Crime and Courts Bill [HL]
(12 years, 5 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Rosser
My Lords, Clause 2 modifies National Crime Agency functions. It enables the Secretary of State by order to make provision about National Crime Agency counterterrorism functions and, in particular, to make provision conferring, removing or otherwise modifying such functions. It also provides for such changes to be subject to the super-affirmative procedure, which is referred to in Schedule 16. This is an important issue about who should be responsible for counterterrorism activity, which the Metropolitan Police is currently involved in. That organisation has considerable expertise in this field. There would have to be a strong case to move such responsibilities away from the Metropolitan Police or, indeed, to move them away from the National Crime Agency if such responsibilities rested with that body.
The Government clearly recognise that this is a sensitive issue because, having decided to make changes to National Crime Agency counterterrorism functions by order, they have proposed that the super-affirmative procedure should apply. The super-affirmative procedure is a less comprehensive procedure than primary legislation. Changes in the responsibility for counterterrorism and changes to the structure for meeting that threat should not be easily or quickly made without the full and proper consideration that can be given by Parliament through primary legislation. Primary legislation enables a change in the law to be considered in detail and amended through consideration in Committee and on Report. The Government cannot stop that happening under current practice and procedures but, under the super-affirmative procedure, that will not be the case, as even the more limited procedure for considering government proposals in paragraph 4 of Schedule 16 will not apply if the Government are able to use their effective majority in each House to approve their draft order without even going through the procedure in that paragraph.
We are talking about an issue of substance and concern: where responsibility for counterterrorism should lie. It should not be dealt with by the Government by order, super-affirmative or otherwise; it should be open to the normal and full parliamentary procedure for approving, amending and making changes in statutory arrangements—namely, through primary legislation after full debate, with the Government being compelled to accept the Bill if and as amended by Parliament.
This matter has been considered by two committees. I imagine that until today the Minister was probably not unhappy with the situation, since the committee report that we then had in front of us was that of the Delegated Powers and Regulatory Reform Committee. Its view was:
“The idea of adding to a statutory body’s functions by subordinate legislation subject to a Parliamentary procedure is well established”.
However, this is not just about adding to a statutory body’s function; it is also potentially about taking it away from another body, in this case the Metropolitan Police. Nor is this any function; it is the counterterrorism function, on which the lives and security of the people of this nation depend.
We have now seen the report of the Constitution Committee, which has taken a rather different line. It refers to the fact that Clause 2 concerns the possible future extension of the National Crime Agency’s remit into counterterrorism and points out that currently the counterterrorism command of the Metropolitan Police has the lead national role in counterterrorism policing. The committee goes on to point out that Clause 2 would give the Secretary of State an enabling power,
“to ‘make provision conferring, removing, or otherwise modifying’ NCA counter-terrorism functions”.
If that was applied,
“the Home Office would be in a position to have the option of assigning or transferring relevant functions to the new agency”.
The Constitution Committee has described the enabling power in Clause 2 as,
“an order-making power of the ‘Henry VIII’ type, so empowering the minister to ‘amend or otherwise modify this Act or any other enactment’”.
Those words are found in Clause 2(4), where the Bill states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
It is indeed a wide-ranging power. The Constitution Committee comments on the proposal in respect of the super-affirmative procedure and says:
“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.
The committee says that its approach to Henry VIII clauses,
“is based on the constitutional principle that it is for Parliament to amend or repeal primary legislation. The use of powers allowing amendment or repeal of primary legislation by ministerial order is therefore to be avoided, except in narrowly-defined circumstances. A departure from the constitutional principle should be contemplated only where a full and clear explanation and justification is provided. For assessing a proposal in a bill that new Henry VIII powers be conferred, the Committee has adopted a two-fold test”.
That test is:
“Whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill, and, if so, whether there are adequate procedural safeguards”.
The committee goes on to say:
“We are not persuaded that clause 2 passes the first test. The subject-matter of the proposed order-making powers—the allocation of functions and attendant responsibilities and accountabilities of counter-terrorism policing—is of great importance and public interest. The House will wish to consider whether the constitutionally appropriate vehicle is primary legislation”.
We agree with the views of the Constitution Committee, which was not persuaded that Ministers should have the power to change the statute book for the specific purposes provided for in this Bill in respect of the allocation of functions and attendant responsibilities and of the accountabilities of counterterrorism policy. We are opposed to the question that Clause 2 should stand part of the Bill.
The Minister of State, Home Office (Lord Henley)
My Lords, I hope that I can respond to the noble Lord’s points. I agree with him that this is an important issue, which we need to take very seriously. The noble Lord raised two questions: should counterterrorism move to the agency and, if so, how? They are two distinct questions and we want to consider them in due course. I will consider them in that manner. He also feels that it is a matter on which there should be a full debate in Parliament, relating to the second question: “If so, how?”. I have to say that this is possibly not the best example of such a debate. As the noble Lord made those expressions immediately after dinner, perhaps he felt some embarrassment over what an empty House we have as we discuss what I, like him, consider a very important issue to which I hope we will do justice. We might have to come back to it at a later stage because of its importance.
As the noble Lord knows, the functions of the NCA have been drafted in fairly broad terms to ensure that it is able to tackle all the crimes in which organised crime groups are involved. However, it will also be important for the agency to be able to react quickly to any changes in the threat picture. In particular, careful consideration has been given to how best to future-proof—an expression I do not particularly like, but it is quite useful here—the National Crime Agency for a potential role in counterterrorism. The Government have been clear that there will be no wholesale review of the current counterterrorism policing structures in England and Wales until after the 2012 Olympic and Paralympic Games and the proper establishment of the NCA. It is only then that it will be right to look at how counterterrorism policing is co-ordinated across England and Wales and to decide where it is appropriate for national responsibility to sit. Such a review should sensibly consider whether the National Crime Agency might play a role and, if so, what it might be.
