Immigration Bill

Earl Attlee Excerpts

Monday 3rd March 2014 Lords Chamber

[Earl Attlee]

My Lords, it is in order for the noble Lord, Lord Judd, to speak.

[Lord Judd]

My Lords, I am very grateful to the Minister for his response to my observations on unaccompanied children. I wonder whether it would be possible for the Government to make provision whereby it was required that every unaccompanied child subject to a removal process should have a qualified and transparently independent counsellor specifically allocated to them to guide them through what may be a nightmare situation.

--- Later in debate ---

[Baroness Hamwee]

My Lords, when I looked at Clause 5—“detained” or “liable to be detained”—the question that arose in my mind was, “How do you know someone’s liable to be detained unless all the processes including any appeal rights have actually been pursued?”. I have two amendments in this group. Amendment 23 would leave out the second part of the new subsection (1A) introduced by Clause 8. The provision in Clause 8 is that biometric information means,

“information about external characteristics (including in particular … )”.

Paragraph (b) then refers to,

“any other information about a person’s physical characteristics”.

Well, what could those be if they are not the external physical characteristics in subsection (1A)(a)? I cannot imagine that they are internal physical characteristics. I am quite confused about what subsection (1A)(b) might mean when read with subsection (1A)(a). That is quite apart from the fact that I have a rather natural and automatic dislike for not spelling out on the face of the Bill anything that could be spelled out.

Amendment 24 would take out of new Section 8(3)(c) introduced by Clause 10 the reference to “injury”. We are told in subsection (3) that the regulations may include provision to be used for certain purposes, of which paragraph (c) is,

“in connection with identifying persons who have died, or are suffering from illness or injury”.

I assume, and I hope the Minister can confirm this, that the reference to death or illness is because of public health considerations. Why then is it necessary to refer to injury? I would be interested to know what purpose this is to serve.

[Earl Attlee]

My Lords, Clause 5 amends paragraph 18 of Schedule 2 to the Immigration Act 1971 to include persons who are liable to be detained. This will allow immigration officers to check the fingerprints of persons they suspect to be illegal immigrants where there is a question about their identity. The existing power allows for fingerprints to be taken only from persons who have been detained under immigration powers.

The ability to establish an identity is an essential requirement for immigration officers when undertaking immigration enforcement operations. Unless identity is established it is not possible to remove or deport illegal immigrants. At present, where immigration officers encounter people whom they suspect to be illegal immigrants and have doubts about their identity, they can check the person’s fingerprints only with their consent or following the person’s arrest. In some instances this can lead to unnecessary arrests or result in illegal immigrants not being detected. In answer to the noble Lord, Lord Rosser, surely the Committee does not want innocent people going about their lawful business to be arrested. Secondly, if the suspect does not appear to understand English, how can they give informed consent to have their fingerprints taken?

This power is intended to reflect the conditions under which the police operate. Prior to the changes made to the Police and Criminal Evidence Act 1984 in 2005, the police also needed consent to check fingerprints where a person had not been arrested. The amendment has enabled the police to make fingerprint checks without the need to arrest individuals who are suspected of committing a criminal offence and whose identity might otherwise not be readily ascertained or verified.

This clause will bring immigration officers’ administrative enforcement powers more into line with police powers. The power to check fingerprints will be limited to the purpose of verifying identity as part of an immigration enforcement investigation. The fingerprints will not be retained but rather immediately electronically checked against the immigration biometric database. If there is an existing record, this will confirm the person’s identity and potentially assist the immigration officer to ascertain the person’s immigration status. This will help avoid unnecessary arrests, allowing those legitimately in the UK to go about their business, while quickly identifying illegal immigrants.

I want to assure noble Lords that this power does not mean that immigration officers will be able to stop anyone they encounter. The person required to provide fingerprints for checking must be liable to detention under the immigration Acts. In practice this means that the immigration officer must have reasonable grounds for suspecting that they might be liable for removal from the UK. There will not be any blanket testing of people just because they look foreign. I hope that answers the question from my noble friend Baroness Hamwee about the term “liable to detention”. As I understand it, it is not a new term.

Clause 6 is intended to improve the levels of assurance about persons naturalising or registering as British citizens and to ensure that the identity of British citizens who apply for their first UK passport can be properly identified. Amendment 22 would weaken these proposals.

The power is intended to protect new British citizens from having their identity stolen by impostors by enabling a photograph submitted as part of a passport application to be checked against the new citizen’s record. If we destroy new citizens’ photographs before they obtain a passport, HM Passport Office would be less capable of confirming their identity. It would also expose HM Passport Office to fraudulent applications for British passports.

As observed by the noble Lord, Lord Rosser, over 90% of new British citizens make a passport application within one year, so very few new citizens will have their photograph retained for more than a year. I accept that this will result in a small minority of new British citizens who decide against applying for a British passport having their photograph retained for a longer period as a consequence of these provisions. However, retaining the photograph will be useful to them in protecting their identities. In particular, new British citizens who retain their other nationalities may opt to have a certificate of entitlement affixed to their non-British passport instead of obtaining a British passport.

This document is a right of abode vignette—passport sticker—that can be issued to, in addition to British citizens, certain other categories of Commonwealth citizens who have a right of abode if they have not ceased to be Commonwealth citizens. It contains a photograph of the holder, which needs to be checked against the photographs that the person may have previously submitted as part of an immigration or nationality application. Holders of valid certificates of entitlement are not allowed to hold a British passport at the same time.

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[Lord Rosser]

Perhaps I could add one or two comments. I thank the Minister for his reply and for the amount of information contained in it. I think that I recall him saying that “liable to be detained” was not a new phrase, but I am not sure how extensively it has been used before in immigration law.

I listened carefully to what he had to say about the situation of those whom immigration officers would not want to arrest. I will read his response carefully in Hansard, but at the moment I am not entirely clear what happens when someone whom they do not want to arrest declines to enable their fingerprints to be checked. I am not sure whether they will just be allowed to go or if in fact they will be arrested, which raises the question of why the existing powers are not adequate and why this new terminology is needed. As I say, I will read very carefully what he had to say.

Finally, I asked how many cases there have been in the past 12 months of people who would have had their fingerprints taken and checked if the “liable to be detained” provision in the Bill had been in force who could not have their fingerprints taken under the current wording in the Immigration Act 1971. I was not particularly expecting the Minister to come up with an instant response, but since that calculation is presumably the justification, at least in part, for this change in legislation that we are considering, I hope he will be able to provide me with an answer to that question later on.

[Earl Attlee]

My Lords, the main justification for Clause 5 is to avoid unnecessarily arresting people and to make it easier to carry out immigration checks. I described a situation where someone cannot speak English or pretends not to speak English. The noble Lord, Lord Rosser, asked what the definition of “liable to be detained” is and how many cases it will affect. If I have any information about how many cases, I will write to him. A person is liable to be detained if there are reasonable grounds for suspecting that removal directions may be given—that is, that the person requires leave to enter or remain but does not have it.

The noble Lord, Lord Rosser, also asked whether a person who refuses to give their prints can be arrested. They cannot be arrested solely for refusing to give fingerprints, as they can be taken only by consent. This may not give enough reasonable suspicion that a person may be an immigration offender.

The noble Baroness, Lady Hamwee, asked about the external examination. The whole point of these provisions is that the checks can be external examinations only.

[Lord Rosser]

Presumably immigration officers would not want to check a person’s fingerprints unless they had some suspicions in the first place or some doubts.

[Earl Attlee]

My Lords, they would not be able to check fingerprints unless they had some good reason to do so.

[Lord Rosser]

I thought the Minister said that you cannot arrest someone who refuses unless there is some suspicion. To do the check in the first place must mean that you have some suspicion and, therefore, if they refuse, you could arrest them.

[Earl Attlee]

My Lords, there would indeed be an element of suspicion if someone declined to give their fingerprints to be checked, but I suspect there would have to be other evidence as well. I will write to noble Lords to clarify these points.

[Baroness Hamwee]

Will the Minister include an explanation of the statutory basis on which new subsection (1A)(a) can be obtained by external examination only? I do not doubt what he says, but the way the provision is worded raises the question.

[Earl Attlee]

I will be delighted to write to the noble Baroness.

Clause 5 agreed.

