Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013

Baroness Hamwee Excerpts

Wednesday 6th March 2013 Grand Committee

[Lord Taylor of Holbeach]

My Lords, I thank the noble Baroness, Lady Smith of Basildon, for her broad welcome for the directive and the regulations arising from it. I think we are all agreed on it. The opt-out of police and justice measures would not affect this order or the UK’s participation in the trafficking directive. It is not part and parcel of that situation. That is important to know.

I know the opt-outs are a matter that concerns the noble Baroness. The work in relation to all the opt-outs is ongoing negotiation and discussion. She knows that I and my noble friends in the Ministry of Justice will do our best to keep the House informed of the implications of anything that comes forward.

The first review of the regulations will be after five years. By that time, we will see what the implications are. We hope that we can anticipate relatively few prosecutions under these regulations because their existence is the key to making sure that e-trafficking is not used to reinforce this terrible trade.

[Baroness Hamwee]

Did I hear the Minister say that the first review will be after five years? Regulation 8(4) states:

“The first report … must be published before the end of the period of five years”.

Perhaps I am saying this only to register my presence, but we should be clear about that.

Police Integrity

Baroness Hamwee Excerpts

Tuesday 12th February 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I, too, welcome the Statement and I agree with the implicit message that transparency and integrity go hand in hand. I do not doubt that, when there is a problem, those who feel it most keenly are individual police officers who themselves have shown the utmost integrity. First, what consultation has been undertaken on these measures, not just with ACPO but with those who represent the lower ranks of the police service? Secondly, will any of these measures —I am thinking particularly of the registers of interests, gifts and so on—apply to civilian staff within police forces?

[Lord Taylor of Holbeach]

My noble friend has raised two very interesting aspects and I thank her for bringing them forward. The key thing about these proposals is that they will affect the professionalism of the police at all ranks so, as she rightly points out, they represent a development that I hope will be welcomed. They will be part and parcel of ongoing discussions that we are having as we seek to create a modern police force in this country—something that covers a whole load of matters and will now include this. We will make sure that that happens.

It is intended that those employed by the police in a civilian capacity will be subject to IPCC involvement, a matter that the IPCC itself has raised with us. I cannot say whether the register of gifts, or of contacts with the media, will be extended into that area but she makes a very interesting suggestion that it should do so.

Crime: Women's Safety

Baroness Hamwee Excerpts

Tuesday 12th February 2013 Lords Chamber

[Baroness Hamwee]

My Lords, I am grateful to the noble Lord for introducing this subject. The noble Baroness, Lady Stern, in her influential review into how rape complaints were, and maybe are still, handled—I have to say that the noble Baroness should be speaking earlier than me in this debate—concluded that,

“it is time to take a broader approach”—

broader, that is, than relying on the conviction rate—

“to measuring success in dealing with rape”.

She talked in the report of,

“a range of priorities that needs to be balanced”,

in particular by giving “higher priority” to,

“Support and care for victims”,

as well as of helping,

“the victim to make sense of the police and prosecution processes”.

As the noble Lord said, if we did not understand the need for that before, the response of Frances Andrade to the prosecution of Michael Brewer has made it shockingly vivid.

The Government’s progress review of the action plan on ending violence against women and girls reported that a number of actions had been completed to identify ways to improve communication with victims of sexual violence. The actions taken were the completion of a Home Office handbook and a CPS booklet. Perhaps this issue needs to be revisited. The Home Secretary acknowledged last week that Frances Andrade’s suicide might discourage others from coming forward with complaints.

In late 2011, I attended a conference at New Scotland Yard for SOIT—sexual offences investigation trained; this is a new acronym to me—officers. I was impressed by the concern then shown by police to extend understanding and professionalism in this work, but I wonder whether this is still not something which is often better recognised by the more senior officers. Has it trickled down to the junior officers who will respond initially to complaints and offences?

What also made an impression on me were some of the comments made by victims of sexual offences, though “victims” seems to me to be the wrong word, because the women in question presented themselves very much as survivors. I looked this morning at the notes that I made. They included: “Victims have lots to lose … villains are the defence teams and the judiciary”—I recognise that that is a pretty complicated area and I do not want to be too simplistic, but this is the reaction—and “getting DNA on the database is regarded as a result”. What all that amounts to is the victim not being taken sufficiently seriously and not being treated as any of us would feel we or people whom we know to be in this situation would want to be treated.

Since I thought that we would have even less time available this evening than we have, my focus in preparing my remarks was deliberately narrow, although there is one other particular issue which I will come to in a moment. The noble Lord’s referring to how women are treated inside the home as well as outside prompts me to mention, though not at length, domestic violence. Another point that he made which is similar to what I have been saying was about the attitude of less senior police officers. When I mentioned this in a debate not long ago in the presence of a retired, very senior police officer who is a Member of this House, he took me to task afterwards. I raised the matter also with the chief executive of a domestic violence charity with which I used to be associated and she said, “No, the attitude has not changed. We’d like to think it has, but it hasn’t, certainly not to the extent that would be appropriate”.

The other issue that I will slot in, and on which public awareness is probably about 20 years behind that on domestic violence—which is how I have heard others describe it—is that of trafficking of women. Here I make a plea for imaginative understanding of victims. That ranges from how immigration issues are dealt with through response to minor offending by the victims of trafficking to treating the trauma which they have experienced.

It is not a very good idea to add to my speech in a rather disorganised way a whole lot of scattered points, so let me come back to the other item that I wanted to raise. The report which is the subject of this debate inevitably presents snapshots, but it is trends which are the most important. I am not saying that trends are completely ignored by the report, because one trend which is very clear within it is the steady rise in the number of offenders in prison for sexual offences, from around 6,000 in 2005 to almost 10,000 in 2011. That suggested to me that offender management is not succeeding, but then I came across the statistic that more than 80% of those offenders had not previously been cautioned or convicted for sexual offences. I am not sure how these statistics lie together and whether the Government have any comment to make on them, nor am I sure whether they are affected by a tendency to prosecute for a lesser offence than rape, which I presume is to ensure a conviction. Perhaps the questions on this should all be about the rehabilitative skills which will be available in the world of payment by results that we all see coming along the track.

I cannot get away from the thought that perhaps no distinction is being made with other offenders and that the best approach to rehabilitation as well as punishment is the big question. However, I shall return to where I started: I heard it said the other day that someone who is murdered is murdered once—I do not condone that, of course—whereas someone who is raped is raped over and over again, because that trauma is experienced again and again. In the system’s treatment of victims, we would do well to remember that.

Intelligence and Security Committee: Annual Report 2011-12

Baroness Hamwee Excerpts

Monday 21st January 2013 Grand Committee

[Baroness Hamwee]

My Lords, when I went to see the latest Bond film, “Skyfall”, there were two Members of your Lordships’ House in the audience. I think we both found that the least credible part of the film, which was a high hurdle, of course, was the active executive role taken by the chair of the Intelligence and Security Committee. That is probably the limit of my expertise on the subject, certainly compared with today’s speakers and indeed with other noble Lords in the Room, so I hope that noble Lords will forgive any naivety in my comments.

On reading the report, although this is not a criticism of the report itself, the writers or the committee, I would have been pleased if some of the gaps had been filled. I am not talking just about the redactions, although on those I did wonder about the process. Does the committee advise the Prime Minister that certain matters are for his eyes only, as it were, because as we discussed during the passage of the Justice and Security Bill, responsibility for security is a matter for more than the agencies? Indeed, much reference is made in the report to what is called the wider intelligence community. It appears from the report that the National Security Council, with a membership of Cabinet Ministers, joins things up across government. The report states:

“It is evident that the NSC has increased further its status and priority, and we are reassured that the requirements of the NSC have been assimilated by the intelligence community”.

I am intrigued that membership of the Joint Intelligence Committee is not quite aligned with that of the NSC, which includes the Secretary of State for Energy and Climate Change. However, DECC officials are not permanent members of the JIC. The events of the past few days have confirmed the relevance of that. Perhaps the issue will soon be water, but that could be a matter for another debate. The JIC, on the other hand, includes officials from BIS but the Secretary of State for Business is not a member of the NSC, which is interesting given the problems of cybersecurity to which the noble Marquess has just referred.

The impact of the NSC on the intelligence community—to pick up that reference—is one thing but what is important above all is its impact on outcomes. The report’s very first recommendation concerns the distinction between policy implications and analytical judgments. Again, this has already been mentioned and the Government agree with it. It cannot be easy to maintain that distinction or to avoid blurring the line between the operational and the strategic. Two of the quotations from the evidence from the Foreign Secretary which are contained in the report were particularly interesting on this. He said:

“We task them all the time”.

Then, acknowledging the importance of operational independence, he goes on to say that,

“there is a process of discussion. I mean, the weekly discussions that I have with the Security Service are about where they are focusing their resources and particular operations that require that resource and questions I can ask about the issues that I see that need to be addressed and how they are doing them. So it’s a different sort of accountability”.

Accountability is an interesting word there, because it is moving towards the Executive. I am not saying that there is anything wrong in that involvement or that I am critical of it, but I thought that this highlighted the point. The noble Marquess, Lord Lothian, has asked the Minister to confirm that resources will remain available for the front line, which in my mind raises the question of who is responsible for the allocation of resources within each agency by each agency, and how much they should be told by the Government where resources should be allocated.

As I read the report, the agencies are increasingly collaborating for operational reasons as well as for efficiency. The Government’s response stresses the importance of a tri-agency approach to conducting and supporting counterterrorism investigations. No doubt the debate about having separate agencies and the demarcation lines is a very old one, but I wonder whether the time is coming for it to be revived and for a reflection on where the demarcation lines should be, as the world changes and we become more of one global whole.

One of the changes of course is the agencies’ increasing dependence on IT. I was not surprised to read of the difficulties of retaining talented people—to whom one must pay tribute, not only in IT but across the piece. This is not a new issue in the public sector: the attractions of the private sector have taken, for example, engineers and planners out of local government for years. It means making the job attractive, not only in terms of salary but in other ways. There is talk of recruitment. I have been on to the websites and played with what is there. However, I do not get much of a sense of what the imaginative and innovative methods are to which the Government refer—without fleshing it out—which would attract possible applicants to look for jobs with the agencies and get to the point where they might try to take the intelligence test, if I have used the term correctly.

