EU Drugs Strategy: EUC Report
Baroness Hamwee Excerpts(12 years, 4 months ago)
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Baroness Hamwee
My Lords, I recall in my early days in this House the noble Lord, Lord Judd, telling me that just because I was sitting on the Bench for the first of a trio of debates, I did not have to speak in all three of them. I admire his stamina.
This is indeed a useful and realistic piece of work—to repeat just two of the plaudits that have been given. EU or UK? As the chairman of the committee said, it is subsidiarity in action: it is not either/or. The two are complementary, just as it is not a matter of the Home Office or the Department of Health—though, of course, if one is in the lead it affects both perceptions and actions. This involves health, law enforcement, education and, if you are Dutch, tourism. When I looked for information about the new restriction on cannabis in Holland—the ban on foreigners visiting cannabis cafes—I did not expect to see quite so much about the tourist industry. It is too soon to see the impact on the use of other drugs there, including alcohol, but I hope that the UK is keeping an eye on that.
The Dutch have not criminalised—or, perhaps, recriminalised—cannabis, but I agree with the conclusion of the report that the debate would benefit from a clearer understanding of what it would mean if we decriminalised certain drugs. It seems to me that different people mean different things by this. I also agree with the report that member states should be more willing to learn from one another.
The combination of the EU and drugs seems a particularly easy target for the—how can I put it?—less thoughtful media. Some months ago I attended a seminar that attempted to promote a sensible, measured debate on drugs. The politicians there blamed the media. I have to say that the media blamed the politicians for not taking a proper lead. The drugs trade, as has been said, is an international business and business, as my noble friend said, adapts to markets. If we are to achieve more than just displacement, there must be a lot of co-ordination and co-operation. The report makes the point about the displacement effect and other possible unintended consequences when measures against drug trafficking are planned.
Like other noble Lords, I was pleased to see the importance the committee placed on human rights. When the EU provides assistance to other countries in anti-trafficking measures, it must make clear that resources must be used in a way compatible with human rights, and programmes must be monitored to ensure that they do not bring about human rights violations, in particular the application of the death penalty.
The issue of displacement—or, perhaps, replacement —is very much to the fore of the inquiry into new psychoactive substances by the All-Party Parliamentary Group on Drugs Policy Reform, which has already been mentioned. It is chaired by the noble Baroness, Lady Meacher, from whom, I have to say, I am learning an enormous amount. The ingenuity of manufacturers is staggering: for instance, using research undertaken years ago to make substances that were not then developed. In an age when science and manufacturing are so well developed there will always be another new substance available to take the place of the one made illegal. We talk about the rate at which new substances come on to the market; the issue seems to be more about replacement, as one is banned and another takes its place, than variety. Suppliers, of course, are responding to demand. With modern communications and information, it does not seem to take very much effort to access the new drug.
I hope that there will be an opportunity at some point to discuss new psychoactive substances when the group has finished its work. Like my noble friend Lord Maclennan of Rogart, I am a novice in this area, but the inquiry is making me think hard about the need to unpackage drugs: there are so many different substances within that heading. We need to understand markets and fashions: different legal highs, it seems, are the highs of choice in different parts of the country.
We need to understand the impact of a ban; it seems that the use of mephedrone may have increased since it was banned. We need to understand the harms of criminalising young people. We need to understand the psychology of recreational drug use; it seems that people grow out of it very largely as they grow into their mid-20s and their lives change. We need to put all this in the context of how society deals with alcohol and much more.
It is also making me think about what we mean by drugs education. Frankly—no pun is intended here; the point does not come from the Frank website, although I have looked at it—I wonder whether “education” is even the right term. It might say more about me than about its content, but it seems to have unhelpful tones of authoritarianism. What does it take to persuade a young person—because they all think that they are immortal—that it is dangerous to take a white powder or tablet the ingredients of which are unknown or unregulated?
I mentioned this work to a friend who told me that some years ago her daughter told her that she had taken an ecstasy tablet at a club. Her mother’s reaction was to say, “Whenever you come food shopping with me, you scrutinise every label for the e-numbers and other contents that you disapprove of. How could you possibly take a tablet when you have no idea what is in it?”. I believe that she has not taken any drugs since.
Olympic Games: Security
Baroness Hamwee Excerpts(12 years, 4 months ago)
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Lord Henley
My Lords, I am very grateful to the noble Lord for his words, particularly when he says that we should not at this stage be making negative comments about the Games. We want them to be a good set of Games—we want them to be secure, but not to be seen as “the security Games”. I am also grateful for his comments about what happened at earlier stages when we were not in government in terms of the original plans for the Games and how they were set up.
It is quite right that we are making use of contingency plans to bring in extra military service personnel to help out on some aspects of the Games, and that earlier on we brought in an extra 5,000 specialists from the Armed Forces to address security matters that only they could ever have dealt with, as we see from HMS “Ocean”, moored in the Thames, and other things that the private sector obviously cannot produce. We are talking here about providing some extra military personnel to deal with the problems created by the issues that G4S had. I am grateful to the noble Lord for his comments.
Baroness Hamwee
My Lords, can the Minister assure the House that adequate training will be available, given that so many individuals will be coming to the job so late, and that the right training will be given to people designated to particular jobs? There was an unfortunate item on the news last night when a young man who was said to have been put forward by G4S—I think it was more than he was set up than put forward—indicated his difficulties with language.
As a more general and principled question, will the G4S contract be published? Before I am told that it is commercial and in confidence, I raise the point that both parties to a contract can agree to vary that sort of clause and perhaps G4S can be persuaded that it would be in the public interest, in both senses of the word, that the contract should be published.
Lord Henley
My Lords, I can give my noble friend an assurance that everyone doing a job involving security will have adequate training and we shall make sure that people who do not have adequate training will not be accredited.
Regarding whether the G4S contract will be published, that might be a matter for both parties to consider after the event, so let us leave it until then. It might be that G4S wishes to publish it, or that some sort of post-mortem, as my noble friend is suggesting, might be appropriate after these Games. I do not think it is proper that we should create fears that are not necessarily there at this stage.
