announced their intention to create a national crime agency nearly two years ago, so it is quite extraordinary that this fundamental piece of the jigsaw is not available to us. It would be very helpful to have it.
Incidentally, while the noble Lord was speaking, I checked on the Food Standards Agency. As far as I can see, it has a fully functioning board; I believe that the noble Lord, Lord Rooker, is its chair rather than the head of the agency, but that is a mere detail.
Lord Henley
My Lords, I apologise to the noble Lords, Lord Rooker and Lord Smith. The noble Lord, Lord Harris, is absolutely right to say that it is the noble Lord, Lord Rooker, who chairs it. I was just giving it as an example of one of those boards that is slightly different in the way in which it reports to Ministers.
The noble Lord is also right about the importance of when we will be publishing the framework document. We want to share an outline of that document with Parliament in due course and I hope that we can do that before we get to the Report stage of the Bill. I remind noble Lords that the Bill started in this House so we have quite a time before it goes through both Houses. As the noble Lord will be well aware, in terms of the timetable, we will not even finish Committee stage until we return in the autumn, when I think we will have one day of Committee to deal with some matters. I believe it coincides with the Conservative Party conference, which, sadly, I will have to miss, but one often has to make enormous sacrifices in the course of duty and I will be deeply upset to make that sacrifice. However, I will try to ensure that the noble Lord gets the framework document in due course.
I also note exactly what my noble friend said about the importance of making sure that we distinguish between administration and governance. I think that she is right to stress those two points. I hope that noble Lords will bear with me and be prepared to wait for the framework document, which I hope we will get in due course.
Lord Condon
Can the Minister confirm that he is not excluding the notion of key stakeholders being drawn into a formalised relationship with the new NCA, even if it is not a supervisory board or a strategic board? He is acknowledging that the framework document may well create a role for key stakeholders to have a formalised relationship with the new NCA, something more than just being a vague consultee, who receives a letter saying, “What do you think of … ?”.
Lord Henley
My Lords, as the Bill makes clear, it is quite obvious that we want those key stakeholders to be involved. How formalised that should be is another matter. I would hope that the noble Lord would be prepared to wait for the framework document and how we consider it. It will be for all of us to decide how formal, formalised or informal that is, and what is the right balance—again I use that great Home Office word. It is getting the balance right.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister is trying to be helpful regarding the framework document. However, I hope that he understands how difficult it is for your Lordships’ House to consider properly the governance arrangements when we are told that we are going to get a lot of the information later, probably at Report. He said that we will not complete the Committee stage until after we return from the Summer Recess, with his great sacrifice of missing his party conference. The only reason the Committee stage is finishing so late is that in another part of the Bill the consultation, which will inform the clause in the Bill, has not yet been completed. As I said at Second Reading, I wonder whether this Bill should have come before your Lordships’ House at this stage or whether it would have been better, in order to consider properly the governance arrangements and the later clauses on community sentences, to have had that information with us now. We have already heard from the noble Baroness, Lady Hamwee, and my noble friend Lord Harris of the difficulties of trying to make suggestions and looking at exactly what the Government are proposing when we do not have a lot of the information with us today. I am slightly disappointed by the Minister’s response because even without the framework document being available to noble Lords he dismissed the idea that there could be a more formalised structure for involvement in a governance board, as the noble Lord, Lord Condon, said, before we had even had a chance to look at and consider the framework document.
I have listened to comments from around the Committee and there seem to be several points of agreement. There is a general recognition that the NCA is a big beast, taking on what the Minister called a “demanding mission”. It is clear that noble Lords want it to succeed in tackling some of the worst and most difficult crimes in our country. The only reason why we would discuss governance structures at all is not to make the Minister’s life more difficult or deny him the opportunity to attend his party conference, but because we want those structures to reflect the importance of the organisation and ensure that it has the best possible information, advice and governance to be adequate to the task that it faces. As other noble Lords have said, nobody is wedded to any specific structure, but there has to be some recognition that it is not really satisfactory to have a relationship whereby the director-general responds and reports to the Secretary of State, who sets the guidelines that the director-general works under.
The Minister mentioned some kind of advisory body. There is provision in legislation for that, but with a very limited capacity. That is not particularly clear, either. My noble friend Lord Harris referred to the importance of the relationship between the director-general of the NCA and policing bodies and PCCs across the country. The power of direction in the legislation is something that the Minister has said will be used in exceptional circumstances and that agreement would be sought at all times. Surely, if there is a board or some kind of body of which the director-general is part and to which he reports, which involves the police and the police and crime commissioners, among other people whom the Secretary of State may choose, that makes those relationships and understanding of the work of both much better and, therefore, more effective.
I take the Minister’s point about bureaucracy, but I do not think that that should be an excuse to remove good governance processes and practices, which have proved themselves in other regards. As my noble friend Lord Harris said, the Minister gave the example of the Food Standards Authority, which has a board. I asked what the benefits were of the NCA not having a board, why it needed to be accountable directly to the Home Secretary and what the model was for the organisation. I did not really get an answer to those questions in the Minister’s reply.
I have another point that I would like the Minister to think about a bit more. He said that one concern that he would have if there was a board was that the response from the director-general would be slower, and that it would be more bureaucratic, when he had to respond quickly and decisively to any threats. The role of the board as we see it would not be an operational one but strategic and about giving advice. I would not expect the director-general to consult the board every time he thought that he or his colleagues had to respond to a specific threat. That would clearly be unacceptable. We are talking about the role in the legislation that the Minister and the Government intend for the Secretary of State, and our suggestion is that it should be the board’s role. When the Government create bodies such as police and crime commissioners, we have to look at how they are brought into the general architecture of how the police and other law enforcement services work. It is unhelpful to good working practices to sideline them as they are in this Bill.
I would like to take this matter away and reflect on it. I do not intend to pursue it further at this stage. There may be more opportunities as we go through the Bill and debate other clauses around the issue of governance. At some stage, we will have a framework document, but I hope that it comes some time before Report. This House cannot do its duty of scrutiny as well as it should when we do not have such information. To suggest that it will be there for the Commons stage and that therefore we do not need it is unsatisfactory. I am sure that we will return to the issues of governance and, depending on how things go in the course of the debates in Committee, we will decide whether or not to return to them at a later stage. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
I wish to speak also to Amendment 3. These are both probing amendments.
Amendment 2 seeks to remove Clause 1(10) from the Bill. That subsection excludes prosecution from the NCA’s crime reduction function. Is the point simply what the NCA itself can do? If so, why cannot it prosecute on its own behalf? The crime reduction function is defined and includes activities to combat crime listed in Clause 1(11), which refers to prosecution. If the NCA cannot itself prosecute, how is it anticipated that the process will work? Common sense tells me how it will work but I would like to hear that from the Minister. Why cannot the NCA have the option of prosecuting instead of commissioning prosecution, as it were?
Amendment 3 seeks to understand what is intended by the activity of mitigating the consequences of crime. Of course, that is not something to which I am in any way opposed, but can the Minister expand on that? Is it expected that the NCA will work in partnership with the many organisations which deal with mitigating the consequences of crime such as the Restorative Justice Council and Victim Support? I was pleased but a little surprised to see that referred to and would be glad to have some flesh put on those bones. I beg to move.
Lord Rosser
My Lords, as the noble Baroness, Lady Hamwee, has explained, she is, as I understand it, seeking an explanation of why the National Crime Agency is precluded from pursuing its own cases. Presumably, the National Crime Agency would pursue only more serious and organised offences although there is provision in the Bill for NCA officers to become involved in dealing with any crime, so perhaps that is not necessarily the case. Subject to the Minister putting me right, I assume the Government consider that the Crown Prosecution Service would become involved in pursuing most cases. If I am right in thinking that, one advantage is that the Crown Prosecution Service is able to take an independent look at the evidence available to support a charge, and make a decision on whether there is sufficient evidence to put before a jury with a reasonable prospect of success, whether it is in the public interest to proceed and whether the charges being brought are the appropriate ones in the light of the evidence.
One can argue that where an agency or body which is the one that has investigated the case and produced and collated the evidence is also the one that makes the decision on whether the evidence is sufficiently strong to make the charge stand up, there is a possibility that that agency or body may be too close to the case and too involved to make the necessary judgments in an entirely objective manner. We will listen to the Minister’s response to the amendment moved by the noble Baroness, Lady Hamwee, and to the explanations that she is seeking. My only further comment is that independent agencies do not always seem to have a high reputation when it comes to pursuing cases successfully. Some might raise the Serious Fraud Office in that context.
Lord Henley
My Lords, I am grateful to my noble friend for putting forward these amendments and for making it quite clear that they are probing amendments. I hope that I can deal with some of her concerns.
I start with her first amendment, which simply suggests leaving out subsection (10). As I said, she put it forward as a probing amendment and I understand what my noble friend is seeking to ask. In setting out the expectation that agency investigations will lead to prosecutions, it is necessary to provide clarity on the role that the agency will take in relation to prosecutions—hence subsection (10), which provides that the agency does not have the function of prosecuting offences or, in Scotland, the function of instituting criminal proceedings. Rather, the agency will work closely with the prosecutors—that is, the CPS in England or the Lord Advocate in Scotland—to ensure that the right criminal justice outcome is achieved. I think it is right that those two agencies should do that, along with, in Northern Ireland, the Public Prosecution Service for Northern Ireland. Therefore, there is no inconsistency here. The NCA will not itself undertake prosecutions but will work with others to undertake activities to combat serious organised crime. Such activities must, quite rightly, include the prosecution of offences.
I turn to my noble friend’s Amendment 3, which would insert at the end of subsection (11)(d),
“in conjunction with other appropriate persons”.
I am very grateful to her for indicating that she also wanted to get over the fact that this is important in terms of the relations of the victims of crime. We have been clear that the reason for establishing the National Crime Agency is the need to respond to the changing nature of the threat posed by serious and organised crime—it has changed and will continue to change—and to ensure that our response keeps pace with the changing threat now and into the future.
As we are all well aware, where there is a crime, there is also a victim of crime. If we are committed to the agency tackling some of the most serious and pernicious forms of crime that we face, so too we must be committed to the agency playing an important role and working with other agencies and the voluntary sector to support the victims of crime. I suspect that my noble friend would like the reassurance that the agency will be able to work with any partners as it deems necessary to carry out its work. I can certainly give her the assurance that the agency’s primary relationships will be with other law enforcement partners but it will also be important for it to build wider partnerships with the private and voluntary sectors.
I hope that that assurance goes as far as my noble friend would like. I want to assure her that in due course the agency will take its responsibilities for all people, but particularly for victims, very seriously. With that, I hope that she will be sufficiently satisfied and will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I am glad of that reassurance. I expected it but I am glad to have it. Indeed, there is something of a change in the nature of crime and the need to recognise what is required to assist victims of crime. We will no doubt come on to that in more detail with the next group of amendments.
