Crime and Courts Bill [HL]

Baroness Smith of Basildon Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Taylor of Holbeach]

I am certain it is the nature of these things that following the review, Parliament would have an opportunity to debate the issue before the super-affirmative proposal is laid. I made the point earlier that any party affected by this secondary legislation has the right to be consulted. Parliament itself is likely to express a view when that decision of a review is made, before a super-affirmative procedure is even tabled. I cannot imagine an issue of this importance passing noble Lords’ attention and not being brought to the attention of the Minister in this House to account for what was being proposed. I cannot see that being a realistic scenario. I would expect to have to answer to this House for a decision of that nature. Indeed, the super-affirmative procedure provides for an opportunity for full consideration of the detail, as the noble Lord has said, of what is going to be required in the transfer of these powers.

My noble friend Lady Hamwee asked about tasking powers in the NCA because they apply to police forces in England and Wales and they would apply to the functions of the NCA. For the moment, that is limited to serious and organised crime, but in future it could include counterterrorism if such functions were confirmed through secondary legislation, or the super-affirmative procedure, in the future.

This has been a useful debate. I do not waver from my conviction that the House has a role to play in debating the issues, but I think that the provisions of the Bill, as amended by the Commons, provide the right mechanism for doing so.

[Baroness Smith of Basildon]

My Lords, I have listened with great care to the Minister, and I think he has done his best to reassure the House on the level of scrutiny that he proposes. However, I think he falls into the same mistake that his colleague Jeremy Browne made in the other place as seeing this as a procedural issue. He will have heard from noble Lords tonight with enormous experience—far more experience than either he or I have in these matters—that it is not regarded as a procedural issue but a very serious issue.

I said in my opening remarks, and the noble Lord, Lord Reid, made the same point, that the greatest responsibility that a Government and, I think, a Parliament have to their citizens is to ensure their safety and security. The noble Lord, Lord McNally, indicated his assent on that as well. As the noble Lord, Lord Reid, said, adding scrutiny to what he regards as a questionable transfer—although others would see it differently—but to something that raises concern, can only help rather than hinder any Government. Our Cross-Bench Peers with enormous experience in this, such as the noble Lords, Lord Condon and Lord Blair, with their vast experience of policing, raised real concerns about how such a transfer could be effective.

The Minister talks about a review and places great store by that review and the ability of noble Lords to contribute to it, but a review is not primary legislation. He says that a Government would seek to hitch to another Bill such a proposal to transfer counterterrorism from the Met to the new National Crime Agency. I would not expect Her Majesty’s Government to hitch something to another Bill, and I do not know what the Minister is gesticulating about, because this is a serious issue. It is hard to conceive, as other noble Lords have said, of a time when this would be in emergency legislation; it would be the wrong time, but noble Lords across your Lordships’ House would do their best to ensure proper and effective scrutiny in the interests of good legislation, for no other reason than to make sure that we get something so serious absolutely right.

The Minister will have heard that there are doubts as to whether such a transfer would be appropriate. It is because some doubts have been raised that there should be a proper process and procedure for parliamentary scrutiny to ensure that, if such a step is taken, at some point in future, after review and after the Government are satisfied that the NCA is operating correctly, those doubts should be raised in primary legislation. It is absolutely crucial; if the Home Secretary wants to take this step, she needs to ensure that she has the confidence not just of Parliament but of all those involved in counterterrorism. That is what proper and effective scrutiny through primary legislation would seek to achieve.

The Minister has tried, but he has failed to convince me that a super-affirmative order that is unamendable, even if the Home Secretary wants it to be amended, and which does not have the degree of scrutiny of primary legislation, is an appropriate way in which to move forward on something so serious and important to the nation. I therefore ask to test the opinion of the House.

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[Baroness Smith of Basildon]

My Lords, when the Crime and Courts Bill first came to your Lordships’ House, I questioned the Minister as to whether it was—I think I used the term—“oven ready”, as there seemed to be so much left to do in the Bill. Given that what was then a 41-clause Bill now has 18 new clauses, it was right to ask that question. The extradition issues, as we have heard from noble and learned Lord, Lord Lloyd, have been tagged on to the Bill. Indeed, the framework document which outlines everything the National Crime Agency should do and how it should do it is still not available, despite promises made at almost every stage of the Bill in your Lordships’ House and the other place.

One thing that emphasises that point is that no agreement was reached with the Northern Ireland political parties or the Assembly around what kind of architecture would work for Northern Ireland to ensure that, as we started the process, there would be a legislative consent Motion. To scrap SOCA, which has worked effectively with the PSNI in Northern Ireland, before the National Crime Agency is properly in place across the whole of the UK is an absolutely shocking state of affairs. It does a disservice to Northern Ireland and is hugely unfair to it.

