Crime and Courts Bill [HL]
Baroness Hamwee Excerpts(11 years, 10 months ago)
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Baroness Hamwee
Baroness Hamwee
My Lords, perhaps I may move Amendment 154ZA. I imagine that the noble Baroness, Lady Meacher, is somewhere on the estate panicking at this moment, but I am happy to move Amendment 154ZA and later she will be able to speak to her own amendment, which we discussed this morning. What I had to say on this group of amendments very much goes to her amendment, which is to leave out the reference to “controlled” drugs.
I do not for a moment condone driving while impaired by drugs—that is what Section 4 of the 1988 Act deals with. I should say that I am speaking for myself. I do not want to put words into the mouth of the noble Baroness, Lady Meacher, but I am apprehensive about legislation which may not be necessary, may not be sufficiently clear, may require technical tools which are not available and may cause more problems than it solves. If my fears are justified I think that the provision does not do justice to the victims of drug-driving and their families.
No doubt the Minister will give us information about the current level of prosecutions for driving under the influence of drugs, the success rate of the prosecutions and the reliability of the testing equipment. Reliability is not the whole of the issue, but is the technology and the equipment adequate? I understand, for instance, that oral swabs to detect drugs are affected by an outdoor setting. I ask this because, of course, errors can lead to unnecessary detentions, to legal challenge and, indeed, to injustice. My amendments largely go to whether the driver’s performance is impaired while unfit to drive through drugs, as Section 4 says—Section 4 is not being repealed—and whether a strict liability offence is appropriate.
There are many very commonly prescribed medicines and over-the-counter medicines which contain patient information in which, in literally small print, there are warnings against driving—I quote from one which I got out of my own bedside drawer—
“if you feel dizzy, tired or sleepy.”
They may refer to dizziness or light-headedness, saying:
“Do not drive if you are affected in any way”.
Some of these warnings are given as part of a warning about the effect if taken alongside other medication or alcohol. This suggests to me at least two problems regarding evidence: did the driver feel dizzy, tired, light-headed or whatever, and did the driver take other medicines? If the level is set at zero this will disqualify, for instance, thousands of people taking very common medicines that control, to take just one example, raised blood pressure. It does not mean that you cannot drive but it does not mean that you can, so the patient is left with a decision.
To answer a criticism before it is made: I believe in taking responsibility for oneself, but sometimes the sensible decision can be very difficult to arrive at. It will be very difficult to disprove impairment; presumably, that is why we are presented with strict liability. Under proposed new Section 5A(3)(b), the defence will be “to show” that the defendant took the prescribed,
“drug in accordance with any”,
and all “instructions”, which presumably means oral as well as written instructions. That seems fairly onerous. I acknowledge that the burden of proof is on the prosecution but there is initially an evidential burden on the defendant under subsection (3) of the proposed new section, which is subject to subsection (4). It all seems to require a lot of investigation and argument.
I have said that the difficulties may be compounded when a patient is taking new medication. Of course, the same may apply if the patient changes medication. Patients with chronic pain who are on a stable dose of a prescription or over-the-counter opioid analgesic may well be over the limit without impairment, while some may be impaired and some not because there is a variable impact on different people. I suggest that it is a fair bet that many of us take, and sometimes rely on, analgesics containing ibuprofen and codeine. They may enable us to drive—actually, they may enable us to drive a debate, given the ergonomic failings of these Benches—by being more in control than one can be if driving in pain. I say that from some experience.
I am quite conscious that parallels can be drawn with people who boast that they can hold their drink, and are quite okay to drive to collect the Sunday papers with an alcohol level that has not quite subsided from the night before, but what all this really amounts to is that prescribed and over-the-counter drugs do not lend themselves to this strict liability offence. There could be unintended consequences, such as the risk of spending a lot of police time on people who do not present a risk on the roads or, indeed, the risk of deterring people from driving who then become dependent on others.
My Amendment 154B proposes consultation with a number of bodies: with the Advisory Council on the Misuse of Drugs, where one is talking about controlled drugs and impairment issues; with the medical profession and pharmaceutical industry, for the reasons that I have mentioned and no doubt others; and indeed with patients. I am not concerned only with prescribed drugs. In the case of controlled drugs, we know that cannabis can be detected a long time after it has been taken and long after the effects have worn off. I do not believe that it would assist the cause of road safety if the application of a law such as this brought the law into disrepute. Finally, one can only too easily see that the police might stop a driver because of a suspicion of some small thing being wrong with their car—such as a failed brake light, which the driver may not be aware of—then test the driver and find a trace of a drug. It is not being too alarmist to say that this could become the new stop and search. I beg to move.
Baroness Hamwee
My Lords, we are being offered caffeine.
It is interesting that those of us who have spoken on this are not opposing the underlying proposition. We are all looking at it as a road safety issue, but we want to get it right. Although I welcome the Minister’s optimism about ironing out the problems, I said to him in the break earlier this evening that the months of the summer recess have a habit of disappearing awfully fast and October will be on us quite quickly. More seriously, I express some concern about being asked to deal with this hugely important and complicated issue while work is still going on.
I do not think it is appropriate to seek to make a lot of points now as I am sure we will come back to this on Report. I had already written down “meeting ?”, but I was thinking that something more than a meeting, such as a roundtable discussion, might be needed so that we can swap ideas and get questions answered. I am sure that there are more questions than have been raised tonight. My noble friend Lord Thomas of Gresford has been muttering to me about evidence and burdens of proof—I did mention burden of proof—and how the prosecution would deal with the issues. Bringing together the medical and the legal would be extremely helpful. I am grateful to the Minister for his suggestion. I will bring the biscuits.
I beg leave to withdraw Amendment 154ZA.
The Deputy Chairman of Committees (Lord Geddes)
I understand that the amendment is in the name of the noble Baroness, Lady Meacher, although the noble Baroness, Lady Hamwee, moved it. Does the noble Baroness wish to speak?
Baroness Hamwee
My Lords, it sounds as though in 1986 mere insults would have been quite a relief. I congratulate the noble Lord on the amendment, to which I put my name along with my noble friend Lord Macdonald of River Glaven, who, in a professional as well as a political capacity, has been quoted. I said at Second Reading that I hoped that the Bill might be a vehicle for this move, but I had little optimism that the Public Bill Office would accept the amendment as being within the scope of the Bill. So my congratulations to the noble Lord are doubled on that score.
I can spot when the House is ready to draw its business to a close and I have no doubt that we will have an opportunity to come to this at Report. When he left earlier today, my noble friend Lord Lester muttered to me that he would speak on it at Report. I leave it to your Lordships to decide whether that is a threat or a promise. The House has already heard that taking the word “insulting” out of Section 5 is Liberal Democrat party policy because, in summary, insults should not be criminalised and because of the essential nature of free speech. Our policy would, indeed, go further and take the word out of Section 4A as well. I, and my colleagues on the Liberal Democrat Benches, very much support the amendment.
Lord Dear
My Lords, I will take up very little time in your Lordships’ House this evening. The noble Lord, Lord Mawhinney, has made a very powerful case, citing a lot of examples of the way in which this word has been abused within the purview of the Public Order Act 1986. We should, in fact, note that the words have been around since they first went on to the statute book in the Public Order Act 1936. However, it is only in the last 10 or 12 years that the word “insulting” has attracted this sort of attention. As many of your Lordships know, I have taken a close interest in this for a very long time. I have spoken on at least half a dozen occasions in your Lordships’ House; I have tabled numerous Questions for Written Answer and written articles in national newspapers, including one in the Daily Mail online today, always pressing for the removal of this word from the Public Order Act. Over the last two or three years that I have been engaged in this campaign, I have watched public opinion switch from either indifference or opposition through to almost complete unanimity in the public domain. One might almost say that the door is swinging wide open—something that the noble Lord, Lord Mawhinney, has noticed for himself.
I will quickly cite two examples. I spoke on exactly this point at Second Reading during the passage of the Protection of Freedoms Act last November, and again on the fourth day of the debate on the Queen’s Speech on 15 May this year, and reflected that—but for the three-month consultation period which had produced something of a logjam in the process—I would be tabling the amendment myself. On 15 May, the noble Lord, Lord Henley, from the government Front Bench said in reply:
“As for the noble Lord's particular remarks about Section 5 of the Public Order Act, I ask again that he be patient for a little longer. It is a complex issue, and we have to give careful consideration to the views expressed in the 2,500 responses that we have had to the consultation”.—[Official Report, 15/5/12; col. 376]
As has been said, we are still waiting and patience is perhaps being stretched a little but I, for one, am prepared to wait, particularly since we have the prospect of the summer recess in which the Home Office can come to a conclusion on this. I am a little surprised that the noble Lord, Lord Mawhinney, has tabled the amendment now, because it presses exactly the same point that has been pressed before and we are still waiting for the opportunity to get the consultation out of the way and then have a clear run at the issue.
My response is fairly self-evident. I will continue to advocate the removal of “insulting” from the Public Order Act and, to that end, I shall exert all the pressure I can in due course. This is not an amendment that I would have tabled today and I hope that it will be withdrawn at this stage. It would be helpful if the Minister could again signal an urgency in the Home Office to deal with the consultation so that we can properly address the issue at Report.
European Court of Justice: Jurisdiction
Baroness Hamwee Excerpts(11 years, 10 months ago)
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Lord Henley
My Lords, there are arguments and ordinary citizens would accept some of them. However, ordinary citizens would also accept that some things are better looked after by our own Parliament back in the United Kingdom. That is why we will make the appropriate decision at the appropriate time, after we have listened to both Houses and voted on the matter.
Baroness Hamwee
My Lords, does the Minister agree that there is a great deal of and a great variety of cross-border crime? If he does, does he also agree that it is important that the UK puts itself into a position where we have most influence and the greatest opportunity for leadership?
Lord Henley
My Lords, again I totally agree with my noble friend on that matter. But it means that we have to make very difficult decisions at the time about what is precisely in the United Kingdom’s national interest. We will not make a decision on all 133 measures before that. There might be individual measures, as my noble friend will be aware, on which we might have to make a decision before then. But as a totality we will leave this to 2014.
Crime and Courts Bill [HL]
Baroness Hamwee Excerpts(11 years, 10 months ago)
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Baroness Smith of Basildon
My Lords, this is one of a number of amendments that we have put forward regarding the framework document. Although we do not have a copy of it, a number of questions still need to be addressed.
The Government are getting a bit of a reputation for having a cavalier attitude to the reform of some of the institutions of this country and for bringing forward legislation before the fine details have been worked out, which would enable this House properly to scrutinise the Bill and its implications. The Health and Social Care Bill saw quite an axe being taken to the whole landscape of the NHS before the details were worked out, which started even before parliamentary approval had been obtained. The detail was not ready when the Welfare Reform Bill came before Parliament. With this Bill, not only do we not have the framework document but the Government are still consulting on the plans for community sentencing. We hope that we can recommit the Bill into Committee at the end of the Committee stage and, outside the normal order of amendments and clauses, put another new Clause 23 into the Bill at the end.
The Government announced their intention to create a National Crime Agency around two years ago but we still do not have the document that tells us what the organisation will do and how it will do it. That document will set out the detail of how the agency will be arranged. It is clear that there will be specific operations. One of the most important things in that document will be the relationship with other sections of the police service. Unfortunately, we do not have the strategic policing requirement. The Government say that that will set out a clear framework for how PCCs and chief constables relate to the NCA and, crucially, how they balance local against national priorities.
Looking around your Lordships’ House, I see that I am a relatively new Member of this fine institution—for just under two years—but it has been clear to me from when I first entered your Lordships’ House how seriously the House takes its scrutiny role. Not to have so much information to assist us in discussing the detail of the Bill is pretty shoddy and not the way that we ought to legislate.
Even in this Bill, I am prepared to think the best of the Government and assume that they must have worked out some of the detail of the architecture, even if the document itself is not ready. I do not believe for one moment that the Government came to this House with a Bill not understanding what it will look like at the end when they create a new agency. It would be helpful if, even without the document, the Minister could give the House more detail about what it will contain. Amendments 28 and 29 place a requirement on the Secretary of State to produce the framework document by statutory instrument. That is not ideal, because having that document now would inform the rest of our discussion, as several noble Lords have said. The noble Baroness, Lady Hamwee, at our previous session in Committee, raised issues that should be in the document. Our discussion then was hampered because we did not have it. In the absence of the document being available for scrutiny at this stage, the Home Secretary should place the document before Parliament as an order. That will enable at least some proper scrutiny by both Houses.
Baroness Hamwee
My Lords, I did indeed raise questions about the contents of the framework document. Before we started our debate on Monday, when I was going through the amendments and got to this pair of amendments, I put a tick against them. I have deleted the tick for reasons which will not be very welcome to my noble friend. I am not convinced that an order would allow us to debate the framework document in the way that we would like to see. We need a lot of detail about it. As we all know, the drawback with an order is that we cannot amend it. Methods of operation, methods of exercising functions and administration, including—I have already questioned this—governance and finance, are very big issues.
I therefore hope that the Minister will, if not today, soon be able to tell us that his “due course”—not just his, I am not impugning him—arrives soon, so that we can understand a good deal more. Although I well understand the approach that the noble Baroness has taken, I am not entirely sure that it takes us as far as many of us would like to go.
The Minister of State, Home Office (Lord Henley)
My Lords, I understand what the noble Baroness is getting at and how she wants to provide for the framework document to be subject to some parliamentary procedure —for it to be laid before Parliament. She went on almost to suggest that there was some conspiracy by the Government on this Bill and others in the lack of framework documents and how late they were coming. I think I made it quite clear back on Monday—it seems a long time ago now, having gone through another Bill, as the noble Baroness and I and the noble Lord, Lord Beecham, have done—that we very much hope to get at least an outline of the framework document in front of the House before we come back to the Bill at Report. It is important to point out that that is quite an early stage in the passage of this Bill as, unusually for important Home Office Bills, it is starting in this House. We cannot even claim to be the revising Chamber on this occasion because we are getting it first. We are dealing with it relatively slowly because of the delay we are having over certain items which we want to debate in early October, so that I can miss the Conservative Party conference. After that, it also goes on to another place so there will be considerable time for this House and another place to discuss these things in some detail.