Justice and Security Bill [HL]
Baroness Hamwee Excerpts(12 years, 4 months ago)
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Baroness Hamwee
My Lords, like other Members of the Committee I am a bit puzzled about how polarised the debate became a few minutes ago. It seems to have swung back now. I do not see all the distinctions that have been drawn, and I certainly do not see the distinction between the committee being there to ask questions in public or as something different to get to the bottom of an issue.
I agree, of course, that the committee must have the confidence of the agencies and that it must have public confidence. I would add, perhaps as a subsection of that second point rather than as a third category, that it must also have the confidence of those affected by events. When I was a member of the London Assembly, I was involved in some work following the events of 7/7, and one of the benefits of our being able to undertake some work was that it fulfilled the need of some who had been affected to tell their story and to have their story listened to. I am not suggesting that this is a pattern or even relevant to the majority of the ISC’s work, but I would not want it to be forgotten.
I think that this debate is leading us towards there being a Select Committee and that badging it as such is important because of what that says about the focus of Parliament’s responsibility to the public. I do not think it would require the rules to be fiddled with, but it would require them to be made fit for purpose. Perhaps it is naive and untraditional of me, but I do not see why the rules of a Select Committee cannot be made fit for purpose. It might require a lot of work, but I think it ought to be done.
I have some very non-technical and rather inelegant amendments later, but the point that they are intended to raise is that the default should be that the committee works for the public and in public, not as a stage show—absolutely not, because to take up one of the points that has just been made, I for one think that the most important questions that tend to be asked are the supplemental ones. I am glad that we are having this debate because I think that it is taking us in an important direction.
Baroness Manningham-Buller
My Lords, I declare what I hope is an obvious interest—my membership of the Security Service for 33 years—although I should warn the Committee that I retired five years ago and so am out of date.
I should like to reiterate a couple of points. I listened with great interest to the points made by both former members of the ISC, current members and others with a close interest in this matter. It is certainly the case—and I do not think that I am out of date in saying this—that it is in the interests of the security and intelligence community to have either a Select Committee or the present committee as it stands seeking to give reassurance to Parliament and the public that these agencies are properly run, obeying the law and doing a reasonable job. As the noble Lord, Lord Carlile, said, they will make mistakes—it would be a delusion to suggest that any organisation was free from making mistakes—but certainly when I was reporting to the ISC I hoped to own up to and discuss those mistakes.
The support of members of the public is necessary not only in terms of general support for the organ of government but because, to do their work, the agencies require that support every day of the week. They need the public to join them as recruits—they want to attract high-quality recruits—they need them as sources of information, and they need them to help in whatever way possible. Someone might be asked, “Can I come and sit in your bedroom with a camera?”. I might say no but people say yes to the officers of the Security Service daily. Therefore, when we talk about public opinion, the services require the help of the public to do their job and, in my experience, they get it.
When we talk about whether to go for a Select Committee—a proposal with which I have a lot of sympathy—or an improvement on, or development of, the last one, I share the view of the noble Lord, Lord King of Bridgwater, that we will get there at some stage, although whether we will do so at the speed at which the noble Lord, Lord Campbell-Savours, would like, I do not know.
I am sorry but I feel that I must take slight issue with the noble Lord, Lea of Crondall, about the amount of information on the services that is available in the public domain. For certain, my service took its heart in its hands and commissioned a centenary history of the Security Service. We made the professor of contemporary history at Cambridge a temporary member of the service and allowed him into our records. We said, “You can make any judgment you like. We won’t seek to query it. There will be a few things that you can’t publish for national security reasons but we will keep those to a minimum”. If you look at our website—I must stop saying “our”; I left the organisation. If you look at the Security Service’s website, you will see quite extensive amounts of information.
Why do these organisations exist? They exist to try to protect the United Kingdom and its citizens, and it is in their interests that as far as possible the confidence in them is well founded and, as far as it can be, widely and publicly known. To that extent, I should like to say how much I welcome the arrival of the ISC and how much I look forward to its continuing evolution.
Baroness Hamwee
Baroness Hamwee
My Lords, grouped with this amendment are Amendments 11 and 12 in the name of the noble Lord, Lord Campbell-Savours, on rather different points from mine. I will confine my remarks to my amendment. Schedule 1 provides that members will hold office for the duration of the Parliament in which they are appointed. I do not read later parts of the paragraph, in particular sub-paragraphs (6) and (7), as applying to membership. This raises two issues, which I shall ask about in what is no more than a probing amendment. One is whether there should be a committee in existence during the period when Parliament is prorogued; the second is about the delay in appointing members after the next Parliament has started to sit. On the latter point, I have heard reports that some Select Committees have taken a very long time to be established—up to six months. I am certainly not arguing that the approach of this amendment is the best way of doing it. If there were to be some amendments, the arrangements would need much more detail, but I am worried that there would be an issue if there were a long lacuna. I do not know whether the Minister can help the Committee regarding the position of the current committee. Are members appointed until the appointment is terminated in a positive fashion, whether or not Parliament has been prorogued? Clearly, if an MP is not re-elected, he would not be expected to retain membership.
The ISC is so important that I would be reluctant not to have some sort of formula for unbroken oversight. It could be argued, of course, that its work is largely retrospective so it would not matter if there was a gap, but I would not accept that argument. It occurs to me that one could deal with continuing membership if enough Members of your Lordships’ House were appointed for there to be a quorum over the period of Prorogation, but that is unlikely to commend itself. There is also the question of the period between Parliaments and any delay in appointment once a new Parliament sits. I beg to move.
Lord Campbell-Savours
My Lords, I want to speak to Amendments 11 and 12, standing in my name. Amendment 11 deals with the words in Schedule 1, paragraph 1(2)(c), which states that,
“a resolution for the person’s removal is passed in the House of Parliament by virtue of which the person is a member of the ISC”.
