House of Lords
NHS: Liverpool Care Pathway
(12 years, 6 months ago)
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Baroness Knight of Collingtree
To ask Her Majesty’s Government whether use of the Liverpool care pathway in NHS hospitals is consistent with the outcome of parliamentary debates and votes on euthanasia.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Liverpool care pathway is an internationally recognised framework to guide the delivery of high-quality care for people in their last hours or days of life. It is not a means of euthanasia and is therefore entirely consistent with the outcome of parliamentary debates and votes on the subject. The Liverpool care pathway helps to ensure that people die with dignity, respect and minimum distress.
Baroness Knight of Collingtree
My Lords, is my noble friend aware, however, that although the Liverpool care pathway is certainly not intended to be a tool for euthanasia, that is what a growing number of people now believe it to be, judging by their own experiences? Is he aware that consultants are not always informed that their patients have been put on this pathway, and that invariably neither those patients nor their relatives are told? Will he look into what is happening, since the very name “pathway” indicates that they are shortly to face induced death, as indeed they do?
Earl Howe
My Lords, I recognise that some people who have been on the Liverpool care pathway have received poor care. The pathway is not of itself a guarantor of best-quality care. It has been consistently made clear in the guidance for the implementation of the Liverpool care pathway that it is in no way a replacement for clinical judgment and should not be treated as a simple tick-box exercise. Rather, it should be seen as a useful framework to guide the delivery of care in a way that complements the skill and expertise of the practitioner using it.
Lord Hunt of Kings Heath
My Lords, I refer the House to my health interests in the register. Does the noble Earl agree that the noble Baroness, Lady Knight, has done sterling work in bringing to the attention of Parliament issues to do with the appropriate feeding and nutrition of patients in hospitals, but that on this issue she is wrong? Will he confirm that the national care of the dying audit shows that in fact the vast majority of patients on the care pathway in the last 24 hours of their life were reported to be comfortable and receiving good clinical care, and that his department will continue to recommend the care pathway as good practice?
Earl Howe
My Lords, we will continue to do so. The Liverpool care pathway has sometimes been accused of being a way of withholding treatment, including hydration and nutrition. That is not the case. It is used to prevent dying patients from having the distress of receiving treatment or tests that are not beneficial and that may in fact cause harm rather than good. The noble Lord was right that the recent national care of the dying audit of hospitals, run by Marie Curie in collaboration with the Royal College of Physicians, notes that in 94% of documented cases discussions explaining the use of the LCP were held with relatives or carers. That audit process gives clinicians an opportunity to feed in their views about how well, or not so well, the pathway is working in practice.
Baroness Finlay of Llandaff
My Lords, given that the Government have recognised that the Liverpool care pathway has been designed to bring the best of hospice care into other care settings, such as hospitals, nursing homes and patients’ own homes, and that it is a tool—and a tool is often only as good as the person using it—will the Government ensure that Health Education England includes in its remit comprehensive education around the appropriate care of dying patients?
Earl Howe
Yes, my Lords. To ensure that it is used properly, the Liverpool care pathway emphasises the importance of staff receiving appropriate training and support in its use as well as accessing relevant end of life training and education programmes. A range of activity has been undertaken to support staff education and training and end of life care by the national end of life care programme and others. That includes the development of an extensive package of e-learning, which is free to access for health and social care staff.
Baroness Browning
Will my noble friend tell the House whether there is ongoing monitoring of patients who are sedated but not hydrated? Looking at people who are dying can take a long time. My noble friend mentioned a few hours or a few days. If you are not hydrated for days on end, inevitably death will come. What analysis is there?
Earl Howe
My Lords, one key feature of the Liverpool care pathway is regular monitoring of the patient—every four hours at a minimum, I believe. That regular monitoring process gives clinicians and nursing staff an opportunity to reassess the patient’s condition to see whether they are in fact responding to treatment, whether they require a different form of treatment or whether the treatment they are being given is unduly burdensome. That regular monitoring should, I think, take care of the point my noble friend raises.
The Lord Bishop of Liverpool
My Lords, I have some contact with the Liverpool care pathway in Liverpool. Does the Minister agree that not just palliative care professionals but all healthcare professionals should receive education and training in caring for dying patients? Would he also agree that in the relationship between the two, trust is paramount?
Earl Howe
My Lords, the right reverend Prelate is absolutely right. Audits that have been carried out, particularly the recent audit published in December last year, provide us with important information about the current quality of care provision. The recent audit makes a series of recommendations, including mandatory training in the care of the dying for all healthcare staff involved and a seven day, nine to five, face to face palliative care service.
Baroness Crawley
My Lords, is the Minister aware that my own dear mother spent her last days on the Liverpool care pathway? Is he further aware that our family experience was of extraordinary care and sensitivity on the part of all the healthcare professionals involved, enabling us to be with my mother peacefully at home at her death? Confusion reigns over the title. A family friend, hearing that Mum was on the Liverpool care pathway, thought that a miraculous recovery had taken place and that she was taking a leisurely stroll in one of our great northern cities.
Earl Howe
My Lords, I am pleased to hear that the noble Baroness’s mother was well looked after with the benefit of the Liverpool care pathway. I take the point about the name. Indeed, the noble Baroness, Lady Finlay, can probably give us some instructive examples from Wales, where the word “pathway” has not been adopted and the process has, I believe, been refined.
Baroness Masham of Ilton
My Lords, is the noble Earl aware that some relatives and loved ones have to fight to stop their loved ones being on the Liverpool care programme? Can he think of anything worse than dying of thirst?
European Court of Justice: Jurisdiction
(12 years, 6 months ago)
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Lord Vinson
To ask Her Majesty’s Government whether they will exercise their right, as agreed in the Lisbon Treaty, to opt out of the extension to the United Kingdom from December 2014 of the jurisdiction of the European Court of Justice over crime and policing laws.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government are considering carefully the many different factors involved in this decision and its implications. I am aware of the level of interest in the decision, which we have to make by the end of May 2014. We want to ensure that both Houses of Parliament have the opportunity for a full debate and vote on the issue.
Lord Vinson
I thank the Minister for his considered reply. However, does he agree that we now have the opportunity, at this critical time for the EU’s future, to confirm our opt-out from the EU’s overall control of our policing and justice system? I am sure he appreciates that to opt in would be the final surrender of our sovereignty. Our Ministry of Justice would become largely redundant as the ECJ became our supreme court. We would effectively become a province in the republic of Europe. Will the Minister confirm that the Government are well aware of the severity of this choice for our nation and will inform the wider public accordingly?
Lord Henley
My Lords, as I said in my original Answer, we are committed to making a decision by May 2014. It is a very important decision and we understand its severity. That is why we have committed ourselves to a debate in both Houses of Parliament, followed by a vote. In the end, the decision will be based on what is in the interests of the United Kingdom. My right honourable friend has given that assurance.
Lord Hannay of Chiswick
My Lords, the Minister will recognise that in January 2011, when committing the Government to a vote in both Houses on Protocol 36, the Minister for Europe said in another place:
“The Government will conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees and a further announcement will be made in due course”.—[Official Report, Commons, 20/1/11; col. 51WS.]
Will the Minister say what sort of consultations they have in mind and what their timing will be? Does he agree that all these consultations need to take place in a deliberate and fully transparent way if the subsequent vote in both Houses is to be conducted on a sound evidential basis?
Lord Henley
My Lords, the precise words that the noble Lord used about the Government conducting further consultations—I could go on—are in front of me in my brief. I agree with them and that is what we committed ourselves to in January 2011. How we conduct those arrangements will be a matter for discussions in the appropriate place at the appropriate time between the European Scrutiny Committees and the Commons and Lords Home Affairs and Justice Select Committees. We need to discuss these things with a number of different committees. I make it clear to the House and the noble Lord today how seriously we take this and why we think it vital that we eventually have that debate and vote in both Houses.
Lord Anderson of Swansea
My Lords, when the Government come to make this important decision, will they recognise that ordinary British citizens are less inclined to be concerned about abstract notions of sovereignty than about the ways in which they will be protected when they are in other European countries? There are very cogent arguments in favour of European harmonisation in these areas.
Lord Henley
My Lords, there are arguments and ordinary citizens would accept some of them. However, ordinary citizens would also accept that some things are better looked after by our own Parliament back in the United Kingdom. That is why we will make the appropriate decision at the appropriate time, after we have listened to both Houses and voted on the matter.
Baroness Hamwee
My Lords, does the Minister agree that there is a great deal of and a great variety of cross-border crime? If he does, does he also agree that it is important that the UK puts itself into a position where we have most influence and the greatest opportunity for leadership?
Lord Henley
My Lords, again I totally agree with my noble friend on that matter. But it means that we have to make very difficult decisions at the time about what is precisely in the United Kingdom’s national interest. We will not make a decision on all 133 measures before that. There might be individual measures, as my noble friend will be aware, on which we might have to make a decision before then. But as a totality we will leave this to 2014.
Lord Dubs
Will the Minister confirm that the Government have no intention of opting out of the European arrest warrant, which, for all its faults, is still the best way to ensure that criminals—some of whom commit very serious offences, including terrorism —are brought to justice in this country?
Lord Henley
My Lords, the European arrest warrant was one of those matters agreed to before 2009. Therefore, it is covered by what we are discussing today. As I have said, we will make our decision at the appropriate time in 2014. It might be that we feel that in the national interest we do want to opt out of it; it might be that we do not. But I think that we will leave that to another day.
Lord Pearson of Rannoch
My Lords, of the 133 measures mentioned by the noble Lord, which were still outstanding before our opt-out last December, does he accept that the Government have already opted in to eight of the most important? Can he therefore give the House an assurance that the Government will not opt into these measures one by one so that there is very little to opt out of when we come to the end of May 2014?
Lord Henley
My Lords, as I think I made clear, I do not want to go through all 133 measures at this stage. The House would not like it at Question Time and it would not be an appropriate use of the limited time I have. We will make appropriate decisions on some of them beforehand if it is appropriate but the larger number is a matter for 2014.
Lord Deben
My Lords, will the Minister confirm that there is more than one view on this side of the House and that the way in which we should discuss this should be as unemotional and as factual as possible, and that we do not help the argument by bringing what can only be called extreme views into the discussion?
Lord Henley
My Lords, to put it very simply, I agree with my noble friend that there is more than one view on this side of the House. There is possibly more than one view on the other side of the House and more than one view in all corners of the House. I agree with every aspect of what my noble friend has said.
Wales: Barnett Formula
(12 years, 6 months ago)
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Lord Wigley
To ask Her Majesty’s Government what representations they have received from the Welsh Government concerning the reform or replacement of the Barnett formula.
The Commercial Secretary to the Treasury (Lord Sassoon)
My Lords, bilateral discussions between the Government and the Welsh Government on all proposals arising from the Holtham commission, including funding reform, are continuing. To repeat what I have said on a number of previous occasions, as set out in the coalition programme for government, while the Government recognise concerns expressed over the Barnett formula, they believe that at this time the priority must remain the reduction of the deficit.
Lord Wigley
My Lords, is the Minister aware that in regard to the funding needed to maintain the level of public services in Wales up to the UK average, last year the Holtham report indicated an underfunding of some £400 million? Figures released yesterday indicate that by 2010-11, based on Treasury outcome figures, that had increased to an underfunding of £540 million. Is he further aware that when the Secretary for Wales addressed the National Assembly on 23 May, she said that,
“everybody knows that the Barnett Formula is coming to the end of its life.”?
When will it be buried and replaced by a needs-based formula?
Lord Sassoon
My Lords, first, on the numbers, which the noble Lord, Lord Wigley, quoted, when the Holtham commission reported to the Welsh Assembly in July 2010, it claimed that Wales had a £300 million funding shortfall. I do not recognise the new figure put out by Plaid Cymru yesterday but the point is that Wales has received nearly £500 million additional funding in the current spending review, SR10. In 2010-11, funding in Wales was running at some 15% above the level in England, so we need to keep the numbers in perspective. As I have said previously, yes, we recognise the significant issues that there are with the Barnett formula.
Lord Barnett
My Lords, as the noble Lord knows, a powerful Select Committee of this House unanimously recommended major reform, which would help not only Wales but every other part of the UK, particularly Scotland, where there needs to be reform. I gather that, subject of course to the Scottish people sensibly voting against separating from the UK in a referendum, the Government have in mind a major financial reform in Scotland, probably well before the time that the Minister has always mentioned. In those circumstances, would not then be a good time for Scotland to make that piece of essential reform?
Lord Sassoon
My Lords, we are straying a bit from Wales, but I am very happy to talk about Scotland. Of course, we recently passed through this House the new Scotland Bill, now an Act, which made some very significant changes resulting from the Calman commission recommendations. In respect of the eponymous formula of the noble Lord, Lord Barnett, the difficulty that we have among others is that there is no consensus across the UK on what could replace it. Since 1978, it has stood the test of time, and it is very difficult to find a better basis.
Lord Roberts of Conwy
Would my noble friend agree that ideally what is required is a formula that is adaptable to the special needs of Wales, Scotland and other national regions?
Lord Sassoon
Yes, indeed, I would agree with my noble friend that that should be the objective of any replacement for the formula.
Baroness Hollis of Heigham
My Lords, the Minister said that his priority was to seek to reduce the deficit. Given that under the Barnett formula, which has not stood the test of time, Scotland is over-funded by £4 billion at the expense of English taxpayers, would that £4 billion not be a useful contribution to the deficit—or is the Minister so casual about our finances?
Lord Sassoon
No, my Lords, the Treasury is not remotely casual about the national finances, and what the noble Baroness says about the Scottish funding situation might well be challenged by others in other devolved parts of the nation.
Lord Forsyth of Drumlean
My Lords, it would not be challenged by me—and, indeed, the Select Committee came to that unanimous view. But what is the difficulty with finding an agreed needs-based formula for funding when the money that Scotland receives is distributed to health and local authorities using precisely a needs-based formula for funding? Surely it is time to deal with a matter that is creating division in the United Kingdom at a time when we need unity.
Lord Sassoon
My Lords, one difficulty is that there is no consensus on the appropriate way in which to measure needs for any replacement. As the previous Government said in response to the Select Committee report,
“the Barnett formula has a number of strengths, among them the merit of allowing the devolved administrations to determine their own assessment of needs and priorities in devolved areas”.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, tomorrow we have a Question on the behaviour of the House, and I would not want to use this as a bad example. We have time for one more Peer, and I think that it should be the noble Lord, Lord Richard.
Lord Richard
My Lords, I am obliged to the Leader of the House. The Minister says that there is no consensus in the United Kingdom about the Barnett formula, but there is a great deal of consensus that it does not operate fairly. The Select Committee was unanimous in that opinion, taking a great deal of evidence on it and coming to that conclusion. For the Minister to come along parroting, as he does every time the issue is raised, that we cannot do it now because of the deficit, is frankly unworthy of the subject. It is totally dismissive of the decision that the Select Committee took.
Is it not also true that there is a perfectly practical alternative to the existing Barnett formula to which the noble Lord, Lord Forsyth, referred—a needs-based formula? The Select Committee was set up to look precisely at this issue, which it did, and now it is time that the Government did.
Lord Sassoon
I simply refer the noble Lord, Lord Richard, to my first Answer.
Schools: Curriculum
(12 years, 6 months ago)
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Baroness Jones of Whitchurch
To ask Her Majesty’s Government whether they will publish the names and qualifications of all those who advised the Secretary of State for Education on the content of the recent curriculum review proposals for the teaching of primary school mathematics, science and English; and what international comparisons were used to inform the proposals.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, the Government are happy to publish a list of those who were consulted to inform the development of the draft curriculum documents published on 11 June, and we will do so shortly. The review has drawn on a wide evidence base, including an analysis of the English, mathematics and science curricula of high-performing education jurisdictions, which was published on 19 December 2011. I will send the noble Baroness copies of both documents.
Baroness Jones of Whitchurch
I thank the Minister for that reply, particularly for offering to send me the specifics of the international comparisons on which the proposals have been made. However, is he concerned that three of the four members of the expert panel set up to advise the Government on the curriculum review are reported to be deeply unhappy with the proposals now announced by Michael Gove, which they describe as too narrow and overprescriptive? Is he also concerned about their allegation that the proposals are not drawn from the best available international evidence? Does not Michael Gove’s throw-away response to these concerns in the Commons on Monday, when he said that,
“advisers advise but Ministers decide”,—[Official Report, Commons, 18/6/12; col. 603.]
give weight to the view that the expert panel’s evidence has been disregarded in favour of a small Gove clique of advisers in his own department?
Lord Hill of Oareford
First, a number of recommendations made by the expert panel were accepted by the Secretary of State. Secondly, although it is true that there were differences of opinion between some members of the expert panel, and between some of them and Ministers, a difference of opinion between Ministers and expert advisers is scarcely unheard of. However, Ministers ultimately have to take responsibility for their decisions. I think most of us in this House think that that is the way it should be. However, the key point of the proposals that the Government have brought forward is that we are trying to raise ambition and standards in our primary curriculum, particularly as a gap in attainment has opened up between the UK and other international jurisdictions and we are keen to try to narrow it.
Baroness Walmsley
My Lords, the reference to international comparisons reminds me that in foreign countries children often start learning languages at primary level, something in which the Secretary of State is very interested. Given the difficulties with the lack of teachers and the fact that many secondary schools have dozens of feeder primary schools, all of which might have taught a different language, will my noble friend the Minister look into language appreciation or language taster courses so that children get a foundation in foreign languages but do not study for too long a language which they may not be able to carry over to secondary level?
Lord Hill of Oareford
My Lords, as my noble friend will know, one of our proposals for the primary curriculum is to make the teaching of foreign languages compulsory at key stage 2. Those proposals are out for consultation. There is clearly an important question to be addressed about the quality of teachers and how to teach languages, because we have fewer than we need and there has been a drift away from modern languages in recent years. One of the things on which we will welcome views to the consultation over the next few months is how we can make sure that teachers have the support they need to ensure that languages can be taught at primary and secondary school.
Lord Quirk
Given the centrality of English in the whole of education, is the Minister aware that many in the profession are delighted with the steps taken to create a key stages 1 and 2 curriculum that meets our present and future needs? Can he therefore assure us that the Government will do their utmost to ensure the enthusiasm and competence of the teaching body to deliver this most promising curriculum?
Lord Hill of Oareford
My Lords, I am very aware of how important the whole issue of language development is to the noble Lord. I agree with him, and one of the things that we are seeking to emphasise in the new curriculum is the importance of the use of language and language development all the way through. I am grateful for his support for the changes that we are trying to make. As I have said, we will now consult on those proposals and we will certainly do all we can to make sure that teachers have the support to deliver this more ambitious curriculum.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, I am sorry to intervene again but we cannot have the noble Baroness and the noble Lord both trying to speak at the same time. One of them needs to decide who is going to give way. It looks as if the noble Lord, Lord Winston, has given way.
Baroness Billingham
Michael Gove’s somewhat bizarre curriculum review has achieved the stunning result of uniting the whole teaching profession, most academics and even his own advisers against his proposals. Precisely how many hours of physical education will remain within the curriculum in all primary schools? Is it mandatory? I ask the Minister that question against the background of an Olympic legacy that we have promised to the nation. If we do not have sport in schools, the legacy will be in tatters.
Lord Hill of Oareford
I do not agree with the noble Baroness’s basic premise on the nature of the response to the curriculum. As the noble Lord, Lord Quirk, has just demonstrated, many applaud what is in it, including many teachers who are already delivering such an approach. I agree that sport is important and it is remaining a compulsory part of the national curriculum. We will shortly publish the programmes of study that we propose will go alongside that requirement.
Refreshment Committee
The Chairman of Committees
That a Select Committee be appointed to advise on the refreshment services provided for the House, within the strategic framework and financial limits approved by the House Committee;
That, as proposed by the Committee of Selection, the following members together with the Chairman of Committees be appointed to the Committee:
L Colwyn, B Doocey, L Elder, B Gale, B Gould of Potternewton, B Henig, L Howard of Rising, B Jenkin of Kennington, L Mawson, L Newby, L Palmer of Childs Hill, L Skidelsky;
That the Committee have power to send for persons, papers and records;
That the Committee have leave to report from time to time.
Lord Palmer
My Lords, bearing in mind the extremely heavy workload of the conscientious noble Lord, Lord Sewel, as Chairman of Committees, would it not make sense to appoint to this very important committee a chairman who has first-hand catering experience?
The Chairman of Committees (Lord Sewel)
Well, I do have some first-hand catering experience. I remember spending many hours happily working in various bars during my period as an undergraduate. The point is that at this stage, in my first year as Chairman of Committees, it is important that I have direct experience of the issues confronting all the domestic committees. After that has been achieved, which may take some time, the situation could well be reviewed—but not until then.
Broadcasting (Local Digital Television Programme Services and Independent Productions) (Amendment) Order 2012
Baroness Garden of Frognal
That the draft order be referred to a Grand Committee.
Armed Forces Act (Continuation) Order 2012
(12 years, 6 months ago)
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Community Right to Challenge (Fire and Rescue Authorities and Rejection of Expressions of Interest) (England) Regulations 2012
Baroness Hanham
That the draft regulations laid before the House on 30 April be approved.
Relevant document: 1st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 13 June.
Local Government Finance Bill
Baroness Hanham
That it be an instruction to the Grand Committee to which the Local Government Finance Bill has been committed that they consider the Bill in the following order:
Clause 1, Schedule 1, Clause 2, Schedule 2, Clauses 3 to 5, Schedule 3, Clauses 6 to 9, Schedule 4, Clauses 10 to 19.
Financial Services Bill
(12 years, 6 months ago)
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Lord Sassoon
That it be an instruction to the Committee of the Whole House to which the Financial Services Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 3, Schedule 1, Clause 4, Schedule 2, Clause 5, Schedule 3, Clauses 6 to 10, Schedule 4, Clauses 11 to 13, Schedule 5 Clauses 14 to 20, Schedule 6, Clauses 21 to 27, Schedule 7, Clauses 28 to 32, Schedule 8, Clauses 33 and 34, Schedule 9, Clause 35, Schedule 10, Clause 36, Schedule 11, Clauses 37 and 38, Schedule 12, Clause 39, Schedule 13, Clauses 40 and 41, Schedule 14, Clause 42, Schedule 15, Clause 43, Schedule 16, Clauses 44 to 90, Schedule 17, Clauses 91 to 95, Schedules 18 and 19, Clauses 96 to 100, Schedules 20 and 21, Clauses 101 to 104.
Directors’ Pay
(12 years, 6 months ago)
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The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox)
With your Lordships’ permission, I should like to repeat a Statement made by my right honourable friend the Secretary of State for Business, Innovation and Skills in another place today.
“I welcome this opportunity to set out the Government’s proposals on directors’ pay. This follows extensive consultation with business and investors.
Since I first addressed the House on this issue, the Government have initiated a broad, national debate about shareholder activism. This has encouraged shareholders to become more engaged as owners of their companies during the so-called ‘shareholder spring’. We have also seen many companies engaging constructively in the face of this opposition. This is an important step for encouraging improved pay discipline.
As I said then, there is compelling evidence of a disconnect between pay and performance in large UK-listed companies. It is right that the Government act to address this clear market failure. Today, I can therefore announce a far-reaching package of reforms that will strengthen the hand of shareholders to challenge excessive pay while not imposing unnecessary regulatory burdens.
We will give shareholders new powers to hold companies to account on the structure and level of pay, and make it easier to understand what directors are earning and how this links to company strategy and performance. Shareholders will have a binding vote on a company’s pay policy, including their approach to exit payments. Rather than being a one-off vote, for the first time this will be a real, lasting and binding control on pay. A company will be able to make payments only within the limits that have been approved by a majority of shareholders. This binding vote will happen annually unless companies choose to leave their pay policy unchanged, in which case the vote will happen at a minimum every three years. This will encourage companies to set out and stick to a clear, long-term pay strategy, and it will help to put a brake on the annual upward pay ratchet.
The policy should explain clearly how pay supports the strategic objectives of the company and include better information on how directors’ pay relates to that of the wider workforce. This includes increased transparency on employee pay, including information that will show the difference between rises in directors’ pay and those of the employees. Employee views on pay are important. That is why I am proposing that companies report on whether they have taken steps to seek the views of their workforce.