I think that the Home Affairs Select Committee agrees with us. In its September report, New Landscape of Policing, it said:
“We agree with the Government that responsibility for counter-terrorism should remain with the Metropolitan Police until after the Olympics, not least because the National Crime Agency will not be fully functional until the end of December 2013”.
It went on:
“However, we recommend that, after the Olympics, the Home Office consider”—
I am very grateful that it used the word “consider”—
“making counter-terrorism a separate command of the National Crime Agency: there should be full co-operation and interaction between the different commands”.
I give an assurance that any decision that we make will be made after that time and will be considered very carefully. It is not a decision that we need to make at this stage.
I move on to the order-making power, which looks very drastic. It is a Henry VIII clause. I remember being introduced to Henry VIII clauses by my noble kinsman Lord Russell, since deceased, who was the first to spot their increasing use by the previous Government—it was a long time ago—when we were trying to expand the use of these things gradually. They should rightly always be looked at with very great care by all Members of both Houses of Parliament. It is quite right that Parliament should do these things in the proper way.
Clause 2 provides an order-making power so that the Secretary of State can confer, remove or otherwise modify the functions of the NCA in relation to counterterrorism. The order-making power is limited to changing the functions of the NCA. The noble Lord again got very worried about Clause 2(4), which states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
Most simple lawyers, such as me or, possibly, the noble Lord, Lord Beecham, would immediately assume that that meant anything in the world, that we could do what we wanted and that this was a wonderful thing. I am advised by those who are much greater than me and are not just simple lawyers that, if you read the clause in full, subsection (4) does not give that power. Because this has to be taken as a whole, the power is confined to counterterrorism functions and it is only on those that the Secretary of State could act. Having said all that, I accept that it is important to address these issues.
Baroness Butler-Sloss
My Lords, I am sorry to say that I have been rather slow on the uptake and have only just read the report of the Constitution Committee. Since this is Committee stage, I believe that I am permitted to speak even though it is after the Minister.
I support what the noble Lord, Lord Rosser, has proposed. I can see that there may well be great advantages in the National Crime Agency one day taking over the role of the Metropolitan Police. Nevertheless, as I understand it from what the Minister said, there will be a review as to whether this is the appropriate way to do it. I cannot see why the Government could not deal with this in one of two ways—I speak, of course, as a novice in the procedures of this House compared with the Minister and, indeed, with the noble Lord, Lord Rosser. If the Government are fairly clear that this is what they want to do, I cannot see why they cannot put it firmly in Clause 2 that they will transfer to the NCA from the Metropolitan Police, but not until 2013 or 2014 so that it does not come into force until after the Olympics and the Paralympics. Alternatively, if they do not know for certain that this is what they want to do, why on earth can they not just put in a very short Bill to deal with counterterrorism? That should not take an enormous amount of time going through both Houses, if it does not have added to it all the stuff that tends to be added to almost every Bill by any Government. It is possible to pare it down to just this point.
I share with diffidence, but none the less quite firmly, the concerns of the Constitution Committee set out in the first part of its report. Since the noble Lord, Lord Pannick, is not here, I thought it was important that a Cross-Bencher should express a view so that it is not seen just as a party political manoeuvre of any sort.
I think that there are a number of disadvantages to using the super-affirmative procedure. First, although it is perhaps at the highest ranking of subordinate legislation, it is not primary legislation. Perhaps more importantly, if anything is wrong with the drafting—drafting is not always perfect—we cannot tease it out in debate. It stands or falls in its entirety. We can have amendments to primary legislation that we cannot have when using the super-affirmative procedure, even as I would understand it.
I share the concerns of the noble Lord, Lord Rosser, but I particularly share the concerns of the Constitution Committee. I just wonder whether the Government are right to try to proceed this way on what seems to be a clear Henry VIII clause. Perhaps it is almost time that Henry VIII was put to bed.
Baroness Hamwee
My Lords, I like the notion of Henry VIII being put to bed. He used to say that of others, did he not?
It will be clear to the House from my amendment before the dinner break that I am merely an ordinary lawyer. I am probably what my noble friend Lord Roper calls a “cooking solicitor”, the analogy being cooking sherry. I am glad to have understood a little better how these things work.
I did not want to come in before the Minister spoke, because I wanted to hear what he had to say. Like the noble and learned Baroness, I am a little confused about the rationale for postponing this measure when we know that this Bill will still be in Committee in this House—it will not even have reached the other House—after the Olympic and Paralympic Games. Like her, I am not sure why that is the case, unless the Government have some reason to feel that it would undermine the authority of the Metropolitan Police during the Games. I cannot see it, given that somebody who is being dealt with under some terrorism charge is not going to thumb their nose and say, “Yoohoo, you’re not going to have this function for much longer”. That is not life, is it? So I remain confused about that.
Like the noble and learned Baroness, I feel that although the super-affirmative procedure clearly gives more opportunity for debate and response than the simpler secondary legislation procedures, the response to what the Minister proposes is almost a nuclear option, because it would mean the whole order being rejected rather than dealing with small parts of it. On such a serious matter, which I know that the Government have thought about very seriously, I am reluctant to say—but I do say it—that I am not convinced. I expected the Minister to tell the Committee that legislative time was short, and so on. I do not think that he has prayed that in aid, but had he done so I would have said that this was so important an issue that time needs to be made for it.