Perhaps I may set out what the framework document is designed to do and what we think ought to be in it. The purpose of the document is to set out clearly and transparently how the Home Secretary and the director-general will work together—it is between those two—and the ways in which the NCA is to be administered. It is expected to include the agency’s corporate governance arrangements, the high-level arrangements for financial accounting and reporting, and how the agency will discharge its duty to publish information and promote transparency, including the classes of information which it will publish. It will obviously be a very important document, dealing with how the NCA is to operate, but it will also build on and be clearly subsidiary to the clear foundations set out in the Bill. As we have already debated, the Bill establishes a clear governance model for the NCA; namely, as a Crown body with an operationally independent director-general at its head, appointed by and accountable to the Home Secretary for delivery against the Home Secretary’s strategic priorities for the agency. The agency will be under the direction and control of the director-general and its functions and powers are, again, clearly set out in the Bill.
We have provided in Schedule 2 for the framework document to be laid before Parliament, the Scottish Parliament and the Northern Ireland Assembly, as the NCA will cover all parts of the United Kingdom. We believe that, given the nature of the document, this is the appropriate level of parliamentary procedure. The Delegated Powers and Regulatory Reform Committee made no comment on these provisions so, on that basis, we are on relatively firm ground in assuming that it was content with laying that procedure. Finally, as I think I suggested earlier, the Serious Organised Crime and Police Act 2005 did not even provide for a framework document, let alone one subject to an affirmative procedure, so this provision is an important advance on what has gone before in relation to the Serious Organised Crime Agency.
I appreciate that the noble Baroness would like it to be produced by statutory instrument and produced, as I think my noble friend put it, in due course. I came under a suggestion of pressure that I ought to define what “due course” meant. It is always difficult to define that. I am sure that the noble Baroness will probably remember promising things, when she was a Minister, “some time in the future”, “in due course” or whatever. We have all done this—I remember promising something “later in the spring” and being faintly embarrassed that that turned out to be July. I think most noble Lords understand what I am getting at. I am trying to promise her that we will get at least an outline of this by Report but, as I said at the beginning, I stress that that is an early stage in the process that this Bill is going through. It is starting in this House and still has to go through another place, so we have considerable time. Both Houses of Parliament will get a chance to look at that outline document. I hope therefore that the noble Baroness, who has an understanding of what “in due course” or “shortly” might mean, will feel able to withdraw her amendment.
Baroness Smith of Basildon
We return to the framework document. This paragraph is a puzzle to me. This brief amendment deletes the requirement for the Secretary of State to obtain the consent of the director-general before issuing the framework document, because I am unclear why the Secretary of State would need to depend on the consent of the director-general in order to publish the document. It would seem to show greater courtesy and concern for the views of the director-general than for Parliament. There is no provision for parliamentary oversight at this stage. It is right and appropriate that the Home Secretary should consult the director-general, but if I understand the purpose of the framework document correctly, looking at Schedule 2, it is ultimately about the detail of the architecture of the National Crime Agency. It is not about operational matters, and it does not seem appropriate for the director-general to have a veto. I return to the point I made in earlier discussions about the blurring of the line between what is operational and what is strategic. The framework document is a strategic document. This is a probing amendment to see whether the Minister can explain why the director-general should have a veto over the Secretary of State publishing the framework document. I beg to move.
Baroness Hamwee
My Lords, I am glad that the noble Baroness tabled this amendment. It took me back to reading the paragraph and realising that I did not fully understand it. I am sorry that I have not been able to give the Minister notice of my question, which is: can he in some way translate paragraph 4, particularly sub-paragraph (2)? Does it mean that the framework document takes precedence over the annual plan? Paragraph 4(2) says:
“The Director General’s duty to have regard to the annual plan … does not apply in relation to functions under sub-paragraph (1)”.
Those functions are about being consulted on, and giving or withholding consent to, the framework document. It is a little difficult to understand how the two work together. It may be that we are being told that one is more important, or simply that one is more overarching—which the framework document should be, I guess—than the other. The relationship between the two will obviously be important and not only because there are different consents and consultation arrangements for the different items.
Lord Henley
Therefore, there would still be consultation but there would be no need for consent. However, as I said, that would imply that the Home Secretary could impose that on the director-general. We believe that the document is designed to set out the relationship between the Home Secretary and the director-general and, as I said on an earlier amendment, how the NCA will operate, including its governance, management and transparency arrangements. Therefore, the director-general will have a proper interest in making sure that it reflects his or her operational view of the NCA. Since the director-general will ultimately be accountable to the Home Secretary for delivering the NCA’s priorities, it is absolutely right that his consent should be gained to crucial decisions about how the agency is administered. It is right that we should stick to that process. I hope that the noble Baroness will agree that the framework document should be agreed between the two, with both consultation and consent.
I turn now to the trickier question—the googly that I referred to—that my noble friend asked as regards paragraph 4(2) of Schedule 2, which states:
“The Director General’s duty to have regard to the annual plan in exercising functions does not apply in relation to functions under sub-paragraph (1)”.
I think that that is relatively clear, although my noble friend obviously does not. All it does is remove the director-general’s duty to consent from those under paragraph 1(1)(a), which refers to,
“ways in which NCA functions are to be exercised (including arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA)”.
I could go on with the rest of that paragraph. I am hoping for advice to come through at this stage.
The important idea to get over is that the framework document and the annual plan are different and have to be dealt with in different ways. The framework document sets out the relationship between the Home Secretary and the director-general of the NCA. The annual plan allows the director-general to set out the activity planned for the year ahead and must take account of the arrangements set out in the framework document. Therefore, in his role in respect of agreeing to the framework document, he cannot have regard at that stage to the annual plan, which comes out later. I hope that that makes matters clearer to my noble friend. I see a faint degree of nodding from her as well as a faint smirk on her face. I hope that it is a smirk of agreement. I will sit down and hear whether my noble friend agrees with what I have said.
Baroness Hamwee
It was not a smirk but possibly mild hysteria. The Minister has confirmed that, to the extent that the two documents have any relationship to one another, the framework document is the primary document. He is nodding at that. I apologise because my point was not intended to be a googly. Anyone who knows me will know that the high point of my sporting career at school was questions such as, “Sally dear, can you see the ball?”. I really am not trying to be difficult. I am grateful to the Minister. I will read it again several times.
Lord Henley
From my noble friend’s confession, I think that her sporting career at school was possibly somewhat similar to mine in terms of its disastrous nature but I shall leave that as another matter. I am grateful for her acceptance. I think I got that right and that I have satisfied the point that she makes. Therefore, I await to see whether the noble Baroness, Lady Smith, wants to withdraw her amendment.
Baroness Hamwee
Baroness Hamwee
In moving Amendment 32, I shall speak also to Amendment 33. The first deals with the framework document and the second with the annual report. In both cases, my amendments would delete the words relating to publication,
“in the manner which the Secretary of State considers appropriate”.
I wondered whether those were intended to be qualifying words. They clearly are qualifying, but they suggest a limitation. I simply look for assurances that the spirit of what we would all understand by “publication” includes something energetic and proactive and that that will be reflected in the practical arrangements that will be made. So this is really only a probing amendment in both cases. I beg to move.
Baroness Smith of Basildon
My Lords, I had some interest in the amendment that the noble Baroness, Lady Hamwee, has proposed. There is some question mark over why there is discretion in this regard, and it would be helpful to hear from the Minister on that. The Minister will understand my concern that there is a growing acceptance these days that everybody has access to the internet and that everything can be obtained from the internet. A large number of people in our population do not have access to the internet. More than that, as the Minister knows, the Home Office website is extraordinarily difficult to access. So I would have great reluctance in seeing a measure go through that gives discretion to the Home Secretary to publish on a website that most people cannot access most of the time.
Earl Attlee
My Lords, the Government are committed to publishing the NCA framework document and annual report so that all those with an interest in the work of the agency have ready access to them. That is indeed the spirit intended. The provisions on publication in Schedule 2 are directed to that end. I assure my noble friend that there is nothing sinister in the words,
“in the manner which the Secretary of State considers appropriate”.
They are just a recognition of the fact that it must be for the Home Secretary and the director-general, as the publishers of the framework document and annual report respectively, to determine how best to publish these documents. It is only sensible that the person publishing the document should be empowered to choose the most appropriate means of doing so.
We would expect that, in practice, both documents will most likely be released via the NCA or Home Office website. My noble friend Lord Henley says that he will shortly be writing to the noble Baroness on problems with that website. Whether it is a good use of resources also to print and publish thousands of hard copies of these documents must be left to the judgment of the Home Office or the director-general, as the case may be.
With the assurance that we want these documents to be made freely available, I hope that my noble friend will feel able to withdraw these amendments.
Baroness Hamwee
My Lords, I shall certainly do so, but I have two comments. First, I thank the Minister for confirming the point about the spirit, which I am glad to have confirmed from the Dispatch Box. On another more general point, each Bill seems to be thicker than the last. A few years ago, it would have been adequate to say, “The Secretary of State shall publish a document”. Now we have to say, “The Secretary of State shall publish a document in the manner in which she deems to be appropriate”. The officials will understand why we probe some of these words more often than just from time to time.
Lord Hunt of Chesterton
I was a civil servant in the Met Office and used to visit other agencies. The variability in the publication of annual reports is quite extraordinary. A Minister visited the National Physical Laboratory and asked, “Why do you publish all these annual reports?”. I am glad to say that the Met Office continues to publish annual reports and they are still very valuable and people refer to them. Therefore, I was very surprised by the Minister’s insouciant response to this whole issue of the publication of reports. As the noble Baroness said, the relevant information is very unsatisfactory. Are the Government looking into this more broadly?
Earl Attlee
My Lords, in days of old there was only one way of publishing a report, which was in hard copy. Today we can publish on the internet. We can also issue a CD and issue hard copy on a limited circulation. The provisions in the Bill take account of the various ways of releasing the information without being too prescriptive.
Baroness Hamwee
My Lords, I do not think that I should take the time of the Committee by pursuing the issue but I suspect that the same question will come up more than once during the rest of this Session, as it comes up on almost every Bill. I am grateful to the Minister and beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
I shall speak also to Amendment 41. There are three further amendments in the group in the names of the noble Baroness, Lady Smith, and others, all of which deal with payments. My two amendments concern the paragraph in Schedule 3 which deals with what is the “appropriate amount”. Paragraph 29 of Schedule 3 deals with what is to be paid under paragraphs 26 and 27 by the director-general and the police in the different circumstances. My amendment would extend that to payments under Part 1 of Schedule 1, including paragraph 4, which states:
“The NCA may charge a person for any service provided at the person’s request”.
I am not necessarily suggesting that this is the right way to go about it but I am probing how that charging should be dealt with.
Amendment 41 suggests that there is a way other than an amount agreed or an amount determined by the Secretary of State; that is, to provide for a scale or a formula in advance to be applied generally. As I understand the arrangements for mutual aid between police forces, there are governing scales and arrangements. It seems to me that it would be much better to have these things sorted out in advance rather than to have any sort of haggling being applied at the time. I certainly do not imagine that it would leave people with anything other than a rather sour taste if the Secretary of State had to step in and determine the amounts. I beg to move.
Baroness Smith of Basildon
My Lords, our amendments on this issue perhaps come from a different direction but they still try to address a similar concern that we have. We are looking at different ways to resolve this. The noble Baroness, Lady Hamwee, is right that if an agreement on payment cannot be reached between two parties, to seek resolution or determination by the Secretary of State does not seem the correct way to behave. Throughout this Bill, we have sought to remove the Secretary of State from day-to-day operational issues and this proposal would bring the Secretary of State back into those kinds of issues.
There is also a conflict of interest or at least a divided responsibility. There is a concern that one thing that will happen with the NCA and the charges and costs involved is that, given that funding may not be adequate to the task, particularly with additional responsibilities coming in, some extra funding or support may be sought from police authorities, particularly in cases such as this. The Home Secretary has a direct responsibility for the funding of police forces across the country. It seems somewhat difficult, therefore, if there is a disagreement between a local police force and the NCA, that it should be the individual who has responsibility for funding local police forces who should seek a determination on that. The noble Baroness, Lady Hamwee, said something about that creating a bad feeling or some difficulties, and I certainly think that it would in this case.
The noble Baroness and I may not have found exactly the right format here. We are suggesting an advisory body, but I am not wedded to any particular way of doing this. It seems inappropriate for the Secretary of State to be making those decisions. To labour a point made by the noble Baroness, Lady Hamwee, about a protocol in the framework document, that may be what the Minister is considering—but we do not know, because we do not have the framework document. It is clearly inappropriate for the Secretary of State to be the arbiter. We would like to see some other way to resolve difficulties or disputes and we are suggesting an advisory board.
Baroness Smith of Basildon
My Lords, I wonder sometimes whether the noble Earl lives in a slightly different and more benign world than I do. Several times during the course of today’s debate, whether it has been on the power of direction and payments, he has said, “We hope that it will be okay, we can’t see ourselves using this power, things should work out okay”. Real life is not like that; disputes occur. This idea of having a backstop and saying that it does not matter if it is not perfect and not okay because it will hardly ever be used is not really good enough. We need to have some kind of process. I do not know whether the noble Earl took on board what I said. I am not wedded necessarily to an advisory board, but I think that we need a process that is not the Secretary of State or, as the noble Earl calls it, a backstop.