Immigration Bill

Earl Attlee Excerpts

Monday 10th February 2014 Lords Chamber

[Lord Clinton-Davis (Lab)]

If the Bill is so perfect, why do so many organisations concerned with immigration oppose it, and oppose it with vigour?

[Earl Attlee (Con)]

My Lords, long experience shows that the best way of handling these debates is to allow my noble friend the Minister to lay out his stall, explaining how the Bill works, and then debate the Bill.

[Lord Taylor of Holbeach]

Yes, I am sure that noble Lords would expect me to extol the virtues of the Bill—they would be sorely disappointed if I failed to do so. It will be for noble Lords in this House to discuss its provisions, but some of the commentary that I have read over the past few days on the Bill bears no relation to the Bill as drafted, or indeed to the intention of the Government. If I may give an example, claims that we intend to turn GPs into immigration officers are untrue. Claims that communicable diseases will spread like wildfire and that emergency care will be denied are far-fetched. Nothing in the Bill changes processes in our front-line health services.

Part 4 of the Bill is about tackling sham marriages and civil partnerships. These are entered into by a couple who are not in a genuine relationship for the purposes of circumventing immigration controls. They are a significant problem, as this House will recognise. The Bill will enable more of these cases to be identified, investigated and prevented from gaining an immigration advantage.

As the noble Lord, Lord Clinton-Davis, has said, a lot has been said about this Bill and a lot more will be said. I know that this House will give it serious scrutiny and I would expect nothing less. While we do that, I hope that we will separate myth from reality and spin from substance. The Bill renews the legal foundations for proper enforcement of our immigration laws. That enforcement is necessary to build public trust in the system. It is also necessary to enable us to reap the benefits of migration as a nation. I commend the Bill to the House. I beg to move.

Anti-social Behaviour, Crime and Policing Bill

Earl Attlee Excerpts

Wednesday 20th November 2013 Lords Chamber

Moved by

[Earl Attlee]

That the House do again resolve itself into a Committee on the Bill.

[Baroness Smith of Basildon (Lab)]

My Lords, may I raise a point about the further consideration of the Bill today? At 6.03 pm yesterday, we received quite a lengthy letter from the Minister with amendments that I am told are to be debated today. Is it appropriate to receive amendments at such late notice for debate the following day?

Undercover Policing

Earl Attlee Excerpts

Monday 24th June 2013 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, there is no doubting the seriousness of these allegations, nor indeed the determination of the Home Office, and the Home Secretary in particular, to expedite investigations and report the conclusions of those investigations to Parliament. I emphasise that elements of the inquiries in Operation Herne, the Creedon investigation, will be reported to the Home Secretary and in turn to Parliament as the sections of those investigations are concluded. A Statement will be made to the House before it rises in the summer on the particular aspects that were mentioned by the noble Baroness.

I think it is true to say that police officers are just as appalled as Members of this House at these latest allegations which, if they are true, suggest a mindset that existed in those days, quite some time ago now, which sought to discredit victims. That is an intolerable thing for policing to accept. The Home Office is determined to pursue these matters.

There has been some criticism. I was in the other place earlier and heard the Opposition there suggest that perhaps what we need is one big investigation. I think that the current investigations are actually making considerable progress. The burden of the new allegations will, of course, add to the work that needs to be done. We will make sure that the work is properly resourced and that Parliament hears about the progress of the reports.

Mark Ellison QC has indicated to the Home Secretary that the inquiry of his team is going much wider than just using Metropolitan Police Service files. Because of that, and because of the allegations that are involved, the inquiry is going to take longer to come to its conclusions, but it hopes to report in the late autumn. The Ellison review is working with other investigations. The allegations made in the media today will form part of Ellison’s task, as well as forming part of Mick Creedon’s own investigations through Operation Herne.

I hope I can reassure the noble Baroness that we understand her determination to get to the bottom of this, but I think that the police as a profession want to do so as well, to make sure that we know how these things happened in the past and that there is no risk of them happening in this day and age.

[Earl Attlee]

My Lords, for the benefit of the House, perhaps I may remind noble Lords that short questions should be put to the Minister in order that my noble friend can answer as many as possible.

Police: Performance Indicator Management

Earl Attlee Excerpts

Tuesday 19th March 2013 Grand Committee

[Lord Whitty]

My Lords, I will make one or two of the same points as the noble Earl, Lord Lytton. Unlike some other Members who are going to speak today, I do not have great experience or expertise in this field. With one or two exceptions, my relationship with the police has been generally okay. I am merely a concerned citizen here, in that I really want to know what is happening to crime in this country. Politically, both this and the previous Government congratulated themselves on a falling level of crime. I did not seriously query this claim until recently.

Of course, government and police claims of crime reduction have always been treated with a degree of cynicism by the general public. Public perception of crime rates in all neighbourhoods tends to exaggerate the degree of actual crime. Of course, there are horrendous crimes, which receive massive publicity. Although harrowing to those immediately concerned, as I know, these are probably not typical. There is a general public perception that the level of particularly low-level crime is higher than the police and the Government claim.

Sometimes the police go over the top. I am told that the South Wales Police notepaper says that crime is the lowest for the past 30 years. I doubt that anybody in south Wales actually believes that—nor would people in Dorset or the City of Westminster. There is a credibility issue underlying this, and some of it has a good statistical basis because of the way in which the police record crime as against, for example, the crime survey and the way that victims see their complaints. So there are some rational explanations for it.

However, I was quite alarmed to see that the ONS itself was seriously querying the degree of crime reduction. That is probably where I am. I probably logically accept, despite the psychology of it, that there has been some reduction, but it is the degree. There was quite a significant difference between the police figures and the other figures to which the ONS referred. The ONS gave a number of quite good reasons for this but at the same time I became aware of the work of Dr Rodger Patrick, to whom the noble Earl, Lord Lytton, has already referred.

According to Dr Patrick’s analysis, some crimes are no longer recorded on the basis of reporting by victims or the public but on the evidential assessment of police officers and on the balance of probability. That was always the case with third party reporting but used not to be the case where victims themselves reported. Other cases are lumped together and given the same crime number to appear only once in the statistics. Minor crimes can go unreported altogether: some are on a local crime data list; some are subject to informal caution and are cleared, one way or another, and do not get into the national statistics.

Meanwhile, on the detection side, issues such as “take into consideration cases”, to which the noble Earl, Lord Lytton, referred, are sometimes lumped together as solved or cleared as a result of a deal with a defendant or prisoner, without real conviction and due process. I have read parts of Dr Patrick’s analysis, and I have no way in which to assess the validity of all this or how widespread it is. But it is also true—and this is in the title of the debate—that with some crimes under the last Government there was a drastic fall, following the introduction of targets and performance management criteria. That might mean different things: it might suggest that the target culture was instantly incredibly successful in increasing overall efficiency against targets; it might suggest that the priorities and resources were, as in other public services, concentrated on those areas that were measured and defined as targets while other areas were left underresourced; or it might mean—and this is something that we regrettably know about in bits of the NHS—that figures were reclassified or manipulated to exaggerate performance improvement.

What we need to know from the Minister tonight is two-fold. Does he recognise the figures on descriptions of malpractices in individual police forces to which the noble Earl referred? What arrangements for quality control and challenge of statistics coming from individual police forces are there in England and Wales? Secondly, I recognise that the Home Office and the ONS give guidance to the police on how to record crime, but who checks the compliance? Is it the police authority, the new police commissioners or the Inspectorate of Constabulary? What is the role of the Police Support Unit—or is it the ACPO high command, or the Home Office itself? How does it work and, in particular, how far is it guided, checked and quality controlled by non-police bodies, or is the guidance and advice from ACPO to chief officers dominant? Like the noble Earl, I have some concerns about the role of ACPO in this area.

There are also reports that those who query the current system, whether from within the police force, from community bodies or even from the Home Office, suffer repercussions—they have been victimised or moved to other duties. Is the Minister aware of such allegations, and what would he instruct the Home Office to do about such allegations? I have to phrase this in the form of questions, partly because of the difficulty of proof and partly, frankly, because of the litigiousness of some of those who defend their position. But these are questions that the Ministers in the Home Office and, perhaps, the Ministry of Justice, need to ask.