Lord Henley
My Lords, first, I take up a point that my noble friend Lady Hamwee took up when commenting on the remarks from the noble and learned Baroness, Lady Butler-Sloss, when she said that it was time to put Henry VIII to bed. She might find that that remark appears in The House magazine fairly soon as quotation of the week. But I leave it for her and the editors of that magazine. It was a very good remark and we all knew what she meant.
I want to make it very clear, as I hope that I did in my opening response to the noble Lord, Lord Rosser, that we do not want to address the issue as to whether counterterrorism should go in at this stage. My right honourable friend the Home Secretary has made that clear the whole way through. No decision has been made.
The noble and learned Baroness suggested two alternatives, because she was unhappy with the use of Henry VIII powers. She suggested that we could put the provision into the Bill with a delaying clause and enact later, but that would imply that we have already made up our minds on this. This is the point that I want to get over—that no decision has been made, and we do not want anyone to assume that a decision has been made. She then said that, if we did not want to do that, there was the route of primary legislation. On that point, I am grateful to my noble friend Lady Hamwee, who said that you could always find a slot for primary legislation. I can tell her that in my experience in government and opposition, that is simply not the case. The noble Baroness, Lady Smith, nods at me. We all know the difficulty of finding those slots. Very occasionally, if it is an emergency and you have agreement from all sides of the House, you can move very quickly. But finding legislative slots is very difficult. That is why in the end we thought that going down a route where we used the super-affirmative procedure provided the right level of scrutiny by both Houses. I appreciate that it still means that there is not the ability to amend in other ways, but with the super-affirmative procedure there is considerably greater examination of what is in front of both Houses than with an affirmative model or a negative resolution. That is probably why I rather cynically said at the beginning that we could have offered the negative resolution procedure and then in one House offered the affirmative as a concession and then moved on to the super-affirmative. As it was, we considered this very carefully and decided that the super-affirmative was appropriate. We think that we have probably got it right. I hope that we have and that the House will accept that.
I appreciate that the Constitution Committee disagrees with our view. I received its report this morning as I came in and have seen what it had to say at paragraph 7. However, I pray in aid the fact that another equally great committee of this House, the Delegated Powers and Regulatory Reform Committee, has looked at the measure and felt that it was not inappropriate. Therefore, there can be differences of view. I go back to the phrase that I have used on many occasions in relation to the Home Office—in the end one has to find the right balance. I hope that we have found the right balance on this and that the House will accept that Clause 2 is necessary so that we can consider this matter in due course. As I said, I leave it to the noble Lord, Lord Rosser, to decide how he wishes to proceed.
Baroness Hamwee
I wonder whether we have fallen into the trap of seeing this matter through the lens of parliamentary procedures. However, there is another way of looking at it—namely, looking at how the NCA actually operates. If we are undertaking legislation setting up a new agency, which is not designed from the start to deal with counterterrorism—we must assume that that is the case, and I do not expect the Minister to respond to this as I am putting it rather rhetorically—should we not let it be formed, see how it operates and consider the addition of a very serious function when we know something more about how it is functioning? As I say, we are inevitably looking at this in terms of the way we operate, but we have left out that rather serious consideration.
Lord Rosser
My Lords, I thank all noble Lords who have taken part in this debate and thank the Minister for his response. It is clear that the Government are seriously thinking about making this change although I accept that the Minister has said that no final decision has been made. However, it is clear that the Government are seriously contemplating this change; otherwise, they would not have included this clause in the Bill. If the Government have reached the stage of seriously contemplating the change, although I accept that no final decision has been made, as I said, the odds are probably on the Government making that change; otherwise, they would not have gone so far as to put this clause in the Bill.
However, as I said, this is not just about adding to functions, which is how the Delegated Powers and Regulatory Reform Committee looked at this matter; it is also about taking those functions away from a body that has had them for some time and has expertise in that field. The Government may be able to make out a strong case for doing so, and I would not want my comments to be taken as meaning that I have decided that they cannot make out a strong case for making the change. Perhaps they can; we will have to wait and see. However, the issue concerns what is the appropriate way in which the matter should be dealt with. Should it be dealt with on the basis of a super-affirmative order, which restricts the amount of debate and discussion which takes place, or should it be dealt with on the basis of primary legislation? If no final decision has been made—and I accept what the Minister says—then clearly this matter could be left and be dealt with in further primary legislation once a decision is made to change the present arrangements.
The Minister addressed that point in part. I may have written down incorrectly what he said and, if I have, I apologise. I wrote that he said that primary legislation is a lengthy process and quite difficult. However, in a parliamentary democracy that does not seem to be a very good argument for not making a change of this magnitude through primary legislation. Saying that primary legislation is a lengthy process and quite difficult sounds like a plea that all Governments of whatever colour have probably made over the years. However, as I said, that is not an argument for dealing in this way with an issue of this magnitude and importance.
The Minister referred to Clause 2(4), which states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
I had not assumed that it extended beyond counterterrorism but, even though it relates purely to counterterrorism, the fact that:
“An order under this section may amend or otherwise modify this Act or any other enactment”,
is still a fairly extensive power.
I sincerely hope that the Government, through the Minister, will rethink this issue, although at the moment the Government clearly take the view that the super-affirmative procedure is appropriate. At this stage, I conclude my comments by again referring to the Constitution Committee, which said:
“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.
I hope that the Minister and the Government will reflect on that. In the mean time, I do not intend to pursue my opposition to Clause 2 standing part of the Bill.
Baroness Hamwee
“(3) Upon a determination under this section, and any variation of the determination, the Secretary of State shall lay a report before Parliament setting out the strategic priorities.”