As part of their policy, companies will have to spell out their approach to exit payments. When a director leaves, the company must publish a statement explaining to shareholders exactly what payments the director has received. Companies will not be able to pay more than the shareholders agree.
Alongside the binding vote on policy, there will, as now, be an annual advisory vote on how the policy has been implemented, including all remuneration paid in the previous year. If a company fails the advisory vote, this will automatically trigger a binding vote on policy the following year. Both the binding and advisory votes should be as strong as possible to keep up pressure on companies. I therefore welcome the CBI’s call for the Financial Reporting Council’s corporate governance code to be updated to codify the current best practice that companies make a statement when a significant minority of shareholders vote against a pay resolution. This would publicly hold directors to account. Pay reports will be clearer and more transparent for investors. Companies will have to report a single figure of the total pay that directors received for the year, details of whether they met performance measures and a comparison between company performance and chief executive’s pay.
The Government will bring forward amendments to the Enterprise and Regulatory Reform Bill shortly to introduce these reforms. In tandem, and as good policy-making requires, we will publish, for comment, revised and simplified regulations setting out what companies must report on directors’ pay. Lasting reform is dependent on both business and investors maintaining this activism and developing and adopting good practice.
The best companies and investors are already leading the way and acting as early adopters of these reforms. We welcome the close engagement of institutional shareholders and their willingness to use their voting powers. We want this to be sustained and shall continue to monitor disclosure levels. Evidence suggests that more institutional investors are disclosing their voting records and that up to three-quarters of those investors are now disclosing their votes. We will consider further action if the number of investors volunteering to disclose their voting records does not continue to increase.
This is a strong package of reform. It builds on the United Kingdom’s status as a global leader in corporate governance; it commands wide support from investors and business; and it addresses public concerns about directors’ pay. These proposals restore a stronger, clearer link between pay and performance; reduce rewards for failure; promote better engagement between companies and shareholders; and, overall, empower shareholders to hold companies to account through binding votes. We look forward to discussing these proposals further with the Business, Innovation and Skills Select Committee on 28 June and in the Public Bill Committee that will consider the Enterprise and Regulatory Reform Bill”.
My Lords, that concludes the Statement.
Lord Stevenson of Balmacara
My Lords, I thank the Minister for repeating the Statement made earlier in another place. In January this year, the Prime Minister said on the Marr programme:
“it’s the excessive growth in payment unrelated to success that’s frankly ripping off the shareholder and the customer and is crony capitalism and is wrong. And it’s also—I think a key point—payments for failure, those big rewards when people fail, I think make people’s blood boil and again is actually taking money from the owners of the company, the shareholders and everyone with a pension in Britain … I think you know what we should be doing here is what are the best market tools to try and correct this market failure and I think transparency is a key tool, so we can all see what’s happening, and then clear votes so you’re empowering the shareholder”.
In March, the Secretary of State for Business, Innovation and Skills announced in a Written Ministerial Statement a public consultation,
“that provides more detail on a model which will give shareholders greater influence on the issue of executive remuneration. The main components of this are … An annual binding vote on future remuneration policy … Increasing the level of support required on votes on future remuneration policy … An annual advisory vote on how remuneration policy has been implemented in the previous year … A binding vote on exit payments over one year’s salary”.
We supported this initiative, building as it does on work done by the previous Government in 2002. So, today, we are happy to confirm our support for much of what is in the Statement, including the binding shareholder vote on exit payments, the measures to simplify pay reports to increase transparency, and an annual advisory vote on how remuneration policy has been implemented in the previous year.
What has happened to the brave new world outlined by the Prime Minister in January and echoed by the Secretary of State in March? In March, an annual binding vote on future remuneration was one of the “main components” of the Secretary of State’s plan to give shareholders greater influence. This has been watered down to one vote every three years, unless during that three years there is a change to the policy. But will that not simply incentivise boards to draft policy as broadly as possible so as to avoid anything more than a triennial vote? Who will be the arbiter as to whether there has been a change of policy in each company—the board or the shareholders? Bureaucracy has been raised as an objection to an annual vote, but given that there will still be annual advisory votes on the implementation of remuneration policy in the previous year alongside other annual votes such as the election of directors, surely that objection simply does not hold water.
Secondly, the Government proposed to increase the majority required for the pay policy to be approved, but in the Statement the Government have reverted to a simple majority. We believe that they should have gone for a 75% threshold; as Dominic Rossi, the chief investment officer of Fidelity Worldwide Investment has said, such a threshold would ensure that companies consult widely with shareholders prior to a vote and give companies a clear mandate, and the need for a clear majority would also encourage all shareholders to express their views. Why did the Government not take heed of this advice?
Thirdly, the Statement says that,
“employee views on pay are important”.
If that is the case, why has the proposal been limited to companies reporting,
“on whether they have taken steps to seek the views of their workforce”?
Will the Minister explain why the Government have not introduced the requirement for employee representatives to sit on board remuneration committees?
In the accompanying Directors’ Pay: Guide to Government Reforms, published today, the Government say:
“Over the last decade, directors’ pay in the UK’s largest listed companies has quadrupled with no clear link to company performance. Business leaders and investors now agree that this is a problem. Key stakeholders have spoken out in favour of action”.
Sir Roger Carr, president of the CBI, is quoted as saying in May 2012:
“In the way we pay ourselves … now is the time to be more transparent, more responsible and more accountable. High pay must be for exceptional performance, not mere attendance”.
Simon Walker, director-general of the IoD, is quoted as saying in March 2012:
“The level of executive pay at the UK’s largest companies has become unjustifiable over the last decade and it’s right that the Government recognises that it is shareholders who have the power to control it”,
and Otto Thoresen, director-general of the ABI, is quoted as saying in April 2012 that,
“the days of gold-plated payouts for failed leaders are coming to an end. We have the chance to agree a new set of rules focused on greater simplicity, greater transparency and genuine reward for performance. It is an opportunity we must take”.
Those are powerful comments, made by key stakeholders, and the Government should take careful heed of what is being said.
I note that the Government are claiming credit for a growth in shareholder activism. Indeed, “success has many fathers”. In the so-called shareholders’ spring, shareholders have been flexing their muscles and exercising their current, albeit restricted, rights with some verve this year. That is very welcome. Change and reform must be shareholder led—it is they who own our businesses—and surely we in Parliament should do what we can to empower and encourage them as much as possible.
There is the whiff of a U-turn in the air. The Government have talked up what they were intending to do in this area, but in the event they have failed to deliver, as the final proposals are, to be frank, a bit limp. They are certainly not the strong package of reforms, but they could become that. As the Statement indicates, this is not the last chance we will have to discuss these topics. We look forward to debating the amendments to the Enterprise and Regulatory Reform Bill, which will give these proposals legislative effect, in your Lordships’ House in the not too distant future.
Baroness Wilcox
My Lords, I thank the noble Lord, Lord Stevenson, for his support for some of the things that we have done. Obviously he feels that we have not gone far enough, which is what I expected him to say. Of course, that allows me to say that in all the years that his Government were in power, they did not do any of this. Therefore, I hope that he will feel that we have at least made a decent start and will encourage us as much as he can.
I will answer some of his questions. We consulted extensively with business and investors. The Association of British Insurers today said that the package was practical and workable, and would help investors tackle excessive pay. I know Sir Roger Carr very well. I was on the board of Cadbury Schweppes with him, and we were also—I think—on the Audit Committee and the Remuneration Committee at the same time, so he and I have some history, and I am sure that we will agree over the years.
The noble Lord asked why we had gone for a binding vote and why we had changed the time period from three years. Shareholders will get a binding vote on a company’s pay policy, as we said, including on exit payments. This binding vote will happen annually unless companies choose to leave their pay policy unchanged, in which case the vote will happen at least every three years. The idea on consultation was that it would encourage companies to set out long-term pay policies clearly linked to company strategy rather than short-term, one-year pay policies. We hope that it will put a brake on continuous upward pay ratchets. However, we will watch and see whether it succeeds.
On employee representation, we have acknowledged that employees’ views on pay are important. That is why I proposed that companies should report on whether they have sought the views of the workforce. We will monitor this very carefully. As for employees on boards, nothing stops companies doing this already, but we are not saying that it should be enforced—we do not believe in mandating this across all firms. We hope that the things that we put forward today will give people confidence to go forward, and certainly will give confidence to employees, who have a lot of powers that they have not yet used, which are similar to those of shareholders who have gone forward and said, “Enough is enough”.
Earl Attlee
My Lords, perhaps I may remind the House of the benefit of short questions to the Minister, in order that she may answer as many as possible.
Lord Razzall
My Lords, I thank the noble Baroness for introducing this important Statement. I have three questions. First, does she accept that the Statement applies almost entirely to companies owned and run with employees in the UK? What is her view on the large number of FTSE 100 companies that have shareholders and employees primarily outside the United Kingdom? The Statement says that there has been a broad national debate about shareholder activism. Has any consultation taken place with companies run from Kazakhstan or the United States that are UK FTSE 100 companies? How does she think these proposals will go down with them?
Secondly, I will touch on the question of exit payments that was raised by the noble Lord, Lord Stevenson. I support and understand the Government’s position that they do not wish shareholders to have the right to veto the individual contracts of people who are taken on for employment, but I am not entirely sure that that should apply to exit payments. Contrasting the Statement in my left hand with the Explanatory Notes in my right, there seems to be a slight confusion. The Statement says that on exit payments, companies will not be able to pay more than shareholders agree. Will the Minister confirm that that is not exactly true? The proposal is that the company will say something like, “We will never pay more than two years’ salary in an exit payment”, or, “We will never pay more than the contractual entitlement of the employee”, or, “We will reward performance but not lack of performance”. Does the Minister agree that the Statement is slightly misleading in suggesting that shareholders have a right to veto exit payments?
The third point is slightly facetious, and the Minister may well have answered it already. As we know, her Secretary of State has been described in the Daily Telegraph by Mr Adrian Beecroft as a crypto-socialist. The criticism that the noble Lord, Lord Stevenson, has made has probably proved that that is not the case. Will the Minister confirm that, as far as she is aware, the business community broadly welcomes these Statements and regard them as coming from a Secretary of State who is significantly pro-business?
Baroness Wilcox
In answer to my noble friend’s first question, company law captures only UK companies. However, overseas companies must comply with the listing rules. We will work with the FSA to consider how the listing rules need to change in view of these reforms. I hope that is a helpful answer. In answer to his second question, companies will be able to make exit payments only within the envelope that shareholders have approved and it will be up to the shareholders to agree.
I cannot imagine that my Secretary of State was ever called a crypto-socialist by anybody—was he? I know that business very much welcomes what we are doing at the moment. Shareholders and business welcome it, and it is with them that we have been talking and negotiating to make sure that we can put this into the Bill that is coming up and that we can introduce secondary legislation so that we can get this moving as soon as possible. Everybody seems to agree that things must change.
Lord Tomlinson
My Lords, did the Minister hear the discussion on Radio 4 this morning in which one company chief executive reminded us of the fuss there was 10 years ago when the salary of the chief executive of British Gas reached £460,000? Is she surprised that, 10 years later, when FTSE chief executives have an average salary of 10 times that amount, this Statement smacks somewhat of closing the door after the horse has bolted? It is not sufficient just to deal with the present problem because the proposals that are being made build in the inequity that exists at the present time.
When the Minister talks about pay, precisely what is she talking about? Is she talking about total emoluments, of all sorts—pay, share options, shares, accommodation provided; the whole gamut, everything included—and will that be made absolutely transparent? Can she give us that assurance at least to make sure that there is no progress on the inequity?
Baroness Wilcox
I am very happy to reassure the noble Lord that we mean pay—all of it—and that is why we said in the Statement that there would be one figure. One figure means you do not have to work your way through myriad figures and arrangements, et cetera, so that it will be clear to everybody exactly what that person is getting.
I did hear the interview this morning. It was with two businessmen; one from a FTSE 100 company and the other one from a company that was never listed on the Stock Exchange. If you talk about closing the door, in the short time that we have been in government, we have now opened the door—a door that we feel should have been opened a lot longer ago, but we were not in government then.
Baroness Sharples
Does my noble friend agree that small shareholders will take considerable encouragement from this Statement?
Baroness Wilcox
My noble friend is right. We are very keen to make sure that shareholders feel that they are getting a fair deal. It is very useful for the very big shareholders to be able to get in and take on the companies for these pay arrangements. I have sat in FTSE 100 company meetings when the room is absolutely full of people who have only got a few shares. Up go all the hands for the vote and we add them up: 1,800 for, 246 against; and then of course we have the other votes that have come in, that are not in the room at the time: 45 million say this, and so on. So yes, the small shareholder will feel that he is in the room, and it is very important that we start to see the dividends grow, if we can, for small shareholders too. We want more shareholders. I thank my noble friend for the question.
The Lord Bishop of Durham
My Lords, since the 1980s the multiple between the average earnings in FTSE 100 companies and the earnings of top executives has risen from about 29 times to at least 140 times. If we do not see any improvement in these differentials, they will prove dangerous to social cohesion, as has been widely seen across Europe. Will the Minister be reviewing measures to see if greater effect can be brought to bear?
Baroness Wilcox
The right reverend Prelate is right; one of the big worries is the great differential which has gradually opened up between the top pay and that of other employees in the company. As we said in the Statement and as I am happy to repeat now, we will be making sure that companies are looking at the increments and the pay rises that are happening at all levels. I know the right reverend Prelate was in business and it is very nice to have a Bishop in the place who knows something about business.
Lord Myners
My Lords, this is the minimum necessary response to a situation in which company directors seem to see their role as driving the cost of everything down except their own remuneration. This is not a strong Statement. The Minister is wrong to suggest the previous Government did nothing. They introduced the Companies Act 2002 which increased disclosure; they introduced obligations for institutional shareholders to publish their votes; they also promoted the Higgs and Walker reviews. So the Minister is simply wrong to say that the previous Government did nothing on this issue. Paragraph 7 of the Secretary of State’s Statement shows that the Government’s policy is both voluntary and binding. When I suggested that earlier this week, the noble Lord, Lord De Mauley, who is in his place, said that he could not envisage a situation which was both voluntary and binding.
However, to questions. First, the Minister says that these reforms will strengthen the hand of shareholders. Can she explain why shareholders could not have introduced these requirements themselves through amendments to the articles of association? I suggest that these reforms do not strengthen the hand of shareholders at all. They already had that power. Secondly, the right honourable Secretary of State said these proposals were introduced in the face of opposition. Can the Minister tell us the opposition to which the Secretary of State was referring in making that comment in paragraph 2 of the Statement? Finally, in her earlier answer the Minister said that employees already have powers to influence company remuneration. Can she tell us what these powers are?
Baroness Wilcox
We have engaged extensively with businesses and investors to come up with a robust, workable and enduring package that helps shareholders to sustain the increasing activism which we have seen.
Baroness Wilcox
I read that to make sure I was absolutely correct because the noble Lord has been quoting paragraph numbers. I would not like him to say that I had made a mistake or moved a comma. Perhaps he will forgive me on that.
It is a radical package. For the first time companies will be bound by a policy approved by shareholders. As to why shareholders did not do more and do it on their own, as the noble Lord knows very well, changing articles is complicated so we wish to help shareholders on their way. The noble Lord is shaking his head vigorously. He has been a Member of this House and has sat on the Labour Benches a long time. He has also been a Minister. During all that time none of this, no matter how frail or small it seems to him now, was done by his party or by him when he was sitting in this position. Let us be clear; one year ago there was not the same level of recognition on the issue of pay. Now business accepts that there is an issue and has been very good in coming forward to have the conversations with us.
Lord Renton of Mount Harry
My Lords, I for one on these Benches was very pleased to hear the Secretary of State’s announcement today. The noble Lord, Lord Myners, had a point when he said that shareholders can already veto executive pay. One of problems is that many shareholders are directors themselves and therefore have some considerable interest in seeing that salaries are up there rather than down there. It would be very helpful if it were possible to use the ordinary employees of a company more widely as a blanket on what is finally resolved. The Government should consider how employees who are not at the top of the pay scale can be brought more into the picture. I take it that what is being suggested today applies not just to directors but to executives as well. An executive is not necessarily the chief executive. What he or she is earning will also come under close survey.
Baroness Wilcox
The answer to my noble friend’s last assumption is yes. When it comes to employees getting their voices heard, we encourage them to make more use of the tools that they already have, and to which I have already referred, in airing their views on pay, for example. Existing information and consultation arrangements are a potentially powerful mechanism for employees and have been underutilised to date. We will now watch carefully what companies say in directors’ remuneration reports about whether employees’ views have been sought. I agree with my noble friend that we need to hear the views of employees. We want boards to encourage them to use the mechanisms available to them so that we can hear more of what they say.
Lord Haskel
Does the Minister agree that this is another small and welcome step towards implementing a long-term stewardship code? It is a journey which the previous Government started and which I hope this Government will continue. The Minister spoke about institutional investors, pension funds, insurance companies, active shareholders, savers and investors, all of whom will of course take an interest. However, we are told that these are a minority of shareholders. We are told that short-term traders, overseas investors with different objectives, private equity, hedge funds and those who borrow shares are now in the majority. Will they simply not bother to vote and so render this scheme useless?
Baroness Wilcox
Gosh, that is dreary. Private equity is something else again. We have promoted long-term stewardship and continue to do so today. I would not like to give the impression that the previous Government did nothing at all; they did what they could to try to change things. However, in the past few years, it has become increasingly obvious that the stretch of pay across a company has become too much to bear. From the Statement that I have repeated today, I hope that your Lordships will see that we are keen to monitor how our proposals are being implemented. We leave ourselves the opportunity to keep a watching brief, as is right, but not to interfere in companies’ day-to-day workings or set remuneration. Shareholders are becoming more engaged, as results from recent annual general meetings show. Reforms will encourage shareholders to engage by giving them stronger tools that require companies to sit up and take notice. This will help shareholders sustain the increasing activism that we have already witnessed this year and to which the noble Lord referred.
Lord Tugendhat
My Lords, I congratulate the Minister on the robustness of this Statement. I was disappointed when there was nothing in the gracious Speech on this subject but what she has announced today was well worth waiting for. I cannot help feeling that some of the contributions from the party opposite are redolent of foxes being shot. This makes a very important start on what is an important issue and I congratulate the Secretary of State and the Minister in this House on this Statement.
Baroness Wilcox
I thank my noble friend very much indeed. I am very glad that somebody thinks we have done the right thing today. I hope we will keep it up and that he will continue to be pleased with us.
Lord McFall of Alcluith
The Minister, as a former non-executive director, is very much aware that the business model is the key to understanding companies, both in good and bad times. More than anything, it is the professionals—the auditors—who understand the business model. Will the Minister ensure that the Government mandate auditors to talk to shareholders, so that they begin to understand the company? If they do, they can then request a seat on the remuneration committee, along with other stakeholders such as employees, so that we blow open the cartel that is at present called the remuneration committee.
Baroness Wilcox
I assume the noble Lord is talking about outside auditors, not the internal audit committee. I do not have an answer for him immediately but I will certainly go back and find out what we are thinking in respect of auditors. I think I have an Oral Question next week on auditors so that might be worth listening to. I apologise that I cannot answer that right now.
Baroness Buscombe
Will the Minister explain what she meant when she said that private equity is “something else”?
Baroness Wilcox
This is to do with the FTSE-100 companies as opposed to private equity, which is a completely different discipline.
Lord Roberts of Conwy
Will my noble friend the Minister confirm that the substance of this Statement will reappear in the form of clauses or amendments to the Enterprise and Regulatory Reform Bill, so we shall all have a further opportunity to examine the various issues?
Baroness Wilcox
The answer is yes. Amendments will be laid to the Enterprise and Regulatory Reform Bill. Next week, or soon afterwards, the draft regulations will be published.
Crime and Courts Bill [HL]
(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Smith of Basildon
My Lords, this is one of a number of amendments that we have put forward regarding the framework document. Although we do not have a copy of it, a number of questions still need to be addressed.
The Government are getting a bit of a reputation for having a cavalier attitude to the reform of some of the institutions of this country and for bringing forward legislation before the fine details have been worked out, which would enable this House properly to scrutinise the Bill and its implications. The Health and Social Care Bill saw quite an axe being taken to the whole landscape of the NHS before the details were worked out, which started even before parliamentary approval had been obtained. The detail was not ready when the Welfare Reform Bill came before Parliament. With this Bill, not only do we not have the framework document but the Government are still consulting on the plans for community sentencing. We hope that we can recommit the Bill into Committee at the end of the Committee stage and, outside the normal order of amendments and clauses, put another new Clause 23 into the Bill at the end.
The Government announced their intention to create a National Crime Agency around two years ago but we still do not have the document that tells us what the organisation will do and how it will do it. That document will set out the detail of how the agency will be arranged. It is clear that there will be specific operations. One of the most important things in that document will be the relationship with other sections of the police service. Unfortunately, we do not have the strategic policing requirement. The Government say that that will set out a clear framework for how PCCs and chief constables relate to the NCA and, crucially, how they balance local against national priorities.
Looking around your Lordships’ House, I see that I am a relatively new Member of this fine institution—for just under two years—but it has been clear to me from when I first entered your Lordships’ House how seriously the House takes its scrutiny role. Not to have so much information to assist us in discussing the detail of the Bill is pretty shoddy and not the way that we ought to legislate.
Even in this Bill, I am prepared to think the best of the Government and assume that they must have worked out some of the detail of the architecture, even if the document itself is not ready. I do not believe for one moment that the Government came to this House with a Bill not understanding what it will look like at the end when they create a new agency. It would be helpful if, even without the document, the Minister could give the House more detail about what it will contain. Amendments 28 and 29 place a requirement on the Secretary of State to produce the framework document by statutory instrument. That is not ideal, because having that document now would inform the rest of our discussion, as several noble Lords have said. The noble Baroness, Lady Hamwee, at our previous session in Committee, raised issues that should be in the document. Our discussion then was hampered because we did not have it. In the absence of the document being available for scrutiny at this stage, the Home Secretary should place the document before Parliament as an order. That will enable at least some proper scrutiny by both Houses.
Baroness Hamwee
My Lords, I did indeed raise questions about the contents of the framework document. Before we started our debate on Monday, when I was going through the amendments and got to this pair of amendments, I put a tick against them. I have deleted the tick for reasons which will not be very welcome to my noble friend. I am not convinced that an order would allow us to debate the framework document in the way that we would like to see. We need a lot of detail about it. As we all know, the drawback with an order is that we cannot amend it. Methods of operation, methods of exercising functions and administration, including—I have already questioned this—governance and finance, are very big issues.
I therefore hope that the Minister will, if not today, soon be able to tell us that his “due course”—not just his, I am not impugning him—arrives soon, so that we can understand a good deal more. Although I well understand the approach that the noble Baroness has taken, I am not entirely sure that it takes us as far as many of us would like to go.
The Minister of State, Home Office (Lord Henley)
My Lords, I understand what the noble Baroness is getting at and how she wants to provide for the framework document to be subject to some parliamentary procedure —for it to be laid before Parliament. She went on almost to suggest that there was some conspiracy by the Government on this Bill and others in the lack of framework documents and how late they were coming. I think I made it quite clear back on Monday—it seems a long time ago now, having gone through another Bill, as the noble Baroness and I and the noble Lord, Lord Beecham, have done—that we very much hope to get at least an outline of the framework document in front of the House before we come back to the Bill at Report. It is important to point out that that is quite an early stage in the passage of this Bill as, unusually for important Home Office Bills, it is starting in this House. We cannot even claim to be the revising Chamber on this occasion because we are getting it first. We are dealing with it relatively slowly because of the delay we are having over certain items which we want to debate in early October, so that I can miss the Conservative Party conference. After that, it also goes on to another place so there will be considerable time for this House and another place to discuss these things in some detail.