In other words, there has to be a resolution of Parliament to exclude someone from the ISC. Have those who wrote this Bill thought that through? A resolution in the House of Commons, or even in this House, would mean that the person who is being removed from the ISC, with all the material that they have gained over the years on matters relating to national security and who may well be angry with the chairman and the system, is given free rein to get up on the Floor of the House of Commons and, in their defence on the back of the resolution, say why they should not be removed from the Intelligence and Security Committee. This is a very silly proposal. It is highly dangerous and has clearly been worked up by someone who did not understand the implications of what a resolution of the House of Commons means for public debate. It should be removed.
How could someone be removed from the Intelligence and Security Committee? First, one would go to them privately and explain the reasons why they should resign. I am sure that the Whips and the system have all sorts of ways for removing Members of Parliament without allowing them free rein to get up on the Floor of the House of Commons on the back of the resolution to defend themselves. That is my case for Amendment 11. I seek the exclusion of what I regard as a highly irresponsible proposition.
I now turn to Amendment 12, which deals with sub-paragraph (3), which states:
“A member of the ISC may resign at any time by notice given to … in the case of the member who is the Chair of the ISC, the Speaker of the House of Parliament by virtue of which the person is a member of the ISC”.
Why should the Speaker be informed? This is not a parliamentary committee; the Speaker is not a member of the committee and has no relationship with it. The committee is external to Parliament, however we want to describe it. I cannot see any explanation why, other than the fact that those who devised these sections of the Bill believe that it is necessary to have a model where they have the imprimatur of Parliament on the label. I think it is ludicrous, unnecessary, and again it should be removed from the Bill. It is trying to lead the public to believe that this is truly some committee of Parliament. It is not, because it lacks the privileges and the powers that a parliamentary committee has as a Select Committee. That is my case.
Lord Henley
My Lords, the same could apply to whoever was removing that person. We are saying that Parliament should, in conjunction with the Prime Minister, have the responsibility for appointing, and therefore that Parliament should therefore have the duty to remove. If we accepted the noble Lord’s amendment, can he not see possible occasions where there was no possibility of removing a member of the ISC from office, no matter what they had done, unless they ceased to be a Member of their House of Parliament—this place or another place? I do not therefore accept the noble Lord’s amendment.
As regards his second amendment and the idea that the Speaker of either House has to be notified, I really do not see why notifying the Speaker as a means of resigning from the committee causes any problems at all. Both the Government and the committee are of the view that the chair should no longer be removed by, or required to resign by giving notice to, the Prime Minister. Again, the committee has previously been criticised for being a creature of the Executive. If the committee is to be a creature of, or belong to, Parliament, it seems far more appropriate that a person should have to resign by the means proposed rather than tendering their resignation to the Prime Minister.
I therefore hope that my noble friend will withdraw her amendment, and I am sure that the noble Lord will not want to move his amendments.
Baroness Hamwee
My Lords, I clearly did not explain my amendment adequately. My noble friend responded on one point, the continuity of the committee, but he has not dealt with my concern about delay in appointing members in a new Parliament. Can he help the Committee on that and give any assurances?
Lord Henley
My Lords, both Houses are normally reasonably speedy about these matters and we will obviously take the issue very seriously. I do not think that there has previously been a delay in appointing the nine members after appropriate discussions, and I cannot see that there would be any dangers of delay in the future, but whoever is in government will obviously have to bear in mind the importance of these matters and ensure that a new committee is created as quickly as possible.
Baroness Hamwee
My Lords, I have no idea about the appointment of the ISC but I discussed this matter with a Member of the Commons who has considerable experience of membership of Select Committees. It was from him that I heard that in one case there was a delay of almost six months in appointing the committee. It is that situation that I am seeking to avoid. I do not expect the Minister at this point to say anything other than what he has said, but the issue is serious in my head.
He said that legislation is not needed for the continuity of work of the committee or of the transfer of documents. I was not arguing that point at all. As I said, this is a probing amendment. I am not sure that I have probed quite far enough, but of course I beg leave to withdraw the amendment.
Baroness Hamwee
“(a) the ISC shall meet in public save when it determines that members of the public shall be excluded,(b) a determination under paragraph (a) may be made prior to the meeting to which it applies and may apply to more than one meeting.”
Baroness Hamwee
My Lords, I shall speak also to Amendment 15 as well as to Amendment 17, which was tabled by the noble Baroness, Lady Smith of Basildon, and has been grouped with my amendments because we cover very similar ground. Indeed, we have covered a fair bit of the ground already during this afternoon’s discussions, including the subjects of open meetings, question times, public hearings and so on. I am, of course, not so naive as to think that the ISC needs to meet only occasionally in closed session, but I do think it a good discipline to ask oneself regarding every meeting whether it needs to be closed. I am therefore proposing that open discussions be the default arrangement. It is also important to justify why a meeting is closed, if it is, and to that extent I think that Amendment 17 asks the right sort of question, although I would have put it differently, saying that “proceedings should be public unless” rather than “private if”. However, I think that these are all probing amendments.
The Marquess of Lothian
I am grateful to the noble Baroness for giving way. Could she perhaps outline to the House what sort of meetings of this committee should be held in public?
Baroness Hamwee
I am saying that the committee should consider whether there is a reason not to hold a meeting in public. My approach to this would be to say that each move into closed session should be considered quite positively. I look at it the other way round; it is a different philosophy and I accept that.
I have provided in Amendment 14—these are probing amendments—that a determination could be made to apply to more than one meeting. I cannot believe, given the committee’s obligation to the public, that every meeting should be held privately unless there is a good reason to hold it in public. As I say, it is a difference in philosophy. Amendment 14 is, as I say, probing, and I accept that a decision could be taken to cover more than one meeting.
Amendment 15 is rather different. I think that there is a place for something like a public question time. The noble Baroness’s amendment suggests annual hearings with the heads of the agencies and the Secretary of State, and I think that that is a good idea. In both of our amendments, we suggest that the public should have a hand in setting the agenda of the committee. I beg to move.