Baroness Hamwee
My Lords, I think that Amendment 23 can be dealt with quite shortly. Clause 3 provides for the Secretary of State’s determination of the NCA’s strategic priorities, and our amendment would provide for her to lay a report before Parliament upon such a determination.
Schedule 2 deals with publication of the framework document and annual report but the strategic priorities seem to be of a sufficient importance that reporting them should not wait for the annual report. I cannot immediately see that they would be part of the framework document, although I may have misread that. Perhaps the Minister can reassure me about publication of the strategic priorities, which I assume will be a matter for public consumption. If this is not done through the sort of arrangement that my amendment proposes, how will it be done? I beg to move.
Baroness Smith of Basildon
My Lords, I have some sympathy with the noble Baroness’s contribution because the strategic priorities seem to be a bit of a puzzle. A key part of what the NCA does must be that the public and everyone else can understand the strategic priorities of this organisation. When you look through the Bill to see what the role of the NCA is, the description is extraordinary broad. It has the function of,
“gathering, storing, processing, analysing, and disseminating information that is relevant to any of the following … activities to combat organised crime or serious crime”,
and,
“activities to combat any other kind of crime”,
or “exploitation proceeds investigations”.
That is an extraordinarily broad area. It covers all kinds of crime, yet the strategic priorities are a very small part.
I looked to see whether there was something about the strategic priorities within the framework document. Like the noble Baroness, Lady Hamwee, I could not see it there. I am not questioning the right of the Secretary of State to determine those priorities: the Secretary of State should have that strategic oversight. But I am not clear what scrutiny there is and what form of publication there will be. Clause 3 states:
“The Secretary of the State may determine strategic priorities”,
including whether he or she wants to have priorities or not, and will consult strategic partners, the director-general and anyone else the Secretary of State thinks appropriate. It is extraordinarily broad.
If we then look at operations, it is clear that the strategic priorities play an enormous role in what the director-general then sets out in the annual plan of what the organisation is to do. I feel that we need more information about this. Will the Minister say something about the relationship between the strategic priorities of the NCA and the framework document? I am not clear how the two work together. If we look at Schedule 2, the framework document seems to describe the,
“ways in which NCA functions are to be exercised”,
and the,
“ways in which the NCA is to be administered”,
but that will depend on what the strategic priorities are. Some guidance and enlightenment from the Minister would be useful.
Lord Henley
My Lords, I hope that I can help and can be relatively brief. The important thing for my noble friend and the noble Baroness, Lady Smith, to do is to look at Clause 3 and Clause 4 together. If they do that, things become somewhat clearer. The amendment would place a duty on the Home Secretary to lay a report before Parliament following her determination of the strategic priorities. Clause 4 of the Bill already requires that the agency’s annual plan be published and include a statement of the strategic priorities determined by the Home Secretary. That is clear in Clause 4(2)(a), which refers to,
“any strategic priorities for the NCA (see section 3)”.
This is a new way of drafting that makes these Bills a lot easier to understand. The draftsmen are moving ahead. So there is a mechanism in the Bill for ensuring that the strategic priorities are published.
Moreover, the Bill also provides for the agency’s annual report to be laid before Parliament and for such reports to include an assessment of the extent to which the annual plan for the year has been carried out. So this again provides a mechanism for informing Parliament of the strategic priorities and how the agency is delivering against them. It would then obviously be a matter for both Houses to determine in a way that I do not understand but I am sure the noble Baroness does. We were discussing the usual channels much earlier in the Chamber. They will decide how these matters will be debated and discussed and how the Home Secretary will be held to account on these matters in both Houses. That is something that will happen in due course.
Given those provisions, I do not think that it is necessary to have a further procedure for laying the strategic priorities before Parliament as provided for in this amendment since Clause 3 interpreted with Clause 4 and read backwards again seems to do exactly what is sought. I hope that my noble friend will feel that the matters that appear in her amendment are covered by what is already there. I hope that I have also dealt with the points raised by the noble Baroness, Lady Smith.
Baroness Hamwee
My Lords, I am grateful to the noble Baroness, who articulated my concerns rather better than I did. I will, of course, think about what the Minister has said but I remain a little anxious. Given that the strategic priorities may be determined and modified to a new set of strategic priorities out of synch with the annual plan and will therefore become known through the mechanism of the annual plan possibly many months in arrears, I wonder whether that is appropriate. It seems to me that they are so important as to justify some form of publication in their own right. However, I will think about what the Minister said. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, this amendment would remove the requirement on the director-general to gain the consent of the Secretary of State for the annual plan. The amendment suggests that it should be undertaken by the National Crime Agency board. I know that the Minister will say that there is no board and no response to be made. However, I want to explore the broader issue. I am somewhat puzzled as to why the Secretary of State would sign off and have to give consent to the publication of an operational document. There has been no question or disagreement in the House that the Home Secretary should retain the ultimate strategic oversight and overview of the NCA. At the same time, it is vital to preserve the operational independence of the National Crime Agency and the director-general from government.
I believe that that is the Government’s intention but there are several places in the Bill where that is not as clear as it should be and it becomes a little confused. There are lots of documents and we are unclear about what they contain. There is a framework document that we have yet to see; there are strategic priorities that the Secretary of State will publish; there is the annual plan which the director-general will publish; and then there is the annual report which gives an indication of how far the director-general has been able to achieve the annual plan in that year. There will be some overlap and there needs to be clarity as we proceed.