I remain a little perplexed as to why it does not remain an option for the NCA to undertake prosecutions. Indeed, one might have thought that this was something that the framework document would address and give some explanation of, as it is about the way that the NCA is to operate. However, I have heard what the Minister has said and beg leave to withdraw the amendment.
Lord McColl of Dulwich
“( ) In this Part a reference to organised crime or serious crime includes crimes and activities related to trafficking in human beings.
( ) The NCA shall take the measures necessary to ensure that the UK meets the following obligations under the EU Human Trafficking Directive—
(a) persons, units or services responsible for investigating trafficking in human beings are trained accordingly,(b) effective investigative tools are available to persons, units or services responsible for investigating trafficking in human beings,(c) there are services available for the protection, assistance and support of adult and child victims of trafficking in human beings.( ) “The EU Human Trafficking Directive” means Directive 2011/36/EU of The European Parliament and of The Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims.
( ) “Victims of trafficking in human beings” has the same meaning as in paragraph 32 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012.”
Lord McColl of Dulwich
My Lords, a number of speakers at Second Reading raised the question of how the Bill will impact on the work of combating human trafficking and on wider child protection issues. I was grateful to the noble Lord, Lord McNally, for his responses in the debate. However, as we all know, the devil is in the detail, so my amendments seek to explore further how the work of the Child Exploitation and Online Protection Centre and the UK Human Trafficking Centre will be incorporated into the National Crime Agency and be built on.
I want to put this issue in context. One of the current organised crimes under investigation occurred in Oxford. In March, Thames Valley Police arrested 12 men on various charges including trafficking, in relation to the sexual exploitation of 24 girls aged 11 to 16. In the press release issued by Thames Valley Police that day, the work done by CEOP and the UKHTC was also acknowledged. There have been subsequent arrests of individuals in association with this operation, which is known as Operation Bullfinch. That was in April and May and last Friday of this month.
Last Thursday, 14 June, CEOP published its assessment of the danger of those in possession of indecent images of children committing further crimes against children. The report suggested that such images are,
“becoming more extreme, sadistic and violent”,
and becoming much more available because of the internet. It states:
“In 1990, Home Office estimates of the number of individual, hard-copy [indecent images of children] in circulation stood at approximately 7,000 … Today, the number of unique [indecent images of children] in circulation on the internet runs into millions, with police forces reporting seizures of up to 2.5 million images in single collections alone”.
The report concludes that a link has been identified between possession of indecent images of children and,
“the contact sexual abuse of children”,
although more research is required to assess and quantify that link. The recommendations in the report include making possession of indecent images of children a high priority for UK policing, thus ensuring,
“the identification and safeguarding of a greater number of victims of contact child sexual abuse”.
Last Thursday, CEOP also released details of Operation Tharsely, which was conducted on 12 and 13 June with more than 40 police forces and officers from the Serious Organised Crime Agency who were targeting suspected and known child sex offenders. In the press release, CEOP said that 78 offenders had been arrested and 80 children protected. CEOP has a dedicated child trafficking unit that provides a specialist child-focused and protective approach to tackling child trafficking. The unit produces a national strategic intelligence picture on child trafficking every year.
As I said at Second Reading, the UK Human Trafficking Centre is a multiagency operation whose,
“role is to provide a central point of expertise and coordination in relation to the UK's response to the trafficking of human beings”.
The UKHTC has an important prevention remit, including disrupting traffickers, working with partner NGOs, raising awareness and disseminating intelligence. The UKHTC has worked on the Blue Blindfold campaign to raise awareness of trafficking among police forces, professionals and the public, as well as the campaign with the rather unfortunate title My Dangerous Loverboy which was designed to raise awareness of internal trafficking among children in the UK.
The UKHTC,
“works with UK and international law enforcement agencies to pursue and prosecute those responsible for human trafficking”.
It provides expert advisers who provide support and advice 24 hours a day to police forces and government agencies to support pre-planned operations, advise on the disruption and prosecution of identified offenders and help in determining whether individuals may be trafficking victims. It is also one of the UK’s two competent authorities to determine whether an individual is a victim of trafficking under the national referral mechanism and is the central collection point for NRM data.
I hope that my brief review of the functions of these two agencies will convince the House of the importance of the current work. Yet, we cannot be complacent. We need to ensure that this work continues within the NCA and that the UK’s effectiveness in tackling this terrible crime is improved further. I hope that noble Lords will be able to support my amendments to bring a “combating human trafficking function” within the work of the NCA in Clause 1. Amendment 3B would ensure that the functions of the Human Trafficking Centre and CEOP will be part of the NCA under statute. Amendment 3A would ensure that human trafficking would be recognised as a serious organised crime for the purposes of this Bill.
We have international obligations to prevent and police human trafficking and to support victims under the European convention on human trafficking and the European directive on human trafficking. My Amendment 3A would require that the NCA take necessary measures to meet particular obligations under the European directive. There would be an obligation to provide training for investigations and for effective investigative tools to be available. That would meet Article 9 requirements. Similar requirements are also set out in Article 29 of the European convention.
The UKHTC already has a remit to provide services for protection, assistance and recovery of victims of trafficking. It works,
“closely with partners across the public, private and voluntary sectors to coordinate the provision of a full care, end-to-end programme for the victims of human trafficking”.
I am concerned that this important function should not be lost in the crime reduction and criminal intelligence functions of the NCA that are set out in Clause 1. The obligation in Amendment 3B would place that protection function in statute and seek to meet the obligations of Articles 11 to 16 of the directive. Similar requirements are also set out in Article 12 of the European convention.
I should make it clear to noble Lords that this amendment does not intend that the NCA should be undertaking provision of services, but that the overseeing role of the UK Human Trafficking Centre should continue and, in carrying out its duties, that there is intentional action to ensure that the UK is meeting its international obligations.
The amendment specifically states that there need to be services for both adults and children. A number of concerns about the impact of the NCA on current resources tackling human trafficking were raised at Second Reading. The need to care for trafficked children has been debated by the House on numerous occasions. The debate ranges from specific measures if they give evidence in court to educational needs and much more besides.
I was grateful to the noble Lord, Lord Henley, for giving a commitment in February to look into the case for appointing legal advocates for trafficked children, I and look forward to the outcome of that work. I was also grateful for his letter of 13 June, a copy of which is in Library, reminding us that the NCA will have a statutory duty to safeguard and promote the welfare of children across all its functions and duties. It would be helpful to know how he thinks this will change the current work and approaches of the UKHTC and CEOP.
Baroness Butler-Sloss
My Lords, I strongly support these amendments and Amendment 22, to which I assume the noble Baroness, Lady Doocey, will speak in a moment. Two All-Party Groups have today published their Report from the Joint Inquiry into Children who go Missing from Care—I am relieved that it came out today so that I can refer to it. In doing so, I need to declare an interest. At least I hope that it is an interest, because I should at this moment be at the annual general meeting of the All-Party Parliamentary Group on Human Trafficking, where I hope the group will decide to retain me as co-chair. However, I thought that it was more important that I should be present here to speak to the amendment of the noble Lord, Lord McColl.
The report from the joint inquiry makes some extremely important and worrying comments and recommendations in relation to trafficked children, many of whom are foreign children trafficked into this country. It has found from having heard a lot of evidence that it is estimated from,
“the patchy and incomplete data that is available on trafficked children”—
which is one of the most worrying aspects of this report—
“that 60% of suspected child victims of trafficking in local authority care go missing”.
The noble Lord, Lord McColl, referred particularly to sexual exploitation, but the finding of the parliamentary groups is that:
“Being exploited for labour is the most common form of exploitation for trafficked children, followed by sexual exploitation, cannabis cultivation, domestic servitude, benefit fraud, street crime and forced marriage. Many of the victims are subject to multiple forms of exploitation”.
Among their key recommendations is:
“A completely new system of reporting incidents of children going missing from care, which combines data from both the police and local authorities”.
Although the Minister might be wondering why on earth I am talking about what he might think is a matter for the Department for Education, this issue affects the NCA just as much it affects local authorities through the Department for Education. One of the major problems is that the police are not given information about children going missing from care homes where they have been placed, either because the local authority does not have that information or because the children are in another local authority which is not the local authority concerned with the children. It is a crying scandal that nobody knows anything about large numbers of missing children in this country except the place from where they went. Those data are not passed to the police. The police must be proactive in finding out what is happening to children.
The figures that local authorities give are peanuts compared with the figures that the police give. Local authorities say that it is about 900; the police think that it is probably about 10,000. Some of those children are trafficked children. I am very concerned that the United Kingdom HTC at Birmingham, which is doing sterling work, does not receive all the relevant data. One of the great problems here is the lack of a national rapporteur, or an equivalent mechanism under Article 19 of the directive. No organisation, even the UKHTC, seems to be given all the relevant information about children and adults who are the victims of trafficking. Data are crucial. The Dutch rapporteur has come to this country from time to time explaining how, in Holland, she is responsible for all the data, which she can give to the relevant police authorities. That is an extremely important aspect.
Amendments 3A and 3B—and, indeed, Amendment 22—would remind the NCA of an overriding obligation to deal with one of the most important and worrying crimes in this country, which is the receipt of foreign people who are trafficked and the internal trafficking of our own children. The police need to be proactive. The NCA needs to make sure that police, right down the scale, are aware, so that if they see a child in an odd situation, they should find out whether that child is missing from a care home or foster home or, perhaps more importantly, wonder whether the child is a trafficked child.
The point made by the parliamentary group is that most child victims go missing within one week of being in care, often before being registered; and almost two-thirds of trafficked children are never found. One reason that the non-British trafficked children go missing from care is that they have been groomed by their traffickers not to let anybody in this country know about it, either because they are frightened of the police or, much more likely, because they have been threatened with what may happen to their families. They are not immediately obvious, but that does not mean that we do not have, and that the NCA should not have, an absolute obligation to seek out those children and adults who are in a similar position—in particular, if I may come back to it, to deal with the inadequate and patchy data. That is something that the NCA should have responsibility for in passing all the information it has to the UKHTC in Birmingham, if that is the best place.
I wonder whether the Government should rethink where national data should be placed to ensure that they are all produced—what CEOP, the NRM and everyone else, in particular local authorities which may end up with information about the children they take, have. The Department for Education should be working much more closely with the Ministry of Justice, police and local authorities. I believe that the only way in which it will work more closely is if it is stated in primary legislation what should be done.