Turnover within the agencies seems high. I assume that there is an analysis, either within each agency or by the committee, of the levels of seniority where there is high turnover and the reasons for it. Is absence monitored? Sickness levels are often a very good indicator of what is going on beneath the surface. This information is in the public domain but, as regards discussing this area in public, taking evidence from those who can give it is just the sort of thing that could be considered—an issue that I raised during the passage of the Justice and Security Bill—not at one stage removed, as we are today. I readily acknowledge that there are difficulties when one moves from the general to the particular in this area but, for example, redundancy payments are indeed high, as the report mentions. This makes me wish to ask—but I cannot ask or listen to the question being asked—whether there are false economies in making high redundancy payments if that means recruiting a large number of more junior employees.

Diversity, as is also recognised, is an issue in recruitment and, perhaps, retention—I am not clear about that. Are the nationality requirements really such a problem for diversity? How much effort is being made to learn from other sectors? Is there secondment to and from the agencies and other sectors? Presumably, that is not entirely impossible? I would like to think that the committee has been told more than:

“Work is in hand to identify a sustainable package of measures to tackle the situation”.

However, I return to the “what?”. The proportion of spend on counterterrorism brings one up short. I noted, too, mention of home-grown self-starters and lone actors. The sections on the Prevent strand of the strategy reminded me of the difficulties in another area—drugs. This is all about mindsets, and I wonder whether there is any read-across that one can make. I should be interested to know whether the ISC was content with its recommendations on this. I wonder, too, if it was satisfied with the Government’s response to the section on torture and cruel, inhuman or degrading treatment. It seems that nothing is immune from being turned into an acronym. The report refers to the risk of being linked to such activities. I do not know whether it is only my reading of the Government’s response but it carefully does not address the difficult area of “condoning” such treatment—if that is the right word for not asking all the questions or ferreting away at investigations that might reveal things that one might not want to know; and yes, I have read the consolidated guidance and note the role of Ministers in this. Perhaps that is for another day.

It is clear that the committee’s oversight is continuous and vigorous. Meetings are not everything but I note that the committee met 44 times in the year—almost once a week. As the committee and the noble Marquess, Lord Lothian, has said, the real test is our response to the unexpected. Perhaps the events of the past few days remind us that behind this is the question of what is done to limit the unexpected. I pay tribute to the work of the committee as well as of the services. Scrutiny is by no means merely passive and reactive, and this report shows that.

Crime and Courts Bill [HL]

Baroness Hamwee Excerpts

Wednesday 12th December 2012 Lords Chamber

In relation to morphine, I understand that the panel is considering a limit which is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine. That is some reassurance, but again if the Minister can elaborate, it would be helpful. The point made by Napp Pharmaceuticals is that the defence in the legislation as it stands applies only once the case has progressed. It will not protect innocent patients on prescribed medications from the stress of arrest and further testing at the start of the process. Does the Minister agree that Clause 29 needs to be amended to cover drivers who are able to show that they have not taken alcohol and who can explain that they are on prescribed medication? Will the Minister consider bringing forward a government amendment to this effect at Third Reading? It would be helpful to be given some reassurance. A zero tolerance approach would be very serious for these chronic patients who need their medication and can drive safely while taking it. I beg to move.

[Baroness Hamwee]

My Lords, semaphore signals made across the Chamber are always excessively polite. I do not want to take too much of your Lordships’ time on these amendments, but that is not to say that I do not think they are important. However, I am aware that some noble Lords may be hoping to get on to another amendment soon.

The letter which some noble Lords have received from the noble Earl, copying us in and updating us—if I can put it that way—on the findings of the expert panel was extremely helpful. However, it confirms not only some of the points to which the noble Baroness referred but that this is very much still a work in progress. At the previous stage, the Minister referred to the vast array of drugs which needed to be considered. That is certainly the case given the existence of controlled, uncontrolled, traditional and designer drugs. Drugs are not as easy to deal with—if that is the right word —as alcohol. The Department for Transport has not yet published the expert panel’s report, which may be more relevant to the next group of amendments, but it has provided some reassurances, albeit they are not yet in the public domain in the normal sense of the word.

I support what the noble Baroness said about looking at the effect of drugs rather than assessing whether they are classed as controlled drugs. Dr Wolff’s very helpful presentation, which some of us were able to attend, explained that the panel’s work is based on an assessment of risk. That, it seems to me, is absolutely at the heart of what the noble Baroness has said. We are all aware that, as regards psychoactive drugs which are not yet controlled and may never be, chemists around the world are looking at old pharmacopoeia and designing new drugs. They will always be ahead of the rest of us in terms of the proper control of these substances.

I support Amendment 118K. I am impressed that the noble Baroness, Lady Smith, has managed to incorporate “knowingly” in the amendment by drafting another paragraph. I struggled to find a way of incorporating “knowingly”. My approach was not as ambitious as hers. My Amendment 118J would insert “substantially” to make paragraph (b) read:

“D took the drug substantially in accordance with any directions given”.

This provision refers to prescribed medicines. I am aware that it is very easy to forget to take a prescription medicine at precisely the right time. I have done that, and I am sure that most other noble Lords have done it. The medicine may state that it should be taken with a meal, but you might have missed the meal. Patients are human, and they forget. They do what they think is best in catching up with the daily dose. The panel said that it was important to strengthen medical information but warned individuals about the risks of consuming the relevant drug and driving, particularly if alcohol is also consumed. It recommended that healthcare practitioners should be better informed about these risks. I am sure that that is right and admirable, but I do not think that it wholly meets the point. As has been said, road safety is involved in this matter. The balance between protection and having the flexibility required to take account of human imperfections is difficult to strike. Again, we are talking about inappropriate risk.

Amendment 118M was suggested by the Joint Committee on Human Rights and concerns spiked drinks. Its report refers to the,

“apparent increase in recent years of incidents of spiking drinks in public places, in particular with so-called ‘date-rape drugs’ … We are also anxious about the impact of strict liability criminal convictions on individuals’ CRB checks, even where disqualification from driving may have been avoided through a special reasons hearing”.

The committee states earlier in its report that the point may have been made that a drink has been spiked. It is not impressed by the Government’s objection to permitting a “spiked drinks” defence. The committee states that,

“the Government’s objection does not hold good if such a defence imposed the legal burden of proof, as opposed to the evidential burden of proof, on the defendant: that is, if the Bill provided for a defence only if the defendant can prove that the drug was present in their body due to the intervention of a third party without the defendant’s knowledge or consent. We are concerned that the new strict liability offence as presently drafted is incompatible with the presumption of innocence in the absence of a spiked drinks defence which casts the legal burden of proof on the defendant”.

Therefore, the committee recommended this amendment to your Lordships and, indeed, to Parliament.

[Lord Walton of Detchant]

My Lords, I wish to speak briefly in relation to this group of amendments and Clause 29, largely in order, I hope, to receive reassurance from the Minister.

A number of medical bodies and a pharmaceutical company have drawn to my attention the possibility that this legislation and the testing systems could mean that patients taking legal medication for chronic pain might well face prosecution. Patients with chronic pain well established on a stable dose of prescription or over-the-counter opioid analgesics may have levels of metabolites in their system well above any threshold used for roadside or police station testing, even though such levels of these metabolites would not in any sense impair their ability to drive. Patients driving while taking these remedies might then be subjected to the threat of criminal prosecution or, at the very least, might face stressful allegations and the onerous burden of proving that they were not impaired and that there was no other reason why they should not be driving.

The defence included in the legislation is welcome. Subsection (3) of proposed new Section 5A states:

“the specified controlled drug had been prescribed or supplied to D for medical or dental purposes”,

and that,

“D took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied”.

That is very helpful, but the concern that has been drawn to my attention is that, although that defence sounds absolutely solid, it would be available only once a case has progressed. It might therefore not protect innocent patients from the stress and inconvenience of arrest, further testing and potential prosecution. The wording of the defence does not put the burden of proof on the prosecution; the onus is on patients to show that they took the prescribed medication in accordance with instructions. This might well prove to be a difficult task, and it would be unjust to criminalise an innocent patient as a result of a technicality. Will the Minister reassure me that this particular clause is strong and solid enough to avoid that problem?

--- Later in debate ---

Moved by

[Baroness Hamwee]

118N: Clause 29, page 29, line 23, at end insert—
“( ) Before regulations under subsection (8) are laid before Parliament, the Secretary of State shall publish a report regarding the controlled drug proposed to be specified and the limit proposed to be specified.”

--- Later in debate ---

[Baroness Hamwee]

My Lords, I hope to be very brief on this amendment and on Amendment 118P. These amendments deal with the regulations which, as the noble Earl has assured the House, will not be proceeded with until a good deal more work is done. My first amendment would provide for a report from the Secretary of State about the,

“drug proposed to be specified and the limit proposed to be specified”,

before laying regulations. Like all other noble Lords who have taken an interest in this, I am very keen that the decision should be made on the basis of evidence. This amendment is to suggest that the evidence base should be in the public domain and easily accessed before we are asked to deal with regulations.

I said a few minutes ago that there is a huge array of drugs. I was quoting the noble Lord, Lord Henley, when I said that but, having seen that remark in Hansard, it struck me that it may be difficult to decide whether to support regulations that cover more than one drug or where there is concern about the limit applying to a particular drug. It would be very helpful to have regulations made a drug at a time so that the vote can be very clear when the matter comes before both Houses of Parliament. Following the points that have been made about the importance of controlling drug-driving, I hope that the House would be able to vote for the inclusion of a particular drug without jeopardising the inclusion of another if there is concern about one which is on a list or the limit for one which is on the list. I beg to move.