The director-general has a statutory obligation to ensure that the annual plan meets the strategic priorities as determined by the Home Secretary. However, the annual plan itself seems to give operational effectiveness and direction to the strategic priorities. So the strategic priorities are for the Secretary of State and the annual plan will be for the director-general. Yet, the clause states:
“Before issuing any annual plan, the Director General must obtain … the consent of the Secretary of State … the consent of the Scottish Ministers … the consent of the Department of Justice in Northern Ireland as it relates to activities in Northern Ireland”.
I do not understand it. If we could remove the consent of the Secretary of State or politicians to the annual plan, that would make it clear that there is no political interference in the operational determinations of the director-general. The Bill is unclear as it stands and allows for the opportunity for political interference in operational matters, which I know the Government are keen to avoid.
This is not directly related to the amendment, but the clause states:
“The Director General must arrange for each plan to be published in the manner which the Director General considers appropriate”.
We may wish to give more guidance to the director-general over a matter that he thinks is appropriate. From our previous conversations, the Minister will know of my concern that it might end up on the website and not be seen by anybody at all, so we will have come back to that one. This is a clear case of the Secretary of State having to give consent and thereby being involved in operational decisions. That is not what Ministers have said throughout debates and discussions on the Bill or indeed at Second Reading. I beg to move.
Lord Henley
My Lords, I should first make it clear that there is no board, but we discussed that at an earlier stage and will no doubt do so again in due course. The proposed amendment would remove the requirement for the Home Secretary and the devolved Administrations to consent to the annual plan. I shall briefly address why the plan should be subject to their consent. The noble Baroness said that she wanted to get rid of what I think she referred to as “political interference” in these matters; I would refer to it as the Home Secretary being accountable to Parliament.
The annual plan will be important to ensure that the agency is open and transparent. Together with the annual report, it will provide the key mechanism by which Parliament and the public can hold the agency to account. Foremost, however, it is the place where the director-general will set out how he intends to deliver the NCA’s objectives for the coming year. It will be against those plans that the NCA’s performance is assessed, not least in the annual report at the end of the year.
As such, the annual plan must accurately reflect the strategic priorities which the Home Secretary has set for the NCA, as well as the wider national picture on organised crime and policing. The Home Secretary will ultimately remain accountable to Parliament for the national response to serious and organised crime and, indeed, for the performance of the agency.
It is therefore important that the NCA’s success is measured against the objectives that the Home Secretary has set for it. The requirement for the Home Secretary’s consent provides the most appropriate means of ensuring consistency between the annual plan and her strategic priorities. It also gives reassurance to Parliament and the public that she is content with the director-general’s approach to delivering those priorities.
The devolved Administrations in Scotland and Northern Ireland will also play an important role in shaping the fight against organised crime, and will therefore be consulted by the Home Secretary when she is setting the NCA’s strategic priorities. Given their accountability to their own electorates for the fight against organised crime, they will rightly have a role in agreeing those aspects of the annual plan which affect Scotland and Northern Ireland.
The annual plan will be an important document in measuring the effectiveness of the NCA. It is important that its contents are agreed—not, as the noble Baroness put it, interfered with politically—by those who will ultimately be accountable for that fight against organised crime at the national level. I appreciate that the noble Baroness put down the amendment to probe, but I hope that she will feel happy to withdraw it.
Baroness Smith of Basildon
My Lords, I hope—and thought—that I said that the amendment would remove the potential for political interference or any suggestion of it. I still think that that is a danger in the way that the clause is drafted. I fully accept the Minister’s explanation that there is no intention for there to be operational control or involvement by the Home Secretary; but by having to consent to the annual plan, she would have an oversight role in operational matters.
I do not intend to press the matter at this point. Lots of consultation and reports will occur as a result of the Bill—I wonder how bureaucratic one Bill can get. I will listen to what the Minister says on this and other clauses but, for now, I am happy to beg leave to withdraw the amendment.
Baroness Hamwee
“NCA and freedom of information
In Part V of Schedule 1 to the Freedom of Information Act 2000, at the appropriate place insert—“The National Crime Agency established under the Crime and Courts Act 2012.””
Baroness Hamwee
I have also tabled Amendment 65 in this group, which is essentially consequential on Amendment 26. Amendment 26 would make the NCA subject to the Freedom of Information Act. I know that this is a matter that Ministers have considered very carefully, and they have taken the view that so much information would be exempt under the Act that it is more straightforward not to bring the NCA within the scope of the Act.
I do not intend to say a great deal at this stage, because it is really for the Minister to justify the exclusion of the NCA rather than for me to justify its inclusion. I appreciate that there are important provisions in the Bill requiring the director-general to publish information and material, including the annual report and the Secretary of State’s laying of the annual report before Parliament, but we will not know what the director-general and the Secretary of State have chosen to omit. If one makes a freedom of information request, the very fact of the recipient relying on an exemption sometimes gives some sort of clue, and the override regime provides for the application for a decision by the Information Commissioner and an appeal to the tribunal.
However many reports the director-general and the Secretary of State are required to publish, the public can only react to them. They cannot ask questions. Members of Parliament can ask questions and instigate debate, but in some cases that may be unnecessarily cumbersome and a bit less incisive. The freedom of information regime gives a proactive tool to the citizen. I remain to be convinced—I look forward to being convinced—that it is appropriate that that tool should not be available to the citizen in the case of the National Crime Agency. I beg to move.
Lord Rosser
Our Amendment 66 qualifies the National Crime Agency exemption to cover only those functions subject to exemption prior to 1 April 2012, which I believe was the date on which the NPIA functions were transferred to SOCA. Schedule 8 provides that the NCA will be exempt from freedom of information legislation. However, the functions of the NPIA and the UK Border Agency, which the Bill proposes to be covered by the NCA, were not previously exempt from the Freedom of Information Act. As yet, we have had no real explanation or justification for that exemption, especially as an extensive exemption regime already exists under the Freedom of Information Act.