Baroness Doocey
My Lords, regarding Amendment 22, I am concerned at the failure of the Bill to deal adequately with the problems of child trafficking. I was also concerned at Second Reading that the Minister’s only reference to child-related crime was a mention of the exploitation of children for sexual purposes. This is not the same as child trafficking; the two are separate issues and dealing with one does not necessarily deal with the other.
Because the Bill is silent on child trafficking, it is unclear where responsibility is going to lie. Will it be with CEOP or the new operational command for border policing and immigration crime, or will it be divided between the two? I very much agree with the comments made by the noble and learned Baroness, Lady Butler-Sloss, that the difficulty is we really need something that deals exclusively with children. The ideal solution would be the establishment of a child-focused operational command within the NCA that could deal with all problems pertaining to child-related crime, including all forms of child trafficking and child exploitation.
Amendment 22 would not force the NCA to establish such an operational command since that is clearly a policy decision. However putting the words “child trafficking” on the face of the Bill would make it abundantly clear that this was a prime duty that the NCA had to address.
From the official statistics, which are woefully inadequate, we know for certain that in the past two years more than 600 children were trafficked into the UK. However, this is likely to be the tip of the iceberg because it is almost impossible to get the real figures. One reason for this is because trafficking legislation requires evidence sometimes called double intent, which means that it is necessary to prove both an intent to transport and an intent to exploit. Often, evidence exists of one or the other, but seldom both. For example, trafficking legislation cannot be used if a child arrives in UK with an adult but there is no evidence to prove that the same adult will exploit the child during its time in the UK. Such cases are usually prosecuted under immigration legislation. They are then not recorded as child trafficking, they do not go into the official statistics, and the official figures therefore hugely underestimate the problem.
The types of child exploitation are varied. Domestic servitude is a major issue and always has been, but looking after cannabis plants—I think it is called “cultivation”—is a major issue for children, particularly those brought in from Vietnam. Vietnam has consistently ranked in the top two countries for child referrals since 2009 when the national referral mechanism began. Despite this, there has not been a single prosecution under UK law for the trafficking of children for forced labour in cultivating cannabis, although Vietnamese children are regularly arrested and prosecuted in the UK for drug-related offences.
I urge the Committee to support this amendment. If we can get the words “child trafficking” on the face of the Bill, it will elevate the problem to a major responsibility of the NCA and something that has to be taken very seriously, that cannot be split between different operational commands and cannot just be pushed to one side. This is a very serious problem and it needs to be seriously addressed.
Lord Neill of Bladen
Will the noble Lord, Lord McColl of Dulwich, say that his amendment is essential in relation to the directive? In other words, if his amendment were forgotten about or did not exist, would the Bill contain provisions that have the same effect, or are his provisions critical to the UK’s ability to carry out its duties under the 2011 directive?
Lord Hylton
My Lords, we have now heard some very powerful speeches in favour of these two amendments. I would add two further examples of trafficking which have not so far been mentioned. There is some evidence—and there are certainly some strong suspicions—that, first, some English-born children have been trafficked from place to place within England and that, secondly, some children who have been taken into the care of local authorities but have run away or escaped, or taken avoiding action, have then been trafficked out of this country to overseas destinations for unknown purposes.
Lord Harris of Haringey
My Lords, we are all grateful to the noble Lord, Lord McColl, for introducing the subject of child trafficking into the Committee today. One reason why it is so important that we look at what should or should not be written into the Bill about child trafficking, human trafficking, child exploitation and so on is the concern that there will be, from those who are concerned with these issues, that somehow these matters will get lost in the new National Crime Agency. I recall the concern expressed when SOCA was set up about what was to happen to the high-tech crime unit. It appeared to disappear completely. Because that unit had disappeared into the new agency, it was not apparent to those who had been working with it whether those activities were still continuing as time went on. There is a very real concern that some of these issues about child exploitation, human trafficking and so on may disappear or not be given the same priority.
Part of that comes back to what I suspect may not be included in this much vaunted framework document, which is: what governance and external-facing relationships is the National Crime Agency going to have? CEOP, for example, has a highly regarded partnership structure that relates to other organisations which are active in the field. It relates to those technology companies and to all sorts of organisations which need to work with it to help deal with child online exploitation. The danger is that unless we are told explicitly that these activities will carry on and that those relationships with external agencies will continue, some of them will disappear. There is a real fear about some of these activities and relationships as far as CEOP is concerned, which is why we are seeing amendments such as the one before us that are trying to pin down what the responsibilities will be on issues such as trafficking and child exploitation. I hope that the Minister can give us some reassurance that these issues will be dealt with explicitly in the framework document, so that we can be reassured that the National Crime Agency will continue to have robust external relationships on this range of issues.
Lord Rosser
My Lords, the noble Lord, Lord McColl of Dulwich, has long championed the issue of child victims of human trafficking, having had, I believe, a Private Member’s Bill in the last Session and an amendment to the Protection of Freedoms Bill to introduce a system of guardians for child victims who enter the system. His amendments today, however, relate to including in the NCA’s statutory functions a duty to fulfil the requirements of the EU directive on human trafficking. They also provide that the functions of the National Crime Agency would include the functions of the UK Human Trafficking Centre and of CEOP. We support this group of amendments as a means of strengthening the requirement on the Government to implement the directive fully and of providing clear roles and responsibilities for the NCA on trafficking, including child trafficking, since there is a serious problem that needs to be addressed, as the noble Lord and others have said.
The Home Office has itself acknowledged that some 32% of child victims went missing from care between 2005 and 2009, with many being abducted back by their traffickers. The guardians system, which was the subject of the amendment tabled to the Protection of Freedoms Bill, is advocated by UNICEF and leading children’s charities as a means of ensuring continuity of care and continuous oversight of trafficked children who have been taken into care by the state. At the Report stage of the Protection of Freedoms Bill, as I recollect it, the noble Lord, Lord McColl, did not move his amendment, which would have placed a duty on the Secretary of State to introduce the guardians system for child victims of human trafficking, because of assurances that the noble Lord, Lord Henley, gave that the Government would commission a report by the Children’s Commissioner into ways to improve retention of child victims in care.
As has been said, this is a particularly topical issue as the Children’s Minister has accepted that the system is failing in preventing children in care going missing, as revealed in the report published today by the All-Party Group on Runaway and Missing Children and Adults, to which the noble and learned Baroness, Lady Butler-Sloss, has already referred. Its report stated that vulnerable young people are being systematically let down. The Children’s Minister has, I believe, promised urgent action to address the problems that have been identified. It seems that there are big discrepancies between police and Department for Education figures, as has already been said. The DfE last year said that 930 children went missing, whereas the police estimate that 10,000 children in care went missing. We need accurate and reliable figures, since going missing is regarded as a key indicator that children are open to the risk of abuse. Indeed, one of the main reasons that the all-party group felt led to children running away was that 46% of children in children’s homes were placed away from their home town.
Considering today’s report by the all-party group and statement by the Children’s Minister that children are being “systematically let down” by the care system in failing to prevent them going missing, are the Government going to introduce a system of guardians or legal advocates for child victims of human trafficking, who are among the most vulnerable children in our care? The Government declined to accept the amendment to introduce guardians for child victims of human trafficking at Report on the Protection of Freedoms Bill, which is now of course an Act. Instead, they said that they would commission a report from the Children’s Commissioner to investigate measures to mitigate the number of trafficked children who go missing from care. When will the Children’s Commissioner actually report, and what steps are the Government intending to take in the mean time to protect these children and reduce the substantial number who go missing from care?
There is also the question of how this Bill and its provisions will help to address the situation that many of your Lordships have so eloquently identified already in this debate. Under this Bill, the National Crime Agency absorbs the Child Exploitation and Online Protection Centre. Can the Minister spell out how the Government believe that this will improve the situation? How will CEOP retain its own identity and operational independence and what assurances can the Government give that its integration into the National Crime Agency will not adversely affect its ability to protect children or to continue its multiagency approach, which might be put at risk if the National Crime Agency were seen as primarily a policing organisation? Which areas will CEOP continue to lead on in future in relation to trafficked and missing children and will there, as has already been asked, be any split of related functions in this area within the National Crime Agency that might lead to some cases falling between two stools, or rather between two agencies or organisations?
I repeat that we support these amendments and I very much hope that in his reply the Minister will be able to address the many points that have been raised.
Lord Henley
My Lords, I thank my noble friends Lord McColl and Lady Doocey for bringing forward their amendments and for highlighting just what we are dealing with in bringing to the attention of the House the appalling crime of trafficking, particularly the trafficking of children. I underline the points made by my noble friend Lord McColl during the passage of the Protection of Freedoms Act. In saying so, I say to the noble Lord, Lord Rosser, that we are still awaiting the report from the Children’s Commissioner. The timing of that will have to be a matter for the commissioner herself, and I cannot give him any further assurance about timing at this stage.
I also thank the noble and learned Baroness, Lady Butler-Sloss, for her references; I think she was the first contributor to refer to the all-party group. I got rather confused as she referred first of all to a committee and then to something else, and I finally worked out that she meant the report from the all-party group, which came out only today—or was it a bit earlier? In due course there will have to be a response to that, and I very much hope that colleagues in the Department for Education with primary responsibility will lead on that.
I thank all noble Lords who referred to the work of CEOP in this field. I have visited that agency since becoming a Minister in the Home Office, and I am sure that other noble Lords have done so and know just what an effective job it does and how well it can do it. Again, I assure my noble friends and other noble Lords, as my noble friend Lord McNally did when he wound up the Second Reading of the Bill, that we believe that the NCA will have a key role to play in building on the existing arrangements for dealing with trafficking, using its enhanced intelligence capabilities and co-ordination functions to target both organised criminal gangs involved in perpetrating these crimes and others, wherever they are.
It is my job today to deal with the specific amendments, beginning with Amendments 3A and 3B moved by my noble friend Lord McColl, that deal with the functions of the National Crime Agency in Clause 1. I am satisfied that the functions set out in Clause 1—we must also refer to Clause 8—are sufficiently broad to encompass human trafficking. The important point that we need to deal with is whether we need a specific reference in the Bill to human trafficking, particularly in the light of what is available in Clause 8. I remind noble Lords that there are specific references in Clause 8(1) and (2) to Sections 11 and 28 of the Children Act, which make clear that the agency has to discharge its functions in a way that has regard to the need to safeguard and promote the welfare of children. We need to discuss whether we need to bring in my noble friend’s amendments or whether we have taken a sufficiently broad approach to the agency’s functions.