Baroness Smith of Basildon
My Lords, I shall speak to Amendment 17 and then perhaps say something about Amendment 15. The noble Baroness, Lady Hamwee, might have misunderstood our intention in Amendment 17, because I think that our intention differs very much from hers in Amendment 15. Amendment 17 is essentially, as she said, intended to probe the idea of public hearings. This idea has had a mixed response in your Lordships’ House in both today’s debate and earlier debates. What is vitally important is that the public should have confidence in the system of oversight of our intelligence and security services. I think that that has been quite clear in the early amendments to the structure and kind of committee that we are seeking. As has also been previously mentioned, the ISC itself has admitted that reform is needed urgently. One of the areas of reform that it stresses is the need to improve public confidence in its work and in its ability to function as a strong and independent check on the work of the intelligence community. Just as we would say that justice does not just need to be done, it must also be seen to be done, the scrutiny role of independent checks and balances does not just have to be done, it must also be seen to be done in order to create public confidence. I have to say to the Minister that, looking at the legislation before us, I do not think that the Government have given enough thought to the role that visibility can play in building up that kind of public confidence.
We have heard mixed responses to the public hearings held in the United States by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence with the heads of the intelligence community. Those hearings in public session—many of them televised—are a significant aspect of this issue and have produced some important public admissions by the agencies’ heads. However, I think that there is a risk of them being seen as stage-managed, as we heard earlier from the noble Marquess, Lord Lothian.
We have to recognise that a large part of the committee’s work involves hearing evidence of a highly sensitive nature that cannot safely be publicly disclosed. However, it is important to move towards a system where public hearings are considered not automatic but more routine. I do not go quite as far as the noble Baroness, Lady Hamwee, although I think that we are going in the same direction, as I do believe that such hearings should be accepted more and be more routine. Therefore, Amendment 17 would expressly provide for the ISC to hold public hearings where it is judged that there is no significant risk of the disclosure of sensitive information, as defined by the Bill, or information that risks undermining the interests of national security. The noble Lord keeps chastising me for the wording of the amendment but I hope that he understands the theme that we are putting forward here. In effect, the amendment sets the same threshold for judging the risk of the disclosure of information in public hearings as the Bill does for the disclosure of information to the committee.
Perhaps a more appropriate set of conditions could be used here to ensure that public hearings do not lead to the jeopardising of our national security or of the work of the intelligence services. That is something that I would be happy to discuss. However, it is the principle of routine public hearings that we are trying to establish with this amendment. Similarly, annual public hearings with the heads of the intelligence services, as provided for in Amendment 17, would, as they do in the United States, send a very public signal about the accountability of our intelligence community to Parliament through the ISC.
There is perhaps just a slight difference of emphasis in our amendment compared with the noble Baroness’s Amendment 14, in that we do not think that public hearings should be automatic. However, I am slightly curious about Amendment 15 and the suggestion of a public question time. I wonder whether that would change the role of the ISC. It seems to me that its role is very specific—that of oversight of the intelligence community and intelligence agencies—and I am not sure what would be gained by putting its members into the public eye, with them being questioned by the public, as I think is the noble Baroness’s intention. I should have thought that public confidence would be achieved by members of the Intelligence and Security Committee being seen to do their job robustly and ensuring proper scrutiny and oversight of the intelligence community. This seems to be more about oversight and scrutiny of the intelligence committee by the public, although I should have thought that that was a job for Parliament rather than for the public. I should be interested to hear the noble Lord’s comments on the amendments.
Baroness Hamwee
My Lords, I am grateful for that response and for the comments made around the Committee. Of course I accept that there is nothing to prevent public proceedings, and what we have heard about the direction in which the committee is moving is very welcome. However, I felt that it was important to raise the issue in order to indicate what Parliament will expect in future. On the query about televising proceedings, I suppose that it is almost inevitable in this day and age. If proceedings are to be in public, what are the mechanisms for making them so? However, I accept the implicit point that that raises issues.
On the issue of question time, as the Minister said, there are a number of models for questioning the committee or the agencies. I am not entirely sure that there is an absolutely clear demarcation line between the two. One can imagine members of the public asking committee members why they had not asked about something. Perhaps it is a muddy area. The title “question time” can mean different things to different people. I accept that it might raise the wrong expectations. Nevertheless, it is a flavour of where work should be heading.
We have heard examples of possible subjects that might be covered. Some—perhaps not all—financial arrangements of the agencies, along with some aspects of the administration, might also be dealt with in public. The example of recruitment was very interesting. That would be a matter of broad public interest and I hope that it could be pursued. Of course, planted questions and answers are not enough, but are they not sometimes better than nothing? People will have different views on that.
I raise these issues because they are properly covered in debate at this stage of the Bill. I am not sure whether we will take them further. The issue remains very live, but whether it is an issue for legislation is perhaps a different matter. I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) The ISC may consider the proposed appointment of the following including by questioning the prospective appointee at a meeting of the ISC—
(i) the Head of the Security Service;(ii) the Head of the Secret Intelligence Service;(iii) the Head of the Government Communication Headquarters; and(iv) such other persons as the Prime Minister may direct.”
Baroness Hamwee
My Lords, if I have not caused apoplexy so far, I will with this amendment. I have absolutely no expectation that the Government will be minded to accept the notion of confirmatory hearings. However, I tabled the amendment because we do not have to go the way of the United States. There are more and more examples in the UK of confirmatory hearings. They do not necessarily come with a veto—in fact, there are probably no hearings where a veto is granted to the examining committee. However, holding sessions where a nominee for a position can be questioned so that the public know what they are getting in the prospective appointee is part of opening up services to public understanding as well as addressing issues of accountability.
I mentioned the Greater London Authority earlier. I will not draw too many comparisons between the organisations, but confirmatory hearings of mayoral appointments were introduced just after I stood down from the GLA. I watched one of them on what I believe is called a narrowcast on the web and it was absolutely fascinating—not just the questions but the whole experience. One could tell so much from the body language of the person who was being questioned. I thought that it was a very useful session. This is not even in hope, let alone expectation, but I do not want to think that we have to do things exactly as the United States does or discard them because of that experience.
Lord King of Bridgwater
I have a point of clarification. Is the noble Baroness proposing that these hearings should be in public or not?