The present Secretary of State has made two key decisions in relation to crime statistics and performance. First, she transferred responsibility for oversight and reporting of crime statistics after 2011 from the Home Office to the ONS. That is a very sensible move, which will probably pay off in the long run. However, the ONS analysis is only as good as the statistics that come in. Unless we can improve the accuracy and integrity of all sources of information and eliminate natural bias and contrived distortions, the ONS and Ministers will still be working on flawed systems of statistical records, and hence a flawed evidence base. Secondly, the Home Secretary determined that the police service should move away from target-based performance indicators and, in the light of experience, we would probably think that was the right move as well. But local commissioners will still need authentic, undistorted statistics on which to make their decisions. If not, we are going to end up in the worst of possible worlds, where there are no performance targets, but the police go on recording the same statistics in the same way.

It is time that we had a proper analysis of this—the review by the ONS goes just so far. But as the noble Earl said, unless we are confident in the statistics that we receive, bad statistics will distort the basis for operational decisions by chief officers and strategic decisions by police commissioners and distort the very basis on which Home Office Ministers and officials make national policy in England and Wales. We need a new, expert review, probably judge-led, without an axe to grind, distinct and separate from the police force itself, and we need it soon.

[Earl Attlee]

Can the noble Lord conclude his remarks very soon, because he is completely out of time?

[Lord Whitty]

If I am completely out of time, I shall just say that a push for such an outcome needs to start from the proceedings here today.

Crime and Courts Bill [HL]

Earl Attlee Excerpts

Wednesday 12th December 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I shall speak to Amendments 118H, 118K and 118L. I say to the Minister at the outset that we totally support what the Government seek to achieve here. We appreciate that this is not a drugs amendment, it is a road safety measure, but the Minister will have heard from the comments already made that there is support for the Government’s intention but also some concerns about how it would operate in practice against those who are not the legislation’s targets. Drug-driving is a problem that we are all incredibly keen to see addressed. I refer to a case that the Minister will know well, of 14 year-old Lillian Groves, who was run over and killed by a driver who had taken drugs. This illustrates the importance of ensuring that the police have every tool available to tackle those who take illegal drugs and then drive, creating a danger to themselves and others. My concerns are not about the principle of what the Government seek to achieve, but—as the noble Lord, Lord Walton, and the other noble Baronesses have said—its implementation. We need to ensure that the legislation hits the right target and does not affect the innocent on prescribed medication. We have to get it right.

I thank the Minister for the briefings that he has provided and for the opportunity to meet him and his officials. I hope he can say enough today to satisfy us that the drafting of these clauses will not unnecessarily impact on those whom it is not intended to affect. The amendments I have put forward largely replicate those tabled in Committee and seek to strengthen the defence for individuals on prescription drugs who, through a simple error and no fault of their own, have been found above a certain limit. Amendment 118H would delete the existing new Section 5A(3)(b) of the Road Traffic Act, which requires individuals on prescription medication to “show that” they took the prescribed drug in accordance with any and all instructions, both from the doctor and manufacturer. There are serious concerns that requiring positive proof that the individual complied with all advice is pretty onerous. Instead we propose Amendment 118K, which would mean that individuals could not use their prescription as a defence if it was proved that they had taken the dosage knowingly —the point made by the noble Baroness—contrary to any advice given by a doctor or supplier. That additional wording in brackets picks up on the points about manufacturer’s instructions being required to be considered as part of the prescriber’s or supplier’s advice, rather than placing the burden on the patient to read and understand all and any such instructions. The noble Lord, Lord Walton of Detchant, made the same point. We share his concern about how fair it is for patients on long-term pain medication to find themselves in such a situation and having to show that they have complied with absolutely every medical requirement.

We are worried that we risk criminalising individuals on medication on the basis of a technicality, simply for failing to correctly interpret an element of the patient information leaflet. It could be a slight, insignificant deviation from the instructions. The noble Baroness, Lady Hamwee, made the point about the timing of when a medication could be taken. What if the advice from a doctor differs from that on the manufacturer’s small print? Under the proposed new subsection (4)(a), patients would have to have done something positive, contrary to the instructions they had received, rather than have to positively prove that they acted in accordance with advice. It changes the emphasis of the proof.

New subsection (4) also focuses on what is probably the main medical aspect of the period when the body is getting used to the prescribed drug in the system. This has been mentioned by other noble Lords. Deleting new subsection (3)(b) and the use solely of the caveat in new subsection (4) then fits more appropriately with the evidential requirements of new subsection (5). Patients would be able to show that they have a prescription. They could take a copy of it or carry a letter from the prescriber. Evidence could be produced at a police station. However, the evidential burden of new subsection (3)(b) on patients if they had to “show that” they followed any and all instructions would be considerable. Clearly we are not seeking to protect anyone who is unfit to drive, but although the Government intend this new offence to mirror drink-driving limit offences, taking prescription medication that would otherwise be illegal does not automatically make someone unfit to drive; I am thinking specifically about pain medication.

As an example of why I am concerned, and to take what could happen to somebody sequentially, if an individual on medication has perhaps been rear-ended through no fault of their own, the police would arrive and, currently, breathalyse both drivers. Under the new legislation, they would “drugalyse”, or drug test, both drivers. The test might indicate that they are over the limit, but it does not tell the officer undertaking the test how far over the limit they are. So what would happen next to that individual? If they say that they have a prescription for the medication they are taking but do not have the prescription with them, how can they prove that they have taken medication in accordance with medical advice and not taken illegal drugs? Would they be taken to the police station, where obviously at some point they would be able to prove that they have a prescription? That would clearly be an inconvenience and could be particularly distressing. We do not want to reach a situation where individuals are deterred from taking their medication—again I am thinking specifically about long-term pain relief—because some individuals would be more of a hazard without their pain-relief medication than if they were on it.

The Home Office has been developing roadside “drugalyser” tests for the past 10 years. Without these, the individual would have to be taken to a police station for testing. When do the Government expect roadside drug tests to be available to the police? Do the Government intend to implement the new offence before roadside drug tests are available? How often would they expect the test to be used? Considering their high cost, I presume that the police would undertake a breathalyser test first. How often would the Government expect roadside drug tests to be used in the same cases as a breathalyser? Also, looking through the information that has been supplied, any assessment of the proportion of cases in which the Government expect to find individuals below the alcohol limit but above the limit for a certain concentration of controlled substance was missing.

Despite the good intentions—which we support—what concerns me is that the details of how it will work in practice have not been worked through for those on prescription medication. I am grateful to the Minister for sending me the letter from the chair of the drug-driving panel, Dr Kim Wolff, which the noble Baroness, Lady Meacher, has also referred to. However, I am extremely disappointed that the expert panel has not been able to publish its interim report before this stage of the Bill, though I think Ministers indicated we would be able to get it. Clearly, the levels that the panel is likely to recommend—particularly in the case of prescribed drugs—and the rationale behind the recommendations would have been a huge help in our deliberations today. They may have clarified a number of the issues that I and other noble Lords have raised. What is encouraging is Dr Wolff’s assurance in her letter that:

“In considering what limits should be set for common prescription medication, the Panel has looked at normal therapeutic ranges used in prescriptions, compared to those found in addicts misusing medicines”.

In relation to morphine, she said that the panel,

“are considering a limit that is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine”.

However, Dr Wolff also states that the panel’s primary consideration is,

“clear scientific evidence of risk of road traffic accidents”,

and that in the case of, for instance, prescribed benzodiazepine drugs:

“risk is especially high during the first four weeks of treatment and is particularly increased when benzodiazepines are consumed in combination with alcohol”.

Here, Dr Wolff outlines the inherent difficulties in setting a blanket limit in the case of medicated drugs, because tolerance can change over time and is subject to variation by other factors. I suspect that the Minister will be unable to answer at this stage whether the panel, on the evidence so far, will set a limit for benzodiazepine much lower than the average level for someone on long-term drug use, because of the increased risk in the first four weeks of medication. However, that is an important consideration in the implementation of these clauses.

Much of how this will be implemented will hang on the recommendations that the panel makes, which we do not have available. How will it factor in the effects of mixing drugs with alcohol? Will it feel compelled to set the limit a lot lower than the average dosage because of the risk of increased road safety problems when the drug is mixed with alcohol—even a quantity of alcohol below the legal limit? Someone could be below the legal limit on drugs and below the legal limit of alcohol but still be a danger to themselves and other road users, because the Government’s offence does not provide—understandably, because we have not yet had the report of the panel—for a combined alcohol and drug limit for certain controlled substances.