The broad nature of the functions is also critical to ensuring that the agency has the flexibility necessary to respond to the changing threat in future. One needs to be wary of taking an overprescriptive approach to the listing of specific crime types, as this amendment starts to do, which might undermine the approach that we have taken to the functions as set out in Clause 1. Amendment 3A then seeks to go further and add to the agency’s functions by placing on it a specific responsibility for ensuring that the UK meets its obligations under the human trafficking directive, to which I think my noble friend and the noble Lord, Lord Neill, referred. As I hope I made clear on earlier occasions—during, I think, the debates on the Protection of Freedoms Act—we are satisfied that we will meet the requirements and be compliant with that directive. Her Majesty’s Government have had discussions with the Commission about that matter.
I do not consider it appropriate for the agency to have the responsibility for ensuring that wider obligations are met. The agency should be combating human trafficking, not checking that other organisations—which there will be, on this occasion—are meeting their obligations. However, my noble friend is right to highlight the important obligations. Once again, although I am not persuaded of the need to add to the agency’s functions in this way, I do not wish to diminish the importance that the Government place on that directive or the obligations that it places on the United Kingdom.
Amendment 3B seeks to ensure that the functions of the United Kingdom Human Trafficking Centre and CEOP are included within the functions of the National Crime Agency. My noble friend set out the important role that these bodies have in tackling human trafficking. I repeat what other noble Lords have said, just as I said at the beginning, in underlining the valuable work that they do in this area. I categorically assure my noble friend that CEOP and the Human Trafficking Centre, both currently part of the Serious Organised Crime Agency, will continue their important work as part of the National Crime Agency in future.
Baroness Butler-Sloss
I am extremely grateful to the Minister for giving way. Will there be any reference, in any documentation such as the framework or anything else of significance for the NCA, to human trafficking?
Lord Henley
I refer the noble and learned Baroness, as I did at the beginning, to Clause 8 and its reference to the Children Act, which does not refer to trafficking but makes quite clear that the interests of children should be taken very seriously. That said, I do not believe that it is necessary—this is what I have been trying to explain to the noble and learned Baroness and to the rest of the House—to refer to it specifically in the Bill in the manner she suggests. Further, I take her back to the references that have been made to the EU directive. We believe that we will be compliant with that and it is very important that that is also there.
I see that I must give way again to the noble and learned Baroness.
Baroness Butler-Sloss
I apologise to the Minister, but it is just possible that he misunderstood me. I was asking whether, if these amendments were not accepted, there would be anything—not in primary or indeed in secondary legislation but at least in either the framework or other instructions to the NCA—to make very clear the importance of dealing with the trafficking of children and adults and the other points that we have made so that it was known in writing rather than being a general admonition.
Lord Henley
I take the noble and learned Baroness’s point and I will certainly consider a specific reference when it comes to the framework documents. I was dealing with what was in the Bill, which I think is very important due to the reason that I set out—the changing nature of crime. For example, 10 or 15 years ago we had never heard of cybercrime. Now we have. Things change and move on and the danger of listing things in primary legislation in the manner that she suggests is that it may confine us unnecessarily and is not the best way of dealing with these matters.
I hope that those assurances are sufficient for my noble friend to feel able to withdraw his amendment. We might want to have further words and noble Lords and noble Baronesses might want to see more in due course, but for the moment I hope that he is satisfied. I await what he has to say with interest.
Baroness Hamwee
Following up the noble and learned Baroness’s point, surely one would expect, among the strategic priorities that the Secretary of State has to address and determine under Clause 3—she will have to report to Parliament—the issues of child and adult trafficking to which she referred and the different purposes of trafficking.
Lord Henley
My Lords, I look forward to my right honourable friends setting out their strategic priorities and to reports in due course. Whether I am the one who has to respond in this House when they appear is another matter. I am sure that the sort of pressure that my right honourable friend will be coming under will be such that she will certainly take on board what the noble and learned Baroness has had to say.
Lord McColl of Dulwich
My Lords, as a Scot I do not like wasting words and paper and so on and I understand that we cannot have lots of things in the Bill, but this is such an important issue. It is even more important than I thought it was until the noble and learned Baroness, Lady Butler-Sloss, brought out the figure of 10,000. When we were talking about 300 children missing, perhaps the Bill would have been big enough to cope, but 10,000 children missing is appalling. This House and the country as a whole do not understand just how terrible the situation is. In answer to the noble Lord, Lord Neill, I must say that these amendments are essential and that we really have to press forward to do something about these appalling facts. Children are being brought over here and made to work on cannabis farms. They are then arrested and taken to court, which they do not understand, and then sent to prison. It is appalling. Something really has to be done.
I thank the Minister for all his help. We have been to see him on several occasions and we feel that we are moving forward. I thank him for his helpful reply, which we will certainly reflect on. I beg leave to withdraw the amendment.
“(1) It is the duty of the Secretary of State to ensure that the NCA is provided with sufficient resources to enable its functions to be discharged effectively and efficiently.”
Baroness Smith of Basildon
My Lords, the reason for this amendment is not dissimilar to the reason for the previous amendment that I spoke to: the contradiction that I find at the heart of this Bill around the role of the Secretary of State and whether it is strategic or operational. We are very firmly of the view that it should be and must be a strategic role. As I indicated in my earlier comments on governance, it is an issue of power and responsibility: who holds power and who takes responsibility. We have seen it in other Bills and on other issues.
We are very clear that funding is a strategic role for which the Secretary of State should have responsibility. By way of example, I remind the Minister of a question I asked him on police and police cuts with reference to my own county, Essex. We now have no 24-hour police stations. A number of police stations are open only part-time or during the day, and we have lost or are due to lose several hundred police officers. When I queried him on the Government’s policy on this, he referred me to the chief constable and said it was his responsibility not the Government’s. Surely, the chief constable takes such decisions only in light of the funding laid down by the Government.
I want to make it quite clear in this amendment that the responsibility for the funding of the National Crime Agency is a very strategic role and one for the Secretary of State to ensure that the agency has the funds to do all the work that it needs to do to be effective.
The national plan states that the National Crime Agency,
“will not exceed the aggregate of the Spending Review settlement for the precursor organisations and the cost of the fully funded functions it is agreed should migrate into the NCA”.
That is helpful in many ways, and the Government have since confirmed that the NCA budget for 2014-15 will be around £400 million.
While we understand that the Government are saying that the budgets will migrate with the organisations, which we certainly welcome, in reality we have to look at the cuts that those organisations have already sustained and the loss in their budgets and the savings they have found, in many cases to their credit. The National Policing Improvement Agency has found, I understand, around a £100 million reduction in its budget. Its headcount has gone from 2,200 to 1,400 and it is facing further deep reductions to its budget over the remainder of the financial review period. Clearly, if the NCA is to operate in the same spending envelope as its predecessors, it is unclear how it can manage what it does now and be the co-ordinating body for the organisations that have been moved under its control.
I raise this issue because we want to see the NCA succeed and to be able to do the work that it is going to do, but I wonder whether it would have been cheaper and more cost-effective just to have the organisations working more closely together and to mandate closer working between existing agencies.
Lord Condon
My Lords, at Second Reading I raised concerns about the resourcing of the NCA, not in the sense of special pleading for the police service in general or for the NCA in particular, but having now been around policing for just over 45 years, I have never encountered a time when individual police forces were under such rigorous challenge as regards their resources and their budgets. I totally accept that, as part of the wider challenge that we face economically as a country, there is no element of special pleading in what I am saying, and I am most grateful to the Minister, who very kindly agreed to a meeting last week, at which the new director-general of the NCA and officials were also present. I was reassured, as I knew I would be, by the energy, intelligence and commitment of all those present to give the NCA the best possible start, but having spent over 35 years in and around policing as a serving officer and then over the past 10 or more years as a very interested spectator, I am still left with concerns that the remit for the NCA is going to be tough to deliver against its budget.
Although the Minister may not feel able to concede much on this amendment or be able to put anything similar in the Bill, there is a pragmatic challenge about how the new NCA, with all its co-ordinating tasks, new tasks and the demands put on it, will be able to deliver against the background of its budget. It will work smarter and do more for less, but my experience in both the public and the private sectors is that sometimes you have to spend to save, to get economies of scale, to get new, smarter ways of working and to get synergies. There are start-up costs, and I would like to think that there will be some flexibility around the budget, even if this amendment is not accepted. Like others in this House, I want the NCA to get off to a very good start, and I would not want anxiety around some, relatively speaking, small resource issues to undermine the potential for it to be such a force for good.
Lord Henley
My Lords, I quite understand the concerns expressed by the noble Lord, Lord Condon, and we understand that very difficult decisions have been made by different police forces up and down the country about where they are going to rein in expenditure, just as all agencies of the Government of one form or another are having to make very difficult decisions, but we believe that the cuts that they face are manageable. We also believe, and I think this is something to get over, that merely throwing money at a problem does not necessarily, as we discovered before 2010, solve problems, and increasing budgets does not always bring improvements in the service that the public have a right to expect from all services that the Government and taxpayers provide in one form or another.
It will, no doubt, be difficult for the NCA, which, like SOCA, will have to live within its budget and the review settlement. The NCA’s budget will be based on the budgets of the precursor organisations. It will have to deliver that wider remit through enhanced intelligence, tasking and co-ordination arrangements that I hope will make more effective use of its resources—its own assets and those of others. Creating the agency will also provide opportunities to rationalise some functions, remove duplication in others and generate efficiencies.
Turning to the amendment of the noble Baroness, Lady Smith, and her question, in effect, about the responsibility of the Home Secretary, the important point is that the Home Secretary is ultimately accountable to Parliament for public protection. She has a vested interest in ensuring that the National Crime Agency has sufficient resources to deliver the priorities set for it. The Home Secretary will want to make sure that sufficient resources are therefore provided for the important work of the NCA when she negotiates with colleagues in the Treasury. The noble Baroness knows exactly what this is like and I look at other Ministers who have negotiated these things in the past. Sometimes those negotiations can be difficult, but it is something that the Home Secretary will have to address after the next spending review.
Importantly, she will remain responsible and answerable to Parliament after those decisions have been taken for making and setting the strategic priorities for the NCA. Again, the Home Secretary will consult others, whether it is the director-general of the NCA or whomsoever. The director-general will be able to provide that operational understanding of the resources required to deliver in this area. He will also need to ensure that the resources are allocated in the most effective and efficient manner. The important work of the NCA will need to be delivered within the budgets of its precursor bodies in those first years of operation. The budget constraints for the remainder of this Parliament will obviously continue to remain challenging. That means that the NCA, like many other bodies, will look closely at identifying duplication of effort and maximising opportunities for savings. I believe it will be able to ensure greater efficiencies by more effective prioritisation and smarter use of its own assets and those of others.
It is in the interests of the Home Secretary to work with the director-general to ensure that there are adequate resources for the National Crime Agency. The fact that my right honourable friend is answerable to Parliament means that the amendment is unnecessary and I hope that the noble Baroness will feel able on this occasion to withdraw it.