Perhaps I may set out what the framework document is designed to do and what we think ought to be in it. The purpose of the document is to set out clearly and transparently how the Home Secretary and the director-general will work together—it is between those two—and the ways in which the NCA is to be administered. It 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 classes of information which it will publish. It will obviously be a very important document, dealing with how the NCA is to operate, but it will also build on and be clearly subsidiary to the clear foundations set out in the Bill. As we have already debated, the Bill establishes a clear governance model for the NCA; namely, as a Crown body with an operationally independent director-general at its head, appointed by and accountable to the Home Secretary for delivery against the Home Secretary’s strategic priorities for the agency. The agency will be under the direction and control of the director-general and its functions and powers are, again, clearly set out in the Bill.
We have provided in Schedule 2 for the framework document to be laid before Parliament, the Scottish Parliament and the Northern Ireland Assembly, as the NCA will cover all parts of the United Kingdom. We believe that, given the nature of the document, this is the appropriate level of parliamentary procedure. The Delegated Powers and Regulatory Reform Committee made no comment on these provisions so, on that basis, we are on relatively firm ground in assuming that it was content with laying that procedure. Finally, as I think I suggested earlier, the Serious Organised Crime and Police Act 2005 did not even provide for a framework document, let alone one subject to an affirmative procedure, so this provision is an important advance on what has gone before in relation to the Serious Organised Crime Agency.
I appreciate that the noble Baroness would like it to be produced by statutory instrument and produced, as I think my noble friend put it, in due course. I came under a suggestion of pressure that I ought to define what “due course” meant. It is always difficult to define that. I am sure that the noble Baroness will probably remember promising things, when she was a Minister, “some time in the future”, “in due course” or whatever. We have all done this—I remember promising something “later in the spring” and being faintly embarrassed that that turned out to be July. I think most noble Lords understand what I am getting at. I am trying to promise her that we will get at least an outline of this by Report but, as I said at the beginning, I stress that that is an early stage in the process that this Bill is going through. It is starting in this House and still has to go through another place, so we have considerable time. Both Houses of Parliament will get a chance to look at that outline document. I hope therefore that the noble Baroness, who has an understanding of what “in due course” or “shortly” might mean, will feel able to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister is trying to be helpful, but that was an extremely unsatisfactory answer. I hope I misunderstood him when he said that he hopes to have an outline of the framework document by Report. I think he misunderstands the point that I am trying to make. I am not merely making the point that we want the document to have parliamentary scrutiny, important though that is, but that the framework document will inform our debate on the rest of the Bill. Not having it hampers our debates and our ability to scrutinise. This is not an isolated point about parliamentary scrutiny. Had we had the document here now, as we should have, our discussions on other aspects of the Bill would be easier and better informed because it seems to me that a lot of the information that the framework document contains is relevant to the discussions we are having. I hope the Minister understands the point I am making.
I take on board the comment by the noble Baroness, Lady Hamwee, about an order being inadequate. I entirely agree with her, but I think that anything that we are able to do at this stage is wholly inadequate because we want to have the document with us now. It is not good enough for the Minister to say that we will have an outline for Report. I do not think that we can pray in aid that this is an early stage of the proceedings and that the Bill is going to go to the House of Commons. This House has a duty to do its job, which is to scrutinise legislation. It is being hampered in doing so by not having the documents. The fact that they will be available to the House of Commons is not enough. I appreciate that the Minister has tried to be helpful, but he has not satisfied me on this point. I shall not press this matter to a vote today, but the Minister will recognise that there is unease around the House, not just on our Benches, on this point.
Lord Henley
I appreciate that the noble Baroness feels that it is important that there should be an order. Should we accept her amendment and have an order, it would not produce the framework document, or even an outline, any earlier. I am saying that we will get that outline during the passage of the Bill. If the noble Baroness were purely to rely on her amendment, she would not get it until after the Bill. That is my understanding of how her amendment works. I have given her an assurance from the Dispatch Box that we will get an outline by Report that will assist our discussions later on. I hope that is hopeful to the noble Baroness and I appreciate that she is going to withdraw her amendment. It would at least allow her, with luck, to discuss these matters on Report.
Baroness Smith of Basildon
Again, I think the Minister is trying very hard to be helpful. I think I said that any proposal we put forward at this stage is inadequate. I withdraw the amendment at this stage, but this is a subject to which we will be returning.
Baroness Smith of Basildon
We return to the framework document. This paragraph is a puzzle to me. This brief amendment deletes the requirement for the Secretary of State to obtain the consent of the director-general before issuing the framework document, because I am unclear why the Secretary of State would need to depend on the consent of the director-general in order to publish the document. It would seem to show greater courtesy and concern for the views of the director-general than for Parliament. There is no provision for parliamentary oversight at this stage. It is right and appropriate that the Home Secretary should consult the director-general, but if I understand the purpose of the framework document correctly, looking at Schedule 2, it is ultimately about the detail of the architecture of the National Crime Agency. It is not about operational matters, and it does not seem appropriate for the director-general to have a veto. I return to the point I made in earlier discussions about the blurring of the line between what is operational and what is strategic. The framework document is a strategic document. This is a probing amendment to see whether the Minister can explain why the director-general should have a veto over the Secretary of State publishing the framework document. I beg to move.
Baroness Hamwee
My Lords, I am glad that the noble Baroness tabled this amendment. It took me back to reading the paragraph and realising that I did not fully understand it. I am sorry that I have not been able to give the Minister notice of my question, which is: can he in some way translate paragraph 4, particularly sub-paragraph (2)? Does it mean that the framework document takes precedence over the annual plan? Paragraph 4(2) says:
“The Director General’s duty to have regard to the annual plan … does not apply in relation to functions under sub-paragraph (1)”.
Those functions are about being consulted on, and giving or withholding consent to, the framework document. It is a little difficult to understand how the two work together. It may be that we are being told that one is more important, or simply that one is more overarching—which the framework document should be, I guess—than the other. The relationship between the two will obviously be important and not only because there are different consents and consultation arrangements for the different items.
Lord Henley
My Lords, I will deal first with the various points raised by the noble Baroness, Lady Smith, and then move on to the rather more complicated question about paragraph 4(2) of Schedule 2 and its relationship to sub-paragraph (1), as raised by my noble friend who, as always, bowls googlies of a sort that are designed to get behind one.
The amendment of the noble Baroness, Lady Smith, would remove the requirement for the Home Secretary to obtain the consent of the director-general of the NCA before issuing the framework document. I am faintly unclear as to why she seeks to remove this provision. Does she want that framework document imposed on the director-general? That is what would happen under the amendment—there would no longer be that consultation. As I have indicated, the framework document will set out the relationship between the Home Secretary—
Baroness Smith of Basildon
I apologise for intervening. The noble Lord said that my amendment would result in there being no consultation. I am not trying to prevent consultation. Paragraph 4(1)(a) says:
“The Secretary of State must … consult the Director General”.
I am entirely happy with that; it is completely appropriate. It is the reference in paragraph 4(1)(b) to obtaining the consent of the director-general that I am concerned about. I am sorry if I was not clear.
Lord Henley
Therefore, there would still be consultation but there would be no need for consent. However, as I said, that would imply that the Home Secretary could impose that on the director-general. We believe that the document is designed to set out the relationship between the Home Secretary and the director-general and, as I said on an earlier amendment, how the NCA will operate, including its governance, management and transparency arrangements. Therefore, the director-general will have a proper interest in making sure that it reflects his or her operational view of the NCA. Since the director-general will ultimately be accountable to the Home Secretary for delivering the NCA’s priorities, it is absolutely right that his consent should be gained to crucial decisions about how the agency is administered. It is right that we should stick to that process. I hope that the noble Baroness will agree that the framework document should be agreed between the two, with both consultation and consent.
I turn now to the trickier question—the googly that I referred to—that my noble friend asked as regards paragraph 4(2) of Schedule 2, which states:
“The Director General’s duty to have regard to the annual plan in exercising functions does not apply in relation to functions under sub-paragraph (1)”.
I think that that is relatively clear, although my noble friend obviously does not. All it does is remove the director-general’s duty to consent from those under paragraph 1(1)(a), which refers to,
“ways in which NCA functions are to be exercised (including arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA)”.
I could go on with the rest of that paragraph. I am hoping for advice to come through at this stage.
The important idea to get over is that the framework document and the annual plan are different and have to be dealt with in different ways. The framework document sets out the relationship between the Home Secretary and the director-general of the NCA. The annual plan allows the director-general to set out the activity planned for the year ahead and must take account of the arrangements set out in the framework document. Therefore, in his role in respect of agreeing to the framework document, he cannot have regard at that stage to the annual plan, which comes out later. I hope that that makes matters clearer to my noble friend. I see a faint degree of nodding from her as well as a faint smirk on her face. I hope that it is a smirk of agreement. I will sit down and hear whether my noble friend agrees with what I have said.
Baroness Hamwee
It was not a smirk but possibly mild hysteria. The Minister has confirmed that, to the extent that the two documents have any relationship to one another, the framework document is the primary document. He is nodding at that. I apologise because my point was not intended to be a googly. Anyone who knows me will know that the high point of my sporting career at school was questions such as, “Sally dear, can you see the ball?”. I really am not trying to be difficult. I am grateful to the Minister. I will read it again several times.
Lord Henley
From my noble friend’s confession, I think that her sporting career at school was possibly somewhat similar to mine in terms of its disastrous nature but I shall leave that as another matter. I am grateful for her acceptance. I think I got that right and that I have satisfied the point that she makes. Therefore, I await to see whether the noble Baroness, Lady Smith, wants to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I suspect that I had a slightly more successful sporting career at school than either noble Lord; many an ankle has been bashed with my hockey stick.
I remain puzzled on this matter. The Minister has said several times that the framework document sets out the relationship between the Home Secretary, the Secretary of State and the director-general. But nowhere in the schedule does it say that about the framework document. In part, our discussions are hampered by not having the document, which we look forward to seeing in due course.
The Minister made the point about the relationship between the framework document and the annual plan and how the framework document came first. However, it might not always come first because, under paragraph 2 of Schedule 2, the Home Secretary can reissue a framework document at any time, in which case the annual plan may already exist when a new framework document is published. It could get even more confusing. I shall take this away and ponder, as I think the noble Baroness, Lady Hamwee, will equally do.
I still do not accept that it is appropriate for the Secretary of State to seek consent. Consultation, if it is genuine and takes note and not just an exercise for the sake of it, would be the adequate and proportionate way forward. But I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
In moving Amendment 32, I shall speak also to Amendment 33. The first deals with the framework document and the second with the annual report. In both cases, my amendments would delete the words relating to publication,
“in the manner which the Secretary of State considers appropriate”.
I wondered whether those were intended to be qualifying words. They clearly are qualifying, but they suggest a limitation. I simply look for assurances that the spirit of what we would all understand by “publication” includes something energetic and proactive and that that will be reflected in the practical arrangements that will be made. So this is really only a probing amendment in both cases. I beg to move.
Baroness Smith of Basildon
My Lords, I had some interest in the amendment that the noble Baroness, Lady Hamwee, has proposed. There is some question mark over why there is discretion in this regard, and it would be helpful to hear from the Minister on that. The Minister will understand my concern that there is a growing acceptance these days that everybody has access to the internet and that everything can be obtained from the internet. A large number of people in our population do not have access to the internet. More than that, as the Minister knows, the Home Office website is extraordinarily difficult to access. So I would have great reluctance in seeing a measure go through that gives discretion to the Home Secretary to publish on a website that most people cannot access most of the time.
Earl Attlee
My Lords, the Government are committed to publishing the NCA framework document and annual report so that all those with an interest in the work of the agency have ready access to them. That is indeed the spirit intended. The provisions on publication in Schedule 2 are directed to that end. I assure my noble friend that there is nothing sinister in the words,
“in the manner which the Secretary of State considers appropriate”.
They are just a recognition of the fact that it must be for the Home Secretary and the director-general, as the publishers of the framework document and annual report respectively, to determine how best to publish these documents. It is only sensible that the person publishing the document should be empowered to choose the most appropriate means of doing so.
We would expect that, in practice, both documents will most likely be released via the NCA or Home Office website. My noble friend Lord Henley says that he will shortly be writing to the noble Baroness on problems with that website. Whether it is a good use of resources also to print and publish thousands of hard copies of these documents must be left to the judgment of the Home Office or the director-general, as the case may be.
With the assurance that we want these documents to be made freely available, I hope that my noble friend will feel able to withdraw these amendments.
Baroness Hamwee
My Lords, I shall certainly do so, but I have two comments. First, I thank the Minister for confirming the point about the spirit, which I am glad to have confirmed from the Dispatch Box. On another more general point, each Bill seems to be thicker than the last. A few years ago, it would have been adequate to say, “The Secretary of State shall publish a document”. Now we have to say, “The Secretary of State shall publish a document in the manner in which she deems to be appropriate”. The officials will understand why we probe some of these words more often than just from time to time.
Lord Hunt of Chesterton
I was a civil servant in the Met Office and used to visit other agencies. The variability in the publication of annual reports is quite extraordinary. A Minister visited the National Physical Laboratory and asked, “Why do you publish all these annual reports?”. I am glad to say that the Met Office continues to publish annual reports and they are still very valuable and people refer to them. Therefore, I was very surprised by the Minister’s insouciant response to this whole issue of the publication of reports. As the noble Baroness said, the relevant information is very unsatisfactory. Are the Government looking into this more broadly?
Earl Attlee
My Lords, in days of old there was only one way of publishing a report, which was in hard copy. Today we can publish on the internet. We can also issue a CD and issue hard copy on a limited circulation. The provisions in the Bill take account of the various ways of releasing the information without being too prescriptive.
Baroness Hamwee
My Lords, I do not think that I should take the time of the Committee by pursuing the issue but I suspect that the same question will come up more than once during the rest of this Session, as it comes up on almost every Bill. I am grateful to the Minister and beg leave to withdraw the amendment.
Lord Rosser
“( ) Before making a request under subsection (1) the Director General must consult the Police and Crime Commissioner responsible for the totality of policing in that area.”
Lord Rosser
My Lords, the two paragraphs of Clause 5 to which these amendments relate provide for a chief officer of a UK police force or a UK law enforcement agency to perform a task if the director-general of the National Crime Agency requests, and for the director-general of the National Crime Agency to perform a task if requested to do so by a chief officer of a UK police force or a UK law enforcement agency. In respect of the references in the two paragraphs in question to,
“the chief officer of a UK police force”,
there is no reference to any requirement at all for the elected police and crime commissioner for that police force to be consulted by the person requesting that a task be performed, whether it be the director-general of the National Crime Agency or the chief officer of the commissioner’s own police force. So far there has been no explanation of or justification for this omission despite the fact that under the Police Reform and Social Responsibility Act 2011 a police and crime commissioner for a police area has a statutory duty to secure the maintenance of the police force for their area, ensure that the police force is efficient and effective and hold the chief constable to account for a wide range of duties and responsibilities, including the effectiveness and efficiency of the chief constable’s arrangements for co-operating with other persons in the exercise of the chief constable’s functions.
The police and crime commissioner will also be responsible for issuing a police and crime plan, which is a plan that is required by law to set out a number of matters, including the policing of the police area which the chief officer of police is to provide. Yet it would appear as though it is possible under the terms of the Bill for the director-general of the National Crime Agency to come to an agreement with the chief officer of a UK police force for that chief officer to perform a task on behalf of the director-general, and a task of unspecified magnitude, scope or significance in relation to resources or impact; or, alternatively, for the director-general of the National Crime Agency to perform a task on behalf of the chief officer of a UK police force—once again, of unspecified magnitude, scope or significance—without any apparent duty in either case to consult the elected police and crime commissioner despite the significant statutory responsibilities the police and crime commissioner has in relation to their police force. If the director-general of the National Crime Agency was requesting the chief officer of a UK police force to carry out a task which could well have an impact on the efficiency and effectiveness of the police force in question, or on the ability to deliver or adhere to the police and crime plan, one would have thought that it was a matter on which the director-general of the National Crime Agency should be required to consult the police and crime commissioner.
Likewise, if the chief officer of a UK police force found it necessary to request the director-general of the National Crime Agency to perform a task on behalf, or in support, of that police force, there should be a duty on the chief officer to consult the police and crime commissioner, who might want to satisfy himself or herself that this was not a task that their own police force should be competent and capable of performing and that the request to the director-general was not in reality seeking to cover up a weakness in the performance of their police force. In this context, it is worth pointing out, for example, that Part 4 of Schedule 3 to the Bill provides for the director-general of the National Crime Agency to make arrangements with the elected police and crime commissioner for the NCA to use facilities made available by that police and crime commissioner’s police force. In addition, the Secretary of State will also be required to consult PCCs in determining the NCA’s strategic priorities, and a similar requirement is placed on the director-general of the NCA in preparing its annual plan. However, there is apparently no requirement for the director-general to notify or consult PCCs on voluntary agreements with chief constables or before using their powers to direct chief constables.
I will obviously await the Minister’s response to all the points that I have made. I suspect he is not going to say that I have drawn attention to gaps in the Bill that the Government now intend to address. However, I wait to see whether the argument will be that responding to requests referred to in Clause 5 is, for some reason, nothing whatever to do with the elected police and crime commissioner, or whether the Minister is going to say either that there are other provisions in the Bill that would require the police and crime commissioner to be consulted—or his or her consent sought—or that there are provisions in the Police Reform and Social Responsibility Act 2011 that would require the commissioner to be consulted, or his or her consent sought, such as in paragraph 7 of Schedule 2 to that Act, which states:
“A chief constable may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of chief constable”,
and,
“That includes … entering into contracts and other agreements (whether legally binding or not), but only with the consent of the relevant police and crime commissioner”.
Alternatively, perhaps the Minister is going to say in response that the points I have raised will be covered in the elusive framework document that he has so far been unable to produce. I await his response. I beg to move.
Lord Thomas of Gresford
These amendments concern something I raised at Second Reading—the relationship between the National Crime Agency, the police commissioner and the chief constable of a police force. I still do not understand just how that is to be worked out. We tabled amendments suggesting a protocol, which we dealt with in Committee on Monday, and learnt that a protocol is something to be discussed as an operational matter once the Bill is in force. Does the police commissioner come anywhere within the architecture of the Bill, or is the commissioner in an outhouse? I just do not understand where he is.
Lord Harris of Haringey
My Lords, it is not very often that I agree with the noble Lord, Lord Thomas of Gresford; in fact, I try to make it a general principle to disagree with him. However, on this occasion he has put his finger on an extraordinary gap in the Bill, and I can only assume that Home Office Ministers do not have the courage of their convictions.
We spent many happy months debating the principle of electing police and crime commissioners and we were told what significant individuals they were going to be. They were going to hold to account the chief constable and police service for all that went on in their area. Now, under the arrangements in this Bill the director-general of the National Crime Agency can say to any chief constable, “I would like the following resource from you dedicated to a particular operation”, but there is no requirement at all to inform the elected police and crime commissioner about that. Surely at the very least there should be a recognition that the police and crime commissioner might consider this matter important.
I am not a candidate to be a police and crime commissioner, but if I were in some remote part of the country outside London and had run on an election campaign saying that I wanted to see the police of my county devoted to the rural villages, the town centres or whatever, and I then discovered that behind my back the director-general of the National Crime Agency had said to my chief constable, “We’ve got to have this chunk of your resources and use them for a particular operation”, I would find it extraordinary that I had not even been told that that was happening and that my position as the directly elected police and crime commissioner, with a remit from the people of my area, was being undermined. I assume that this is an error in the drafting of the Bill.
I thought that my noble friend Lord Rosser was extraordinarily generous to the government Front Bench in offering two or three arguments as to why these amendments might not be necessary. However, unless the Minister is prepared to stand up and say, “Yes, of course, this was a drafting error. We did intend that police and crime commissioners would be informed”, the Government will be undermining what was apparently a flagship policy for this Administration.
Why might such a provision not be included in the Bill? The suggestion that this is a potentially trivial and merely operational matter that should not worry the police and crime commissioner is, frankly, nonsense. These are precisely the sorts of issues that will exercise local communities. Some of your Lordships may remember that at the time of the riots and disturbances last August one chief constable, quite properly, responded to a request to send a substantial number of police officers to London in support of ensuring that the streets were under control only to find that there were then disturbances in his own patch. He was then subject to all sorts of criticisms for having agreed to release those officers. What would the position be in very similar circumstances, although perhaps not a visible riot, in which the director-general of the National Crime Agency requested the movement of police officers for a particular operation and that then left the force concerned short? The police and crime commissioner would have to justify that this had been allowed to happen, even though he had not been informed in advance that such a request had been made. What would happen if the police and crime commissioner took a different view from that of the chief constable about whether this request was reasonable or justifiable? This is not an ordinary operational decision by the chief constable. The chief constable is not deciding within the framework of what is going on in that area how to deploy his or her resources; it is a decision to deploy them and to take them out of that area. That is precisely the area where the police and crime commissioner may say, “I want all the resources of my force kept in this area”.
So what is the justification for not having these provisions in the Bill? I hope that the Minister will tell us that he will adopt the amendments of the noble Lord, Lord Rosser, and incorporate them in the Bill, if not today, on Report. If he is not prepared to say that, I hope that he will give us a real explanation and reaffirm that, as far as the Home Office is concerned, the police and crime commissioners really matter, otherwise we spent three or four months in this Chamber debating the police and crime commissioners for no purpose whatever. They will be elected officials with no significant function.
Lord Henley
My Lords, I wish to say how sad I am that the noble Lord, Lord Harris, will not be a candidate for a PCC. We understand that there is already a PCC for London and the noble Lord would have to move out of his own city in order to stand as a candidate. He might want to consider that in due course and I am sure that he would make a very fine PCC, should he wish to do so.
Sadly, I was not involved in what the noble Lord referred to as those happy months debating the Police Reform and Social Responsibility Act. I was then involved with another department but I was very grateful to my noble friends for the way in which they took that Bill through and discussed those matters.
The points put forward by the noble Lords, Lord Rosser and Lord Harris, and my noble friend Lord Thomas seem to imply a misunderstanding of the role of the PCCs and seem to suggest that PCCs should be involved in operational matters. I hope that I can explain why that will not be the case.
First, I shall speak about the policing protocol which was mentioned and which, I stress, has already been laid before Parliament. It outlines how the new policing governance arrangements established in the Police Reform and Social Responsibility Act will work and it clarifies the roles and responsibilities of police and crime commissioners, the Mayor’s Office for Policing and Crime in London, chief constables, police and crime panels and the London Assembly Police and Crime Panel. It outlines what those bodies are expected to do and how they are expected to work together to fight crime and to improve policing. It also underlines the Home Secretary’s role as being ultimately accountable to Parliament and charged with ensuring the maintenance of the Queen’s peace with all force areas, safeguarding the public and protecting our national borders and security.
I do not think that directed tasking by the director-general in anyway undermines the police and crime commissioners in fighting serious and organised crime. It is a shared concern for the NCA and the PCCs. The tasking to the NCA from a police force in England and Wales would be used to fight cross-boundary serious and organised crime which police forces and PCCs must already have regard to in strategic policing requirements.
I believe that the noble Lord, Lord Rosser, was right to draw attention to those voluntary tasking arrangements between the NCA, all United Kingdom police forces and other enforcement bodies. Those two-way tasking provisions closely reflect the operational reality of how police forces and law enforcement agencies already work together and are the central, but co-ordinating, efforts against serious and organised crime.
Amendment 34 places a duty on the director-general of the NCA to consult the relevant PCC, prior to requesting its chief constable to perform a task under the voluntary tasking arrangements.
I want to emphasise to the noble Lord that the NCA will have a key relationship with the PCC in the fight against serious and organised crime. For example, police and crime commissioners will be consulted when the agency determines its strategic priorities and an annual plan respectively.
However, the tasking—I emphasise that word—of police forces by the agency and the tasking of the agency by chief constables are operational matters, where command and control of an operation is transferred to the organisation being tasked. Given the operational nature of tasking, I am certainly not persuaded of the case for the consultation and notification requirements set out in Amendments 34 and 35 tabled by the noble Lord for debate today.
Placing a duty on the director-general of the National Crime Agency to consult the relevant PCC before entering into a voluntary tasking arrangement risks blurring the line between operational independence and political accountability.
