Justice and Security Bill [HL]
Baroness Smith of Basildon Excerpts(12 years, 4 months ago)
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Lord Thomas of Gresford
My Lords, my question to the Minister is: what is meant by “proper” in paragraph 3(3)(b) of Schedule 1? One has to postulate a situation where a Select Committee, for example on health, asks for disclosure from a Minister, who says, “I would love to give you the information but it would not be proper—it would be contrary to propriety”. What does the word mean? Proper in what sense? Would it be immoral or illegal? What is the word supposed to convey? I simply do not understand and would be grateful if the Minister would help me.
Baroness Smith of Basildon
My Lords, I think that there is unanimity around the House about the questions that need to be addressed in connection with Amendment 24. Our concern is that the Government may have lowered the threshold for proving that information should be withheld. Under the Bill, the Secretary of State will decide whether information is too sensitive to disclose or is of such a nature that it would not be proper to disclose it to a departmental Select Committee. However, where the Intelligence Services Act 1994 prevents the Secretary of State vetoing the disclosure of information on grounds of national security alone, now national security is just one of the conditions under which the Secretary of State may use their veto. I support the amendment of the noble Marquess, Lord Lothian, and the noble Lord, Lord Butler of Brockwell, because I share their curiosity about what a consideration that it is not proper to disclose information to a departmental Select Committee would mean in practice, and why the provision of it not being proper to do so is seen as a necessary alternative to non-disclosure on the grounds that the information is sensitive and affects national security. I would be grateful if the Minister would look at this again.
Amendment 25 in the name of the noble Baroness, Lady Hamwee, disallows the use of the ministerial veto on disclosure of information when it refers to conduct that would amount to a breach of international law. I am curious about how that would work in practice. Who would determine whether the conduct to which the information relates could amount to a breach of international law? I find it difficult to understand how a Secretary of State would make that judgment on the actions of her own Government. I understand the principle behind it but I am not clear how it would work in practice. If the Minister would explain what is meant by “proper”, that would be very helpful.
The Minister of State, Home Office (Lord Henley)
My Lords, the noble Lord, Lord Campbell-Savours, suggested that this amendment was similar to the previous one. He is right, but we have been allowed to have a one-hour break to have something to eat between that previous amendment and this one. It is similar to that amendment. He also said that he was somewhat confused by it. He is not the simple Scottish lawyer that my noble friend Lord Lothian is, but my noble friend also got it right when he said that it was possible that the draftsman had got it wrong. If that is the case, obviously I will ask the appropriate officials to look at it again to ensure that we have got the drafting right.
Before I come to the substantive part of the amendment, may I also make it clear to my noble friend Lord Lester that we will try to address his points about general aspects of dealing with Select Committees between now and Report? I cannot give any guarantee of that but I certainly hope to do so.
There are a number of very long-standing conventions that have developed in Parliament in the relationship between Select Committees and successive Governments. Those conventions recognise that there are categories of information that may, in certain circumstances, be withheld from Select Committees on grounds of public policy.
The noble Lord, Lord Butler, asked for particular examples. All I can say at this stage is that examples of the type of information are given in the Cabinet Office guide Departmental Evidence and Response to Select Committees. Some noble Lords may know this guide by its other name, the Osmotherly Rules. I do not know those intimately but I look at the smile on the face of the noble Lord and I suspect that he was probably the one who drafted them some years ago. He shakes his head. But he knows them well. The categories of information set out in that guide include information about matters which are sub judice, information which could only be supplied after carrying out substantial research or at excessive cost, and papers of a previous Administration.
The sub-paragraph of the Bill that the noble Lords propose be left out and which my noble friend asks that we have the draftsmen look at again is a necessary part of the Bill. It provides a basis for withholding these categories of information from the ISC. If the relationship between the ISC and government is to reflect the relationship between a Select Committee and the Government, then it seems to the Government to be essential to have this significant aspect of the relationship.
The provision gives the Minister of the Crown discretion only to withhold material. In exercising that discretion the Minister would, of course, have regard to the provisions that the ISC has for keeping material confidential. For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. They have only been used sparingly in the past and we expect this to continue. However, it is important that those safeguards are retained.
My noble friend Lord Thomas also asked for the definition of “proper” in paragraph 3(3)(b). That is something I would ask that we look at again in relation to the concerns over the drafting of the Bill. With that explanation, I hope the noble Lord will feel it is not necessary to move his Amendment 24.
Amendment 25 would introduce a limitation on, or exception to, the powers of the Secretary of State or a Minister of the Crown to withhold information from the ISC, under paragraphs 3(1)(b) or 3(2)(b) of Schedule 1. The exception would apply wherever the information requested by the ISC relates to conduct which may amount to a breach of UK or international law.
Various noble Lords spoke very strongly about this at Second Reading, and I know there are concerns to ensure that the new ISC can operate as effectively as possible in future. Other amendments would obviously have the effect of removing entirely the powers of the Secretary of State or a Minister of the Crown—we discussed that in an earlier amendment—to withhold information from the ISC. This amendment is an alternative, therefore, to those amendments.
Lord Lloyd of Berwick
My Lords, I regret that I was not able to take part in the Second Reading of this Bill. I support Amendment 32 and suggest that in one very minor respect it may not go quite far enough. There used to be a body known as the Security Commission, on which I served for some years. I succeeded the noble and learned Lord, Lord Griffiths, as chairman of that body and was in due course succeeded by the noble and learned Baroness, Lady Butler-Sloss. Our main function was to investigate and report on cases of espionage—selling secrets to the Russians and things of that kind. We were appointed by the Prime Minister to investigate particular matters and, before we were appointed, we had to have the consent of the leader of the Opposition. The noble Lord, Lord King of Bridgwater, will remember those days. I think that it can be said that we did the state some service. Since the end of the Cold War, espionage is no longer the problem that it was, certainly not in the same way. Therefore the Security Commission has not sat for some years.
I suggest that it is possible that such cases might arise again in the future. If they did, surely the new security committee would be the obvious body—the ideal body—to carry out such an investigation. That being so—if it is so—I am concerned that Clause 2, even with the amendment suggested by the noble Lord, Lord Butler, might not be quite right to enable that to happen. It might or might not be, strictly speaking, an operational matter of MI6.
My suggestion would be to add a very few words to Clause 2(4). After the word “functions”, one could add, “or the functions formerly performed by the Security Commission”. That would be in line 20. Future historians would no longer have to worry about whatever happened to the Security Commission and we would have given that body what one might call a decent burial. I had drafted an amendment to that effect, but I was too late to put it down this morning. I would be happy to move such an amendment on Report, if it were to find favour.
Baroness Smith of Basildon
My Lords, this certainly seems a very sensible and practical group of amendments. Amendment 30 would remove the Prime Minister’s involvement in the assessment of whether a matter that the ISC wished to consider satisfied the criteria of being of significant national interest and not part of an ongoing operation. I fully support the extension of the ISC’s statutory remit to include particular operational matters; it is a function that the committee, in practice, already performs. We also understand the necessity of constraining this remit. I think that the noble Lord, Lord Campbell-Savours, in speaking to his amendment, made that point, too. It is necessary to ensure that the committee’s work is focused on areas of significant national interest and does not jeopardise ongoing operations. The determination of whether an operation is of significant national interest and whether it is not currently ongoing are objective judgments. One is a decision about what is of interest to the public, which the committee is surely best placed to judge, and the other is a statement of fact, which would simply involve consultation with the relevant government agencies. It is not a process of negotiation with the Prime Minister.
It is unclear to me why this assessment cannot be left to the discretion of the committee without needing the involvement of the Prime Minister. If the key point of the reforms in this legislation is to establish a clearer independence of the committee from the Prime Minister and a closer connection with Parliament, then requiring the ISC to seek the permission and the agreement of the Prime Minister before determining whether a specific operational matter lies in its remit sends a completely wrong signal about the independence of the ISC.
We also give full support to Amendment 32, which would provide important flexibility to the committee’s powers to view specific operational matters. We have consistently argued that the ISC should be given the power to review specific operational matters, such as control orders, while recognising that limitations may apply with respect to ongoing operations where the committee’s work may jeopardise the integrity of those operations. An absolute ban on considering any ongoing operational matters seems to us to be unnecessarily heavy-handed. It is easy to imagine particular cases of significant public interest, perhaps where the majority of the operation has been concluded but there is still some ongoing activity that cannot be reviewed by the committee, even if the Government agree that there is no risk. Amendment 32 would be a highly sensible alternative to the blanket ban by allowing the committee, with the agreement of the Secretary of State, to review certain ongoing operations. I agree with the noble Lord, Lord King of Bridgwater, that there seems to be a drafting deficiency. I hope that the Minister can give a more positive response to this group of amendments than he was able to for the last one.
Lord Henley
My Lords, first, if there are any drafting concerns about this Bill, as I hope I made clear at an earlier stage, we will be more than happy to look at them. This is what this House does very well and the debates that we have been having this afternoon are indicative of that. We will take these points on board and the similar drafting points made by my noble friend Lord Lothian.
Secondly, I understand that the noble and learned Lord, Lord Lloyd, tried to table an amendment earlier today but I think that he missed the boat. I suppose that he could still have put down a manuscript amendment—fortunately, he decided not to—but he will come back to that in greater detail on Report. Certainly we will listen to his remarks in due course about the Security Commission, which he said that he chaired and which was later chaired by the noble and learned Baroness, Lady Butler-Sloss.
I hope that the Committee will bear with me if I explain in some detail just what we are trying to do and what we think is wrong with the amendments. I hope that noble Lords will also accept that, as I just said, we are more than happy to look at matters relating to drafting again, because we want to get this right.
The Bill extends the ISC’s statutory remit and makes clear its ability to oversee the operational work of the security and intelligence agencies. This is an important and significant change and will be key to ensuring that the ISC continues to perform an effective oversight role. With this formalisation of its role in oversight of operational matters, we would expect the new ISC to provide such oversight on a more regular basis.
In the Bill, the ISC may 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. The ISC’s oversight in this area must be retrospective and should not involve, for instance, prior knowledge or approval of agency activity. Consideration of the matter must also be consistent with any principles set out in, or other provision made by, a memorandum of understanding. We will discuss that again in due course.
Of course, the ISC is not the only body that oversees the operational activity of the agencies. The Prime Minister has overall responsibility within government for intelligence and security matters and for the agencies. Day-to-day ministerial responsibility for the Security Service lies with the Home Secretary and, for the Secret Intelligence Service and GCHQ, with the Foreign Secretary. The Home Secretary is accountable to Parliament, and therefore to the public, for the work of the Security Service; similarly, the Foreign Secretary has his accountability.
The Intelligence Services Commissioner provides oversight of the use of a number of key investigatory techniques employed by the agencies and by members of Her Majesty’s forces and Ministry of Defence personnel outside Northern Ireland. The Interception of Communications Commissioner’s central function is to keep under review the issue of warrants for the interception of communications.
On Amendments 30, 31 and 32, the first amendment would have the effect of leaving it solely to the judgment of the ISC to decide when the criteria for considering a particular operational matter are met. The noble Lord, Lord Butler, is a current member of the Intelligence and Security Committee and, as such, speaks from a position of great knowledge. However, I hope that he would agree that the judgment as to whether an operational matter meets the criteria is one that should be for both the ISC and the Government and not just for one or the other. It is very important that we get this judgment right.
Crime and Courts Bill [HL]
Baroness Smith of Basildon 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.
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.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister seeks to reassure me and I wish that he could. However, unfortunately, he has not. There are a number of issues. If, as he points out, it would be quicker, cheaper and easier for everybody concerned—the Government and all the applicants—for there to be no appeals process, why does everybody not welcome this with open arms?
As I pointed out in my earlier comments and as was pointed out by the noble Lord, Lord Avebury, and the noble Baroness, Lady Hamwee, it would be quicker, cheaper and less onerous if so many wrong decisions were not made in the first place. I imagine that those appeals that were not upheld were much easier decisions to make if the application was turned down and the appeal rejected. I am very concerned about those where a wrong decision is made and the appeal is successful because of the wrong decision. I know the noble Lord says that in many cases it is because new information is provided, but it would be very simple to make it absolutely clear what information is required in the first place. That would make the whole application process much quicker and more efficient.
The other problem with making new applications is that there is no opportunity for advocacy or for people to make representations on an applicant’s behalf. I made the point earlier that if somebody is refused and the decision-maker says that they gave inaccurate or wrong information, they can be barred for 10 years. The Minister says they can apply next year and the year after, but in those circumstances they will not be able to apply for 10 years. Even though the decision may be based on inaccurate information, and the person who has been refused a family visitor visa has been told the information they gave was wrong and misleading, there is no opportunity to appeal that and they cannot make another application for 10 years. That seems to be a gap in the noble Lord’s reasoning.
I wonder whether he is dealing with this problem from the wrong end. If we deal with improving the quality of decision-making, in some cases by making it easier, and so more straightforward, for applicants to know what is required of them, we would see this logjam that he talks about removed. To try to deal with the logjam by merely removing the right to appeal does not seem to me to be the right way round.
I was surprised that he drew any comfort from the chief inspector’s report. I think that it is quite damning. Basically, he says, “I make these recommendations, people accept them, but it does not get any better”. Before the Government take an action such as this, they should seek significant changes and improvements in decision-making. I do not lay it all at the door of poor decision-making. However, he tells me that every decision is reviewed by a senior manager, so clearly something is wrong when so many appeals succeed despite that. Something in the process is going badly wrong.
I will not press my amendment today. I am grateful to the Minister for pointing out the deficiencies in my drafting but, despite his very brave attempts, I am not really reassured.
Lord Henley
My Lords, before my noble kinsman decides what to do with his amendment—obviously, it is his decision—I want to pick up one point. The noble Baroness says that an awful lot of appeals are the result of wrong decisions. I accept that some are the result of wrong decisions, but as she would accept, an awful lot are the result of the wrong information coming forward, and that is something far better dealt with by means of a new application. Obviously, we might have to look at how to ensure that people get the right information into their original application so that the correct decision can be made. That is a matter of making sure that we have the right procedures in place and I will certainly be prepared to look at that. However, I do not think that she should imply that all the problems are down to bad decision-making; an awful lot are the result of new information coming forward. That is why there are so many appeals.
Baroness Smith of Basildon
If the noble Lord reads Hansard and looks at my previous comments and at what I have just said, he will find that I acknowledge that sometimes a wrong decision is made because the right information is not supplied. Indeed, I quoted the chief inspector as saying that in 16% of the cases reviewed, applications had been refused on the basis of a failure to provide information, but the applicant was not aware of what information was required. I acknowledge that important point. If the Minister were to take that back to the UK Borders Agency and act on it, that would be an extremely positive step, so that all applicants are made fully aware at the time of application what information is required.
Lord Hussain
My Lords, may I raise one question? I live in a community where a lot of migration takes place and I can quote examples. However, I need some clarification from the Minister. On more than one occasion, applications from family visitors, who have visited Britain more than once, have been refused even though they have complied with the law and have done nothing against the law. They say, “Yes, we accept that the applicant has been to Britain in the past and that they have not broken any law, but things have changed and, on the balance of probabilities, we believe that they will not go back”. I wonder what sort of new information they will supply if they resubmit their application. The only answer I can see is a right of appeal, so that they can prove that they can fulfil all the requirements and guarantees needed to show that they will go back, as they have done in the past.
Baroness Smith of Basildon
My Lords, I, too, was sent a brief with the same information by the Immigration Law Practitioners’ Association, which briefed the noble Lord, Lord Avebury, on his amendments. There is a case here that is of interest. There is not much that I can add to what the noble Lord has said but I am interested to hear the Minister’s response, particularly to Amendment 148C. I am concerned about the arrangements for young people and children, particularly those aged under 16. My only comment is that I am willing to listen to the noble Lord’s response to those amendments.
Lord Henley
My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.
The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.
Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.
My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.
Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.
Lord Avebury
My Lords, under Sections 96 to 99 of the Nationality, Immigration and Asylum Act 2002, the Secretary of State may issue a certificate causing a properly initiated and extant appeal before the First-tier Tribunal, Immigration and Asylum Chamber, or onward appeal against a decision of that chamber, to be summarily terminated. The cases dealt with in Sections 97 and 98 concern matters of national security or certain cases where the Secretary of State has certified that a person’s presence in the UK is, or would not be, conducive to the public good, and these amendments do not affect those provisions.
Section 96(1) and (2) concern situations where the Secretary of State asserts that the subject matter a person now relies upon could and should have been raised in previous appeal proceedings. However, the Secretary of State’s opportunity to make such an assertion and issue a certificate to exclude a right of appeal to the First-tier Tribunal is when she is making her decision in relation to the subject matter, not after she has rejected it and an appeal initiated. Indeed, Section 96 expressly recognises this. Section 96(7) states:
“A certificate under subsection (1) or (2) shall have no effect in relation to an appeal instituted before the certificate is issued”.
Section 99 was commenced on 1 April 2003 by the Nationality, Immigration and Asylum Act (Commencement No. 4) Order. Section 96, however, was later revised and Section 96(7) inserted on 1 October 2004 by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No. 1) Order 2004. However, when this revision was made, Section 99 was not amended so as to reflect the change introduced under the 2004 Act. The ineffective and erroneous part of Section 99, which the amendment seeks to remove, is another example highlighting the degree of complexity in the statutory immigration appeals provisions. I beg to move.
Baroness Smith of Basildon
My Lords, I can be very brief on this, as the noble Lord, Lord Avebury, explained his amendment in great detail. My understanding from the briefing that I received is that this proposal would be a modest tidying and simplification of what the Immigration Law Practitioners’ Association said was a highly complex statutory appeals process. On that basis, it appears to be a tidying-up amendment, but it would be helpful to know whether the Minister shares that view or whether he believes that it represents a significant change. My legal knowledge is not great enough, but I would like to hear the other side of it, and if it is just a simplification and tidying-up I hope that the Government would agree to it.
Baroness Smith of Basildon
My Lords, I have a copy of the briefing that was sent to the noble Lord, Lord Avebury, and I have had the opportunity to read through what is quite a lengthy and complex explanation as he has been speaking, which has been helpful. Therefore, I do not want to repeat the arguments that he has made.
I do have some questions, although I do not know whether the noble Lord will be able to respond. I suspect that the noble Lord, Lord Avebury, will withdraw his amendment, possibly bringing it back on Report depending on the Minister’s answer. However, I have a few questions, as I am uncertain about some of the provisions in the clause and in the amendment, and it would be helpful if the noble Lord could address them. I am quite happy to have the response in writing.
From the briefing—I am sure I am not the only Member of the Committee to have received the same briefing on the amendments of the noble Lord, Lord Avebury—there is an implication regarding the circumstances under which somebody’s leave to remain will be cancelled while they are out of the country. I should be interested to hear from the Minister the criteria for cancelling somebody’s leave to remain while they are out of the country. Is this purely an administrative decision or, as is implied, is it almost the case that the Home Secretary is lying in wait, wanting to cancel leave to remain and waiting until a person leaves the country before doing so? It would be helpful to have some information on that. What proportion of cancelled leave to remain is taken when somebody is out of the country, as opposed to somebody being in-country?