Baroness Hamwee
I suppose it had been in my mind for the reason that I gave about public understanding. The noble Lord raises a very interesting point as to whether one should look at this as not a public exercise. That would raise different and very interesting issues, and perhaps fruitful ones. I am sorry I did not go there in my comments. I beg to move.
Lord Campbell-Savours
I am glad the noble Baroness did not stipulate that the hearings should be in public because that would make it quite impossible for us to carry out this function, which in many ways I have great sympathy with. If we had had the opportunity when I was a member of the committee to interview proposed heads of the agencies prior to them taking over responsibility for the agencies, it would have been helpful to the committee. In so far as it had not been in public, no damage would have been done. Certainly we would have been able to make our concerns or satisfaction known to the agency, and during the questioning of the proposed appointee we could have raised subjects that would have given us, certainly in one case, a little more reassurance than perhaps I felt I had when the particular person was appointed. I think there is merit in this amendment as long as the hearings are in private.
Lord Henley
I am afraid that on this occasion I have to disagree with my noble friend. There it is quite a distinction between Her Majesty’s Inspectorate of Constabulary or the chair of the Social Security Advisory Service on the one hand and, for that matter, the Permanent Secretary of the Home Office or the Permanent Secretary of any other department on the other. We suggest that the heads of the intelligence and security agencies fit in more appropriately with that later group rather than with the former group.
Baroness Hamwee
My Lords, I am not clear whether the Minister is saying that they fit in with that group or that they are exempt under the legislation, which he mentioned. Either way, process moves forward. It is not so very long ago that we did not have the Nolan principles, but they are completely accepted now. I, too, think that this may come, although it may not come in the Justice and Security Act 2012. However, we are in Committee, and I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) arrange for it to be made available to advisers to the ISC who are the subject of specific security clearance who may then advise the ISC with regard to the information including providing written material in redacted form,”
Baroness Hamwee
My Lords, Amendment 18, in my name and that of my noble friend Lord Thomas, is the first in quite a large group. We have other amendments in the group, as does the noble Lord, Lord Campbell-Savours, and the noble Baroness, Lady Smith, and they are all about access to information.
Amendment 18 would provide for advisers to the ISC with the right security clearance to be able to have access to information. It was suggested to me by someone who was at one point a member of the ISC and who thought that it would make the process a great deal easier if some of the committee’s own advisers had that clearance and could go into the agencies and do the work that was necessary. That goes to the independence of the ISC.
The other amendments are all about accessing information when it is a necessity. If the committee is to carry out its proper role of scrutiny and to deter poor practice effectively, it should see what it wants, not what is given. Obviously others will have different views about that.
Paragraph 3(1)(b) allows the Secretary of State to determine whether information is not to be disclosed on one of the bases set out in paragraph 3(3), one of which is that the information is sensitive as defined in paragraph 4. I simply ask whether it is constitutionally appropriate for the Government to withhold access to documents which the committee considers necessary to hold the Government to account. A much happier situation would be to provide information but to be confident in the appointees and in restrictions on their using it. However, access to information is the point from which I start. I beg to move.
Baroness Hamwee
My Lords, the Minister, who has been the subject of the many compliments flowing from the noble Lord, Lord Campbell-Savours, today, has given us quite a lot of material to think about. He has certainly given me some ideas about better drafting for my Amendment 18. Given the number of noble Lords who are here not to discuss this issue, I will do no more than end with a question. I am not sure that I expect the Minister to respond to it immediately. Under this paragraph, would a decision by the relevant Minister of the Crown—leaving aside the rank or position of that Minister—be judicially reviewable? Clearly it would have to be shown to be unreasonable and how one does that I do not know. Is this an administrative decision that would fall within the ambit of judicial review? The Minister is going to dare to respond.
Lord Henley
My Lords, I am not going to dare to respond. I am saying that there are a lot of very noble and learned Lords in this House and a lot of Members who are not necessarily noble and learned but know a great deal of law. I do not know the answer to that. I had better write to the noble Baroness. I am sure she will have a response before Report.
Baroness Hamwee
My Lords, I am not a noble and learned Member either, which is perhaps why I can dare to ask the stupid questions. I beg leave to withdraw Amendment 18.
Justice and Security Bill [HL]
Baroness Hamwee Excerpts(12 years, 4 months ago)
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Baroness Hamwee
My Lords, I have Amendment 25 in this group but I had not given much thought to sub-paragraph (b), the subject of Amendment 24, other than to note it in general terms. A question occurs to me, however, as it is being discussed, as to whether it is normal—perhaps I should not say “appropriate” as I do not want to be judgmental—for primary legislation to refer to a procedural matter in this way and incorporate it into primary legislation. I will leave that there.
My Amendment 25 proposes an exclusion if we are to have decisions by Ministers as to what should not be disclosed. My noble friend Lord Thomas put his name to the amendment without realising, as he has just now prompted me, that my drafting is sloppy and it should have started “or (c)” and not just “(c)”. I apologise to the Committee for that. The information which could not be disclosed would be information relating to conduct which might be a,
“breach of UK or international law”.
I refer specifically to,
“the European Convention on Human Rights, the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment”.
The wording is not original to me. It was suggested by Amnesty International. It was a good suggestion. I know that there are other noble Lords in the Chamber who have far more experience of these issues than I do. It occurred to me that the Minister might say that any such breach should not be dealt with in this way and if there was a claim by an individual about a breach that would be a matter for the court. Perhaps this amendment needs further thought. I would be concerned to be sure that the Government did not withhold such information. This at any rate might be a start and we will get the Minister’s comments.
Lord Lester of Herne Hill
My Lords, I rise as probably the least knowledgeable and competent person to say much about this but I do so because of my experience as a member of the Joint Committee on Human Rights. I am glad that the noble Lord, Lord Butler of Brockwell, has raised the issue. I do not expect an answer to my question this evening but it would be helpful if before Report stage what I am about to ask could be answered.