SOCA, of course, is exempt from the operation of the Freedom of Information Act, but, as I said, as the National Crime Agency’s functions extend beyond those undertaken by SOCA, so the extended exemption provided for in the Bill is significant and needs justification. Police, immigration services and customs are not exempt and the National Crime Agency will effectively be covering the work of these agencies, so there must be an argument for not exempting from the operation of the Freedom of Information Act additional functions taken on by the NCA from the NPIA and the UKBA that were not previously exempt from the Act.
Lord Henley
My Lords, I am grateful to my noble friends and to the noble Lord, Lord Rosser, for explaining what was behind their amendments—Amendments 26 and 65 from my noble friends and Amendment 66 form the noble Lord, Lord Rosser. Obviously, each is approaching this in a slightly different manner. The noble Lord’s party exempted SOCA when it was in government and brought it in. It wants to continue that exemption but do not want exemption for the other bodies that are coming in. I will deal with that in due course but—as always, using that word “balance”—it is a situation where we have to get these things right, and we have considered it very carefully.
I also want to make it quite clear to the noble Lord that we have a commitment—and the commitment is clear on the face of the Bill—that, as with SOCA, the NCA’s strategic priorities, annual plan and annual report will be published and will even go beyond that. We provide in Clause 6 that the director-general must,
“make arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA”.
We want to make it clear that we want to be open.
We considered very carefully whether the agency should also be subject to the Freedom of Information Act. As I have just made clear, we are all aware that SOCA is exempt from that and was exempt from it when it was created back in 2005. We concluded that it was right to maintain the status quo. To apply the Freedom of Information Act, as these amendments from my noble friends set out to do, would jeopardise the NCA’s operational effectiveness and ultimately result in lower levels of protection for the public. Like SOCA, the NCA will handle large volumes of operationally sensitive information, including intelligence material, which could have a detrimental impact on national security if released. Naturally, the Freedom of Information Act exemptions would apply to much of this material so that it could be protected from release, even if the agency were subject to FOI, but two key risks would remain.
First, the National Crime Agency will depend on the absolute confidence of its partners so that they share all the information they can with the agency. That is what will give the agency its superior natural intelligence picture, which in turn will enable it to pursue and catch the criminals who are the threat. If those partners believe that sensitive information held by the agency could be subject to public release, they are likely to be more reluctant to share that information with the NCA in the first place.
Secondly, intelligence shows that organised criminals are increasingly sophisticated in their methods and seek to exploit any avenues possible to further their criminal activity. There is the danger that they would be likely to use the Freedom of Information Act to acquire information about the NCA’s operational tactics, disrupt its operations and evade detection. While the exemptions might again apply to some of this information, that might not always be the case. This is obviously also a concern for the private sector. Organised criminal gangs could identify and then target vulnerabilities in private sector companies working with the NCA.
In short, the National Crime Agency’s operational effectiveness could, we believe, be materially weakened by application of the Freedom of Information Act, and it would be quite wrong to apply such a handicap to the new agency. I have to make that quite clear—and I suspect that the Opposition, in their attitude to SOCA and the Act that created it back in 2005, are in agreement on a large part of it. As I said, it would be wrong to place such a handicap on it. We are committed to ensuring that there is no loss of public transparency as a result of this decision, but we expect the agency to publish more information than its predecessors because of the open, proactive publication that it aims to adopt.
The noble Lord, Lord Rosser, seeks in his Amendment 66 to preserve the status quo by applying this exemption only to the functions of the agency that are being transferred from SOCA. There will clearly be precursor units joining the National Crime Agency, as I think he made clear, from the National Policing Improvement Agency and the Metropolitan Police, which are currently subject to the Freedom of Information Act. This amendment would provide that, in respect of those functions, FOI continued to apply.
I recognise the motivation behind the noble Lord’s amendment, and I am sure that he is sincere in it—I hope that he is just probing on these matters—but I am afraid that applying the Freedom of Information Act to some parts of the agency but not to others would simply not be a workable option. I do not want to make remarks about curate’s eggs, but this is one of those occasions when the curate’s egg principle really would work. You cannot have an egg that is only partially edible, and I have a sneaking feeling that what the noble Lord seeks on this occasion is the same.
The NCA is being designed as an integrated whole to ensure a free flow of information and intelligence between the central intelligence hub and all parts of the agency. This is essential so that it can effectively map, analyse and task action against serious, organised and complex crime. It would defeat the purpose of this integrated approach and seriously weaken the agency’s effectiveness—
Lord Henley
Can I just complete the sentence before I give way to the noble Lord? It would weaken the agency’s effectiveness if we had to cordon off individual parts of the agency that were subject to the Freedom of Information Act.
Lord Rosser
In the light of what the Minister has said, is it the Government’s case that all other agencies or bodies are either completely covered by or completely exempt from the Freedom of Information Act, and that one does not find in any other organisation or agency that some of the activities are covered by the Act and some are exempt?
Lord Henley
Without notice, I do not think that I can answer that question, but I will certainly look at it. The point that I was trying to make is that the noble Lord is trying to make something rather peculiar here: SOCA is completely exempt and is coming into the NCA, but other bodies that are not exempt are also coming in and they are then all one whole. In effect, he has created something that, when I mentioned the curate’s egg, I probably got exactly right. You cannot do it in a curate’s egg way because the whole egg will be bad once one part of it is bad. That is why we want to do it our way.