[Earl Attlee]

My Lords, I would point out first that these are very important clauses and it is right that the House looks carefully at them. I know that these amendments relate to concerns around how the Government will implement the new offence. Amendment 118N proposes that the Government should be required to publish a report regarding the controlled drugs and limits to be specified in regulations before such regulations are laid before Parliament. The Government do not consider that such a requirement is needed. Clause 29 already requires the Government to consult before specifying in regulations the drugs and limits for the new offence. The Government also intend to publish a copy of the report of the expert panel on drug driving shortly. I have already provided an explanation to the House on the reasons for its delay. The consultation will set out the evidence base for specifying particular controlled drugs and limits in regulations.

Amendment 118P proposes that individual sets of regulations should be drafted for each controlled drug to be covered by the new offence. I recognise the importance of considering carefully the specified limits for each controlled drug. That is why we will consult on the drugs to be included in the offence and the limits which should be specified. It will be open to anyone to respond to that consultation and their response will be considered carefully. Drafting a new set of regulations for each controlled drug would be time-consuming for the Government to prepare and for Parliament to consider, and would be likely to involve much unnecessary repetition. It could also make it more difficult for those seeking to use the legislation since there would be multiple sets of regulations to refer to, making the relevant law unnecessarily complex.

The Government therefore believe that it would be better for all concerned for a single set of regulations to be produced following consultation. In the event that the regulations were not approved by Parliament due to the inclusion of a particular specified drug or limit, the Government would amend the regulations and lay a further draft before Parliament for approval. In the light of the points I have raised, I hope that the noble Baroness, Lady Hamwee, will be willing to withdraw her amendment.

[Baroness Hamwee]

My Lords, for speed, I will not comment on that other than to thank the noble Earl. I beg leave to withdraw the amendment.

Amendment 118N withdrawn.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, like many other people, I received a large number of e-mails and letters all going one way in support of the noble Lord’s amendment. I would just like to tell the House about one letter I received. In my very untidy desk, I have lost it, but it was about a lay preacher who preaches on the street and preaches on Sundays in church. He happens to subscribe to a literal form of the Old Testament with which I do not agree, but he was preaching on his literal interpretation in the street. Someone complained to the police, and he was arrested and spent seven hours in the police station. He was placed on police bail on the order that he was not allowed to preach. If that is not an abuse of the freedom of speech, I do not know what is. I cannot understand why the Minister and the Government are not supporting this amendment.

[Baroness Hamwee]

My Lords, I was hoping that my noble friend Lord Macdonald would be in his place as he was a little earlier. I hope he is not stuck in a lift or something. I want to put on record on his behalf, on my behalf and on behalf a number of people who are becoming quite vocal, my wholehearted support for this amendment, and I speak for a number of colleagues. I put my name to the equivalent amendment at the previous stage and, as I recall it, the noble Lord, Lord Mawhinney, said, “For heaven’s sake, even the Liberal Democrats have this as party policy”. Well, we do; we would have gone further, but we are happy to go as far as is before us tonight.

[Baroness Smith of Basildon]

My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,

“will be able to put forward the Government’s considered view to the House”.—[Official Report, 4/7/2012; col. 781.]

Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.

I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?

I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?

I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.

However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.

Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.

We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.

If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.

Police (Complaints and Conduct) Bill

Baroness Hamwee Excerpts

Tuesday 11th December 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I am not from Liverpool but I am acutely aware of how central football can be to the DNA of the citizens of a city, and I mean more than loyalty to a particular club. In my home city, if you support Manchester City you celebrate when Manchester United loses, but tragedy brings people together. I have a vivid early memory of the air crash at Munich when Manchester United was returning from Belgrade. The shockwaves were felt throughout Manchester, among firm City supporters no less than others. Looking the other day at some information about that crash, I realised that of those who died there were as many reporters as players. That prompted me to reflect that, had that crash occurred in 2008 not 50 years earlier, the press would have behaved differently—and probably much more intrusively.

I mention the Manchester United air crash because I think I have some understanding of how the whole of Liverpool felt and still feels affected personally by the tragedy of Hillsborough—qualitatively quite differently from the public more widely. I say “feels” in the present tense because the tragedy is not just a past event. Of course, it never could be for the families of those killed or injured, or for those who were there, but the current sense of insult and outrage for the whole city and all right-thinking citizens who care about the reputation of their public services is something that is not in the past.

Tribute has rightly been paid to the right reverend Prelate the Bishop of Liverpool—I am embarrassed to be speaking before him—not just for the report but for the whole process. That the panel made contact with at least one member of each bereaved family says so much about how it approached its task. Again, tribute is rightly paid to the families and survivors whose grit, determination and dignity were recognised by the panel and the public. The panel’s report is powerful, telling and very shocking. I was pulled up short by its reference to,

“a narrative of hooliganism … against a background of times when football was perceived as a national disease”,

and shocked by the,

“confluence of establishment interests”.

I do not need to recite the shocking events related by the report and their quite extraordinary scale.

My other general point is that as a society we seem too often to shy away from saying “sorry”, perhaps because we focus too much on the implications for liability. That seems to have spilled over. We use weasel words like, “apologise if any inconvenience has been caused”. I want to emphasise the importance of apology. From time to time, things will go wrong—maybe badly wrong. Detail is important for those affected and those against whom allegations are made, but as well as investigating what happened, a simple apology can make clear that it is understood that there are real people with real feelings involved.

Like others, I am cautious about fast-track legislation but to delay the Hillsborough investigation even further or not to give the investigators the tools that they identified are required would not be right. I am prepared to trade extended parliamentary scrutiny of the Bill for scrutiny of the event. But having fast-tracked it, there is no excuse for not moving forward with the investigation with speed and determination. I hope that the IPCC will emulate the panel and work across agencies, individuals and issues in a co-ordinated fashion.

I will not ask the Government today when we might see legislation to address the issues that they themselves have identified as outstanding—or, on the other hand, an announcement that they have determined that legislation is not necessary. I refer here to things such as sanctions for serving officers refusing or failing to attend an interview, and the wider issues around sanctions and their application to former officers, including those who are now employed by companies providing contracted-out services, which is a growing issue. These issues are relevant to more than Hillsborough. I understand that 31 officers refused to be interviewed after the death of Mark Duggan. Conversely, there is the issue of the application of a caution before questioning. But as I say, I do not expect the Government to pursue those matters today.

There has been discussion of the term “exceptional circumstances”. It seems appropriate that the IPCC itself should assess exceptionality. The ability to make that assessment goes towards the very independence of the IPCC. It is worth reminding ourselves that the commission has the function—not just an aspiration—enshrined in statute of securing the establishment and maintenance of public confidence in dealing with complaints and possible criminal offences or behaviour.

I support the Bill, as the Home Affairs Select Committee put it,

“for the pursuit of justice for the Hillsborough families and for the future effectiveness of the IPCC”.

Scrap Metal Dealers Bill

Baroness Hamwee Excerpts

Friday 30th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I, too, welcome the Bill. I had come here prepared to hear a number of anecdotes—indeed, horror stories—ranging on a spectrum from the inconvenient to the tragic; we have already heard some of them. It was clear that there was a real problem when the monitor of national concern, “The Archers”, had a storyline about metal theft.

When the issue hit the headlines, I found that every time I went past a group of people with a white van digging up the road, I started to suspect whether they were legitimate. I had to tell myself to take a rather more positive view of society. That was fulfilled by the occasions when members of the public got together to subscribe to replace war memorials, which happened locally to me in Twickenham. I heard of a scrap metal dealer in Sutton, I think it was, who spent £20,000 restoring a memorial for the sake of the reputation of his own trade. These things, as has been said, should never have happened in the first place.

There are a lot of statistics around this. The one which really grabbed my attention was seeing that almost 2,000 offences relating to metal theft occurred each week last year. I am delighted that the noble Baroness has been able to advance the Bill following its steering through the Commons by Richard Ottaway, MP. However, my biggest question is why this hand-out Bill did not come from the Government, who would not have needed to use a great deal of ingenuity to tack this on to their own legislation; it might well have been shoehorned, for instance, into the Crime and Courts Bill. One should not call into question House of Commons procedures, but hand-out Bills seem to be a way of going about things which detracts from the ability of Private Members’ Bills to be used for the large number of purposes for which there is a call. I do not expect the noble Baroness to answer that. Indeed, having once, many years ago, been able to move that “The Bill do now pass”, I certainly do not begrudge her the rosy glow that there will be in a very few weeks’ time. Some of that glow should spill over to the noble Lord, Lord Faulkner. It is clear that legislation is needed, even though the taskforce has actually undertaken tasks and not been a talking shop.

The second biggest puzzle to me, although it is one that one gets used to, is that of Treasury rules, which in this case have precluded the Environment Agency using income from the regulated sector to pay for enforcement work in the unregulated sector. It is to the credit of the legitimate trade that they have not just supported but actively promoted the Bill. It was not until I saw their briefing that I completely made the connection with the recycling industry and the need to use and re-use resources, and all those benefits that will come with this legislation. That will include reputational benefit. Disrepute can spill over. The first time that I went to Italy, the first phrase which was translated for me was “divieto di scarico”: “no tipping”.

I understand the call for extending the regulatory regime to second-hand domestic appliance traders; that is assuming that the appliances are not salvageable and refurbishable. However, I will not be pressing that amendment, nor any amendment. I understand the need to get the Bill on to the statute book. Enforcement has been mentioned. I wonder whether there will be teething problems as the industry becomes used to recording all the information that is required under the Bill. The dealers will require some of the information, such as type, weight and so on, for their own purposes. They also will be required to record identifying marks and “distinguishing features”, and I hope that they are never faced with having to work out how to describe a Barbara Hepworth or a Henry Moore again. They also will have to record,

“information and the scrap metal to which it relates to be readily identified by reference to each other”.

That could cause some challenges but they will have to face them.

I was concerned that I might hear that these provisions would be a burden on local authorities. I checked that their briefing, which I had printed out, was not more than one page. I remembered that my printer had run out of paper at about that time but the briefing was only one page and it was supportive. Local authorities will have new duties, so there will be burdens on them. The new duties will require more than just checking some tick-boxes, especially when they have to ensure that an applicant has demonstrated,

“adequate procedures to ensure that the provisions of”,

what I hope will soon be an Act, have been complied with.

I end with one question for the Minister. Will he tell the House when the Government will bring forward the regulations and guidance that will be needed to ensure that this Bill, when it is an Act, will not be just a piece of paper but a living and enforceable set of arrangements?