I am mystified about the principles that should apply not to the ISC but to parliamentary Select Committees generally. When we come to consider the Norwich Pharmacal matter, we will be considering the extent to which courts should not be able to order the disclosure of documents that might show serious wrongdoing of the kind indicated in the amendment of my noble friend Lady Hamwee because of the harm to national security or international relations. To that extent, the Executive would be less accountable to the courts than at present. The question then arises of the extent to which the Executive should be accountable to Parliament and especially to parliamentary committees. I understand why the committee we are concerned with should be treated differently from the ordinary parliamentary Select Committee for very good reasons to do with Clause 2 of the Bill. My question is: what ought to be the position with other parliamentary Select Committees? The noble Lord, Lord Campbell-Savours, has tabled an amendment dealing with that general issue.
It would be very desirable if there were a practice direction of some kind, whether in the Ministerial Code or elsewhere, that indicated what needs to be done when a Select Committee seeks evidence of a non-sensitive kind and a security service gives an informed view not about policy but about other matters to the committee. I do not understand whether any practice is laid down on how that should be done and what the limits are when a Select Committee seeks such evidence.
Under the previous Government, when Andrew Dismore was chairman of the committee, we dealt with administrative detention without trial. We tried to get help from the security services. We were helped to some extent by the police service and we took evidence in camera from the police on some matters to do with counterterrorism. However, we were told that we could not do that with the intelligence and security services.
As I said, I do not expect an answer now, but it would be helpful if, between now and Report, we could be informed by letter of what the Government consider to be the general position on those issues. Certainly, if there is wrongdoing of a serious kind involving the sorts of issues covered by the amendment of my noble friend Lady Hamwee, and if that sort of material is not to be shown either to this or any other parliamentary committee, and is to be barred from, or limited in, legal proceedings, I am troubled by the lack of accountability of the Executive to the judicial branch of government as well as to Parliament itself.
Baroness Hamwee
“(6) In this paragraph “information” includes documents and other material whether held in documentary, electronic or other form.”
Baroness Hamwee
Amendment 27 will not take long —under a minute. The amendment seeks confirmation that in this paragraph in Schedule 1 “information” includes the items listed. I cannot believe that it does not. Perhaps the Minister can even reply within the minute. I beg to move.
Lord Henley
I can be very brief. I can offer an assurance to my noble friend that “information” includes documents and other material whether held in documentary, electronic or other form. I hope that with that reassurance my noble friend will accept that the term “information” in the Bill includes all the matters that she lists.
Lord Campbell-Savours
This has nothing to do with the courts. This will be a discussion in the committee with the chairman and the agencies, which is where we may well end up having an argument. The agencies may say no, or Ministers may say, “No, you cannot have it because it is part of some ongoing operation”. They will not know the point at which operations have merged into a long extended operation that might go on for a long time. I am quite worried about this section. I am beginning to believe that the agencies might have conceded on this fact because they knew that they would be able to use this issue of merged operations as a way of avoiding giving information to the committee. The Minister is saying nothing here to reassure me. Perhaps he will give us more detail on Report about what constitutes “ongoing” in the way which the noble Lord, Lord King, has suggested.
Baroness Hamwee
My Lords, on that subject, when the Minister considers the word “ongoing”, will he tell the House whether it covers a longer period than “current”? I think I would have understood “current” investigations.
Baroness Hamwee
Maybe. The Minister says it has not been traditionally considered and is one of those words that only recently has come into normal use. It probably means slightly different things to different people.
Baroness Manningham-Buller
I think the problem is the word “operation”. Certainly in the security and intelligence world, an operation is something finite, with a code name, that will come to an end. I think that is what the legislation is trying to get at. It certainly would not be a merged operation such as a jihadist threat or Iraq, which would not be seen in those terms. That may be the difficulty. If we can make that clear in defining it, that might be helpful to the Minister.
Lord Campbell-Savours
My Lords, I shall be very brief as the hour is late. I cannot see what the problem is with the Government accepting this amendment, which would simply require that the memorandum of understanding under this clause should be approved by Parliament. It is not as if the memorandum of understanding would include security sensitive information. As I understand it, it is simply about structures. The parliamentary debate would be about the structures that have been established in the detail of the memorandum of understanding. In addition, if Parliament were to give approval during the debate, Members might want to raise issues not covered in the memorandum of understanding. One of these might be regarding the investigator. There was once an investigator to the ISC. If I remember correctly, his name was Mr Morrison, and for reasons I have never understood his employment was terminated. Many Members called for the investigator to be in place and I should have thought this is an example of an area where Members of Parliament might want to question Ministers.
There is also the issue of access to individual officers within the service. When I was on the committee, the arrangement was that it was primarily the directors of the services who gave evidence to the committee, although on occasion it was one or two others. It might be that the memorandum of understanding should be considered by Parliament in the context that there needs to be some flexibility on whether people other than agency directors—perhaps officers from lower down within the ranks—should be called upon to give evidence to the committee. I do not know because this is an area I do not know a lot about. All I am saying is that I think there is room here for a debate in Parliament to consider the detail of the structure, and it is something that we have not debated here today.
My noble friend Lord Rosser dealt in some detail with these issues during the debate on one of his amendments and he sought assurances. I do hope that the Minister can explain today why Parliament will not be approving these matters. I understand that the document will be laid before Parliament, but that there will be no parliamentary debate. I beg to move.
Baroness Hamwee
My Lords, I have Amendment 34 in this group, which uses the formal language of the affirmative procedure but comes to the same thing as the noble Lord’s Amendment 33. I tabled the amendment in part because I wanted to seek more information about the memorandum of understanding. The noble Lord may not have seen it, but the Government have today circulated a long note responding to a number of points raised by noble Lords at Second Reading, for which I thank them. The note includes a paragraph on the memorandum of understanding in response to my question about whether we will be able to see a draft of it, or of a framework, to enable further debate.
Lord Campbell-Savours
Did the noble Baroness say that she had seen a draft document or memorandum of understanding? Perhaps I misheard. Could she clarify what she said? I am sorry I could not hear.
Baroness Hamwee
No, I said a note from the Government responding to points made by noble Lords at Second Reading.