Finally—we have had a very full explanation of the amendments—the legislation refers to the decision on removing the right to remain as being,
“taken wholly or partly on the ground that it is no longer conducive to the public good”,
for the person to have that leave. Is there a definition of “public good”? Is there a definition of when there is no longer that public good and the leave to remain is withdrawn? My concerns are about people being treated fairly and that there is no presumption that, because somebody leaves the country—well, I will come back to that. However, there must not be many of these cases. It would be interesting to know what proportion of cancelled leave to remain relates to people out of the country as opposed to people who are in-country.
Lord Judd
My Lords, the noble Lord, Lord Avebury, is absolutely right to put down the amendment. I am glad he drew attention to the comments by UNHCR, because UNHCR has immense responsibilities on behalf of the international community and its very serious considerations are sometimes treated too lightly.
Wrapped up in this issue is something on which I dwelt at Second Reading: concern about the division between what I would call administrative law and a real search for justice. In the fraught area of migration in general and the more difficult areas of asylum and the rest in particular, where all kinds of pressures and real dangers operate for the people concerned, it is most important to be certain that the balance remains on the side of justice. I would be grateful for the Minister’s considered view on whether this priority for justice—as distinct from a self-evident rationalisation of what may be convenient within political circles—can be pursued. The individual concerned is much more vulnerable when they are abroad. As the noble Lord has said, it is much more complex, challenging and difficult to mount an appeal from abroad. Can we really ensure that justice prevails if we have this provision? Should someone who has a right to appeal not have the right to pursue it here, where they can put their case fully before the courts and be tested in depth by them on their position and where there is an opportunity for others who may have a perspective on a case to bring their views and judgments into the deliberations that are taking place?
I hope the Minister will forgive me for saying that I am profoundly worried about this and would like his assurance that he is equally worried and is looking to make sure that, in this area, it is justice and not administrative convenience—whatever the apparent logical reasons for this administrative convenience—that has pride of place.
Lord Avebury
My Lords, in moving Amendment 149B, I shall also discuss Amendment 149C. These are alternative amendments reducing the impact of the additional and highly restrictive requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal. This additional requirement is referred to as the “second-tier appeals test”. The second of the two alternatives I have tabled is narrower, removing this test in asylum and human rights appeals but not other immigration appeals.
The second-tier appeals test was introduced by Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 for certain appeals from the Upper Tribunal to the Court of Appeal. During the passage of the Borders, Citizenship and Immigration Bill in 2009, your Lordships voted through amendments to prevent the test applying to immigration and nationality appeals. This amendment derives from the wording of the amendment originally tabled by my noble friend Lord Lester of Herne Hill, QC, the noble Lord, Lord Pannick, QC, and the noble and learned Lord, Lord Lloyd of Berwick, and subsequently adopted by my noble friend Lord Thomas of Gresford and the late Lord Kingsland as part of a wider amendment concerning the Upper Tribunal. The Joint Committee on Human Rights had concurred with the legal opinion of Sir Richard Buxton, a recently retired Lord Justice of Appeal in the Court of Appeal, that the introduction of such restrictions might not be compatible with the UK’s international obligations.
The same considerations apply now as they did then, and there is a new factor. The increased rotation of judges under the Crime and Courts Bill will mean that there are more judges in the Upper Tribunal who are not immersed in these cases making asylum and immigration decisions, and they will be without the supervision of the Court of Appeal if the clause is unamended. At the moment, we continue to see the higher courts engaged on these issues. There are some poor tribunal decisions but, to be fair, this is an incredibly complex, difficult and fast-moving area of the law. The tribunal judges sitting from time to time in the immigration and asylum chambers of the tribunal may be excellent tribunal judges. However, they are not infallible, and the effect of the LASPO Act 2012, whether directly, in immigration, or indirectly, in asylum, will be that more appellants are unrepresented.
Among the concerns expressed in 2009 was the impact of the second-tier appeals test in potentially excluding appeals to the Court of Appeal where the individuals faced removal in breach of the refugee convention and their human rights as a result of errors of law by the tribunal. Ministers gave assurances in both Houses that these sorts of cases would be the ones that could be expected to meet the test. Phil Woolas said,
“the test would not stop cases that raise important issues concerning human rights or asylum being granted permission to appeal to the Court of Appeal”.—[Official Report, Commons, 14/7/09; col. 210.]
There were other soothing comments, of which I will cite only one, made by the current Immigration Minister, Damian Green, who said:
“The widespread feeling is that Home Office failings must not be compensated for by a lessening of appeal rights in those complex cases that involve human rights issues or constitutional principles, and that the inadequate handling of judicial reviews by an untested tribunal risks increasing the work load of the supervising court, the Court of Appeal, and reducing supervision at the Home Office”.—[Official Report, Commons, 14/07/09; col. 212.]
Those assurances have proved to be ephemeral following the judgment of the Court of Appeal in the case of PR (Sri Lanka). The Court of Appeal considered the ministerial assurances given in 2009, concluding that,
“it would be wrong in principle”,
to be constrained by those assurances and, in applying the second-tier appeals test, refused permission to appeal in each of the three asylum cases before the court. In one of those cases the appellant had been detained and tortured in Sri Lanka. Applying the test, the Court of Appeal concluded:
“The claimed risks are, unhappily, in no way exceptional in this jurisdiction, and not in themselves such as to require the attention of the Court of Appeal”.
In another of the three cases, the judge identified an error of law in the failure of the tribunals below to correctly apply country guidance in respect of Zimbabwe asylum claims, but concluded that the test none the less precluded any appeal to the court. In the last of the three cases, Lord Justice Pitchford found the reasoning of the tribunals below to be, “obscure and contradictory” and such as to give rise to a real prospect of success on the appeal if permission had been granted.
In the case of JD (Congo), however, the Court of Appeal granted JD permission to appeal on the basis that there was an error of law in the Upper Tribunal’s conclusion that the First-tier Tribunal had erred in law, but the UT’s criticisms of the FTT’s decision amount to no more than a disagreement as to the proportionality of removal. The consequences of removal for JD and his partner were acknowledged to be very severe.
Taken together, these two judgments show that asylum and other human rights cases are neither exempt from the test, nor grounds in themselves to meet the test. That an error could lead to a person being returned to a country where he or she may be tortured will not necessarily mean that the test is met, as in the case of PR (Sri Lanka).
There are other significant conclusions to be drawn from these cases, as the Immigration Law Practitioners’ Association emphasised in its briefing for your Lordships on these amendments. I hope that my noble kinsman has had an opportunity of considering them carefully in making up his mind as to how to respond this afternoon.
In conclusion, leaving aside all the complexities of the second-tier appeals test, which have preoccupied the Court of Appeal, it has been shown that without Amendment 149B, or at least Amendment 149C, we shall be in breach of our obligations under both the refugee convention and the ECHR and that we have been warned by no less an authority than the UNHCR itself. I beg to move.
Baroness Smith of Basildon
My Lords, we are again grateful to the noble Lord, Lord Avebury, for the detail with which he explained his amendment. I think that these are amendments drafted by the Immigration Law Practitioners’ Association. As I understand the noble Lord, they are alternative amendments. The first removes the requirement to show an important point of principle or practice, or some other compelling reason, in immigration and nationality appeals from the Upper Tribunal to the Court of Appeal: that is known as the second-tier appeals test. The second, if I understand it correctly, is a lesser amendment and would apply to all immigration and nationality appeals concerning asylum and human rights. The noble Lord indicates that I do understand correctly.
The noble Lord referred to the impact the second-tier appeals test has had and I would like to hear the response of the noble Baroness, Lady Northover. There were some serious points raised by the noble Lord, Lord Avebury. If the Government are opposing the amendment, we need to understand their case for doing so, including their views on the impact this would have if implemented and the reasons and evidence used to justify holding those views. It would be helpful to hear from the noble Baroness. The noble Lord, Lord Avebury, has made a detailed and interesting case and there must be some justification if the Government are not going to accept the amendments.
Baroness Smith of Basildon
My Lords, in the clause that my amendment seeks to address the Government are proposing to extend vastly the powers of the UK Border Agency’s customs and immigration officers. I do not necessarily oppose this in principle. We have to understand the very challenging nature of the work undertaken by border control. The nature of international and global threats is constantly changing and we have to pay tribute to the immigration officers. They have a difficult job, they work in a challenging environment, and they have suffered cuts to their numbers in the last couple of years. However, we need to look at two things.
First, such an extension of powers would need to be properly justified and explained to your Lordships’ House. Secondly, we need to ensure that those exercising those powers have the necessary skills, rank, and remit, in order to ensure public confidence in the UK Border Agency as well as confidence within it. Also, is it up to it? I do not in any way mean the individual border officers, but rather whether they have the resources, training and capacity to undertake those roles.
Clause 26 extends a number of powers to immigration officers, both under the Regulation of Investigatory Powers Act and the Proceeds of Crime Act. Those powers are significant: the power to authorise the use of covert surveillance—“intrusive surveillance”, according to the Bill—and property interference such as wiretapping and installation of listening devices, as well as powers to authorise confiscation and detained cash and money-laundering investigations. These are serious new powers to give to immigration officers. They are currently only authorised by senior officers, and they are exercised by experienced and specialised professionals. Our amendments seek to ensure that if those powers are to be extended to immigration officers, they will be exercised with the same level of expertise and seniority.
When I first looked at the Bill it seemed to contain very wide-ranging powers, and there is a case for the Government to justify those. However, I looked at the Explanatory Notes, and the amendments seek to put on the face of the Bill what is in them. The Explanatory Notes are very helpful in this regard, because they make clear—I refer to page 64 and paragraph 380 in particular—that the intrusive surveillance available under RIPA should only be extended to officers working within the criminal and financial investigation teams. The paragraph says:
“The purpose of this amendment”—
which we are talking about, and which is in the clause—
“is to provide for immigration officers working in Criminal and Financial Investigation (‘CFI’) teams in the UK Border Agency … to be able to apply to exercise property interference powers equivalent to those already used by customs officials”.
It cites the Act and legislation under which they can use them, and states that:
“CFI teams have responsibility for investigating smuggling of drugs, firearms and weapons and organised immigration and customs crimes”.
If, as I understand from the Explanatory Notes, the Government intend these powers to be used only in the specific context of criminal and financial investigation by immigration officers, then it would be helpful to state that in the Bill and be very clear about it, rather than allowing the scope—as seems to be the case at the moment in this clause—for any immigration officer to exercise those powers. I am concerned about whether training and support could be available to all immigration officers, and whether it would be for all staff or only for those above a certain rank. That gives me some cause for concern, because if all immigration officers had that power, there is then the understanding that any immigration officer could exercise that power, even without the training or the appropriate rank or experience. What is in the Explanatory Notes is therefore better than what is in the Bill, though that may be an oversight in drafting.
Amendments 149CB and 153B, which follow Amendment 149CA, are intended to probe the Government’s justification for these highly specialised powers. These probing amendments remove Clause 26(4) and (5) and paragraphs 14 to 39 of Schedule 14, which extend to the UK Border Agency’s chief operating officer the ability to authorise immigration officers’ powers of investigation into confiscation, detained cash and money-laundering under the Proceeds of Crime Act. At present, the only individuals who can exercise those powers are accredited financial investigators, police constables or Customs officials, and in the case of confiscation investigations only SOCA officers—although SOCA has now been absorbed into the National Crime Agency. Notwithstanding police constables, all these individuals work within the specific field of serious financial and economic crime. I assume that once the National Crime Agency is up and running and fully established, it will have responsibility for those crimes.
The Government need to explain and justify for what purposes immigration officers also need such powers. What will be the relationship between the immigration officers who have this power and the National Crime Agency? Earlier clauses in the Bill refer to the relationship between the National Crime Agency and local police forces, and the powers of notification. If immigration officers are given new powers, there should be the same kind of co-operation and information-sharing between immigration officers, who have such powers, and the National Crime Agency, otherwise there will be a gap to fall through; both groups could end up investigating similar crimes or there could be an overlap of crimes. It would be helpful if the Government could clearly explain for what purposes immigration officers need these powers, and why, with the existing powers they have, there could not be co-operation with the National Crime Agency.
Paragraph 381 in the Explanatory Notes says that:
“At present, the UKBA is able to authorise applications from immigration officers investigating serious organised immigration for directed surveillance and Covert Human Intelligence Sources … and the ‘senior authorising officer’ can authorise applications for intrusive surveillance”.
However, this amendment takes it one stage further, so there needs to be a little more justification and understanding. I can understand the issue around the crimes, but I am not clear why any immigration officer could have those powers—which appears to be the case in the Bill, though perhaps not in the Explanatory Notes. Why is it not sufficient to extend the powers of current specialised officers, or to work with them and the National Crime Agency? I would also be interested in some information on the training that would be given to the specialised officers. Would there originally have been any expectation that they should have any specialised skills, or would it have been something that any immigration officer could take on if they had had the appropriate training?
Finally, does the UK Border Agency have the capacity to take on this role? The following amendment, in the name of the noble Lord, Lord Berkeley, which we will discuss shortly, covers a number of issues including queues at Heathrow, where we have seen enormous pressures put on the staff. Given the current wording of the Bill, and in particular that it would seem to apply to any immigration officer, I worry about giving very wide-ranging additional powers and responsibilities to a border agency that, as we heard earlier, is struggling to maintain its current responsibilities. It has had to draft in officers from the Ministry of Defence and civil servants from other parts of the Government. I want an assurance that anybody drafted in on a temporary basis—to help out with extended queues at Heathrow, for example—would not be given the powers of entry and surveillance as outlined in the Bill.
It would be helpful if the Minister could give some answers to those questions. The new powers given to the UK Border Agency are very extensive, and it would be interesting to know the Minister’s justification of them, and how he imagines that they will operate.
Lord Henley
My Lords, I am grateful to the noble Baroness for setting out what she is trying to do in these amendments, which I take it are merely probing amendments, as I believe she said. I am also grateful that she paid tribute to the very difficult job that immigration officers do. However, she probably used rather unfortunate language when she asked whether they were quite up to it, although she qualified what she meant by that. She then said that she thought that the Explanatory Notes were possibly better than the Bill itself. Sadly, we do not have legislation by Explanatory Note. However, I am always more than happy to look again at the wording of individual clauses, should it be necessary. Again, as always, we have any amount of time to deal with these matters between now and Report and the further stages as this Bill proceeds through Parliament.
Put very simply, the noble Baroness is asking what Clause 26 is about and why we think it is necessary. The proposed extension of powers is saying that it is necessary for the United Kingdom Border Agency to have extra powers to respond robustly to serious and organised crime. Customs officials within the UK Border Agency are already entitled to apply for intrusive surveillance under RIPA and for property interference under the Police Act for the purpose of investigating customs offences. This clause will rightly extend these powers to immigration officers for the purpose of investigating serious and organised crime.
I turn to the amendments and, in doing so, I hope that I will answer some of the points. I suspect that the noble Baroness has not quite got the wording of the amendments right because Amendment 149CA achieves the opposite effect to the one she wants. It would require the authorising officer, who is responsible for authorising applications to interfere with property under Section 93 of the Police Act 1997, to be a senior official who is working within a criminal and financial investigation team of the UK Border Agency. Although I suspect it may not have been the intention of the noble Baroness, the effect of this amendment would be to restrict and potentially lower the grade of the authorising officer.
Clause 26(1) already limits the role of the authorising officer to a senior official within the meaning of RIPA who has been designated for that purpose by the Secretary of State—that is, the Home Secretary. Within the police, the relevant rank for an authorising officer would be a chief constable. Under the UK Border Agency’s structure, this would be the current director of operations and deputy chief executive. No one working in the criminal and financial investigation teams would be senior enough to equate to that grade. I am sure that the Committee and the noble Baroness share our view that an authorisation to interfere with property should not be approved by anyone less senior than that level. I should also note that the director of operations and deputy chief executive of the UK Border Agency already effectively authorises applications under Section 93 of the Police Act 1997 with regard to customs investigations.
I appreciate that this is a probing amendment but, in short, it would weaken rather than tighten the controls on the exercise of these intrusive powers under Part 3 of the Police Act 1997. All that said, the noble Baroness made it clear that she is seeking to give effect to our commitment that we will limit the exercise of these intrusive powers—that is why she wanted to know why we are seeking extra powers—to specially trained immigration officers in the UK Border Agency’s criminal and financial investigation teams. We do not, however, consider it appropriate to include such an express provision in the Bill given the existing safeguards in the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. We do not have such specificity for customs officials, and the aim is to provide parity for immigration officers.
As the noble Baroness will be aware, Section 28 of RIPA provides that for a senior authorising officer to grant an authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is proportionate and necessary for preventing or detecting serious crime or in the interests of national security or in the interests of the economic well-being of the United Kingdom. The Police Act 1997 also imposes similarly strict controls over the authorisation of property interference.
I appreciate that Amendments 149CB and 153B are probing amendments. They would remove the powers sought for immigration officers in relation to the Proceeds of Crime Act 2002. These powers have been sought for good reason in an attempt to improve the effectiveness of the UK Border Agency’s investigatory capability. Providing access to the relevant Proceeds of Crime Act powers will ensure that the UK Border Agency’s immigration officers are able to play their part in dealing with the proceeds of organised immigration crime.
Moreover, these provisions will place immigration officers on the same footing as their police and customs counterparts and reduce their reliance on outside bodies such as the police. At present, only the UK Border Agency’s customs officials are able to use the full range of Proceeds of Crime Act powers and even then only in relation to customs offences. Immigration officers presently have to rely on the very few accredited financial investigators within the UK Border Agency or on seconded police officers to conduct those investigations. This is clearly a weakness in the UK Border Agency’s ability to fight organised immigration crime. The Bill ultimately ensures that the UK Border Agency can take action to deal with the proceeds of all the criminal offences in its remit, whether commodity smuggling or serious immigration and nationality crime.
The noble Baroness sought an assurance that, where civil servants and others are drafted in to help, we will be able to maintain the border appropriately and that they will have the extant powers. I can give an assurance that any civil servants brought in to help check passports will not be given the powers being sought. They would obviously not have the training that the noble Baroness and we think is appropriate to do so. In any case, those who are brought in to assist with the management of queues are being brought in specifically for that purpose and not to investigate criminal activity.
I do not know what the usual channels and others are thinking about the timing of these matters or whether the noble Baroness will have to keep going for another three minutes, but I hope that, with those assurances, she will feel able to withdraw her amendment. It may be necessary for me to write to her with further detail. I have explained why I think Amendment 149CA is defective. I leave it to the noble Baroness to consider what to do with her amendments.
Baroness Smith of Basildon
I am grateful to the noble Lord. I am puzzled about my amendment being defective. I know the noble Lord has enjoyed explaining that to me on a number of amendments. I always say they are about the intention behind the amendment and that we will come back on Report with one that satisfies him.
I understand that the Explanatory Notes are not part of legislation, as the Minister pointed out to me the other week—I am rather long in the tooth in regard to some of these things—and I am sure that they are not intended to be misleading. They state:
“The purpose of this amendment is to provide for immigration officers working in Criminal and Financial Investigation … teams in the UK Border Agency … to be able to apply to exercise”—
and then they go on to say what those powers are.
I will have to read very carefully what the Minister said in Hansard to make sure I fully understand what he is saying about it not being exclusively those officers—even though the Explanatory Notes say it would be—but that it would be other officers of a certain grade and level.