Crime and Courts Bill [HL]

Baroness Hamwee Excerpts

Tuesday 27th November 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, I, too, support this amendment. Having been a member of the police authority to which the noble Lord, Lord Blair of Boughton, reported, I confirm that we did not always agree with the views that he put to us or the proposals that he made—but that was a healthy tension; there was a healthy process of governance. When I was chair of that authority, on three separate occasions a proposal was brought to the police authority by the noble Lord, Lord Blair, in his previous incarnation, which was rejected each time, and in the end a modified proposal emerged, which I think was better for London.

That was a relationship of dialogue and openness. What the Government are proposing in the Bill will be very different. There will simply be the director-general, who will report to the Home Secretary, and the Home Secretary will have the powers to set the strategic direction, the general way in which the organisation operates and, of course, have the power to hire and fire. There will be no scrutiny of that, no external validation and no one else sitting round the table—it will be a one-to-one relationship.

One of the fundamental principles of British policing, ever since Sir Robert Peel started the whole process, is that there should not be direct political control of the police service. What we have here is the creation of a potentially incredibly powerful national policing body that will report to a single politician, with no other people sitting around the table when directions and advice are given.

The advantages of my noble friend’s amendment are that it puts a layer between the Home Secretary and the director-general—a governance board—but also that the governance board has several people and interests represented. That does not absolutely prevent political interference because I am sure that the Home Secretary may on occasion phone the director-general and there will be direct dialogue, but it provides a governance structure that is a safeguard against the distortion of operational priorities for political purposes.

The noble Lord, Lord Blair, referred to the difficulties that he might have faced in respect of cash for honours. At the time of that investigation, there was a Labour chair of the police authority—it was not me; that was after my time, although I was still on the police authority—and I know that that Labour chair came under considerable political pressure from Labour Party colleagues about that investigation. Quite properly, he did not intervene on those matters; indeed, he defended the operational decisions of the police. But even had he been minded not to resist that political pressure, he had around him 22 other members of the police authority calling him to account and saying, “Actually, this must be allowed to run its course, right or wrong”. Here, there will just be the Home Secretary relating to the director-general in private, with no one else around the table able to say, “Is this appropriate or not?”.

It is a profoundly dangerous structure. I am sure it is being done for the best of all possible reasons and we will be told how efficient it is. But I have yet to hear anyone say that the SOCA board has been a waste of time, that it has not added value or that it has not improved the governance of the Serious Organised Crime Agency—none of those points has been put.

Instead, we are offered this direct-line relationship between the director-general and the Home Secretary. It is extremely dangerous. Even if the current Home Secretary and her successors have no intention of ever crossing that line and trying to intervene in the operational decision-making of the director-general, they will be open to the allegation that that is precisely what they have done. That weakens the position both of the director-general and of Ministers. For that reason I believe that the Bill’s proposals are profoundly dangerous, and I support my noble friend’s amendments.

[Baroness Hamwee]

My Lords, my noble friend Lord Marks of Henley-on-Thames and I have Amendment 3 in this group. I am not sure whether the noble Lord, Lord Blair, was looking at me—I believe he was—when he referred to some people in this Chamber having been members of a police authority at the relevant time. I was not a member, but I questioned him in public, carrying out a role that is not unrelated to the subject of this amendment, which is getting information into the public domain—a hugely important role that someone needs to carry out. I am not sure who that someone might be in this structure.

I am aware that the Government have designed an arrangement under which the director-general is accountable to the Secretary of State, who is in turn accountable to Parliament. The Minister, the noble Lord, Lord Henley, in response to my amendment at the previous stage, told me that a supervisory board, which was how I described it, would muddy the waters. I had taken that proposal for a supervisory board from the arrangements that the Department for Communities and Local Government had in place, as I was easily able to access its arrangements. I said then that I was not seeking to change the architecture of the Bill.

I do not propose a governing board, and I do not go as far as the noble Baroness. However, because of the concern not to change the architecture, I have amended my own amendment to include the words, “Subject to Part 1”. That deals with the respective roles of the Secretary of State and the director-general. I tabled my amendment before seeing the outline framework document, which we are told will cover internal governance. Reading Hansard following Committee, I thought that perhaps “supervision” was regarded at any rate as an indelicate term for the relationship, although I felt at the time that the Government were a little oversensitive to my amendment.

However, I will be even blunter and say that as I read the paragraph in the outline framework document, the word that comes to mind is “cosy”. It might be much less cosy if we knew more from this document about what the governance arrangements would consist of. We are to have a management board, which comes under the heading of “Internal Governance”—it is almost the whole of that paragraph. I do not regard management as being the same as governance. Neither do I regard governance as being the same as administration, although that is the umbrella word used for governance in Schedule 2. It is the term used to introduce the concept of governance.

I have used terms including “strategic and corporate leadership” and “advice” in my amendment. If the management board that we are to expect is not to provide strategic and corporate leadership and advice, what is it going to do? Perhaps the Minister can help us today by fleshing this out a little more.

The framework does not tell us what it will do, and that is clearly important. It says only that there will be a description of the role of the board. Although, as I said, my amendment does not go as far as Amendment 1, the points made hitherto raised extremely important issues about governance in the public and political sector. I ask one further question. I do not want to pre-empt the noble Lord, Lord Condon, because it was his question at the previous stage, but will the board include stakeholders? We know that there are to be some ex-officio members and non-executive members. Again, the House would be interested to know who it is anticipated will fulfil those roles.

--- Later in debate ---

[Lord Rosser]

My Lords, this amendment would require pre-appointment scrutiny of the director-general by the appropriate parliamentary Select Committee, presumably the Home Affairs Committee.

As we understand it, the Government consider pre-appointment hearings to be best practice for major public appointments. The coalition agreement contains a specific commitment to,

“strengthen the powers of Select Committees to scrutinise major public appointments”,

as part of improving government transparency. Yet the Government have not considered this approach relevant for the office of director-general of the National Crime Agency, a role that is to be much more powerful than the chief executive of the Serious Organised Crime Agency, with the NCA’s increased responsibilities and the absence of any governance structure, as we have just debated.

In Committee, the Government said:

“We accept that there is a place for departmental Select Committees to undertake pre-appointment hearings for certain key public appointments but we do not believe that this is one of them”.—[Official Report, 18/6/12; col. 1597.]

The Government argued that pre-appointment scrutiny by the relevant Select Committee was not justified because the Home Secretary was accountable for public protection and the progress made by the National Crime Agency. Yet the occupant of the post of director-general of the NCA will have considerable powers and, in effect, will be the head of the one national crime-fighting agency in the country dealing with serious, high-profile and organised crimes. In addition, the Government are also considering giving the NCA and its director-general responsibilities for counter- terrorism. The occupant of the post of director-general will also have the power to direct chief officers of other police forces throughout England and Wales to carry out specific tasks.

Under Schedule 1, a person need not be an NCA officer before appointment as the director-general. The only requirement is that a,

“person may not be appointed as Director General unless the Secretary of State is satisfied that the person … is capable of effectively exercising operational powers and … is a suitable person to exercise operational powers”.

That is a somewhat subjective judgment, with nothing specific about proven skills or experience. The reputation and credibility of the NCA is going to be determined to a significant degree by the effectiveness and ability of the director-general, who will have responsibilities directly affecting the safety and security of the people of this country and will have operational independence but without the support or protection of a board, unlike the Serious Organised Crime Agency, between the director-general and the Secretary of State to help to ensure that that is the case.

This post is a new one with responsibility for potentially very sensitive issues, including what could be sensitive issues with political implications. The occupant will need to be strong enough to ensure that operational independence from government is a reality and to withstand any pressures to have too cosy a relationship with his or her political masters. To leave the matter solely in the hands of the Secretary of State without any other parliamentary approval being required would not seem the appropriate step in relation to this post, bearing in mind the nature and responsibilities of it. This must surely be one position for which there is a strong case for pre-appointment scrutiny by the relevant parliamentary Select Committee. I beg to move.

[Baroness Hamwee]

My Lords, I have a difficulty with this amendment because it seems to seek not pre-appointment scrutiny, as the noble Lord has described it, but appointment veto. Pre-appointment scrutiny, questioning a proposed candidate but then leaving it to the appointer to take the final decision in the light of that scrutiny is something which, as the House will know, I have advocated in other contexts. For very senior and important positions I think that that is very desirable. However, I do not go so far as wanting to see Select Committees approving appointments such as this. Although the noble Lord’s speech was very persuasive, what he is seeking the House to agree to is something even more than he was arguing for.

[Lord Taylor of Holbeach]

My Lords, I agree with my noble friend that this amendment seeks to make the appointment of the director-general of the NCA subject to the approval of the Home Affairs Select Committee. This is a step up from the amendment tabled by noble Lords in Committee, which provided only for consultation with that committee.

As my noble friend Lord Henley outlined during the Committee stage, the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is right, therefore, that she is responsible for appointing the director-general. Of course, there is a place for departmental Select Committees to approve certain key public appointments, but we do not believe that this is one of them.

In the Government’s June 2012 response to the House of Commons Liaison Committee’s report on public appointments, we indicated that,

“there are some posts where it is appropriate for Parliament to exercise a formal control over appointments”.

However, the response went on to say:

“This is exceptional and where the remit is associated with the functions of Parliament”.

That is not the case with this appointment, as it was not the case with the appointment of the director-general of the Serious Organised Crime Agency. The Home Affairs Select Committee will, of course, have a role in scrutinising the work of the National Crime Agency, in the same way as it has scrutinised the work of SOCA, and I believe it is in this capacity that it can best contribute. Indeed, Keith Bristow gave evidence to the committee as recently as 16 October, and I expect that he will be frequently before that committee to be challenged on how the NCA is performing.

The Government do not agree to Select Committees having an effective veto on a wider range of appointments and for that reason I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Earl Attlee]

My Lords, I am conscious that there are a large number of amendments in this group, but they are all essentially technical and drafting in nature. In a few cases, they respond to points raised in Committee and I will deal with these first.