Lord Henley
Perhaps I may assist the noble Lord. It was a note sent out by myself and my noble and learned friend Lord Wallace of Tankerness, which I hope went to all Peers who spoke at Second Reading. If the noble Lord has not received his, he should have done and I can only blame the post.
Baroness Hamwee
My Lords, the Minister should not blame the post; it came to me by e-mail this morning. The post may follow in about three days. I want to put on the record what the note told me and other noble Lords who have seen it about the memorandum of understanding. It states:
“The MoU needs to be agreed between the ISC and the Prime Minister”.
We know that. It continues:
“We are starting this process of drafting and agreeing this document, and will do so in parallel”—
I stress those words—
“with the Bill’s passage ... Once we have an agreed draft … it is our intention that it is published, to help inform debate”.
The thrust of my amendment is that it should be subject to debate. The Ministers who sent the letter then told us:
“The matters covered … may include … The factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing and/or of significant national interest … A description of the arrangements by which the ISC will request, be provided with and hold information, including the circumstances in which the ISC will be able to access primary source materials … A description of the role of investigative staff in the ISC’s work; and … A description of the process for producing an ISC report”.
As the noble Lord said, the memorandum of understanding will be a public document, so it cannot be so sensitive that that is a reason for it not to be debated. I say to the Committee that today’s debates have shown how much Parliament—and this House in particular—has to contribute to consideration of the criteria that will be applied. We are told in Clause 2(4)(a) that the memorandum of understanding,
“may include other provision … which is not of the kind envisaged in subsection (2) or (3)”.
That is very wide. I realise that “envisaged” is another term that I have not come across in legislation before. I do not know whether it means more than “not within”, “not as described” or “not subject to” subsections (2) and (3). I am beginning to feel like an awful old fogey in raising these points but legislation should be completely clear. I believe that the criteria should be matters for debate and not simply for the draft, although we look forward to it as it will inform debate. Reading this note, it seems to me that the approach is more top-down than I should like to have seen.
Lord Rosser
My Lords, perhaps I may make one brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King of Bridgwater, that I was being savage.
I just wish to pursue the point that the noble Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included in the memorandum of understanding, which we will not get an opportunity to debate and which does not have to be approved by Parliament. Clause 2(3) says:
“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest, and … the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
One has to bear in mind that this is not a document that we will be able to debate and discuss and it will not need to be approved by Parliament unless the Minister is going to move on this amendment. What are these principles that will be set out in the memorandum of understanding which we are not going to be told about when discussing the Bill and which we are not going to be allowed to discuss?
Crime and Courts Bill [HL]
Baroness Hamwee Excerpts(12 years, 4 months ago)
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Baroness Smith of Basildon
My Lords, I will speak to our Amendments 148AA and 155EA. These are probing amendments into what I think are very serious issues. The Minister will recall that I raised concerns about these matters at Second Reading. I listened with great care to what the noble Lord, Lord Avebury, had to say, and I fear I may duplicate some of his comments, but only where they are worth duplicating and I think it useful to your Lordships’ House.
Our amendments would delay the commencement of Clause 24 until the Independent Chief Inspector of Borders and Immigration has completed a report on entry clearance decision-making within the UK Border Agency for family visit visas, which retain the right of appeal. The Minister will recall that I drew some comparisons at Second Reading with the issues that had arisen where the right of appeal had already changed in other visa applications.
It is worth rehearsing some of the difficulties, delays and problems that we have seen with initial decision-making in family visitor visa decisions. In 2010-11, 38% of the appeals against family visitor visa decisions were successful—over a third of the decisions were overturned on appeal. The noble Lord previously said that that was because in many cases people had provided wrong information. I will come on to that point but I do not think it is relevant in many cases. This seems to be a systemic problem and the Government cannot address the problem of inaccurate and wrong decisions being made by trying to change the rules. By removing the right of appeal, you cannot sweep under the carpet the fact that so many decisions have been appealed successfully.
Family visitor visas are an important way for many British communities to preserve family and cultural links with other countries. The kinds of applications we are talking about are for family members to attend family occasions such as weddings and birthdays; there can be urgent cases, many with a compassionate element, such as needing a visa to visit a sick relative or even attend a funeral. These are not the kind of people who are going to bring vexatious appeals against the Government. Appeals are brought in these cases to right a wrong, to overturn a wrong decision.
It is worth listening to what the Independent Chief Inspector of Borders and Immigration has said on this issue. In 2011 he reported that in 33% of cases he reviewed, the entry clearance officer had not properly considered the evidence that was submitted. Why should that 33% of people who have not had their applications properly considered be forced to resubmit an application because of chronic administrative errors within the UK Border Agency? It is penalising those who have been refused through no fault of their own but through poor decision-making.
As I mentioned earlier, the Government argued that,
“63% of appeals are lost entirely because of new evidence introduced at the appeal stage”.
That comment was made by the Immigration Minister, Damian Green, when he gave evidence to the Home Affairs Select Committee. I again look back at what John Vine, the chief inspector, noted in his report: in the 16% of cases reviewed, applications had been refused on the basis of a failure to provide information of which the applicant could not have been aware at the time of making their application.
It is true that in many cases, submitting a new application is quicker than appealing a decision, but the Government have failed to address the fact that, when a decision is appealed it allows, particularly in those highly urgent and exceptional cases, Members of Parliament and advocates to intervene directly with the Home Office on their behalf and expedite decisions. If they do not know, or are not aware, as the noble Lord, Lord Avebury, said, what information is required before submitting the application, that is a poor reason for the Government to change the rules. The wrong information was submitted, and it should be very clear to applicants what that information should be.
When a wrong decision has been made, it is a matter of integrity that it should be addressed. The UK Border Agency should also consider when decisions have been wrongly made and address the problems within the organisation that has allowed that to happen. To remove appeal rights of applicants who have been wrongly refused because of Home Office errors is unfair. It also leaves applicants with no indication of how they should amend their application the second time around, and the possibility that the same errors or omissions could continue to be made. It also neglects the added burden of cost that many applicants face. The cost of an appeal is roughly the same as an application but the costs of making an application go beyond the fee. I am sure that the Minister and other noble Lords will be aware that family members travel hundreds of miles and cross borders to submit in person an application and the documents required. It is significant that when refusals are made on the basis of an allegation that an individual has made a false statement in the application, it can result in that individual being refused entry for up to 10 years. If there is no right of appeal it leaves no way to address the issue. Making another application cannot undo the fact that the individual has been banned for the next 10 years. That is a significant failing in the clause as it stands, particularly when we see how many errors are made in decision-making.