I understand that having discussions and negotiations with all those involved to ensure that agreement can be reached can be difficult and very time-consuming. The Government were right to have discussions and negotiations with David Ford, the Justice Minister, and I would accept and agree that he has worked extremely hard to find a way through this to ensure that the National Crime Agency could fully operate in Northern Ireland. However, I say to the Minister that the responsibility has to be that of government. I realise that in their negotiations with David Ford the Government have worked hard, but what I am puzzled about, and where I have a question mark over the Government’s actions, is that those who have been involved more closely in Northern Ireland know that in order to reach agreement on this issue—I am sure that the noble Lord, Lord Cormack, is very aware of this—you have to start early discussions with all the political parties, the elected representatives and all those who have a role to play. The comments made by Mark Durkan in the other place last week indicate to me that the discussions did not take place early enough.

I asked two Parliamentary Questions, one to the Minister and one to the Northern Ireland Office, about what discussions had taken place ahead of there being no legislative consent Motion before today’s debate. The Answer I had from the Northern Ireland Office was that:

“The Secretary of State for Northern Ireland has spoken regularly to the Northern Ireland Justice Minister about the National Crime Agency. He”—

the Justice Minister—

“has been leading discussions with Northern Ireland Executive colleagues about the National Crime Agency. The Secretary of State has not discussed the matter in detail with other Ministers in the Northern Ireland Executive. The Government remain committed to delivering a UK-wide crime-fighting agency focused on tackling serious, organised and complex crime”.—[Official Report, 28/2/13; col. WA 354]

If the Government are so focused, why were discussions not taking place with other Ministers in the Executive, who have a role in accepting a legislative consent Motion, and the representatives of political parties?

I have to say to the noble Lord that the response from the Home Office was dire. It said:

“Home Office Ministers and officials have meetings with a wide variety of international partners, as well as organisations and individuals in the public and private sectors, as part of the process of policy development and delivery. Details of these meetings are published on the Cabinet Office website on a quarterly basis”.—[Official Report, 27/2/13; cols. WA 333-34]

I was asking specifically whether Ministers had met and spoken to, and how often, the Northern Ireland Justice Minister and other Ministers in the Executive to try to get this moving. The response I get is that Ministers and officials have met “a wide variety of international partners”. Northern Ireland is part of the United Kingdom. Discussions were needed not with international partners but with the political parties and representatives of the Northern Ireland Assembly. That may mean that the Government, or the Home Office, have been talking to the Irish Government, which is a fair way forward, but not to be having those discussions that I think were necessary has led us to the point where, like the noble Lord, Lord Empey, I do not know, and do not share the Minister’s confidence, that this can be resolved in the way that we would like to ensure there is a fully functioning National Crime Agency across the whole of the UK.

I ask the Minister, in the absence of answers to my Written Questions—if he has to write to me I will accept that but if he is able to answer today that would be helpful—when did Ministers first raise the issue of the National Crime Agency, with or without the counterterrorism functions, with the Northern Ireland Ministers and political parties? Who has led the discussion? Has it been the NIO or has it been the Home Office, and who did they meet? However, the crucial question has to be: what happens now? What next? The Motion before us today from the Government that removes application provisions from the Bill is, under the circumstances, perhaps the only way forward at this stage. However, I hope we are going to see a step-up and continuation of the process in the interest of fighting serious and organised crime effectively in Northern Ireland and that there is not going to be a step back by removing Northern Ireland from today’s legislation.

[Lord Taylor of Holbeach]

My Lords, I understand the distress and disappointment, and if I may use the phrase used by the noble Lord, Lord Empey, the pessimism that he feels about these issues is clearly reflected in other contributions that have been made by other noble Lords. On the other hand, I am optimistic because, despite the criticism made by the noble Baroness, Lady Smith, we have sought to address these issues properly. If we had been overassertive in the requirements of the United Kingdom in this regard, we would have alienated a legitimate discussion process that was correctly placed with David Ford, the Justice Minister in the Northern Ireland Executive, and in the key position of securing these agreements. We were keen not to put him in the situation where we were seeking to second-guess where he was taking these discussions.

I will answer the noble Baroness, Lady Smith, in writing because she asked particularly about dates and so on. I do not have that information. Ministers and officials have had a number of meetings with David Ford throughout this process. The noble Baroness will know that I have talked to her about this on occasions outside this Chamber when she has asked me how things were going on this. I remember saying that it is a difficult and delicate matter. All noble Lords with experience of Northern Ireland will understand exactly why that is so. The Government were right that while we were prepared to compromise on a number of challenging areas, the negotiations had not been held on the basis of securing consent at all costs. I think noble Lords will be pleased that that is the case. That must be the right position for the Government of the United Kingdom to take on this issue.