There will from time to time be disputes on payments and the power of direction, and we need to have a process that this House is confident can deal with any of those problems that occur—and not just think that it will be okay because it will not happen very often. I think that we will pursue this at a later stage. There may be further discussions in Committee, but at this stage I am happy not to press my amendment.
Baroness Hamwee
My Lords, I share the noble Baroness’s concerns about this. I wrote down “amicable?”. The noble Earl referred to a backstop, but the point of providing a very clear framework—although I do not want to use that term—and making clear provisions is that they are clear and, if things are not amicable, one knows where to go. It had never occurred to me until an earlier group of amendments that the old pals arrangement might apply to anything under this Bill—but perhaps I am just too cynical.
On Amendment 40, as I understood the noble Earl’s remarks, the NCA will be subject to certain formal Treasury guidelines. He is nodding at that, but I wonder whether he might share those with Members of the Committee after the debate. It may not be appropriate to go into all the detail now, but it would be very helpful to be clearer about this before we return to the matter, as I suspect we will.
Earl Attlee
My Lords, I was referring to the Treasury guidance on managing public money.
Baroness Hamwee
Let us see how the Treasury website operates and whether we can get into it.
On Amendment 41, the noble Earl argued that what is provided in paragraph 29 is not on a case-by-case basis but is an overall principle. I do not read it like that, because paragraph 29 refers to a provision requiring,
“one person (“R”) to pay the appropriate amount to another person (“P”)”.
The only way in which I can construe that paragraph is that we are talking about the particular “R” and the particular “P”, not anyone who might come under “R” or “P” in a range of different situations. Perhaps that is something that we can seek to understand rather better after the Committee stage. I beg leave to withdraw Amendment 40.
Baroness Hamwee
I am not sure that it is insight, but the noble Lord is right to raise the point. I hope that he will at least feel that I can intervene on that basis, even if we are without insight. Schedule 7 states that this part of the Bill does not authorise disclosure in contravention of the Data Protection Act or the Regulation of Investigatory Powers Act. If there are other general statutory provisions that would override the situation that the noble Lord is talking about and would always apply, it needs to be made clear that someone may disclose, subject to other statutory provisions. I do not know whether what I have said takes the matter any further but I, for one, am now convinced that there is an issue.
Lord Henley
I am sure that there is no issue here and that the noble Lord, Lord Harris of Haringey, is not suggesting some conspiracy theory that these words mean something different from what I suggested they mean. That is why I said that one should look at what is there on the packet. However, I suspect that the best thing to do would be for me to write to the noble Lord and make sure that that is copied to his colleagues on the Front Bench and my noble friend Lady Hamwee; and if there is any problem, we can deal with that in due course. I am sure that there is no problem, and that the matter is straightforward and can be quickly resolved. Does the noble and learned Lord agree? Perhaps I can call him the noble and learned Lord, because he is so good at these drafting matters that I will elevate him on this occasion. If he is happy with that, I will leave it to the Committee to accept Clause 7.
Lord Dear
My Lords, I fully endorse what has been said about the work of CEOP. We have referred to this organisation many times over the past year or so in your Lordships’ House. It is a highly successful organisation but it is only really beginning to identify the tip of an iceberg. We are just beginning to understand exactly how much crime in that area is committed. It has already been said today that there is a crossover with people trafficking, and in fact child trafficking comes very much within CEOP’s remit. People trafficking in general is a highly organised crime.
It seems to me that the question is: should CEOP come within the remit of the NCA at all? Personally, I think that it should, given the seriousness of what it deals with, the revulsion that all right-minded people feel about this crime and the way in which CEOP’s work interfaces with highly organised crime. The one thing that I am concerned about is the suggestion in the amendment that CEOP should be accountable to the NCA board, accepting that it is part of its remit, but should operate independently of the direction of the board. If that were to appear in the Bill, there would be considerable confusion. It seems to go against logic and against all tenets of management. “One man, one boss” is often used as shorthand for that. If CEOP is one of the four pillars of the NCA—as I believe it should be—not only should the board oversee the operation but it should be responsible for it, and CEOP should not be allowed to operate independently.
I take the point that, in a strange sort of way, CEOP is outside the normal remit of much of mainstream policing because it has a multiagency dimension. I understand that. In fact, I remember back in the 1970s piloting the first multiagency approach that attacked what was then called “baby battering”, then shorthanded as “child abuse”. That approach was highly successful and was rolled out right across the country from Nottinghamshire, where I was then serving. At that time it became the model of how best to approach this sort of problem. Therefore, I understand the particular sensitivities of multiagency approaches. Notwithstanding that, I would be unhappy to see CEOP operate independently of the direction of the board because I think that it would lead to confusion.
Baroness Hamwee
My Lords, the noble Lord, Lord Dear, has expressed very well my concerns about the second paragraph of the amendment. He has also said very clearly exactly what I would want to be said right around the Committee and to be on the record concerning the value of CEOP’s work. Like those of the noble Lord, my comments are in no way directed at criticising CEOP, not valuing its work or not wanting to see it continue as successfully as it has done.
Perhaps I may add a query about the third paragraph of the amendment. First, I am a little unclear about what is meant by the delegation of funds within an organisation, as would be the case if CEOP were part of the NCA. What exactly is meant by delegation? Secondly, for what purpose are the funds reserved? If funds are identified as being needed for CEOP’s operation, are they not for the whole of its operation, or is there something specific that the funds are intended to be reserved for?
I am sorry to appear to be taking apart an amendment on this matter. Like others, I feel that what has been said about the importance of CEOP’s work is absolutely undoubted, and my questions about the amendment are genuinely probing.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving this amendment, I will also speak to Amendment 46C. I hope that I can be brief.
These are both probing amendments. The first relates to the paragraph in Schedule 4 headed: “Liability of NCA for unlawful acts”. It states:
“In any of the following cases, the NCA is liable in respect of unlawful conduct of a person”.
I suggest changing,
“In any of the following cases”,
to “including in the following cases” in order to understand whether paragraph 2(1) is exclusive of all other cases and in particular how it relates to paragraph 2(7), which states that,
“the liability of the NCA for the conduct of NCA officers”,
is not affected by this paragraph. The first amendment is about the inter-relationship of those words with paragraph 2(7).
Amendment 46C is an amendment to paragraph 4, which is headed: “Application of discrimination legislation to secondees: Northern Ireland”. It is a rather similar amendment to add “including” before the list of the provisions in respect of which an NCA secondee is to be treated as being employed by the NCA. Again, the amendment seeks to understand whether what is listed is exclusive of other provisions. It occurred to me only after tabling the amendment that there might be something specific about Northern Ireland legislation that is required to be set out. I beg to move.
Lord Henley
My Lords, first, I apologise to my noble friend. I think I have the gist of what she was saying about Amendment 46B, but I have to confess that there was a brief conversation between me and my noble friend the Chief Whip, which meant that I might have missed some of the points she made. I hope that I still grasped what she was saying and that the response I am able to give her will be sufficient. If not, I will have to write to her.
On Amendment 46B, as an employer, the National Crime Agency can be held to account for any unlawful conduct by its employees during the course of their employment. That does not therefore need to be set out in the Bill. The NCA will be liable for its specials actions in the same way that it would be liable for the actions of any other NCA officer. Given that the NCA will not operate in isolation and will be tasking and co-ordinating wider law enforcement, having clear lines of accountability for the NCA and its partners is important.
Paragraph 2 of Schedule 4 provides important clarity as to exactly when the NCA will be held to account for the unlawful conduct of a person who is not employed by the agency but is carrying out NCA-related activities. Unless my noble friend wants to come back to me after I sit down, I hope that that deals with her particular points.
I will say a word about Amendment 46C because we want to take that away and have another look at it. National Crime Agency officers will benefit from protection against discrimination in the UK. It is intended that secondees to the NCA will benefit from the same protections. Having looked at that and having looked at my noble friend’s amendment, further consideration is required to ensure that particularly secondees, including police constables, are properly covered by the relevant legislation. I want to come back to my noble friend on that in due course. If there are any other queries, I will write to her in due course.
Baroness Hamwee
My Lords, I think that the penny has just dropped on paragraph 2, so I thank the Minister for that. On Amendment 46C, I am beginning to feel that I am beginning to do myself out of a job. This is the third time the Government have said that they will look at something again. I spoke on one for less than two minutes, on another for less than one minute, and on this one the Minister did not quite hear what I had to say.
Lord Henley
I think it was my noble friend Lord Attlee who recommended that brevity often yielded much greater results in this House. He commended it to my noble friend.
Baroness Hamwee
I had better not say any more other than I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, my noble friend Lady Doocey and I have Amendment 58A in this group. I shall leave it to her to speak to the substance of the regulations referred to. The amendment would simply make the regulations to be introduced under new Section 26C of the Police Reform Act 2002 subject to affirmative resolution.
Baroness Doocey
My Lords, my concern is about the type of investigation that the Independent Police Complaints Commission might carry out in relation to the National Crime Agency. The Government want the NCA to be,
“a transparent and accountable organization open to the public it protects”.
To satisfy those criteria, formal scrutiny and investigations must be thorough and above suspicion. I am concerned that the provisions for scrutiny and transparency in the Bill are inadequate.
I am concerned particularly about how the IPCC might carry out its functions. The Bill gives the IPCC the power to undertake investigations into complaints about misconduct, serious injury, death or other matters at the discretion of the Secretary of State, the object being to give the IPCC oversight of the NCA in broadly the same way as it oversees the police. However, as the noble Lord, Lord Rosser, said, the NCA will have considerable powers—far greater than any police force—so it requires much more rigorous scrutiny on the part of the IPCC.
The situation now is that, if a complaint or allegation is made to the IPCC, it makes a decision as to what it will do to investigate it. It has four choices. The highest level of investigation is an independent investigation, carried out by IPCC investigators and overseen by an IPCC commissioner. The second level is a managed investigation, carried out by a police force’s professional standards department but under the direction of the IPCC. The third level is a supervised investigation, also carried out by a police professional standards department but under its own direction and control. The IPCC merely sets the terms of reference and receives the investigation report when it is complete. The lowest level is a local investigation which is carried out entirely by police.
Despite there being four different options open to the IPCC, the evidence shows that in the vast majority of cases it opts for a supervised investigation, which in practice means that it leaves the police to investigate themselves. This policy is at best questionable when applied to police forces, but is completely unacceptable when applied to the NCA, given the enormous powers that that body will have. It is essential that all investigations into the NCA are independent, carried out by the IPCC and overseen by an IPCC commissioner.
Everyone accepts that the NCA will be handling sensitive and confidential information, but that just increases the need for independent scrutiny. I would welcome an assurance from the Minister that serious complaints and allegations of misconduct in the NCA will be independently investigated so that the public can have full confidence in the processes and procedures.
Baroness Hamwee
Baroness Hamwee
My Lords, I beg to move Amendment 58B. Paragraph 5 of Schedule 6 deals with the disclosure of information, and regulations that may cover disclosure. We are told at sub-paragraph (6) that:
“Such regulations may, in particular … modify any provision of Schedule 7 in its application to such a disclosure, or … disapply any such provision”.
My amendment would exclude from that modification or disapplication paragraph 1 of Schedule 7, which provides that,
“any disclosure, in contravention of any provisions of the Data Protection Act”,
or,
“prohibited by Part 1 of the Regulation of Investigatory Powers Act”,
is not authorised. I hope, and expect to be told by the Minister, that that is what Schedule 6 provides because of the way that it is drafted. However, that was not obvious to me when I read it, and therefore it seemed quite important to clarify the point.
Earl Attlee
My Lords, although I recognise the absolute importance of safeguarding the disclosure of sensitive personal information, I believe that Amendment 58B is unnecessary. The kinds of information that will be required for the purpose of an inspection will be limited in nature to those required for exercising an inspection function. The disclosure of information to a policing inspectorate, and any onward disclosure, will be subject to the safeguards in Schedule 7.
Schedule 6 contains a back-stop power that enables the Home Secretary, by regulations, to make further provision about the disclosure of information by the NCA to policing inspectorates. Although this includes a power to modify Schedule 7, should this be necessary to enable the proper, independent inspection of the NCA, it is not intended to use this power to override important existing statutory safeguards relating to sensitive personal data.
Furthermore, let me reassure my noble friend, it is not paragraph 1 of Schedule 7 that applies the extensive safeguards set out in the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, but those Acts themselves. This paragraph simply puts that beyond doubt. I will be clear that should any regulations be made governing the disclosure of information from the NCA to policing inspectorates and their onward disclosure of such information, those regulations cannot override these safeguards by modifying paragraph 1 of Schedule 7.
I hope that in the light of this explanation, my noble friend is satisfied that there will be adequate arrangements in place to independently inspect the agency that respect important data protection safeguards. I accordingly invite her to withdraw her amendments.
Baroness Hamwee
My Lords, I think I had better read that following today’s debate, because the noble Earl seemed to be saying that those two Acts could be not be overridden; but he started his explanation by saying that it was not intended to use the provision in Schedule 6 to override them. I do not quite understand how those two statements fit together. If they cannot be overridden, the Secretary of State could not intend to override them. However, that was not, as I heard it, the implication of the introduction when he said that it was not intended to use them in that way. Of course, I withdraw the amendment, but will also read what has been said and make sure that I am entirely comfortable with it.
Justice and Security Bill [HL]
Baroness Hamwee Excerpts(11 years, 10 months ago)
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Baroness Hamwee
My Lords, it is not unusual at this stage of a debate to think that everything has been said and that everyone has said it. Indeed, on this occasion the people who have said it are those who know about the subject. There is one exception, because there is one Back-Bench contribution still to be made. I am sure that what I have said will apply to that contribution as well. Your Lordships are too polite to say, “Well sit down then”. However, like some of us, I acknowledge that I speak from a degree of ignorance and, some might say, naivety. The noble Lord, Lord Hodgson, described his feelings as apprehension. I would say that apprehension does not begin to describe it.