On the first day of Committee on 18 June, I undertook to consider an amendment tabled by my noble friend Lady Hamwee, which sought to provide for secondments from the NCA into police forces. As your Lordships will be aware, the Bill already contains provision for secondments in the other direction, so that police officers can be seconded to the NCA. On reflection, we agree that this was an omission. Amendment 9 makes the necessary change to ensure a two-way exchange of NCA and police officers.

On that first day of Committee, my noble friend also had a probing amendment designed to test why the Bill provided for compensating only NCA specials for loss of salary as a result of an injury or death on duty. We agree that it would be helpful not to unnecessarily restrict the scope of the scheme. Amendments 10 to 13 therefore remove the limitation in respect of loss of salary. The scheme through which NCA specials would be eligible for compensation will, of course, be subject to set criteria as with all existing schemes for public servants. In reality, the calculations made under such schemes are frequently linked to loss of remuneration, so I do not want to give the impression that the scheme for NCA specials will necessarily adopt a different approach. Nor do I want to limit the scheme so that NCA specials who do not receive a salary elsewhere cannot be adequately compensated. I should add that these amendments will also make it possible for NCA specials to be covered by either the Civil Service injury benefits scheme or another stand-alone scheme to be established by the NCA, as appropriate.

Amendment 26 addresses an issue raised by the noble Lord, Lord Rosser, in Committee. The noble Lord will recall that he drew attention to the fact that there was no requirement for the Secretary of State to consent to a direction by the director-general to the chief constable of the British Transport Police to provide assistance to the National Crime Agency. It was our intention to include this consent requirement—it already applies where a direction is made to one of the 43 territorial forces—and I am grateful to the noble Lord for highlighting this gap in the Bill.

Amendment 35 closes a gap in the independent oversight arrangements. It extends the remit of the Police Ombudsman for Northern Ireland to include complaints and conduct matters arising from the exercise of asset recovery functions by NCA officers in Northern Ireland. The Bill already provides for the remit of the Independent Police Complaints Commission to extend to such matters in England and Wales.

Amendments 39 to 55 extend the power to make schemes for the transfer of staff, property, rights and liabilities. As noble Lords will be aware, the National Policing Improvement Agency is currently being wound down as a prelude to its abolition following the enactment of this Bill. Most of its staff and property will have been transferred to the successor bodies by December of this year, but there may be some residual staff, property, rights and liabilities that fall to be transferred on formal abolition of the NPIA. Schedule 8 already enables schemes to be made to make transfers from the NPIA to the National Crime Agency but, as a precaution, these amendments also enable transfers from the NPIA to the Home Office.

Amendments 52 and 56 make transitional provisions in consequence of the abolition of the Serious Organised Crime Agency and the NPIA. Amendment 52 ensures that corporate liability for any criminal acts—for example, health and safety breaches—committed by SOCA or the NPIA passes to the successor body. It is also critical that in creating the National Crime Agency we do not undermine the operational integrity of things done by SOCA or other precursor bodies. In particular, we need to ensure that operations and investigations started by SOCA can and will continue to be investigated and taken through to conclusion by the National Crime Agency.

Amendment 56 has been drafted so that it captures a wide range of documents, contracts, authorisations and legal proceedings. For example, it is important that search warrants secured by SOCA under the Police and Criminal Evidence Act or authorisations granted by senior SOCA officers under RIPA continue to have force at the point at which the National Crime Agency takes over from SOCA. Amendment 56 also ensures that three statutory instruments made under Part 1 of the Serious Organised Crime and Police Act 2005 continue in force, with the necessary adaptations, when the relevant order-making powers are repealed and replaced by equivalent powers in Part 1 of this Bill. Both measures will, as I have said, ensure a smooth transition from SOCA to the NCA.

The other amendments to Schedule 8 in this group make further consequential amendments to various enactments and subordinate legislation to repeal or replace various statutory references to SOCA. I draw the particular attention of my noble friend Lady Hamwee to Amendment 76, which makes consequential amendments to the Equality Act 2010. My noble friend asked in Committee on 20 June why paragraph 4 of Schedule 4 to the Bill made particular provision for the application of discrimination legislation in Northern Ireland but seemingly not in other parts of the United Kingdom. These amendments to the Equality Act ensure that all NCA officers are protected by the relevant discrimination legislation in each part of the United Kingdom.

Finally, I draw the House’s attention to Amendment 62, which builds on the existing provision in the Bill enabling police officers to retain, in certain prescribed circumstances, their police pension when appointed to posts within the NCA. This amendment extends that provision to include reservists in the Police Service of Northern Ireland so that they are on an equal footing. As I indicated at the start, these amendments cover a lot of ground but I trust that your Lordships will agree that they are necessary changes to refine and build on the provisions of the Bill and to ensure a smooth transition from SOCA to the National Crime Agency. I beg to move.

[Baroness Hamwee]

My Lords, my heart sank when I saw the enormous number of government amendments to the Bill. It lifted quite a lot when I realised that the first amendment, on secondment, and the next, on compensation for specials, were in response to points that I made at the previous stage. Then to bookend it, as it were, was the amendment to the Equality Act to which the noble Earl has just referred. I am grateful to the Government for taking those points on board.

I have two amendments to the government amendments, both of which are quite small points. They both refer to Amendment 56. The first would take out proposed new sub-paragraph (7), which provides for determination by the Secretary of State as to the two circumstances set out. I hope that the Minister is aware that my question is on whether the determination should be a matter for the court or the employment tribunal, which is likely to be the relevant tribunal. It occurs to me that the Home Secretary could be a party to the proceedings in question and it seems to deserve a little explanation as to it always being proper for the Secretary of State to determine these questions.

The second amendment is to the provision in proposed new sub-paragraph (12)(b) that deals with,

“the reference to the assumption of a third party function”,

which is limited to the three functions listed. I should be grateful if the Minister can confirm that these are the only cases. My reason for asking is that proposed new sub-paragraph (12)(a) uses the term “includes” and (12)(b) uses the term “is”. Is there no assumption of a function unless there is also a transfer of staff? That is what I read into this, but I may well be wrong.

[Baroness Smith of Basildon]

My Lords, I confess that when I see a list of almost 50 government amendments that the Minister describes as technical and drafting, I realise that I am becoming quite cynical as I get older. By and large they are technical and drafting amendments, but I have some questions, some of which the noble Earl has sought to address in his comments. However, if I may, I will press him on a couple of points for an explanation.

On government Amendments 10 to 12, compensation of NCA specials is addressed. The amendments take out “NCA” with regard to compensation. The Minister said that that is because they may be compensated from elsewhere. I am not quite clear where the elsewhere would be that would allow for expenses and compensation to NCA specials. Does he envisage a greater role for the private sector to pay them, for example? I do not know, but is he able to elaborate further? That was clearly not envisaged during Committee or when the Bill was first drafted. I am unclear why the Government have felt the need to change it. Who else will compensate or pay the expenses of NCA specials?

I also thank the Government for dealing with the comment made by my noble friend Lord Rosser about clarifying the position on which Secretary of State would apply regarding transport. That was helpful. As regards the transitional provision, I am sorry that this was not in a separate group of amendments because that might have been helpful to your Lordships’ House. We discussed this in some detail during earlier stages of the Bill and I have asked Parliamentary Questions about the transitional costs and how the transition should be arranged. The concept of the transition from the predecessor organisations to the NCA is extremely important.

--- Later in debate ---

Moved by

[Baroness Hamwee]

15: Clause 4, page 3, line 39, at end insert—
“(3A) In the event that the Secretary of State determines any variation in strategic priorities for the NCA to take effect before the start of the next financial year, she shall lay a report before Parliament setting them out.”

--- Later in debate ---

[Baroness Hamwee]

Clause 4, which has the heading “Operations”, tells us that the director-general must have regard to strategic priorities, the annual plan and the framework document—all matters to which your Lordships have referred—and that before the beginning of each financial year the director-general must issue an annual plan setting out how he intends the functions to be exercised during the year. The importance of clarity about strategic priorities and other matters has been raised very clearly at every stage of the Bill by all sides, including by Ministers. The annual plan—a prospective document, if I can put it in that way—will tell us what is planned for the following financial year.

My amendment—it is a small amendment, following a matter which I raised at the previous stage—is intended to ask the Minister to give the House an assurance about how strategic priorities which have changed during the year will be taken into account. The amendment simply proposes that if the Secretary of State determines any variation in the strategic priorities, she will lay a report before Parliament setting out the variation. I beg to move.

[Lord Rosser]

My Lords, we have two amendments in this group. They would remove the requirement for the director-general to seek the consent of the Secretary of State and others to the annual plan, as currently provided for in the Bill. Instead, the requirement would be on the director-general to consult so far as concerns the Secretary of State and others. Although we obviously agree that the Secretary of State should retain ultimate strategic oversight of the National Crime Agency and determine the strategic priorities, it is vital to preserve the National Crime Agency’s operational independence from the Government. We understood that that is the Government’s intention, too.

Yet while the director-general is to set the annual plan for the operation of the National Crime Agency’s functions in pursuit of the laid-down strategic priorities, he or she will still be obliged to seek the consent of the Home Secretary before publication of this operational document. Such consent is not currently required, for example, by the Serious Organised Crime Agency. The director-general will be under a statutory obligation to ensure that the annual plan meets the strategic priorities determined by the Secretary of State. Bearing that in mind, why is it necessary for the director-general also to have the consent of the Home Secretary for what is surely an operational document?

That leaves the way open for interference by a Secretary of State in operational matters if their consent has to be obtained before publication of that annual plan, which sets out how the director-general intends to deliver the laid-down strategic priorities. I am speaking to my amendments on the basis of those points. I hope that the Minister will be able to address the specific points that I have made and explain why it is felt necessary that the Secretary of State should have to consent to the annual plan rather than be consulted on it by the director-general.