Obviously some bodies could be exempt, but on this occasion we think that it is right to create the new agency, as I am sure noble Lords opposite would have done if they were creating a new national crime agency to build on SOCA, just as they did with SOCA itself. It is for those reasons that we would like to preserve the exemption for SOCA for the new agency, and we think that what the noble Lord is suggesting is illogical or worse, and certainly not the right way to go about it. I hope that my noble friend will feel able to withdraw her amendment and that the noble Lord will consider carefully what I have said, particularly in the light of, as my noble friend and others might remember, the debates on the Bill that created SOCA back in 2005.
Baroness Hamwee
My Lords, the Minister started his reply by talking about balance. I have always thought that that was what the Freedom of Information Act exemplified within itself; it does not provide that everything can be subject to a FOI request but provides the exemptions.
I do not believe that the general reporting requirement to which the Minister has referred will cover the same sort of functions as FOI would do. I am not arguing against the exemptions, but there are different ways of dealing with issues of transparency and they produce different results. We have heard that the NCA depends on the confidence of its partners and that organised criminals could exploit FOI. Well, this would not be the first organisation that had to be very careful about what it disclosed. If there is an issue of that sort, maybe after this evening, and possibly in private, the Minister could give us some examples of where police forces, which are subject to FOI, have been caught out in the way that he suggests would be a danger if the NCA were subject to the provisions.
SOCA is exempt because of its particular functions. I am afraid that I remain unconvinced that the NCA—extending, as the noble Lord, Lord Rosser, has said clearly, to other functions—should be exempt in its totality. What I draw from this is the anxiety of the intelligence agencies not to let anyone else be in a position where they might take decisions that the intelligence agencies would not like. I shall withdraw the amendment today, but this issue justifies further examination. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) The framework document shall include—
(a) a protocol regarding the conduct of relationships between the NCA and each of the persons referred to in section 5;(b) a protocol regarding the conduct of relationships between the NCA and each of the persons referred to in Schedule 3; and(c) a protocol regarding the co-ordination of training of members of the NCA and of the forces and agencies referred to in section 5 and the inter-operability of the equipment used by the NCA and those forces and agencies.”
Baroness Hamwee
My Lords, Amendments 31 and 46A are also in this group. I will speak to Amendment 31 and my noble friend Lady Doocey will speak to Amendment 46A.
I need to credit Amendment 27A to my noble friend Lord Thomas of Gresford who, I think at Second Reading, asked the Minister—I am not sure that the idea did not come to him during Second Reading—whether there should be some sort of protocol to govern the relationships between the various agencies—I use that term in the widest sense—that will be affected by the NCA. We had a similar notion that was pursued during the passage of the Police Reform and Social Responsibility Act.
Clause 5 deals with relationships between the NCA and other agencies. The NCA can request or require them to undertake a task or indeed can itself be tasked, and there are those with which it has a duty to co-operate, to exchange information and to give or be given voluntary or directed assistance. All of that is easy to say and probably less easy always to implement. These relationships can be tricky. The different organisations will have different, inevitably competing, priorities. They will all have different governance structures. You cannot require people to co-operate with one another. Having said that, I think that the Police Reform and Social Responsibility Act did require that and I never quite understood how you could insist on co-operation. There will be different views, not just as to what is to be done but also how it is to be done. All of this suggests that there will need to be protocols—I have referred in the amendment to matters which I know my noble friend will take up, in particular training and the interoperability of equipment—and a mechanism to bring the different agencies together.
Amendment 31 deals with consultation in the preparation of a framework document including the protocol. I thought it was appropriate to bring it in at that point as well. I am not wedded to the arrangements being as I have spelled them out but we need to understand how the Government envisage these things being put into practice rather than just being, as I say, fairly easy words on paper. I beg to move.
Baroness Doocey
My Lords, I would like to say a few words about three issues. The first is training. Most of the training that is currently done with police forces tends to be computer-based training. There is a place for computer-based training but mainly to deliver knowledge or awareness. The NCA is going to be a very major body with huge responsibility, and most of the training the officers are going to require will impact on attitudes and behaviour. Therefore, I believe it needs to be done on a one-to-one basis. I urge the Government to consider putting some money into this aspect of the training. I know that one-to-one training is much more expensive than computer-based training but I believe, first, that it is absolutely essential and, secondly, that it will pay dividends because just doing computer-based training will not provide the sort of officers that will be needed for this role.
The second issue is IT. There is no doubt about the IT requirements of the NCA. The intelligence hub that will be at its centre will require major IT and the functioning of the hub will be vital to the functioning of the NCA. There have been many interoperability problems, not just within local police forces but between national police forces. I remember the fiasco when the Metropolitan Police tried to upgrade its mobile data terminal with in-car automatic number plate recognition, which resulted in huge problems. Systems collapsed and had to be rebooted every time the police got into a car. The problem was eventually resolved, but there were basically no systems for several months and there were great costs. I believe that the lessons learnt from that ought to be required reading for anyone who is going to have anything to do with IT for the NCA.
Airwave, the system whereby police radios should speak to each other, is another issue. After many upgrades and after many millions of pounds have been thrown at it—I was very involved in this—there are still problems. There are particular problems with, for example, the Met talking to forces next door. For example, where I live in Hampton, the problems with Met Police radios trying to talk to Surrey Police radios have not yet been resolved. There are going to be teething problems at the very least.
Multiple keying bothers me particularly. Most police systems are antiquated and require the input and reinput of data time and time again. I am not convinced by anything that I have read so far that the Government have looked at this in sufficient detail and given it the priority that it really deserves and needs to resolve these problems. I urge the Government to set up a small specialist group to look specifically at IT interoperability systems before they go much further and certainly before the passage of the Bill through both Houses.