Part 1, which deals with the oversight of intelligence and security activities, had been eclipsed by Part 2 in the comments that we received before this debate. It is interesting, and encouraging, that more attention has been given to Part 1 than I expected. It is very significant, not least because we want to avoid the litigation which may be the subject of Part 2. However, just as the question about Part 2 is whether the Bill has drawn back enough from what was floated in the Green Paper, on Part 1 the question is whether the provisions go far enough to meet concerns to achieve all that could be achieved, or are we in danger of missing an opportunity? That would be a pity given the calls, to which reference has been made, for strengthening the powers of the Intelligence and Security Committee and for making changes to its composition, its staffing and its remit to support that strengthening.
There are a lot of related terms for the functions of such a committee: oversight, examination, supervision and scrutiny. “Oversight” is in the heading of Part 1. I wonder whether that is the right word. The functions described are essentially retrospective, and the ability to put material in the public domain—which, to me, is fundamental and possibly the main part needing scrutiny—is constrained. Indeed, the committee itself may not always be able to access key information. However, to be positive, I note that the functions under Clause 2 adding the operational function, which are new in comparison with the 1994 Act, are there and that is welcome.
Operational matters which are not current are of significant national interest. We might want to unpack what that means later. They also have to be consistent with the memorandum of understanding which Clause 2 provides for. I ask the Minister whether we are able to see a draft of the memorandum of understanding so that we can debate it in context, or perhaps a draft or framework or some clues about the principles referred to in Clause 2.
The new status of the committee is important but, given that its reporting function is subject to prime ministerial edit—other noble Lords have said much the same thing—it still reads as a creature of the Executive. Perceptions are important and it is important to demonstrate independence. I note that what is defined as sensitive information, subject to restrictions on disclosure, is to cover not only the three agencies but also,
“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
I accept, as the noble Marquess, Lord Lothian, pointed out, that national security is narrower than public interest.
The role played by government departments in the intelligence landscape is an issue and I do not think that that is an irrelevant comment. For some time, I have been wondering whether the Home Office, for instance, would have a different culture if the Office for Security and Counter-Terrorism were not embedded in it; they are in the same building. Perhaps I may indulge in a small flight of fancy: if the Home Office building were used, for instance, by civil liberties campaign groups, there would be a very different sort of conversation around the water cooler.
One of the difficulties is that, by definition, intelligence is not evidence, as has been said by many noble Lords. The ISC cannot substitute for the judicial process. We have the Investigatory Powers Tribunal investigating individual complaints. Is that worth exploring? I want this committee to be quite ambitious, so is it worth exploring whether it should have some sort of role in dealing with complaints and perhaps even with inspections? I also wonder aloud whether the committee might have a role—perhaps I am about to be struck by a thunderbolt—in confirmatory hearings of senior appointments.
We need to find out how to do these things without jeopardising what is sensitive within the definition. We know that the intelligence services are understandably sensitive about sensitive material. Even if there is too much such material to make redaction practicable, some such role might provide some reassurances.
In summary, I am searching for ways for the ISC to use procedures, not to be hamstrung by them. Others have spoken in detail on Part 2 and I acknowledge how far the Bill is from the Green Paper—and it was a Green Paper. If it is possible for something to enter one’s DNA during one’s late teens and early 20s, the fact that a lawyer should be able to take full instructions from his client worked its way into my DNA as I learnt my profession. It is not a matter of a client giving a monologue, but there has to be a dialogue with questions to the client and a discussion of what will or might be said against him. The noble Lord, Lord Judd, said that the special advocates made it clear that the procedures were alien to their training. Evidence is not evidence unless it is the subject of test and challenge. Almost all speakers have referred to that. I use the term “unease” as a description for my response to what is proposed now. I suspect that no one in this Chamber or who has been involved with the Bill is complacent about it.
Is it possible to loosen restrictions on special advocates to security-clear “normal” lawyers, if there is such a thing? I think that my noble friend Lady Williams suggested that. My noble friend Lord Thomas of Gresford shared ideas about changes in the process. I share a concern that closed material procedure will become the default mechanism—it will become normalised. Like my noble friend Lord Macdonald, I acknowledge that there is a small number of cases where some such procedure may be required to achieve justice. Some call CMP “secret justice”, but that is not a term that I like, because we and the public need to be convinced that it is justice as well as secret.
I noted the comments that the judiciary is deferential to the Government on security matters. I suspect that the Government may not see it that way, given some of the comments that we have heard about the judiciary over the years. The noble Lord, Lord Faulks, referred to a particular case. I do not share that reading of deference. Instead, I hope that I see the integrity to which my noble friend Lady Williams referred.
Because of that element of my DNA, I was keen during the passage of the recent Protection of Freedoms Bill to pick up an issue that was highlighted by the Bar Council, and I will mention it briefly today because I hope to return to it in Committee. I refer to the issue of legal professional privilege, which ought to sit easily within the Bill. I hope to use the Committee stage to pursue how to prevent the use of RIPA powers of surveillance, covert human intelligence sources, interception of communication and the acquisition of communications data to target legally privileged information while permitting it to be accessed when a lawyer/client relationship is abused for criminal purposes. One cannot do one’s best for a client if he does not have confidence that what he says is privileged and he edits his story. The noble Lord, Lord Henley, who is to respond to the debate, will be familiar with that. He was very helpful in meeting the Bar Council during the Protection of Freedoms Bill and I will trouble him again.
Last week, I had the privilege of judging some awards for good scrutiny. There are many dedicated and imaginative scrutineers out in the rest of the world. It reminded me that some words are not jargon. They are very important terms and they will never go out of fashion. Justice is obviously one and so, too, are transparency and accountability.
Crime and Courts Bill [HL]
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Baroness Smith of Basildon
My Lords, in many ways this is quite a difficult Bill to scrutinise fully. Some information relating to the Bill is missing today: we do not have the framework document, which would be extremely useful as your Lordships consider how the NCA board will operate.
Our amendments today are intended to bring some sense to the Government’s words, which is not necessarily reflected in the Bill, and to ensure that the new National Crime Agency has operational independence. The Government have quite rightly gone to great lengths to emphasise that the NCA—the body that takes over from the Serious Organised Crime Agency, the National Policing Improvement Agency and CEOP—will be operationally independent, but I am somewhat puzzled about how this is going to operate. SOCA was, of course, a non-departmental government body, or NDGB. The NCA has been classified as a non-ministerial department, or NMD, and that is similar to other bodies such as the Crown Prosecution Service and Her Majesty’s Revenue and Customs, as the Home Office fact sheet identifies. This is significant and appropriate because, as a rule, NMDs are considered to be more independent of Government. I quote from a research paper on the Public Bodies Bill from the House of Commons Library, which says that they,
“answer directly to Parliament on issues where it has been deemed appropriate to remove executive political interference”.
Examples given by the Library in the other place are Ofgem and the UK Statistics Authority. Both the Crown Prosecution Service and HMRC, which the Government give as models for the designation of the National Crime Agency, have corporate governance structures which have a strategic direction and strategic accountability exercised by a board, and that board reports to the Secretary of State. That is true currently for both SOCA and the NPIA. The benefit of that is that it ensures and preserves the agency’s independence from Government, but it also maintains, quite rightly, the ultimate strategic oversight by Government.
In this Bill, the Government seem to be proposing a departure from that. Under current proposals, the NCA will have no board and instead will be governed by just one individual, the director-general, who will report directly to the Home Secretary. The Home Secretary’s responsibilities are to set the strategic priorities for the NCA. He will authorise the director-general’s annual plan of strategic and operational practices and priorities. The Secretary of State has the power to appoint and fire the director-general and the power to designate the director-general’s operational powers on the direction of an advisory panel, and we shall return to both those issues in later amendments.
It seems to us that this kind of structure is not conducive to operational independence and is at odds with other NMDs that the Government have set up and support. Compared with Ofgem, the Financial Standards Authority, the Serious Fraud Office, the Office of Fair Trading, the CPS and HMRC, the National Crime Agency would be unique in its level of direct ministerial oversight and influence. There seems to be some contradiction within the Bill and within the Government’s priorities because although they are talking about devolving operational power to the police, they seem to be retaining more power, but without responsibility, to the Secretary of State. The Bill does not seem to do what the Government have said they intend, which is to put power in the hands of the police force. It is very much a top-down structure and, if one were being unkind, one could say that the Secretary of State is happy to devolve responsibility but, at the same time, is centralising power.
The amendments that we have tabled today have two impacts. Amendment 1 will remove the responsibility for direction and control of the NCA from the director-general, and instead the NCA board will have responsibility for the strategic direction and control of the NCA, while the director-general will be responsible for the exercise of the NCA’s operational and administrative functions. Amendment 4, which is quite long, sets out the structure of the new NCA board and is modelled on the existing governance structure of SOCA. We would be quite happy if, at some later stage, the Government were to bring back this amendment to look at the detail of it. There may be items within it that are not as appropriate for the NCA as they are for SOCA. However, broadly speaking, it seems to us that the governance arrangements for SOCA, with a board structure, would be more appropriate for the National Crime Agency than the sort of direct-line accountability to the Secretary of State for one individual, the director-general.
I suppose we are seeking answers to a number of questions from the Minister, in trying to understand why the Government have proposed this structure. Can the noble Lord explain why the Government believe that there are benefits to the National Crime Agency from not having a board? The organisations that are to become part of the National Crime Agency have had boards, so the Government should really explain that and justify their reasons for having a different governance structure in this case. Why does the NCA have to be directly accountable to the Home Secretary, unlike the Serious Organised Crime Agency? Again, that is a departure from current practice.
Given that the Government have rightly changed the structure from that of the Serious Organised Crime Agency, which is a non-departmental government body, to a non-ministerial department, can they give any indication of the model that they used for the NCA? I am not aware of any significant body that is a non-ministerial department and that has the same kind of structure reporting directly to the Secretary of State, but not through a board. In looking at these areas, it would be very helpful if the Minister were to give some explanation of those issues and say whether he will consider looking again at governance and introducing a board, which we think would be the appropriate way to manage and run the agency.
Baroness Hamwee
My Lords, we have tabled Amendment 5 in this group. The amendment, in my name and that of my noble friend Lord Thomas of Gresford, does not seek to change the architecture of the proposal—I thought I would get that in quite quickly because my noble friend hates the term. It is not a governing board and accountability would still be that of the Secretary of State. However, it is good practice to provide infrastructure and support in this sort of situation.
The Home Office itself has a supervisory board. I would have taken my amendment from that, had I been able to get into the Home Office website at any time when I tried over the past few days. The form and function of the model is, I suppose, not very different from that of other government departments, so I looked at CLG, another department with which I am fairly familiar. The description of its roles seemed to be very much what I was looking for. It tells us that:
“The Board’s role is to advise and support ministers on the operational implications and effectiveness of policy proposals, focusing on getting policy translated into results”.
It refers to leadership, effectiveness, accountability, and sustainability—that is, sustainability in the sense of taking a long-term view about what the department is trying to achieve.
“The board advises on, and supervises, five main areas: Strategic Clarity … Commercial Sense … Talented People … Results Focus … and … Management Information”.
Those are listed with descriptions that I will not trouble your Lordships with this afternoon, because I think the CLG website is pretty accessible. I am not wedded to any particular model but I am wedded to good governance. In 2012, as has been the case for some years, the private and voluntary sectors have had to focus very much on governance, and I think that a new government agency should focus on it too.
Lord Henley
My Lords I am not sure that these booklets will come from the Home Office website. I will double check and make sure that I get an appropriate response to the noble Lord. All I am saying is that it is within the Home Office website that we have been having this problem. We want to get it right and are desperately keen to be open and fair. We want to get things across, and that is why I want to make sure that I can deal with all these matters and why I will write to the noble Lord’s noble friend, copying it to my noble friend and no doubt copying it also to the noble Lord, Lord Harris, and others who wish for a copy. We might discuss this later.
It might be useful if I set out—I hope not at excessive length—what we are trying to do with the National Crime Agency, where we are trying to get and why we think the Government’s arrangements are appropriate. Then we shall listen to the response from the noble Baroness. As she is aware, the National Crime Agency will be operationally focused, with a demanding mission to fight serious and organised crime and protect the public. We considered carefully how we would get the right governance arrangements for this agency to make sure that it maximises its effectiveness, accountability and, of course, minimises bureaucracy. That is something that the noble Lord, Lord Harris, did not stress, but might have done.
We have drawn up in the Bill the arrangements which we firmly believe achieve that right balance. Ever since I came to the Home Office, I have been talking about balance and it is important that there is the right balance between strategic oversight by the Home Secretary and effective operational leadership of the agency by the director-general. The director-general will lead and direct the agency and be directly accountable to my right honourable friend the Home Secretary and through her to Parliament, because she is answerable to Parliament. I must make it clear that this is entirely consistent with the tried and tested arrangements in place at many non-ministerial departments, of which there are a number. Let us, for example, take two that have a Home Office focus: law enforcement agencies such as the Serious Fraud Office—despite what the noble Baroness said—and the Crown Prosecution Service. As she will be aware, there are others outside what we could call the Home Office family. For example, there is the Food Standards Agency, which is chaired by the noble Lord, Lord Smith, and is answerable to the Department of Health or Defra—I forget which. Again, it is a non-ministerial department that responds to a department.
The noble Baroness proposes creating an NCA board, headed by a non-executive chairman, which would lead and direct the agency and to which the director-general would report. Instead of an operational crime-fighter, the Opposition want to put a non-executive chairman and board in charge of the NCA. Instead of the director-general being directly accountable to the Home Secretary, he would report through the board, which would inevitably be a slower and—I stress—more bureaucratic process. That is not the best governance model for a law enforcement agency that has to respond quickly and decisively to threats to protect the public. It would be like having your local police force, for example, run by a committee instead of by the chief constable.