I said at the very beginning that we are not opposed to the extension of powers in principle, but we just need to understand the Government’s justification and to have some explanations and clarifications. I will read the Minister’s comments in Hansard to clarify the position for myself, but I wonder whether he is talking about slightly different things. At some point, he may have been talking about the authorisation of the action, while I am talking about the officers undertaking the surveillance as well. I hope we have not misunderstood each other. I want an assurance that the officers undertaking very intrusive forms of surveillance—perhaps phone tapping, as it says in here—will not just be authorised by a senior officer, but will have the appropriate skills, experience and training and that safeguards for the public are built in. This is a probing amendment but it may not remain one. We want to look at this a bit further and in more detail, but I am grateful to the Minister for taking time to explain some of the measures. I will look at what he has said in Hansard and I may come back to him on the point about who will have the powers and what training will be provided and I shall also look for an assurance that it will not undermine the skills of existing police officers.
One area on which the Minister did not respond was the relationship between such officers and the National Crime Agency. Given the debates that we have had earlier during the passage of the Bill, it would be helpful to explore the relationship that border officers, who deal with organised and serious crime issues as regards immigration and border control, have with the National Crime Agency, which is a national police force for organised and serious crime. We need to explore that further. I would be happy for the Minister to write to me on that point. I am happy to withdraw my amendment.
Crime and Courts Bill [HL]
Baroness Smith of Basildon Excerpts(12 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Meacher
My Lords, I must first apologise to the Minister and to my colleagues and thank the noble Baroness, Lady Hamwee, very much indeed for stepping into the breach. I completely misjudged the pace of your Lordships’ progress on the previous amendments.
I shall speak to Amendments 154ZA, 154ZB, 154CA and 154DA. I am encouraged by the fact that, perhaps for the first time, an attempt is being made to form legislation that tries to look across from drugs to alcohol and from alcohol to drugs, and to achieve some sort of reasonable comparison in the response to these drugs in relation to driving. Alcohol is of course one of the most dangerous drugs that people take. I endorse the Government’s commitment to try to find a fair and consistent way to control driving under the influence of drugs. This is overdue and important. There is no question that I would suggest that people can drive while under the influence of drugs; that would be inconceivable on my part.
The purpose of my amendments is to ensure that young people are not criminalised unless any drugs in their system really are causing impairment while they are driving. As the noble Baroness, Lady Hamwee, has suggested, there are several reasons why a driver may have a drug in their system but be entirely safe behind the driving wheel. One of my main concerns is that a very substantial minority of young people, as we know, take herbal cannabis. That is a relatively harmless thing to do—I emphasise relatively. It is much better that young people do not take cannabis or drink, or smoke, but we know that the great majority of them will do at least one of those. It is possibly better that they take a bit of herbal cannabis on occasions, so long as they do not do it too often, rather than smoke tobacco or drink alcohol. I must emphasise that skunk is a completely different matter.
I understand that the active ingredient, THC, disappears and has a short life in the body, as the noble Baroness, Lady Hamwee, said, whereas the safe and perhaps even positive ingredients of the cannabinoids, which could improve driving, can remain there for some considerable time—perhaps many weeks. This legislation could lead to the criminalising of considerable numbers of young people who took cannabis at a party several weeks before and are then stopped for some minor reason. Traces are then found in their body of the cannabinoid, which have nothing whatever to do with the quality of their driving. I know that the Minister is perfectly well aware of these problems, and I hope that he will take them into account. I would be grateful for the Minister’s assurance to the House on this matter.
I want to explain my Amendment 154ZA, to leave out the word “controlled” from new Section 5A(1(b) in Clause 27. There are at least two strong arguments for doing this. The distinction between controlled and uncontrolled drugs is not evidence-based. Alcohol and tobacco, as we know, are far more dangerous than some drugs that are controlled under the Misuse of Drugs Act. Any evidence-based legislation—which I understand this is designed to be—should not reference the outdated and discredited Misuse of Drugs Act. I applaud the Minister for insisting that this is road safety legislation; it is not about controlling drugs, it will be evidence-based, and I know that a lot of work is going on behind the scenes to make sure that that is so. However, we do have a problem with cannabis, and we need to hold on to that. In discussing cannabis, I should make it absolutely clear that I support the control of cannabis supply, but I hope that we can reach a point where the method of control—possibly some form of regulation—could be based on the evidence of the relative efficacy of different forms of control.
My second point is that a number of the so-called legal highs, or new psychoactive substances, are the drugs that may prove far more of a risk to drivers. Of course, these are controlled through temporary bans, but as Ministers and everybody else know, as soon as one of these drugs is controlled, the creators of these substances get back into their labs and create some new ones by changing a few molecules, and for a while those substances will be legal. There is, therefore, no rationale for limiting this legislation to controlled drugs, because drugs that are not controlled cause just as many problems, if not more.
I will now turn to Amendment 154ZB, where my objectives are twofold. First, it would ensure that there is a good reason for police involvement, either that the police are responding to a road accident, or that the roadside evidence suggests that the driver is impaired and that this may be due to alcohol or a drug in their system. I understand that as regards any drug where a specified limit within the driver’s blood or urine cannot be identified—above which it would be safe to assume impaired driving capacity—these cases will be dealt with under the existing Road Traffic Act. Nevertheless, I would be grateful if the Minister could give the House an assurance that under this legislation a driver will not be charged for driving under the influence of drugs unless there has either been a road traffic accident or there is roadside evidence of impairment, that the driver is not taking prescribed medication, and if the level of the drug in the driver’s blood or urine is above the level approved in regulations as presenting no threat to road safety.
I will explain paragraph (c) of Amendment 154ZB. I am concerned that the legislation could cause the inappropriate arrest and charging of patients prescribed medications for chronic pain and other long-term conditions. In particular, patients on a stable dose of opioid and analgesia may—according to Napp Pharmaceuticals—have no impairment of their ability to drive safely compared with other drivers who have taken similar quantities, or perhaps even far less, of that opioid. Apparently, the body simply adjusts to higher and higher levels of opioid, so you could be pretty heavily drugged and yet a perfectly safe driver. Therefore, without some way of dealing with these opioid prescriptions and people on those prescriptions, very unwell people who are suffering a lot of pain could be unnecessarily arrested, charged, taken to a police station, put in a cell and left there to wait for a forensic physician to come in and do a full examination, and so on. It would be a huge distress and greatly upsetting, and would also use a lot of police resources. I hope that the Minister can somehow give an assurance to the House that this issue will be very clearly dealt with.
I will quickly turn to amendment 154CA. My concern here is that new Section 5A(9) of Clause 27 appears to respond to the North report recommendation that:
“If … it should prove beyond scientific reach to set specific levels of deemed impairment, the Government should consider whether a ‘zero tolerance’ offence should be introduced in relation to”—
a list of controlled drugs. I would be grateful if the Minister could assure the House that a zero-tolerance approach will not be introduced in relation to cannabinoids—because this would be the temptation. It will be difficult to establish this limit for these drugs, because of the longevity of the survival of the cannabinoid in the blood. It would be helpful at this stage if the Minister can give us some assurance of that, and also give some indication, if possible, about the drugs that the Government have in mind for zero-tolerance treatment.
Finally, Amendment 154DA is a consequential amendment, and I will not say anything about that. In conclusion, I hope very much that the Minister will accept the principles behind these amendments—although I fully recognise that I put them together myself, and I am certainly no lawyer. If I brought them back on Report I would undoubtedly wish to change the wording therein.
Baroness Smith of Basildon
My Lords, on this clause the Committee has benefited from the contributions of the noble Baronesses, Lady Hamwee and Lady Meacher. Looking through the clause, I found this issue difficult. It is very easy to identify the problem, and we want to address it and resolve this issue. No one wants to see people driving under the influence, whether of drink or drugs, or in an impaired state or the problems that that can cause, but we have to construct legislation that addresses that issue but at the same time does not penalise unnecessarily strictly or inconvenience those at whom it is not aimed. There is a danger that this legislation could have an impact beyond what is intended. Both noble Baronesses indicated that.
When I looked at this clause, what struck me—and listening to the debate has reinforced that feeling—is that this is work in progress. We fully support what the Minister is trying to achieve. I know that he is not particularly wedded to this wording and would be happy to look at ways of making sure that it achieves its aim. Our amendments are probing amendments, but they deal with significant issues. They provide an opportunity to look at the wider concerns. I was able to let the Minister know of some of my questions, and I apologise that I have others because while I looked at the clause more questions arose—I had more questions than answers when looking at it. I would be very happy to have some responses this evening and some in writing so that when we get to Report, we can give this further consideration.
Clause 27 introduces the new offence of drug-driving above a specified limit. It will sit alongside the offence of being unfit to drive while under the influence of drugs in the Road Traffic Act, as has already been mentioned. The difference is that that offence requires proof of impairment to be guilty, but this new offence does not. It relates only to controlled drugs because we specify those drugs in secondary legislation, not in this legislation. The limits for each drug covered by the new offence have to be specified in the regulations. If I understand subsection (9) of the new section, which the noble Baronesses, Lady Meacher and Lady Hamwee, referred to, the limit could be set as low as zero, which creates some difficulties. The BMA stated:
“Drugs have a variable impact upon the measurable skills needed to drive safely, between individuals and at different blood levels”.
Yet the Explanatory Notes state:
“For some controlled drugs … it may not be technically possible to determine a level which impairs most people’s driving. This may be, for example, because tolerances vary widely in the population, or because the drug is often taken in conjunction with other drugs and is associated with abuse or risk-taking behaviour”.
The Explanatory Notes highlight some of the difficulties in getting this right.
The noble Baronesses spoke about the problem with the zero-tolerance approach—the difficulty of determining the appropriate impairment level risks decoupling the defence from the crime. A blanket ban on certain drugs that can be medicated could also seriously impact the standard of life of people on long-term medication as well as on people’s attitudes towards, and their compliance, with the treatment they require should they be prohibited from driving as a result of it. The difficulty is to look beyond the immediate offence to the impact it would have if somebody was worried that they would not be able to drive if they took certain controlled drugs on prescription. They might, therefore, on occasion not take their medication in order to drive.
In relation to medication classified as a controlled substance, as the legislation stands, individuals would be required to prove that they had a medical or dental prescription and that they took the drug in accordance with the doctor’s and the manufacturer’s or distributor’s directions. In reading the Bill, I was unclear about whether individuals who are unable to prove that they have a prescription for their medication would be required to attend a police station or would have a number of days in which to produce that evidence.
The Government have not been able to indicate how they intend to prove whether an individual has taken a drug in accordance with the medical directions—that is subsection (3) of the new section proposed in Clause 27. Would an individual be guilty of an offence if they have deviated, even only slightly, from the instructions? For example, the prescription may say to take the drug every five hours and on that occasion the patient took them within two hours because they had been out and had dinner or had forgotten. If we have it in legislation that they have to take the drugs according to the manufacturer’s and prescriber’s instructions, any deviation from those instructions could be a criminal offence.
Baroness Smith of Basildon
The Minister’s alcohol analogy is a useful one, although the caution that I would place on that is that testing for alcohol is testing for one drug. As he said, there is an almost unlimited number of drugs to be tested in this case. His comments have reassured me that the matter is being taken seriously and that he recognises that it is a work in progress. However, I am always slightly concerned—alarmed is too strong a word—when the Minister refers to matters coming back to this place and says that we do not have to worry if we do not get it completely right because it then goes to the other place as well. I am glad that he is shaking his head. That is not what he meant, but it has happened a couple of times in the course of this Bill. There is an obligation on us to get it as right as we possibly can. I know that we are not experts—I do not think that I am an expert in anything—but we are legislators or we are advising on legislation, and it is incumbent on us to ask the kind of questions that have been raised today. We need assurances that we will have the answers to those questions before the legislation goes to the other place. If we had answers to those questions before we pass legislation through both Houses, and when this House passes its advice to the other House, we could in all confidence say that we know that we have the procedures in place for this offence to protect people as we think it should.
Lord Henley
My Lords, if I put the matter in the terms described by the noble Baroness, I should not have done. We want to get it right and we shall try very hard to do so, but we need that expert advice. That is why I hope that we will have the beginnings of the expert advice from the expert panel before Report stage. At this stage, I was trying to make it clear that it was the beginnings of a discussion on a very simple idea, although it does not sound simple. The noble Baroness is right to say that we have had it very easy with alcohol, because it is just one drug and we have just one limit. We are now talking about lots of drugs—controlled, legal or illegal—and where we put the limits. It is going to be very complicated, so we want to listen to the experts and have further discussions.
Crime and Courts Bill [HL]
Baroness Smith of Basildon Excerpts(12 years, 5 months ago)
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Baroness Smith of Basildon
My Lords, this is mainly a probing amendment although not entirely given the complexity and variety of some of the issues involved and the fact that some of the functions of the National Policing Improvement Agency are being transferred before the Bill completes its passage. This short amendment covers a major issue and through it I seek to understand why the Government are proposing this course of action, what benefits arise from abolishing the National Policing Improvement Agency and dividing its functions up between various different agencies and organisations, and what problems need to be addressed in so doing. Even though a number of the functions have already been transferred in that some have gone to SOCA and will go to the NCA and others will go to the Home Office and to the new IT company, the Government need to provide their justification for believing that this is the best way forward. I still feel slightly puzzled by some of the decisions that have been taken around the National Policing Improvement Agency. They show a tendency on the part of the Government to shoot first and ask questions later. That has become a bit of a theme with the Government. We saw it with the health Bill, where actions were taken before the legislation had gone through Parliament, and we are seeing the same thing with this Bill.
The functions of the NPIA are crucial. When reading the history of these proposals, I was somewhat surprised to learn that so little detail had been made available when decisions were being taken. That was the case almost through to the very end of decisions being taken. I have still been unable to get absolute clarity on what is happening to the various functions of the National Police Improvement Agency, so I struggle to find out why decisions are taken when there is so little detail, and so little follow-up is available. On the functions of the NPIA, the organisation itself commented that it was established in part in response to a perception that,
“existing arrangements for delivering support to police forces and implementing national initiatives—in response to demands from disparate bodies—were inefficient, often mutually contradictory and inconsistent”.
Therefore a number of objectives were assigned to the NPIA:
“The identification, development and promulgation of good practice in policing; the provision to listed police forces of expert advice about, and expert assistance in connection with, operational and other policing matters; the identification and assessment of: opportunities for and threats to police forces … and the making of recommendations to the Secretary of State in the light of its assessment … the international sharing of understanding of policing issues”—
which again, has been very important to the police—
“the provision of support to listed police forces in connection with information technology, the procurement of goods, other property and services, and training and other personnel matters”—
and it ends with a catch-all:
“the doing of all such other things as are incidental or conducive to the attainment of any of the objects described above”.
However, in practice, it has brought a large number of responsibilities together: information services, including the fingerprint identification database; Airwave; automatic number plate recognition; the police national computer; police information infrastructure; the police national network; and the National DNA Database. There are also operational policing services such as the Missing Persons Bureau, the Crime Operational Support Unit and the Central Witness Bureau, as well as issues on people and development services: exams and assessment; the National Senior Careers Advisory Service and the Police Advisory Board. That is just a sample of the whole range of absolutely crucial and important functions undertaken by this organisation. It seems to me that the National Police Improvement Agency has successfully managed critical national infrastructure services. It pioneered the police national database and delivered value-for-money savings through its procurement services.
Why, then, did it have to go? What was the rationale behind it, that the Government thought that this organisation had to be abolished and started to dismantle it before the legislation has even gone through Parliament? As I looked through comments that Ministers have made, the Government said in 2010 that they would axe the NPIA as part of “streamlining the national landscape”, and that,
“now is the right time to phase out the NPIA, reviewing its role and how this translates into a streamlined national landscape”.
I am not sure that I understand what that means, because it seems that we will have fewer police bodies undertaking these functions, and yet we are seeing the creation of new bodies. It would be helpful if the Minister could correct me if I am wrong on this, but it appears that the functions will be allocated across four different bodies, three of which are completely new agencies: the National Crime Agency, NewCo—the new ICT company—the police professional body, and the Home Office. That is what I mean by shoot first and ask questions later.
I looked at the Select Committee evidence. It noted in its conclusions published in September 2011 that,
“from the little that is already known about the likely distribution of the National Policing Improvement Agency’s functions, phasing it out is unlikely to lead to fewer bodies in the national policing landscape, as Ministers had hoped. In this sense, the landscape will not be more streamlined as a result of its closure. However, there remains a possibility that the landscape—and thus, more importantly, the police service itself—may operate more effectively once those functions have been redistributed.”—
and the committee said that it explores this later in the report.
Involving more organisations to carry out the functions than did so originally is not streamlining. Perhaps it was about saving money. Was there a plan to save money and is that why the organisation was to be axed? I looked at the Government’s case for saving money and I found that to be flawed also. There is no doubt that the National Police Improvement Agency could be streamlined and made more efficient and effective—and it undertook that role itself. The NPIA has delivered £1 billion in savings for the police through ICT and procurement transformation; it has itself changed in the past two years and found £100 million of savings; and it has reduced its head count by 36%. Given the cuts that have already taken place and the way that the spoils are being divvied up, it is hard to understand—and there has to be uncertainty and legitimate concern over—the effect that the proposal will have on the future delivery of services. It would be helpful if the noble Lord, when he responds, can give some information and say why he is, I assume, assured that there will be no dilution of service or of quality of service.
One area that gives cause for concern is that roughly half the NPIA’s employees are destined for the new police professional body, which will also take on a large number of the NPIA’s existing functions. What is the justification for axing the agency? There is the cost involved and the potential loss of expertise that that brings with it. About 250 jobs, including posts involved in cost-effectiveness, are due to go, and the National Senior Careers Advisory Service is, I understand, due to be scrapped. There will not be that same kind of advisory service for the police that exists within the NPIA. The service is moving to NewCo, the new police ICT company, whose budget will be cut by £60 million by 2014-15. That creates enormous uncertainty for some of the critical infrastructure services that are provided.
I am sure that the Minister is aware that that has eroded morale within the NPIA. There is a huge morale issue. The staff have done their best and have gone out of their way to make cuts and savings and to create efficiencies; but the organisation is being abolished and some of the staff still do not know where they are going to go. I worry about the specialist staff who are being lost. There is also the great danger that this preoccupation with reorganisation and structural change has taken the focus away from delivering further technical innovations that have helped to reduce costs in the first place.
There is also the issue of timing. I checked what Ministers have said previously about whether the transfer of services will be completed in time. The Home Secretary said that the transfer of functions of the NPIA will be complete by the end of 2012—although originally she said that it would take place by spring 2012. I double-checked and a number of times back in June, the Minister for Police and Criminal Justice said that he believed in consulting “very carefully” with professionals, and that,
“we will shortly be announcing the broad direction of travel”—
even back in June 2011 he was still talking just about the broad direction of travel—
“in terms of where the functions that lie within the NPIA should land, and then further detail will be worked upon and consulted after that”.
The Minister was pressed on what “shortly” meant, and he said, “Before the Recess”. This is still ongoing. I now struggle to know how the new arrangements will be set up by the end of this year. Perhaps the noble Lord can give us some assurances on that, and say whether he believes that the timescale is currently on track.