Finally, I turn to Schedule 4 and the regulations about equipment. I would be very interested to understand what this means because it seems to suggest that the Secretary of State is going to determine what equipment the NCA should use. It seems at odds with the idea of setting up a very large organisation under a director-general then to prescribe and insist that it uses particular equipment. That seems to be totally against the spirit of everything else in the Bill. I would welcome some additional information on that.
Baroness Smith of Basildon
My Lords, again, I have some sympathy with these amendments. I have resisted the temptation of putting forward amendments on different issues that should be included in the framework document, but the noble Baronesses, Lady Hamwee and Lady Doocey, are right that not having the framework document and having only very limited information about what will be in it means that, at this stage, the Committee has to seek assurances about things that we consider it important should be in the document. So far I have resisted the temptation, but if we got to Report and did not have the document, that temptation may be given free rein.
The issues that have been raised are extremely important and perhaps these amendments do not go as far as we would have gone. They talk about protocol relationships, which is slightly weaker than some of the things that we would have suggested, in terms of how the relationships would work and what should be in the framework document. However, I say to noble Lords that if they do not want to accept these amendments, they have only themselves to blame. We really need to see this framework document as a matter of urgency. Debating this Bill without it means that we will be having some debates not once but two or three times, because not only will we have to debate the issues now but when we get the document we will want to debate them again. It is in the interests of good governance and good progress of business in this House that we have the framework document as soon as possible.
I am also interested in what the Minister has to say about Amendment 46A. Like the noble Baroness, Lady Doocey, I inferred from that that the fact that the Secretary of State would be making decisions and regulations on the equipment to be used seems a highly operational matter. I am not convinced—though the noble Lord may have information to the contrary that will convince me—that it is an appropriate involvement in operational details of NCA work or why the Secretary of State wants that power. I would be interested to hear what the Minister has to say about that amendment. On the other amendments, we need to ensure that these kinds of issues are going to be determined in the framework document. Any enlightenment that he can give us would be extremely helpful.
Lord Henley
My Lords, I am grateful to both my noble friend and the noble Baroness, Lady Smith, for all that they have said on this group of amendments. My noble friend is right to draw attention to the need for the agency to work closely with its law enforcement partners. Obviously such co-operation will be essential. The conduct of the agency’s relationships with other law enforcement agencies, however, is already underpinned by the clear provisions of Section 5 and Schedule 3 to the Bill. This includes the two-way duty to co-operate in paragraph 1 of Schedule 3. By contrast, the purpose of the framework document—I appreciate that the noble Baroness, Lady Smith, and others are still waiting to see it—is to set out clearly and transparently how the Home Secretary and the director-general will work together and the ways in which the NCA is to be administered.
The document is expected to include the agency’s corporate governance arrangements, the high-level arrangements for financial accounting and reporting, and how the agency will discharge its duty to publish information and promote transparency, including the cost of information that will be published by the NCA. That framework document, when it appears, will set out the relationship between two people: the director-general and the Home Secretary. They are the only people required to have regard to the framework document. This duty will not apply to others and, given the nature and purpose of the document, we do not consider it to be the appropriate place to go into the minutiae of the operational relationship between the NCA and other agencies. I recognise that there may be a need for detailed operational protocols between the agency and its law enforcement partners, but we would expect these to be agreed separately between the director-general and the agency or agencies concerned. I accept the principle behind Amendment 27A, but I respectfully suggest that the framework document is not necessarily the right place for such detailed operational protocols.
I also note the particular reference to including a protocol regarding integrating training and interoperability between the NCA and its partners. Obviously these are matters that the director-general should consider when looking more broadly at how they can deliver the NCA efficiently and effectively and how they can work well with partners. I also agree that the agency will need to ensure that its IT and communications systems are interoperable with others. I should also note that the NCA is taking on many of the assets of its precursor agencies and, as such, is not starting from a clean sheet. Also, it is expected that the director-general will focus the training and equipment requirements of the NCA to ensure that it is fully capable of delivering its priorities, working with others such as the new police professional body. The director-general needs flexibility to make the right operational decisions about these issues to address the ever-changing threat from serious crime. However, I am sure that considering best practice as well as the requirements and assets of partners will inform the decisions that he takes.
The Deputy Chairman of Committees (Lord Geddes)
We have reached Amendment 27A. Is the noble Baroness, Lady Hamwee, withdrawing it?
Baroness Hamwee
My noble friend mistook my mouthing “Do you want to say anything?” to her for my requesting her to withdraw the amendment. Perhaps I may respond to some of the comments that we have heard. I am perfectly prepared to accept that the framework document is not the appropriate vehicle for minutiae. It will be easier to assess that when we have seen a draft. The same goes for the consultation, which is the subject of Amendment 31. The Minister is saying that, under the amendment, the people I have suggested should be consulted will not be subject to the framework document.
I am afraid that this response is a little circular. I am not convinced that there is not scope for a protocol elsewhere. As I have said, the framework document may not be the right place for it. We tabled these amendments partly in order to get points about issues of equipment training and IT on the record, because they are important. Again this may not be the best way to do it, but it is important that the issues are raised.
Like my noble friend and the noble Baroness, Lady Smith, I was puzzled by the reference to equipment and the Secretary of State’s role, which seems to be an involvement which should be, as it were, below her pay grade. A protocol may not be the best way in which to deal with these issues, but however much good will there is around all this, it must be better to have ways of resolving differences rather than simply relying on good will or a duty to co-operate. To me, that begs the question of how that duty will be enforced. However, for the moment, I beg leave to withdraw Amendment 27A.