Most importantly, removing the full appeal rights removes pressure on the Home Office to improve the situation. We want a reduction in errors in decision-making. It is bad for the Home Office, and it is certainly bad for the applicant. I raised in a Question in your Lordship’s House not that long ago the report from Sir John Vine: A Comparative Inspection of the UK Border Agency Visa Sections that Process Applications Submitted in Africa. He looked at four areas. There was some good news and some improvements, but I found it fairly shocking. The most difficult part was when he said:
“Despite my making recommendations in previous inspections to help the Agency improve, I found that little progress had been made in a number of areas. This is especially frustrating considering the Agency has accepted the recommendations and yet I continue to identify the same issues”.
How frustrating is that for the chief inspector of the UK Borders Agency whose sole purpose is to want the agency to improve its decision-making? Yet, he is making the same recommendations; the agency agreed those recommendations and that there should be a plan to address the issues. He then has to make the same recommendations the next year and the year after that. He then said:
“In summary, I found performance varied significantly across the four posts inspected in the Africa region. I was disappointed to still find a clear need for improvement in the quality and consistency of decision making. I have made 12 recommendations, a number of which I have made before, in previous reports”.
It is very difficult to understand why this kind of measure is being brought in when we know that the decision-making is inadequate and not up to scratch.
There is another, slightly different side to this. Something caught my eye earlier today concerning the failings in visa controls and considerations. It was about not family visas but other visas. Mr Vine’s inquiry looked at 100 visa applications from Pakistani nationals and found that there were cases where entry was granted when it should not have been and cases where it was not granted where it should have been. Both are equally wrong and I am sure that that is an issue that the Minister wants to address.
I find it very difficult to understand why the Government want to remove the right of appeal for family visit visas when they know that the decision-making is inadequate, that many mistakes are made and that the consequences for those individuals are severe. The amendments that we are dealing with today are intended to find out how the Government intend to improve entry clearance decision-making within the UKBA and ensure that individuals are not unfairly penalised because of systemic failures if their full right of appeal is taken away. As things stand at the moment, significant harm is being caused to those individuals because of the quality of the decision-making.
Baroness Hamwee
My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.
There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.
Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by saying to my noble friend Lady Hamwee that I accept the seriousness of the points being made and I hope that I can deal with them in the course of this debate. I also noted what my noble kinsman Lord Avebury said about the right of appeal on race discrimination grounds, which I think is the subject of his next amendment. As it was my noble kinsman who wanted the amendments to be taken separately, I would prefer to deal with that issue when we come to Amendment 148B.
We have three amendments and a clause stand part debate in this group. My noble kinsman has tabled Amendment 148A and has given notice of his intention to oppose Clause 24, and the noble Baroness, Lady Smith, has tabled Amendments 148AA and 155EA.
As we are all aware, Clause 24 makes provision to remove the full right of appeal against refusal of visa applications to visit family members in the United Kingdom. The Government understand that a visit visa can help maintain family links: we granted some 370,000 family visit visas in 2011 and 1.26 million other visit visas in 2010-11. That is also why we issue, on application, longer validity multiple entry visit visas in some cases, which offer convenience to the family visitors who are granted them. The clause is not in any way about stopping people visiting their family members in the United Kingdom. The rules to qualify for entry are the same for both tourists and family visitors. Any family member who meets our immigration rules will be granted that visit visa.
Lord Henley
A new application can be made immediately. That would be far quicker for the applicant than waiting for possibly eight months for the appeal to be dealt with. A new application can be dealt with within 15 days. That is a better deal for all involved, particularly if they are coming over for a family event such as a wedding. In eight months, the whole thing might be over: it would depend on how much advance notice they had for the wedding.
Baroness Hamwee
My Lords, as the Minister said, the fee for a new application is a little cheaper than that for an appeal. He quoted a figure for the savings that the measure would achieve. I have just had a look at the impact assessment—although I may not have the right piece of paper with me—which gives in narrative form an explanation of what is proposed, but I cannot find any figures in it for this particular clause.
The Minister may well not have the detail with him at the moment. If he does not, perhaps he could write to noble Lords to unpack that figure, which I think was £102 million, although I might have got that wrong. In any event, when it comes to the amount that the Government expect to save by this, I am having a little difficulty in putting all this together in a mathematical form.
Lord Henley
My Lords, impact assessments are always somewhat obscure documents, as my noble friend and others will well understand. I do not have the impact assessment in front of me at the moment but I think the figure I quoted was savings over 10 years of something like £103 million. My noble friend says £102 million, but what is £1 million between friends? The best I can do on this particular occasion is to offer to write to my noble friend with greater clarity about the impact assessment and what we reckon the savings will be. We think that there are very considerable savings to be made here and that the process is not working as it should or as it was originally intended because there are far many more appeals coming in. A new application would be a simpler way of processing these matters.
Baroness Hamwee
My Lords, it might help if I just say that it seems that an explanation for any savings may be with regard to the time that officers put into dealing with either an appeal or an application. That in itself raises issues. I make that point now in case the answer comes back simply in terms of figures, when there will need to be an explanation if we are all to understand. However, we all agree that the system is not working very well.
Lord Henley
My Lords, I am reminded that the figure I quoted originally was £107 million, so we are talking about a difference of £5 million between myself and my noble friend, which is real money. However, I still promise to write to my noble friend on these matters and to try to bring her greater clarity.
Crime and Courts Bill [HL]
Baroness Hamwee Excerpts(12 years, 4 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(12 years, 5 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(12 years, 5 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(12 years, 5 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]
Baroness Hamwee Excerpts(12 years, 5 months ago)
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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.