In that example, chief constables must be held properly to account on behalf of the electorate, as must the director-general. However, people want to see effective accountability, not bureaucratic accountability. Creating more quangos, which is, in effect, what the noble Baroness suggests in her amendment, is hardly the way to protect the public from crime. Chief constables will be accountable to a single, directly elected police and crime commissioner in their force area. He will be visible and able to be held to account by local communities. In the same way, the director-general will be accountable to the Home Secretary, who can then be held to account by the taxpayer, noble Lords in this House and colleagues in another place. It is the Home Secretary who ultimately has responsibility for ensuring that the public are protected from crime and who will come before Parliament to account for the performance and impact of the NCA. Inserting a predominantly non-executive board and chair between the director-general and the Home Secretary will not increase accountability; it will just create more bureaucracy and more officeholders.
The amendments suggested here essentially replicate the arrangements that were put in place for the Serious Organised Crime Agency, which are more typical of non-departmental public bodies. However, SOCA is the only law enforcement agency with the sole responsibility of fighting crime that has this quango structure. It was always an anomaly. I do not know why the previous Government thought it was necessary, compared to, say, the Serious Fraud Office or the Crown Prosecution Service. Putting that non-executive chair and committee in charge of SOCA has inevitably led to more bureaucracy without adding to accountability. It has reduced the clarity over who is responsible for what.
In saying that, I make no criticism of the current SOCA chair and board members, who are distinguished professionals in their fields and who have done a very good job as a committee. However, I do not believe that it was the right structure for a law enforcement agency. The NCA is an agency that will have the power and responsibility to investigate serious and organised crime, and the officers of which will, like the police, be able to use coercive and intrusive powers. In its work to protect the public, there must be absolute clarity of accountability. What the noble Baroness proposes in her amendments would do away with that clarity.
Amendment 4 further specifies that the NCA board should include representatives of police and crime commissioners in England and Wales and of the police service. They are obviously key partners for the National Crime Agency and the director-general will want to work with them. However the Bill already clearly provides that these key policy partners will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency. Clause 3 requires the Home Secretary and the director-general to consult strategic partners before determining the strategic priorities for the NCA. Clause 4 also provides for these partners to be consulted on the agency’s annual plan.
The noble Lord, Lord Harris, put forward the idea of the importance of non-executive directors to be part of the internal governance of the NCA. He referred to the framework document, which will be issued in due course. In accordance with the principles of good governance set out by the Cabinet Office and the Treasury, in that document we will set out what those internal arrangements must be. They will include the role of potential non-execs, which we will consider carefully as regards the NCA but not in the manner suggested in the noble Baroness’s amendments. We will make an outline of that framework document available to Parliament in due course, as I think I made clear at Second Reading, to make sure that we can discuss these matters at later stages of the Bill.
Turning to Amendment 5, my noble friend Lady Hamwee is right to emphasise again the importance of good governance for the NCA, with which we agree. We will set that out in the framework document in due course. But the supervisory board proposed by my noble friend is a step too far. As I have said, we believe that the NCA should be led by the operational head, the director-general. Unlike the Opposition’s amendments which we have just discussed, this amendment sensibly leaves the director-general as the person responsible for “leadership and control” of the agency as set out in Clause 1.
However, creating a supervisory board headed by the Home Secretary muddies the waters over the director-general’s line of accountability. Therefore, I do not think that I can give it much support at this stage. I hope that those explanations are sufficient to deal with the concerns raised by noble Lords about the governance of the NCA. Obviously, we will discuss other more detailed matters on some later amendments. No doubt, we will come back to this issue at later stages of the Bill. I hope that I have largely dealt with most of the concerns put by noble Lords as regards this amendment and that the noble Baroness, Lady Smith, will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, before the noble Baroness tells the House what she proposes to do with her amendment, perhaps I may raise with the Minister the way in which references to the framework document are set out in Schedule 2. We are told that the document will deal with ways in which the NCA is to operate, including how it,
“is to be administered (including governance and finances)”.
No doubt the Minister and his officials will consider further the points that have been made today—I am by no means certain what should happen after this stage on this issue—and at least they will consider whether the term “administered” covers the issues of governance which noble Lords have raised. To me, governance is not something which is included in administration; it is an issue on its own. To include it within administration downgrades its importance.
Lord Harris of Haringey
Before my noble friend responds to the debate, perhaps the Minister will also tell us precisely when we are likely to have this framework document. Clearly, he is saying, “Don’t worry your heads about the governance arrangements because when you see the framework document you will be entirely satisfied and it will all be all right. Therefore, this amendment is unnecessary.”. We are in Committee and have not yet seen the framework document. The Government announced their intention to create a national crime agency nearly two years ago, so it is quite extraordinary that this fundamental piece of the jigsaw is not available to us. It would be very helpful to have it.
Incidentally, while the noble Lord was speaking, I checked on the Food Standards Agency. As far as I can see, it has a fully functioning board; I believe that the noble Lord, Lord Rooker, is its chair rather than the head of the agency, but that is a mere detail.
Baroness Hamwee
Baroness Hamwee
I wish to speak also to Amendment 3. These are both probing amendments.
Amendment 2 seeks to remove Clause 1(10) from the Bill. That subsection excludes prosecution from the NCA’s crime reduction function. Is the point simply what the NCA itself can do? If so, why cannot it prosecute on its own behalf? The crime reduction function is defined and includes activities to combat crime listed in Clause 1(11), which refers to prosecution. If the NCA cannot itself prosecute, how is it anticipated that the process will work? Common sense tells me how it will work but I would like to hear that from the Minister. Why cannot the NCA have the option of prosecuting instead of commissioning prosecution, as it were?
Amendment 3 seeks to understand what is intended by the activity of mitigating the consequences of crime. Of course, that is not something to which I am in any way opposed, but can the Minister expand on that? Is it expected that the NCA will work in partnership with the many organisations which deal with mitigating the consequences of crime such as the Restorative Justice Council and Victim Support? I was pleased but a little surprised to see that referred to and would be glad to have some flesh put on those bones. I beg to move.
Lord Rosser
My Lords, as the noble Baroness, Lady Hamwee, has explained, she is, as I understand it, seeking an explanation of why the National Crime Agency is precluded from pursuing its own cases. Presumably, the National Crime Agency would pursue only more serious and organised offences although there is provision in the Bill for NCA officers to become involved in dealing with any crime, so perhaps that is not necessarily the case. Subject to the Minister putting me right, I assume the Government consider that the Crown Prosecution Service would become involved in pursuing most cases. If I am right in thinking that, one advantage is that the Crown Prosecution Service is able to take an independent look at the evidence available to support a charge, and make a decision on whether there is sufficient evidence to put before a jury with a reasonable prospect of success, whether it is in the public interest to proceed and whether the charges being brought are the appropriate ones in the light of the evidence.
One can argue that where an agency or body which is the one that has investigated the case and produced and collated the evidence is also the one that makes the decision on whether the evidence is sufficiently strong to make the charge stand up, there is a possibility that that agency or body may be too close to the case and too involved to make the necessary judgments in an entirely objective manner. We will listen to the Minister’s response to the amendment moved by the noble Baroness, Lady Hamwee, and to the explanations that she is seeking. My only further comment is that independent agencies do not always seem to have a high reputation when it comes to pursuing cases successfully. Some might raise the Serious Fraud Office in that context.
Lord Henley
My Lords, I am grateful to my noble friend for putting forward these amendments and for making it quite clear that they are probing amendments. I hope that I can deal with some of her concerns.
I start with her first amendment, which simply suggests leaving out subsection (10). As I said, she put it forward as a probing amendment and I understand what my noble friend is seeking to ask. In setting out the expectation that agency investigations will lead to prosecutions, it is necessary to provide clarity on the role that the agency will take in relation to prosecutions—hence subsection (10), which provides that the agency does not have the function of prosecuting offences or, in Scotland, the function of instituting criminal proceedings. Rather, the agency will work closely with the prosecutors—that is, the CPS in England or the Lord Advocate in Scotland—to ensure that the right criminal justice outcome is achieved. I think it is right that those two agencies should do that, along with, in Northern Ireland, the Public Prosecution Service for Northern Ireland. Therefore, there is no inconsistency here. The NCA will not itself undertake prosecutions but will work with others to undertake activities to combat serious organised crime. Such activities must, quite rightly, include the prosecution of offences.
I turn to my noble friend’s Amendment 3, which would insert at the end of subsection (11)(d),
“in conjunction with other appropriate persons”.
I am very grateful to her for indicating that she also wanted to get over the fact that this is important in terms of the relations of the victims of crime. We have been clear that the reason for establishing the National Crime Agency is the need to respond to the changing nature of the threat posed by serious and organised crime—it has changed and will continue to change—and to ensure that our response keeps pace with the changing threat now and into the future.
As we are all well aware, where there is a crime, there is also a victim of crime. If we are committed to the agency tackling some of the most serious and pernicious forms of crime that we face, so too we must be committed to the agency playing an important role and working with other agencies and the voluntary sector to support the victims of crime. I suspect that my noble friend would like the reassurance that the agency will be able to work with any partners as it deems necessary to carry out its work. I can certainly give her the assurance that the agency’s primary relationships will be with other law enforcement partners but it will also be important for it to build wider partnerships with the private and voluntary sectors.
I hope that that assurance goes as far as my noble friend would like. I want to assure her that in due course the agency will take its responsibilities for all people, but particularly for victims, very seriously. With that, I hope that she will be sufficiently satisfied and will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I am glad of that reassurance. I expected it but I am glad to have it. Indeed, there is something of a change in the nature of crime and the need to recognise what is required to assist victims of crime. We will no doubt come on to that in more detail with the next group of amendments.
I remain a little perplexed as to why it does not remain an option for the NCA to undertake prosecutions. Indeed, one might have thought that this was something that the framework document would address and give some explanation of, as it is about the way that the NCA is to operate. However, I have heard what the Minister has said and beg leave to withdraw the amendment.
Lord Henley
I take the noble and learned Baroness’s point and I will certainly consider a specific reference when it comes to the framework documents. I was dealing with what was in the Bill, which I think is very important due to the reason that I set out—the changing nature of crime. For example, 10 or 15 years ago we had never heard of cybercrime. Now we have. Things change and move on and the danger of listing things in primary legislation in the manner that she suggests is that it may confine us unnecessarily and is not the best way of dealing with these matters.
I hope that those assurances are sufficient for my noble friend to feel able to withdraw his amendment. We might want to have further words and noble Lords and noble Baronesses might want to see more in due course, but for the moment I hope that he is satisfied. I await what he has to say with interest.
Baroness Hamwee
Following up the noble and learned Baroness’s point, surely one would expect, among the strategic priorities that the Secretary of State has to address and determine under Clause 3—she will have to report to Parliament—the issues of child and adult trafficking to which she referred and the different purposes of trafficking.
Lord Henley
My Lords, I look forward to my right honourable friends setting out their strategic priorities and to reports in due course. Whether I am the one who has to respond in this House when they appear is another matter. I am sure that the sort of pressure that my right honourable friend will be coming under will be such that she will certainly take on board what the noble and learned Baroness has had to say.
Baroness Hamwee
Baroness Hamwee
My Lords, I can be extremely brief on this. Paragraph 13 of Schedule 1 provides for secondment to the NCA. My amendment would allow for secondments both ways. I felt that it was an issue worth raising because I think that secondment can often be extremely helpful to both organisations involved. It may be that the Minister will tell me that it is not necessary to provide for NCA officers to be seconded to a UK police force because that would be covered by some other existing police legislation. If it is covered, that is well and good; if it is not, why not? I beg to move.
Lord Rosser
My Lords, as the noble Baroness, Lady Hamwee, said, this amendment makes provision for National Crime Agency officers to be seconded to a UK police force, as well as for persons to be seconded to serve as National Crime Agency officers. I would like to raise two points on this paragraph in Schedule 1. It refers to “persons” being seconded to the National Crime Agency to serve as National Crime Agency officers. There is no qualification before the word “persons”. Could it literally be anybody and still be within the terms of the statutory provisions of the Bill? I ask that because paragraph 7(2) of Schedule 1 says:
“A person may not be appointed as Director General unless the Secretary of State is satisfied that the person—
(a) is capable of effectively exercising operational powers; and
(b) is a suitable person to exercise operational powers”.
In other words, if the Secretary of State makes an appointment that stretches credibility, and the Secretary of State could have satisfied himself or herself on the points referred to, presumably the appointment could be challenged under the provisions of the Bill. There is, however, no apparent requirement on the part of the director-general to satisfy himself or herself on any point in relation to “persons” seconded under the Bill as it stands, or indeed to National Crime Agency officers seconded under the terms of the amendment, although one could take the view that if they were existing National Crime Agency officers there ought not to be a problem.
Can the Minister say why there is no requirement in the sub-paragraph that we are discussing for the director-general to have to satisfy himself or herself that any person seconded to the National Crime Agency has to be, for example, appropriately qualified, bearing in mind that the Bill lays down requirements on the Secretary of State over the appointment of the director-general?
Finally, can the Minister say what the definition is of a National Crime Agency officer? Is it anyone employed by or working for the National Crime Agency, or does it refer only to certain kinds of posts or activities being undertaken within the National Crime Agency?
Earl Attlee
My Lords, I am grateful to my noble friend for moving this amendment. I appreciate that she is keen to encourage the exchange of staff both to and from the National Crime Agency. Indeed, interchange in both directions will be key to ensuring that the NCA benefits from the collective experience of policing as well as sharing its knowledge and specialist skills with UK forces.