We all want all drug drivers who are a danger taken off the roads. We totally support the Government’s aims. However, we need to ensure that we are going after the right people. I hope that the Minister can give some assurances that he will look again to reassure himself and this House about the defence in this group of clauses for people on prescription medication, to ensure that it is appropriate and fair; that he will not shut the door on ensuring that the legislation hits the right note; and that he will take away the comments made today.

I hope that the Minister can answer my final question clearly. Can he confirm that the Government would not consider it appropriate for any action to be taken against those on prescribed medication, unless it is clear that their driving is impaired?

[Earl Attlee]

My Lords, I recognise that the amendments relate to concerns about the Government’s approach to drug-driving and, in particular, how the new offence will affect drivers who take prescription or over-the-counter medicines. I am grateful to the noble Baroness, Lady Smith, for her recognition of the problem. I will try as hard as I can to reassure the House that your Lordships’ fears will not materialise.

First, I emphasise that any passengers would not be screened for drugs following a vehicle being stopped by the police and the driver being tested for drugs. The noble Baroness asked me a number of very good questions, and I will answer them first, before going into detail. She asked, in effect, how much discretion a policeman has to arrest for drug-driving. Whether an officer decides to arrest and continue an investigation, including carrying out an evidential blood test, once someone has proved positive in a drug screening test, will depend on the facts of a particular case. Officers will be aware of the statutory defence of taking a specified controlled drug in accordance with medical advice and prescription.

As for the CPS, in reaching a decision as to which cases to prosecute, Crown prosecutors must take into account the Code for Crown Prosecutors. The code includes a requirement that prosecutors should swiftly stop cases where the public interest clearly does not require prosecution. I will return to that in a moment.

The noble Baroness also asked me about publication of the expert panel report. The expert panel is independent of government. It is important that it takes the time that it needs. Advising on which drugs the new offence should cover and on limits to set for driving purposes are complicated issues which require careful consideration. The expert panel has considered a wide range of drugs and has needed to reconcile the available evidence from the UK and abroad. This means that it has taken longer than we anticipated for the panel to report. The Government intend to publish a copy of the report of the expert panel on drug-driving as soon as we are able after the report is finalised. Of course, we will not proceed further with the secondary legislation until we have the expert panel’s report.

The noble Baroness also asked me about roadside drug tests. The Government expect roadside drug test equipment to be available in 2014, when we anticipate bringing the new offence into force. We would expect breath tests to be conducted first, as they are quicker and easier. We cannot speculate on how many tests would be taken, as that is an operational matter for the police.

--- Later in debate ---

[Baroness Smith of Basildon]

My Lords, I am sorry to intervene but I just want the noble Earl to clarify the point about the instructions. Proposed new Section 5A(3)(b) says that D, the person who has been arrested,

“took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributor of the drug”.

Is the Minister absolutely clear in his comments today that the doctor’s instructions with the drugs would always override any manufacturer’s instructions and that that would be a defence in law?

[Earl Attlee]

My Lords, as I understand it, the doctor’s instructions will trump the leaflet. If I am wrong on that I will write. Also, the leaflet normally refers to the doctor’s advice so the leaflet would give the trumping authority to the doctor.

The medical defence places what is known as an “evidential” burden on a person accused of committing the offence. This means that the accused person must simply put forward enough evidence to “raise an issue” regarding the defence that is worth consideration by the court, following which it is for the prosecution to prove beyond reasonable doubt that the defence cannot be relied on.

I know that the noble Baroness, Lady Smith, and my noble friend Lady Hamwee are concerned that a patient who inadvertently deviates slightly from the recommended dosage might be unable to rely on the medical defence. I want to reassure the House that the Government and the independent panel will take into account the normal therapeutic ranges for medication when considering what limits should be set for drugs. This will reduce the risk of patients who take medical drugs correctly being affected by this legislation. The panel will be well aware of the risks pointed out by my noble friend Lady Hamwee. I would also like to point out that in the terms of reference, term 6 is:

“To establish the likelihood of whether these concentrations would be exceeded through prescribed or otherwise legally obtained drugs (as distinct from illicit drugs)”.

A small minority of individuals taking long-term medication at elevated concentrations could be in excess of the specified limit for a particular drug, as was so well explained to the House by the noble Lord, Lord Walton of Detchant. In most cases such users would only come to notice if their driving is impaired—when they can be dealt with under the existing offence in Section 4 of the Road Traffic Act 1988—or for some other reason requiring police action. Another point to note is that the Code for Crown Prosecutors specifically states that prosecutors “should swiftly stop cases”, as I have already mentioned.

Furthermore, the Government expect that the courts will take a sensible approach to the operation of the new offence. For example, a defendant seeking to rely on the medical defence may be afforded more or less leeway depending on the facts of a particular case, such as the nature of the medical advice provided, including the wording of any leaflet accompanying the medicine.

Finally, in Amendment 118GA the noble Baroness, Lady Meacher, has also proposed that primary legislation should include requirements for testing to be reliable and for the Government to set limits that are linked to road safety. We do not consider it necessary to set these requirements in legislation. First, the preliminary testing devices currently being developed would undergo a rigorous type approval process before being used for enforcement purposes. This type approval process is so rigorous that it is taking some time to secure approval and I have raised this issue with my right honourable friend the Secretary of State because we need this equipment in operation. However, it is vital to the integrity of our system of justice that the courts can rely on the evidence of the new equipment. Furthermore, evidentially testing using blood or urine specimens is already carried out for the enforcement of the existing drink and drug-driving offences without any express requirement for the testing to be reliable.

Secondly, we are clear that the purpose of the new offence is to improve road safety, as I have already stressed, so careful consideration will be given to the advice received from the expert panel and to the responses to the public consultation before setting any specified limits and regulations. The regulations would then need to be specifically approved by Parliament using the affirmative procedure. The new offence is intended to enable more effective law enforcement and to improve road safety by deterring drug-impaired driving and bringing more drug-impaired drivers to justice. In light of the points I have raised I hope the noble Baroness, Lady Meacher, will agree to withdraw her amendment and that my noble friend Lady Hamwee and the noble Baroness, Lady Smith, will not press their amendments. I have been asked many detailed questions. Where I have not answered them I will write, and no doubt another place will look very carefully at these provisions.

[Baroness Meacher]

I thank the Minister for his response. I remain completely unconvinced that there is any logic at all in differentiating between controlled and uncontrolled drugs. I would submit that the North committee, to which the Minister referred, had no awareness of the incredible flood of new substances coming into this country. It is a vast number. There were 65 new substances this year, 49 last year and 41 the year before. That changes the entire environment within which we work and Ministers may come to regret the idea that this legislation should also fail to take account of those changes.

[Earl Attlee]

My Lords, we asked the expert panel to consider the drugs that we thought were causing a road safety problem but the last thing we said was that it should consider any other drugs that it thinks necessary.

[Baroness Meacher]

I know that noble Lords do not want me to take any more time because people need to move on. My only other small point is that the Minister referred to risk as being the main indicator of the need for action rather than impairment. I would suggest that the two are incredibly closely related. The importance of impairment is to avoid discrimination against certain groups and the stopping of drivers in particular communities when there may be no indication of an impairment of driving. It is those matters which we should be aware of. That said, at this stage anyway, I will withdraw the amendment although I may come back at Third Reading because we still await the outcome of the expert panel’s deliberations.

--- Later in debate ---

[Baroness Hamwee]

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

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

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

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

[Earl Attlee]

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

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

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

[Baroness Hamwee]

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

Crime and Courts Bill [HL]

Earl Attlee Excerpts

Tuesday 27th November 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, Amendment 1 in the first group looks at the governance of the National Crime Agency. The amendments remove responsibility for the direction and control of the National Crime Agency from the director-general. Instead, the NCA will be governed by a board with an independent chair, which will have responsibility for “strategic direction and control” of the agency.

[Earl Attlee]

My Lords, will noble Lords try to leave the Chamber quietly in order that we can hear the noble Baroness move her amendment?