I looked at what has happened regarding the police professional body, which will perform many of the crucial functions to be taken from the NPIA. No chief executive, no chair and no shadow board have been appointed. The Government have not provided the detail that is needed on how the new body is to be structured. I have to say to the noble Lord that if the Government fail to meet their self-imposed deadline—they chose it; it was not imposed from on high—there could be huge consequences for the service in loss of expertise, delay to service benefits, and the potential for the transitional costs of moving from the NPIA to the NCA, the police professional body, the Home Office or other new companies to be much more expensive if there is any further delay.
I would like the Minister, during today’s debate, to answer a number of questions which arise out of the clause, which would abolish the organisation. First, we need a justification for, an understanding of, the Government’s reasons for axing the NPIA. I appreciate the argument about savings, but I think that has been knocked back, because the NPIA has made its own savings. I understand the Government’s intention to streamline the landscape, as they put it, but I have already shown that the landscape has not been streamlined; in fact, it has grown. There must be some other justification or explanation for why the Government want to take this action. Also, is there an estimate of the savings that will be made by scrapping the NPIA? I do not include the savings that have been made already by the NPIA, or those in the pipeline, but only those made by the changes proposed in the Bill.
One thing I have struggled with—which I mentioned at Second Reading, and to which I hope the Minister can respond—is where all the functions are going. I have been trying to work out a master plan to show which functions go to this or that organisation. It seems that there may be some functions which fall through the colander. Can the Minister provide some kind of master plan, or at least tell us which of the functions of the NPIA will be scrapped as a result of its abolition? It is quite a confusing picture for anyone trying to track where functions are going, and what are the cost implications.
A number of police forces have raised the issue of whether there will be any additional funding burdens on local police forces as a result of the transfer of NPIA functions, in particular those functions that will not go to the police professional body, such as training and careers advice. If those have to be taken on by local police forces, that will incur a cost at a time when their budgets are being cut by 20%, far greater than the Chief Inspector of Constabulary recommended. There is a lot of concern among police forces that they will be asked to make up for some of these cuts and changes, and will not be able to do so.
Another point is the loss of expertise. What actions are the Government taking to prevent the loss of expertise as a result of this restructuring? What efforts have been made? Which posts have not been identified? Which posts have been identified as needed to retain skills? In this kind of restructuring it is always the case that people in skilled posts, who have been there a long time, may seek the opportunity to take early retirement, particularly if their future is uncertain. What efforts have been made to retain them and their skills?
Within the new professional policing body—which is not properly set up yet, and there are still some concerns about that—I gather there will be, within that body, another body called the chief constable’s council. We need to understand how that is going to work. How will it improve on the delivery of the existing services currently provided by the NPIA? Will there be some loss of quality, or is it not expected to undertake the range of functions that the NPIA undertakes? All those are crucial functions.
The final question is, how will the Government ensure that the 2012 deadline is met? Will there be another deadline and then another, as we have seen before? I struggle to understand how that deadline can be met, given that so little work has been done already.
As I said at the start, this is a small amendment, but it opens up many questions. It is an enormous cause for concern if the Government have not worked out the plans for what is happening. I would like the noble Lord to reassure me on some of those questions, including one I have not yet mentioned: the premises and the estate, and what will be undertaken with those. It would be helpful to have some answers as we move forward with the discussion on this. I beg to move.
Lord Harris of Haringey
My Lords, my noble friend talked about the Government shooting first and asking questions later. It seems that the decision to abolish the NPIA stemmed from the Government’s desire to be seen to be abolishing quangos of various sorts, irrespective of considering whether the quango was being effective. I do not say that the National Policing Improvement Agency was working as well as it might have, but that does not mean that our first step should be to abolish it. That is the approach of, “If it ain’t broke, take it to pieces anyway”.
Lord Henley
The two matters are not related; the Home Office has the appropriate expertise to deal with these matters. I was regretting the tone of voice that the noble Lord carefully used to make it clear that he did not think that there was the appropriate expertise in the Home Office to deal with these matters. We believe that that expertise does exist.
I was about to deal with the issue of the new information communications technology company which will be owned and controlled by police and crime commissioners. It will be led and funded by its customers, who will determine the services it provides. It will be responsive to local operational needs, offering forces a route to better value for money and innovation in the delivery of police information technology services. The company will ensure a more efficient approach to police information and communications technology provision and aggregate demand to exploit the purchasing power of the police service to get a good deal for the taxpayer.
The police professional body will directly support police officers at all ranks and police staff to equip the service with the skills it needs to deliver effective crime-fighting in a challenging and what must be a leaner and more accountable environment. The body will ultimately be independent of the Home Office. It will have a powerful mandate to enable the service to implement the standards that it sets for training, development, skills and qualifications. Its core mission will be to support the fight against crime and safeguard the public by ensuring professionalism in policing.
The noble Baroness, Lady Smith, was also keen to discuss timing and allegations that we had not met our targets. I appreciate that this frequently happens and that there can be slippage. I have known this throughout my career. There have been a number of times when one has announced that something will come out later in the spring and “later in the spring” has turned out to be July. However, we are on track to transfer the functions of the NPIA by the end of 2012. We began a phased transition of functions last year, with the non-ICT procurement moving to the Home Office. In April 2012, the following functions moved to SOCA: the Central Witness Bureau, the National Missing Persons Bureau, serious crime analysis, the Specialist Operations Centre and crime operational support. Obviously, more needs to be done and there are challenges, but I am more than happy that we will reach the target and do that by the end of the year. If we have any further problems, no doubt we will be the first to let the House know.
The noble Baroness was worried that the transition from the NPIA risked a loss of expertise. Giving staff certainty about their future is key to retaining their expertise, of which we are very proud. That is why we have been making announcements about this for some time and will continue to do so. Again, we are on track to complete those functions by the end of 2012. As a result, the majority of the NPIA’s staff will transfer to its various successor bodies by December 2012. Any reduction in staffing levels will arise from the already agreed budget reductions, which were part of the 2010 spending review.
Having looked at timing, rationale and other matters, I hope I have answered most of the questions that the noble Baroness and others asked. Obviously, we will have to say more later, particularly about the future of Bramshill and Harperley and the police professional body. Announcements will be made at the appropriate time. I hope that the noble Baroness will now accept that the abolition of the NPIA is a necessary part of the changes that we are making and of the Bill. Now is not necessarily the time to revisit what has, in effect, been a long-standing commitment, ever since the first announcement by my right honourable friend. Given the advanced state of wind-down of the agency and the transfer of its functions, now is the time to press on with our reforms, instead of looking back. Therefore, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for taking the time to go through many of the points and concerns I raised. Despite his efforts, he has not alleviated all those concerns. He called the closure of the NPIA a timely opportunity. It is an opportunity the Government created because they wanted to close the NPIA. I can certainly take on board some of his points. I can understand wanting to streamline the agency and the functions that he thought were better placed with other organisations. My amendments never suggested that there should be no change, but given the change that the NPIA itself had made, full abolition seems unnecessary. I am still not satisfied that the way in which it has been undertaken has not been piecemeal, as and when the Government think a part of it can be moved somewhere else. The Minister will have understood the concerns from around the House on this, not just on these Benches. I wonder whether he has read Lewis Carroll’s Alice in Wonderland? It may have been some time ago, but I will refresh his memory. There is a trial scene and the comment is made: “Sentence first—verdict afterwards”. That is what has happened with the NPIA. The Government decided that the NPIA was to go and then had to work out where all the functions went. They are still doing this. Yes, it was big for one agency; it grew like Topsy, because new functions came along that were best undertaken there; there was room for improvement and change; but the baby has gone with the bathwater.
On timing, the noble Lord says that all these arrangements will be in place, I note originally, by spring 2012. He may have been relying on typical British weather, but it still does not feel like spring 2012 even now. They are now expected at the end of the year. I expect we may see a further spring—perhaps snow again—before these bodies are in place. The police professional body has no chief executive, no chairman and no board. As we heard from my noble friend Lord Harris of Haringey, the new IT company does not have all the processes or financial arrangements in place to enable a smooth transfer. This is an issue that we will have to return to, in order to fully understand and be assured that all the “t”s have been crossed and the “i”s have been dotted. When I looked at the new landscape of policing and what the Government said back in 2010 and 2011, it seems that the goalposts have moved. All we had then was a broad outline. Now we have some detail, but the flesh is not on the bones. I would understand if the Minister said the timescale cannot be met and we are re-examining it. He has not said that, so we will return to it on Report and look at some of the functions and how they will be carried out. For now, I beg leave to withdraw my amendment.
Crime and Courts Bill [HL]
Baroness Smith of Basildon 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.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister is trying to be helpful, but that was an extremely unsatisfactory answer. I hope I misunderstood him when he said that he hopes to have an outline of the framework document by Report. I think he misunderstands the point that I am trying to make. I am not merely making the point that we want the document to have parliamentary scrutiny, important though that is, but that the framework document will inform our debate on the rest of the Bill. Not having it hampers our debates and our ability to scrutinise. This is not an isolated point about parliamentary scrutiny. Had we had the document here now, as we should have, our discussions on other aspects of the Bill would be easier and better informed because it seems to me that a lot of the information that the framework document contains is relevant to the discussions we are having. I hope the Minister understands the point I am making.
I take on board the comment by the noble Baroness, Lady Hamwee, about an order being inadequate. I entirely agree with her, but I think that anything that we are able to do at this stage is wholly inadequate because we want to have the document with us now. It is not good enough for the Minister to say that we will have an outline for Report. I do not think that we can pray in aid that this is an early stage of the proceedings and that the Bill is going to go to the House of Commons. This House has a duty to do its job, which is to scrutinise legislation. It is being hampered in doing so by not having the documents. The fact that they will be available to the House of Commons is not enough. I appreciate that the Minister has tried to be helpful, but he has not satisfied me on this point. I shall not press this matter to a vote today, but the Minister will recognise that there is unease around the House, not just on our Benches, on this point.
Lord Henley
I appreciate that the noble Baroness feels that it is important that there should be an order. Should we accept her amendment and have an order, it would not produce the framework document, or even an outline, any earlier. I am saying that we will get that outline during the passage of the Bill. If the noble Baroness were purely to rely on her amendment, she would not get it until after the Bill. That is my understanding of how her amendment works. I have given her an assurance from the Dispatch Box that we will get an outline by Report that will assist our discussions later on. I hope that is hopeful to the noble Baroness and I appreciate that she is going to withdraw her amendment. It would at least allow her, with luck, to discuss these matters on Report.
Baroness Smith of Basildon
Again, I think the Minister is trying very hard to be helpful. I think I said that any proposal we put forward at this stage is inadequate. I withdraw the amendment at this stage, but this is a subject to which we will be returning.
Baroness Smith of Basildon
We return to the framework document. This paragraph is a puzzle to me. This brief amendment deletes the requirement for the Secretary of State to obtain the consent of the director-general before issuing the framework document, because I am unclear why the Secretary of State would need to depend on the consent of the director-general in order to publish the document. It would seem to show greater courtesy and concern for the views of the director-general than for Parliament. There is no provision for parliamentary oversight at this stage. It is right and appropriate that the Home Secretary should consult the director-general, but if I understand the purpose of the framework document correctly, looking at Schedule 2, it is ultimately about the detail of the architecture of the National Crime Agency. It is not about operational matters, and it does not seem appropriate for the director-general to have a veto. I return to the point I made in earlier discussions about the blurring of the line between what is operational and what is strategic. The framework document is a strategic document. This is a probing amendment to see whether the Minister can explain why the director-general should have a veto over the Secretary of State publishing the framework document. I beg to move.
Baroness Hamwee
My Lords, I am glad that the noble Baroness tabled this amendment. It took me back to reading the paragraph and realising that I did not fully understand it. I am sorry that I have not been able to give the Minister notice of my question, which is: can he in some way translate paragraph 4, particularly sub-paragraph (2)? Does it mean that the framework document takes precedence over the annual plan? Paragraph 4(2) says:
“The Director General’s duty to have regard to the annual plan … does not apply in relation to functions under sub-paragraph (1)”.
Those functions are about being consulted on, and giving or withholding consent to, the framework document. It is a little difficult to understand how the two work together. It may be that we are being told that one is more important, or simply that one is more overarching—which the framework document should be, I guess—than the other. The relationship between the two will obviously be important and not only because there are different consents and consultation arrangements for the different items.
Lord Henley
My Lords, I will deal first with the various points raised by the noble Baroness, Lady Smith, and then move on to the rather more complicated question about paragraph 4(2) of Schedule 2 and its relationship to sub-paragraph (1), as raised by my noble friend who, as always, bowls googlies of a sort that are designed to get behind one.
The amendment of the noble Baroness, Lady Smith, would remove the requirement for the Home Secretary to obtain the consent of the director-general of the NCA before issuing the framework document. I am faintly unclear as to why she seeks to remove this provision. Does she want that framework document imposed on the director-general? That is what would happen under the amendment—there would no longer be that consultation. As I have indicated, the framework document will set out the relationship between the Home Secretary—
Baroness Smith of Basildon
I apologise for intervening. The noble Lord said that my amendment would result in there being no consultation. I am not trying to prevent consultation. Paragraph 4(1)(a) says:
“The Secretary of State must … consult the Director General”.
I am entirely happy with that; it is completely appropriate. It is the reference in paragraph 4(1)(b) to obtaining the consent of the director-general that I am concerned about. I am sorry if I was not clear.
Lord Henley
Therefore, there would still be consultation but there would be no need for consent. However, as I said, that would imply that the Home Secretary could impose that on the director-general. We believe that the document is designed to set out the relationship between the Home Secretary and the director-general and, as I said on an earlier amendment, how the NCA will operate, including its governance, management and transparency arrangements. Therefore, the director-general will have a proper interest in making sure that it reflects his or her operational view of the NCA. Since the director-general will ultimately be accountable to the Home Secretary for delivering the NCA’s priorities, it is absolutely right that his consent should be gained to crucial decisions about how the agency is administered. It is right that we should stick to that process. I hope that the noble Baroness will agree that the framework document should be agreed between the two, with both consultation and consent.
I turn now to the trickier question—the googly that I referred to—that my noble friend asked as regards paragraph 4(2) of Schedule 2, which states:
“The Director General’s duty to have regard to the annual plan in exercising functions does not apply in relation to functions under sub-paragraph (1)”.
I think that that is relatively clear, although my noble friend obviously does not. All it does is remove the director-general’s duty to consent from those under paragraph 1(1)(a), which refers to,
“ways in which NCA functions are to be exercised (including arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA)”.
I could go on with the rest of that paragraph. I am hoping for advice to come through at this stage.
The important idea to get over is that the framework document and the annual plan are different and have to be dealt with in different ways. The framework document sets out the relationship between the Home Secretary and the director-general of the NCA. The annual plan allows the director-general to set out the activity planned for the year ahead and must take account of the arrangements set out in the framework document. Therefore, in his role in respect of agreeing to the framework document, he cannot have regard at that stage to the annual plan, which comes out later. I hope that that makes matters clearer to my noble friend. I see a faint degree of nodding from her as well as a faint smirk on her face. I hope that it is a smirk of agreement. I will sit down and hear whether my noble friend agrees with what I have said.
Lord Henley
From my noble friend’s confession, I think that her sporting career at school was possibly somewhat similar to mine in terms of its disastrous nature but I shall leave that as another matter. I am grateful for her acceptance. I think I got that right and that I have satisfied the point that she makes. Therefore, I await to see whether the noble Baroness, Lady Smith, wants to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I suspect that I had a slightly more successful sporting career at school than either noble Lord; many an ankle has been bashed with my hockey stick.
I remain puzzled on this matter. The Minister has said several times that the framework document sets out the relationship between the Home Secretary, the Secretary of State and the director-general. But nowhere in the schedule does it say that about the framework document. In part, our discussions are hampered by not having the document, which we look forward to seeing in due course.
The Minister made the point about the relationship between the framework document and the annual plan and how the framework document came first. However, it might not always come first because, under paragraph 2 of Schedule 2, the Home Secretary can reissue a framework document at any time, in which case the annual plan may already exist when a new framework document is published. It could get even more confusing. I shall take this away and ponder, as I think the noble Baroness, Lady Hamwee, will equally do.
I still do not accept that it is appropriate for the Secretary of State to seek consent. Consultation, if it is genuine and takes note and not just an exercise for the sake of it, would be the adequate and proportionate way forward. But I beg leave to withdraw the amendment.
Baroness Hamwee
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.
Earl Attlee
My Lords, these are purely drafting amendments to the provisions in Schedule 3 relating to the exchange of information between police forces and the National Crime Agency. Paragraphs 3 and 4 of the schedule apply these provisions to each UK police force and the British Transport Police. However, the British Transport Police is already covered by the definition of a UK police force in Clause 16. Consequently, it does not need to be separately listed. The amendments therefore remove the superfluous paragraphs 3(1)(b) and 4(1)(b). I beg to move.
Baroness Smith of Basildon
My Lords, we can see that this is a drafting amendment. I must admit that when I first saw the clause I wondered what had happened to the Civil Nuclear Constabulary and the Ministry of Defence Police, which also should have been covered if it was necessary to include the British Transport Police. I think that the Minister has been able to give me an assurance for each of those special police forces, which, as the definitions on page 12 indicate, are UK police forces. They would have the same relationship as regards having to be notified and the disclosure of information as all other police forces in the UK. It is a helpful amendment that clarifies the existing position.
Baroness Hamwee
I shall speak also to Amendment 41. There are three further amendments in the group in the names of the noble Baroness, Lady Smith, and others, all of which deal with payments. My two amendments concern the paragraph in Schedule 3 which deals with what is the “appropriate amount”. Paragraph 29 of Schedule 3 deals with what is to be paid under paragraphs 26 and 27 by the director-general and the police in the different circumstances. My amendment would extend that to payments under Part 1 of Schedule 1, including paragraph 4, which states:
“The NCA may charge a person for any service provided at the person’s request”.
I am not necessarily suggesting that this is the right way to go about it but I am probing how that charging should be dealt with.
Amendment 41 suggests that there is a way other than an amount agreed or an amount determined by the Secretary of State; that is, to provide for a scale or a formula in advance to be applied generally. As I understand the arrangements for mutual aid between police forces, there are governing scales and arrangements. It seems to me that it would be much better to have these things sorted out in advance rather than to have any sort of haggling being applied at the time. I certainly do not imagine that it would leave people with anything other than a rather sour taste if the Secretary of State had to step in and determine the amounts. I beg to move.
Baroness Smith of Basildon
My Lords, our amendments on this issue perhaps come from a different direction but they still try to address a similar concern that we have. We are looking at different ways to resolve this. The noble Baroness, Lady Hamwee, is right that if an agreement on payment cannot be reached between two parties, to seek resolution or determination by the Secretary of State does not seem the correct way to behave. Throughout this Bill, we have sought to remove the Secretary of State from day-to-day operational issues and this proposal would bring the Secretary of State back into those kinds of issues.
There is also a conflict of interest or at least a divided responsibility. There is a concern that one thing that will happen with the NCA and the charges and costs involved is that, given that funding may not be adequate to the task, particularly with additional responsibilities coming in, some extra funding or support may be sought from police authorities, particularly in cases such as this. The Home Secretary has a direct responsibility for the funding of police forces across the country. It seems somewhat difficult, therefore, if there is a disagreement between a local police force and the NCA, that it should be the individual who has responsibility for funding local police forces who should seek a determination on that. The noble Baroness, Lady Hamwee, said something about that creating a bad feeling or some difficulties, and I certainly think that it would in this case.