[Earl Attlee]

My Lords, I am grateful to noble Lords for explaining their amendments. Clause 4 already requires that the agency’s annual plan should be published and must include the strategic priorities determined by the Home Secretary. My noble friend’s Amendment 15 proposes that, in addition to the normal publication of the strategic priorities in the annual plan, the Home Secretary should lay a report before Parliament if she should determine any variation in the NCA’s strategic priorities out of sync with the annual plan cycle. I understand that my noble friend is rightly concerned to ensure that Parliament is kept abreast of changes to the strategic priorities. However, in practice, I do not think that there is any need for this amendment. The strategic priorities are not going to be changed every other month. They will be informed by weighty assessment of the threats from serious and organised crime.

The timetable for that assessment process will be in sync with the development of the annual plan, which will itself inform the agency’s annual financial planning cycle determining how it allocates resources. The annual plan really is the right place for the strategic priorities to sit. Indeed, it is highly likely that in some years, as has been the case for SOCA, the strategic priorities will remain the same because the strategic threat picture remains consistent. The only reason for changing the priorities mid-year would be if there was a seismic shift in the organised crime landscape, such as the emergence of a totally new threat. If that were to happen, Parliament would undoubtedly already be well aware of it, and in any case the Home Secretary would, of course, notify Parliament, whether through an Oral or Written Statement or by some other established mechanism. The Bill also provides for the agency’s annual report to be laid before Parliament and for such reports to include an assessment of the extent to which the annual plan for the year has been carried out. Parliament will be well informed about the strategic priorities and how the agency is delivering against them.

I turn now to Amendments 16 and 17, spoken to by the noble Lord, Lord Rosser. I understand the concerns expressed in Committee by the noble Baroness, Lady Smith, that the provision requiring consent to the annual plan before issuing it invites potential political interference in the operational independence of the agency. Let me first be clear on the purpose of the annual plan. It is intended as the means by which the director-general sets out how he intends to deliver the NCA’s objectives for the coming year, chief among which will be the Home Secretary’s strategic priorities. Using his operational expertise and an informed picture of the threat, he crafts a high-level plan for the National Crime Agency’s operational response to serious and organised crime over the coming year. He still, of course, has independent operational responsibility for decisions throughout the year about which individual operations to mount and how they should be conducted, as is clearly set out in Clause 4. Equally, it is crucial that he gains agreement to the annual plan from those to whom he is ultimately accountable at the national level for delivery against the strategic priorities.

Let me seek to explain why. First, let us consider the consent of the Home Secretary. I do not at all see this as political interference, as the noble Lord has suggested, but as a common-sense approach to guarantee consistency between what the Home Secretary needs the National Crime Agency to deliver, as set out in the strategic priorities, and what the director-general intends to deliver operationally in any given year. How can my right honourable friend be held truly accountable to Parliament for the agency’s performance in the fight against serious and organised crime if she has not publicly agreed the high-level direction set for the agency by the director-general in the annual plan?

Secondly, but no less importantly, let us consider the consent of the devolved Administrations. They will play an important role in shaping the fight against organised crime through consultation on the strategic priorities, ensuring that the priorities of the devolved Administrations in Scotland and Northern Ireland feed into the overall strategic priorities that the Home Secretary will set. Given their accountability for the fight against organised crime in Scotland and Northern Ireland, it therefore follows that the devolved Administrations should rightly have a role in agreeing those aspects of the annual plan which affect Scotland and Northern Ireland, not least to ensure that the agency’s operational priorities set out in the annual plan are consistent with the serious and organised crime priorities there.

I would go so far as to say that I am a little surprised that the noble Lord would want to water down this clear and important safeguard for the devolved Administrations. We will come to discuss Northern Ireland later, but I fully expect that the Northern Ireland Department of Justice will be stressing the important safeguards that we have included in the Bill to respect the devolution settlement in discussions in Northern Ireland, with this provision being a case in point. I know how strongly the noble Lord feels about securing arrangements in Northern Ireland that meet the needs of Northern Ireland but it rather seems that this amendment undermines that end.

In summary, given the clear mechanisms already in the Bill to ensure that the strategic priorities are published regularly, I am not persuaded that it is necessary to have a further procedure for laying the strategic priorities before Parliament “in-year”. Similarly, I am clear that the requirement of consent is an important level of assurance—for the Home Secretary, for the devolved Administrations, for Parliament and for the public—that the agency is heading in the right direction to spearhead the national response to serious and organised crime. I hope, therefore, that noble Lords will not press their amendments at the appropriate point.

[Baroness Hamwee]

My Lords, the Minister assures us that the activities will be in sync. Circumstances indeed might change. We all know about events—sometimes with a capital E. He takes the view that there would need to be a change only if there were a seismic shift in the security threat. I appreciate that, if that were the case, everyone would know that there had been a seismic shift. However, we are talking here about priorities. Prioritising means putting things in the order in which you have regard to them, or spend money on them, or whatever, and there could be a change in priorities in much less dramatic circumstances than my noble friend describes.

I shall not pursue the issue now. I hope, of course, that we never see a seismic shift. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

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Moved by

[Baroness Hamwee]

18: Schedule 2, page 40, line 33, leave out second “functions” and insert “his response to consultation or to his consent”

[Baroness Hamwee]

My Lords, Amendment 18 brings us to the issue of the framework document in Schedule 2. I am afraid that I am still having difficulty in following paragraph 4 of that schedule. Paragraph 4(1) tells us that the Secretary of State must consult the director-general in preparing a framework document and obtain his consent before issuing it. Paragraph 4(2) then states that the director-general’s duty to have regard to the annual plan does not apply in relation to the two functions I have just spelled out. My amendment refers to the functions of responding to the consultation and giving consent, the ones in question, and I ask the Minister whether it spells out what is provided—I am sure that he will tell me that it is not necessary—or whether the paragraph means something else. Perhaps the Minister will say also whether the annual plan or the framework document takes precedence in this context. I beg to move.

[Baroness Smith of Basildon]

My Lords, I shall speak to Amendments 19 and 20. I did not wish to raise this issue again—I apologise to the Minister for doing so—but I had hoped that the Government would have come forward with something a little more substantial than they have done to date. I am slightly confused and disappointed that not all noble Lords had been able to get access to the outline framework document earlier in the debate. I know the Minister intended that they should have access and it was disappointing that the document was not available.

Schedule 2 to the Bill stresses the importance of the framework document and outlines what it does and how it does it. The framework document explains almost everything about the National Crime Agency. It is a far-reaching document, is hugely significant and includes provisions for NCA finance and governance. The goalposts have been moved on more than one occasion since we first discussed this issue. We understood originally that we would have the document by this stage, but then it became only the outline. We are now at Report and all we have is the outline, which is inadequate for scrutiny. The fact that we have so little information about it may have had an impact on the previous decision in this House not to include counterterrorism within the National Crime Agency.

I looked through the document to see how much of an outline it really is. I have already referred to the issues around the NCA management board. The outline framework document basically lists what provisions will be in the framework document, including: that the director-general will establish and chair a management board; a description of the board; the composition of the board; and that further committees may be established by the board which must include audit and risk and nominations and governance. As for working in partnership, the document contains only a bullet point about the NCA’s use of immigration or customs facilities. As for scrutiny, transparency and information, there are three bullet points: the first is on scrutiny; the second on the duty to publish information in accordance with publication arrangements, which will be set out in an annexe and which we also have not seen; and the third is on public information handling and complaints.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I think the frustration over the outline framework document has arisen from the fact that, until discovering by accident only a matter of hours ago that the outline does exist, some of us had assumed that it did not. Not having had the letter, some noble Lords assumed that that was the case. However, these things can of course go wrong from time to time. One understands that. The other frustration is that the framework document, as the Minister has just confirmed, deals with ways in which the NCA is to operate. The outline is still more of a “what” than a “how”. It did make me think that it was worth your Lordships pursuing some of these points. The six principles of CEOP were spoken to with some passion by noble Lords at the previous stage, and they have made their way into this outline. I think the Minister can assume that some of us will be encouraged by that on other issues in the future.

As regards my own amendment, I am grateful for the explanation, which I did follow. It is a matter not only of my inability to bowl googlies—which I have never been able to do, and will never be able to do —but also of my lack of understanding beforehand. I thank my noble friend for the explanation and I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

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Moved by

[Baroness Hamwee]

28: Schedule 3, page 50, line 14, leave out from “agreement,” to end of line 15 and insert “by determination in accordance with arrangements provided by the framework document”

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[Baroness Hamwee]

My Lords, when one hears the Lord Chairman remind the House of the point of pre-emption, one feels one should start the speech with, “I wish”.

This group of amendments deals with payments between the NCA and police forces in the event of tasking, and Amendment 28 is about how the payment is determined. Paragraph 29(1) provides that if the parties cannot agree on the amount to be paid then it is a matter for the Secretary of State to determine. I had a similar amendment at the last stage, and the noble Earl, responding for the Government, explained that determination was not on a case-by-case basis but referred to overall principle. I still have some difficulty in reading the paragraph that way, because it refers to the “amount”. If it referred to the absence of agreement as to the formula or the calculation, I would understand it.

The outline of the framework document deals with the question of tasking. The basis for the determination should be in the framework document. That is what my amendment would provide. Fees and charges are mentioned, but those seem to be a different issue. At the moment, and of course continuing, we will have a position where there is mutual aid between police forces. As I understand it, payment for mutual aid is a matter that is in the public domain—I believe that ACPO deals with it. There should be a similar approach, and the schedule should not allow for case-by-case determination, even if that is not what is envisaged, because as it is drafted it would be allowed for. I beg to move.

[Lord Rosser]

My Lords, we have two amendments in this group, and I suspect that the purpose of our amendments is not dissimilar to the intention behind the amendment moved by the noble Baroness, Lady Hamwee.

The Bill appears to provide for the Secretary of State to act as final arbiter over disputes arising between, for example, the National Crime Agency and police forces over compensation for resources provided under voluntary or directed assistance. It is not appropriate for the Secretary of State to have such a role, because it could introduce a potential conflict of interest. The Secretary of State is responsible for the National Crime Agency budget, but police force budgets will be under the control of the police and crime commissioner, so one could argue that the Secretary of State has an interest in the outcome of a decision over who should be paying what in any compensation that is required.