[Baroness Smith of Basildon]

I am grateful to the noble Earl, Lord Attlee. The House has hushed immediately, such is his power of control. The point is about the governance arrangements of the National Crime Agency and the move in the direction of control from the director-general to a board. It would have an independent chair, which would have responsibility for “strategic direction and control”, and would be modelled on the existing governance structure of the Serious Organised Crime Agency. Obviously, the director-general has to be responsible for the exercise of the National Crime Agency’s operational and administrative functions. However, the line of accountability would be to the NCA board, which would retain the Secretary of State’s powers to appoint and dismiss the director-general, although that would be subject to a pre-appointment hearing by Parliament. The amendments also provide for police and crime commissioners and chief constables to be represented on the board. That would formalise and facilitate that partnership, which we believe is important, between the NCA and police forces.

Having reread the Minister’s comments in Committee —from a different Minister—after the debate, I found them somewhat unsatisfactory, which is why we have brought forward this amendment today. The Government are scrapping the corporate governance structure that existed for SOCA and are instigating top-down direction from the Secretary of State, despite the fact that the new agency will be designated a non-ministerial department, unlike SOCA, which was a non-departmental government body. As the Minister will be aware, non-ministerial departments—NMDs—are, as a rule, more independent of the Government than non-departmental government bodies. According to the Standard Note in the Library of the other place on the Public Bodies Bill, a body such as an NMD would normally,

“answer directly to Parliament on issues where it has been deemed appropriate to remove executive political interference”.

The note gives the examples of Ofgem and the UK Statistics Authority. The corporate governance structures of SOCA and the NPIA provide for a board headed by an independent chair, as does that of the new Financial Conduct Authority. HMRC, which the Government cite as a model for the NCA’s new designation, has a board whose remit is to develop and approve strategy and final business plans and to advise the chief executive on key appointments. Arguably, many of the problems of the embattled UK Border Agency, which we have just been discussing, could have been avoided had there been a board sitting between the chief executive and the Secretary of State, overseeing the functioning of the organisation.

There seems to be a contrast in that the Government’s vision of the National Crime Agency does not include a similar accountability structure. I understand—and I have to say this carefully—that the director-general will chair a non-statutory board, consisting of, we think, the senior officers, who are most likely to be the heads of the five different pillars of the NCA. I am being careful about saying that we understand that to be the case because we do not have the detail, which is not yet available. I know we will come to this debate later about the framework document and its detail, but it does hamper us somewhat in our discussions about the governance arrangements of the NCA.

The noble Lord, Lord Henley, said in Committee how important good governance is and then said, “We will set that out in the framework document”. That is for another debate, but we were promised a draft of the document and then an outline of the document to flesh out the detail. However, all we have got is a table of contents. If we look at what it says on the NCA management board, the heading is, “The NCA Management Board”, which is followed by bullet points and then sub-bullet points as follows:

“The Director General will establish and chair a Management Board … Description of the role of the Board ... Composition of the Board which will include … Ex officio members … Non-executive members”.

There is not much detail there at all.

A corporate board structure would preserve the agency’s operational independence but would retain the ultimate strategic oversight by, and accountability to, the Government. The NCA will be responsible for a huge range of operations: it has a far wider suite of functions than SOCA has. The role of the DG will be incredibly powerful and important. It seems quite crazy that there should not be an additional layer of scrutiny over the day-to-day operations, which is something that a management board, chaired by the director-general, cannot deliver or provide. The corporate board provides the other role of keeping the Home Secretary clear from direct operational control and oversight, and protects the Home Secretary from any accusation of political interference or control. Under the government model, the NCA will be governed by one all-powerful individual, the director-general, who reports directly to the Home Secretary. The Home Secretary in turn will authorise the director-general’s annual plan, which sets out the operational priorities. The Home Secretary will hire and fire the DG without reference to any other body and determine what operational powers the director-general would have.

--- Later in debate ---

Moved by

[Earl Attlee]

9: Schedule 1, page 38, line 29, at end insert—
“( ) Paragraph 12(1) does not apply to a member of a special police force who is an NCA officer by virtue of a secondment.
Secondments by NCA(1) The Director General may make arrangements for NCA officers to be seconded to a UK police force.
(2) An NCA officer who is seconded to a UK police force is, whilst on secondment, under the direction and control of the chief officer of the police force (but is not a member of the police force).”

[Earl Attlee]

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

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

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

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

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

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

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

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

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

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

[Baroness Hamwee]

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

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

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

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

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

--- Later in debate ---

[Earl Attlee]

The noble Baroness, Lady Smith, asked who else would compensate. I referred in my speech to a number of possible schemes but I think that it would be helpful if I wrote to the noble Baroness in full detail. Some inspiration has arrived: it will be for the National Crime Agency to determine the most appropriate way of ensuring that NCA specials are covered if they were to be injured or killed on duty. That may be through the Civil Service injury benefit scheme or—if the existing rules of that scheme do not allow adequate provision for individuals who may spend the majority of their time working for another employer—through a separate, tailor-made scheme. The Civil Service scheme, of course, is managed by the Cabinet Office. If I have any further details to add I will write to the noble Baroness.

The noble Baroness also asked how many staff are involved in these provisions. I would imagine that the numbers are fairly low. However, the provisions are precautionary in ensuring that we have sufficient flexibility to deal with any unexpected problems. Again, I will write with the details. The noble Baroness also teased me slightly about the transitional provisions and the funding thereof, but I am sure that she will accept that these are legal provisions to move from SOCA and CEOP to the new NCA.

I am grateful to my noble friend Lady Hamwee for explaining her two amendments, Amendments 57 and 58, to government Amendment 56. Amendment 57 relates to the Secretary of State’s power to determine any questions as to whether a particular function of a precursor body has been transferred and to whom it has been transferred. My noble friend questions whether this should be a role for Ministers or for the courts or, as she explained, for an employment tribunal. Schedule 8 already provides for transfer schemes to be made by the Secretary of State and the Bill provides for the abolition of SOCA and the NPIA. Therefore, in circumstances where there is any doubt, we consider it an administrative task to determine whether a particular function has been transferred from one body to another. This is not an area where we need to involve the courts. I would add that the Police Reform and Social Responsibility Act 2011 adopted a similar approach in relation to the continuity of functions exercised by police authorities when such functions transferred to police and crime commissioners.

I turn now to Amendment 58. It may help if I explain the effect of proposed new paragraph 5A(12) of Schedule 8 as inserted by government Amendment 56. Sub-paragraph (12)(a) is concerned with ensuring the continuity of things done by either SOCA or the NPIA once they are abolished and a successor body takes on the corresponding functions. Sub-paragraph (12)(b) is concerned with ensuring the continuity of things done by a third party where some of the functions of that third party are being taken over by the NCA. The language used in the drafting of these two paragraphs is a reflection of the fact that the NCA will take on functions corresponding to those undertaken by SOCA and in part by the NPIA, which are to be abolished. It will also assume some of the functions of the other third party precursor bodies which continue in being. With that explanation, I hope that my noble friend will be content not to press her amendment.

Amendment 9 agreed.

Moved by

[Earl Attlee]

10: Schedule 1, page 38, line 39, leave out from “prevent” to “the” in line 40 and insert “provision being made for—
(a) the reimbursement of”

--- Later in debate ---

[Earl Attlee]

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

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

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

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

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

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

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

[Baroness Hamwee]

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

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

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[Earl Attlee]

My Lords, I hope I can persuade my noble friend Lady Hamwee and the noble Lord, Lord Rosser, that these amendments are unnecessary. First, I will emphasise that the National Crime Agency will build on the policy of the Serious Organised Crime Agency, which is not to charge law enforcement partners for tasks, assistance and facilities unless agreed with partners beforehand; for example, in exceptional circumstances.

This means that law enforcement partners will have the opportunity to draw on the National Crime Agency’s specialist services, including investigative, overseas, cyber, forensic and civil recovery assets, free of charge. The National Crime Agency will make intelligence available to partners on a routine basis, which will result in more effective deployment of partner resources. For example, the National Crime Agency’s intelligence functions will ensure that multiple partners do not investigate the same criminals or gangs without being aware of each other’s activities.

--- Later in debate ---

[Baroness Hamwee]

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

[Earl Attlee]

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

[Baroness Hamwee]

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

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

--- Later in debate ---

[Baroness Hamwee]

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

“This Part of this Act”—

I will come back to those words in a moment—

“does not authorise or require”,

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

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

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

My second question concerns,

“This Part of this Act”.