The noble Baroness and I may not have found exactly the right format here. We are suggesting an advisory body, but I am not wedded to any particular way of doing this. It seems inappropriate for the Secretary of State to be making those decisions. To labour a point made by the noble Baroness, Lady Hamwee, about a protocol in the framework document, that may be what the Minister is considering—but we do not know, because we do not have the framework document. It is clearly inappropriate for the Secretary of State to be the arbiter. We would like to see some other way to resolve difficulties or disputes and we are suggesting an advisory board.
Earl Attlee
My Lords, this group of amendments all relate to the provisions in Schedule 3 regarding payments for tasks, assistance and facilities. Amendment 40, in the name of noble friend Lady Hamwee, seeks in effect to bring the provisions relating to charging in Schedule 1 into line with those in Schedule 3; namely, that they must be agreed by both sides.
I put it to my noble friend that this amendment would conflate two quite separate charging regimes. The charging provisions in paragraph 4 of Schedule 1 enable the National Crime Agency to provide particular services, whether to another law enforcement agency or to any other person. They are not about the provision of assistance or facilities under Schedule 3 or the tasking arrangements in Clause 5. Such services might include, for example, the provision of training, crime operational support or the services provided by the Specialist Operations Centre. Charging for these services, which are provided on request, will normally have to be on a cost-recovery basis in line with the Treasury’s guidance on managing public money. In other words, these services cannot be made under the old pals act; they have to be properly accounted for.
Amendment 41 seeks to provide for a protocol which sets out the appropriate amounts to be paid for tasks, assistance or facilities performed or provided under the provisions of Clause 5 and Schedule 3. I can certainly support the spirit of this amendment. The National Crime Agency will need to agree policies for cross-charging with the police service and other law enforcement partners that are equitable, practical and help to support the co-ordinated effort to tackle serious and organised crime. However, I do not think the amendment is necessary as the existing schedule already allows for the appropriate amount to be agreed through a broader policy or protocol. The key point in Schedule 3 is that payments for tasks, assistance or facilities, if any, must be agreed between both sides. It does not specify how that agreement must be reached or that it must be done on a case-by-case basis.
Finally, Amendments 42 to 44, in the name of the noble Baroness, Lady Smith, seek to replace the Home Secretary’s role as final arbiter with an independent advisory panel on payments. I would argue that creating another quango is not a good way to provide value for money or to secure the simple and speedy resolution of disputes over charging arrangements. Indeed, I hope that there will be few disputes, and I imagine that both parties would be reluctant to involve the Secretary of State.
In addition, the approach to cross-charging in Schedule 3, including the role of the Secretary of State, broadly mirrors the Serious Organised Crime and Police Act 2005. The previous Administration did not see the need for creating a separate body to decide on appropriate amounts for payments in the absence of agreement, and neither do this Government.
Amendment 43 would remove any role for the devolved Administrations in setting appropriate amounts if agreement cannot be reached. As the budgets for these law enforcement bodies in Scotland and Northern Ireland are devolved, it is right that the devolved Administrations have a role to play in ensuring that payments are fair in situations where either a Scottish or Northern Irish body is involved.
I would hope and expect that the cross-charging arrangements for tasks, assistance and facilities will be agreed amicably between the NCA and its partners. It is right that the Bill includes backstop arrangements for resolving any disputes. The arrangements provided for in the Bill broadly mirror those for SOCA, and there is no good reason why we need to adopt a different approach for the NCA. Accordingly, I would invite my noble friend Lady Hamwee to withdraw the amendment.
Baroness Smith of Basildon
My Lords, I wonder sometimes whether the noble Earl lives in a slightly different and more benign world than I do. Several times during the course of today’s debate, whether it has been on the power of direction and payments, he has said, “We hope that it will be okay, we can’t see ourselves using this power, things should work out okay”. Real life is not like that; disputes occur. This idea of having a backstop and saying that it does not matter if it is not perfect and not okay because it will hardly ever be used is not really good enough. We need to have some kind of process. I do not know whether the noble Earl took on board what I said. I am not wedded necessarily to an advisory board, but I think that we need a process that is not the Secretary of State or, as the noble Earl calls it, a backstop.
There will from time to time be disputes on payments and the power of direction, and we need to have a process that this House is confident can deal with any of those problems that occur—and not just think that it will be okay because it will not happen very often. I think that we will pursue this at a later stage. There may be further discussions in Committee, but at this stage I am happy not to press my amendment.
Baroness Hamwee
My Lords, I share the noble Baroness’s concerns about this. I wrote down “amicable?”. The noble Earl referred to a backstop, but the point of providing a very clear framework—although I do not want to use that term—and making clear provisions is that they are clear and, if things are not amicable, one knows where to go. It had never occurred to me until an earlier group of amendments that the old pals arrangement might apply to anything under this Bill—but perhaps I am just too cynical.
On Amendment 40, as I understood the noble Earl’s remarks, the NCA will be subject to certain formal Treasury guidelines. He is nodding at that, but I wonder whether he might share those with Members of the Committee after the debate. It may not be appropriate to go into all the detail now, but it would be very helpful to be clearer about this before we return to the matter, as I suspect we will.
“( ) The command of the NCA with main responsibility for discharging functions listed under subsections (1) and (2) shall be the Child Exploitation and Online Protection Centre (CEOP).
( ) CEOP shall be accountable to the NCA Board but shall operate independently of the direction of the Board.
( ) Any funds delegated by the NCA to CEOP shall be reserved for that purpose.”
Baroness Smith of Basildon
My Lords, I hesitate slightly because I know that as soon as there is an amendment that mentions an NCA board, as the amendment does, the Minister will say, “If we haven’t agreed to a board, I don’t have to answer the question”. As he said earlier, I have been on that side of the Chamber—albeit another Chamber—with the same kind of file as the one he possesses now, but I ask him to put that to one side. Although he might not agree with some parts of the amendment or its architecture, he will understand the substance of what I am proposing and the reasons why this matter has been put forward. I hope that he can address my points.
In our proceedings on Monday, the noble Lord, Lord McColl of Dulwich, raised the issue of the Child Exploitation and Online Protection Centre. It was generally felt around the House that it is an enormously successful body that is held in high regard. If we look at some of the figures, we see that between 2006 and 2011 more than 1,000 children were protected or safeguarded as a direct result of CEOP. There were 1,644 suspects arrested and members of 394 high-risk sex offender networks were arrested. CEOP is one of those organisations that we know is making a difference and wants to continue to do so.
CEOP has pioneered a model of multiagency partnership work that has brought together child protection and law enforcement in a way that has led to the organisation being recognised internationally as a centre of excellence for protecting children from sexual abuse, both physical and mental. Many noble Lords will have an idea of what we are talking about when referring to sexual abuse of children; however, I shall expand our thoughts on that slightly. I do not know if noble Lords had the opportunity to see an article—I cannot remember whether it was in this weekend’s Sunday Mirror or Monday’s Daily Mirror—telling a shocking story about access to internet porn by young people. It referred to quite shocking internet porn that would turn the stomachs of most people. It is not physical abuse, but one had only to read what those young people said to know that that was mental abuse, and it was certainly sexual abuse that had an impact on them. Some of the things that they themselves went on to undertake perpetuated that abuse. Sexual abuse of young people comes in many forms and can often lead to further sexual abuse of other young people.
CEOP deals with an area in which the more successful you become, the less possible it is to pull back, because you have to continue with your activity. You cannot reduce it at all. There are two crucial issues—the expertise and specialist knowledge that have been built up, and the partnerships that CEOP has managed to build with other agencies. The range of organisations and individuals that CEOP works with are interesting, and include children and young people. It has worked successfully with law-enforcement agencies. The public have also played a role—certainly in providing information and intelligence. Charities and voluntary and community groups have come on board, as have industry and international partners.
Since it was first mentioned that CEOP could be absorbed into the NCA, concerns have been mentioned at very senior levels. I said at Second Reading that the head of CEOP, Jim Gamble, resigned as a result. I can see possible great advantages in CEOP having a close relationship with the other commands in the NCA, because there are often links between organised crime, and intelligence can help bring together a picture or put in place the missing part of a jigsaw puzzle that helps lead to a prosecution or arrest. However, I am not convinced, and neither are many others, of the necessity to absorb CEOP into the NCA. That is where the concern arises.
I and the various organisations involved, including the NSPCC, as well as individuals, have welcomed the Government’s strong support for CEOP and its work, and the assurances that they have given—and I thank them for those assurances. However, they must clarify and put on the record—and in statute—the commitments that have been made. That would provide the reassurances that are sought. I appreciate that the noble Lord has sought to do that and has written to noble Lords, and the Home Office has produced another factsheet on the kind of things that CEOP would do within the NCA and how the Government are determined not to see a dilution of its work.
However, perhaps I may raise a couple of points. CEOP must retain its operational independence. On that matter, we seek an assurance that specialist staff will not be pulled off child protection work due to staff shortages or emergencies in other areas. CEOP staff do highly specialised work using the knowledge they build up. If that were to be lost, even for a short time, the gaps in the operation of CEOP within the NCA could be quite damaging.
Another aspect of the amendment is the wish to see authority for its budget clearly delegated—in effect, for its budget to be ring-fenced. One thing at which CEOP has been very successful is raising money from outside sources. I think that it would be very difficult for it to continue doing that if its funding were not ring-fenced, as people contribute money for that particular area of work. If they felt that the money was being diluted across an organisation, they might be less likely to contribute. Therefore, I seek an assurance that the budget will be ring-fenced, together with any money raised by a CEOP organisation within the NCA.
Baroness Smith of Basildon
I am grateful to the noble Lord. That is a very helpful and constructive answer. I think I have now convinced him that it would have been better to have the framework document before the House began to consider the Bill, as I may not have had to raise this issue at all.
On the issue of retaining operational independence, I ask the Minister to look further, because what he has said so far about putting this in the framework document largely addresses the issues. However, operational independence is about maintaining the specialist staff of CEOP within the CEOP command. Could the Minister explore whether that is the case when he looks at the framework document? Operational independence can mean different things to different people, but I am broadly content with what he had to say. I look forward to the framework document and beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, in moving this amendment, I will also speak to Amendments 48, 49, 50 and 51.
This is another set of probing amendments, as I am sure the noble Lord has understood. It follows on from earlier amendments when we talked about a National Crime Agency board. It is about making sure that the Secretary of State has a strategic rather than an operational role. I hope that noble Lords will bear with me as I switch pages.
I am slightly puzzled by this group of clauses. It seems convoluted for the advisory panel to make recommendations to the Secretary of State about the operational powers that the director-general shall have and then the Secretary of State must give effect to those recommendations. It would make more sense for the board responsible for the director-general to make such proposals. But I find myself completely puzzled because the Secretary of State is responsible for operational powers designation, which is in Part 2 of Schedule 5 and in Clause 9.
Part 2 of Schedule 5, says:
“The Secretary of State must appoint an advisory panel (to enable recommendations to be made as to the operational powers which the Director General should have),
but that contradicts the original clause relating to operational powers.
Paragraph 4 of Schedule 5 says:
“The Secretary of State must appoint an advisory panel”,
but that is then qualified by,
“whenever there is an appointment of a Director General”,
or,
“when the Secretary of State considers that it is appropriate to do so”.
So it seems that they can appoint an advisory panel at any time. That also implies that it is not a permanent body. Surely such a panel, set up to advise a Secretary of State on the operational powers of a director-general, would want to gain expertise and knowledge, but according to how the schedule is worded, a new panel would be appointed each time a director-general was going to be appointed. That means it would be an ad hoc panel, which seems rather strange.
Lord Henley
My Lords, if I can assist my noble and learned friend, the point we were trying to get over is that the actual designation of the director-general is a matter for my right honourable friend the Home Secretary. She will make an assessment of the director-general’s suitability and capability to exercise the operational powers in any given case. It might be that the advisory panel, through its chair, could then assess whether the director-general was adequately trained to exercise those operational powers and if, as experts—as we hope they would be—they were satisfied that the director-general met the requirements for exercising his designated duties. But it might be that the Home Secretary was satisfied about the director-general’s suitability and capability to exercise those powers, in which case there would be no need for the board.
Baroness Smith of Basildon
I appreciate that the noble Lord was trying to be helpful but I am now more puzzled than ever. He has spoken to the confines of my final Amendment 51 and yet the reason for putting forward all these amendments is a broader issue. If it helps the noble and learned Lord, Lord Mackay of Clashfern, the advisory panel would be set up whenever there was to be an appointment of a director-general. That is where this clause is so confusing. The panel’s chair decides the question of the adequacy of the director-general’s training. I can fully appreciate that a new director-general might not have the expertise in all the areas dealt with by the National Crime Agency. I do not have an issue with that part. It then says:
“produce a report containing recommendations as to the operational powers which the Director General should have”.
That implies that the operational powers change depending on who the director-general is. Surely what we expect the director-general of the National Crime Agency to do should be set in stone. You cannot keep changing the operational powers of somebody in this kind of role depending on who applies for the job. There have to be certain criteria for key operational powers that have to be undertaken. I do not understand that part of the clause at all.
On the issue of there being an advisory panel, the reason for taking out paragraph 5 in Part 2 of Schedule 5 is that if paragraph 4 says that the Secretary of State must appoint an advisory panel, clearly there is good reason for doing so. Given that the panel reports on the adequacy of training and the operational powers, why would we then have a paragraph which says that the Secretary of State does not need that? I cannot understand under what circumstances a Secretary of State or an advisory panel would say that a particular director-general would not have full operational powers or that this one will not have the operational powers undertaken by a previous director-general. If we are saying that the operational powers of a director-general are flexible, we are talking about a very different kind of organisation. My understanding was that the framework document would set out exactly what the National Crime Agency would do, what was expected of it and how it would be run. Now we find we have a degree of flexibility in what the agency does because of a panel of experts advising the Secretary of State on what the director-general does.
The noble Lord is looking through his folder, as I have done on occasion. If he is fully honest with me, I suspect he is thinking, “Give me a note quickly. I seek inspiration”. It may be that inspiration on this one does not come to him quite quickly enough this evening, but I think this is a matter we want to pursue. It is a bit odd because the Government have already appointed the first director-general without the advisory panel so presumably they know what operational powers that director-general will have. However, I find this situation completely unsatisfactory as it stands.
Lord Henley
The noble Baroness is an old hand, as I am. She is a very young old hand but she is long in experience. She need not blush. She has stood at the Dispatch Box in Government on many occasions and she knows the process. This is a wonderful process that we go through with these Bills, as a result of which we hope to make them better. She is quite right to point out in paragraph 4 of Schedule 5 what she thinks is an odd process. This is obviously something that I must reflect on. That is why we go through this process. I will be more than happy to do so and I will write to her. Again, it is one of the joys of the process that we are going through that there is a considerable amount of time between now and Report. We want to get this right. I am not going to try and bluff my way through as I have done on many occasions in the past, and as I am sure the noble Baroness has done. She has caused me some problems with paragraphs 4 and 5 of Schedule 5. All I can say is, I want to get this right and I will try to make sure that she gets a proper answer or that we make the appropriate changes.
Baroness Smith of Basildon
I am grateful to the noble Lord. This is not the first time he has been this helpful. He was similarly helpful just last week. The fact that he is going to reflect on this and come back to me and to the House is very useful. On that basis I am happy to withdraw my amendment.
UK Border Agency: Visa Applications
Baroness Smith of Basildon Excerpts(12 years, 5 months ago)
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Lord Henley
My Lords, I will look very carefully at this. I cannot believe that someone who is being endorsed by the Archbishop of Canterbury or, for that matter, by any right reverend Prelate, could be turned away. I would want to look at that and at the particular circumstances to which the right reverend Prelate has referred. Certainly, we would not want that to be the case.
Baroness Smith of Basildon
My Lords, as the Minister has accepted in his responses to my noble friend Lord McConnell and the noble Lord, Lord Avebury, the findings in this report impact on the Government’s proposals on family visa applications and appeals in the Crime and Courts Bill. What concerns me most about the report is when John Vine says that despite his previous recommendations to help improve the agency, he has seen little progress in a number of areas. He says:
“This is especially frustrating considering the agency has adopted the recommendations, and yet I continue to identify the same issues”.
The quality of decision-making appears to be a key issue. The Minister says he wants to act as fast as he can, but have the Government identified the reason why so little action has been taken to correct problems found in the past? Is the problem a lack of will or a lack of resources?
Lord Henley
My Lords, it is neither a lack of will nor of resources, and we are still trying to push these things on as fast as we can. The noble Baroness quite rightly refers to the Crime and Courts Bill; we are in the middle of its Committee stage and we will discuss those provisions when we get to them some time in July. However, it is right to make the point that we think we will be able to provide a better service to a number of people by withdrawing those appeal procedures as a result of them then being able to apply again.
I want to make clear, as I made clear in my original response to the noble Lord, Lord McConnell is that we take these findings very seriously indeed and we will continue to push them forward. However, the chief inspector produces four or five different reports a year and it takes time to push them forward. He is talking about issues that he looked at back in February, obviously changes have occurred since then and we hope things are better as a result of actions we took following his report. Obviously some things have moved on since then.
Justice and Security Bill [HL]
Baroness Smith of Basildon Excerpts(12 years, 5 months ago)
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Baroness Smith of Basildon
My Lords, we have had an interesting and informative debate and I hope that the Minister is grateful for the detailed and useful comments that have been made. They are an indication of the kind of debate we will have in Committee, which I think will be very constructive. Not only has this debate been worthwhile and informative, but I was struck by where the areas of agreement are, where the areas of disagreement and concern are, and where there is broad agreement on those areas of disagreement and concern, if the noble Lord follows my logic.
I suppose that I have to declare a non-interest in that I am one of those who the noble Lord, Lord, Lord Hodgson, referred to as an “outsider” and who my noble friend Lord Judd called a “flat-footed layman”. However, I should say that in the debate today the majority of speakers were non-lawyers—only narrowly, but we made the majority. I would argue that while it is a legal debate and there are strong legal implications or stages, it is not just a legal debate. As the Minister said when he introduced the debate, these are complex issues that go to the heart of our democracy and our security, so the Government have to find a correct balance that takes into account our national security while not losing sight of individual rights. As many noble Lords indicated, there are times when finding that correct balance is challenging.
I was interested in the analogy drawn by the noble Baroness, Lady Berridge, of the statue of Lady Justice and her seven scales. I know she meant it to be an amusing comment, but there is a lot in it which reflects how complex and difficult these things are. She made quite a serious point in that regard. What is clear is that the level of expertise available in your Lordships’ House to contribute to this debate will try to seek the consensus that the Government originally referred to. It might be that one of the reasons the Government started the Bill in your Lordships’ House was to make use of that knowledge, experience and expertise.
If I may digress slightly, noble Lords may recall that in making the case for an elected House with 15-year terms, the Deputy Prime Minister Nick Clegg described your Lordships’ House as having a “veneer of expertise”. That is hardly the case today. We have not seen a veneer of expertise; we have seen very strong expertise, not just from the lawyers that I have mentioned and senior members of the Bar and the judiciary, but members and former members of the Intelligence and Security Committee and the Constitution Committee, those with professional experience of security agencies, those with experience of government, former Ministers, journalists and those with a record of standing up for the protection of civil liberties and human rights. I think that the Deputy Prime Minister also said that the knowledge in the Lords was 40 years out of date. The collective knowledge in this House goes back well beyond 40 years but it is also up-to-date, and that will be very valuable as we progress to Committee.