SOCA officers regularly operate alongside operational colleagues in the police service, and it is vital that NCA officers are able to do the same. It is for this reason that the Bill provides for police officers to be seconded to the NCA and to be designated with the powers of an NCA officer during the period of their secondment. Two-way assistance provisions in Schedule 3 allow for NCA officers to operate under the direction and control of the chief officer of a UK police force and vice versa. However, there may be some merit in providing separately for more formal arrangements whereby NCA officers could be seconded to a UK police force for a sustained period of time. This might allow forces to benefit from the experience of NCA officers on a longer-term attachment.
If my noble friend will agree to withdraw her amendment, I can undertake to consider the matter further in advance of Report. At this stage I cannot commit to bringing forward a government amendment, but I agree that we should explore this issue in more detail. I will, of course, write to her once we have reached a conclusion.
The noble Lord, Lord Rosser, asked me a few technical questions. I suspect that I will have to reply to some of them in writing. He asked whether any person can be seconded to the NCA. The answer is yes. There is no reason why any person could not be seconded. However, there must be clear arrangements for the use of powers. It is worth pointing out that a person can be an NCA officer, but various powers can be designated for that person. Of course, it is important that powers are designated only where the person is properly qualified to exercise those powers.
Baroness Hamwee
My Lords, the less I speak, the more concessions we get, and I am very grateful to the Minister for that. Of course I will seek to withdraw the amendment. When the noble Lord, Lord Rosser, was raising some perfectly valid questions, it seemed to me that the terminology of paragraph 13—that the director-general “may make arrangements”—was likely to cover qualifications and scope. “Make arrangements” is a pretty broad provision.
Earl Attlee
My Lords, on the need for qualifications, the director-general will want to be advised of the suitability of potential secondees. They will be treated as NCA officers and will need to satisfy the usual criteria in order to be designated with powers.
Baroness Hamwee
My Lords, I look forward to talking to the Minister further about secondment and I am grateful for his offer. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
This amendment concerns the same paragraph of the Bill with regard to specials, whom I am beginning to think of as the National Crime Agency’s equivalent of interns.
Paragraph 14(4)(c) provides that the NCA is not prevented from,
“providing for the payment of sums to, or in respect of, current or former NCA specials to compensate for loss of salary attributable to injury or death resulting from the performance of duties as NCA specials”.
This is a probing amendment, the aim of which is to seek a better understanding of the provision. I assume that we are talking here about salary from their normal job, as it were, given that they are not being paid for being specials.
I was prompted to table the amendment by the thought that any claim that is made following injury or death in the course of a special’s employment is likely to be for far more than his salary. I am not sure that it is possible to exclude a claim for the normal areas of compensation that would arise in the event of injury. It certainly seems to me that it is not proper to do so. Why is this provision required? Is it as narrow as I have understood it to be? If it needs to be stated because the powers of the NCA would not be adequate if it were not, should it not be stated in full in the way that I have indicated? I beg to move.
Lord Thomas of Gresford
I speak in support of this amendment. When I looked at it, I thought that I would not advise anybody to become a special in the National Crime Agency as not only do you not get paid but even if you are injured or killed in the course of your employment as a special, you get nothing other than compensation for salary. Therefore, if you are not a salaried person—for example, if you are self-employed—you get nothing. You get nothing for the injury itself. Presumably, the Government have in mind that you would sue somebody, whether it is themselves or the criminal concerned who caused the injury or death. Do they have in mind that a person should go to the Criminal Injuries Compensation Board to recover compensation? Putting in compensation for salary is so limiting that there must be some purpose behind that wording. I look forward to hearing it.
Earl Attlee
My Lords, I am grateful to my noble friend for moving her amendment. It is, of course, important that the National Crime Agency is able adequately to provide for the rare and very sad occasions when an NCA special is injured or killed in the line of duty. I would like to point out that when I joined the TA I did not know that I was going to be paid. I suddenly started receiving giro cheques when I was at school which were double the recommended term’s pocket money. I spent about 18 years in the TA as a junior NCO. If, sadly, I had been injured, I would have expected that a war pension would be paid on the basis of my rank, which stayed very junior for the first 18 years. Given the different status of NCA specials within the agency, the Bill expressly provides for the NCA to be able to pay sums by way of compensation for loss of salary in such an event. The details of that scheme will need to be drawn up over the coming months.
I suspect my noble friend will find that the inverse speaking time law applies to this amendment as well. She questioned whether the compensation should be limited to loss of salary alone. That is a fair question. An NCA special injured in the line of duty could, I accept, suffer other financial loss. If my noble friend would agree to withdraw her amendment, I should be happy to consider this point in more detail over the summer. At this stage, I cannot commit to bringing forward a government amendment on Report but I can certainly assure her that we will carefully consider the points she has raised and let her know the outcome of that consideration in advance of the next stage.
Baroness Hamwee
My Lords, the Government need have no fear that their schedule for getting through this Bill in Committee is in any danger, because I think that we will speak for briefer and briefer periods. I am grateful to the Minister and look forward to seeing how this goes. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, I have Amendment 21 in this group and it concerns a more general point. I do not know whether—how did my noble friend Lord Attlee coin it?—the law of inverse speaking time will apply here but I think that it should.
Clause 2(4) provides that:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
My amendment, which may not be perfect in its drafting but is, I think, clear enough in its intention, would add,
“for the purposes of counter-terrorism functions”.
My noble friend Lady Thomas of Winchester is here for the next debate and I had not warned her about this, but I will set her, as chair of the Delegated Powers Committee, on to the Minister if the Government do not acknowledge that there is something in this.
Baroness Smith of Basildon
My Lords, I listened to the noble Lord, Lord Alderdice, with some care. As noble Lords know, I have maintained an interest in Northern Ireland issues, having spent a number of years as a Minister there. I find it very difficult to understand how the Government can proceed with issues that affect Northern Ireland, particularly in this area, if there is not agreement from the First Minister and Deputy First Minister or discussions have not been held with David Ford, the Minister for Justice.
This is a sensitive area and I appreciate that, as the noble Lord, Lord Alderdice, said, these things can take some time to resolve when the Executive in Northern Ireland meets. Decisions by the Executive may not always be speedy, but the passage of the Bill will not be speedy either in that the Committee stage will continue after the Summer Recess. I hope that the Minister will take on board the comments of the noble Lord, Lord Alderdice, which we support. We think that the First Minister and Deputy First Minister should have an opportunity to comment on this and I hope that some agreement can be reached prior to moving forward with these clauses.
Crime and Courts Bill [HL]
Baroness Hamwee Excerpts(11 years, 10 months ago)
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Baroness Butler-Sloss
My Lords, I am sorry to say that I have been rather slow on the uptake and have only just read the report of the Constitution Committee. Since this is Committee stage, I believe that I am permitted to speak even though it is after the Minister.
I support what the noble Lord, Lord Rosser, has proposed. I can see that there may well be great advantages in the National Crime Agency one day taking over the role of the Metropolitan Police. Nevertheless, as I understand it from what the Minister said, there will be a review as to whether this is the appropriate way to do it. I cannot see why the Government could not deal with this in one of two ways—I speak, of course, as a novice in the procedures of this House compared with the Minister and, indeed, with the noble Lord, Lord Rosser. If the Government are fairly clear that this is what they want to do, I cannot see why they cannot put it firmly in Clause 2 that they will transfer to the NCA from the Metropolitan Police, but not until 2013 or 2014 so that it does not come into force until after the Olympics and the Paralympics. Alternatively, if they do not know for certain that this is what they want to do, why on earth can they not just put in a very short Bill to deal with counterterrorism? That should not take an enormous amount of time going through both Houses, if it does not have added to it all the stuff that tends to be added to almost every Bill by any Government. It is possible to pare it down to just this point.
I share with diffidence, but none the less quite firmly, the concerns of the Constitution Committee set out in the first part of its report. Since the noble Lord, Lord Pannick, is not here, I thought it was important that a Cross-Bencher should express a view so that it is not seen just as a party political manoeuvre of any sort.
I think that there are a number of disadvantages to using the super-affirmative procedure. First, although it is perhaps at the highest ranking of subordinate legislation, it is not primary legislation. Perhaps more importantly, if anything is wrong with the drafting—drafting is not always perfect—we cannot tease it out in debate. It stands or falls in its entirety. We can have amendments to primary legislation that we cannot have when using the super-affirmative procedure, even as I would understand it.
I share the concerns of the noble Lord, Lord Rosser, but I particularly share the concerns of the Constitution Committee. I just wonder whether the Government are right to try to proceed this way on what seems to be a clear Henry VIII clause. Perhaps it is almost time that Henry VIII was put to bed.
Baroness Hamwee
My Lords, I like the notion of Henry VIII being put to bed. He used to say that of others, did he not?
It will be clear to the House from my amendment before the dinner break that I am merely an ordinary lawyer. I am probably what my noble friend Lord Roper calls a “cooking solicitor”, the analogy being cooking sherry. I am glad to have understood a little better how these things work.
I did not want to come in before the Minister spoke, because I wanted to hear what he had to say. Like the noble and learned Baroness, I am a little confused about the rationale for postponing this measure when we know that this Bill will still be in Committee in this House—it will not even have reached the other House—after the Olympic and Paralympic Games. Like her, I am not sure why that is the case, unless the Government have some reason to feel that it would undermine the authority of the Metropolitan Police during the Games. I cannot see it, given that somebody who is being dealt with under some terrorism charge is not going to thumb their nose and say, “Yoohoo, you’re not going to have this function for much longer”. That is not life, is it? So I remain confused about that.
Like the noble and learned Baroness, I feel that although the super-affirmative procedure clearly gives more opportunity for debate and response than the simpler secondary legislation procedures, the response to what the Minister proposes is almost a nuclear option, because it would mean the whole order being rejected rather than dealing with small parts of it. On such a serious matter, which I know that the Government have thought about very seriously, I am reluctant to say—but I do say it—that I am not convinced. I expected the Minister to tell the Committee that legislative time was short, and so on. I do not think that he has prayed that in aid, but had he done so I would have said that this was so important an issue that time needs to be made for it.
Lord Henley
My Lords, first, I take up a point that my noble friend Lady Hamwee took up when commenting on the remarks from the noble and learned Baroness, Lady Butler-Sloss, when she said that it was time to put Henry VIII to bed. She might find that that remark appears in The House magazine fairly soon as quotation of the week. But I leave it for her and the editors of that magazine. It was a very good remark and we all knew what she meant.
I want to make it very clear, as I hope that I did in my opening response to the noble Lord, Lord Rosser, that we do not want to address the issue as to whether counterterrorism should go in at this stage. My right honourable friend the Home Secretary has made that clear the whole way through. No decision has been made.
The noble and learned Baroness suggested two alternatives, because she was unhappy with the use of Henry VIII powers. She suggested that we could put the provision into the Bill with a delaying clause and enact later, but that would imply that we have already made up our minds on this. This is the point that I want to get over—that no decision has been made, and we do not want anyone to assume that a decision has been made. She then said that, if we did not want to do that, there was the route of primary legislation. On that point, I am grateful to my noble friend Lady Hamwee, who said that you could always find a slot for primary legislation. I can tell her that in my experience in government and opposition, that is simply not the case. The noble Baroness, Lady Smith, nods at me. We all know the difficulty of finding those slots. Very occasionally, if it is an emergency and you have agreement from all sides of the House, you can move very quickly. But finding legislative slots is very difficult. That is why in the end we thought that going down a route where we used the super-affirmative procedure provided the right level of scrutiny by both Houses. I appreciate that it still means that there is not the ability to amend in other ways, but with the super-affirmative procedure there is considerably greater examination of what is in front of both Houses than with an affirmative model or a negative resolution. That is probably why I rather cynically said at the beginning that we could have offered the negative resolution procedure and then in one House offered the affirmative as a concession and then moved on to the super-affirmative. As it was, we considered this very carefully and decided that the super-affirmative was appropriate. We think that we have probably got it right. I hope that we have and that the House will accept that.
I appreciate that the Constitution Committee disagrees with our view. I received its report this morning as I came in and have seen what it had to say at paragraph 7. However, I pray in aid the fact that another equally great committee of this House, the Delegated Powers and Regulatory Reform Committee, has looked at the measure and felt that it was not inappropriate. Therefore, there can be differences of view. I go back to the phrase that I have used on many occasions in relation to the Home Office—in the end one has to find the right balance. I hope that we have found the right balance on this and that the House will accept that Clause 2 is necessary so that we can consider this matter in due course. As I said, I leave it to the noble Lord, Lord Rosser, to decide how he wishes to proceed.
Baroness Hamwee
I wonder whether we have fallen into the trap of seeing this matter through the lens of parliamentary procedures. However, there is another way of looking at it—namely, looking at how the NCA actually operates. If we are undertaking legislation setting up a new agency, which is not designed from the start to deal with counterterrorism—we must assume that that is the case, and I do not expect the Minister to respond to this as I am putting it rather rhetorically—should we not let it be formed, see how it operates and consider the addition of a very serious function when we know something more about how it is functioning? As I say, we are inevitably looking at this in terms of the way we operate, but we have left out that rather serious consideration.
Lord Rosser
My Lords, I thank all noble Lords who have taken part in this debate and thank the Minister for his response. It is clear that the Government are seriously thinking about making this change although I accept that the Minister has said that no final decision has been made. However, it is clear that the Government are seriously contemplating this change; otherwise, they would not have included this clause in the Bill. If the Government have reached the stage of seriously contemplating the change, although I accept that no final decision has been made, as I said, the odds are probably on the Government making that change; otherwise, they would not have gone so far as to put this clause in the Bill.