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

[Earl Attlee]

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

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

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

Crime and Courts Bill [HL]

Earl Attlee Excerpts

Wednesday 20th June 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I had some interest in the amendment that the noble Baroness, Lady Hamwee, has proposed. There is some question mark over why there is discretion in this regard, and it would be helpful to hear from the Minister on that. The Minister will understand my concern that there is a growing acceptance these days that everybody has access to the internet and that everything can be obtained from the internet. A large number of people in our population do not have access to the internet. More than that, as the Minister knows, the Home Office website is extraordinarily difficult to access. So I would have great reluctance in seeing a measure go through that gives discretion to the Home Secretary to publish on a website that most people cannot access most of the time.

[Earl Attlee]

My Lords, the Government are committed to publishing the NCA framework document and annual report so that all those with an interest in the work of the agency have ready access to them. That is indeed the spirit intended. The provisions on publication in Schedule 2 are directed to that end. I assure my noble friend that there is nothing sinister in the words,

“in the manner which the Secretary of State considers appropriate”.

They are just a recognition of the fact that it must be for the Home Secretary and the director-general, as the publishers of the framework document and annual report respectively, to determine how best to publish these documents. It is only sensible that the person publishing the document should be empowered to choose the most appropriate means of doing so.

We would expect that, in practice, both documents will most likely be released via the NCA or Home Office website. My noble friend Lord Henley says that he will shortly be writing to the noble Baroness on problems with that website. Whether it is a good use of resources also to print and publish thousands of hard copies of these documents must be left to the judgment of the Home Office or the director-general, as the case may be.

With the assurance that we want these documents to be made freely available, I hope that my noble friend will feel able to withdraw these amendments.

[Baroness Hamwee]

My Lords, I shall certainly do so, but I have two comments. First, I thank the Minister for confirming the point about the spirit, which I am glad to have confirmed from the Dispatch Box. On another more general point, each Bill seems to be thicker than the last. A few years ago, it would have been adequate to say, “The Secretary of State shall publish a document”. Now we have to say, “The Secretary of State shall publish a document in the manner in which she deems to be appropriate”. The officials will understand why we probe some of these words more often than just from time to time.

[Lord Hunt of Chesterton]

I was a civil servant in the Met Office and used to visit other agencies. The variability in the publication of annual reports is quite extraordinary. A Minister visited the National Physical Laboratory and asked, “Why do you publish all these annual reports?”. I am glad to say that the Met Office continues to publish annual reports and they are still very valuable and people refer to them. Therefore, I was very surprised by the Minister’s insouciant response to this whole issue of the publication of reports. As the noble Baroness said, the relevant information is very unsatisfactory. Are the Government looking into this more broadly?

[Earl Attlee]

My Lords, in days of old there was only one way of publishing a report, which was in hard copy. Today we can publish on the internet. We can also issue a CD and issue hard copy on a limited circulation. The provisions in the Bill take account of the various ways of releasing the information without being too prescriptive.

[Baroness Hamwee]

My Lords, I do not think that I should take the time of the Committee by pursuing the issue but I suspect that the same question will come up more than once during the rest of this Session, as it comes up on almost every Bill. I am grateful to the Minister and beg leave to withdraw the amendment.

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[Lord Harris of Haringey]

I see the noble Earl, Lord Attlee, readying himself to answer on this amendment. Perhaps he can answer my simple question. We listened to the protestations of the noble Lord, Lord Henley, that the amendments that we just considered were completely unworkable because of the use of the word “must”, and that there would be circumstances in which urgent matters and urgent operational needs had to be dealt with. Why do we now find a clause in the schedule which says that before you can get the British Transport Police to do anything, the prior approval of the Secretary of State has to be obtained?

When the noble Earl reads his note, perhaps he could also say whether a fine distinction is being drawn between a direction and a request? If so, perhaps he could also tell us what is the status of the British Transport Police Authority. Does it have no say in the matter? Is it simply for the Secretary of State? I assume that we are here talking about the Secretary of State for Transport, although I understand that there is always a fiction in our legislative process whereby Secretaries of State are indivisible. I assume that, before a direction can be given, the Secretary of State for Transport must be found, diverted from whatever consideration she or he might be giving to high-speed rail, airports or whatever, and told that there is an urgent operational direction needed by the British Transport Police. How is that really meant to work?

[Earl Attlee]

My Lords, in responding to the amendment, I start by emphasising that in almost all cases, tasking will be voluntary, based on strong relationships and mutual co-operation, exploiting intelligence and building on existing arrangements. If not, surely something is going badly wrong, so of course such circumstances will be exceptional. In answer to the noble Lord, Lord Rosser, about “exceptional”, there are already strict legal tests in the Bill to prevent misuse of the directed tasking powers.

In order for the director-general of the agency to use those powers, a threefold test must be met. The performance of the task would be to assist the NCA to carry out its functions; it would need to be expedient for the directed body to perform the task; and satisfactory arrangements could not have been made, or made in time. A further safeguard is that the director-general must personally exercise the power and may delegate it in his absence only to a senior NCA officer, who would be nominated for the purpose. Directed assistance powers would also be subject to a threefold test. There would have to be a special need for that assistance; it would need to be expedient for the directed body to provide assistance; and voluntary assistance could not have been made, or made in time. In addition to that threefold test, any directed assistance to the NCA would require consent from the relevant Secretary of State. Separate arrangements are in place for Northern Ireland.

The noble Lord, Lord Harris, asked about the term “Secretary of State”. He will know very well that it is a legal term.

I was asked about the difference between tasking and assistance. “Tasking” means that the responsibility for the direction and control of the operation goes to the agency being tasked. Examples are that the NCA may task a specific police force to take the lead to disrupt a human-trafficking gang that is predominantly based in that force area but impacting across the UK, or that a police force could task the NCA, subject to the NCA’s agreement, to take the direction and control in an operation to disrupt that organised crime group’s overseas financial infrastructure by using its specialist cybercapabilities and overseas liaison officers. Under assistance, resources transfer from the operational command of one organisation to another. One example is that if a specific police force is faced with a local kidnapping case, the chief officer could maintain direction and control but request some assistance from the NCA’s specialist kidnapping unit. In the case of a co-ordinated day of national action against the smuggling of rhino horns, the NCA could request assistance from UKBA specialists on the Convention on International Trade in Endangered Species of Wild Fauna and Flora to assist with identifying seized ivory.

The powers in respect of directed tasking are a necessary and sensible backstop to enable the National Crime Agency to fulfil its role of ensuring that there is a co-ordinated national response to serious, organised and complex crime. In particular, directed powers could be vital in time-critical situations where arrangements need to be made quickly and there is not time to establish satisfactory voluntary arrangements. The question that the noble Lord, Lord Rosser, has quite reasonably posed is: why is it necessary for the Secretary of State to consent before the director-general can direct the British Transport Police to perform a task yet there is no equivalent consent requirement when one of the 43 territorial forces in England and Wales is subject to such a direction?

The British Transport Police is different from police forces in England and Wales for three reasons. First, it is not a Home Office police force but a special police force, ultimately accountable to the Secretary of State for Transport under the Railways and Transport Safety Act 2003. Secondly—

[Lord Harris of Haringey]

Can the noble Earl explain how that accountability differs from the accountability that a Home Office force has to the police and crime commissioner?

[Earl Attlee]

My Lords, I will go on to say that but what is particularly important is how the British Transport Police is funded. Secondly, unlike police forces in England and Wales, the British Transport Police has a national remit which includes jurisdiction across the railway network in England and Wales—and in Scotland, where policing in the latter is otherwise devolved to the Scottish Government. Thirdly, the British Transport Police is primarily contracted and funded by providers of railway services—the train operators and Network Rail—applying the “user pays” principle. Railway service providers are required to enter into a police services agreement with the British Transport Police as a condition of their licence to operate. Home Office forces have no such contractual or financial relationship with industry of day-to-day significance.

Taking into consideration these difficulties, a direction to the British Transport Police is so significant in regards to the potential impact on accountability, devolved policing arrangements with Scotland and arrangements with industry that it requires a Secretary of State to affirm that the issue is of sufficient national interest. I would also be very surprised if my right honourable friend the Secretary of State did not want to be aware that agreement could not be reached. It would be a very serious matter. On that basis, I hope that the noble Lord will be prepared to withdraw his amendment.