I do not want to dwell in any detail on the Ministry of Justice issues that my noble friend Lord Beecham has already referred to, but will focus mainly—although not exclusively—on Part 1 of the Bill regarding the oversight of intelligence and security activities. The noble Lord, Lord Butler of Brockwell, referred to the “modernisation” of the committee. I always baulk slightly at the word modernisation because it often means technology and doing things differently for the sake of it. But I think he went on to describe the kind of progress that he was seeking and perhaps the words “progressive reform” might be a better way of looking at this.
The Bill seeks to reform the ISC by giving it the formal statutory function of overseeing the wider intelligence community, not just the agencies but including counterterrorism and the Home Office. It provides for retrospective oversight of operational activities, as happened once before with the 7/7 report that we have heard about. It also provides the power to require information from agency heads, with a veto only by the Secretary of State—or Minister if it is the Cabinet Office—and that Parliament will elect the ISC from a list put forward by the PM after consultation with the Leader of the Opposition. The proposal is that the chair should be chosen by members of the ISC, not the Prime Minister.
In the main, we support what are sensible proposals to strengthen the ISC’s power of scrutiny, which stem, I understand, from the ISC’s own report, published last summer. There is widespread support for improved oversight and scrutiny, but a number of noble Lords, including my noble friend Lord Campbell-Savours and the noble Baroness, Lady Manningham-Buller, asked whether these proposals go far enough and whether there was scope to strengthen them further. It would be helpful to consider a number of additional items to improve the scrutiny and oversight; for example, for the ISC or its chair to have a greater ability to view individual cases, such as control orders, or for the chair to be a senior opposition MP.
The Government should also consider authorising, where appropriate, some of the committee’s hearings to be held in public in order to strengthen public confidence in the committee. In the same vein, we believe it would be helpful and would benefit public accountability for the agency heads to come before the committee in public once a year, just as they do in the US Congress. Furthermore, we want to give further scrutiny in Committee to the ministerial veto over the release of information. Specifically, we want to probe the Government’s definition of “sensitive information”. I will come back to that because it was raised by several noble Lords, but we want to probe what the Government mean by the definition in sub-paragraph (3)(b) of paragraph 3 of Schedule 1, which refers to,
“information of such a nature that, if the Minister were requested to produce it before a Departmental Select Committee of the House of Commons, the Minister would consider (on grounds which were not limited to national security) it proper not to do so”.
I am not clear why this is necessary over and above the test of national security and sensitive information.
As the Bill progresses, we would also be interested to hear the justification for Clause 3(4). It allows the Prime Minister to order the exclusion of part of the committee’s report to Parliament if the Prime Minister considers, after consultation with the ISC, that it is prejudicial to the discharge of the functions of any of the agencies.
I move on to Part 2. Clauses 13 and 14 relate to the Norwich Pharmacal jurisdiction. This has been referred to today by a number of noble Lords. In discussing its implications, there are two issues: first, whether the Government have correctly identified the problem and, secondly, whether they have correctly identified the solution. As we have heard, the Norwich Pharmacal case was an intellectual property rights case in 1974. It set the precedent of residual disclosure jurisdiction, whereby the courts can order disclosure of information by a third party—neither the plaintiff nor the defendant—if the following conditions pertain: the information is required in order to bring action against an alleged wrongdoer; the third party against whom the order is sought is “mixed up”, however innocently, in the wrongdoing; and the third party is in a position to provide the information sought.
Clearly, in 1974, no-one envisaged the extension of this case to intelligence—that was never the intention—but the Binyam Mohamed case in 2010, mentioned already, highlighted the possibility of application of the principle to the disclosure of foreign intelligence. I understand that there were other cases as well. According to the Government’s independent reviewer of terrorism legislation, David Anderson QC, this case also prompted concerns among our intelligence partners that the UK Government could no longer guarantee the control principle, which is that intelligence shared with us would not be published by our courts. There is an interesting quote from David Anderson QC, who says:
“The realisation that secret US material could in principle be ordered to be disclosed by an English court, notwithstanding the control principle, and that the Government had no power to prevent this from happening, appears to have come as a genuine shock to many influential people in America”.
I must say that until the noble Baroness, Lady Manningham-Buller, spoke, I was quite disappointed that so much of the debate centred around intelligence sharing and our relationship with the Americans. As the noble Baroness pointed out, there are many other countries with which we share information and which are valued intelligence partners.
We appreciate that the control principle is a central understanding of our intelligence-sharing relationships with other countries and it is therefore essential to provide the necessary assurances to our international partners that this will be safeguarded. We must also recognise that there are profound implications of Norwich Pharmacal in terms of jeopardising foreign intelligence sharing, and the evidence seen by David Anderson QC appears to justify these concerns. Therefore, any solution must provide adequate guarantees to our foreign intelligence partners that intelligence shared will not be forcibly disclosed.
However, as has been rightly indicated by several noble Lords in the course of this debate, the key question here is whether the Government’s proposals to resolve this problem, in the words of David Anderson QC again, provide “proportionate limitations” to the Norwich Pharmacal precedent. We can support the direction of the Government’s policy, but we want to work with them to get the detailed definition of the clauses right. We will wish to probe some of our concerns around, for example, the Government’s definition of sensitive information, and specifically how tightly this definition is drawn. The first point of principle is whether it does the job that the Government say it does—that is, whether it provides the necessary assurances for our foreign intelligence partners. However, equally important is whether it is drawn more widely than is necessary for the specific purpose of safeguarding that control principle. The noble and learned Lord, Lord Mackay of Clashfern, and the noble Lord, Lord Pannick, both queried the extent of the definition of sensitive information, as did the noble Lord, Lord Macdonald. We want to probe the Government further on exactly what they mean in their definition of sensitive information. We also want to know what they mean by,
“information relating to an intelligence service”,
and the justification for that inclusion as part of the definition of sensitive material.
In relation to the public interest test under Clause 13(3)(e) of the definition, we will want to probe further what the Government mean in Clause 13(5)(b) by the interests of international relations. The noble Lords, Lord Dubs and Lord Macdonald, also referred to this. The clause refers to the damage,
“to the interest of the international relations of the United Kingdom”.
I can certainly understand the need to act in the interests of national security and appreciate the importance of international relations, but we will need to be assured that this will be in the public interest as defined by the Bill and not for reasons of political expediency on the part of any Government. As the noble Marquess, Lord Lothian, said, something cannot be excluded merely because it is embarrassing to government.
I do not recall mention in today’s debate of the fact that the proposals seem to extend wider than simply information derived from foreign agencies but also cover information originating from our own agencies that relates to foreign countries. The justification for that cannot be on the basis of preserving the control principle, because it does not relate to information shared with us by our foreign partners. Therefore, we would be interested to hear the Government’s explanation and justification for their intention to extend the scope of the Bill in this way.
The noble Lord, Lord Pannick, referred to open, natural justice being a constitutional principle but not sacrosanct, but he made it clear, taking up the point made by my noble friend Lord Beecham in his introduction, that we need far more information from the Government on whether this is justified. Like the noble Lord, Lord Lester of Herne Hill, we are not in principle against closed material procedures, but their use here would require a very high bar. The Government have yet to provide sufficient information to reach that bar. The noble Lords, Lord Pannick and Lord Macdonald, said that the case had not yet been made and both gave very interesting examples of how PII could be used in some enhanced form to create what the Government are seeking. If the case for CMPs relies on the 27 cases that the Government have spoken about, it is clear that a greater examination of those cases is necessary. That will require a far longer, more in-depth study by the independent reviewer or the ISC, because far more information on those cases is needed.
This has been a useful and interesting debate which has given us good material for the next stage of the Bill. If the objective of your Lordships’ House is to improve the legislation, the experience that was on offer in today’s debate and the information gained from it will enable us to do that.
Crime and Courts Bill [HL]
Baroness Smith of Basildon Excerpts(12 years, 5 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
( ) There shall be a Director General, who is to be one of the NCA officers, and who shall be responsible for the exercise of the NCA’s operational and administrative functions.
( ) Schedule (The NCA Board) has effect.”
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, as the Bill makes clear, it is quite obvious that we want those key stakeholders to be involved. How formalised that should be is another matter. I would hope that the noble Lord would be prepared to wait for the framework document and how we consider it. It will be for all of us to decide how formal, formalised or informal that is, and what is the right balance—again I use that great Home Office word. It is getting the balance right.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister is trying to be helpful regarding the framework document. However, I hope that he understands how difficult it is for your Lordships’ House to consider properly the governance arrangements when we are told that we are going to get a lot of the information later, probably at Report. He said that we will not complete the Committee stage until after we return from the Summer Recess, with his great sacrifice of missing his party conference. The only reason the Committee stage is finishing so late is that in another part of the Bill the consultation, which will inform the clause in the Bill, has not yet been completed. As I said at Second Reading, I wonder whether this Bill should have come before your Lordships’ House at this stage or whether it would have been better, in order to consider properly the governance arrangements and the later clauses on community sentences, to have had that information with us now. We have already heard from the noble Baroness, Lady Hamwee, and my noble friend Lord Harris of the difficulties of trying to make suggestions and looking at exactly what the Government are proposing when we do not have a lot of the information with us today. I am slightly disappointed by the Minister’s response because even without the framework document being available to noble Lords he dismissed the idea that there could be a more formalised structure for involvement in a governance board, as the noble Lord, Lord Condon, said, before we had even had a chance to look at and consider the framework document.
I have listened to comments from around the Committee and there seem to be several points of agreement. There is a general recognition that the NCA is a big beast, taking on what the Minister called a “demanding mission”. It is clear that noble Lords want it to succeed in tackling some of the worst and most difficult crimes in our country. The only reason why we would discuss governance structures at all is not to make the Minister’s life more difficult or deny him the opportunity to attend his party conference, but because we want those structures to reflect the importance of the organisation and ensure that it has the best possible information, advice and governance to be adequate to the task that it faces. As other noble Lords have said, nobody is wedded to any specific structure, but there has to be some recognition that it is not really satisfactory to have a relationship whereby the director-general responds and reports to the Secretary of State, who sets the guidelines that the director-general works under.
The Minister mentioned some kind of advisory body. There is provision in legislation for that, but with a very limited capacity. That is not particularly clear, either. My noble friend Lord Harris referred to the importance of the relationship between the director-general of the NCA and policing bodies and PCCs across the country. The power of direction in the legislation is something that the Minister has said will be used in exceptional circumstances and that agreement would be sought at all times. Surely, if there is a board or some kind of body of which the director-general is part and to which he reports, which involves the police and the police and crime commissioners, among other people whom the Secretary of State may choose, that makes those relationships and understanding of the work of both much better and, therefore, more effective.
I take the Minister’s point about bureaucracy, but I do not think that that should be an excuse to remove good governance processes and practices, which have proved themselves in other regards. As my noble friend Lord Harris said, the Minister gave the example of the Food Standards Authority, which has a board. I asked what the benefits were of the NCA not having a board, why it needed to be accountable directly to the Home Secretary and what the model was for the organisation. I did not really get an answer to those questions in the Minister’s reply.
I have another point that I would like the Minister to think about a bit more. He said that one concern that he would have if there was a board was that the response from the director-general would be slower, and that it would be more bureaucratic, when he had to respond quickly and decisively to any threats. The role of the board as we see it would not be an operational one but strategic and about giving advice. I would not expect the director-general to consult the board every time he thought that he or his colleagues had to respond to a specific threat. That would clearly be unacceptable. We are talking about the role in the legislation that the Minister and the Government intend for the Secretary of State, and our suggestion is that it should be the board’s role. When the Government create bodies such as police and crime commissioners, we have to look at how they are brought into the general architecture of how the police and other law enforcement services work. It is unhelpful to good working practices to sideline them as they are in this Bill.
I would like to take this matter away and reflect on it. I do not intend to pursue it further at this stage. There may be more opportunities as we go through the Bill and debate other clauses around the issue of governance. At some stage, we will have a framework document, but I hope that it comes some time before Report. This House cannot do its duty of scrutiny as well as it should when we do not have such information. To suggest that it will be there for the Commons stage and that therefore we do not need it is unsatisfactory. I am sure that we will return to the issues of governance and, depending on how things go in the course of the debates in Committee, we will decide whether or not to return to them at a later stage. I beg leave to withdraw the amendment.
“(1) It is the duty of the Secretary of State to ensure that the NCA is provided with sufficient resources to enable its functions to be discharged effectively and efficiently.”
Baroness Smith of Basildon
My Lords, the reason for this amendment is not dissimilar to the reason for the previous amendment that I spoke to: the contradiction that I find at the heart of this Bill around the role of the Secretary of State and whether it is strategic or operational. We are very firmly of the view that it should be and must be a strategic role. As I indicated in my earlier comments on governance, it is an issue of power and responsibility: who holds power and who takes responsibility. We have seen it in other Bills and on other issues.
We are very clear that funding is a strategic role for which the Secretary of State should have responsibility. By way of example, I remind the Minister of a question I asked him on police and police cuts with reference to my own county, Essex. We now have no 24-hour police stations. A number of police stations are open only part-time or during the day, and we have lost or are due to lose several hundred police officers. When I queried him on the Government’s policy on this, he referred me to the chief constable and said it was his responsibility not the Government’s. Surely, the chief constable takes such decisions only in light of the funding laid down by the Government.
I want to make it quite clear in this amendment that the responsibility for the funding of the National Crime Agency is a very strategic role and one for the Secretary of State to ensure that the agency has the funds to do all the work that it needs to do to be effective.
The national plan states that the National Crime Agency,
“will not exceed the aggregate of the Spending Review settlement for the precursor organisations and the cost of the fully funded functions it is agreed should migrate into the NCA”.
That is helpful in many ways, and the Government have since confirmed that the NCA budget for 2014-15 will be around £400 million.
While we understand that the Government are saying that the budgets will migrate with the organisations, which we certainly welcome, in reality we have to look at the cuts that those organisations have already sustained and the loss in their budgets and the savings they have found, in many cases to their credit. The National Policing Improvement Agency has found, I understand, around a £100 million reduction in its budget. Its headcount has gone from 2,200 to 1,400 and it is facing further deep reductions to its budget over the remainder of the financial review period. Clearly, if the NCA is to operate in the same spending envelope as its predecessors, it is unclear how it can manage what it does now and be the co-ordinating body for the organisations that have been moved under its control.
I raise this issue because we want to see the NCA succeed and to be able to do the work that it is going to do, but I wonder whether it would have been cheaper and more cost-effective just to have the organisations working more closely together and to mandate closer working between existing agencies.
Lord Henley
My Lords, I quite understand the concerns expressed by the noble Lord, Lord Condon, and we understand that very difficult decisions have been made by different police forces up and down the country about where they are going to rein in expenditure, just as all agencies of the Government of one form or another are having to make very difficult decisions, but we believe that the cuts that they face are manageable. We also believe, and I think this is something to get over, that merely throwing money at a problem does not necessarily, as we discovered before 2010, solve problems, and increasing budgets does not always bring improvements in the service that the public have a right to expect from all services that the Government and taxpayers provide in one form or another.
It will, no doubt, be difficult for the NCA, which, like SOCA, will have to live within its budget and the review settlement. The NCA’s budget will be based on the budgets of the precursor organisations. It will have to deliver that wider remit through enhanced intelligence, tasking and co-ordination arrangements that I hope will make more effective use of its resources—its own assets and those of others. Creating the agency will also provide opportunities to rationalise some functions, remove duplication in others and generate efficiencies.
Turning to the amendment of the noble Baroness, Lady Smith, and her question, in effect, about the responsibility of the Home Secretary, the important point is that the Home Secretary is ultimately accountable to Parliament for public protection. She has a vested interest in ensuring that the National Crime Agency has sufficient resources to deliver the priorities set for it. The Home Secretary will want to make sure that sufficient resources are therefore provided for the important work of the NCA when she negotiates with colleagues in the Treasury. The noble Baroness knows exactly what this is like and I look at other Ministers who have negotiated these things in the past. Sometimes those negotiations can be difficult, but it is something that the Home Secretary will have to address after the next spending review.
Importantly, she will remain responsible and answerable to Parliament after those decisions have been taken for making and setting the strategic priorities for the NCA. Again, the Home Secretary will consult others, whether it is the director-general of the NCA or whomsoever. The director-general will be able to provide that operational understanding of the resources required to deliver in this area. He will also need to ensure that the resources are allocated in the most effective and efficient manner. The important work of the NCA will need to be delivered within the budgets of its precursor bodies in those first years of operation. The budget constraints for the remainder of this Parliament will obviously continue to remain challenging. That means that the NCA, like many other bodies, will look closely at identifying duplication of effort and maximising opportunities for savings. I believe it will be able to ensure greater efficiencies by more effective prioritisation and smarter use of its own assets and those of others.
It is in the interests of the Home Secretary to work with the director-general to ensure that there are adequate resources for the National Crime Agency. The fact that my right honourable friend is answerable to Parliament means that the amendment is unnecessary and I hope that the noble Baroness will feel able on this occasion to withdraw it.
Baroness Smith of Basildon
I am grateful to the Minister, but I wonder whether saying that the Home Secretary is accountable to Parliament is adequate. He will recall that I asked him a question about Essex police. Obviously he is accountable to Parliament, but he told me that it was the responsibility of the chief constable. If the Home Secretary is questioned about funding not being available or adequate to the task, will she merely say, “That is an operational matter for the director-general”? Allocating funding within the organisation would be a matter for the director-general, but it is the overall envelope of funding that puts pressure on him. I am encouraged by the comments of the noble Lord, Lord Condon, which I share, that he is reassured by the intelligence and commitment of those who will be involved in running the NCA. However, the Minister has said that it is going to be difficult. Hearts must sink when people go into a new organisation, really wanting it to succeed, but they are told that it will be difficult to make it work within the budget.
I am also disappointed by the Minister’s comments that we cannot just throw money at a problem. I do not think that anyone has suggested that money be thrown at a problem, but there could well be a problem if the resources for the NCA are not adequate for the task that it has to undertake. If the NCA starts by struggling for funds and not being able to fulfil its obligations, it will lose credibility. I understand the point that he makes and I do not think that he is going to concede as regards looking at the funding or funding additional responsibilities that the NCA will take on. I wonder whether there is a case for reviewing the expenditure and operation after one year. Perhaps a Select Committee could undertake that role and we might return to it. For now, I take on board what he has said and I beg leave to withdraw the amendment.
“( ) the relevant Departmental Select Committee of Parliament,”
Baroness Smith of Basildon
My Lords, we return to the recurring themes of governance and operational independence, this time in relation to the provisions of Schedule 1 on director-general appointments and resignations. I entirely agree with the Government that the NCA should preserve strict operational independence. That is why the director-general should not have such a close relationship with the Home Secretary as the one proposed in this legislation, including in Schedule 1.