Moreover, imposing such a duty could disrupt a time-critical operation. For example, the director-general of the agency may need to task a specific police force to take the lead on a time-sensitive interdiction, such as a stop, arrest or search, in a long-running operation. Although a duty to notify, as provided for in Amendment 35, is less objectionable, again I remain to be persuaded of the case for including this in the Bill for the same reasons. As I have previously outlined, tasking arrangements ought properly to be left to an operational determination rather than imposing a uniform obligation of notification in England and Wales, irrespective of the nature of the tasking request.
Tasking of the National Crime Agency may also need to take place in time-critical situations. For example, a chief constable may request the director-general of the agency urgently to take the lead on activity where a resident in their police area has been kidnapped and their location is unknown in the United Kingdom. Under such circumstances, there may be operational consequences if executive action were to be delayed because the relevant PCC could not be contacted or notified in time—the individual may not have been available, had their mobile turned off, or whatever. A whole host of reasons might have made that difficult.
That is not to say that a PCC would not be notified of a tasking request by their chief constable. I would expect that a chief constable would notify their PCC as soon as it was feasible, practical and sensible to do so, if not beforehand. But formal, statutory notification prior to every tasking request would not be appropriate.
I trust that the party opposite is as committed as are the Government to protecting the operational independence of the director-general of the agency and chief constables, and to ensuring that swift action can be taken during time-critical operations. On that basis, I hope that those explanations deal with the points that the noble Lord raised, and having listened to what I had to say, he will feel able to withdraw his amendment.
Lord Harris of Haringey
My Lords, I am slightly confused by the response from the noble Lord, Lord Henley. He implied that this group of amendments is designed to undermine the operational independence of the chief constable. But this is not about an operational decision. This is not saying that the police and crime commissioner must approve. It is simply saying that before making a request to use the resources that are properly the responsibility of that police and crime commissioner —the resources for which that police and crime commissioner is answerable to the public and the police and crime panel and so forth—as a minimum, the police and crime commissioner should be informed. This is not saying that the police and crime commissioner will then interfere in the operational judgment of the chief constable as to whether those resources can be released and what the implications of that are. Let us not pretend that this is not potentially hugely significant. As my noble friend Lord Rosser pointed out, there is nothing that prescribes the size or scale of these requests, so they could be enormously significant.
Lord Henley
The noble Lord protests too much. I will not go back to the various remarks he made about the police and crime commissioners. That is an argument that we had in another place—dare I say it, in another country—a long time ago. It has been dealt with. That is what Parliament has agreed.
Lord Henley
No, no, the noble Lord can intervene after I have dealt with the points about his amendment. The noble Lord objects to what is happening, and apparently supports Amendments 34 and 35. Interestingly, he did not put his name down to them, but that is possibly why he made a speech of that sort—because he knows that the amendments go too far. He knows perfectly well that the amendments say “must”, which is why I talked about time-sensitive problems and said that it was not appropriate that the director-general “must” always consult the police and crime commissioner or, in Amendment 35, that,
“a chief officer of a UK police force must notify the Police and Crime Commissioner”,
because these things are not practical in those circumstances. That is what I dealt with in the amendment and in my answer to the noble Lord, Lord Rosser, who will respond in due course.
We all welcome the chance to listen to the noble Lord, Lord Harris, yet again making one of the speeches that he no doubt made during the passage of the Bill, which sadly I was not able to take part in but which my noble friend dealt with so well. I hope that my explanation of why the word “must” is not appropriate in Amendments 34 and 35 is satisfactory and that the noble Lord, Lord Rosser, will feel able to withdraw his amendment, as I suggested earlier.
Lord Harris of Haringey
My Lords, I hesitate to correct the Minister, but if he checks back on the speeches I made during the Police Reform and Social Responsibility Bill when it was being considered in your Lordships’ House, he will see that I was not a particular supporter of the concept of police and crime commissioners. What I am doing today is fighting on their behalf for them to be given the information to enable them to do their job. They should be allowed to be the police and crime commissioners that the Conservative Party envisaged when it put this measure before Parliament.
If we are now being told that the only reason for rejecting this amendment is the word “must” because of the implications of urgency, as I said in my previous intervention, that is very easily remedied. If the noble Lord is saying that he is happy to table these amendments on Report with an urgency exclusion, obviously I cannot speak for the opposition Front Bench but I am sure we would think that progress had been made.
Lord Henley
My Lords, I am always happy to look at further amendments to amendments. Similarly, I am happy to think that one of the things I could do in the long summer months when the Olympics are on is read some of the noble Lord’s speeches on police and crime commissioners. Those will no doubt provide me with a great deal of pleasure and possibly put me to sleep. They will be great speeches and I will read them just as I will listen to the noble Lord.
What the noble Lord, Lord Rosser, does with his amendments is a matter for him. I was responding to the specific amendments that were put before me. The noble Lord, Lord Harris, can add his name, if he wishes, to the amendments that the noble Lord, Lord Rosser, might bring forward in due course.
Lord Rosser
My Lords, this has certainly been an interesting debate. It seems to have created a certain amount of disagreement and passion. I think I heard the Minister say that my amendments would call into question the operational independence of chief constables. I find that rather odd coming from the government Front Bench since the reason for our opposition to police and crime commissioners in the first place was that that was one of the things that it would cause, so to have it thrown at us that we are putting forward amendments that would put at risk the operational independence of chief constables frankly seems a bit rich.
As my noble friend Lord Harris of Haringey said, it is not clear whether the Government’s principal argument is the use of the word “must” in the amendments. The Minister has said that if there had to be consultation with the police and crime commissioner, that would cause delay, and it might be an emergency. However, am I not right in saying that if the director-general approached a chief constable for a voluntary agreement and could not get it, the director-general would then have to go to the Secretary of State to get a direction authorised? Future amendments will tease out whether that is the case, but if it is, that would certainly cause a delay, which is apparently of concern to the Minister.
If there were provision for consultation with the police and crime commissioner, it might help the situation—although I do not think that this has occurred to the Minister—in that the police and crime commissioner might step in if there was any doubt or difficulty over the chief constable coming to a voluntary arrangement with the director-general.
I mentioned that there could be reasons why the police and crime commissioner might want to know, or why there should at least be a requirement for the police and crime commissioner to be consulted, if the chief constable wanted the director-general of the National Crime Agency to perform a task on their behalf, because there could be a difference of view with the police and crime commissioner about whether it was a matter that their own police force should be competent to deal with or whether it was helping to cover up a failing in their own police force. I notice that the Minister declined to address that point.
My noble friend Lord Harris of Haringey pointed out that if the difficulty is the use of “must”, one could produce wording that made it clear that if there were difficulties over time constraints, that requirement would not be there. I got the impression that when my noble friend put that point directly to him, the Minister rather backed off from the argument that there might not be time to consult a police and crime commissioner.
The whole basis of the Government’s approach appears to be as it was during consideration of the 2011 Bill, now an Act: that is, a belief that there is some clear guideline distinguishing what is operational—which in the Government’s view is the responsibility of the chief constable—and the powers of the police and crime commissioner. I am afraid that we did not think during the passage of the Bill, nor do so now, that this clear guideline, which it is obvious the Minister still believes in, exists. There will be grey areas as to whether a matter is solely operational or whether it impinges on the police and crime commissioner’s responsibilities, which are fairly wide-ranging. They include issuing a police and crime plan, which is required by law, to set out a number of matters relating to the policing of the area which the chief officer of police is to provide, and a duty to ensure the effectiveness and efficiency of the chief constable’s arrangements.
I also made the point, picked up on by my noble friend Lord Harris of Haringey, that the tasks that the director-general might require or ask a chief constable to perform are of unspecified magnitude, scope or significance in relation to resources or impact. I note that the Minister did not seek to assure us in his response that these tasks would be minor and would not have an impact on resources. I therefore assume that the point that I made is valid: that these are tasks of unspecified magnitude, scope or significance in relation to resources or impact. To believe that a chief constable could come to an arrangement with the director-general to perform a task that had a significant impact on resources without any consultation with his or her own police and crime commissioner being required in the Bill seems, as my noble friend said, to denigrate the position and authority of a police and crime commissioner.
I have made the points that I wish to make to the Minister. I hope that, despite his response, he will reflect further on our debate and ask himself whether it is really impossible to write into the Bill a provision that there must be—or if he does not agree to “must”, that there will in normal circumstances be—consultation with the police and crime commissioner. If he was prepared to consider that, the Government would save themselves potential difficulties in the relationships between a police and crime commissioner, the director-general of the National Crime Agency and chief constables.
Lord Rosser
Lord Rosser
My Lords, the amendment would delete the requirement on the director-general of the National Crime Agency to seek the consent of the Secretary of State before issuing a direction to the chief constable of the British Transport Police, as set out in Clause 5(9). There does not seem to be, in Clause 5, a similar requirement for the director-general to seek the consent of the Secretary of State to a direction to perform a task that is given to the chief officer of an England and Wales police force, as opposed to the chief constable of the British Transport Police.
Schedule 3(8) provides for the director-general of the National Crime Agency to direct, among others, a chief officer of an England and Wales police force, and the chief constable of the British Transport Police, to provide specified assistance to the National Crime Agency, subject to the appropriate consent being given to the direction—meaning that of the Secretary of State in relation to the chief officer of a police force. However, Schedule 3 appears to remain silent on whether the consent of the Secretary of State is required for the director-general of the National Crime Agency to give a direction to provide specified assistance to the chief constable of the British Transport Police—unless of course the chief constable of the British Transport Police is included within the reference to a “chief officer of” a “police force”.
I accept that we may not have correctly understood the wording in the parts of the Bill to which I have just referred. I am sure that if we have not, the Minister will point that out. However, if we have understood it correctly, can the Minister explain the significance or otherwise of the necessity for the director-general of the NCA to obtain the consent of the Secretary of State to give a direction only to the chief constable of the British Transport Police appearing in Clause 5, when that clause also deals with directions being given to the chief officer of an England and Wales police force; and the significance or otherwise of the necessity for the director-general of the National Crime Agency to obtain the consent of the Secretary of State to give a direction only to a chief officer of an England and Wales police force appearing in Schedule 3, when that schedule also deals with directions being given to the chief constable of the British Transport Police?
Why is the necessity for the director-general of the National Crime Agency to seek the consent of the Secretary of State to the giving of a direction to both a chief officer of an England and Wales police force, and the chief constable of the British Transport Police, not dealt with in the same place in the Bill, whether at Clause 5 or Schedule 3, instead of being split, as appears to be the case at present? I accept that Clause 5 and Schedule 3 may address different circumstances, hence the difference in wording. Such a distinction between Clause 5 and Schedule 3 does seem to be drawn in Part 5 of Schedule 3, addressing the issue of payments. No doubt the Minister will clarify the position in his reply.
Amendment 39 would remove the requirement for the consent of the Secretary of State to be given. The Minister’s response to these amendments may address some of the points we wish to raise under Amendment 39.
Finally, as we are dealing with the issue of directions being given by the director-general, the Minister said at Second Reading that the Bill provides that the director-general should, in exceptional circumstances, be able to direct police forces in England and Wales. Can he tell us where in the Bill it states, “in exceptional circumstances”?
Lord Harris of Haringey
I see the noble Earl, Lord Attlee, readying himself to answer on this amendment. Perhaps he can answer my simple question. We listened to the protestations of the noble Lord, Lord Henley, that the amendments that we just considered were completely unworkable because of the use of the word “must”, and that there would be circumstances in which urgent matters and urgent operational needs had to be dealt with. Why do we now find a clause in the schedule which says that before you can get the British Transport Police to do anything, the prior approval of the Secretary of State has to be obtained?
When the noble Earl reads his note, perhaps he could also say whether a fine distinction is being drawn between a direction and a request? If so, perhaps he could also tell us what is the status of the British Transport Police Authority. Does it have no say in the matter? Is it simply for the Secretary of State? I assume that we are here talking about the Secretary of State for Transport, although I understand that there is always a fiction in our legislative process whereby Secretaries of State are indivisible. I assume that, before a direction can be given, the Secretary of State for Transport must be found, diverted from whatever consideration she or he might be giving to high-speed rail, airports or whatever, and told that there is an urgent operational direction needed by the British Transport Police. How is that really meant to work?
Earl Attlee
My Lords, in responding to the amendment, I start by emphasising that in almost all cases, tasking will be voluntary, based on strong relationships and mutual co-operation, exploiting intelligence and building on existing arrangements. If not, surely something is going badly wrong, so of course such circumstances will be exceptional. In answer to the noble Lord, Lord Rosser, about “exceptional”, there are already strict legal tests in the Bill to prevent misuse of the directed tasking powers.
In order for the director-general of the agency to use those powers, a threefold test must be met. The performance of the task would be to assist the NCA to carry out its functions; it would need to be expedient for the directed body to perform the task; and satisfactory arrangements could not have been made, or made in time. A further safeguard is that the director-general must personally exercise the power and may delegate it in his absence only to a senior NCA officer, who would be nominated for the purpose. Directed assistance powers would also be subject to a threefold test. There would have to be a special need for that assistance; it would need to be expedient for the directed body to provide assistance; and voluntary assistance could not have been made, or made in time. In addition to that threefold test, any directed assistance to the NCA would require consent from the relevant Secretary of State. Separate arrangements are in place for Northern Ireland.
The noble Lord, Lord Harris, asked about the term “Secretary of State”. He will know very well that it is a legal term.
I was asked about the difference between tasking and assistance. “Tasking” means that the responsibility for the direction and control of the operation goes to the agency being tasked. Examples are that the NCA may task a specific police force to take the lead to disrupt a human-trafficking gang that is predominantly based in that force area but impacting across the UK, or that a police force could task the NCA, subject to the NCA’s agreement, to take the direction and control in an operation to disrupt that organised crime group’s overseas financial infrastructure by using its specialist cybercapabilities and overseas liaison officers. Under assistance, resources transfer from the operational command of one organisation to another. One example is that if a specific police force is faced with a local kidnapping case, the chief officer could maintain direction and control but request some assistance from the NCA’s specialist kidnapping unit. In the case of a co-ordinated day of national action against the smuggling of rhino horns, the NCA could request assistance from UKBA specialists on the Convention on International Trade in Endangered Species of Wild Fauna and Flora to assist with identifying seized ivory.
The powers in respect of directed tasking are a necessary and sensible backstop to enable the National Crime Agency to fulfil its role of ensuring that there is a co-ordinated national response to serious, organised and complex crime. In particular, directed powers could be vital in time-critical situations where arrangements need to be made quickly and there is not time to establish satisfactory voluntary arrangements. The question that the noble Lord, Lord Rosser, has quite reasonably posed is: why is it necessary for the Secretary of State to consent before the director-general can direct the British Transport Police to perform a task yet there is no equivalent consent requirement when one of the 43 territorial forces in England and Wales is subject to such a direction?
The British Transport Police is different from police forces in England and Wales for three reasons. First, it is not a Home Office police force but a special police force, ultimately accountable to the Secretary of State for Transport under the Railways and Transport Safety Act 2003. Secondly—
Lord Harris of Haringey
Can the noble Earl explain how that accountability differs from the accountability that a Home Office force has to the police and crime commissioner?
Earl Attlee
My Lords, I will go on to say that but what is particularly important is how the British Transport Police is funded. Secondly, unlike police forces in England and Wales, the British Transport Police has a national remit which includes jurisdiction across the railway network in England and Wales—and in Scotland, where policing in the latter is otherwise devolved to the Scottish Government. Thirdly, the British Transport Police is primarily contracted and funded by providers of railway services—the train operators and Network Rail—applying the “user pays” principle. Railway service providers are required to enter into a police services agreement with the British Transport Police as a condition of their licence to operate. Home Office forces have no such contractual or financial relationship with industry of day-to-day significance.
Taking into consideration these difficulties, a direction to the British Transport Police is so significant in regards to the potential impact on accountability, devolved policing arrangements with Scotland and arrangements with industry that it requires a Secretary of State to affirm that the issue is of sufficient national interest. I would also be very surprised if my right honourable friend the Secretary of State did not want to be aware that agreement could not be reached. It would be a very serious matter. On that basis, I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Berkeley
While the noble Earl is quite right about the funding, if the direction to the British Transport Police involves large expenditure, will that come with a cheque or a commitment to pay the extra cost or is the industry to be expected to pay it?
Earl Attlee
My Lords, in all these arrangements assistance is quite often provided under the old pals Act and they do not worry about the expenditure. However, if specialist resources were required—perhaps a mobile crane or a digging machine—that extra expense would have to be recovered. It is inevitable that agreement would be reached. However, the British Transport Police would not have that sort of equipment available. It would normally be used to intercept someone on the transport network.
Lord Harris of Haringey
Perhaps the noble Earl could also address this point. I understand the point about the different funding arrangements for the British Transport Police, which is extremely significant, but the funding is therefore coming not from the Government but from the transport operating companies. Those companies are engaged through the British Transport Police Authority so why does this clause not therefore relate to that authority, to which the chief constable is accountable, where the funders, who may feel that they have an issue at stake, would be represented? Would that not be a better arrangement?
Perhaps the noble Earl will respond to the question about the terrifying cases of urgency that the noble Lord, Lord Henley, worried us with on the previous group of amendments. How are they going to be dealt with with this requirement for the prior approval of the Secretary of State?
Earl Attlee
My Lords, in a terrifying case of urgency, it is in my opinion inconceivable that the British Transport Police would not agree to assist.
In answer to the noble Lord’s question about the British Transport Police Authority, he is right to point out that the chief constable of the British Transport Police is accountable to the British Transport Police Authority in the same way that chief constables of police forces in England and Wales are accountable to their respective police and crime commissioners. However, in the case of a directed tasking to the British Transport Police, the Secretary of State for Transport is ultimately responsible for the security of passengers and staff on the national rail network and on underground and light-rail systems. It is therefore right that she should have the ability to consent to direct tasking of the British Transport Police at the national level aimed at tackling serious and organised crime.
Moreover, tasking by the National Crime Agency may need to take place in time-critical situations. Members of the British Transport Police Authority meet six times a year to set British Transport Police targets and to allocate funds for its budget. It may not be possible to clear consent with the British Transport Police Authority in time for the necessary executive action to take place. This is not to say that the British Transport Police Authority would not be notified by its chief constable of a direct tasking request. I have no doubt that the chief constable of the British Transport Police would notify the British Transport Police Authority of direct tasking as soon as it was feasible to do so. Noble Lords have not convinced me that a situation would arise where the British Transport Police would refuse to provide assistance voluntarily.
Lord Rosser
If the Minister believes that there are no circumstances in which the British Transport Police would fail to provide the assistance required, why does he need directions in the Bill at all on the basis that, presumably, any police force would provide the assistance required?
Earl Attlee
As I said, it is to provide a necessary backstop. When two negotiating parties know that one party will win at the end of the day, it is amazing how agreement is reached quite quickly.
Lord Rosser
I think the Minister has answered the point that I made. If he is arguing that about the British Transport Police, he does not need the provision in the Bill for any police force.
I want to clarify that I have understood correctly what has been said. What I have inferred—and I would be grateful if the Minister would confirm that I have understood it correctly—is that if the director-general makes a direction under Clause 5 that would require a chief officer of an England and Wales police force to perform a task, that direction does not require the consent of the Secretary of State, albeit that it would if it was in relation to the British Transport Police. Likewise, Schedule 3 provides that the director-general may,
“direct any of the following”,
including the chief officer of an England and Wales police force and the chief constable of the British Transport Police,
“to provide specified assistance to the NCA”.
While the approval of the Secretary of State would be required for a direction to a chief officer of an England and Wales police force, it would not be required for a direction to the chief constable of the British Transport Police. I simply want the Minister to clarify that I have understood what he said and that that is the distinction between Clause 5 and Schedule 3. I see the noble Lord, Lord Henley, nodding so I take it that what I have just said is a correct understanding of the position that the Minister explained.
I listened—frankly, I will wish to read it in Hansard—to the distinction between performing a task, which is referred to in Clause 5, and the director-general directing,
“any of the following to provide specified assistance to the NCA”.
Bear in mind that from the director-general’s point of view, if he can satisfy himself—or herself—that he requires a task to be performed by the chief officer of an England and Wales police force, he does not need the consent of the Secretary of State. Therefore, it might be quite tempting for a director-general to try to make sure that any direction that he gives comes under the heading of “performing a task”, rather than “providing specified assistance”. That is also what I have inferred from the Minister’s answer.
Earl Attlee
My Lords, I hope the noble Lord is not suggesting that the director-general would base an operational decision on bureaucratic convenience.
Lord Rosser
I am sure it would not be based on bureaucratic convenience. If he could satisfy himself that he was asking for a task to be performed, there would be less bureaucracy as he would not have to get the consent of the Secretary of State. Once again, I fear that there may be a view that there is a very clear divide between what could be defined as performing a task and what might be deemed to be providing specified assistance. I suspect that there will be grey areas over that in at least some cases.
I pointed out to the Minister that it was said at Second Reading that,
“the Bill provides that the director-general should, in exceptional circumstances, be able to direct police forces in England and Wales”.—[Official Report, 28/5/12; col. 974.]
I asked where in the Bill it says “exceptional circumstances”. I take it from the noble Earl’s answer that he agrees with me that the statement that the Bill provides for the director-general to be able to direct police forces in England and Wales in exceptional circumstances is not correct. Such wording does not appear in the Bill, although this was implied at Second Reading. In the light of that, I beg leave to withdraw the amendment.
Earl Attlee
Earl Attlee
My Lords, these are purely drafting amendments to the provisions in Schedule 3 relating to the exchange of information between police forces and the National Crime Agency. Paragraphs 3 and 4 of the schedule apply these provisions to each UK police force and the British Transport Police. However, the British Transport Police is already covered by the definition of a UK police force in Clause 16. Consequently, it does not need to be separately listed. The amendments therefore remove the superfluous paragraphs 3(1)(b) and 4(1)(b). I beg to move.
Baroness Smith of Basildon
My Lords, we can see that this is a drafting amendment. I must admit that when I first saw the clause I wondered what had happened to the Civil Nuclear Constabulary and the Ministry of Defence Police, which also should have been covered if it was necessary to include the British Transport Police. I think that the Minister has been able to give me an assurance for each of those special police forces, which, as the definitions on page 12 indicate, are UK police forces. They would have the same relationship as regards having to be notified and the disclosure of information as all other police forces in the UK. It is a helpful amendment that clarifies the existing position.
Earl Attlee
Lord Rosser
Lord Rosser
In relation to a previous amendment, I mentioned that we had put down Amendment 39 and that the discussion on Amendment 36 might clarify the issue that I wanted to raise on Amendment 39; namely, the distinction between the wording in Clause 5 to “perform a task” specified in the direction and the wording in paragraph 8 of Schedule 3 about providing,
“specified assistance to the NCA”.
I asked the Minister if my interpretation of what he had said was correct and he indicated that it was.
Baroness Hamwee
Baroness Hamwee
I shall speak also to Amendment 41. There are three further amendments in the group in the names of the noble Baroness, Lady Smith, and others, all of which deal with payments. My two amendments concern the paragraph in Schedule 3 which deals with what is the “appropriate amount”. Paragraph 29 of Schedule 3 deals with what is to be paid under paragraphs 26 and 27 by the director-general and the police in the different circumstances. My amendment would extend that to payments under Part 1 of Schedule 1, including paragraph 4, which states:
“The NCA may charge a person for any service provided at the person’s request”.
I am not necessarily suggesting that this is the right way to go about it but I am probing how that charging should be dealt with.
Amendment 41 suggests that there is a way other than an amount agreed or an amount determined by the Secretary of State; that is, to provide for a scale or a formula in advance to be applied generally. As I understand the arrangements for mutual aid between police forces, there are governing scales and arrangements. It seems to me that it would be much better to have these things sorted out in advance rather than to have any sort of haggling being applied at the time. I certainly do not imagine that it would leave people with anything other than a rather sour taste if the Secretary of State had to step in and determine the amounts. I beg to move.