Baroness Smith of Basildon
I am grateful to the Minister, but I wonder whether saying that the Home Secretary is accountable to Parliament is adequate. He will recall that I asked him a question about Essex police. Obviously he is accountable to Parliament, but he told me that it was the responsibility of the chief constable. If the Home Secretary is questioned about funding not being available or adequate to the task, will she merely say, “That is an operational matter for the director-general”? Allocating funding within the organisation would be a matter for the director-general, but it is the overall envelope of funding that puts pressure on him. I am encouraged by the comments of the noble Lord, Lord Condon, which I share, that he is reassured by the intelligence and commitment of those who will be involved in running the NCA. However, the Minister has said that it is going to be difficult. Hearts must sink when people go into a new organisation, really wanting it to succeed, but they are told that it will be difficult to make it work within the budget.
I am also disappointed by the Minister’s comments that we cannot just throw money at a problem. I do not think that anyone has suggested that money be thrown at a problem, but there could well be a problem if the resources for the NCA are not adequate for the task that it has to undertake. If the NCA starts by struggling for funds and not being able to fulfil its obligations, it will lose credibility. I understand the point that he makes and I do not think that he is going to concede as regards looking at the funding or funding additional responsibilities that the NCA will take on. I wonder whether there is a case for reviewing the expenditure and operation after one year. Perhaps a Select Committee could undertake that role and we might return to it. For now, I take on board what he has said and I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
My Lords, this is a probing amendment. It deletes paragraph 5(1) of Schedule 1 which states:
“For the purposes of the discharge of NCA functions which relate to organised crime or serious crime, an NCA officer may, in particular, carry on activities in relation to any kind of crime (whether or not serious or organised)”.
These words are similar, but not the same, as those relating to SOCA in the Serious Organised Crime and Police Act 2005. Could the Minister explain the significance of the changed wording? On the face of it, the power in paragraph 5(1) of Schedule 1 could be very wide ranging, particularly in the changed world of the new and more powerful National Crime Agency, with the director-general able to direct chief officers of other forces to perform tasks, and in the world of elected PCCs. It would be helpful if the Minister could put on the record how the Government intend that power to be used by the new agency, and in what sort of circumstances and on what kind of occasions.
The functions of the National Crime Agency are set out in Clause 1 of the Bill and refer to combating organised crime and serious crime. Equally, there are references in that clause to combating,
“any other kind of crime”,
and combating,
“crime (or a particular kind of crime, such as organised crime or serious crime)”.
This indicates that the role of the more powerful and influential NCA could be wider than just organised and serious crime. Paragraph 5(1) of Schedule 1 suggests that the power of the NCA and its officers in relation to any kind of crime relates only to occasions when they come across such other crimes when they are involved in dealing with organised and serious crime. If that is the case, no doubt that will be the thrust of what the Minister will say when he responds. However, this clearly could be something of a grey area which presumably could mean National Crime Agency officers becoming involved in dealing with the kind of crime that might be a matter for other police forces rather than the National Crime Agency.
Who, then, will make the decision on whether a National Crime Agency officer should carry on activities in relation to another kind of crime when it is neither serious nor organised? Will it be for individual NCA officers on the spot to decide or the director-general of the NCA? Will the director-general decide but require the consent of the Secretary of State, or will it be a matter that can be undertaken only by NCA officers when there is prior agreement between the chief officer of the police force that would normally deal with such a crime and the director-general of the National Crime Agency?
There is a possibility that this particular provision in Schedule 1, allied to the provisions of Clause 1, could be used by the director-general of the new, more powerful and influential National Crime Agency to seek to extend his or her wings and influence. The director-general could take the view that a range of other crimes could,
“relate to organised crime or serious crime”,
and be addressed by the National Crime Agency and thus could and should involve National Crime Agency officers. It might well be that the Minister may say that this will not happen, but what is to stop it happening under this Bill? Bear in mind that the director-general of the new National Crime Agency has wider powers and responsibilities, including stronger powers of direction than have previously applied in relation to chief constables of other forces.
There is potential for friction between the National Crime Agency and police forces in England and Wales, particularly with elected police and crime commissioners on the scene, unless some very clear guidelines are provided on the kind of circumstances in which the powers of the National Crime Agency to become involved in dealing with any kind of crime, in addition to organised crime and serious crime, can and should be used. I hope that the Minister will be able to set out how the Government see this power in paragraph 5(1) of Schedule 1 being exercised by the new, more powerful and influential National Crime Agency and its officers under the terms of this Bill. I beg to move.
Lord Henley
My Lords, I am grateful to the noble Lord for explaining what lay behind his probing amendment. I hope that I will be able to set out what paragraph 5(1) of Schedule 1 is about. It makes it clear that the National Crime Agency can undertake the widest possible operational activity to maximise its impact on serious and organised crime. Clause 1 sets out clear expectations for the range of operational activity that it will be necessary for the agency to be able to undertake. Paragraph 5 goes further, making it clear that the agency can undertake operational activity,
“in relation to any kind of crime (whether or not serious or organised)”,
if it will ultimately deliver its crime reduction function. This includes disruption activity.
We are clear that the agency needs to be focused on national crime threats. That is why the crime reduction function has been drafted in the way that it has. This is not about interfering in local policing or taking over the work of individual police forces. Rather, the National Crime Agency will work with and support the work of local policing and police forces nationally to tackle crime that warrants a response beyond the boundaries of a local police force. It is also not about broadening the remit of the agency, but strengthening the ability of the police to respond to the serious and organised crime threats that face every community in the United Kingdom every day.
Criminal gangs have networks that can span from street-corner drug-dealing to the international importation of drugs and firearms. Therefore, it is important that the agency is able to take action against such gangs and other serious criminals along the whole spectrum of crime across which they can operate, from that very local level up to national and international levels. This amendment would therefore significantly curtail the effectiveness of the operational activity that the agency could undertake. It is right that the agency’s efforts should be concentrated on serious and organised crime, but the Committee will recognise that sometimes the most effective way of disrupting a crime network is to tackle the lower-level, seemingly less serious crime to have the greatest impact and stop the crime group operating. For example, an agency officer may want to use their powers to arrest a suspect for a possession-of-drugs offence to disrupt a much larger operation that involves a number of people in the supply of illicit drugs.
In all cases, the activity of the agency should be directed towards its core role of protecting the public from serious and organised crime. That is already written into paragraph 5. Where an agency officer is tackling crime that is not serious or organised, it must be to deliver the agency’s function of tackling serious and organised crime.
Finally, I point out to the noble Lord that there is a very similar provision in Section 5(3) of the Serious Organised Crime and Police Act 2005. The previous Administration accepted the need for such a provision. I appreciate that this is a probing amendment but I hope that the noble Lord will see that it is unnecessary and, in effect, a replication of what was there before. With those assurances and that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Rosser
My Lords, I thank the Minister for his response, which has clarified the Government’s intentions behind the wording “any kind of crime”. I referred to the fact that there is similar wording relating to SOCA in the Serious Organised Crime and Police Act 2005. I commented that it was not the same wording as appears in the Bill and asked the noble Lord to explain the significance of the change, which he has not done. Maybe the wording has been changed for a good reason but at the moment I am not clear as to what that is.
I am not entirely surprised by the Minister’s response. I understand his point that, in addressing serious and organised crime, there may come a need or a necessity to address other kinds of crime in the course of those investigations. In moving the amendment and asking those questions, I was simply pointing out that it depends on the extent to which this power is used and how it is used. Although I posed the question, I am still not clear as to what the Government’s intentions are in respect of who will decide whether the powers in paragraph 5(1) of Schedule 1 should be used. I asked whether it would be the NCA officer on the ground, the director-general or the director-general with the clearance of the Secretary of State, or whether it would be a matter for agreement between the director-general and the chief constable of another force. I have not had a specific response to that point either. Does the Minister wish to intervene?
Lord Henley
I will intervene if the noble Lord will give way. On his point about the comparison between the 2005 Act and the Bill, I will look carefully at what he said. I do not have the wording of the 2005 Act in front of me and it does not stick firmly in my head. However, I am sure that there are very wise words in the Act. Our intention was to replicate what was there. If there are differences in the wording, there is no intention to do anything different. The intention was to achieve the same object. It might be worth my looking again at the precise wording of the 2005 Act and what we have here and writing to the noble Lord, just to make it clear that our intention and that of the draftsman—remember that over seven years the style of drafting will change—was to achieve the same things. Is the noble Lord happy to accept a letter from me on that matter?
Lord Rosser
Yes, I would certainly accept a letter. I do not wish to imply that there are major differences in the wording but it is not precisely the same. However, if the intention is that it should mean the same, that is fine. If the Minister could write to me, saying that, it would clear up the matter. In the light of the Minister’s reply, I beg leave to withdraw the amendment.
“( ) the relevant Departmental Select Committee of Parliament,”
Baroness Smith of Basildon
My Lords, we return to the recurring themes of governance and operational independence, this time in relation to the provisions of Schedule 1 on director-general appointments and resignations. I entirely agree with the Government that the NCA should preserve strict operational independence. That is why the director-general should not have such a close relationship with the Home Secretary as the one proposed in this legislation, including in Schedule 1.
Looking at Amendment 10 first, it would mean that the director-general would be employed by the National Crime Agency board. The terms and conditions of employment would remain determined by the Secretary of State, which would preserve the ultimate accountability to the Secretary of State but avoid the direct oversight that is currently envisaged in the legislation. Amendment 8 would require pre-appointment scrutiny of the director-general by the Home Affairs Select Committee. In these amendments, I have tried not to be just my normal, moderate, reasonable self but also to look at bringing the wording broadly into line with the Government’s thinking as well as in line with the direction that they have indicated they wish to travel. The Government have indicated that scrutiny of appointment by Select Committee is appropriate and could be best practice. In this case, allowing the Home Affairs Select Committee to do pre-appointment scrutiny would offer an opportunity to consider issues such as skills. Later in the debate, we will look at a schedule on designation and the designations that will be given to the director-general by the Home Secretary. It would be helpful for a body such as the Select Committee to look at issues prior to appointment rather than the Home Secretary making that decision post-appointment.
Lord Henley
My Lords, I hope that I can deal relatively briefly with the amendments in the name of the noble Baroness. I can assure her that in moving the amendment she was, as always, her usual moderate self, for which I am very grateful. Perhaps I may deal first with Amendments 9 to 13 and then deal with Amendment 8 in more detail. Since Amendments 9 to 13 deal with discussing these matters with the chairman of an NCA board and so on, and since we have already dealt with an amendment on which I made it clear that we are not minded to have an NCA board—the noble Baroness will no doubt want to come back to that on Report—it seems somewhat artificial to discuss this issue at this stage. In the absence of a board and the absence of our desire to have a board, discussing such matters is possibly, dare I say, a waste of time.