However, as I said, this is not just about adding to functions, which is how the Delegated Powers and Regulatory Reform Committee looked at this matter; it is also about taking those functions away from a body that has had them for some time and has expertise in that field. The Government may be able to make out a strong case for doing so, and I would not want my comments to be taken as meaning that I have decided that they cannot make out a strong case for making the change. Perhaps they can; we will have to wait and see. However, the issue concerns what is the appropriate way in which the matter should be dealt with. Should it be dealt with on the basis of a super-affirmative order, which restricts the amount of debate and discussion which takes place, or should it be dealt with on the basis of primary legislation? If no final decision has been made—and I accept what the Minister says—then clearly this matter could be left and be dealt with in further primary legislation once a decision is made to change the present arrangements.
The Minister addressed that point in part. I may have written down incorrectly what he said and, if I have, I apologise. I wrote that he said that primary legislation is a lengthy process and quite difficult. However, in a parliamentary democracy that does not seem to be a very good argument for not making a change of this magnitude through primary legislation. Saying that primary legislation is a lengthy process and quite difficult sounds like a plea that all Governments of whatever colour have probably made over the years. However, as I said, that is not an argument for dealing in this way with an issue of this magnitude and importance.
The Minister referred to Clause 2(4), which states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
I had not assumed that it extended beyond counterterrorism but, even though it relates purely to counterterrorism, the fact that:
“An order under this section may amend or otherwise modify this Act or any other enactment”,
is still a fairly extensive power.
I sincerely hope that the Government, through the Minister, will rethink this issue, although at the moment the Government clearly take the view that the super-affirmative procedure is appropriate. At this stage, I conclude my comments by again referring to the Constitution Committee, which said:
“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.
I hope that the Minister and the Government will reflect on that. In the mean time, I do not intend to pursue my opposition to Clause 2 standing part of the Bill.
Baroness Hamwee
“(3) Upon a determination under this section, and any variation of the determination, the Secretary of State shall lay a report before Parliament setting out the strategic priorities.”
Baroness Hamwee
My Lords, I think that Amendment 23 can be dealt with quite shortly. Clause 3 provides for the Secretary of State’s determination of the NCA’s strategic priorities, and our amendment would provide for her to lay a report before Parliament upon such a determination.
Schedule 2 deals with publication of the framework document and annual report but the strategic priorities seem to be of a sufficient importance that reporting them should not wait for the annual report. I cannot immediately see that they would be part of the framework document, although I may have misread that. Perhaps the Minister can reassure me about publication of the strategic priorities, which I assume will be a matter for public consumption. If this is not done through the sort of arrangement that my amendment proposes, how will it be done? I beg to move.
Baroness Smith of Basildon
My Lords, I have some sympathy with the noble Baroness’s contribution because the strategic priorities seem to be a bit of a puzzle. A key part of what the NCA does must be that the public and everyone else can understand the strategic priorities of this organisation. When you look through the Bill to see what the role of the NCA is, the description is extraordinary broad. It has the function of,
“gathering, storing, processing, analysing, and disseminating information that is relevant to any of the following … activities to combat organised crime or serious crime”,
and,
“activities to combat any other kind of crime”,
or “exploitation proceeds investigations”.
That is an extraordinarily broad area. It covers all kinds of crime, yet the strategic priorities are a very small part.
I looked to see whether there was something about the strategic priorities within the framework document. Like the noble Baroness, Lady Hamwee, I could not see it there. I am not questioning the right of the Secretary of State to determine those priorities: the Secretary of State should have that strategic oversight. But I am not clear what scrutiny there is and what form of publication there will be. Clause 3 states:
“The Secretary of the State may determine strategic priorities”,
including whether he or she wants to have priorities or not, and will consult strategic partners, the director-general and anyone else the Secretary of State thinks appropriate. It is extraordinarily broad.
If we then look at operations, it is clear that the strategic priorities play an enormous role in what the director-general then sets out in the annual plan of what the organisation is to do. I feel that we need more information about this. Will the Minister say something about the relationship between the strategic priorities of the NCA and the framework document? I am not clear how the two work together. If we look at Schedule 2, the framework document seems to describe the,
“ways in which NCA functions are to be exercised”,
and the,
“ways in which the NCA is to be administered”,
but that will depend on what the strategic priorities are. Some guidance and enlightenment from the Minister would be useful.
Baroness Hamwee
My Lords, I am grateful to the noble Baroness, who articulated my concerns rather better than I did. I will, of course, think about what the Minister has said but I remain a little anxious. Given that the strategic priorities may be determined and modified to a new set of strategic priorities out of synch with the annual plan and will therefore become known through the mechanism of the annual plan possibly many months in arrears, I wonder whether that is appropriate. It seems to me that they are so important as to justify some form of publication in their own right. However, I will think about what the Minister said. I beg leave to withdraw the amendment.
Baroness Hamwee
“NCA and freedom of information
In Part V of Schedule 1 to the Freedom of Information Act 2000, at the appropriate place insert—“The National Crime Agency established under the Crime and Courts Act 2012.””
Baroness Hamwee
I have also tabled Amendment 65 in this group, which is essentially consequential on Amendment 26. Amendment 26 would make the NCA subject to the Freedom of Information Act. I know that this is a matter that Ministers have considered very carefully, and they have taken the view that so much information would be exempt under the Act that it is more straightforward not to bring the NCA within the scope of the Act.
I do not intend to say a great deal at this stage, because it is really for the Minister to justify the exclusion of the NCA rather than for me to justify its inclusion. I appreciate that there are important provisions in the Bill requiring the director-general to publish information and material, including the annual report and the Secretary of State’s laying of the annual report before Parliament, but we will not know what the director-general and the Secretary of State have chosen to omit. If one makes a freedom of information request, the very fact of the recipient relying on an exemption sometimes gives some sort of clue, and the override regime provides for the application for a decision by the Information Commissioner and an appeal to the tribunal.
However many reports the director-general and the Secretary of State are required to publish, the public can only react to them. They cannot ask questions. Members of Parliament can ask questions and instigate debate, but in some cases that may be unnecessarily cumbersome and a bit less incisive. The freedom of information regime gives a proactive tool to the citizen. I remain to be convinced—I look forward to being convinced—that it is appropriate that that tool should not be available to the citizen in the case of the National Crime Agency. I beg to move.
Lord Rosser
Our Amendment 66 qualifies the National Crime Agency exemption to cover only those functions subject to exemption prior to 1 April 2012, which I believe was the date on which the NPIA functions were transferred to SOCA. Schedule 8 provides that the NCA will be exempt from freedom of information legislation. However, the functions of the NPIA and the UK Border Agency, which the Bill proposes to be covered by the NCA, were not previously exempt from the Freedom of Information Act. As yet, we have had no real explanation or justification for that exemption, especially as an extensive exemption regime already exists under the Freedom of Information Act.
SOCA, of course, is exempt from the operation of the Freedom of Information Act, but, as I said, as the National Crime Agency’s functions extend beyond those undertaken by SOCA, so the extended exemption provided for in the Bill is significant and needs justification. Police, immigration services and customs are not exempt and the National Crime Agency will effectively be covering the work of these agencies, so there must be an argument for not exempting from the operation of the Freedom of Information Act additional functions taken on by the NCA from the NPIA and the UKBA that were not previously exempt from the Act.
Lord Henley
Without notice, I do not think that I can answer that question, but I will certainly look at it. The point that I was trying to make is that the noble Lord is trying to make something rather peculiar here: SOCA is completely exempt and is coming into the NCA, but other bodies that are not exempt are also coming in and they are then all one whole. In effect, he has created something that, when I mentioned the curate’s egg, I probably got exactly right. You cannot do it in a curate’s egg way because the whole egg will be bad once one part of it is bad. That is why we want to do it our way.
Obviously some bodies could be exempt, but on this occasion we think that it is right to create the new agency, as I am sure noble Lords opposite would have done if they were creating a new national crime agency to build on SOCA, just as they did with SOCA itself. It is for those reasons that we would like to preserve the exemption for SOCA for the new agency, and we think that what the noble Lord is suggesting is illogical or worse, and certainly not the right way to go about it. I hope that my noble friend will feel able to withdraw her amendment and that the noble Lord will consider carefully what I have said, particularly in the light of, as my noble friend and others might remember, the debates on the Bill that created SOCA back in 2005.
Baroness Hamwee
My Lords, the Minister started his reply by talking about balance. I have always thought that that was what the Freedom of Information Act exemplified within itself; it does not provide that everything can be subject to a FOI request but provides the exemptions.
I do not believe that the general reporting requirement to which the Minister has referred will cover the same sort of functions as FOI would do. I am not arguing against the exemptions, but there are different ways of dealing with issues of transparency and they produce different results. We have heard that the NCA depends on the confidence of its partners and that organised criminals could exploit FOI. Well, this would not be the first organisation that had to be very careful about what it disclosed. If there is an issue of that sort, maybe after this evening, and possibly in private, the Minister could give us some examples of where police forces, which are subject to FOI, have been caught out in the way that he suggests would be a danger if the NCA were subject to the provisions.
SOCA is exempt because of its particular functions. I am afraid that I remain unconvinced that the NCA—extending, as the noble Lord, Lord Rosser, has said clearly, to other functions—should be exempt in its totality. What I draw from this is the anxiety of the intelligence agencies not to let anyone else be in a position where they might take decisions that the intelligence agencies would not like. I shall withdraw the amendment today, but this issue justifies further examination. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) The framework document shall include—
(a) a protocol regarding the conduct of relationships between the NCA and each of the persons referred to in section 5;(b) a protocol regarding the conduct of relationships between the NCA and each of the persons referred to in Schedule 3; and(c) a protocol regarding the co-ordination of training of members of the NCA and of the forces and agencies referred to in section 5 and the inter-operability of the equipment used by the NCA and those forces and agencies.”
Baroness Hamwee
My Lords, Amendments 31 and 46A are also in this group. I will speak to Amendment 31 and my noble friend Lady Doocey will speak to Amendment 46A.
I need to credit Amendment 27A to my noble friend Lord Thomas of Gresford who, I think at Second Reading, asked the Minister—I am not sure that the idea did not come to him during Second Reading—whether there should be some sort of protocol to govern the relationships between the various agencies—I use that term in the widest sense—that will be affected by the NCA. We had a similar notion that was pursued during the passage of the Police Reform and Social Responsibility Act.
Clause 5 deals with relationships between the NCA and other agencies. The NCA can request or require them to undertake a task or indeed can itself be tasked, and there are those with which it has a duty to co-operate, to exchange information and to give or be given voluntary or directed assistance. All of that is easy to say and probably less easy always to implement. These relationships can be tricky. The different organisations will have different, inevitably competing, priorities. They will all have different governance structures. You cannot require people to co-operate with one another. Having said that, I think that the Police Reform and Social Responsibility Act did require that and I never quite understood how you could insist on co-operation. There will be different views, not just as to what is to be done but also how it is to be done. All of this suggests that there will need to be protocols—I have referred in the amendment to matters which I know my noble friend will take up, in particular training and the interoperability of equipment—and a mechanism to bring the different agencies together.
Amendment 31 deals with consultation in the preparation of a framework document including the protocol. I thought it was appropriate to bring it in at that point as well. I am not wedded to the arrangements being as I have spelled them out but we need to understand how the Government envisage these things being put into practice rather than just being, as I say, fairly easy words on paper. I beg to move.
Baroness Doocey
My Lords, I would like to say a few words about three issues. The first is training. Most of the training that is currently done with police forces tends to be computer-based training. There is a place for computer-based training but mainly to deliver knowledge or awareness. The NCA is going to be a very major body with huge responsibility, and most of the training the officers are going to require will impact on attitudes and behaviour. Therefore, I believe it needs to be done on a one-to-one basis. I urge the Government to consider putting some money into this aspect of the training. I know that one-to-one training is much more expensive than computer-based training but I believe, first, that it is absolutely essential and, secondly, that it will pay dividends because just doing computer-based training will not provide the sort of officers that will be needed for this role.
The second issue is IT. There is no doubt about the IT requirements of the NCA. The intelligence hub that will be at its centre will require major IT and the functioning of the hub will be vital to the functioning of the NCA. There have been many interoperability problems, not just within local police forces but between national police forces. I remember the fiasco when the Metropolitan Police tried to upgrade its mobile data terminal with in-car automatic number plate recognition, which resulted in huge problems. Systems collapsed and had to be rebooted every time the police got into a car. The problem was eventually resolved, but there were basically no systems for several months and there were great costs. I believe that the lessons learnt from that ought to be required reading for anyone who is going to have anything to do with IT for the NCA.
Airwave, the system whereby police radios should speak to each other, is another issue. After many upgrades and after many millions of pounds have been thrown at it—I was very involved in this—there are still problems. There are particular problems with, for example, the Met talking to forces next door. For example, where I live in Hampton, the problems with Met Police radios trying to talk to Surrey Police radios have not yet been resolved. There are going to be teething problems at the very least.
Multiple keying bothers me particularly. Most police systems are antiquated and require the input and reinput of data time and time again. I am not convinced by anything that I have read so far that the Government have looked at this in sufficient detail and given it the priority that it really deserves and needs to resolve these problems. I urge the Government to set up a small specialist group to look specifically at IT interoperability systems before they go much further and certainly before the passage of the Bill through both Houses.
Finally, I turn to Schedule 4 and the regulations about equipment. I would be very interested to understand what this means because it seems to suggest that the Secretary of State is going to determine what equipment the NCA should use. It seems at odds with the idea of setting up a very large organisation under a director-general then to prescribe and insist that it uses particular equipment. That seems to be totally against the spirit of everything else in the Bill. I would welcome some additional information on that.
The Deputy Chairman of Committees (Lord Geddes)
We have reached Amendment 27A. Is the noble Baroness, Lady Hamwee, withdrawing it?