Our amendments provide for an independent advisory panel, rather than the Secretary of State, to arbitrate payments, which is not going down quite the same road as the amendment that has been moved by the noble Baroness, Lady Hamwee. Certainly, the objective behind our amendment—perhaps the Minister will have an alternative solution—is to say that the Secretary of State, having responsibility for the National Crime Agency budget, could be deemed to be an interested party. Therefore, the Secretary of State should not act as final arbiter over disputes, but some other means should be used to make that decision. Some other body, organisation, procedure or process should be used to resolve disputes that arise, rather than it being in the hands of the Secretary of State, for the reasons that I have mentioned.

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In short, this provision in paragraph 29 of Schedule 3 offers the most appropriate and streamlined mechanism for settling any disputes in respect of cross-charging. It has not given rise to any difficulties in relation to SOCA, and accordingly I ask my noble friend and the noble Lord, Lord Rosser, to withdraw their amendments.

[Baroness Hamwee]

My Lords, perhaps I can use this moment to ask if—possibly not immediately, but shortly—the Whips could clarify how far we will go on this evening. I was told that we would finish after disposing of Amendment 78, but the Annunciator is talking about Amendment 107A, which may cause some of us a little panic.

[Earl Attlee]

It would cause me a heart attack. Let us wait for some clarity to arrive.

[Baroness Hamwee]

I thank the Minister. Perhaps we should calm down, or even, “Calm down, dear”.

I do not suggest, with my amendment, that there should not be a backstop if the parties cannot reach agreement, but it is better to have a formula. My amendment does not specify the detail of the arrangement because I was doing the Government the courtesy of allowing them to put that into the framework document when they come up with it. I have heard what the noble Earl has said and beg leave to withdraw my amendment.

Amendment 28 withdrawn.

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Moved by

[Baroness Hamwee]

37: Schedule 7, page 70, line 28, leave out “This Part of”

[Baroness Hamwee]

My Lords, I will speak also to Amendment 38. In Committee I sought to understand the relationship between Schedules 6 and 7. Paragraph 1 of Schedule 7 provides that,

“This Part of this Act”—

I will come back to those words in a moment—

“does not authorise or require”,

disclosures which would be prohibited by the Data Protection Act or Part I of the Regulation of Investigatory Powers Act, which are importance provisions. Among other things, I did not then, and still do not quite, understand whether the regulations that may be made under paragraph 5 of Schedule 6 could override primary legislation. These amendments are in response to the noble Earl’s assurances that neither of these Acts is affected. However, we still have a provision in paragraph 5(5) of Schedule 6 that the Secretary of State can make regulations regarding the disclosure of information which, under paragraph 5(6), may,

“modify any provision of Schedule 7 in its application to such a disclosure, or … disapply any such provision from such a disclosure”.

I would be grateful if, in the light of the permissive arrangement under Schedule 6, the Minister could confirm that it does not mean what it seems to when we get to paragraph 1 of Schedule 7.

My second question concerns,

“This Part of this Act”.

Can the Minister confirm that that means Part 1 of the Bill rather than Part 1 of this schedule? I think it is that way round. Given that “This Part” could refer to part of the schedule or the main part of the Bill, it would be helpful to have it confirmed. I would also like to give my thanks to those who have corrected the annunciator. My blood pressure and that of the noble Earl have come down considerably over the past five minutes as a result. We will see how many noble Lords get caught out by how swiftly we are going to move from Amendment 38 to Amendment 78.

[Earl Attlee]

My Lords, I thank my noble friend Lady Hamwee for explaining her amendments. I am sure that she would be pleased to know that we both want the same thing, namely that nothing in Part 1 of the Bill enables the National Crime Agency or others to override or modify the application of the Data Protection Act 1998 or the Regulation of Investigatory Powers Act 2000 in relation to the disclosure of information.

The aim of the restrictions on disclosure set out in Schedule 7 is to ensure that any onward disclosures by NCA officers will, among other things, be subject to the existing safeguards in data protection legislation. The current wording does not provide any powers to amend existing primary legislation and therefore inserting “modify” is unnecessary. Without the provision in paragraph 1 of Schedule 7, the information gateways provided for in Clause 7 could be read as being capable of overriding the provisions of the Data Protection Act and RIPA.

There is no need to extend these statutory restrictions to cover the whole Bill as we are dealing here only with the information gateways available to the National Crime Agency and its law enforcement partners, as provided for in Part 1 of the Bill. My noble friend is correct that we are referring to Part 1 of the Bill. I hope my noble friend is reassured that paragraph 1 of Schedule 7 is necessary to prevent any overriding of the important safeguards in data protection legislation and, on that basis, would agree to withdraw her amendments.

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[Baroness Hamwee]

My Lords, I thank the noble Earl for that. I still have a feeling that one should issue Hansard as an annexe to the Act when it is published to explain that, but I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

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Moved by

[Baroness Hamwee]

71: Schedule 8, page 90, line 39, after “Agency” insert “but only to the extent of information relating directly to the crime-reduction function or to the criminal intelligence function as defined in section 1”

[Baroness Hamwee]

My Lords, I shall speak also to Amendment 72. These amendments take us back to freedom of information. At the previous stage, I sought to include the National Crime Agency in the freedom of information regime, fully acknowledging that the exemptions under the Freedom of Information Act 2000 would quite often have to be called into play. At that time, the Minister acknowledged that exemptions would apply, but reminded me—or reminded the House, as I was aware of it—that SOCA and CEOP are not within the FOI arrangements. The NCA is about more than the constituent bodies. It is more than the sum of its parts, one might say. Police forces are within the freedom of information scheme, and it seems to me that the NCA will need to consider many of the issues considered by police forces, such as recruitment policies and budgets. Those issues can very often be dealt with in public and be subject to freedom of information requests, with answers being given without jeopardising national security.

The Minister was concerned that the operational effectiveness of the NCA would be endangered and said that the confidence of the NCA’s partners would be threatened if the NCA were subject to freedom of information. I thought that that latter argument was weak. The NCA’s partners should be confident that the NCA will use the exemptions available to it. Freedom of information arrangements are important. I am well aware that in practice it is not always comfortable when one is on the receiving end of freedom of information requests. That does not mean that the regime should be chipped away at by organisations not being subject to it. The Minister also said that organised criminals are very sophisticated. Is it a counsel of despair to think that they are more sophisticated than the NCA and our law enforcement agencies? That amounts to a failure to acknowledge the proper balance in an advanced and open democracy.

My amendments take a slightly different approach to dealing with the exemption by describing it as,

“only to the extent of information relating directly to the crime-reduction function or to the criminal intelligence function”.

Both those terms are defined earlier in the Bill. This is a matter of some principle, and I look forward to the Minister’s defence of the Bill’s position. I beg to move.

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[Lord Taylor of Holbeach]

My Lords, the Government take their own view on issues, although we, of course, respect the Joint Committee and all its works. I am very grateful to my noble friend for raising this issue. She cares greatly about the responsibility of government to provide transparency and the Freedom of Information Act is just one thing that can be used to provide transparency.

As the noble Lord, Lord Rosser, said, my noble friend Lord Henley dealt with this at the Committee stage. We are committed to ensuring that the National Crime Agency will be open and transparent to the public which it has been created to protect. That commitment is clearly set out in Clause 6. The intention is that this organisation will be fundamentally more public-facing than its predecessor organisations and open in its relationships with the public, partners, the media and, of course, Parliament. Indeed, in the framework document, under the second bullet point in item 10, noble Lords will note a duty to publish information in accordance with publication arrangements that will be set out in a future annexe. It is really designed to indicate in the framework document itself the importance that the Government attach to this. We want the public to be able to access as wide a range of information about the NCA as possible provided it does not compromise in any way the NCA’s effectiveness in fighting crime. We expect that this will include information on what the NCA is doing to tackle serious and organised crime, what it is spending and how well it is doing—so performance indicators as well.

I want to reassure noble Lords that the decision to exempt the NCA from the FOI Act was not taken lightly. We considered this carefully, having particular regard to the fact that some of the precursor functions transferring from the NCA have been undertaken by bodies that are currently subject to the FOI Act. That has been pointed out by both noble Lords. The agency’s largest precursor, the Serious Organised Crime Agency, including CEOP, has not been subject to the FOI Act since its inception. However, we have analysed the FOI requests made to other precursor bodies, such as the NPIA, and we are confident that the agency can balance being FOI-exempt with proactive publication to ensure that there is no loss of public transparency as a result of the approach being taken in the Bill.

I recognise the efforts made in this amendment to apply a partial application of the FOI Act. However, we remain of the view that a blanket exemption is the most appropriate arrangement, not for administrative convenience but to ensure full effectiveness and as a critical operational safeguard. We are talking about a fully integrated, crime-fighting, operational agency that will be charged with spearheading the fight against some of the most dangerous and pernicious criminals and crime groups that impact our communities. Some information about the discharge of those functions will be fit for release into the public domain; some will not. The distinction does not come from an arbitrary line drawn in legislation that seeks to differentiate some of the NCA’s functions from others; it comes from a deep understanding of the types of information that no one would want to fall into the wrong hands. I firmly believe that the National Crime Agency will be able to make this distinction.

I recognise the argument that the scope of the exemptions provided for in the FOI Act could potentially apply to much of the material that the National Crime Agency is seeking to protect. However, as my noble friend Lord Henley said, this is not the only consideration. First, the National Crime Agency will depend on the absolute confidence of its partners to provide the backbone of the agency’s superior national intelligence picture. If those partners believe that sensitive information held by the agency could be subject to public release, they are likely to be more inhibited about sharing that information with the NCA in the first place. Chief among these concerned partners are those in the private sector and overseas—partners who are perhaps not as familiar with FOI as we are.

Secondly, intelligence shows that organised criminals are increasingly sophisticated in their methods and seek to exploit any avenues possible to further their criminal activities. The FOI Act offers them an opportunity to acquire information about the NCA’s operational tactics, to disrupt its operations and to evade detection. While the exemptions might apply to some of this information, the risk is that it might not always be the case.