As regards Amendment 8, I repeat again that the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is therefore right that she should be responsible for appointing and, if necessary—although I hope that it will not happen—dismissing the director-general. She will make any appointment on merit following a fair and open competition and will consult, as the Bill makes clear, her counterparts in the devolved Administrations, reflecting the fact that the NCA will be a UK-wide agency. Under Amendment 8 the noble Baroness seeks to ensure that the selection and appointment of the director-general is subject to scrutiny by the relevant Select Committee, which in this case would be the Home Affairs Select Committee.
We accept that there is a place for departmental Select Committees to undertake pre-appointment hearings for certain key public appointments but we do not believe that this is one of them. I should remind the noble Baroness that the Liaison Committee considered this issue in its July 2011 report on public appointments. It argued for a role for Select Committees where the post exercised one or more of three types of function, including,
“scrutiny of government over matters of propriety, ethics and standards in public life … uphold and defend the rights and interests of citizens; and/or … stand in the shoes of Parliament by exercising direct scrutiny or control over the activities of Ministers”.
None of those criteria apply to the NCA. Perhaps I may add that, for example, the director-general of the Serious Organised Crime Agency was not on the Liaison Committee’s list of appointments to be subject to Select Committee scrutiny.
The Home Affairs Select Committee obviously will have a role in scrutinising the work of the agency in the same way as it has scrutinised the work of SOCA. I believe that it is in that capacity that they can best contribute. But in line with the advice of the Liaison Committee, we do not believe that it is necessary for the Home Affairs Select Committee to have a role in the appointment of the director-general. That is a matter for the Home Secretary. I repeat, and I will probably have to repeat it again, that the Home Secretary is responsible to Parliament and it is right that she should be. Therefore, I hope that the noble Baroness will feel able to withdraw Amendment 8.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for his explanation. When we put forward Amendments 9 to 13 it did not occur to me that he would not accept our amendment for an NCA board with open arms. We thought that it would be a welcome suggestion and that we were being very helpful to him. We may return to those particular issues as I am disappointed with his response.
There seems to be ambiguity in Schedule 5 regarding the skills and abilities required of the director-general and those requirements can change. Given the provisions of Schedule 5, to which we will come later, some oversight by a Select Committee would be helpful to a Home Secretary in making appointments. I take on board what the noble Lord has said at this stage. Perhaps we may return to it when we discuss Schedule 5. I beg leave to withdraw the amendment.
Earl Attlee
Earl Attlee
My Lords, in moving government Amendment 14, I shall speak also to Amendments 18, 19, 52 and 53. I can be brief with these technical amendments. The Bill already makes provision in relation to people who volunteer as police special constables who become NCA officers or NCA specials. These amendments will extend those same arrangements to members of the Police Service of Northern Ireland Reserve. That includes ring-fencing the powers of an NCA officer or NCA special, so that where a person is both an NCA officer or NCA special and a member of the Police Service of Northern Ireland Reserve, any powers conferred on him or her in the former NCA capacity cannot be exercised when the person is acting in the latter—the PSNI Reserve—capacity. I beg to move.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Earl for his explanation. I ask him to clarify a couple of points. Have these amendments had the approval of the Northern Ireland Executive and the Justice Minister, or the appropriate Minister, in Northern Ireland? The only point I can make generally about this Bill on the relationship between the NCA and the PSNI is that there can never be a situation where a police officer or special in Northern Ireland is subject to direction and control from London without the same accountability as officers in Northern Ireland, whether they are part of the National Crime Agency or not. That would also apply to the specials that the noble Earl is talking about. I seek some guidance from him that this has been discussed with the Northern Ireland Executive and that Northern Ireland Ministers are content with this amendment.
Earl Attlee
My Lords, I cannot answer that point for certain, but it is inconceivable that the Government would table such an amendment without the agreement of the Northern Ireland Executive. If I am wrong, of course I will write to the noble Baroness.
Baroness Hamwee
Baroness Hamwee
My Lords, I can be extremely brief on this. Paragraph 13 of Schedule 1 provides for secondment to the NCA. My amendment would allow for secondments both ways. I felt that it was an issue worth raising because I think that secondment can often be extremely helpful to both organisations involved. It may be that the Minister will tell me that it is not necessary to provide for NCA officers to be seconded to a UK police force because that would be covered by some other existing police legislation. If it is covered, that is well and good; if it is not, why not? I beg to move.
Lord Rosser
My Lords, as the noble Baroness, Lady Hamwee, said, this amendment makes provision for National Crime Agency officers to be seconded to a UK police force, as well as for persons to be seconded to serve as National Crime Agency officers. I would like to raise two points on this paragraph in Schedule 1. It refers to “persons” being seconded to the National Crime Agency to serve as National Crime Agency officers. There is no qualification before the word “persons”. Could it literally be anybody and still be within the terms of the statutory provisions of the Bill? I ask that because paragraph 7(2) of Schedule 1 says:
“A person may not be appointed as Director General unless the Secretary of State is satisfied that the person—
(a) is capable of effectively exercising operational powers; and
(b) is a suitable person to exercise operational powers”.
In other words, if the Secretary of State makes an appointment that stretches credibility, and the Secretary of State could have satisfied himself or herself on the points referred to, presumably the appointment could be challenged under the provisions of the Bill. There is, however, no apparent requirement on the part of the director-general to satisfy himself or herself on any point in relation to “persons” seconded under the Bill as it stands, or indeed to National Crime Agency officers seconded under the terms of the amendment, although one could take the view that if they were existing National Crime Agency officers there ought not to be a problem.
Can the Minister say why there is no requirement in the sub-paragraph that we are discussing for the director-general to have to satisfy himself or herself that any person seconded to the National Crime Agency has to be, for example, appropriately qualified, bearing in mind that the Bill lays down requirements on the Secretary of State over the appointment of the director-general?
Finally, can the Minister say what the definition is of a National Crime Agency officer? Is it anyone employed by or working for the National Crime Agency, or does it refer only to certain kinds of posts or activities being undertaken within the National Crime Agency?
Earl Attlee
My Lords, I am grateful to my noble friend for moving this amendment. I appreciate that she is keen to encourage the exchange of staff both to and from the National Crime Agency. Indeed, interchange in both directions will be key to ensuring that the NCA benefits from the collective experience of policing as well as sharing its knowledge and specialist skills with UK forces.
SOCA officers regularly operate alongside operational colleagues in the police service, and it is vital that NCA officers are able to do the same. It is for this reason that the Bill provides for police officers to be seconded to the NCA and to be designated with the powers of an NCA officer during the period of their secondment. Two-way assistance provisions in Schedule 3 allow for NCA officers to operate under the direction and control of the chief officer of a UK police force and vice versa. However, there may be some merit in providing separately for more formal arrangements whereby NCA officers could be seconded to a UK police force for a sustained period of time. This might allow forces to benefit from the experience of NCA officers on a longer-term attachment.
If my noble friend will agree to withdraw her amendment, I can undertake to consider the matter further in advance of Report. At this stage I cannot commit to bringing forward a government amendment, but I agree that we should explore this issue in more detail. I will, of course, write to her once we have reached a conclusion.
The noble Lord, Lord Rosser, asked me a few technical questions. I suspect that I will have to reply to some of them in writing. He asked whether any person can be seconded to the NCA. The answer is yes. There is no reason why any person could not be seconded. However, there must be clear arrangements for the use of powers. It is worth pointing out that a person can be an NCA officer, but various powers can be designated for that person. Of course, it is important that powers are designated only where the person is properly qualified to exercise those powers.
Baroness Hamwee
My Lords, the less I speak, the more concessions we get, and I am very grateful to the Minister for that. Of course I will seek to withdraw the amendment. When the noble Lord, Lord Rosser, was raising some perfectly valid questions, it seemed to me that the terminology of paragraph 13—that the director-general “may make arrangements”—was likely to cover qualifications and scope. “Make arrangements” is a pretty broad provision.
Earl Attlee
My Lords, on the need for qualifications, the director-general will want to be advised of the suitability of potential secondees. They will be treated as NCA officers and will need to satisfy the usual criteria in order to be designated with powers.
Baroness Hamwee
My Lords, I look forward to talking to the Minister further about secondment and I am grateful for his offer. I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Pitkeathley)
Before I call Amendment 16, I must tell your Lordships that if it is agreed to, I cannot call Amendments 17 to 19 for reasons of pre-emption.
Amendment 16
Baroness Smith of Basildon
My Lords, this is a probing amendment to clarify and understand the role of specials in the NCA and what they will do. When I read this clause, I thought I understood the role of specials. I went to my favourite police force—Essex—and looked at its website and at the government factsheet on specials in the NCA to try to tie the two together.
The government factsheet says that volunteers will be,
“similar to the police Special Constabulary”,
with,
“some or all of the policing powers available to”,
the NCA. It describes specials as,
“civic-minded volunteers in … public protection work … who may have particular specialist skills … in the fight against serious, organised or complex crime”.
Yet in all the information that I can find regarding the recruiting of special constables in the police force, not one mentions specialist skills or experience. In fact, it talks about special constables being unpaid volunteers and says that they are,
“a manifest sign of partnership between the public and the police”,
with key responsibilities of, for example, performing,
“police duties at public events eg. airshows, concerts and county shows to complement the regular police provision”,
and in emergencies performing,
“additional police duties to assist regular officers”.
It talks about how they have a range of skills, but mainly it is about having more visible policing on the streets.
I would like an explanation of how this translates into specials with the National Crime Agency. Will the agency seek to recruit only specialists—and, if so, what kind of specialist, and how would it seek to recruit them? Surely the work of the NCA is very different to that of a local police force. It is investigative and is to do with serious organised crime, with very complex issues. Police specials have to do a minimum of four hours a week; it is quite difficult to understand how a special in the NCA could fulfil any meaningful function in that time. The Bill refers to part-time specials, but then paragraph (14)(3) says that they can be “otherwise than … part-time”—and the only definition that I know of that is full time. I am not clear why someone would be regarded as a special if they were seconded or taken on a full-time role.
I am happy to be reassured and am looking for reassurance, but I am slightly uneasy as to how this would look across a range of functions and different commands within the NCA—with border control, for example, or CEOP. Did any of the constituent bodies previously use volunteers or specials in this way? Did CEOP do so, for example? Those who wish to abuse children are sometimes very cunning and intelligent in many cases in trying to get to the place where they can get information. Have volunteers been used in the past—and if an NCA special volunteer worked in one area, would that volunteer be allowed to undertake work across the range of NCA functions and responsibilities? What will they do exactly? Also, given the relationship with the PSNI, has there been a discussion with the Northern Ireland Executive on this part of the NCA’s work there? I am a bit puzzled as to how this would work in practice, and any information that the Minister can give would be greatly appreciated.