[Lord Berkeley]

While the noble Earl is quite right about the funding, if the direction to the British Transport Police involves large expenditure, will that come with a cheque or a commitment to pay the extra cost or is the industry to be expected to pay it?

[Earl Attlee]

My Lords, in all these arrangements assistance is quite often provided under the old pals Act and they do not worry about the expenditure. However, if specialist resources were required—perhaps a mobile crane or a digging machine—that extra expense would have to be recovered. It is inevitable that agreement would be reached. However, the British Transport Police would not have that sort of equipment available. It would normally be used to intercept someone on the transport network.

[Lord Harris of Haringey]

Perhaps the noble Earl could also address this point. I understand the point about the different funding arrangements for the British Transport Police, which is extremely significant, but the funding is therefore coming not from the Government but from the transport operating companies. Those companies are engaged through the British Transport Police Authority so why does this clause not therefore relate to that authority, to which the chief constable is accountable, where the funders, who may feel that they have an issue at stake, would be represented? Would that not be a better arrangement?

Perhaps the noble Earl will respond to the question about the terrifying cases of urgency that the noble Lord, Lord Henley, worried us with on the previous group of amendments. How are they going to be dealt with with this requirement for the prior approval of the Secretary of State?

[Earl Attlee]

My Lords, in a terrifying case of urgency, it is in my opinion inconceivable that the British Transport Police would not agree to assist.

In answer to the noble Lord’s question about the British Transport Police Authority, he is right to point out that the chief constable of the British Transport Police is accountable to the British Transport Police Authority in the same way that chief constables of police forces in England and Wales are accountable to their respective police and crime commissioners. However, in the case of a directed tasking to the British Transport Police, the Secretary of State for Transport is ultimately responsible for the security of passengers and staff on the national rail network and on underground and light-rail systems. It is therefore right that she should have the ability to consent to direct tasking of the British Transport Police at the national level aimed at tackling serious and organised crime.

Moreover, tasking by the National Crime Agency may need to take place in time-critical situations. Members of the British Transport Police Authority meet six times a year to set British Transport Police targets and to allocate funds for its budget. It may not be possible to clear consent with the British Transport Police Authority in time for the necessary executive action to take place. This is not to say that the British Transport Police Authority would not be notified by its chief constable of a direct tasking request. I have no doubt that the chief constable of the British Transport Police would notify the British Transport Police Authority of direct tasking as soon as it was feasible to do so. Noble Lords have not convinced me that a situation would arise where the British Transport Police would refuse to provide assistance voluntarily.

[Lord Rosser]

If the Minister believes that there are no circumstances in which the British Transport Police would fail to provide the assistance required, why does he need directions in the Bill at all on the basis that, presumably, any police force would provide the assistance required?

[Earl Attlee]

As I said, it is to provide a necessary backstop. When two negotiating parties know that one party will win at the end of the day, it is amazing how agreement is reached quite quickly.

[Lord Rosser]

I think the Minister has answered the point that I made. If he is arguing that about the British Transport Police, he does not need the provision in the Bill for any police force.

I want to clarify that I have understood correctly what has been said. What I have inferred—and I would be grateful if the Minister would confirm that I have understood it correctly—is that if the director-general makes a direction under Clause 5 that would require a chief officer of an England and Wales police force to perform a task, that direction does not require the consent of the Secretary of State, albeit that it would if it was in relation to the British Transport Police. Likewise, Schedule 3 provides that the director-general may,

“direct any of the following”,

including the chief officer of an England and Wales police force and the chief constable of the British Transport Police,

“to provide specified assistance to the NCA”.

While the approval of the Secretary of State would be required for a direction to a chief officer of an England and Wales police force, it would not be required for a direction to the chief constable of the British Transport Police. I simply want the Minister to clarify that I have understood what he said and that that is the distinction between Clause 5 and Schedule 3. I see the noble Lord, Lord Henley, nodding so I take it that what I have just said is a correct understanding of the position that the Minister explained.

I listened—frankly, I will wish to read it in Hansard—to the distinction between performing a task, which is referred to in Clause 5, and the director-general directing,

“any of the following to provide specified assistance to the NCA”.

Bear in mind that from the director-general’s point of view, if he can satisfy himself—or herself—that he requires a task to be performed by the chief officer of an England and Wales police force, he does not need the consent of the Secretary of State. Therefore, it might be quite tempting for a director-general to try to make sure that any direction that he gives comes under the heading of “performing a task”, rather than “providing specified assistance”. That is also what I have inferred from the Minister’s answer.

[Earl Attlee]

My Lords, I hope the noble Lord is not suggesting that the director-general would base an operational decision on bureaucratic convenience.

[Lord Rosser]

I am sure it would not be based on bureaucratic convenience. If he could satisfy himself that he was asking for a task to be performed, there would be less bureaucracy as he would not have to get the consent of the Secretary of State. Once again, I fear that there may be a view that there is a very clear divide between what could be defined as performing a task and what might be deemed to be providing specified assistance. I suspect that there will be grey areas over that in at least some cases.

I pointed out to the Minister that it was said at Second Reading that,

“the Bill provides that the director-general should, in exceptional circumstances, be able to direct police forces in England and Wales”.—[Official Report, 28/5/12; col. 974.]

I asked where in the Bill it says “exceptional circumstances”. I take it from the noble Earl’s answer that he agrees with me that the statement that the Bill provides for the director-general to be able to direct police forces in England and Wales in exceptional circumstances is not correct. Such wording does not appear in the Bill, although this was implied at Second Reading. In the light of that, I beg leave to withdraw the amendment.

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Moved by

[Earl Attlee]

37: Schedule 3, page 41, line 1, leave out from “force” to end of line 2

[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.

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Moved by

[Earl Attlee]

38: Schedule 3, page 41, line 14, leave out from “force” to end of line 15

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[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.

[Earl Attlee]

My Lords, I was referring to the Treasury guidance on managing public money.

[Baroness Hamwee]

Let us see how the Treasury website operates and whether we can get into it.

On Amendment 41, the noble Earl argued that what is provided in paragraph 29 is not on a case-by-case basis but is an overall principle. I do not read it like that, because paragraph 29 refers to a provision requiring,

“one person (“R”) to pay the appropriate amount to another person (“P”)”.

The only way in which I can construe that paragraph is that we are talking about the particular “R” and the particular “P”, not anyone who might come under “R” or “P” in a range of different situations. Perhaps that is something that we can seek to understand rather better after the Committee stage. I beg leave to withdraw Amendment 40.

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[Baroness Hamwee]

My Lords, I beg to move Amendment 58B. Paragraph 5 of Schedule 6 deals with the disclosure of information, and regulations that may cover disclosure. We are told at sub-paragraph (6) that:

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

My amendment would exclude from that modification or disapplication paragraph 1 of Schedule 7, which provides that,

“any disclosure, in contravention of any provisions of the Data Protection Act”,

or,

“prohibited by Part 1 of the Regulation of Investigatory Powers Act”,

is not authorised. I hope, and expect to be told by the Minister, that that is what Schedule 6 provides because of the way that it is drafted. However, that was not obvious to me when I read it, and therefore it seemed quite important to clarify the point.

[Earl Attlee]

My Lords, although I recognise the absolute importance of safeguarding the disclosure of sensitive personal information, I believe that Amendment 58B is unnecessary. The kinds of information that will be required for the purpose of an inspection will be limited in nature to those required for exercising an inspection function. The disclosure of information to a policing inspectorate, and any onward disclosure, will be subject to the safeguards in Schedule 7.

Schedule 6 contains a back-stop power that enables the Home Secretary, by regulations, to make further provision about the disclosure of information by the NCA to policing inspectorates. Although this includes a power to modify Schedule 7, should this be necessary to enable the proper, independent inspection of the NCA, it is not intended to use this power to override important existing statutory safeguards relating to sensitive personal data.

Furthermore, let me reassure my noble friend, it is not paragraph 1 of Schedule 7 that applies the extensive safeguards set out in the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, but those Acts themselves. This paragraph simply puts that beyond doubt. I will be clear that should any regulations be made governing the disclosure of information from the NCA to policing inspectorates and their onward disclosure of such information, those regulations cannot override these safeguards by modifying paragraph 1 of Schedule 7.

I hope that in the light of this explanation, my noble friend is satisfied that there will be adequate arrangements in place to independently inspect the agency that respect important data protection safeguards. I accordingly invite her to withdraw her amendments.