Looking at Amendment 10 first, it would mean that the director-general would be employed by the National Crime Agency board. The terms and conditions of employment would remain determined by the Secretary of State, which would preserve the ultimate accountability to the Secretary of State but avoid the direct oversight that is currently envisaged in the legislation. Amendment 8 would require pre-appointment scrutiny of the director-general by the Home Affairs Select Committee. In these amendments, I have tried not to be just my normal, moderate, reasonable self but also to look at bringing the wording broadly into line with the Government’s thinking as well as in line with the direction that they have indicated they wish to travel. The Government have indicated that scrutiny of appointment by Select Committee is appropriate and could be best practice. In this case, allowing the Home Affairs Select Committee to do pre-appointment scrutiny would offer an opportunity to consider issues such as skills. Later in the debate, we will look at a schedule on designation and the designations that will be given to the director-general by the Home Secretary. It would be helpful for a body such as the Select Committee to look at issues prior to appointment rather than the Home Secretary making that decision post-appointment.
Lord Henley
My Lords, I hope that I can deal relatively briefly with the amendments in the name of the noble Baroness. I can assure her that in moving the amendment she was, as always, her usual moderate self, for which I am very grateful. Perhaps I may deal first with Amendments 9 to 13 and then deal with Amendment 8 in more detail. Since Amendments 9 to 13 deal with discussing these matters with the chairman of an NCA board and so on, and since we have already dealt with an amendment on which I made it clear that we are not minded to have an NCA board—the noble Baroness will no doubt want to come back to that on Report—it seems somewhat artificial to discuss this issue at this stage. In the absence of a board and the absence of our desire to have a board, discussing such matters is possibly, dare I say, a waste of time.
As regards Amendment 8, I repeat again that the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is therefore right that she should be responsible for appointing and, if necessary—although I hope that it will not happen—dismissing the director-general. She will make any appointment on merit following a fair and open competition and will consult, as the Bill makes clear, her counterparts in the devolved Administrations, reflecting the fact that the NCA will be a UK-wide agency. Under Amendment 8 the noble Baroness seeks to ensure that the selection and appointment of the director-general is subject to scrutiny by the relevant Select Committee, which in this case would be the Home Affairs Select Committee.
We accept that there is a place for departmental Select Committees to undertake pre-appointment hearings for certain key public appointments but we do not believe that this is one of them. I should remind the noble Baroness that the Liaison Committee considered this issue in its July 2011 report on public appointments. It argued for a role for Select Committees where the post exercised one or more of three types of function, including,
“scrutiny of government over matters of propriety, ethics and standards in public life … uphold and defend the rights and interests of citizens; and/or … stand in the shoes of Parliament by exercising direct scrutiny or control over the activities of Ministers”.
None of those criteria apply to the NCA. Perhaps I may add that, for example, the director-general of the Serious Organised Crime Agency was not on the Liaison Committee’s list of appointments to be subject to Select Committee scrutiny.
The Home Affairs Select Committee obviously will have a role in scrutinising the work of the agency in the same way as it has scrutinised the work of SOCA. I believe that it is in that capacity that they can best contribute. But in line with the advice of the Liaison Committee, we do not believe that it is necessary for the Home Affairs Select Committee to have a role in the appointment of the director-general. That is a matter for the Home Secretary. I repeat, and I will probably have to repeat it again, that the Home Secretary is responsible to Parliament and it is right that she should be. Therefore, I hope that the noble Baroness will feel able to withdraw Amendment 8.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for his explanation. When we put forward Amendments 9 to 13 it did not occur to me that he would not accept our amendment for an NCA board with open arms. We thought that it would be a welcome suggestion and that we were being very helpful to him. We may return to those particular issues as I am disappointed with his response.
There seems to be ambiguity in Schedule 5 regarding the skills and abilities required of the director-general and those requirements can change. Given the provisions of Schedule 5, to which we will come later, some oversight by a Select Committee would be helpful to a Home Secretary in making appointments. I take on board what the noble Lord has said at this stage. Perhaps we may return to it when we discuss Schedule 5. I beg leave to withdraw the amendment.
Earl Attlee
My Lords, in moving government Amendment 14, I shall speak also to Amendments 18, 19, 52 and 53. I can be brief with these technical amendments. The Bill already makes provision in relation to people who volunteer as police special constables who become NCA officers or NCA specials. These amendments will extend those same arrangements to members of the Police Service of Northern Ireland Reserve. That includes ring-fencing the powers of an NCA officer or NCA special, so that where a person is both an NCA officer or NCA special and a member of the Police Service of Northern Ireland Reserve, any powers conferred on him or her in the former NCA capacity cannot be exercised when the person is acting in the latter—the PSNI Reserve—capacity. I beg to move.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Earl for his explanation. I ask him to clarify a couple of points. Have these amendments had the approval of the Northern Ireland Executive and the Justice Minister, or the appropriate Minister, in Northern Ireland? The only point I can make generally about this Bill on the relationship between the NCA and the PSNI is that there can never be a situation where a police officer or special in Northern Ireland is subject to direction and control from London without the same accountability as officers in Northern Ireland, whether they are part of the National Crime Agency or not. That would also apply to the specials that the noble Earl is talking about. I seek some guidance from him that this has been discussed with the Northern Ireland Executive and that Northern Ireland Ministers are content with this amendment.
Earl Attlee
My Lords, I cannot answer that point for certain, but it is inconceivable that the Government would table such an amendment without the agreement of the Northern Ireland Executive. If I am wrong, of course I will write to the noble Baroness.
Baroness Smith of Basildon
My Lords, this is a probing amendment to clarify and understand the role of specials in the NCA and what they will do. When I read this clause, I thought I understood the role of specials. I went to my favourite police force—Essex—and looked at its website and at the government factsheet on specials in the NCA to try to tie the two together.
The government factsheet says that volunteers will be,
“similar to the police Special Constabulary”,
with,
“some or all of the policing powers available to”,
the NCA. It describes specials as,
“civic-minded volunteers in … public protection work … who may have particular specialist skills … in the fight against serious, organised or complex crime”.
Yet in all the information that I can find regarding the recruiting of special constables in the police force, not one mentions specialist skills or experience. In fact, it talks about special constables being unpaid volunteers and says that they are,
“a manifest sign of partnership between the public and the police”,
with key responsibilities of, for example, performing,
“police duties at public events eg. airshows, concerts and county shows to complement the regular police provision”,
and in emergencies performing,
“additional police duties to assist regular officers”.
It talks about how they have a range of skills, but mainly it is about having more visible policing on the streets.
I would like an explanation of how this translates into specials with the National Crime Agency. Will the agency seek to recruit only specialists—and, if so, what kind of specialist, and how would it seek to recruit them? Surely the work of the NCA is very different to that of a local police force. It is investigative and is to do with serious organised crime, with very complex issues. Police specials have to do a minimum of four hours a week; it is quite difficult to understand how a special in the NCA could fulfil any meaningful function in that time. The Bill refers to part-time specials, but then paragraph (14)(3) says that they can be “otherwise than … part-time”—and the only definition that I know of that is full time. I am not clear why someone would be regarded as a special if they were seconded or taken on a full-time role.
I am happy to be reassured and am looking for reassurance, but I am slightly uneasy as to how this would look across a range of functions and different commands within the NCA—with border control, for example, or CEOP. Did any of the constituent bodies previously use volunteers or specials in this way? Did CEOP do so, for example? Those who wish to abuse children are sometimes very cunning and intelligent in many cases in trying to get to the place where they can get information. Have volunteers been used in the past—and if an NCA special volunteer worked in one area, would that volunteer be allowed to undertake work across the range of NCA functions and responsibilities? What will they do exactly? Also, given the relationship with the PSNI, has there been a discussion with the Northern Ireland Executive on this part of the NCA’s work there? I am a bit puzzled as to how this would work in practice, and any information that the Minister can give would be greatly appreciated.
Lord Henley
My Lords, the noble Baroness pays tribute to her favourite police force in Essex, so I will say a word or two in relation to specials in Cumbria. I mention them in the other end of the country purely to make a point. Two Saturdays ago, I went with them to Appleby for the horse fair, where a very large number of the travelling community descend on a very small town and there are quite serious public order issues. It is the biggest issue in the Cumbrian police force’s annual list of events; from a very small police force it has to provide something like 200 officers over the course of that week on duty to make sure that things remain under control. As a result, I am very proud to say, they make enormous use of their specials in Cumbria, as I am sure that Essex would do in its events. We should all pay tribute to those who give their efforts unpaid and voluntarily as special constables for the work they do and how effective they can be. The role of the NCA specials will be somewhat different than for ordinary specials—if you can call them ordinary—in Essex or Cumbria or wherever.
It may be useful if I set out in some detail how we see the specials developing and the NCA recruiting its own cadre of NCA specials. Enabling the recruitment of NCA specials will build on the approach that has worked effectively for many years in the Police Service. Like ordinary police specials, NCA specials will be unpaid and part time. But we expect many to be recruited on the basis of particular specialist or technical skills that they can offer, such as an understanding of complex financial products to aid the NCA’s counterfraud efforts or expertise in information technology and the internet to help tackle cybercrime. This is not that different from how reservists are often used in the Armed Forces. The noble Baroness will know that there are many specialities that it would be impractical for the Armed Forces to keep in large numbers, in full employment the whole time. But it is worth while having reservists that they can bring in to act as doctors, as they do in Afghanistan.
Like other NCA officers, NCA specials would be able to be designated with operational powers to play a full role in the agency’s work to tackle serious, organised or complex crime. Again, like other NCA officers, NCA specials would be required to be suitable, capable and adequately trained before being designated with the appropriate powers, which, for NCA specials, will be limited to the powers and privileges of a constable, in England and Wales only. NCA specials will not have operational powers in Scotland or Northern Ireland. So there is a distinction there.
The terms and conditions of NCA specials will be for the director-general to determine, but the Bill sets out some core principles. Although NCA specials are NCA officers, they will not be covered by every provision applying to other NCA officers. It will not be possible for the director-general to delegate his or her functions to an NCA special, and they will not form part of any group of NCA officers provided by way of assistance to another law enforcement body. That means that NCA specials will always operate under the direction and control of the NCA director-general. An NCA special will also not be able to form part of the advisory panel designating the director-general with his or her powers.
As unpaid volunteers, NCA specials will not be provided with a wage, a pension or allowances, and will not be covered by the no-strike provisions, which no doubt we will deal with later, for paid NCA officers. They will not form part of the Civil Service. But they will be reimbursed for expenses, and provided with the necessary subsistence, accommodation and training needed to perform their role. They will be able to receive payment to compensate for loss of salary in the event of injury or death resulting from the performance of their duties.
Finally, we have provided for the powers of an NCA special to be ring-fenced so that when a person is both an NCA special and a special constable or Northern Ireland reservist, any powers conferred on him or her as an NCA special cannot be exercised when acting in the latter roles.
We believe that these measures on NCA specials will represent an attractive opportunity for individuals who want to volunteer and to contribute to protecting the public, as well as bolstering the expertise of the National Crime Agency across its remit. The idea behind it is to bring in expertise that might not otherwise be available. They will form an important part of the agency’s stronger co-operation with the private sector, harnessing skills that exist, and are constantly refreshed, in the private sector.
I hope that that explanation is sufficient for the noble Baroness and that we will in due course see them performing as valuable a role as specials in the rest of the police force, although obviously that will be rather a different role bearing in mind their expertise and the nature of the NCA.
Baroness Smith of Basildon
I am grateful to the noble Lord for that explanation, which is certainly helpful, although I do not think that it necessarily answers all my questions. From what he said, I assume that the unpaid people employed,
“otherwise than on a part-time basis”
could be on secondment. If they are to be full time, as he said, this could involve a partnership with the private sector to bring in expertise that is useful to the NCA.
I am slightly puzzled to note that paragraph 14(4) refers to reimbursing the expenses of specials and providing for their subsistence and accommodation. However, if they have left a job to give some of their expertise and time to the NCA, I would expect their salary to be reimbursed unless there is an arrangement with their employer to continue paying their salary as if they were on secondment. However, paragraph 14(4)(c) provides that they can be compensated for loss of salary only if they die or are injured in the course of their work for the NCA. Therefore, unless the Government have an arrangement with the employer of the person who is on secondment to compensate the relevant person for loss of salary in such circumstances, that person will not receive compensation. I partly understand the provision but perhaps not all the details have yet been worked out because, given the pressures on the private sector at the moment, I cannot see how private sector employers would release staff with skills that would be useful to the NCA unless there is an arrangement in place, including a financial arrangement—perhaps it will be exclusively financial in some cases—to encourage them to release these staff.
I think that we are talking only about specialist staff and not volunteers coming to help in the office or with investigations, if I have understood the noble Lord correctly. However, there is still doubt about how those specialist staff will be attracted to work for the NCA. Therefore, I am partly reassured but still slightly puzzled.
Lord Henley
As I said, they will be unpaid in exactly the same way as existing specials are. We hope that we will find volunteers but the NCA is looking to find people with the relevant expertise. Until I came to this job I was not aware that specials were unpaid. I presumed that they were in exactly the same position as my noble friend Lord Attlee, who has had long and distinguished service in the Territorial Army, where he would have been paid for the days that he served and the weeks and months of service when he was on Operation Telic and other such matters. However, the specials have always been treated differently; they are unpaid. We are leaving them in the same position. Just as the ordinary police—I should not say “ordinary”—can manage to get specials who will do this work unpaid, for which we are very grateful, we believe that the same will be true of the NCA. The NCA will be looking for the specialist expertise that it needs which some people—for example, those who are experts in IT—might feel that they can offer in their spare time. That is much the same process as happens with specials at the moment except that they are not offering that expertise.
Baroness Smith of Basildon
I still have some doubts that this process will work although I hope that I am wrong. It might be helpful if the director-general includes in the annual report something about the role of specials. I hope that the noble Lord will write to me on the following question, which he did not answer: namely, whether any of the organisations such as SOCA or CEOP have had specials working in this way. I understand that specials are unpaid, a bit like shadow Ministers in your Lordships’ House. Incidentally, I am happy for him to write to me on the other point as well.
Lord Henley
I can give the noble Baroness a partial answer. There is no comparable scheme within the Serious Organised Crime Agency. However, I understand that some police forces have made use of specialists as specials; for example, the City of London police do so for some fraud inquiries. I think that the same is true of the Metropolitan Police e-Crime Unit, which makes some use of specials in this way: that is, in bringing in expertise. However, as I said, within the precursor organisations, SOCA certainly has not had the ability to do that. I do not know about CEOP and others but I will find out and write to the noble Baroness.
Baroness Smith of Basildon
I appreciate that. CEOP is the body about which I have the most concerns and queries. However, given the Minister’s explanations and his offer to write to me, 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.
Lord Henley
My Lords, there are possibly two issues here. The first is the wider one on the order-making power in Clause 2, to which we will come later when we deal with whether the clause should stand part of the Bill. I trust that that will happen after we have broken for dinner, which may be convenient because I suspect that, in the light of the Constitution Committee’s report published today, it is a debate on which a number of noble Lords will want to speak and one on which we may want to take a reasonable amount of time.
The duty of the Home Secretary to consult Northern Ireland Ministers before laying before Parliament a draft order on counterterrorism functions is important. I hope that I can give some reassurance about the consultation that we are undertaking, who we have discussed these matters with and where we are at the moment. I am sure that my noble friend knows as much as I do about where this is with the Executive at the moment.
I recognise that the amendment seeks clarity on the relationship between the NCA and arrangements in Northern Ireland if a decision is made in the future—I stress if such a decision is made in the future—that the agency should have that counterterrorism function. That has been at the forefront of our consideration of these arrangements, not just for the order-making power but in relation to the agency as a whole, balancing the need for an effective United Kingdom response while respecting the important accountability arrangements for policing in Northern Ireland.
We recognise the particular sensitivities of the arrangements in Northern Ireland which is why in this clause we have already provided specific arrangements that recognise the responsibilities of the chief constable of the Police Service of Northern Ireland, who has operational responsibility for the police response to terrorism in Northern Ireland. It is absolutely vital that we are clear about the relationship between the NCA and the Police Service of Northern Ireland in the event that the agency were to take on the counterterrorism function. That is why Clause 2(2) provides such clarity by stipulating that the agency may carry out counterterrorism activities in Northern Ireland only,
“with the agreement of the Chief Constable of the Police Service of Northern Ireland”.
Furthermore, any draft order will be subject to the super affirmative process, which includes a requirement for the Home Secretary to consult those persons whom she considers will be affected by the draft order. Again, we will discuss that in somewhat greater detail when we get to Clause 2 stand part, which it would be appropriate to leave until after dinner, if everyone is happy with that suggestion.
Seeking clarity on the consultation requirement in relation to Northern Ireland is understandable and the broad nature of the consultation requirement in Schedule 16 could, of course, include the devolved Administrations—that applies to Scotland as much as it does to Northern Ireland—as well as operational partners, government departments and others. I do not think that we have a gap there.
As the House will be aware, under the terms of the Northern Ireland Act 1998, national security is an excepted matter and the National Crime Agency will be a reserved matter. A duty to consult on excepted and reserved matters therefore sits uncomfortably with the devolution settlement as it relates to counterterrorism matters. I recognise that counterterrorism policing in Northern Ireland cannot be divorced from the generality of policing which is, of course, a transferred matter. Indeed, the National Crime Agency itself will undertake a mix of reserved and devolved activity in relation to its serious and organised crime remit. That is why the provisions in Part 1 of the Bill will require the Northern Ireland Assembly to adopt a legislative consent Motion. That is also why there are provisions throughout the Bill which provide for the necessary checks and balances to reflect devolution at certain points. Obviously, there needs to be consultation with the Department of Justice in Northern Ireland.
I understand that the Justice Minister and the Justice Committee of the Assembly—I am sure that my noble friend knows as much as I do—have agreed in principle to take forward a legislative consent Motion, and officials in the Department for Justice in Northern Ireland are seeking to secure the agreement of the Executive Committee before proceeding to the next stage. Any legislative consent Motion needs to be adopted by the Assembly before the Bill reaches its last amending stage. Although things have not been proceeding quite as quickly as we might wish them to have done, since we know that the Bill is designed not to proceed as quickly as sometimes Ministers wish Bills to proceed and we will not complete the Committee stage until October, there is a considerable chance that we will get to that stage before the Bill gets on to the statute book.
I hope that my noble friend Lord Alderdice will accept that we are making progress. We will continue to do more and continue to discuss this with my right honourable friend the Secretary of State for Northern Ireland and others. We will carefully reflect on my noble friend’s points between now and Report, which will not happen until some time in late October or thereabouts.
I will quickly say a few words about Amendment 21. It seeks to limit the extent to which an order under Clause 2 may be amended or otherwise modified by the Crime and Courts Act and other enactments. I can give an assurance that Clause 2 is already limited purely to counterterrorism functions. While that is not restated expressly in subsection (4), the effect of that subsection when read with the clause as a whole is to limit the power to make amendments to primary legislation to those that are consequential on conferring counterterrorism functions on the National Crime Agency. Again, I suspect that that is a matter that we will discuss in greater detail when we come to the Clause 2 stand part debate. It was considered by the Delegated Powers and Regulatory Reform Committee. The committee made no recommendation in respect of that power in its report. In fact it went so far as to state that the idea of adding to a statutory body’s functions by subordinate legislation subject to parliamentary procedure is well established. I hope that my noble friend will feel that her Amendment 21 is therefore not necessary.
Going back to the original amendment of my noble friend Lord Alderdice, I hope that what I have said gives him the appropriate reassurance. We fully understand the sensitivities in this area and I hope that he will therefore feel able to withdraw his amendment on this occasion.