Lord Henley
My Lords, the noble Baroness pays tribute to her favourite police force in Essex, so I will say a word or two in relation to specials in Cumbria. I mention them in the other end of the country purely to make a point. Two Saturdays ago, I went with them to Appleby for the horse fair, where a very large number of the travelling community descend on a very small town and there are quite serious public order issues. It is the biggest issue in the Cumbrian police force’s annual list of events; from a very small police force it has to provide something like 200 officers over the course of that week on duty to make sure that things remain under control. As a result, I am very proud to say, they make enormous use of their specials in Cumbria, as I am sure that Essex would do in its events. We should all pay tribute to those who give their efforts unpaid and voluntarily as special constables for the work they do and how effective they can be. The role of the NCA specials will be somewhat different than for ordinary specials—if you can call them ordinary—in Essex or Cumbria or wherever.
It may be useful if I set out in some detail how we see the specials developing and the NCA recruiting its own cadre of NCA specials. Enabling the recruitment of NCA specials will build on the approach that has worked effectively for many years in the Police Service. Like ordinary police specials, NCA specials will be unpaid and part time. But we expect many to be recruited on the basis of particular specialist or technical skills that they can offer, such as an understanding of complex financial products to aid the NCA’s counterfraud efforts or expertise in information technology and the internet to help tackle cybercrime. This is not that different from how reservists are often used in the Armed Forces. The noble Baroness will know that there are many specialities that it would be impractical for the Armed Forces to keep in large numbers, in full employment the whole time. But it is worth while having reservists that they can bring in to act as doctors, as they do in Afghanistan.
Like other NCA officers, NCA specials would be able to be designated with operational powers to play a full role in the agency’s work to tackle serious, organised or complex crime. Again, like other NCA officers, NCA specials would be required to be suitable, capable and adequately trained before being designated with the appropriate powers, which, for NCA specials, will be limited to the powers and privileges of a constable, in England and Wales only. NCA specials will not have operational powers in Scotland or Northern Ireland. So there is a distinction there.
The terms and conditions of NCA specials will be for the director-general to determine, but the Bill sets out some core principles. Although NCA specials are NCA officers, they will not be covered by every provision applying to other NCA officers. It will not be possible for the director-general to delegate his or her functions to an NCA special, and they will not form part of any group of NCA officers provided by way of assistance to another law enforcement body. That means that NCA specials will always operate under the direction and control of the NCA director-general. An NCA special will also not be able to form part of the advisory panel designating the director-general with his or her powers.
As unpaid volunteers, NCA specials will not be provided with a wage, a pension or allowances, and will not be covered by the no-strike provisions, which no doubt we will deal with later, for paid NCA officers. They will not form part of the Civil Service. But they will be reimbursed for expenses, and provided with the necessary subsistence, accommodation and training needed to perform their role. They will be able to receive payment to compensate for loss of salary in the event of injury or death resulting from the performance of their duties.
Finally, we have provided for the powers of an NCA special to be ring-fenced so that when a person is both an NCA special and a special constable or Northern Ireland reservist, any powers conferred on him or her as an NCA special cannot be exercised when acting in the latter roles.
We believe that these measures on NCA specials will represent an attractive opportunity for individuals who want to volunteer and to contribute to protecting the public, as well as bolstering the expertise of the National Crime Agency across its remit. The idea behind it is to bring in expertise that might not otherwise be available. They will form an important part of the agency’s stronger co-operation with the private sector, harnessing skills that exist, and are constantly refreshed, in the private sector.
I hope that that explanation is sufficient for the noble Baroness and that we will in due course see them performing as valuable a role as specials in the rest of the police force, although obviously that will be rather a different role bearing in mind their expertise and the nature of the NCA.
Baroness Smith of Basildon
I am grateful to the noble Lord for that explanation, which is certainly helpful, although I do not think that it necessarily answers all my questions. From what he said, I assume that the unpaid people employed,
“otherwise than on a part-time basis”
could be on secondment. If they are to be full time, as he said, this could involve a partnership with the private sector to bring in expertise that is useful to the NCA.
I am slightly puzzled to note that paragraph 14(4) refers to reimbursing the expenses of specials and providing for their subsistence and accommodation. However, if they have left a job to give some of their expertise and time to the NCA, I would expect their salary to be reimbursed unless there is an arrangement with their employer to continue paying their salary as if they were on secondment. However, paragraph 14(4)(c) provides that they can be compensated for loss of salary only if they die or are injured in the course of their work for the NCA. Therefore, unless the Government have an arrangement with the employer of the person who is on secondment to compensate the relevant person for loss of salary in such circumstances, that person will not receive compensation. I partly understand the provision but perhaps not all the details have yet been worked out because, given the pressures on the private sector at the moment, I cannot see how private sector employers would release staff with skills that would be useful to the NCA unless there is an arrangement in place, including a financial arrangement—perhaps it will be exclusively financial in some cases—to encourage them to release these staff.
I think that we are talking only about specialist staff and not volunteers coming to help in the office or with investigations, if I have understood the noble Lord correctly. However, there is still doubt about how those specialist staff will be attracted to work for the NCA. Therefore, I am partly reassured but still slightly puzzled.
Lord Henley
As I said, they will be unpaid in exactly the same way as existing specials are. We hope that we will find volunteers but the NCA is looking to find people with the relevant expertise. Until I came to this job I was not aware that specials were unpaid. I presumed that they were in exactly the same position as my noble friend Lord Attlee, who has had long and distinguished service in the Territorial Army, where he would have been paid for the days that he served and the weeks and months of service when he was on Operation Telic and other such matters. However, the specials have always been treated differently; they are unpaid. We are leaving them in the same position. Just as the ordinary police—I should not say “ordinary”—can manage to get specials who will do this work unpaid, for which we are very grateful, we believe that the same will be true of the NCA. The NCA will be looking for the specialist expertise that it needs which some people—for example, those who are experts in IT—might feel that they can offer in their spare time. That is much the same process as happens with specials at the moment except that they are not offering that expertise.
Baroness Smith of Basildon
I still have some doubts that this process will work although I hope that I am wrong. It might be helpful if the director-general includes in the annual report something about the role of specials. I hope that the noble Lord will write to me on the following question, which he did not answer: namely, whether any of the organisations such as SOCA or CEOP have had specials working in this way. I understand that specials are unpaid, a bit like shadow Ministers in your Lordships’ House. Incidentally, I am happy for him to write to me on the other point as well.
Lord Henley
I can give the noble Baroness a partial answer. There is no comparable scheme within the Serious Organised Crime Agency. However, I understand that some police forces have made use of specialists as specials; for example, the City of London police do so for some fraud inquiries. I think that the same is true of the Metropolitan Police e-Crime Unit, which makes some use of specials in this way: that is, in bringing in expertise. However, as I said, within the precursor organisations, SOCA certainly has not had the ability to do that. I do not know about CEOP and others but I will find out and write to the noble Baroness.
Baroness Smith of Basildon
I appreciate that. CEOP is the body about which I have the most concerns and queries. However, given the Minister’s explanations and his offer to write to me, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
This amendment concerns the same paragraph of the Bill with regard to specials, whom I am beginning to think of as the National Crime Agency’s equivalent of interns.
Paragraph 14(4)(c) provides that the NCA is not prevented from,
“providing for the payment of sums to, or in respect of, current or former NCA specials to compensate for loss of salary attributable to injury or death resulting from the performance of duties as NCA specials”.
This is a probing amendment, the aim of which is to seek a better understanding of the provision. I assume that we are talking here about salary from their normal job, as it were, given that they are not being paid for being specials.
I was prompted to table the amendment by the thought that any claim that is made following injury or death in the course of a special’s employment is likely to be for far more than his salary. I am not sure that it is possible to exclude a claim for the normal areas of compensation that would arise in the event of injury. It certainly seems to me that it is not proper to do so. Why is this provision required? Is it as narrow as I have understood it to be? If it needs to be stated because the powers of the NCA would not be adequate if it were not, should it not be stated in full in the way that I have indicated? I beg to move.
Lord Thomas of Gresford
I speak in support of this amendment. When I looked at it, I thought that I would not advise anybody to become a special in the National Crime Agency as not only do you not get paid but even if you are injured or killed in the course of your employment as a special, you get nothing other than compensation for salary. Therefore, if you are not a salaried person—for example, if you are self-employed—you get nothing. You get nothing for the injury itself. Presumably, the Government have in mind that you would sue somebody, whether it is themselves or the criminal concerned who caused the injury or death. Do they have in mind that a person should go to the Criminal Injuries Compensation Board to recover compensation? Putting in compensation for salary is so limiting that there must be some purpose behind that wording. I look forward to hearing it.
Earl Attlee
My Lords, I am grateful to my noble friend for moving her amendment. It is, of course, important that the National Crime Agency is able adequately to provide for the rare and very sad occasions when an NCA special is injured or killed in the line of duty. I would like to point out that when I joined the TA I did not know that I was going to be paid. I suddenly started receiving giro cheques when I was at school which were double the recommended term’s pocket money. I spent about 18 years in the TA as a junior NCO. If, sadly, I had been injured, I would have expected that a war pension would be paid on the basis of my rank, which stayed very junior for the first 18 years. Given the different status of NCA specials within the agency, the Bill expressly provides for the NCA to be able to pay sums by way of compensation for loss of salary in such an event. The details of that scheme will need to be drawn up over the coming months.
I suspect my noble friend will find that the inverse speaking time law applies to this amendment as well. She questioned whether the compensation should be limited to loss of salary alone. That is a fair question. An NCA special injured in the line of duty could, I accept, suffer other financial loss. If my noble friend would agree to withdraw her amendment, I should be happy to consider this point in more detail over the summer. At this stage, I cannot commit to bringing forward a government amendment on Report but I can certainly assure her that we will carefully consider the points she has raised and let her know the outcome of that consideration in advance of the next stage.
Baroness Hamwee
My Lords, the Government need have no fear that their schedule for getting through this Bill in Committee is in any danger, because I think that we will speak for briefer and briefer periods. I am grateful to the Minister and look forward to seeing how this goes. I beg leave to withdraw the amendment.
Lord Henley
Lord Alderdice
“(1A) If the order proposed by the Secretary of State would confer an NCA counter-terrorism function which applies to Northern Ireland, the Secretary of State must, before laying the order, consult and have due regard to the views of the First and Deputy First Ministers of Northern Ireland and the Minister for Justice of Northern Ireland.