In short, we remain resolute in our decision to maintain the NCA’s exemption from the FOI Act. To do otherwise would jeopardise the NCA’s operational effectiveness and ultimately result in lower levels of protection for the public. While partial application of the FOI Act might, at face value, look attractive, it is simply not a viable option for an integrated crime-fighting agency. In the mean time, the whole purpose of the duty to publish will be to provide the public with as much information about the organisation’s activities as possible. For these reasons, I urge my noble friend to withdraw her amendment.

[Baroness Hamwee]

My Lords, I opened the debate on these amendments by saying that some of our colleagues might be surprised by how quickly the next amendments are dealt with. I could, of course, deal with that, giving them warning by dividing the House, but that may not be possible and I think I see signs that the Whips have the matter in hand. I would say to the noble Lord, Lord Rosser, that what is worse than being illogical—to my mind and, I suspect, to his as well—is to betray one’s values.

I anticipated most of the Minister’s arguments, not surprisingly because they largely repeated, and were consistent with, what we were told at the previous stage. Noble Lords have been directed to the duties under Clause 6, but the problem with reports such as this that are in the hands of the organisation which is the subject of one’s concern, is that that organisation itself determines the content and the depth of information and the level of detail. The use of freedom of information requests puts the impetus in the hands of the person making the request. There is quite a different balance in this. The provisions in the Bill are to be subject to whatever is in the framework document and what the annexe to the framework document has to say will be extremely important. I look forward to seeing what that may be.

I remain disappointed, but the Minister probably anticipated that. He will not be surprised by my last remark, which is that the freedom of information regime should not be optional. Having made that point, I beg leave to withdraw the amendment.

Amendment 71 withdrawn.

Justice and Security Bill [HL]

Baroness Hamwee Excerpts

Monday 19th November 2012 Lords Chamber

Moved by

[Baroness Hamwee]

8: Schedule 1, page 13, line 31, at end insert “and to paragraphs (Pre-appointment hearings) and (Access to meetings)”

[Baroness Hamwee]

My Lords, my noble friend Lord Marks of Henley-on-Thames added his name to this amendment. Grouped with it are Amendments 9, 10, 11 and 12. At the previous stage of the Bill, we debated the procedure of the ISC. I acknowledge that it can determine its own procedure, subject to any specific provisions in the Bill. That is why my first amendment makes specific mention of two of the proposals in this group of amendments. The group is broadly about the interface with the public or, at any rate, about the face presented to the public and, to pick up a term used by the noble Lord, Lord King of Bridgwater, earlier this afternoon, the credibility of the committee. Given its remit, there is bound not to be that much of an interface, so it is even more important that means are sought to relate it to the public, where that is proper, in order to create trust and confidence. I am thinking about the direct relationship—putting the agencies into the public domain, so far as that is possible—and of the ISC itself, so that it is able to do its job properly.

Amendment 9, the first substantive amendment, is about pre-appointment hearings or, as they are also known, confirmatory hearings. I am flattered that the noble Baroness, Lady Smith of Basildon, has picked up the amendment I had at the previous stage word for word. In fact, after that stage, I decided that one word could be improved on. It is not necessarily wrong, but it could be bettered. It is to change the word “may” in what the ISC can do to “shall”. The public increasingly expect more to be known about senior public sector figures—what sort of people they are, what their aspirations are, how they see the job and how they expect to spend the budget—and to be able to observe their body language on occasions. I say that having watched, on screen rather than in person, a confirmatory hearing in another part of government. I was fascinated by the way that after only a very few minutes of questioning, the person being questioned relaxed so much that the way he was sitting, the way he slumped in his chair, crossed his legs and generally looked far too much at ease for the occasion told me an awful lot about his approach to his relationship with the people who were questioning him. I do not know whether they read it in the same way.

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[Lord Foulkes of Cumnock]

My Lords, is the noble Baroness aware that every year there is a debate, usually in the Moses Room, about the annual report? Has she been able to attend any of those?

[Baroness Hamwee]

My Lords, no, but I am aware of that. I am seeking to push the boundaries a little further. The noble Lord tuts quietly that I have not been there. Last year, I read the Hansard report when I began to take an interest in these matters. I sense a feeling that this would enhance the reputation of the Intelligence and Security Committee. Amendment 11 would be a broader arrangement than could take place in a debate in either House, whatever its venue, given that it provides for giving evidence before the ISC in a session open to the public. Therefore, it is more extensive.

I am very much alive to the danger to which some noble Lords pointed that questions asked in public can be so feeble, as can the answers, that it can have the opposite effect of just appearing to be completely stage managed and uninformative. I believe that we should give the ISC the scope to do the job that it is doing, and is capable of doing, in private to take it as far as it can go.

I have tabled Amendment 12 about access to meetings and I am aware that I take a different view on this from a number of other noble Lords. That is not because I want all or very many meetings with the ISC to be held in public. My point is that it should direct its mind to the issue. At the previous stage, from those with experience of the current arrangements, we heard ideas of what might be considered in public. Those ideas included recruitment to the agencies, issues of diversity, language, and recruitment from all sections of society. I would add to that retention, which generally goes along with recruitment, and a number of human resources matters, such as sickness rates and diversity at different levels of seniority. The noble Lord, Lord Butler of Brockwell, told us that today the ISC had been considering certain of these amendments. It might have been quite interesting to hear some of that debate in public. As regards financial matters, the cost of the GCHQ facility was mentioned.

All those issues quite properly can be debated, with care that the mark into dangerous territory is not overstepped. I have confidence that that would be possible and that those debating the issues would be very alert to that. However, it also would be proper that issues of that sort—I am sure that there are others—should be heard and dealt with in public to add to the credibility of the committee. I beg to move.

[Lord Butler of Brockwell]

My Lords, commenting on what the noble Baroness, Lady Hamwee, said at the end of her remarks, perhaps I may say that it was not today that the Intelligence and Security Committee considered amendments. The committee has not had the opportunity to consider the amendments she has put down. Therefore, in offering a comment, it will be personal rather than on behalf of the committee.

I have no objection to Amendment 9 because it is a permissive amendment. However, Amendment 11 states:

“The ISC shall each year call the heads of the Agencies and the Secretary of State to give evidence before them in a session open to the public”.

In principle, there is no objection to that. Indeed, the chairman of the Intelligence and Security Committee says that it is the committee’s intention to have a public hearing. The arrangements for that are being considered at the moment. However, one would not want this to be a public hearing that is too staged, which would be worse than useless. I would counsel against passing an amendment which makes it compulsory for the Intelligence and Security Committee to have a public meeting each year. That may well be the outcome but there may be times when the work programme simply is not consistent with it. That is my only cavil against that.

I would not be in favour of Amendment 12, which states that the committee,

“shall conduct its proceedings in public, save when it determines that members of the public shall be excluded”.

There would be so many meetings for which that resolution would have to be moved that it would be a matter of public comment and derision, which would reduce confidence in the ISC rather than increase it.

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[Baroness Hamwee]

My Lords, I do not want to take too long in responding to this. I shall make a couple of comments on the amendments on hearings and access to meetings. On access to meetings, I always envisaged that the committee would be able to take a decision that would cover a number of meetings, and not have the embarrassing situation, on a weekly basis, of the public trooping in and being sent out immediately.

On the annual hearings, it was only when the noble Lord, Lord Foulkes, asked me whether I had attended the debate in the Moses Room that it began to come back into my mind that I had read the previous one in Hansard. However, a debate of a committee is, I think, very different from what is envisaged here and very different from parliamentarians undertaking that sort of debate, important as it is.

The point about the agencies, raised by the noble Lord, Lord Gilbert, was covered. Sub-paragraph (d) in Amendment 9 refers to persons other than the three heads of the services and Clause 2 of the Bill envisages the extension of the work to other parts of government.

Much of this debate has centred on pre-appointment hearings and whether they might be televised. A couple of weeks ago I was sitting reading my Blackberry, which possibly I should not have been doing during a debate, but an email came in which said, “Just seen you on live television”. I thought there was a complaint coming about what I had said. The Commons had gone home so we were on prime time. The email went on to say, “How do you fit into the Hamwee family? I was once very good friends with someone called Hamwee”. One never knows what people will take from what they see.

We have been told that this will become a political exercise and that it should not be political. Throughout the debates on the ISC, I have been hearing that there is huge resistance to it becoming a political and a party-political exercise. I would envisage that continuing with pre-appointment hearings. I would like to hear the ISC debating whether it should have pre-appointment hearings.

I am encouraged by what the Minister has said about discussions continuing on how to make the work more open, but the way it is, is not the way it has to be. I can tell that the mood of the House is not to provide for mandatory requirements, but there is considerable support for a permissive clause. So I shall not move my Amendment 10 but I hope that the noble Baroness will pursue the matter of permissive arrangements which are encompassed in Amendment 9. I beg leave to withdraw Amendment 8.

Amendment 8 withdrawn.

North Wales Abuse Allegations

Baroness Hamwee Excerpts

Tuesday 6th November 2012 Lords Chamber

[Baroness Hamwee]

My Lords, one area which has not been mentioned in the Statement is support for the victims. Justice will be one form of reparation, but can the Minister say anything about any other form of support that will be given to individuals?

Quite separately, following the question about what is meant by inquiring,

“whether the Waterhouse inquiry was properly constituted and did its job”,

can the Minister assure the House that for every inquiry—I am not talking only about police inquiries—there will be consultation as to its terms so that the best, most proper terms are put in place? If the remit is not right then the outcome will tend not to be right. In this case, for instance, the involvement of the Children’s Commissioner in the terms of the inquiry seems quite obvious.

[Lord Taylor of Holbeach]

I thank my noble friend for her questions. Clearly, the victims are at the heart of this inquiry and providing them with the confidence to come forward is one of the most important things that we can do. I hope that we in this House will echo the wishes of the Home Secretary by giving that support.

The terms of reference of inquiries are very important to the outcomes they produce. I am particularly concerned that we make sure that the original inquiry in North Wales, the Waterhouse inquiry, was indeed set up in such a way. The noble Baroness, Lady Smith, asked about that but I did not reply to her. However, my noble friend has given me the opportunity to do so. We must make sure that that inquiry addressed the right issues. We now have an opportunity to revisit the inquiry and to make sure that it was not too restrictive in what it was seeking to do.