For noble Lords who think that the Government should have intervened directly, I should say that this is devolution, a devolved process. It is absolutely right that the Justice Minister in Northern Ireland, David Ford, led these discussions. He has admirably served the interests of Northern Ireland in this regard with remarkable resilience, driving the discussions and negotiations at each turn, even in the face of some clear opposition. I have confidence in him, which is why I am ultimately optimistic that the people of Northern Ireland, through their elected representatives, will see the importance of having a combined national involvement with the National Crime Agency because of the capacity that it will bring to policing in Northern Ireland.

We are not in the business of creating gaps. The NCA was intended to close gaps in the current arrangements. That was in the Bill that we planned to create, but the Executive could not agree, which is why these amendments are before the House. We remain open to discussion and we have provided the necessary order-making powers to fully extend the NCA provisions to Northern Ireland should the position of the Executive change. Assuming the Executive stick to their decision, it is up to them to decide how to develop alternative capabilities for Northern Ireland to replace the work currently done by SOCA. As I have said, we are committed to providing as much operational capacity and capability as possible for the NCA operating in Northern Ireland. But, as I made clear, in the absence of legislative consent there are some things that the NCA will no longer be able to do, such as using Northern Ireland police powers to investigate serious and organised crime. This is to be regretted.

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[Baroness Smith of Basildon]

My Lords, I will make a few comments, in particular in relation to the civil recovery process. The Government are right, following the Perry judgment, which left a huge hole in our powers to recover criminal assets, to bring forward the matter and put it on a legislative footing. However, we come back to the very strange position in Northern Ireland, which was confirmed by the Minister here and by Jeremy Browne, the Minister in the other place.

The primary purpose of the schedule is to ensure that it is not possible to make a civil recovery order against property located outside the UK if the unlawful conduct occurred in Northern Ireland but the property is located outside Northern Ireland. This is a strange position. If somebody lives in Birmingham, Manchester or London and they stash their ill gotten gains in another part of the world such as Dublin or Spain, there is a legislative remedy to seek an order to have the funds returned. However, if somebody lives in Belfast, Armagh or another part of Northern Ireland and they have their ill gotten gains just a few miles away across the border, they are completely outside the remit of the legislation of this country. Criminals in Northern Ireland will be able to invest their criminal gains across the border in the Republic of Ireland, just a quick drive down the motorway, with complete impunity as the courts will have no way of seizing those assets. I find that a shocking state of affairs to face.

I took some time yesterday and on Google maps followed the border along. I always think of the town of Belleek where, if you walk down the high street, your mobile phone signal beeps from one side to the other because the border is so close that it is switching from the Irish server to the UK one. If you follow the border along, it is very difficult. A criminal could buy land in that area. We do not assume that everyone in Northern Ireland is going to do this, but criminals will know that if they live in Northern Ireland but store the proceeds of their crime just a few miles across the border, they are going to be outside the remit of legislation and nothing can be done. I have to agree with Ian Paisley MP, who said in the other place that,

“the situation gives gangsters and criminals in Northern Ireland who are involved in serious and organised crime a free rein in part of the United Kingdom, and that must be addressed”.—[Official Report, Commons,13/03/2013; col. 373.]

Another worry that the Government must have is criminals moving to Northern Ireland because it will make it easier for them in that situation. It really is a shocking state of affairs.

I heard what the Minister said earlier and I understand his view that it is right to leave all the negotiations to David Ford. However, the point was made by the MP and others that this impacts on the United Kingdom as a whole and on places other than Northern Ireland. I feel that David Ford, for all the efforts he has made, deserves a bit more support from British Ministers in talking to the political parties, Members of the Assembly and Ministers in the Northern Ireland Executive to try and reach a solution. It damages us all if people can move to Northern Ireland to store their ill gotten gains from anywhere else in the world and nothing can be done about it.

[Lord Taylor of Holbeach]

I thank the noble Baroness. She has raised an issue that I have identified already. I should reassure her that the Government are giving all the support to David Ford that he would ask for. However, in many ways the solution to this problem clearly lies with the people of Northern Ireland because it is the Northern Ireland Assembly that controls the Northern Ireland Executive. Indeed, this is long term an unacceptable state of affairs because of the very difficulties referred to by the noble Baroness, Lady Smith. We are well aware of it. That is why we have tabled order-making powers. As with other measures where we have not been able to get a legislative consent Motion, we are making every effort successfully to deliver a legislative consent Motion. We will then be able to ensure that these particular powers apply to Northern Ireland. There are dangers if they do not do so.

[Baroness Smith of Basildon]

I am grateful to the noble Lord for that explanation. I do not want to detain the House. Is he saying that he does not see any role or any responsibility for Home Office or Northern Ireland Ministers in trying to resolve this position?

[Lord Taylor of Holbeach]

My Lords, I started off by saying to the noble Baroness that we have given all the help that we believe will be helpful to getting a solution to this problem. We would do nothing other than do all we can to ensure that we get the legislative consent Motion which a number of measures under the Bill require to bring Northern Ireland fully into the provisions of the legislation that is being provided for in the Bill.