(1B) Subsection (1A) does not limit Schedule 16.”
Lord Alderdice
My Lords, at Second Reading I raised a number of questions: for example, how it was possible in the context of Northern Ireland to deal with serious organised crime without having some counterterrorist function, given the involvement of so many paramilitary organisations in serious organised crime, and given the failure of SOCA to demonstrate a real advance with the Assets Recovery Agency and other predecessor functions; whether the NCA would be a real advance in dealing with serious and organised crime in Northern Ireland; and whether, given the Border Policing Command function, there had been direct consultations with the Department of Justice and Equality in the Republic of Ireland, with which we have our only land frontier within the United Kingdom. I was not hugely reassured by the responses that I had from my noble friends at that time, but the purpose of this probing amendment is to press on a different issue.
Its purpose is to clarify whether Her Majesty’s Government are content that they have the support of the Northern Ireland Executive for a legislative consent Motion, which will be necessary if the component of the Bill that refers to Northern Ireland is passed. My understanding is that at this stage the Executive have not even considered the question. There have been substantial discussions with the Minister for Justice. As I said at Second Reading, the Secretary of State, the right honourable Owen Paterson MP, has worked extremely hard with the Home Office and with Justice Minister David Ford to seek improvements to the Bill, and I think we have already seen evidence in government amendments that improvements have been made. However, the question is not simply whether Minister Ford is entirely satisfied but whether the First Minister and Deputy First Minister and their parties are satisfied, because, frankly, without their support a legislative consent Motion will not be forthcoming. The reason for my probing amendment is to press on this issue.
Frankly, I doubt whether Committee stage will be completed before the autumn, given the current timetable for the Executive, other things that happen at this time of year in Northern Ireland, the process of the Bill, and recesses and so on. However, we are proceeding with this Bill and its applications to Northern Ireland but we have not yet received clarification that there will be an upcoming legislative consent Motion. Given the sensitivities of the intelligence agencies and their involvement in Northern Ireland in dealing with serious organised crime and, even more particularly, with terrorist organisations in the past, I suspect that reassurances will be sought, perhaps in addition to those that have already been sought by Minister David Ford. Although my amendment is a modest one that refers simply to the consent of the Minister for Justice, the First Minister and Deputy First Minister, I should not be surprised if some reassurance of that kind were required before the Assembly passed a legislative consent Motion. I suspect that my noble friend the Minister will, with the advice of draftsmen, point out that I have indulged in a belt and braces exercise by asking for consultation and having due regard, because consultation is often considered in legislation as meaning “having due regard”. However, I think that more reassurance may be needed in Northern Ireland that the consultation means having due regard to the views of the First Minister and Deputy First Minister of Northern Ireland and the Minister for Justice.
As I said, this is a probing amendment because I want to hear from my noble friend whether the consultations have extended beyond the Minister for Justice and how far he has been assured that the Assembly will come forward with the necessary legislative consent Motion. I beg to move.
Baroness Hamwee
My Lords, I have Amendment 21 in this group and it concerns a more general point. I do not know whether—how did my noble friend Lord Attlee coin it?—the law of inverse speaking time will apply here but I think that it should.
Clause 2(4) provides that:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
My amendment, which may not be perfect in its drafting but is, I think, clear enough in its intention, would add,
“for the purposes of counter-terrorism functions”.
My noble friend Lady Thomas of Winchester is here for the next debate and I had not warned her about this, but I will set her, as chair of the Delegated Powers Committee, on to the Minister if the Government do not acknowledge that there is something in this.
Baroness Smith of Basildon
My Lords, I listened to the noble Lord, Lord Alderdice, with some care. As noble Lords know, I have maintained an interest in Northern Ireland issues, having spent a number of years as a Minister there. I find it very difficult to understand how the Government can proceed with issues that affect Northern Ireland, particularly in this area, if there is not agreement from the First Minister and Deputy First Minister or discussions have not been held with David Ford, the Minister for Justice.
This is a sensitive area and I appreciate that, as the noble Lord, Lord Alderdice, said, these things can take some time to resolve when the Executive in Northern Ireland meets. Decisions by the Executive may not always be speedy, but the passage of the Bill will not be speedy either in that the Committee stage will continue after the Summer Recess. I hope that the Minister will take on board the comments of the noble Lord, Lord Alderdice, which we support. We think that the First Minister and Deputy First Minister should have an opportunity to comment on this and I hope that some agreement can be reached prior to moving forward with these clauses.
Lord Henley
My Lords, there are possibly two issues here. The first is the wider one on the order-making power in Clause 2, to which we will come later when we deal with whether the clause should stand part of the Bill. I trust that that will happen after we have broken for dinner, which may be convenient because I suspect that, in the light of the Constitution Committee’s report published today, it is a debate on which a number of noble Lords will want to speak and one on which we may want to take a reasonable amount of time.
The duty of the Home Secretary to consult Northern Ireland Ministers before laying before Parliament a draft order on counterterrorism functions is important. I hope that I can give some reassurance about the consultation that we are undertaking, who we have discussed these matters with and where we are at the moment. I am sure that my noble friend knows as much as I do about where this is with the Executive at the moment.
I recognise that the amendment seeks clarity on the relationship between the NCA and arrangements in Northern Ireland if a decision is made in the future—I stress if such a decision is made in the future—that the agency should have that counterterrorism function. That has been at the forefront of our consideration of these arrangements, not just for the order-making power but in relation to the agency as a whole, balancing the need for an effective United Kingdom response while respecting the important accountability arrangements for policing in Northern Ireland.
We recognise the particular sensitivities of the arrangements in Northern Ireland which is why in this clause we have already provided specific arrangements that recognise the responsibilities of the chief constable of the Police Service of Northern Ireland, who has operational responsibility for the police response to terrorism in Northern Ireland. It is absolutely vital that we are clear about the relationship between the NCA and the Police Service of Northern Ireland in the event that the agency were to take on the counterterrorism function. That is why Clause 2(2) provides such clarity by stipulating that the agency may carry out counterterrorism activities in Northern Ireland only,
“with the agreement of the Chief Constable of the Police Service of Northern Ireland”.
Furthermore, any draft order will be subject to the super affirmative process, which includes a requirement for the Home Secretary to consult those persons whom she considers will be affected by the draft order. Again, we will discuss that in somewhat greater detail when we get to Clause 2 stand part, which it would be appropriate to leave until after dinner, if everyone is happy with that suggestion.
Seeking clarity on the consultation requirement in relation to Northern Ireland is understandable and the broad nature of the consultation requirement in Schedule 16 could, of course, include the devolved Administrations—that applies to Scotland as much as it does to Northern Ireland—as well as operational partners, government departments and others. I do not think that we have a gap there.
As the House will be aware, under the terms of the Northern Ireland Act 1998, national security is an excepted matter and the National Crime Agency will be a reserved matter. A duty to consult on excepted and reserved matters therefore sits uncomfortably with the devolution settlement as it relates to counterterrorism matters. I recognise that counterterrorism policing in Northern Ireland cannot be divorced from the generality of policing which is, of course, a transferred matter. Indeed, the National Crime Agency itself will undertake a mix of reserved and devolved activity in relation to its serious and organised crime remit. That is why the provisions in Part 1 of the Bill will require the Northern Ireland Assembly to adopt a legislative consent Motion. That is also why there are provisions throughout the Bill which provide for the necessary checks and balances to reflect devolution at certain points. Obviously, there needs to be consultation with the Department of Justice in Northern Ireland.
I understand that the Justice Minister and the Justice Committee of the Assembly—I am sure that my noble friend knows as much as I do—have agreed in principle to take forward a legislative consent Motion, and officials in the Department for Justice in Northern Ireland are seeking to secure the agreement of the Executive Committee before proceeding to the next stage. Any legislative consent Motion needs to be adopted by the Assembly before the Bill reaches its last amending stage. Although things have not been proceeding quite as quickly as we might wish them to have done, since we know that the Bill is designed not to proceed as quickly as sometimes Ministers wish Bills to proceed and we will not complete the Committee stage until October, there is a considerable chance that we will get to that stage before the Bill gets on to the statute book.
I hope that my noble friend Lord Alderdice will accept that we are making progress. We will continue to do more and continue to discuss this with my right honourable friend the Secretary of State for Northern Ireland and others. We will carefully reflect on my noble friend’s points between now and Report, which will not happen until some time in late October or thereabouts.
I will quickly say a few words about Amendment 21. It seeks to limit the extent to which an order under Clause 2 may be amended or otherwise modified by the Crime and Courts Act and other enactments. I can give an assurance that Clause 2 is already limited purely to counterterrorism functions. While that is not restated expressly in subsection (4), the effect of that subsection when read with the clause as a whole is to limit the power to make amendments to primary legislation to those that are consequential on conferring counterterrorism functions on the National Crime Agency. Again, I suspect that that is a matter that we will discuss in greater detail when we come to the Clause 2 stand part debate. It was considered by the Delegated Powers and Regulatory Reform Committee. The committee made no recommendation in respect of that power in its report. In fact it went so far as to state that the idea of adding to a statutory body’s functions by subordinate legislation subject to parliamentary procedure is well established. I hope that my noble friend will feel that her Amendment 21 is therefore not necessary.
Going back to the original amendment of my noble friend Lord Alderdice, I hope that what I have said gives him the appropriate reassurance. We fully understand the sensitivities in this area and I hope that he will therefore feel able to withdraw his amendment on this occasion.
Lord Alderdice
My Lords, I am grateful to my noble friend. He said—I think I have the words correctly—that given that some of these powers were excepted matters, it sat uncomfortably to require the Home Secretary to consult a devolved institution. I understand that from a London perspective, but with regard to these very matters, the Good Friday agreement and the Anglo-Irish agreement require a sovereign Government to consult another sovereign Government about precisely these matters. That is something that sat uncomfortably with many people. I rather think on many issues that some people in Whitehall have not quite worked their way through to understanding what this really means. To me, the way things were presented not by my noble friend tonight but in the initial proposal for the Bill suggest a failure to understand the sensitivities and requirements under international treaty now to engage.
However, this is a probing amendment. I will read my noble friend's words carefully, but I think that he has spoken with considerable openness, candour and straightforwardness about the difficulties of finding our way through this issue. I am happy to withdraw the amendment at this point. I may find it necessary to come back to this question, not to create difficulties but for wholly the other reason of trying to assist the Government by pointing out issues that will be a problem down the road if they are not fully addressed. I have tried to give some kind of indication as to where they need to be addressed. I hope that I will not need to come back to this at a later stage and that the Government are successful in the difficult discussions to which my noble friend referred. At this point, I beg leave to withdraw the amendment.