Crime and Courts Bill [HL]
Baroness Smith of Basildon Excerpts(12 years, 5 months ago)
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Baroness Hamwee
My Lords, I think that Amendment 23 can be dealt with quite shortly. Clause 3 provides for the Secretary of State’s determination of the NCA’s strategic priorities, and our amendment would provide for her to lay a report before Parliament upon such a determination.
Schedule 2 deals with publication of the framework document and annual report but the strategic priorities seem to be of a sufficient importance that reporting them should not wait for the annual report. I cannot immediately see that they would be part of the framework document, although I may have misread that. Perhaps the Minister can reassure me about publication of the strategic priorities, which I assume will be a matter for public consumption. If this is not done through the sort of arrangement that my amendment proposes, how will it be done? I beg to move.
Baroness Smith of Basildon
My Lords, I have some sympathy with the noble Baroness’s contribution because the strategic priorities seem to be a bit of a puzzle. A key part of what the NCA does must be that the public and everyone else can understand the strategic priorities of this organisation. When you look through the Bill to see what the role of the NCA is, the description is extraordinary broad. It has the function of,
“gathering, storing, processing, analysing, and disseminating information that is relevant to any of the following … activities to combat organised crime or serious crime”,
and,
“activities to combat any other kind of crime”,
or “exploitation proceeds investigations”.
That is an extraordinarily broad area. It covers all kinds of crime, yet the strategic priorities are a very small part.
I looked to see whether there was something about the strategic priorities within the framework document. Like the noble Baroness, Lady Hamwee, I could not see it there. I am not questioning the right of the Secretary of State to determine those priorities: the Secretary of State should have that strategic oversight. But I am not clear what scrutiny there is and what form of publication there will be. Clause 3 states:
“The Secretary of the State may determine strategic priorities”,
including whether he or she wants to have priorities or not, and will consult strategic partners, the director-general and anyone else the Secretary of State thinks appropriate. It is extraordinarily broad.
If we then look at operations, it is clear that the strategic priorities play an enormous role in what the director-general then sets out in the annual plan of what the organisation is to do. I feel that we need more information about this. Will the Minister say something about the relationship between the strategic priorities of the NCA and the framework document? I am not clear how the two work together. If we look at Schedule 2, the framework document seems to describe the,
“ways in which NCA functions are to be exercised”,
and the,
“ways in which the NCA is to be administered”,
but that will depend on what the strategic priorities are. Some guidance and enlightenment from the Minister would be useful.
Lord Henley
My Lords, I hope that I can help and can be relatively brief. The important thing for my noble friend and the noble Baroness, Lady Smith, to do is to look at Clause 3 and Clause 4 together. If they do that, things become somewhat clearer. The amendment would place a duty on the Home Secretary to lay a report before Parliament following her determination of the strategic priorities. Clause 4 of the Bill already requires that the agency’s annual plan be published and include a statement of the strategic priorities determined by the Home Secretary. That is clear in Clause 4(2)(a), which refers to,
“any strategic priorities for the NCA (see section 3)”.
This is a new way of drafting that makes these Bills a lot easier to understand. The draftsmen are moving ahead. So there is a mechanism in the Bill for ensuring that the strategic priorities are published.
Moreover, the Bill also provides for the agency’s annual report to be laid before Parliament and for such reports to include an assessment of the extent to which the annual plan for the year has been carried out. So this again provides a mechanism for informing Parliament of the strategic priorities and how the agency is delivering against them. It would then obviously be a matter for both Houses to determine in a way that I do not understand but I am sure the noble Baroness does. We were discussing the usual channels much earlier in the Chamber. They will decide how these matters will be debated and discussed and how the Home Secretary will be held to account on these matters in both Houses. That is something that will happen in due course.
Given those provisions, I do not think that it is necessary to have a further procedure for laying the strategic priorities before Parliament as provided for in this amendment since Clause 3 interpreted with Clause 4 and read backwards again seems to do exactly what is sought. I hope that my noble friend will feel that the matters that appear in her amendment are covered by what is already there. I hope that I have also dealt with the points raised by the noble Baroness, Lady Smith.
Baroness Smith of Basildon
My Lords, this amendment would remove the requirement on the director-general to gain the consent of the Secretary of State for the annual plan. The amendment suggests that it should be undertaken by the National Crime Agency board. I know that the Minister will say that there is no board and no response to be made. However, I want to explore the broader issue. I am somewhat puzzled as to why the Secretary of State would sign off and have to give consent to the publication of an operational document. There has been no question or disagreement in the House that the Home Secretary should retain the ultimate strategic oversight and overview of the NCA. At the same time, it is vital to preserve the operational independence of the National Crime Agency and the director-general from government.
I believe that that is the Government’s intention but there are several places in the Bill where that is not as clear as it should be and it becomes a little confused. There are lots of documents and we are unclear about what they contain. There is a framework document that we have yet to see; there are strategic priorities that the Secretary of State will publish; there is the annual plan which the director-general will publish; and then there is the annual report which gives an indication of how far the director-general has been able to achieve the annual plan in that year. There will be some overlap and there needs to be clarity as we proceed.
The director-general has a statutory obligation to ensure that the annual plan meets the strategic priorities as determined by the Home Secretary. However, the annual plan itself seems to give operational effectiveness and direction to the strategic priorities. So the strategic priorities are for the Secretary of State and the annual plan will be for the director-general. Yet, the clause states:
“Before issuing any annual plan, the Director General must obtain … the consent of the Secretary of State … the consent of the Scottish Ministers … the consent of the Department of Justice in Northern Ireland as it relates to activities in Northern Ireland”.
I do not understand it. If we could remove the consent of the Secretary of State or politicians to the annual plan, that would make it clear that there is no political interference in the operational determinations of the director-general. The Bill is unclear as it stands and allows for the opportunity for political interference in operational matters, which I know the Government are keen to avoid.
This is not directly related to the amendment, but the clause states:
“The Director General must arrange for each plan to be published in the manner which the Director General considers appropriate”.
We may wish to give more guidance to the director-general over a matter that he thinks is appropriate. From our previous conversations, the Minister will know of my concern that it might end up on the website and not be seen by anybody at all, so we will have come back to that one. This is a clear case of the Secretary of State having to give consent and thereby being involved in operational decisions. That is not what Ministers have said throughout debates and discussions on the Bill or indeed at Second Reading. I beg to move.
Lord Henley
My Lords, I should first make it clear that there is no board, but we discussed that at an earlier stage and will no doubt do so again in due course. The proposed amendment would remove the requirement for the Home Secretary and the devolved Administrations to consent to the annual plan. I shall briefly address why the plan should be subject to their consent. The noble Baroness said that she wanted to get rid of what I think she referred to as “political interference” in these matters; I would refer to it as the Home Secretary being accountable to Parliament.
The annual plan will be important to ensure that the agency is open and transparent. Together with the annual report, it will provide the key mechanism by which Parliament and the public can hold the agency to account. Foremost, however, it is the place where the director-general will set out how he intends to deliver the NCA’s objectives for the coming year. It will be against those plans that the NCA’s performance is assessed, not least in the annual report at the end of the year.
As such, the annual plan must accurately reflect the strategic priorities which the Home Secretary has set for the NCA, as well as the wider national picture on organised crime and policing. The Home Secretary will ultimately remain accountable to Parliament for the national response to serious and organised crime and, indeed, for the performance of the agency.
It is therefore important that the NCA’s success is measured against the objectives that the Home Secretary has set for it. The requirement for the Home Secretary’s consent provides the most appropriate means of ensuring consistency between the annual plan and her strategic priorities. It also gives reassurance to Parliament and the public that she is content with the director-general’s approach to delivering those priorities.
The devolved Administrations in Scotland and Northern Ireland will also play an important role in shaping the fight against organised crime, and will therefore be consulted by the Home Secretary when she is setting the NCA’s strategic priorities. Given their accountability to their own electorates for the fight against organised crime, they will rightly have a role in agreeing those aspects of the annual plan which affect Scotland and Northern Ireland.
The annual plan will be an important document in measuring the effectiveness of the NCA. It is important that its contents are agreed—not, as the noble Baroness put it, interfered with politically—by those who will ultimately be accountable for that fight against organised crime at the national level. I appreciate that the noble Baroness put down the amendment to probe, but I hope that she will feel happy to withdraw it.
Baroness Smith of Basildon
My Lords, I hope—and thought—that I said that the amendment would remove the potential for political interference or any suggestion of it. I still think that that is a danger in the way that the clause is drafted. I fully accept the Minister’s explanation that there is no intention for there to be operational control or involvement by the Home Secretary; but by having to consent to the annual plan, she would have an oversight role in operational matters.
I do not intend to press the matter at this point. Lots of consultation and reports will occur as a result of the Bill—I wonder how bureaucratic one Bill can get. I will listen to what the Minister says on this and other clauses but, for now, I am happy to beg leave to withdraw the amendment.
Baroness Doocey
My Lords, I would like to say a few words about three issues. The first is training. Most of the training that is currently done with police forces tends to be computer-based training. There is a place for computer-based training but mainly to deliver knowledge or awareness. The NCA is going to be a very major body with huge responsibility, and most of the training the officers are going to require will impact on attitudes and behaviour. Therefore, I believe it needs to be done on a one-to-one basis. I urge the Government to consider putting some money into this aspect of the training. I know that one-to-one training is much more expensive than computer-based training but I believe, first, that it is absolutely essential and, secondly, that it will pay dividends because just doing computer-based training will not provide the sort of officers that will be needed for this role.
The second issue is IT. There is no doubt about the IT requirements of the NCA. The intelligence hub that will be at its centre will require major IT and the functioning of the hub will be vital to the functioning of the NCA. There have been many interoperability problems, not just within local police forces but between national police forces. I remember the fiasco when the Metropolitan Police tried to upgrade its mobile data terminal with in-car automatic number plate recognition, which resulted in huge problems. Systems collapsed and had to be rebooted every time the police got into a car. The problem was eventually resolved, but there were basically no systems for several months and there were great costs. I believe that the lessons learnt from that ought to be required reading for anyone who is going to have anything to do with IT for the NCA.
Airwave, the system whereby police radios should speak to each other, is another issue. After many upgrades and after many millions of pounds have been thrown at it—I was very involved in this—there are still problems. There are particular problems with, for example, the Met talking to forces next door. For example, where I live in Hampton, the problems with Met Police radios trying to talk to Surrey Police radios have not yet been resolved. There are going to be teething problems at the very least.
Multiple keying bothers me particularly. Most police systems are antiquated and require the input and reinput of data time and time again. I am not convinced by anything that I have read so far that the Government have looked at this in sufficient detail and given it the priority that it really deserves and needs to resolve these problems. I urge the Government to set up a small specialist group to look specifically at IT interoperability systems before they go much further and certainly before the passage of the Bill through both Houses.
Finally, I turn to Schedule 4 and the regulations about equipment. I would be very interested to understand what this means because it seems to suggest that the Secretary of State is going to determine what equipment the NCA should use. It seems at odds with the idea of setting up a very large organisation under a director-general then to prescribe and insist that it uses particular equipment. That seems to be totally against the spirit of everything else in the Bill. I would welcome some additional information on that.
Baroness Smith of Basildon
My Lords, again, I have some sympathy with these amendments. I have resisted the temptation of putting forward amendments on different issues that should be included in the framework document, but the noble Baronesses, Lady Hamwee and Lady Doocey, are right that not having the framework document and having only very limited information about what will be in it means that, at this stage, the Committee has to seek assurances about things that we consider it important should be in the document. So far I have resisted the temptation, but if we got to Report and did not have the document, that temptation may be given free rein.
The issues that have been raised are extremely important and perhaps these amendments do not go as far as we would have gone. They talk about protocol relationships, which is slightly weaker than some of the things that we would have suggested, in terms of how the relationships would work and what should be in the framework document. However, I say to noble Lords that if they do not want to accept these amendments, they have only themselves to blame. We really need to see this framework document as a matter of urgency. Debating this Bill without it means that we will be having some debates not once but two or three times, because not only will we have to debate the issues now but when we get the document we will want to debate them again. It is in the interests of good governance and good progress of business in this House that we have the framework document as soon as possible.
I am also interested in what the Minister has to say about Amendment 46A. Like the noble Baroness, Lady Doocey, I inferred from that that the fact that the Secretary of State would be making decisions and regulations on the equipment to be used seems a highly operational matter. I am not convinced—though the noble Lord may have information to the contrary that will convince me—that it is an appropriate involvement in operational details of NCA work or why the Secretary of State wants that power. I would be interested to hear what the Minister has to say about that amendment. On the other amendments, we need to ensure that these kinds of issues are going to be determined in the framework document. Any enlightenment that he can give us would be extremely helpful.
Lord Henley
My Lords, I am grateful to both my noble friend and the noble Baroness, Lady Smith, for all that they have said on this group of amendments. My noble friend is right to draw attention to the need for the agency to work closely with its law enforcement partners. Obviously such co-operation will be essential. The conduct of the agency’s relationships with other law enforcement agencies, however, is already underpinned by the clear provisions of Section 5 and Schedule 3 to the Bill. This includes the two-way duty to co-operate in paragraph 1 of Schedule 3. By contrast, the purpose of the framework document—I appreciate that the noble Baroness, Lady Smith, and others are still waiting to see it—is to set out clearly and transparently how the Home Secretary and the director-general will work together and the ways in which the NCA is to be administered.
The document 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 cost of information that will be published by the NCA. That framework document, when it appears, will set out the relationship between two people: the director-general and the Home Secretary. They are the only people required to have regard to the framework document. This duty will not apply to others and, given the nature and purpose of the document, we do not consider it to be the appropriate place to go into the minutiae of the operational relationship between the NCA and other agencies. I recognise that there may be a need for detailed operational protocols between the agency and its law enforcement partners, but we would expect these to be agreed separately between the director-general and the agency or agencies concerned. I accept the principle behind Amendment 27A, but I respectfully suggest that the framework document is not necessarily the right place for such detailed operational protocols.
I also note the particular reference to including a protocol regarding integrating training and interoperability between the NCA and its partners. Obviously these are matters that the director-general should consider when looking more broadly at how they can deliver the NCA efficiently and effectively and how they can work well with partners. I also agree that the agency will need to ensure that its IT and communications systems are interoperable with others. I should also note that the NCA is taking on many of the assets of its precursor agencies and, as such, is not starting from a clean sheet. Also, it is expected that the director-general will focus the training and equipment requirements of the NCA to ensure that it is fully capable of delivering its priorities, working with others such as the new police professional body. The director-general needs flexibility to make the right operational decisions about these issues to address the ever-changing threat from serious crime. However, I am sure that considering best practice as well as the requirements and assets of partners will inform the decisions that he takes.
Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012
Baroness Smith of Basildon Excerpts(12 years, 5 months ago)
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Baroness Smith of Basildon
My Lords, I am grateful to the Minister for his explanation and for information on the four orders before us today. For most of my research on this matter, I felt at a distinct disadvantage. I hope that the comments that I am about to make do not become a regular feature of our debates in Grand Committee or on the Floor of the House, but I have to say that the Home Office website really is a disgrace. I understand that it has not been accessible since we returned from Recess. I have been unable to access via the website either the codes of practice or the consultation; nor have I been able to respond to the consultation. My questions will therefore have to reflect the paucity of information that I have been able to obtain.
I know that the Minister likes to be helpful and his private office contacted me to say that it would look into this matter, for which I was grateful. I was grateful, too, to the parliamentary adviser at the Home Office, who was able to send some information to us. However, he was unable to access it until today—it came over at 1.55 pm. There were 356 pages. I can read pretty fast, but not that fast. I hope that the Minister can take my comments back, because it would have been helpful to have information on the significant changes being made, albeit in a digested form, and a summary of responses to the consultation. It would be helpful to have that information always made available if it is not going to be available on the website. I hope that some mighty experts will resolve this matter; otherwise, as I have threatened previously, I will phone the Minister on a Sunday afternoon to get the information that I need while I am working on these issues.
We agree with tighter restrictions on stop and search. As I think the Minister knows, and as my colleagues have said in the other place, the powers were being used more widely than originally intended in the legislation. Indeed, former Home Secretary Alan Johnson had already taken some action in that area and provisional data had shown quite a significant drop in the number of stop-and-search cases from 2009 to 2010. We support sensible measures that will bring the legislation more closely into line with the original intention behind stop and search.
I have some specific questions—as I said, I was unable to obtain a copy of the consultation and have only the Explanatory Notes to work from. If the Minister does not have answers to them, I will be very happy for him to write to me with the information. The noble Lord said that there were 11 responses in the Explanatory Notes, of which the majority were in favour. Who were these responses from, since some but obviously not all of them were listed, and which organisations were not in favour or had objections to the changes being made? What issues did they raise with their concerns and what changes were made to the draft order following the consultation responses that came in?
Turning to the other two orders on counterterrorism and video recording, again, can the Minister say something about the issues raised in the consultations? I have the consultation responses on the code of practice on Codes C, G and H but not specifically on video recording, although there is some information in there. There is obviously a crossover. However, if other issues were raised, by whom were they raised and what changes were made to these two specific orders on video recording as a result of the consultation responses?
On the Police and Criminal Evidence Act order, I would like to commend those who were able to get some good information for the shadow Ministers who are looking at these issues. I was pleased to see a number of points being taken on board, particularly when potentially vulnerable people are being questioned and on mental health issues. A lot of the representations that were made in response to the consultation were taken on board. I hope the Minister understands that I feel rather limited, given the lack of information available. If that could be resolved for future orders and if he can answer my questions either now or in writing, that would be appreciated.
Lord Henley
My Lords, I start with an abject apology on behalf of both myself and the Home Office in response to the noble Baroness’s complaints about the website. I have raised it within the department but I will now go back to it. The first thing I had better do is find out which of us five junior Ministers has responsibility for the website, if any at all, and make sure that one of us looks personally at these problems to ensure that we can sort it out. Obviously, the noble Baroness should not have to wait until 1.55 pm today to get the information that she needs to deal with these matters.
It might also be worth my while offering the noble Baroness my home and mobile numbers so that she can get hold of me in Cumberland on a Sunday afternoon. I will tell her whether I will be available on future Sundays on an ad hoc basis, so that she can occasionally discuss these things. Again, I hope that the noble Baroness will get hold of me in my office whenever she is going to have specific problems because, as she knows from her own extensive experience in government, these matters can very often be resolved by talking about them beforehand. Similarly, if she comes through my office I am always more than happy to arrange a briefing for her to make sure that these things happen. This is a complete apology with my and the department’s mea culpa. We will try to resolve these matters.
Having said that, I was grateful for what I suspect is her and the Official Opposition’s general support for the line down which we are going on these matters. However, I appreciate that she has a number of fairly detailed questions about how we adjusted things as a result of the consultation, who was in favour and who opposed and, on the video recording, the responses to the consultation and what changes we made. On stop and search, the changes were limited as we had previously consulted on a similar remedial code of practice order. These changes related to removing references to random searches, and there was further advice on photography issues.
At this stage, it would probably be better for me to offer to write in greater detail to the noble Baroness, Lady Smith of Basildon, giving fuller, further and better particulars of these matters so that we can get all this right. I note the Official Opposition’s general support for what we are doing, but obviously we have to resolve many more detailed points. Having said that, I hope the noble Baroness will allow me to move this order, and to offer, first, my apology again and, secondly, the guarantee that I will write to her with fuller and better details on the consultation.