Baroness Smith of Basildon
My Lords, our amendments on this issue perhaps come from a different direction but they still try to address a similar concern that we have. We are looking at different ways to resolve this. The noble Baroness, Lady Hamwee, is right that if an agreement on payment cannot be reached between two parties, to seek resolution or determination by the Secretary of State does not seem the correct way to behave. Throughout this Bill, we have sought to remove the Secretary of State from day-to-day operational issues and this proposal would bring the Secretary of State back into those kinds of issues.
There is also a conflict of interest or at least a divided responsibility. There is a concern that one thing that will happen with the NCA and the charges and costs involved is that, given that funding may not be adequate to the task, particularly with additional responsibilities coming in, some extra funding or support may be sought from police authorities, particularly in cases such as this. The Home Secretary has a direct responsibility for the funding of police forces across the country. It seems somewhat difficult, therefore, if there is a disagreement between a local police force and the NCA, that it should be the individual who has responsibility for funding local police forces who should seek a determination on that. The noble Baroness, Lady Hamwee, said something about that creating a bad feeling or some difficulties, and I certainly think that it would in this case.
The noble Baroness and I may not have found exactly the right format here. We are suggesting an advisory body, but I am not wedded to any particular way of doing this. It seems inappropriate for the Secretary of State to be making those decisions. To labour a point made by the noble Baroness, Lady Hamwee, about a protocol in the framework document, that may be what the Minister is considering—but we do not know, because we do not have the framework document. It is clearly inappropriate for the Secretary of State to be the arbiter. We would like to see some other way to resolve difficulties or disputes and we are suggesting an advisory board.
Earl Attlee
My Lords, this group of amendments all relate to the provisions in Schedule 3 regarding payments for tasks, assistance and facilities. Amendment 40, in the name of noble friend Lady Hamwee, seeks in effect to bring the provisions relating to charging in Schedule 1 into line with those in Schedule 3; namely, that they must be agreed by both sides.
I put it to my noble friend that this amendment would conflate two quite separate charging regimes. The charging provisions in paragraph 4 of Schedule 1 enable the National Crime Agency to provide particular services, whether to another law enforcement agency or to any other person. They are not about the provision of assistance or facilities under Schedule 3 or the tasking arrangements in Clause 5. Such services might include, for example, the provision of training, crime operational support or the services provided by the Specialist Operations Centre. Charging for these services, which are provided on request, will normally have to be on a cost-recovery basis in line with the Treasury’s guidance on managing public money. In other words, these services cannot be made under the old pals act; they have to be properly accounted for.
Amendment 41 seeks to provide for a protocol which sets out the appropriate amounts to be paid for tasks, assistance or facilities performed or provided under the provisions of Clause 5 and Schedule 3. I can certainly support the spirit of this amendment. The National Crime Agency will need to agree policies for cross-charging with the police service and other law enforcement partners that are equitable, practical and help to support the co-ordinated effort to tackle serious and organised crime. However, I do not think the amendment is necessary as the existing schedule already allows for the appropriate amount to be agreed through a broader policy or protocol. The key point in Schedule 3 is that payments for tasks, assistance or facilities, if any, must be agreed between both sides. It does not specify how that agreement must be reached or that it must be done on a case-by-case basis.
Finally, Amendments 42 to 44, in the name of the noble Baroness, Lady Smith, seek to replace the Home Secretary’s role as final arbiter with an independent advisory panel on payments. I would argue that creating another quango is not a good way to provide value for money or to secure the simple and speedy resolution of disputes over charging arrangements. Indeed, I hope that there will be few disputes, and I imagine that both parties would be reluctant to involve the Secretary of State.
In addition, the approach to cross-charging in Schedule 3, including the role of the Secretary of State, broadly mirrors the Serious Organised Crime and Police Act 2005. The previous Administration did not see the need for creating a separate body to decide on appropriate amounts for payments in the absence of agreement, and neither do this Government.
Amendment 43 would remove any role for the devolved Administrations in setting appropriate amounts if agreement cannot be reached. As the budgets for these law enforcement bodies in Scotland and Northern Ireland are devolved, it is right that the devolved Administrations have a role to play in ensuring that payments are fair in situations where either a Scottish or Northern Irish body is involved.
I would hope and expect that the cross-charging arrangements for tasks, assistance and facilities will be agreed amicably between the NCA and its partners. It is right that the Bill includes backstop arrangements for resolving any disputes. The arrangements provided for in the Bill broadly mirror those for SOCA, and there is no good reason why we need to adopt a different approach for the NCA. Accordingly, I would invite my noble friend Lady Hamwee to withdraw the amendment.
Baroness Smith of Basildon
My Lords, I wonder sometimes whether the noble Earl lives in a slightly different and more benign world than I do. Several times during the course of today’s debate, whether it has been on the power of direction and payments, he has said, “We hope that it will be okay, we can’t see ourselves using this power, things should work out okay”. Real life is not like that; disputes occur. This idea of having a backstop and saying that it does not matter if it is not perfect and not okay because it will hardly ever be used is not really good enough. We need to have some kind of process. I do not know whether the noble Earl took on board what I said. I am not wedded necessarily to an advisory board, but I think that we need a process that is not the Secretary of State or, as the noble Earl calls it, a backstop.
There will from time to time be disputes on payments and the power of direction, and we need to have a process that this House is confident can deal with any of those problems that occur—and not just think that it will be okay because it will not happen very often. I think that we will pursue this at a later stage. There may be further discussions in Committee, but at this stage I am happy not to press my amendment.
Baroness Hamwee
My Lords, I share the noble Baroness’s concerns about this. I wrote down “amicable?”. The noble Earl referred to a backstop, but the point of providing a very clear framework—although I do not want to use that term—and making clear provisions is that they are clear and, if things are not amicable, one knows where to go. It had never occurred to me until an earlier group of amendments that the old pals arrangement might apply to anything under this Bill—but perhaps I am just too cynical.
On Amendment 40, as I understood the noble Earl’s remarks, the NCA will be subject to certain formal Treasury guidelines. He is nodding at that, but I wonder whether he might share those with Members of the Committee after the debate. It may not be appropriate to go into all the detail now, but it would be very helpful to be clearer about this before we return to the matter, as I suspect we will.
Earl Attlee
My Lords, I was referring to the Treasury guidance on managing public money.
Baroness Hamwee
Let us see how the Treasury website operates and whether we can get into it.
On Amendment 41, the noble Earl argued that what is provided in paragraph 29 is not on a case-by-case basis but is an overall principle. I do not read it like that, because paragraph 29 refers to a provision requiring,
“one person (“R”) to pay the appropriate amount to another person (“P”)”.
The only way in which I can construe that paragraph is that we are talking about the particular “R” and the particular “P”, not anyone who might come under “R” or “P” in a range of different situations. Perhaps that is something that we can seek to understand rather better after the Committee stage. I beg leave to withdraw Amendment 40.
Lord Henley
“(4A) Subsection (4) authorises an NCA officer to disclose information for the purpose of the exercise of—
(a) the functions of the Lord Advocate under Part 3 of the Proceeds of Crime Act 2002 (“PCA 2002”), or(b) the functions of the Scottish Ministers under, or in relation to, Part 5 of PCA 2002,only where the information has been obtained by the NCA in connection with the exercise of a function under PCA 2002 (other than a function under Part 6 of that Act).(4B) Where information has been obtained by the NCA in connection with the exercise of a function under Part 6 of PCA 2002 (revenue functions), subsection (4) does not authorise an NCA officer to disclose the information.
(4C) But an NCA officer may disclose the information if the disclosure is—
(a) to the Commissioners for Her Majesty’s Revenue and Customs,(b) to the Lord Advocate for the purposes of the exercise by the Lord Advocate of the Lord Advocate’s functions under Part 3 of PCA 2002 (confiscation: Scotland),(c) to any person for purposes relating to civil proceedings (whether or not in the United Kingdom) which relate to a matter in respect of which the NCA has functions, or(d) to any person for the purposes of compliance with an order of a court or tribunal (whether or not in the United Kingdom).”
Lord Henley
In moving Amendment 45, I wish to speak also to Amendments 59 to 63. I offer a brief apology to the Committee if it appears that I have been moonlighting and leaving too much work for my noble friend to do. However, I can give an assurance that I will be responding to the next half-dozen amendments. I congratulate the Committee on the extraordinary speed with which we are dealing with the Bill. That is refreshing and encouraging.
These amendments make a number of technical changes to the provisions in Clauses 7 and 12 and Schedule 7 which deal with the disclosure of information. I imagine that we will deal with that in greater detail when we get on to the clause stand part debate relating to Clause 7.
Amendments 45 and 61 relate to the disclosure of information obtained under the Proceeds of Crime Act 2002. The amendments address a lacuna in the drafting of paragraph 6 of Schedule 7, which inadvertently prevents the onward disclosure by an NCA officer of information obtained under the Proceeds of Crime Act other than information obtained under Part 6 of that Act, which relates to sensitive personal tax information and is therefore subject to specific restrictions. The default position is that information obtained by an NCA officer should be capable of being further disclosed for a permitted purpose; for example, the prevention and detection of crime.
In the case of information obtained under Part 6 of the Proceeds of Crime Act, Amendment 45 also creates a separate gateway for the onward disclosure of such information, but only to specified persons such as the Commissioners for Revenue and Customs. In substance, the new provision is designed to achieve the same end as paragraph 6 of Schedule 7 which it replaces.
As these provisions in respect of information obtained under the Proceeds of Crime Act primarily seek to authorise the disclosure of information rather than apply restrictions to such disclosure, we have taken the opportunity to move the provisions to Clause 7, as we believe they sit better there.
Amendment 59 to Clause 12 clarifies the relationship between the powers as to the disclosure of information and the restrictions on disclosure set out in Schedule 7. Clause 12 specifically provides that a duty to disclose information has effect subject to Schedule 7. This amendment simply applies the same principle to any power to disclose information.
Amendment 60 is a drafting amendment in respect of the definition of a relevant authority in paragraph 2(3) of Schedule 7. Amendments 62 and 63 clarify the rules governing the onward disclosure of information provided by an NCA officer where such information is in a public document. Our intention, for obvious reasons, is that there should be no restrictions on the onward disclosure of information contained in a public document issued by the NCA: for example, information contained in the annual plan or report, or in the framework document, or which has otherwise been made available under the duty to publish information provided for in Clause 6. The new paragraph 9A of Schedule 7, as inserted by Amendment 63, sets this out in clearer terms than is the case with paragraph 7(2)(a) which it replaces.
I hope that that brief explanation is sufficient and that the letter which I think I sent detailing these matters assisted noble Lords opposite. I beg to move.
Lord Harris of Haringey
My Lords, I seek clarity from the Minister. This is a genuine attempt to secure information. Clause 7(1) states:
“A person may disclose information to the NCA if the disclosure is made for the purposes of the exercise of any NCA function”.
I seek to clarify whether this is as broad a statement as I think it may be. Does it mean that any person may choose out of sheer devilment to ignore any other requirements to which they may be subject under the Data Protection Act or anything else to disclose information to the NCA because they think that it may be useful for the purposes of the exercise of its work? I am trying to get at who determines whether the disclosure is for the exercise of the NCA’s functions. Could I as a private individual who holds some privileged information decide that I think the NCA ought to be interested in the information because I think it relates to serious crime, and therefore I may decide to ignore the legal obligations on me not to disclose that information and pass it to the NCA? I could understand it if the wording was, “The NCA may require me to disclose the information because it is investigating something and gets the necessary permissions to override it”. I may be completely misinterpreting Clause 7(1) but I would be grateful for clarity on that point.
Lord Henley
I am sorry but I am slightly confused by the procedure that we are adopting. My understanding was that the noble Baroness, Lady Smith, was going to oppose the Question that Clause 7 stand part of the Bill. The noble Lord has intervened at this stage to ask a question about Clause 7. Does he want to wait for the general debate that we are going to have? However, the noble Baroness seems to be implying that there will not be a—
Lord Henley
I am distraught. There I was expecting a major debate and the noble Lord asked me only about Clause 7(1), who the relevant person may be and whether it was any person. I would have thought the simplest way of dealing with this matter is the way that I was taught many years ago—the noble Lord, Lord Beecham, will remember this from when he first trained as a lawyer—namely, that you look at what the words on the face of the Bill say. We hope that the Bill will become an Act when we have finished dealing with it and it has gone through all its stages. The Bill states:
“A person may disclose information to the NCA if the disclosure is made for the purposes of the exercise of any NCA function”.
I would have thought that that is fairly straightforward. That is what the Bill says. My advice suggests that one need not go beyond that. The words “A person” imply that any person can disclose information to the NCA,
“if the disclosure is made for the purposes of the exercise of any NCA function”.
The noble Lord will now come back to me, because he always does, and I enjoy our debates. This statute is relatively simple to interpret. We know that that is not always the case and that great complications can arise in the interpretation of statutes. However, I should have thought that the words we are discussing are as simple as you can get.
Lord Harris of Haringey
My Lords, perhaps I did not make myself as clear as I should have done. If I am a data controller in an organisation and I have certain obligations placed on me not to disclose information, does Clause 7(1) override my normal duties as a data controller under the Data Protection Act and allow me to decide whether certain information looks as though it ought to fall within the remit of the NCA, and therefore enable me to disclose it to that body? That is my simple question and, even though I am trying to behave as though the words on the paper mean what they seem to mean, I am simply trying to understand whether this is as broad a “may” for the persons concerned as I think it is.
Lord Henley
I was probably not as clear as I ought to have been. Obviously, the persons would be subject to any other enactment, which would include, as the noble Lord said, the Data Protection Act. One could also mention the Regulation of Investigatory Powers Act 2000. They would be covered by the provisions of those Acts. The situation is as it states on the package, but subject to other statutory provisions.
Lord Harris of Haringey
I really do not wish to prolong this, unless the noble Baroness, Lady Hamwee, is about to explain what the words mean. What is the purpose of having this provision at all? If all that it is saying is that I, as an individual person, may do something that I am not prohibited from doing, what is the point of even putting it in the legislation in the first place? If the subsection is merely saying, “I have a bit of information that I am not prohibited from passing on, and I may decide to pass it to the NCA”, it seems to be completely unnecessary. It clearly means something, and I think that it means rather more than, “I can provide information without being constrained by, say, the Data Protection Act”. Unless the noble Baroness, Lady Hamwee, is going to provide some insight on this point, it may be something that the noble Lord can write to us about.
Baroness Hamwee
I am not sure that it is insight, but the noble Lord is right to raise the point. I hope that he will at least feel that I can intervene on that basis, even if we are without insight. Schedule 7 states that this part of the Bill does not authorise disclosure in contravention of the Data Protection Act or the Regulation of Investigatory Powers Act. If there are other general statutory provisions that would override the situation that the noble Lord is talking about and would always apply, it needs to be made clear that someone may disclose, subject to other statutory provisions. I do not know whether what I have said takes the matter any further but I, for one, am now convinced that there is an issue.
Lord Henley
I am sure that there is no issue here and that the noble Lord, Lord Harris of Haringey, is not suggesting some conspiracy theory that these words mean something different from what I suggested they mean. That is why I said that one should look at what is there on the packet. However, I suspect that the best thing to do would be for me to write to the noble Lord and make sure that that is copied to his colleagues on the Front Bench and my noble friend Lady Hamwee; and if there is any problem, we can deal with that in due course. I am sure that there is no problem, and that the matter is straightforward and can be quickly resolved. Does the noble and learned Lord agree? Perhaps I can call him the noble and learned Lord, because he is so good at these drafting matters that I will elevate him on this occasion. If he is happy with that, I will leave it to the Committee to accept Clause 7.
“( ) The command of the NCA with main responsibility for discharging functions listed under subsections (1) and (2) shall be the Child Exploitation and Online Protection Centre (CEOP).
( ) CEOP shall be accountable to the NCA Board but shall operate independently of the direction of the Board.
( ) Any funds delegated by the NCA to CEOP shall be reserved for that purpose.”
Baroness Smith of Basildon
My Lords, I hesitate slightly because I know that as soon as there is an amendment that mentions an NCA board, as the amendment does, the Minister will say, “If we haven’t agreed to a board, I don’t have to answer the question”. As he said earlier, I have been on that side of the Chamber—albeit another Chamber—with the same kind of file as the one he possesses now, but I ask him to put that to one side. Although he might not agree with some parts of the amendment or its architecture, he will understand the substance of what I am proposing and the reasons why this matter has been put forward. I hope that he can address my points.
In our proceedings on Monday, the noble Lord, Lord McColl of Dulwich, raised the issue of the Child Exploitation and Online Protection Centre. It was generally felt around the House that it is an enormously successful body that is held in high regard. If we look at some of the figures, we see that between 2006 and 2011 more than 1,000 children were protected or safeguarded as a direct result of CEOP. There were 1,644 suspects arrested and members of 394 high-risk sex offender networks were arrested. CEOP is one of those organisations that we know is making a difference and wants to continue to do so.
CEOP has pioneered a model of multiagency partnership work that has brought together child protection and law enforcement in a way that has led to the organisation being recognised internationally as a centre of excellence for protecting children from sexual abuse, both physical and mental. Many noble Lords will have an idea of what we are talking about when referring to sexual abuse of children; however, I shall expand our thoughts on that slightly. I do not know if noble Lords had the opportunity to see an article—I cannot remember whether it was in this weekend’s Sunday Mirror or Monday’s Daily Mirror—telling a shocking story about access to internet porn by young people. It referred to quite shocking internet porn that would turn the stomachs of most people. It is not physical abuse, but one had only to read what those young people said to know that that was mental abuse, and it was certainly sexual abuse that had an impact on them. Some of the things that they themselves went on to undertake perpetuated that abuse. Sexual abuse of young people comes in many forms and can often lead to further sexual abuse of other young people.
CEOP deals with an area in which the more successful you become, the less possible it is to pull back, because you have to continue with your activity. You cannot reduce it at all. There are two crucial issues—the expertise and specialist knowledge that have been built up, and the partnerships that CEOP has managed to build with other agencies. The range of organisations and individuals that CEOP works with are interesting, and include children and young people. It has worked successfully with law-enforcement agencies. The public have also played a role—certainly in providing information and intelligence. Charities and voluntary and community groups have come on board, as have industry and international partners.
Since it was first mentioned that CEOP could be absorbed into the NCA, concerns have been mentioned at very senior levels. I said at Second Reading that the head of CEOP, Jim Gamble, resigned as a result. I can see possible great advantages in CEOP having a close relationship with the other commands in the NCA, because there are often links between organised crime, and intelligence can help bring together a picture or put in place the missing part of a jigsaw puzzle that helps lead to a prosecution or arrest. However, I am not convinced, and neither are many others, of the necessity to absorb CEOP into the NCA. That is where the concern arises.
I and the various organisations involved, including the NSPCC, as well as individuals, have welcomed the Government’s strong support for CEOP and its work, and the assurances that they have given—and I thank them for those assurances. However, they must clarify and put on the record—and in statute—the commitments that have been made. That would provide the reassurances that are sought. I appreciate that the noble Lord has sought to do that and has written to noble Lords, and the Home Office has produced another factsheet on the kind of things that CEOP would do within the NCA and how the Government are determined not to see a dilution of its work.
However, perhaps I may raise a couple of points. CEOP must retain its operational independence. On that matter, we seek an assurance that specialist staff will not be pulled off child protection work due to staff shortages or emergencies in other areas. CEOP staff do highly specialised work using the knowledge they build up. If that were to be lost, even for a short time, the gaps in the operation of CEOP within the NCA could be quite damaging.
Another aspect of the amendment is the wish to see authority for its budget clearly delegated—in effect, for its budget to be ring-fenced. One thing at which CEOP has been very successful is raising money from outside sources. I think that it would be very difficult for it to continue doing that if its funding were not ring-fenced, as people contribute money for that particular area of work. If they felt that the money was being diluted across an organisation, they might be less likely to contribute. Therefore, I seek an assurance that the budget will be ring-fenced, together with any money raised by a CEOP organisation within the NCA.
Lord Dear
My Lords, I fully endorse what has been said about the work of CEOP. We have referred to this organisation many times over the past year or so in your Lordships’ House. It is a highly successful organisation but it is only really beginning to identify the tip of an iceberg. We are just beginning to understand exactly how much crime in that area is committed. It has already been said today that there is a crossover with people trafficking, and in fact child trafficking comes very much within CEOP’s remit. People trafficking in general is a highly organised crime.
It seems to me that the question is: should CEOP come within the remit of the NCA at all? Personally, I think that it should, given the seriousness of what it deals with, the revulsion that all right-minded people feel about this crime and the way in which CEOP’s work interfaces with highly organised crime. The one thing that I am concerned about is the suggestion in the amendment that CEOP should be accountable to the NCA board, accepting that it is part of its remit, but should operate independently of the direction of the board. If that were to appear in the Bill, there would be considerable confusion. It seems to go against logic and against all tenets of management. “One man, one boss” is often used as shorthand for that. If CEOP is one of the four pillars of the NCA—as I believe it should be—not only should the board oversee the operation but it should be responsible for it, and CEOP should not be allowed to operate independently.
I take the point that, in a strange sort of way, CEOP is outside the normal remit of much of mainstream policing because it has a multiagency dimension. I understand that. In fact, I remember back in the 1970s piloting the first multiagency approach that attacked what was then called “baby battering”, then shorthanded as “child abuse”. That approach was highly successful and was rolled out right across the country from Nottinghamshire, where I was then serving. At that time it became the model of how best to approach this sort of problem. Therefore, I understand the particular sensitivities of multiagency approaches. Notwithstanding that, I would be unhappy to see CEOP operate independently of the direction of the board because I think that it would lead to confusion.
Baroness Hamwee
My Lords, the noble Lord, Lord Dear, has expressed very well my concerns about the second paragraph of the amendment. He has also said very clearly exactly what I would want to be said right around the Committee and to be on the record concerning the value of CEOP’s work. Like those of the noble Lord, my comments are in no way directed at criticising CEOP, not valuing its work or not wanting to see it continue as successfully as it has done.
Perhaps I may add a query about the third paragraph of the amendment. First, I am a little unclear about what is meant by the delegation of funds within an organisation, as would be the case if CEOP were part of the NCA. What exactly is meant by delegation? Secondly, for what purpose are the funds reserved? If funds are identified as being needed for CEOP’s operation, are they not for the whole of its operation, or is there something specific that the funds are intended to be reserved for?
I am sorry to appear to be taking apart an amendment on this matter. Like others, I feel that what has been said about the importance of CEOP’s work is absolutely undoubted, and my questions about the amendment are genuinely probing.
Lord Mackay of Clashfern
My Lords, can my noble friend deal with the point about funding? At the moment, to what extent does CEOP get outside funding to help it with its work? What safeguard is there? Will CEOP continue to get that money for its work as a result of the Government’s proposals?
Lord Harris of Haringey
My Lords, when my noble friend Lady Smith introduced the amendment, she made it clear that there was not necessarily a desire to stick to the wording before us: rather, that what we are having at this stage is very much a probing discussion. All your Lordships in this Committee support the work done by CEOP and we all want to see it succeed. Given that the Government intend to put CEOP within the National Crime Agency—for which there are some very strong arguments in favour but also some arguments against—the question is how one preserves the integrity of CEOP’s work and makes sure that the work continues and is seen to continue.
The amendment is partly about safeguarding the funding streams, as well as the external funding, and it is partly about ensuring that the existing partnership structures with CEOP, which are reflected in the current board structure of CEOP, are continued. Although the wording of my noble friend’s amendment does not necessarily resolve all these issues, it gives us an opportunity to highlight the concerns.
The principles are clear: we want to see CEOP’s work continue; we want to see it protected; and we want to see the retention of the partnership structure, which involves not only bringing in resources from outside but ensuring that those who provide the resources have confidence that the public contribution is retained and remains transparent. We want to ensure that in the operation of the agency there is a genuine partnership that involves different parties working together to achieve a common end.
We look to the Minister for some account of how the benefits of that separate entity, which is currently CEOP, can be preserved within a new structure. This is not a new concept. The presence on the government Bench reminds me that we had a very similar debate about the creation of Healthwatch within the Care Quality Commission; and there, completely erroneously of course, the Government’s objective was to create something that was independent and that had its own income flow and governance structure that was different from the rest of the Care Quality Commission. Although I do not think that the solution that the Government adopted in that particular model was perfect, it demonstrates that a number of models are available that try to achieve the objective of preserving this continuing area of activity, preserving the partnership structure and preserving the funding and independence of that funding for the future. I hope that the Minister can respond in those terms.