Baroness Hamwee
My noble friend mistook my mouthing “Do you want to say anything?” to her for my requesting her to withdraw the amendment. Perhaps I may respond to some of the comments that we have heard. I am perfectly prepared to accept that the framework document is not the appropriate vehicle for minutiae. It will be easier to assess that when we have seen a draft. The same goes for the consultation, which is the subject of Amendment 31. The Minister is saying that, under the amendment, the people I have suggested should be consulted will not be subject to the framework document.
I am afraid that this response is a little circular. I am not convinced that there is not scope for a protocol elsewhere. As I have said, the framework document may not be the right place for it. We tabled these amendments partly in order to get points about issues of equipment training and IT on the record, because they are important. Again this may not be the best way to do it, but it is important that the issues are raised.
Like my noble friend and the noble Baroness, Lady Smith, I was puzzled by the reference to equipment and the Secretary of State’s role, which seems to be an involvement which should be, as it were, below her pay grade. A protocol may not be the best way in which to deal with these issues, but however much good will there is around all this, it must be better to have ways of resolving differences rather than simply relying on good will or a duty to co-operate. To me, that begs the question of how that duty will be enforced. However, for the moment, I beg leave to withdraw Amendment 27A.
Crime and Courts Bill [HL]
Baroness Hamwee Excerpts(11 years, 11 months ago)
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Baroness Hamwee
My Lords, yesterday I was asked—as we are so often—how we inform ourselves when we have to consider government proposals. I explained the range of sources, including interest groups and organisations which brief us—lobby, in the best sense of the term. On that basis, although it is obviously not the only test, this Bill presents us with some issues to probe and some where the probe may become a challenge. It gives us the opportunity to seek to deal with issues which are not included—as usual—or where the flesh is not yet on the bones and the bones as well as the flesh will be significant. There will also be a lot that is genuinely interesting. The Bill has provoked comparatively little opposition, but lest Ministers think that this means a quiet life, I also explained to my questioner that Members also bring their own experience, expertise, curiosity and judgment.
My questions about Part 1, on the National Crime Agency, come from curiosity as much as anything, and from a concern that, however much one supports a proposition—especially if one supports it—one needs to be satisfied that it will work well. I am particularly interested in the governance of the NCA, its relationship with other players in the policing landscape, and its powers. From what I have heard over the past few weeks and months, it seems that there has been much good will so far in the work to establish the NCA. However, the tasking arrangements, the powers of the NCA to impose requirements on police forces and other agencies to undertake specific activity, need clear and probably detailed structure. It is often easier to find consensus over a principle than the particular detail.
We spent a lot of time in this Chamber and elsewhere in the last Session discussing chief constables’ operational independence when dealing with the Police Reform and Social Responsibility Act. It seems to me that there are similar issues of accountability, transparency and cost, as well as the possibility of clashes over priorities and how to do things as between the NCA and police forces.
The underlying rationale of the reorganisation is that crime does not come neatly pigeonholed and that organised crime of all sorts impacts at all levels—international, national and local. Therefore, it is understandable that there are concerns about the role of police and crime commissioners, who have responsibility for the totality of policing in their area. These governance issues need a clear structure.
There is obvious concern—and the noble Baroness mentioned this—that CEOP in particular should not be fettered by being brought into a new agency. The Government have said that it will retain its operational independence and that that phrase is not just a formula. The Government acknowledge CEOP’s innovative partnerships and mixed economy of staff from different disciplines. However, the culture in our policing service is very strong, so determination will be needed to preserve CEOP’s identity. The hope must be that the imagination that CEOP has shown is far from being muzzled but is a source of inspiration beyond that command. How its governance, retaining external partners, can be effective is bound to be an issue, as is how the NCA as a whole sets its priorities.
CEOP is, in the jargon, a brand and so is SOCA. Those who have worked on drugs issues, in particular, tell of SOCA’s worldwide reputation—I have heard Colombia mentioned—and that is among the good guys, so presumably it has quite a reputation among the bad guys too. That must be preserved.
I can understand the links between SOCA and economic crime but I confess that I am not hugely clear about the remit of the Economic Crime Command—or, rather, in this context how it will operate. Does ensuring a coherent approach to economic crime across a range of agencies need a separate command? Why is the Economic Crime Co-ordination Board to remain, and why is the National Fraud Intelligence Bureau to be left with the City of London Police? Is it—or am I too much of a cynic?—that in the latter case, at any rate, the turf war was just too difficult?
I would certainly go along with the argument, which I have heard deployed over the police—that if something is working well it is best not to disturb it. However, I am not sure how logical that is in this particular context. I am puzzled, too, about why the National Cyber Crime Unit is not a command. What is the significance of the structural difference?
I turn from the largest part of the Bill—although of course the word count and the length of the schedules can be misleading—to the shortest, at any rate until Clause 23 is replaced. I am delighted at the prospect of a serious concentration on non-custodial sentences. They are often much more effective, by which I mean that they reduce reoffending, address an individual’s underlying addiction or mental health problems, and do not cause collateral damage to the offender’s family or indeed to the offender, and of course they are much less expensive. Therefore, there are excellent economic and social reasons for having them.
I had not known that there is increasing recognition of the effectiveness of community sentencing. The Prison Reform Trust, among others, reports this. I add to that Peter Oborne’s support in the recent Community or Custody report under the auspices of Make Justice Work. I question whether there is such a lack of confidence in community sentences as is feared. Peter Oborne was brave—and, I think, accurate—in saying that political correspondents,
“report law and order issues in a false and often misleading way”,
with false distinctions between what is “tough” on crime and what is “weak”.
Although I am very conscious of the knowledge and expertise of all the speakers who will follow, I shall express one area of concern and perhaps tread on some toes. My concern is how the proposed punitive element may play out, and whether extended curfews and complex restrictions will themselves lead to a breach of orders with the imposition of sanctions—imprisonment—that will undo all the good. Community sentences must not be a soft option. That is important for victims as well. Restorative justice is not a soft option for the offender or the victim but it is deserving of development. We must all have had the experience of suddenly—shockingly—seeing something through another person’s eyes. One thing that a community sentence, or any sentence, is not about is humiliation. It is footage of defendants in the United States in shackles that prompts both that comment and my caution about having cameras in court. I said in our debate a couple of weeks ago that the sky had not fallen as a result of the broadcasting of Parliament. However, that does not mean that I am an enthusiast for unrestricted filming in court. I heard what the Minister said today, as he has on previous occasions. Probably what is most important is that the judiciary retains control.
One provision that is not in the Bill—I do not know whether we can squeeze it past the Long Title—is reform of the Public Order Act. Do I have a right not to be insulted? I do not believe so. More importantly, if you insult me, should the weight of the criminal law be brought to bear? Insult is so subjective. Section 5 of the Public Order Act is, in my view, bad law. It should go, and so should the term “insulting” in Section 4A.
Another issue which it may or may not be possible to edge in past the Long Title is a matter that my colleagues in the Commons raised—the anomaly regarding the citizenship of children born overseas to an unmarried British man. The law changed to confer British citizenship on such children born after 2006, as the use of DNA progressed, but not for those born before that date. However, that issue would not command the time that we will certainly give to the immigration issues raised in the Bill. I doubt that the powers of immigration officers will pass this House unchallenged, particularly the investigative powers.
As for the provision on family visas, I would simply observe at this point that if making a fresh application is better for the applicant—rather than appealing, as the Government seem to argue—then leave it to the applicant to choose. What seem to be at issue, at the heart of all this, are the standards, training and supervision of the service.
I thought that we might have a year without a new criminal offence. Driving under the influence of drugs is, of course, to be condemned. Although our debates will probe whether objective testing is possible, whether there is a variable impact on different people, whether there is more variation with drugs than with alcohol and how prescribed and over-the-counter drugs—which almost always seem to have warnings about not driving or operating machinery—fit in, that does not mean that we condone drug-driving. What about the new psychoactive substances, with or without a temporary ban in place? I note, of course, that the offence of driving while impaired is not being repealed. There is quite a lot to investigate there.
I look forward to our debates on the single county and family courts, given the knowledge that noble Lords can bring to bear on this issue. My only contribution on it—my noble friend Lord Thomas of Gresford will probably deal with it—is to have enjoyed reading the impact assessment which describes the policy options as “do nothing” or “do everything”. I also look forward to our discussions on diversity in the judiciary. We have come a long way since my first interview for articles as a solicitor when, having asked about women in the firm, I was told, “We are very broad minded. We have a Nigerian girl working in the basement”.
The most cheering thing I have heard on the proposals is that provisions for part-time working will be significant, because of the significant number of women in—or potentially in—the judiciary who are of an age to which this will be significant. I am very happy that that myth in my own thinking has been busted. This is a Bill on which I will want to attempt only a small amount of busting of my own.
Asylum Seekers: Children
Baroness Hamwee Excerpts(11 years, 11 months ago)
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Lord Henley
My Lords, there was an informal link of 70%, which is what I was referring to. Now if one looks at the different rates of income support, we can see a whole range of different rates, varying from, I am told, something from just below 60% up to 100%. It varies according to the rate of benefit. I am more than happy to write in greater detail if the noble Lord wishes, but it is rather too complicated to give such information at the Dispatch Box in the time that is available to me.
Baroness Hamwee
My Lords, it is estimated that 120,000 children are living in the UK without legal immigration status. That estimate was made by the University of Oxford which, in a recent report, also commented that,
“because of contradictory and frequently changing rules and regulations”,
both in immigration and in the allied areas that we have been discussing, access to public service has been hugely jeopardised. These are changes that have happened over the past 20 years or so. Can the Minister comment on how our policies can be better joined up, which is something that has challenged every Government?
Lord Henley
My Lords, the Question relates just to those seeking asylum. Obviously there are other means of dealing with those who have failed to get asylum status or for those covered in other ways. For example, Section 4 support is available to those who have failed to get asylum, should they be destitute. Other than that, we look to see whether they have families here who might also be able to support them. However, I think that my noble friend’s question is wide of the Question on the Order Paper.
Proceeds of Crime: EUC Report
Baroness Hamwee Excerpts(11 years, 11 months ago)
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Baroness Hamwee
My Lords, the whole House will be grateful to the noble Lord, Lord Hannay, and to his sub-committee. Even for a Europhobe, which I am emphatically not, it seemed to be a no-brainer. However, as I read the report, I realised that issues arise which make one consider the differences in approach between our law and procedures and those of other European states, and the overall principle of how far one should go in willing the means as well as the end. As has been said, we are talking about big crime, which is big business. The Explanatory Memorandum to the directive referred to it in what was very much a financial take on the situation, and to the position weakening,
“our ability to fight cross-border … crime”—
yes—and affecting,
“the functioning of the Internal Market by distorting competition with legitimate businesses”.
It also referred to depriving,
“national governments and the EU budget of tax revenues”.
I do not quarrel with that, but there is another dimension to this. There are real, human victims of serious, organised international crime and therefore the deterrence of confiscation is of great importance.
As we have heard, it is very hard to stay ahead on these matters. Criminals seem to manage to be ahead of agencies and I wonder whether harmonisation in the EU will drive the transfer of funds outside the EU. You do not have to go as far as somewhere such as Belize to get outside the EU. Following the money is rarely straightforward. People who have headed for bankruptcy on a rather smaller, more personal scale know well about trying to transfer assets so that they are not, they hope, liable to be seized. Again, the Explanatory Memorandum deals with this. Obviously, the directive does as well but I am afraid that I cannot claim to have read that.
Third-party confiscation raises some quite important issues. I was interested to see that the provision,
“requires third party confiscation to be available for the proceeds of crime or other property … received for a price lower than market value and that a reasonable person in the position of the third party would suspect to be derived from crime”,
which clarifies the “reasonable person” test. Given the sophistication of much organised crime, evasion is likely to be very sophisticated and there will be innocent third parties, so that gave me a little cause for concern. I was also worried about confiscation in the absence of conviction—something that we in this country, with our own legal traditions, would be particularly aware of. I was reassured by the explanation that this would be in very limited circumstances, where the court finds,
“that a person … is in possession of assets which are substantially more probable to be derived from other similar criminal activities than from other”,
non-criminal “activities”; and, importantly, that:
“The convicted person is given an effective possibility of rebutting … specific facts”,
and that there are rights of appeal. “Substantially more probable” is an interesting phrase and not one that we are that familiar with here. I do not know how it works with our recognised standards of proof but, reading it in a common-sense way, it seems to me to be somewhere between the balance of probabilities and beyond reasonable doubt.
The report makes the point, which has been made in the debate, that if we do not opt in it sends the wrong message to our partners about the Government’s attitude to international co-operation and that there are impacts beyond the subject matter. The report states:
“We have no doubt that the Government should opt in”.
Neither have I.
Immigration: Detention of Children at Heathrow
Baroness Hamwee Excerpts(11 years, 12 months ago)
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Lord Henley
Is the noble Lord suggesting that they should be removed from their parents and sent somewhere else? That strikes me as even worse. This is complete nonsense. We think that the children should stay with their parents for that short time in the holding facility. If they cannot go there, they go to Tinsley House—a place that we have all accepted as being perfectly acceptable for children and their families to go to.
Baroness Hamwee
My Lords, I have a question. This Baroness—who has also been thought to have the first name Berenice—visited Cedars, a new facility near Gatwick. I was very impressed by the good work being done there by the border agency and Barnardo’s. Will the Government learn from that in dealing with families and children—some of them unaccompanied children—and deciding on the best way to respond to what everyone must acknowledge is a very difficult situation?
Lord Henley
My Lords, of course we will learn from what we have done at Cedars at Gatwick and we will do what we can. I am very grateful to my noble friend for mentioning that. Because of where these very short-term holding facilities are located within the airports, it is very difficult to think of design solutions. However, if anyone is going to be kept longer than that very short period of time, we obviously have to look at other facilities.