[Baroness Hamwee]

My Lords, I think I had better read that following today’s debate, because the noble Earl seemed to be saying that those two Acts could be not be overridden; but he started his explanation by saying that it was not intended to use the provision in Schedule 6 to override them. I do not quite understand how those two statements fit together. If they cannot be overridden, the Secretary of State could not intend to override them. However, that was not, as I heard it, the implication of the introduction when he said that it was not intended to use them in that way. Of course, I withdraw the amendment, but will also read what has been said and make sure that I am entirely comfortable with it.

Crime and Courts Bill [HL]

Earl Attlee Excerpts

Monday 18th June 2012 Lords Chamber

Moved by

[Earl Attlee]

14: Schedule 1, page 36, line 23, at end insert “or constable in the Police Service of Northern Ireland Reserve”

[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.

Amendment 14 agreed.

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[Earl Attlee]

My Lords, I am grateful to my noble friend for moving this amendment. I appreciate that she is keen to encourage the exchange of staff both to and from the National Crime Agency. Indeed, interchange in both directions will be key to ensuring that the NCA benefits from the collective experience of policing as well as sharing its knowledge and specialist skills with UK forces.

SOCA officers regularly operate alongside operational colleagues in the police service, and it is vital that NCA officers are able to do the same. It is for this reason that the Bill provides for police officers to be seconded to the NCA and to be designated with the powers of an NCA officer during the period of their secondment. Two-way assistance provisions in Schedule 3 allow for NCA officers to operate under the direction and control of the chief officer of a UK police force and vice versa. However, there may be some merit in providing separately for more formal arrangements whereby NCA officers could be seconded to a UK police force for a sustained period of time. This might allow forces to benefit from the experience of NCA officers on a longer-term attachment.

If my noble friend will agree to withdraw her amendment, I can undertake to consider the matter further in advance of Report. At this stage I cannot commit to bringing forward a government amendment, but I agree that we should explore this issue in more detail. I will, of course, write to her once we have reached a conclusion.

The noble Lord, Lord Rosser, asked me a few technical questions. I suspect that I will have to reply to some of them in writing. He asked whether any person can be seconded to the NCA. The answer is yes. There is no reason why any person could not be seconded. However, there must be clear arrangements for the use of powers. It is worth pointing out that a person can be an NCA officer, but various powers can be designated for that person. Of course, it is important that powers are designated only where the person is properly qualified to exercise those powers.

[Baroness Hamwee]

My Lords, the less I speak, the more concessions we get, and I am very grateful to the Minister for that. Of course I will seek to withdraw the amendment. When the noble Lord, Lord Rosser, was raising some perfectly valid questions, it seemed to me that the terminology of paragraph 13—that the director-general “may make arrangements”—was likely to cover qualifications and scope. “Make arrangements” is a pretty broad provision.

[Earl Attlee]

My Lords, on the need for qualifications, the director-general will want to be advised of the suitability of potential secondees. They will be treated as NCA officers and will need to satisfy the usual criteria in order to be designated with powers.

[Baroness Hamwee]

My Lords, I look forward to talking to the Minister further about secondment and I am grateful for his offer. I beg leave to withdraw the amendment.

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[Lord Thomas of Gresford]

I speak in support of this amendment. When I looked at it, I thought that I would not advise anybody to become a special in the National Crime Agency as not only do you not get paid but even if you are injured or killed in the course of your employment as a special, you get nothing other than compensation for salary. Therefore, if you are not a salaried person—for example, if you are self-employed—you get nothing. You get nothing for the injury itself. Presumably, the Government have in mind that you would sue somebody, whether it is themselves or the criminal concerned who caused the injury or death. Do they have in mind that a person should go to the Criminal Injuries Compensation Board to recover compensation? Putting in compensation for salary is so limiting that there must be some purpose behind that wording. I look forward to hearing it.

[Earl Attlee]

My Lords, I am grateful to my noble friend for moving her amendment. It is, of course, important that the National Crime Agency is able adequately to provide for the rare and very sad occasions when an NCA special is injured or killed in the line of duty. I would like to point out that when I joined the TA I did not know that I was going to be paid. I suddenly started receiving giro cheques when I was at school which were double the recommended term’s pocket money. I spent about 18 years in the TA as a junior NCO. If, sadly, I had been injured, I would have expected that a war pension would be paid on the basis of my rank, which stayed very junior for the first 18 years. Given the different status of NCA specials within the agency, the Bill expressly provides for the NCA to be able to pay sums by way of compensation for loss of salary in such an event. The details of that scheme will need to be drawn up over the coming months.

I suspect my noble friend will find that the inverse speaking time law applies to this amendment as well. She questioned whether the compensation should be limited to loss of salary alone. That is a fair question. An NCA special injured in the line of duty could, I accept, suffer other financial loss. If my noble friend would agree to withdraw her amendment, I should be happy to consider this point in more detail over the summer. At this stage, I cannot commit to bringing forward a government amendment on Report but I can certainly assure her that we will carefully consider the points she has raised and let her know the outcome of that consideration in advance of the next stage.

[Baroness Hamwee]

My Lords, the Government need have no fear that their schedule for getting through this Bill in Committee is in any danger, because I think that we will speak for briefer and briefer periods. I am grateful to the Minister and look forward to seeing how this goes. I beg leave to withdraw the amendment.

Protection of Freedoms Bill

Earl Attlee Excerpts

Wednesday 15th February 2012 Lords Chamber

[Baroness Massey of Darwen]

My Lords—

[Earl Attlee]

My Lords, it is traditional to allow the Bishops to go first.

[The Archbishop of York]

My Lords, I most warmly support the amendment and welcome the tripartite negotiations announced by the Minister. I hope that speed will be of the essence and that we shall be informed of the outcome before Third Reading. I hope that he will not simply say, “Further negotiations are going on. We hope to make some practical arrangements”. I hope that the noble Lord, Lord McColl, will not let go of the matter and will keep an eagle eye on the negotiations.

The objective of the Bill—the protection of freedoms —is deficient unless, as the noble Baroness, Lady Royall, said, it protects the freedoms and interests of the most vulnerable members of society. It is hard to think of a more vulnerable group than children who have been trafficked. It is bad enough imagining the distress of an adult who arrives in a foreign country alone and oppressed and has to contend with traffickers, the immigration authorities and the police. How much more traumatic and inhibiting it must be for a child to face the same challenge.

In this situation, children need to be supported and represented so that their best interests are safeguarded. The issue at stake is whether we rest content with minimal provision, as required by the EU directive, or whether we seek an effective and properly resourced system of advocacy. I for one would go for the latter: a better system of advocacy for the children. I do not find the phrase “legal advocate” difficult. “Guardian” would be quite difficult to understand, but I can see what a “legal advocate” might do. However, other people may think differently.

Our recent performance in losing 32 per cent of trafficked children in local authority care between 2007 and 2010 suggests that we need to raise our game. How can so many be lost? It is too huge a loss. We should seek a better way, as outlined in the UNICEF definition of the role of a guardian and the standards set out in the various international instruments.

The amendment offers us that better way. The provisions of the Children Act 1989 are good as far as they go, but they do not meet the special requirements of children who have been trafficked. The noble Lord’s amendment sets out the duties of a legal advocate with admirable clarity and provides for suitably qualified and trained people to fill that role. It has the advantage, by drawing on employees of statutory organisations or volunteers with specialist NGOs, of keeping extra costs down.

I am grateful, too, for Amendment 57A, because there was a fear, generated in the margins of your Lordships’ House, that Amendment 57 would provide an incentive for opportunistic and misguided parents to traffick their own children in order to gain entry into the United Kingdom. There was that fear and the new amendment deals with that. Again, I do not know on what evidence that fear rested, but for me it would still be wrong to fail to provide support for genuine child victims simply out of fear that unscrupulous parents might take advantage of the provision.

To return to Amendment 57A, I am personally not convinced of the Government's argument that the status quo is good enough. I do not think that it is. The noble Lord, Lord McColl, and his supporters have given us an opportunity to remedy a serious gap in our provision for victims of trafficking, particularly children. I thank him for that and urge that we seize the opportunity with both hands. I am grateful for the consultation that will take place. I hope that the Minister will assure us that he will not kick it into the long grass.