Lord Henley
My Lords, again, I regret that I missed the debates on the Care Quality Commission. I shall spend the summer reading those as well as the other ones. In response to the speech from the noble Lord, Lord Harris, I make it clear that I fully understand that his noble friend’s amendment is probing and seeks reassurances about what CEOP does and how it works. I shall not dismiss it purely on the grounds of its wording, nor shall I say that it is merely a fantasy amendment because we do not yet have the NCA board that she was looking for, as that was dealt with at an earlier stage. I accept that this as a probing amendment and that there is a need for reassurances from me and the Government about the future of CEOP and what will happen under the new arrangements.
I pay tribute to the work of CEOP, which I saw when I visited it, as I am sure other noble Lords have done. We should all be very grateful that that child protection work will continue through the work of the agency. Since its creation, it has been a significant success story. It is important that I remind noble Lords that it has not previously had a statutory basis that is distinct from that of SOCA, and that has had no detrimental impact on its operational independence. It has worked perfectly well, and the six principles, to which I shall turn later, that underpin CEOP will continue to underpin it on the transition to the NCA.
Before I go through what I want to get on the record as an assurance, perhaps I may respond to my noble and learned friend Lord Mackay on the funding of CEOP and the fact that it can receive funds from outside sources. At the moment its existing funding model allows it to charge, for example, for training services that are provided mainly to the police, teachers and child protection workers and to raise income or support in kind through sponsorship and corporate arrangements. We certainly want those arrangements to continue with the NCA; there will be no change to that.
I assure the Committee that child protection will run throughout the National Crime Agency. CEOP will still exist as a part of that as a separate command within it, but we would not want to see it silo-ised—an inelegant word—within the department. It is important that its work runs throughout the agency. As well as building on CEOP’s existing role as the national centre dedicated to working with others to protect children from sexual exploitation and sexual abuse, the NCA will also be subject to a new statutory duty, which in essence is to safeguard and to promote the welfare of children. That means that the agency will give appropriate priority to children when it comes into contact with them and that it will share early concerns about the safety and welfare of children, ensuring preventive action before a crisis develops.
Those requirements will be part of the training that each and every NCA officer will receive. I emphasise the point that CEOP will be a separate command within the NCA; we do not want to see these matters silo-ised. Contrary to the noble Baroness’s amendment, it is imperative that the responsibility to discharge that duty remains with the whole of the National Crime Agency and not just with CEOP.
Baroness Smith of Basildon
I am grateful to the noble Lord. That is a very helpful and constructive answer. I think I have now convinced him that it would have been better to have the framework document before the House began to consider the Bill, as I may not have had to raise this issue at all.
On the issue of retaining operational independence, I ask the Minister to look further, because what he has said so far about putting this in the framework document largely addresses the issues. However, operational independence is about maintaining the specialist staff of CEOP within the CEOP command. Could the Minister explore whether that is the case when he looks at the framework document? Operational independence can mean different things to different people, but I am broadly content with what he had to say. I look forward to the framework document and beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving this amendment, I will also speak to Amendment 46C. I hope that I can be brief.
These are both probing amendments. The first relates to the paragraph in Schedule 4 headed: “Liability of NCA for unlawful acts”. It states:
“In any of the following cases, the NCA is liable in respect of unlawful conduct of a person”.
I suggest changing,
“In any of the following cases”,
to “including in the following cases” in order to understand whether paragraph 2(1) is exclusive of all other cases and in particular how it relates to paragraph 2(7), which states that,
“the liability of the NCA for the conduct of NCA officers”,
is not affected by this paragraph. The first amendment is about the inter-relationship of those words with paragraph 2(7).
Amendment 46C is an amendment to paragraph 4, which is headed: “Application of discrimination legislation to secondees: Northern Ireland”. It is a rather similar amendment to add “including” before the list of the provisions in respect of which an NCA secondee is to be treated as being employed by the NCA. Again, the amendment seeks to understand whether what is listed is exclusive of other provisions. It occurred to me only after tabling the amendment that there might be something specific about Northern Ireland legislation that is required to be set out. I beg to move.
Lord Henley
My Lords, first, I apologise to my noble friend. I think I have the gist of what she was saying about Amendment 46B, but I have to confess that there was a brief conversation between me and my noble friend the Chief Whip, which meant that I might have missed some of the points she made. I hope that I still grasped what she was saying and that the response I am able to give her will be sufficient. If not, I will have to write to her.
On Amendment 46B, as an employer, the National Crime Agency can be held to account for any unlawful conduct by its employees during the course of their employment. That does not therefore need to be set out in the Bill. The NCA will be liable for its specials actions in the same way that it would be liable for the actions of any other NCA officer. Given that the NCA will not operate in isolation and will be tasking and co-ordinating wider law enforcement, having clear lines of accountability for the NCA and its partners is important.
Paragraph 2 of Schedule 4 provides important clarity as to exactly when the NCA will be held to account for the unlawful conduct of a person who is not employed by the agency but is carrying out NCA-related activities. Unless my noble friend wants to come back to me after I sit down, I hope that that deals with her particular points.
I will say a word about Amendment 46C because we want to take that away and have another look at it. National Crime Agency officers will benefit from protection against discrimination in the UK. It is intended that secondees to the NCA will benefit from the same protections. Having looked at that and having looked at my noble friend’s amendment, further consideration is required to ensure that particularly secondees, including police constables, are properly covered by the relevant legislation. I want to come back to my noble friend on that in due course. If there are any other queries, I will write to her in due course.
Baroness Hamwee
My Lords, I think that the penny has just dropped on paragraph 2, so I thank the Minister for that. On Amendment 46C, I am beginning to feel that I am beginning to do myself out of a job. This is the third time the Government have said that they will look at something again. I spoke on one for less than two minutes, on another for less than one minute, and on this one the Minister did not quite hear what I had to say.
Lord Henley
I think it was my noble friend Lord Attlee who recommended that brevity often yielded much greater results in this House. He commended it to my noble friend.
Baroness Hamwee
I had better not say any more other than I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, in moving this amendment, I will also speak to Amendments 48, 49, 50 and 51.
This is another set of probing amendments, as I am sure the noble Lord has understood. It follows on from earlier amendments when we talked about a National Crime Agency board. It is about making sure that the Secretary of State has a strategic rather than an operational role. I hope that noble Lords will bear with me as I switch pages.
I am slightly puzzled by this group of clauses. It seems convoluted for the advisory panel to make recommendations to the Secretary of State about the operational powers that the director-general shall have and then the Secretary of State must give effect to those recommendations. It would make more sense for the board responsible for the director-general to make such proposals. But I find myself completely puzzled because the Secretary of State is responsible for operational powers designation, which is in Part 2 of Schedule 5 and in Clause 9.
Part 2 of Schedule 5, says:
“The Secretary of State must appoint an advisory panel (to enable recommendations to be made as to the operational powers which the Director General should have),
but that contradicts the original clause relating to operational powers.
Paragraph 4 of Schedule 5 says:
“The Secretary of State must appoint an advisory panel”,
but that is then qualified by,
“whenever there is an appointment of a Director General”,
or,
“when the Secretary of State considers that it is appropriate to do so”.
So it seems that they can appoint an advisory panel at any time. That also implies that it is not a permanent body. Surely such a panel, set up to advise a Secretary of State on the operational powers of a director-general, would want to gain expertise and knowledge, but according to how the schedule is worded, a new panel would be appointed each time a director-general was going to be appointed. That means it would be an ad hoc panel, which seems rather strange.
Lord Henley
My Lords, Part 2 of Schedule 5 relates to the director-general and designation under Section 9. The first four amendments in this group relate to the NCA board, which I think we dealt with earlier. What I really want to address on this occasion is the principal amendment, Amendment 51, which proposes leaving out paragraph 5 of Schedule 5 on page 54, on the question of there being no advisory panel.
As I think I made clear earlier, the director-general is an operational crime-fighter appointed by and directly accountable to the Home Secretary. A bespoke designation process is required to ensure that he holds the operational police, customs and immigration powers that he needs. The designation process for the director-general provides a clear and independent mechanism for providing him with operational powers. The advisory panel will be a small, focused body of experts established for a specific purpose and then dissolved.
I appreciate that the noble Baroness’s amendment is probing and that she might want to come back to it in due course. The amendment would remove paragraph 5 from Schedule 5. In other words, it would remove the ability of the Home Secretary to set out in regulations the circumstances in which the advisory panel would not need to be convened for the purpose of designating the director-general with operational powers.
The ability to make regulations does not contradict or undermine the important role of the advisory panel. It is simply a recognition that a newly appointed director-general may already have the necessary training to enable him or her to exercise those operational powers. In the absence of that regulation-making power, it would still be necessary to go through the process of appointing an advisory panel—to no good end, if he or she had all the necessary training. That does not sound like an efficient or effective process to me. I would even go so far as to suggest that the removal of the regulation-making power risks turning a clear, independent and streamlined process into a cumbersome and rather bureaucratic one that is not fitting of the type of responsive crime-fighting agency that we are trying to create.
I recognise that this is a significant regulation-making power to the extent that it would disapply the advisory panel process, and that is why we have made the regulations subject to the affirmative resolution procedure. It is right that the circumstances under which the advisory panel would not be required are subject to an appropriate level of scrutiny by both Houses, and we have already provided for that. I hope that that explains matters. Obviously, I want to get this right and, if necessary, I will write to the noble Baroness if she has any further questions on it, but I hope that that deals with Amendment 51.
As I said, I do not think that I particularly need to address Amendments 47 to 50, which relate to the noble Baroness’s board. We discussed that earlier. I think it is a matter that she wishes to come back to, but I do not think it is appropriate to discuss it now.
Lord Mackay of Clashfern
I wonder if my noble friend can help me. I am trying to follow what he is saying about this. Is this advisory panel to be charged with advising in connection with the first arrangements for the new principal officer? And once that is done, has the panel finished, leaving the Secretary of State to do it himself? Is that the idea, or is the advisory panel to continue and be consulted only when the Secretary of State feels that he requires some extra independent and expert advice since he does not feel able to completely decide for himself?
Lord Henley
My Lords, if I can assist my noble and learned friend, the point we were trying to get over is that the actual designation of the director-general is a matter for my right honourable friend the Home Secretary. She will make an assessment of the director-general’s suitability and capability to exercise the operational powers in any given case. It might be that the advisory panel, through its chair, could then assess whether the director-general was adequately trained to exercise those operational powers and if, as experts—as we hope they would be—they were satisfied that the director-general met the requirements for exercising his designated duties. But it might be that the Home Secretary was satisfied about the director-general’s suitability and capability to exercise those powers, in which case there would be no need for the board.
Baroness Smith of Basildon
I appreciate that the noble Lord was trying to be helpful but I am now more puzzled than ever. He has spoken to the confines of my final Amendment 51 and yet the reason for putting forward all these amendments is a broader issue. If it helps the noble and learned Lord, Lord Mackay of Clashfern, the advisory panel would be set up whenever there was to be an appointment of a director-general. That is where this clause is so confusing. The panel’s chair decides the question of the adequacy of the director-general’s training. I can fully appreciate that a new director-general might not have the expertise in all the areas dealt with by the National Crime Agency. I do not have an issue with that part. It then says:
“produce a report containing recommendations as to the operational powers which the Director General should have”.
That implies that the operational powers change depending on who the director-general is. Surely what we expect the director-general of the National Crime Agency to do should be set in stone. You cannot keep changing the operational powers of somebody in this kind of role depending on who applies for the job. There have to be certain criteria for key operational powers that have to be undertaken. I do not understand that part of the clause at all.
On the issue of there being an advisory panel, the reason for taking out paragraph 5 in Part 2 of Schedule 5 is that if paragraph 4 says that the Secretary of State must appoint an advisory panel, clearly there is good reason for doing so. Given that the panel reports on the adequacy of training and the operational powers, why would we then have a paragraph which says that the Secretary of State does not need that? I cannot understand under what circumstances a Secretary of State or an advisory panel would say that a particular director-general would not have full operational powers or that this one will not have the operational powers undertaken by a previous director-general. If we are saying that the operational powers of a director-general are flexible, we are talking about a very different kind of organisation. My understanding was that the framework document would set out exactly what the National Crime Agency would do, what was expected of it and how it would be run. Now we find we have a degree of flexibility in what the agency does because of a panel of experts advising the Secretary of State on what the director-general does.
The noble Lord is looking through his folder, as I have done on occasion. If he is fully honest with me, I suspect he is thinking, “Give me a note quickly. I seek inspiration”. It may be that inspiration on this one does not come to him quite quickly enough this evening, but I think this is a matter we want to pursue. It is a bit odd because the Government have already appointed the first director-general without the advisory panel so presumably they know what operational powers that director-general will have. However, I find this situation completely unsatisfactory as it stands.
Lord Henley
The noble Baroness is an old hand, as I am. She is a very young old hand but she is long in experience. She need not blush. She has stood at the Dispatch Box in Government on many occasions and she knows the process. This is a wonderful process that we go through with these Bills, as a result of which we hope to make them better. She is quite right to point out in paragraph 4 of Schedule 5 what she thinks is an odd process. This is obviously something that I must reflect on. That is why we go through this process. I will be more than happy to do so and I will write to her. Again, it is one of the joys of the process that we are going through that there is a considerable amount of time between now and Report. We want to get this right. I am not going to try and bluff my way through as I have done on many occasions in the past, and as I am sure the noble Baroness has done. She has caused me some problems with paragraphs 4 and 5 of Schedule 5. All I can say is, I want to get this right and I will try to make sure that she gets a proper answer or that we make the appropriate changes.
Baroness Smith of Basildon
I am grateful to the noble Lord. This is not the first time he has been this helpful. He was similarly helpful just last week. The fact that he is going to reflect on this and come back to me and to the House is very useful. On that basis I am happy to withdraw my amendment.
Lord Henley
Lord Rosser
“( ) In the Police Reform Act 2002, leave out section 10(1)(g) and insert—
“( ) to carry out functions in relation to the National Crime Agency which correspond to those conferred on the Commission in relation to police forces by paragraph (2) of this subsection”.”
Lord Rosser
My Lords, these amendments deal with the inspections and inspection scrutiny arrangements for the National Crime Agency. Currently the Bill requires the inspection of the National Crime Agency by HMIC but gives the Secretary of State the discretion to decide whether it should also be subject to scrutiny by the Independent Police Complaints Commission. Amendments 57 and 58 change the word “may” to “must” so as to ensure that the actions of the director-general and all other National Crime Agency officers may be subject to the scrutiny of the IPCC. Amendment 56 adds the National Crime Agency oversight into the general functions of the IPCC.
It is not at the moment clear why the Government have chosen not to give the IPCC automatic scrutiny functions over the actions of National Crime Agency officers, especially considering the fact that the National Crime Agency will be performing many more functions than its predecessor and also because both SOCA and the MPA officers were subject to IPCC scrutiny. Presumably by leaving the decision up to the Secretary of State’s discretion, the Government envisage circumstances in which they do not believe it would be either appropriate or alternatively necessary for the behaviour of NCA officers to be subject to independent scrutiny by the IPCC. If that is the situation, it would be helpful when the Minister responds if he could give an indication as to what those circumstances are and what change the Government believe would be required for the Secretary of State to accept that regulations should be made conferring functions on the IPCC in relation to the exercise of functions by the director-general and other National Crime Agency officers. Alternatively, if the Secretary of State is to decide that the IPCC should not have responsibility for the scrutiny of National Crime Agency officers, then who will? I beg to move.
Baroness Hamwee
My Lords, my noble friend Lady Doocey and I have Amendment 58A in this group. I shall leave it to her to speak to the substance of the regulations referred to. The amendment would simply make the regulations to be introduced under new Section 26C of the Police Reform Act 2002 subject to affirmative resolution.
Baroness Doocey
My Lords, my concern is about the type of investigation that the Independent Police Complaints Commission might carry out in relation to the National Crime Agency. The Government want the NCA to be,
“a transparent and accountable organization open to the public it protects”.
To satisfy those criteria, formal scrutiny and investigations must be thorough and above suspicion. I am concerned that the provisions for scrutiny and transparency in the Bill are inadequate.
I am concerned particularly about how the IPCC might carry out its functions. The Bill gives the IPCC the power to undertake investigations into complaints about misconduct, serious injury, death or other matters at the discretion of the Secretary of State, the object being to give the IPCC oversight of the NCA in broadly the same way as it oversees the police. However, as the noble Lord, Lord Rosser, said, the NCA will have considerable powers—far greater than any police force—so it requires much more rigorous scrutiny on the part of the IPCC.
The situation now is that, if a complaint or allegation is made to the IPCC, it makes a decision as to what it will do to investigate it. It has four choices. The highest level of investigation is an independent investigation, carried out by IPCC investigators and overseen by an IPCC commissioner. The second level is a managed investigation, carried out by a police force’s professional standards department but under the direction of the IPCC. The third level is a supervised investigation, also carried out by a police professional standards department but under its own direction and control. The IPCC merely sets the terms of reference and receives the investigation report when it is complete. The lowest level is a local investigation which is carried out entirely by police.
Despite there being four different options open to the IPCC, the evidence shows that in the vast majority of cases it opts for a supervised investigation, which in practice means that it leaves the police to investigate themselves. This policy is at best questionable when applied to police forces, but is completely unacceptable when applied to the NCA, given the enormous powers that that body will have. It is essential that all investigations into the NCA are independent, carried out by the IPCC and overseen by an IPCC commissioner.
Everyone accepts that the NCA will be handling sensitive and confidential information, but that just increases the need for independent scrutiny. I would welcome an assurance from the Minister that serious complaints and allegations of misconduct in the NCA will be independently investigated so that the public can have full confidence in the processes and procedures.
Lord Henley
My Lords, as always when dealing with a group of four amendments—in this case, three from noble Lords opposite and one from my noble friends behind me—I start with the good news. Amendment 57 would alter what is currently a power to make the relevant regulations to a duty to do so. We have every intention of exercising this power for the simple reason that it is only through that mechanism that we can confer the necessary functions on the IPCC. That being the case, the Government would be very happy to accept the noble Lord’s Amendment 57. That is the good news; the Government have agreed to change “may” to “must”. In the past when I have sat where the noble Lord is, I have frequently put forward amendments changing “may” to “must”, because it always provides the Government with an opportunity to explain what they are doing, and sometimes, just occasionally, one gets concessions. The same goes for those amendments that we have all put down demanding that negative resolution be shifted to affirmative. I have given the noble Lord his Amendment 57.
I cannot be quite so accommodating with Amendment 58, which appears to be similar. It states that the regulations made under new Section 26C of the Police Reform Act 2002 “must” apply the provisions of Part 2 of that Act, subject to any necessary modifications, and make provision for the agency to contribute to the costs of the IPCC. On this occasion, it is important to retain flexibility as to the content of the regulations, including, for example, the funding arrangements for meeting the costs of the IPCC’s work in relation to the NCA.
Amendment 56 is unnecessary. Paragraph 9 of Schedule 6 makes the necessary amendment to Section 10(1)(g) of the Police Reform Act 2002—of blessed memory. That amendment, together with the regulations to be made under new Section 26C, will ensure that the IPCC has the same functions in relation to the NCA, with appropriate modifications, as in relation to police forces. For that reason, Amendment 56 is unnecessary.
Amendment 58A was spoken to by my noble friends Lady Hamwee and Lady Doocey. My noble friend Lady Hamwee indicated that her intention was for the power to make the regulations to be subject to the affirmative resolution procedure. In fact, the effect of the amendment would be that regulations could be made without being subject to any parliamentary procedure. That is a drafting point and I shall not dwell on it, but if my noble friend wanted to move to an affirmative procedure, it would have to be addressed in due course. We decided on the negative procedure. My understanding is that that was deemed appropriate by the Delegated Powers Committee.
My noble friend Lady Doocey wanted to ensure that all complaints against NCA officers could be independently investigated, which is the substantive part of her amendment. The form of investigation conducted by the IPCC will be a matter for regulations. Our starting point will be that the arrangements for the agency should be consistent with the arrangements for dealing with complaints against police forces; that is, the regulations will set out which complaints should be referred to the IPCC for a mode of investigation. Where complaints are serious but do not have to be referred, complainants will still have a right of appeal to the IPCC. Where the complaint is less serious, we think that it is appropriate that the appeal is handled within the National Crime Agency. This is the more proportionate response and will ensure that the IPCC’s resources are used to deal with more serious complaints.
Lord Rosser
My Lords, it is in something of a state of shock that I stand here. I thank the Minister for his response and for accepting Amendment 57. He has set out his reasons for not thinking that Amendment 58 is appropriate and, as I understand it, has effectively said that Amendment 56 is actually addressed to other parts of the Bill and the 2002 Act. In the light of the Minister’s response, I take it that I am meant to agree the withdrawal of Amendments 56 and 58 and that Amendment 57 has been accepted.
Lord Henley
The noble Lord withdraws Amendment 56 and then moves Amendment 57.
Lord Rosser
Baroness Hamwee
Baroness Hamwee
My Lords, I beg to move Amendment 58B. Paragraph 5 of Schedule 6 deals with the disclosure of information, and regulations that may cover disclosure. We are told at sub-paragraph (6) that:
“Such regulations may, in particular … modify any provision of Schedule 7 in its application to such a disclosure, or … disapply any such provision”.
My amendment would exclude from that modification or disapplication paragraph 1 of Schedule 7, which provides that,
“any disclosure, in contravention of any provisions of the Data Protection Act”,
or,
“prohibited by Part 1 of the Regulation of Investigatory Powers Act”,
is not authorised. I hope, and expect to be told by the Minister, that that is what Schedule 6 provides because of the way that it is drafted. However, that was not obvious to me when I read it, and therefore it seemed quite important to clarify the point.
Earl Attlee
My Lords, although I recognise the absolute importance of safeguarding the disclosure of sensitive personal information, I believe that Amendment 58B is unnecessary. The kinds of information that will be required for the purpose of an inspection will be limited in nature to those required for exercising an inspection function. The disclosure of information to a policing inspectorate, and any onward disclosure, will be subject to the safeguards in Schedule 7.
Schedule 6 contains a back-stop power that enables the Home Secretary, by regulations, to make further provision about the disclosure of information by the NCA to policing inspectorates. Although this includes a power to modify Schedule 7, should this be necessary to enable the proper, independent inspection of the NCA, it is not intended to use this power to override important existing statutory safeguards relating to sensitive personal data.
Furthermore, let me reassure my noble friend, it is not paragraph 1 of Schedule 7 that applies the extensive safeguards set out in the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, but those Acts themselves. This paragraph simply puts that beyond doubt. I will be clear that should any regulations be made governing the disclosure of information from the NCA to policing inspectorates and their onward disclosure of such information, those regulations cannot override these safeguards by modifying paragraph 1 of Schedule 7.
I hope that in the light of this explanation, my noble friend is satisfied that there will be adequate arrangements in place to independently inspect the agency that respect important data protection safeguards. I accordingly invite her to withdraw her amendments.
Baroness Hamwee
My Lords, I think I had better read that following today’s debate, because the noble Earl seemed to be saying that those two Acts could be not be overridden; but he started his explanation by saying that it was not intended to use the provision in Schedule 6 to override them. I do not quite understand how those two statements fit together. If they cannot be overridden, the Secretary of State could not intend to override them. However, that was not, as I heard it, the implication of the introduction when he said that it was not intended to use them in that way. Of course, I withdraw the amendment, but will also read what has been said and make sure that I am entirely comfortable with it.
Lord Henley
Lord Henley
“Part 4APublished information: no restrictions on further disclosure9A (1) This paragraph applies where an NCA officer discloses information, in accordance with this Part of this Act, by—
(a) the inclusion of the information in an annual plan, framework document or annual report, or(b) the publication of the information in accordance with arrangements made under section 6.(2) None of the relevant restrictions applies to the further disclosure of that information by any person.
(3) In this paragraph “relevant restriction” means any provision of this Part of this Act (however expressed) which prohibits or otherwise restricts the further disclosure of information disclosed by an NCA officer (including a provision which limits the purposes for which such information may be further disclosed or which requires a person’s consent to be obtained before the further disclosure).”
EU: Personal Data
(12 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
That this House takes note of European Union Document No 5833/12 and Addenda 1 and 2, relating to a draft directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data; and takes note of the Government’s recommendation not to exercise their right to opt out of this draft directive under Protocol 19 of the Treaty on the Functioning of the European Union (The Schengen Protocol).
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the noble Lord, Lord Pearson of Rannoch, who I am glad to see in his place, has put down an amendment that will, I suspect, structure our debate. The noble Lord’s amendment is in two parts. First, he did not want us to exercise our right to opt in to this regulation and secondly, he regrets that this House had no opportunity to debate that decision before the deadline on it of 14 May.
Perhaps I may deal with that last point first. I wrote to the noble Lord, Lord Boswell, the new chairman of this House’s European Union Committee, on that matter. I wrote:
“I apologise to the Committee that the Government did not draw the Committee’s attention to the opt-out sooner. The issue of whether the Directive should be considered as triggering the possibility of a Schengen opt-out or not is a complicated one and I do recognise that the Government reached its conclusion on this matter later than was ideal … I would like to reassure the Committee that lessons have been learned by the Ministry of Justice in relation to the important issue of informing the Parliamentary Scrutiny Committees of opt-in or opt-out decisions and I thank you for your patience and understanding on this occasion”.
To that, the noble Lord, Lord Boswell, replied with his usual kindness and courtesy:
“We are grateful for your letter and will look forward to considering the Directive further in the debate which is scheduled to take place in the House on 20 June 2012. We will continue to hold this proposal under scrutiny and will look forward to receiving updates on the progress made in negotiations in due course”.
I hope that that apology to the committee, and now to the House, will be sufficient to deal with the quite legitimate complaint of the noble Lord, Lord Pearson, on this matter. As I said, it was partly because of the timing of Prorogation and the difficulty of deciding the technical issues, but we have learnt lessons and I sincerely hope that it will not happen again.
The debate also gives an opportunity to debate the proposed data protection directive, which the European Commission published on 25 January. That directive will cover the handling of personal data by public authorities for police and criminal justice purposes. It is therefore an important instrument that affects security as well as freedom and it is right that the House is given the opportunity to consider the proposals.
Negotiations on this instrument are at an early stage, so this debate is timely as there is still much to be discussed in the Council of the European Union and in the European Parliament during the months and possibly years ahead. I understand that the European Commission is looking to conclude negotiations on this directive during the Irish presidency of the Council of the European Union in the first half of 2013. However, it remains to be seen how realistic that timescale is. That puts into context the fact that we missed this one issue. It is not that the House will not have time and opportunity to return to these measures during the next months, and perhaps even years.
In the case of the proposed data protection directive, it is the view of the Government that this directive can be classified as a Schengen-building measure and therefore, under Protocol 19 of the Treaty on the Functioning of the European Union, the UK had the option of opting out of the directive. The deadline for notifying the Council of the European Union of that decision to use the opt-out was, as I said, 14 May. On this occasion, the Government decided that we would not exercise the opt-out. The decision followed a full debate in another place held on 24 April 2012.
I should say that we had also wanted to hold a debate in this House ahead of the decision on whether to opt out, but were regrettably unable to find time, partly because of Prorogation, and partly because of delays in deciding whether to accept that the directive was Schengen-building. However, the critical issue for discussion is our position on the detail and how we go about engaging with our European partners in ensuring that the directive works in the British national interest. On this, there remains ample opportunity for this House to influence the Government’s strategy.
Let me begin, however, by setting out the background to the directive, and the Government’s approach in considering it. Currently there are two pieces of European legislation governing data protection: first, a 1995 directive that relates to the use of data by businesses, public bodies and other organisations; secondly, what is known as the 2008 framework decision on data protection, which governs use of data by police and criminal justice bodies. The Commission is bringing forward a package of measures that replace the directive with a regulation, and the framework decision with a directive.
The Government’s approach on the regulation is a matter for another day—although broadly speaking we recognise a case for updating the law, but have concerns on the detail. On the directive, we have approached it on the basis of a clear position: that the continued ability to share information on crime and justice matters across borders is of fundamental importance. In an increasingly globalised world, crime does not stop at the port or the airport but happens across jurisdictions or involves people of many different nationalities.
The Government support proportionate, clear and coherent data protection rules that keep personal data safe and protect the rights of citizens. We also support the free transfer of data across borders and between organisations where it is necessary to prevent crime, increase security and help to keep our citizens safe. We believe that appropriate data protection rules and security go hand in hand and are not mutually exclusive. Our first priority in considering the directive has been to protect arrangements that allow information to be shared within the EU for the benefit of the public and the protection of their safety and freedom.
The challenge with this measure is that, although parts of it are welcome and will help in the fight against crime, some of its provisions are excessively bureaucratic and unwieldy. As our impact assessment shows, as currently drafted we have concerns about the costs it would impose on UK law enforcement agencies—for example, a requirement to appoint compulsory data protection officers and a bureaucratic requirement on keeping documents and records.
There is also a point of principle at stake. We are very concerned that, despite the fact that Europe’s focus should properly be on cross-border sharing of data, the directive has been drafted so as to apply to domestic processing of data. That is, unlamented, it would affect rules on information being shared by police forces within the borders of one country. We think that that is impractical and a matter best left to national governments.
Our approach in thinking about our position on the directive has been to work out what is the best way of securing the benefits of continued data-sharing while minimising the costs of a measure that, in some respects, goes further than we are comfortable with. Our judgment has been that, despite our concerns about the current text, the best approach is engagement to ensure that it works for Britain.
There are a few reasons for that. First, the directive is the opening position in what will be a lengthy and ongoing process of negotiation. The UK is far from the only member state to have concerns about the text. We believe we can secure a much better deal by working with our partners rather than by trying to isolate ourselves. Secondly, the legal base of this measure gives the UK an effective exemption on the issue that we have been most concerned about: domestic processing of data.
The directive is based on Article 16 of the Treaty on the Functioning of the European Union, the new data protection provision included in that treaty by the Lisbon treaty. Under Article 6a of the UK and Ireland’s protocol applying to justice and home affairs—Protocol 21—the UK has what we believe to be firm protection ensuring that the provisions of the proposed directive on internal processing will not apply to us.
Despite the fact that we have that exemption, the Government are none the less keen to try to defend the point of principle and ensure that the directive does not apply to domestic processing for any of the member states, as we consider that there is no justification for extending EU regulation to this area. We will be supporting other member states in pressing this in negotiations.
Before 14 May, it was of course open to us to exercise the opt-out on the directive and I had better say a word about why we decided not to do so. Our judgment was that opting out would be a very bad idea because it would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive. The reason for that was that even if we did opt out, other member states would have continued to be bound by the terms of the new directive, which would have been negotiated in our absence. The status of existing rules governing the sharing of data would have been thrown into disarray, with a high probability that the UK would have had to negotiate new bilateral arrangements with each of the member states.
Other member states would not have wanted to share data with a country that they consider might not protect it to the same extent as the regime they operated. Rather, they would have pressed the UK to adopt similar requirements to the directive so that they would be able to operate within the same regime. All told then, opting out would not have stopped us being subject to the obligations of the directive. More likely, it would have meant being bound, albeit indirectly, by a measure that we would not have participated in negotiating and shaping. Furthermore, an opt-out would have reduced our ability to negotiate essential data-sharing agreements, such as the passenger name records directive and the EU-third country agreements, and thrown into doubt other, broad Schengen measures. This would be a serious problem for our law enforcement agencies, which benefit from the sharing of criminal data under Schengen.
All told, we have judged that the national interest is best served by participating in this directive so that we are party to the framework governing data-sharing for policing and criminal justice across the EU. The priority now is to build trust across member states for the necessary sharing of data to protect our citizens and make the strongest case possible for this to be done within a framework of appropriate and proportionate rules. Let me be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom and to take steps that imperil those agreements would put us all at risk.
We want to see a system that allows police and criminal authorities to continue to protect and serve the public effectively, and which also allows individuals to be confident that their privacy, safety and freedom will be safeguarded. The Government believe that these two objectives are not contradictory but can be achieved in tandem by creating a data protection framework founded on the principles of necessity and proportionality. We would, naturally, already expect robust data protection governance as a matter of course in public authorities. However, we would question the necessity of having the European Union telling us how to create, organise and run these arrangements. The more prescriptive and burdensome aspects of the directive are opposed by the Government and we will seek to remove or mitigate them during the negotiations in the Council of the European Union.
I repeat: this is the beginning of a lengthy process of negotiating. The UK will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objective, which is to end up with an effective but proportionate framework. We expect that other member states will share the same outlook. We believe that an opt-out decision was a possibility for the Government but would have been the wrong choice. It is not possible to have data-sharing without data protection. We want to be part of a European data protection framework that protects both security and freedoms and we believe that the limited application of the directive means that we should be content to be part of it. While there are areas of the proposal that the Government will seek to alter so that they provide an appropriate level of flexibility for law enforcement bodies, we are clear that UK participation in this data protection directive is in the UK’s best national interests. I beg to move.
Lord Pearson of Rannoch
My Lords, I am grateful to the noble Lord, Lord McNally, for his apology to the Select Committee and to the House for the way that this draft directive has been handled but it might still be helpful if I put on the record the story so far. I trust it will be in order if I start by addressing the second or procedural part of my Motion and then deal with the draft directive itself and the question of our opt-outs.
Noble Lords will be aware that, under the European treaties, the British Government have a block opt-out in the field of justice and home affairs. Until the end of May 2014, the Government can opt out of all EU legislation affecting police and judicial co-operation in criminal matters. They have to opt out of all of it but would then be free to opt back in to any individual directives, et cetera, by which they wished us to be bound. However, if in the mean time they had agreed to amend any of them or had said that they will not opt out, they lose their right to opt out in those cases and will have opted in to them.
Lord Spicer
I am most grateful to the noble Lord for giving way. I wish that I could call him my noble friend because he is a close friend. I wish that he was still in the Conservative Party and hope that he comes back soon. Is he aware that, to my recollection at least, three Prime Ministers in the past 10 years have given a firm assurance that we would not tangle with corpus juris, which is one way of defining the European criminal legal system? As I am sure he is going on to say, is the true context in which this matter should be discussed not on a narrow issue of data protection?
Lord Pearson of Rannoch
My Lords, I agree with my noble friend, if I may refer to him as such. Of course, corpus juris is just one of the many important examples of how the octopus in Brussels slowly puts its tentacles around our sovereignty and democracy. I remember it first being raised at an academic conference, I think in Spain, in about 1990 and someone who was there got very excited about it and said that this corpus juris—the Roman words for the body of Roman law—was going to come into the EU and that we were going to do it. We were of course told by the then Conservative Government that that was complete nonsense and that it was only an academic idea. We went through all the usual stages of the advance of the octopus. Then we were told that it was in fact a sort of proposal but that no one else agreed with it: “Don’t worry, the British Government are going to see this one off”. Then of course we move further on and what we are looking at is certainly an example of the advance towards corpus juris.
The Government have promised that any decisions to opt in to any of this legislation will be debated and subject to a vote in both Houses of Parliament. A deadline for the Government’s opt-out on this draft directive had been set for 14 May this year. As the noble Lord, Lord McNally, mentioned, the House of Commons debated and voted on it on 24 April, with the Minister confirming that the Government were thus fulfilling their promise to Parliament—that we should debate and vote on each of these opt-ins. Yet even in the Commons there was considerable dissatisfaction with the way that the Government handled the matter. The Motion was tabled on the day of the debate, without the Commons EU Select Committee being given an opportunity of scrutiny. The chairman of that committee, Mr Bill Cash, described it as a “disgrace” and the whole debate is a powerful indictment of the directive and of the Government's behaviour. I recommend the debate to your Lordships.
However, when we come to your Lordships’ House the Government’s behaviour is, alas, even less excusable. The Government were aware of the deadline for their opt-out of 14 May many months ago. Indeed, the Home Secretary wrote on 21 December 2011 to the noble Lord, Lord Roper, who was then the chairman of our EU Select Committee, revealing the 133 measures that were still subject to our opt-out. I will come back to their substance later. I am not aware of what our Select Committee did then but I understand that the noble Lord, Lord Hannay, may be going to enlighten us. The Government failed to table their proposed Motion for debate here until 21 May, a week after the deadline for their opt-out on this measure, so that we were already signed up to the thing by the time we came to debate it—let alone to vote on it. The noble Lord, Lord McNally, mentioned Prorogation, but I remind him that we took a week’s extra holiday before that, and I cannot help feeling that this Motion could have been squeezed in.
Your Lordships might think it worse that the Government tabled their Motion in the Moses Room, where we cannot vote, so they broke their promise to give your Lordships a vote on this directive and pretended that we were not entitled to one by putting the Motion into the Moses Room.
The only thing one can say in favour of the Government’s Motion on 21 May is that it was slightly more honest than the one in front of us this evening. It asked your Lordships to take note of the Government’s decision not to exercise their right to opt out, which at least confirmed that they had already taken the decision not to opt out because the 14 May deadline had passed. Tonight, we are asked to approve the Government’s recommendation that they should not exercise their right to opt out. Will the Minister explain? Are the Government recommending for our approval that they opt in or will he confirm, as I think he has, that we have already opted in? If so, what is the point of the word “recommendation”?
I was so annoyed by the Government’s behaviour that I tabled a Motion of Regret in the Moses Room, on which I said I would vote, so the Government had to move their Motion to your Lordships’ main Chamber, which is why we are here now. I hope that at least I have raised the profile of our 2014 opt-out and the way the Government are handling it. There is widespread suspicion that the Government intend to opt in to the measures in question one by one, preferably when we are not looking too closely, so there will not be much left to opt out of in 2014. If this is wrong, will the noble Lord, Lord McNally, tell us this evening what the Government’s intentions are? It may help if I remind him that I asked him this as an Oral Question on 8 February 2011 at col. 121. He answered with, I have to say, unusual coyness that it was all very difficult and the Government had not made up their mind. Have they done so now? The noble Lord, Lord Henley, indicated at Oral Questions today that the Government are still in a muddle. Can the noble Lord elucidate?
I look forward to his reply because the Written Answer from the noble Lord, Lord Henley, on 28 May, col. WA 102, was less than helpful. I asked what measures were still subject to the UK’s opt-out, which we had already agreed, which the Government did not intend to opt in to and so what would be the position on 1 June 2014. The Minister replied that the list of all measures subject to the 2014 decision had been annexed. I referred earlier to the letter from the Home Secretary to the noble Lord, Lord Roper, on 21 December 2011 that the Minister said he would put in the Library of your Lordships’ House. The Written Answer also gave me a link to the letter and the enclosure. I suppose it is hardly worth mentioning that the letter and enclosure were not put in the Library and that the link did not work. However, the Library was good enough to extract the documents for me from the Home Office on Monday, so they are now in the Library of your Lordships’ House. They reveal that last December there were 133 measures that were subject to our opt-out. I say that the Minister’s Written Answer of 28 May was unhelpful because he concluded:
“Given that the Government cannot say with certainty what proposals the Commission will bring forward, it is not possible to say what the position will be in 2014”.—[Official Report, 28/5/12; col. WA 103.]
The Home Secretary listed all 133 measures as at 21 December last, and it was revealed on 28 May that we have already opted in to eight, including the one before us tonight. Why can the Government not tell us what they are doing about the remaining 102? Surely they must already know their position on them? Or are they telling us that Brussels has a whole lot more up its sleeve that have not yet been revealed, even reluctantly? For instance, the Home Secretary said in her letter of 21 December that the Government are aware that the Commission is planning proposals for next year involving revisions to Europol, CEPOL—the European police college—Eurojust, the framework for co-operation on confiscation of assets and criminal measures to tackle counterfeiting the euro, all of which are on the current list. The noble Lord, Lord Spicer, has a point; we are moving towards corpus juris. Is the Minister aware of any more?
I now move to the substance of the directive which we have already opted in to and related matters. A number of technical objections to it were raised in the Commons, which I will not waste time by repeating now. They include the Ministry of Justice’s impact assessment, which apparently found that the overall impact is likely to be substantially negative. I think the noble Lord, Lord McNally, has already commented that the Government will try to reduce its cost.
The Government’s Motion before us states that the data processing will be conducted by competent authorities. Can the Minister tell us exactly who these competent authorities will be? He will forgive me if I say that I am not aware of any authority in the European Union that is vaguely competent, but I look forward to the answer. The Government’s Motion refers to,
“the protection of the individuals with regard to the … free movement of”,
personal data. What does that mean? What is the present and anticipated state of the free movement of our data?
The noble Lord, Lord McNally, told us of the Government’s present position, but I cannot agree with the decision to opt in to this directive, if only for the fact that this and all our opt-ins remove yet more of the sovereignty of our Parliament and courts to the jurisdiction of the European Commission and the Luxembourg court. The Government’s action should have been obvious. They should already have exercised their block opt-out so they would now be free to opt in to any measures that they felt were useful, subject, of course, to a vote in both Houses. Interestingly, the Prime Minister agreed with this on 4 November 2009 when he said:
“We must be sure that the measures included in the Lisbon treaty will not bring creeping control over our criminal justice system by EU judges. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law”.
The arrangement is right there, staring him in the face. He does not have to negotiate anything. He just has to use the opt-out that existed when he made that speech.
I have one other question for the Minister which comes from a debate in the Commons. Mr George Eustice told us that Denmark has opted in to some of these measures, but has managed to do so excluding the jurisdiction of the Luxembourg court. I do not know whether the Government feel like imitating that.
The sad fact is that the Prime Minister’s Government have already opted in to eight of the more significant measures according to their Written Answer on 28 May, as I have mentioned. They include the one before us and directives on the European investigation order, combating sexual abuse, the exploitation of children and child pornography, attacks on information systems and minimum standards for the rights, support and protection of victims of crime.
Whatever noble and Europhile Lords may say about the desirability of these initiatives and the need for action at a European level, those should not outweigh the protection of what is left of our national sovereignty. Where we want to collaborate with foreign Governments, we can do so. We do not need the incompetent and well known judicial activism of Brussels and Luxembourg to take over. Of course, we Eurosceptics know that we would be better off out of the whole thing anyway, but we object strongly to such initiatives as Europol, CEPOL, Eurojust, the European investigation order and, perhaps above all, the European arrest warrant. It is heartening that a growing majority of the British people agree with us.
I have one final question for the Minister. Will he tell us why the directive before us, the seven others that we have already opted into and the 125 that await their turn do not amount to a substantial transfer of sovereignty to the European Union and therefore trigger a referendum? I will be most interested in the noble Lord’s reply. I beg to move.
Lord Wills
My Lords, I find myself in the happy position of agreeing with much of what the two previous speakers said—even with much of what the noble Lord, Lord Pearson, said in the first 10 minutes of his speech. I welcome this debate, whatever its genesis. It shows that the Government are adopting an open approach to what may be a technical measure, and which may excite little attention in the media, despite, I am sure, the best endeavours of the noble Lord, Lord Pearson. Nevertheless, it will have significant consequences for the people of this country. The Commission’s proposals have complex ramifications, as the noble Lord, Lord McNally, has already said. At this point, I want to make only a few general points.
Unusually, I agree with at least the part of the Motion in the name of the noble Lord, Lord Pearson, that deals with process. He is surely right to say that the complex process of deciding whether to opt into or out of this crucial area of public policy must be as transparent as possible. However, the apology of the noble Lord, Lord McNally, was handsome and should conclude this matter. As I remember only too well, these things happen in government and I am sure that the appropriate lessons will have been learnt by the Government in this case.
Turning to the substantive issues, the proposal for the directive alongside the data protection regulation seems to owe more to an administrative prism in Brussels than to common sense, which suggests a single instrument. Requiring the police and other organisations such as local authorities to follow one set of rules for the law enforcement data that they hold and another for all other data is surely a recipe for confusion and breach. Individuals will be unclear about what rights they have and in what circumstances they might apply.
The directive also appears to be weaker than the regulation in certain key aspects for no apparent reason. For example, why does the directive not include provision for privacy impact assessments, as the regulation does? I understand that British police forces already carry them out, so why can this not be included in the directive? However, as the noble Lord, Lord McNally, said at some length, the fact that there is clearly room for improvement in the directive surely cannot mean that the UK should have opted out. On the contrary, as the noble Lord, Lord McNally, has again said—I want only to support what he said—this would only damage British law enforcement. Other European states are going to proceed anyway, whatever we do. If the UK had opted out, that would surely have led to different regimes, and if elements of British data protection were seen to be weaker than the EU regime, it would inhibit data transfers and law enforcement co-operation.
I am not as sanguine as the noble Lord, Lord Pearson, about our ability to negotiate agreement effortlessly with other states on this. A whole succession of bilateral agreements would be complex, protracted and add layers of bureaucracy to law enforcement processes that often, by their very nature, have to be conducted speedily across many borders, as the noble Lord, Lord McNally, has said. Negotiating such a set of bilateral treaties would surely complicate and damage law enforcement.
Finally, I will briefly take the opportunity to nudge the Minister on another data protection issue—the introduction of the sentencing option of custodial terms for breaches of Section 55 of the Data Protection Act. This has been a long time coming. It was a long time coming under the previous Government and there has still been no real progress. However, surely it is now time to do what the Information Commissioner urged the previous Government and this one to do. This does not depend on the outcome of the Leveson inquiry; its main relevance is to breaches by those other than the media. Fines simply do not deter breaches of Section 55. For example, I understand that the going rate for a Section 55 offence in magistrates’ courts is £130, whereas a claims management company will pay £500 for a lead. Therefore, I hope that, amid all the other questions that he has to deal with in responding to this debate, the Minister might be able to give some words of comfort about the Government’s commitment in this area.
Lord Lester of Herne Hill
My Lords, the Minister has made a handsome apology and I agree with the noble Lord, Lord Wills, that that should be an end to this. My noble friend does not suggest that the process has been well conducted or that it will happen again. It is not helpful for noble Lords to accuse the Government of bad faith or dishonesty, as the noble Lord, Lord Pearson, has. That is unworthy of him and of this debate.
To complete the chronology of what happened, as we know, the Commission published its proposals on 25 January. Very quickly, on 7 February, the Ministry of Justice called for evidence by 6 March. On 14 March, a report was published by the House of Commons European Scrutiny Committee, which analyses this matter in depth on pages 42 to 63. There was then a debate on 24 April, which was referred to by the noble Lord, Lord Pearson. What he did not say is that in the vote on whether to take note, those who agreed with him were defeated by 267 to 24. No one can say that what happened in the other place was in any sense an absence of parliamentary scrutiny. I have had the privilege of serving on the EU Sub-Committee on Justice and Institutions three or four times during my time in this House. I take great pride in the fact that scrutiny is conducted better in our Parliament than in any other throughout the European Union.
I have listened very carefully to the Minister and read—as has the noble Lord, Lord Pearson, apparently—the Government’s explanation in the other place of why they took the course that they did. In his speech, the noble Lord, Lord Pearson, did not reply at all to any of the arguments that were put forward in the other place and here on the Government’s course of conduct. In the other place, the Minister, Mr Blunt, said that there were three main reasons for deciding not to opt out. The first was that,
“the directive is at a very early stage of negotiation”.
The second was that,
“the legal base of the measure gives the UK an effective exemption on the issue about which we are most concerned: internal processing of data”.
He went on to say:
“Thirdly, and most important, exercising the opt-out would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive”.
He continued:
“If we were outside the directive, our ability to negotiate essential data-sharing agreements”—
of which there are many examples—
“could be significantly undermined”.—[Official Report, Commons, 24/4/12; cols. 886-87.]
The Minister in the other place said:
“Let us be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom, and we take steps that imperil them at our risk and at risk to our citizens. Let me give an example, which concerned a 32-year-old Romanian national who was arrested in the United Kingdom on suspicion of raping two women within the Metropolitan area. A request for conviction data identified that the suspect had a previous conviction for rape in Romania. Just prior to the trial, the individual disputed the Romanian conviction, but through close liaison with the central authority and the police liaison officer at the Romanian embassy in London, a set of fingerprints relating to the Romanian rape conviction was obtained and proved the conviction beyond doubt when they matched against the suspect.
An application to use the previous conviction as bad character evidence was made by the prosecuting counsel and was granted by the judge, allowing the Romanian rape conviction to be put before the jury. The defendant was convicted of four counts of rape and other offences … in July 2010. The defendant was given an indeterminate prison sentence, with a recommendation that he serve at least 11 years in jail”.—[Official Report, Commons, 24/4/12; col. 888.]
And so it goes on.
What the Minister explained in the other place was that the information was obtained exactly under the regime which the noble Lord, Lord Pearson of Rannoch, regards as an encroachment on our criminal law and our domestic legal system. To the contrary, the ability across frontiers to share data of this kind is entirely in the interests of protecting our citizens against crime and their public safety.
As regards the other interests at stake—
Lord Pearson of Rannoch
The noble Lord of course is right that I think what he has just said. But far superior to that is the continuing cession of our sovereignty and the supremacy of our courts to the European courts and the Commission. That is the overriding objection that I have. I have read the debate in the Commons and I cannot believe that the Romanian could not have been convicted under similar arrangements without the continuing cession of our sovereignty.
Lord Lester of Herne Hill
I do not think that your Lordships would need a full debate on the value of the two European courts in protecting the rights and freedoms of our citizens. But, as I was about to say, the other rights and interests at stake are those of personal privacy, freedom of expression, protecting the security of the state, protecting us against crime and, in one aspect of what we have before us, ethnic profiling data-taking being prohibitive but with a necessary exception for equality where it becomes necessary in the interests of equality to do so. All those rights and freedoms, which are also part of our domestic law, are protected not only by our own courts but by both European courts. If a European bureaucracy or a European piece of legislation violates our basic rights and freedoms, the Luxembourg Court and the Strasbourg Court have the capacity, and they exercise it, to protect us against the abuse of power by European institutions. That is why the dislike of the noble Lord, Lord Pearson, of supranational or European jurisdictions is entirely misconceived. We need cross-border legislation and measures but we also need safeguards, which we get from those two European courts.
I therefore warmly welcome the pragmatic and careful approach taken by the Government over these measures. I very much hope that we will continue in exactly this direction.
Lord Pearson of Rannoch
Will the noble Lord tell us whether these protections which we enjoy from the European Union apply to British subjects extradited under the European arrest warrant? Is he happy with the way in which that initiative has developed?
Lord Lester of Herne Hill
The Joint Committee on Human Rights on which I serve has expressed some concerns, as has one of our members, Dominic Raab QC MP. I share some of those concerns but I do not think that this is an occasion for us to debate whether we think all European measures might be improved.
Lord Hannay of Chiswick
My Lords, I am participating in this debate in my capacity as chair of the European Union Committee’s Sub-Committee on Home Affairs, Health and Education, which has scrutinised the measure now before your Lordships. As to the substance covered by the draft EU directive in question, the committee supports the Government’s decision not to opt out for reasons with which I will not weary the House because the noble Lord, Lord Lester of Herne Hill, has just most eloquently described them.
The directive covers the processing of personal data for the purposes of police and judicial co-operation in criminal matters and forms part of a package, together with a data protection regulation covering the general and commercial processing of personal data by public and private bodies. The directive is intended to replace the 2008 framework decision, which was adopted under the old third pillar procedures established under the Maastricht treaty before these were superseded by the treaty of Lisbon. In plain language, that is to say that the UK had agreed to that earlier decision, which required unanimity to agree to it in order to be adopted, and is covered by it whether or not we opt out of the new directive.
When adopted, the new directive will apply significantly stricter rules on data protection, which we welcomed in my committee, in contrast to the relatively weak provisions in the framework decision. There is, of course, a down-side risk about which the Minister spoke. This enhanced protection could place an additional burden on businesses and public authorities. Therefore, like the Government we attach importance to an appropriate balance being struck in this matter. With that in mind, we would urge the Government to focus on, and to play an active role in, achieving that balance during the negotiations which are now to take place.
We have noted that in addition to this package a variety of different EU measures remain in force under Title V of the treaty, which contain distinct and separate data protection provisions. Perhaps the noble Lord would agree that to enact the directive in its current form, which would not bring these existing measures within its scope, would be to miss an opportunity of achieving a more coherent, overall approach. Perhaps he could say a word about that. That sort of opportunity might not recur for many years. It would be interesting to know whether the Government will be addressing this matter in the negotiations.
The directive is currently in the form proposed by the Commission and is likely to be the subject of prolonged negotiations in the Council, which was confirmed by the noble Lord in his introductory remarks. Those negotiations are already under way. We endorse the Government’s view that the best way for the UK to shape and improve the directive is by playing a full part in the negotiations, which the decision not to opt out allows us to do. The committee I chair is keeping the directive under scrutiny and we expect to receive updates of the negotiations from the Government in due course. When appropriate, we will intervene with our views on those updates.
Having addressed the substance of the directive, I would now like to turn to the procedural concerns that have been raised regarding the handling of the directive by the Government in this House. I agree with the noble Lord, Lord Pearson, about the handling and welcome what the noble Lord, Lord McNally, said about it himself. It has not been ideal, as the Minister frankly conceded in his letter of 28 May to the chair of the EU Select Committee in response to our warning that the Ashton and Lidington undertakings were not in this case being properly implemented. It is a bit more serious than the noble Lord, Lord McNally, suggested in his opening remarks, because it was an absolutely integral part of the votes in this House to ratify the Lisbon treaty, so it is a fairly important point. But I welcome the fact that the Minister has recognised that mistakes were made on this occasion.
The Motion refers to the Schengen protocol, the effect of which is that the UK is deemed to be participating in any measures which build on those parts of the Schengen acquis in which it already takes part unless, within three months of the measure’s publication, it notifies the Council that it wishes to opt out. If it does not do so then, it becomes automatically bound by the measure, if adopted, and will participate in its negotiations.
During debates in this House on the ratification on the Lisbon treaty, the noble Baroness, Lady Ashton of Upholland, gave an undertaking to take the views of this House into account on reaching a final decision on whether the United Kingdom should opt in to justice and home affairs measures. On behalf of the coalition Government, David Lidington, the Minister for Europe, reaffirmed the undertaking and extended it to cover opt-out decisions under the Schengen protocol, which is the one that we are talking about tonight. Since then, the latter circumstance has not arisen until now and the Motion before your Lordships' House is thus the first of its kind.
While we have already welcomed the Government’s intention to participate in the directive, given their view that the potential for an opt-out applied, it was regrettable that they did not raise the issue in the Explanatory Memorandum of 13 February. Indeed, we have yet to receive an satisfactory explanation as to why they actually considered that the Schengen opt-out applied in this instance at all, but that is a fairly abstruse legal point and I do not wish to labour it now, because the Government have decided that it applies and have gone through the decision-making process in the way described.
It was also regrettable that time was not found to debate the draft directive before prorogation, as it was in the Commons on 24 April. As a result, the Ashton and Lidington undertakings have not been fully respected since the three-month period for an opt-out decision expired on 14 May. I understand that discussions are under way between the Government and both Houses to ensure that circumstances such as this do not arise again. In those circumstances, my committee would consider that the Motion to Regret tabled by the noble Lord, Lord Pearson, is disproportionate and we would frankly not support it.
As your Lordships will already be aware, following the response of the noble Lord, Lord Henley, to the noble Lord, Lord Vinson, who asked an Oral Question this afternoon, before June 2014 the House will need to return to this complex area in a significant way when the question arises of whether the UK should exercise its right to opt out of approximately 130 measures relating to police and judicial co-operation in criminal matters under Protocol 36 of the Lisbon treaty. I would be delighted to respond to the interest shown by the noble Lord, Lord Pearson, in the activities of the EU Select Committee, about which he is not always that polite. On this occasion, he seems to be interested in how we do our work. I can enlighten him, although it is all on the EU Select Committee’s website, including the Home Secretary’s reply on the list of 133 measures. It is all there and, if the noble Lord wishes to look on the website, he will find it.
The list of those measures that will be covered by Protocol 36 was provided as a result of an initiative taken by the noble Lord, Lord Bowness, who chairs the twin committee to the one that I chair, which deals with justice. He raised the issue through the noble Lord, Lord Roper, and we got the answer with the list, which was helpful. When the noble Lord, Lord Vinson, asked his Question this afternoon, we got a little further, because we got a useful Answer from the noble Lord, Lord Henley, as well as a confirmation of the complex arrangements for consulting the European scrutiny committees and various other committees of both Houses before the Government came to any conclusion about the block opt-in or opt-out of 2014. That was extremely helpful, and I welcome the fact that that enlightenment has been given. I add only that we are still not very far down the road to understanding how procedures will work. These are completely unprecedented procedures, with votes in both Houses and the consultation of the various committees, and I hope that the Minister and his colleague the noble Lord, Lord Henley, will at some stage—although we are not very close to that yet—throw some light on how that process will be covered.
I add, for the noble Lord, Lord Pearson, that as soon as we got the letter from the Home Secretary with the 133 measures, the noble Lord, Lord Bowness, and I put our heads together with the then chairman of the EU Select Committee, the noble Lord, Lord Roper, and concluded that it would be necessary for the committee to write a report to the House before the block opt-out came before the House. That has been decided; it is on our forward programme, and I think that we will start taking evidence on it early in 2013 after we have concluded, in my committee, the report that we are doing at the moment on migration and mobility. That should give us plenty of time, and I hope that we will get the report out before the end of this Session—that is, mid-2013. That should give us plenty of time to provide the House with the kind of evidentiary basis that it ought to have before it has to take a decision on this matter. It will of course include the Government’s views on the matter, but they will give evidence in that inquiry.
I hope that that is useful to the noble Lord, Lord Pearson. It may even convince him that the EU Select Committee occasionally serves a useful purpose. Anyway, I do not want to go on any longer. It is late as it is and I have gone on rather too long. I hope very much that the noble Lord will not persist in his Motion of Regret. For my part, on behalf of my committee, I support the Government’s decision in substance.
Lord Beecham
My Lords, having yesterday disavowed the Minister’s generous description of me as a distinguished lawyer, it will come as no surprise to him to hear me say that I lay absolutely no claim to any expertise in matters of information technology, data protection or the work of the European Union and, indeed, European law. However, it is 50 years since I achieved some sort of qualification in Latin, when I managed a B grade in my A-levels. Having had reference to a corpus juris tonight in the debate, it is perhaps appropriate to congratulate the Minister on his ministerial mea culpa for the not uncharacteristic failure—not on his part but that of the Government’s business managers generally—to see that the proper procedures were followed. I have, to that extent, some sympathy with the critique of the noble Lord, Lord Pearson, which was echoed in part by the noble Lord, Lord Hannay. It is unfortunate that those matters occur.
As regards the report of the European Scrutiny Committee, will the Minister confirm that the Government have complied with the committee’s request to be kept informed of progress in negotiations on the points of concern for government, as outlined in the Explanatory Memorandum? Little progress may well have been made but it would be good to have that assurance on the record tonight. Will the Minister indicate whether, as requested by the scrutiny committee, the Government will in due course share with the committee the response to the call for evidence, and explain whether the responses change their approach to negotiations? That is a straightforward request which I would expect the Government to honour. I do not know whether the Justice Committee has yet given its opinion on the draft directive. Perhaps the Minister can enlighten me on that. That, of course, is not a matter for the Government but I assume that they would wish to take that issue into account.
The Opposition are broadly supportive of the Government although we share some of the reservations around the potential cost and bureaucracy, to which the Minister referred. However, on reading the debate on this matter in the House of Commons, it struck me that the event was rather like a works outing for Eurosceptics and concentrated on process rather than on substance.
The noble Lord, Lord Lester, has forcefully and clearly outlined the important issues which the directive addresses. I draw the House’s attention to elements of the scrutiny committee’s report, which make it very clear that many of the key changes which the directive introduces are supportive of the rights of individuals. That is as it should be. I wish to refer to some of them, such as,
“new rights of access and information for data subjects, such as the identity of the data controller, the purpose of the data processing and the period for which the data will be stored; an obligation for data controllers to implement ‘appropriate technical and organisational measures’ to ensure an appropriate level of security; a right for data subjects to directly demand”—
I note the split infinitive—
“the erasure of their personal data by the data controller; an obligation on data controllers to inform supervisory authorities and data subjects of data breaches, informing the former within 24 hours of discovery and the latter ‘without undue delay’”.
These are significant protections for the citizen and we should welcome them. I hope that they can be implemented. Frankly, it seems to me that that is more important than the perennial debate about where our sovereignty lies because, as the noble Lord, Lord Lester, indicated, and as the Minister made clear, we are dealing here with matters of considerable importance: namely, the safety and security of British citizens and the protection of citizens from criminal depredation. In these days of international crime, not least through the auspices of modern technology, it is essential that we co-operate fully with law enforcement agencies among our European allies and partners.
In these circumstances, I think that the Government are on the right lines. I very much hope that the procedural hiccups that we have seen in this case will not be repeated. We look forward to the Government negotiating successfully and, more importantly perhaps, reinforcing the rights of citizens which this directive will promote.
Lord McNally
My Lords, the concluding remarks of the noble Lord, Lord Beecham, brought to mind a saying much loved by my old mentor, the late Lord Callaghan—that a lie was half way round the world before truth could put its boots on. These days, it is more than a lie that can get half way round the world before the police can put their bicycle clips on. We have to approach these issues with the benefits of modern technology but balance that with some of the threats that modern technology brings to individual privacy and such matters. It is that which we have been debating.
I am grateful to the noble Lord, Lord Beecham, for his support from the opposition Front Bench. We will keep committees informed on the matter. I am not quite sure whether the Justice Select Committee has asked for a formal meeting, but I will write. A large number of questions were asked. If I miss any out in my reply, I will make sure that I cover them in a written response to noble Lords who have taken part in the debate. As the noble Lord, Lord Beecham, reminded us, these are important issues in terms of individual rights as well as in terms of security, crime detection and related matters.
The noble Lord, Lord Hannay, implied that I had taken matters lightly in our application of, or approach to, the Ashton-Lidington promises. That is not true. I take them very seriously indeed, and that is why I have been forthcoming in my apology. I know the noble Lord, Lord Pearson, well enough—indeed, I have a certain affection for him—but if you offer him an olive branch on matters European, he is most likely to grab it and hit you over the head with it. Nevertheless, the apologies were sincerely given. Accidents happen. It is cock-up, not conspiracy. As I said in my opening remarks, we are trying to learn the lessons and, as the noble Lord, Lord Hannay, said, this is one of the first times that we have discussed Schengen under these proposals. If there are lessons to be learnt, we will learn them.
To get things into proportion, we are in June 2012. The Lisbon treaty specifically gave us until June 2014 to make up our minds on these issues. Therefore, to imply that we do not have every answer to every matter two years before that deadline suggests that we have a liking for conspiracy that simply is not there. At Question Time today, my noble friend Lord Henley gave absolutely crystal-clear assurances on how the Government will approach this. The idea that somehow we were going surreptitiously to slip through, one by one, the 133 measures covered in this area of the Lisbon treaty is laughable. Of course the world has not come to a dead stop and things come through. When measures are brought forward, as they necessarily will be, what happens—although it did not happen perfectly in this case—is that we bring them to Parliament, which has the opportunity to debate and approve them. The fact that this House did not get that opportunity in this case is regretted, but the other place, as my noble friend Lord Lester pointed out, approved the measure by 267 votes to 24.
I would say only one other thing about the points raised by the noble Lord, Lord Pearson. I will come to his questions, but he read out a list of, I think, six measures that had gone through. I would be happy if he read them out again because, as an ordinary citizen, I am much reassured that we have that measure of European co-operation on those kinds of issues, although I know that we come from a different philosophical point on this. However, if the noble Lord is trying to convince the British people of his point of view, I am glad that he reminds them of the really positive measures concerning co-operation on criminal justice matters, as I think that that strengthens my approach rather than his.
I thank the noble Lords, Lord Hannay and Lord Lester, for their contributions. Concerning the point made by the noble Lord, Lord Hannay, about taking the opportunity for a coherent approach in these negotiations, I can give him an absolute assurance that we will look to his committee and other committees in both Houses. We will provide them with updates and look to them for comments and commentary on the progress of these negotiations. There will be no attempt by the Government to do anything other than that.
As I said, I shall not be able to cover all the issues that have been raised in the House today. However, the 133 measures—a nice, frighteningly large number—need analysis. I welcome the fact that there will be an opportunity for the committee to look at them. Some of them are dead or dying. It is not the case that the Beelzebub that the noble Lord, Lord Pearson, spends his nights afeared of is thinking up 133 new measures. This is a matter of taking stock in a calm, rational manner and then, one hopes, having a rational discussion based on analysis about what is in our national interest and allowing Parliament to take a decision following such a debate. There is certainly no attempt to pre-empt matters. The Government continue to approach each opt-in decision on a case-by-case basis, taking decisions based on the UK’s national interests. They will not be making any premature decisions on this, as my noble friend Lord Henley assured the House earlier today.
I am told that the reference to competent authorities is from Article 3 of the proposed directive. A competent authority is any public authority which is competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. Therefore, a competent authority is not some branch of the Commission; we are referring here to the police.
Our impact assessment was also mentioned. It is true that we considered that there were both bureaucratic and cost implications, but we also said that being positioned outside the directive could involve costs too. Again, as we look at these matters and as the negotiations unfold, these things can be fully examined.
Oh dear! It looks as though we may have another apology to make in that the noble Lord, Lord Pearson, said that the Motion before the House is a recommendation and not a decision. This was not an attempt to mislead the House. Of course, by now it has become a decision and I am sorry for that drafting error.
I was asked why the title of the directive mentions free movement of data. The purpose of the directive is twofold: ensuring that personal data are protected and ensuring that they can be exchanged for the purposes of the prevention, investigation, detection or prosecution of criminal offences. I think that that covers the question asked by the noble Lord, Lord Wills, about why we had this twin-track approach. From the beginning, there has been legislation covering the broad area of data exchange and the very specific needs of the police and criminal detection authorities.
The noble Lord, Lord Wills, cunningly and quite outside the remit of this debate, asked me about Section 55. I am very willing to write to him. We have continued to be reluctant to put penal sanctions on Section 55, but we keep it under review and we continue to discuss the matter with the Information Commissioner.
I will shuffle through my notes and look at them very carefully because I think it will be easier to answer some of the specific questions in writing. I will write to noble Lords with a considered response to the specific questions and put copies in the Library of the House so that these matters are on the record.
I hope that the noble Lord, Lord Pearson, will agree to withdraw his amendment. This debate has been useful. Basically, he seems to argue from a very fundamentalist position, which I understand but do not agree with, about whether or not we should participate in these kinds of processes. Speaking for the Government, I take the position, as I stated at the beginning, that some of the things that the data protection issues cover are, by their very nature, matters that need international co-operation. We have been very frank in saying that we think that the approach of the Commission has been overprescriptive. There are burdens and costs that we do not like, but we are convinced that it is in Britain’s interest to opt in, to negotiate hard, to keep Parliament fully informed and to make decisions at the appropriate level and at the appropriate time on these matters.
Tonight’s debate has been chastening for my department but I give the assurance: “Please, Sir, we won’t do it again”. However, we will continue to engage positively on these matters because, in our view, that approach is in our national interest. I sincerely hope that the noble Lord will agree to withdraw his Motion so that the House can approve my Motion.
Lord Pearson of Rannoch
Before the noble Lord sits down and before I respond on my Motion, perhaps I could press him on two questions, as I did not quite understand his answers. First, is he saying that we are likely to have a number of individual opt-ins for debate and vote before the end of May 2014? I think he implied that that could well happen. Secondly, the most important question I put to him to which I would like an answer is this: as these opt-ins clearly amount to a transfer of sovereignty, or whatever you want to call it, from this Parliament and our courts to the Commission and to the Luxembourg Court of Justice, why are we not having a referendum? I understood that that was the point of the referendum Bill. If the Minister would be good enough to answer those two questions, I will reply briefly to my Motion.
Lord McNally
Gladly so. I said that—and I do not know because I am not a clairvoyant on these matters—we will try to get notice from the Commission to see if things are coming down the track. As I said, things are not frozen, so we may well get another one like this. I do not know. But if we do, perhaps with better handling, we will do what we have done with this which is to bring it before both Houses for approval.
On the question of a referendum on these measures, this was clearly laid out in Lisbon. The process was clearly laid out. The Government have made their approach one of full consultation with the relevant committees of both Houses and the opportunity for both Houses of Parliament to take a decision. I do not think that the Government could have been any clearer tonight. That is the Government’s position.
I am told that the noble Lord’s Motion is not an amendment. It is a freestanding Motion. The House must decide on my Motion and then separately on that of the noble Lord, Lord Pearson. I am grateful to the Clerk for that guidance. I hope that that is a clear enough explanation of the noble Lord’s two questions. I beg to move.
EU: Personal Data
Lord Pearson of Rannoch
That this House regrets the Government’s decision not to exercise its right to opt out of the Draft Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data; and also regrets that the deadline for opting out passed on 14 May without the House being given the opportunity to debate and vote on the Government’s decision.
Lord Pearson of Rannoch
My Lords, I am grateful to all noble Lords who spoke to my Motion. I have two or three brief comments. First, the noble Lord, Lord Lester, opined that the procedure in the House of Commons on this matter was adequate. All I can say is that I have read Hansard as I am sure he has, and that was clearly not the opinion of the chairman of the European Scrutiny Committee, Bill Cash.
A number of noble Lords have said that—
Lord Lester of Herne Hill
I am not clear about the attitude of the noble Lord, Lord Pearson, to parliamentary sovereignty. The other House, the elected Chamber, has voted overwhelmingly in the Government's favour. Why is that not more significant than the view of Mr Cash as chairman of the European Scrutiny Committee?
Lord Pearson of Rannoch
I accept that the House of Commons voted overwhelmingly to opt into this measure, but it was the scrutiny procedure that came under discussion in the House of Commons. Who knows? Perhaps if the scrutiny procedure had been adequate, the result might have been slightly different. Of course I agree that the House of Commons was always going to vote this sort of thing through. That is one of the troubles with our democracy.
A number of noble Lords said that we might as well sign up to all this because if we did not have it we would have to have alternative arrangements. It would all be very complicated and there will be more administration and so forth. I am indebted to a thought on this point from the Open Europe think tank, which is a mildly Eurosceptic organisation. It makes this point, which is important because the noble Lord, Lord Wills, and many noble Lords mentioned it in our debate:
“There are various international agreements in place outside the EU’s legal framework, mostly Council of Europe conventions, including one on extradition, which the UK could continue to use should it cease to apply EU crime and policing law post-2014. Although they do not cover all areas, and are often more cumbersome than the EU measures, the fact that the UK has a fall-back option means there is no need to ‘rush … ’”,
to opt in.
Lord Wills
I hesitate to detain the House at this late hour, but is the noble Lord fully confident that those other instruments to which Open Europe refers are going to be sufficiently up to date with the technology in precisely the way that this European regulation and directive are designed to be, as the noble Lord, Lord McNally, said? They are updating our protections in line with rapidly changing technologies. Is he confident that those instruments will meet those concerns?
Lord Pearson of Rannoch
My Lords, I am not saying I am entirely confident of that, but I know that I prefer them to the cession of our sovereignty in these matters to Brussels and the Luxembourg Court. If necessary, we could negotiate these matters with other countries individually. There is no reason not to do that. In my view, and the view of those of a Eurosceptic persuasion, the price that is being required is too high.
Finally, if, as the noble Lord says, this directive is at a very early stage, and the whole process of the opt-ins is at a very early stage, I really cannot see why we do not stay out of it and wait and see. That would seem to be a far preferable route to take.
I am very grateful to all noble Lords who have spoken. It has been a useful debate. Again, I am very grateful for the generosity of the apology of the noble Lord, Lord McNally.