Crime and Courts Bill [HL]

Lord Alderdice Excerpts

Monday 18th June 2012 Lords Chamber

Moved by

[Lord Alderdice]

20: Clause 2, page 3, line 3, at end insert—
“(1A) If the order proposed by the Secretary of State would confer an NCA counter-terrorism function which applies to Northern Ireland, the Secretary of State must, before laying the order, consult and have due regard to the views of the First and Deputy First Ministers of Northern Ireland and the Minister for Justice of Northern Ireland.
(1B) Subsection (1A) does not limit Schedule 16.”

[Lord Alderdice]

My Lords, at Second Reading I raised a number of questions: for example, how it was possible in the context of Northern Ireland to deal with serious organised crime without having some counterterrorist function, given the involvement of so many paramilitary organisations in serious organised crime, and given the failure of SOCA to demonstrate a real advance with the Assets Recovery Agency and other predecessor functions; whether the NCA would be a real advance in dealing with serious and organised crime in Northern Ireland; and whether, given the Border Policing Command function, there had been direct consultations with the Department of Justice and Equality in the Republic of Ireland, with which we have our only land frontier within the United Kingdom. I was not hugely reassured by the responses that I had from my noble friends at that time, but the purpose of this probing amendment is to press on a different issue.

Its purpose is to clarify whether Her Majesty’s Government are content that they have the support of the Northern Ireland Executive for a legislative consent Motion, which will be necessary if the component of the Bill that refers to Northern Ireland is passed. My understanding is that at this stage the Executive have not even considered the question. There have been substantial discussions with the Minister for Justice. As I said at Second Reading, the Secretary of State, the right honourable Owen Paterson MP, has worked extremely hard with the Home Office and with Justice Minister David Ford to seek improvements to the Bill, and I think we have already seen evidence in government amendments that improvements have been made. However, the question is not simply whether Minister Ford is entirely satisfied but whether the First Minister and Deputy First Minister and their parties are satisfied, because, frankly, without their support a legislative consent Motion will not be forthcoming. The reason for my probing amendment is to press on this issue.

Frankly, I doubt whether Committee stage will be completed before the autumn, given the current timetable for the Executive, other things that happen at this time of year in Northern Ireland, the process of the Bill, and recesses and so on. However, we are proceeding with this Bill and its applications to Northern Ireland but we have not yet received clarification that there will be an upcoming legislative consent Motion. Given the sensitivities of the intelligence agencies and their involvement in Northern Ireland in dealing with serious organised crime and, even more particularly, with terrorist organisations in the past, I suspect that reassurances will be sought, perhaps in addition to those that have already been sought by Minister David Ford. Although my amendment is a modest one that refers simply to the consent of the Minister for Justice, the First Minister and Deputy First Minister, I should not be surprised if some reassurance of that kind were required before the Assembly passed a legislative consent Motion. I suspect that my noble friend the Minister will, with the advice of draftsmen, point out that I have indulged in a belt and braces exercise by asking for consultation and having due regard, because consultation is often considered in legislation as meaning “having due regard”. However, I think that more reassurance may be needed in Northern Ireland that the consultation means having due regard to the views of the First Minister and Deputy First Minister of Northern Ireland and the Minister for Justice.

As I said, this is a probing amendment because I want to hear from my noble friend whether the consultations have extended beyond the Minister for Justice and how far he has been assured that the Assembly will come forward with the necessary legislative consent Motion. I beg to move.

--- Later in debate ---

[Lord Henley]

My Lords, there are possibly two issues here. The first is the wider one on the order-making power in Clause 2, to which we will come later when we deal with whether the clause should stand part of the Bill. I trust that that will happen after we have broken for dinner, which may be convenient because I suspect that, in the light of the Constitution Committee’s report published today, it is a debate on which a number of noble Lords will want to speak and one on which we may want to take a reasonable amount of time.

The duty of the Home Secretary to consult Northern Ireland Ministers before laying before Parliament a draft order on counterterrorism functions is important. I hope that I can give some reassurance about the consultation that we are undertaking, who we have discussed these matters with and where we are at the moment. I am sure that my noble friend knows as much as I do about where this is with the Executive at the moment.

I recognise that the amendment seeks clarity on the relationship between the NCA and arrangements in Northern Ireland if a decision is made in the future—I stress if such a decision is made in the future—that the agency should have that counterterrorism function. That has been at the forefront of our consideration of these arrangements, not just for the order-making power but in relation to the agency as a whole, balancing the need for an effective United Kingdom response while respecting the important accountability arrangements for policing in Northern Ireland.

We recognise the particular sensitivities of the arrangements in Northern Ireland which is why in this clause we have already provided specific arrangements that recognise the responsibilities of the chief constable of the Police Service of Northern Ireland, who has operational responsibility for the police response to terrorism in Northern Ireland. It is absolutely vital that we are clear about the relationship between the NCA and the Police Service of Northern Ireland in the event that the agency were to take on the counterterrorism function. That is why Clause 2(2) provides such clarity by stipulating that the agency may carry out counterterrorism activities in Northern Ireland only,

“with the agreement of the Chief Constable of the Police Service of Northern Ireland”.

Furthermore, any draft order will be subject to the super affirmative process, which includes a requirement for the Home Secretary to consult those persons whom she considers will be affected by the draft order. Again, we will discuss that in somewhat greater detail when we get to Clause 2 stand part, which it would be appropriate to leave until after dinner, if everyone is happy with that suggestion.

Seeking clarity on the consultation requirement in relation to Northern Ireland is understandable and the broad nature of the consultation requirement in Schedule 16 could, of course, include the devolved Administrations—that applies to Scotland as much as it does to Northern Ireland—as well as operational partners, government departments and others. I do not think that we have a gap there.

As the House will be aware, under the terms of the Northern Ireland Act 1998, national security is an excepted matter and the National Crime Agency will be a reserved matter. A duty to consult on excepted and reserved matters therefore sits uncomfortably with the devolution settlement as it relates to counterterrorism matters. I recognise that counterterrorism policing in Northern Ireland cannot be divorced from the generality of policing which is, of course, a transferred matter. Indeed, the National Crime Agency itself will undertake a mix of reserved and devolved activity in relation to its serious and organised crime remit. That is why the provisions in Part 1 of the Bill will require the Northern Ireland Assembly to adopt a legislative consent Motion. That is also why there are provisions throughout the Bill which provide for the necessary checks and balances to reflect devolution at certain points. Obviously, there needs to be consultation with the Department of Justice in Northern Ireland.

I understand that the Justice Minister and the Justice Committee of the Assembly—I am sure that my noble friend knows as much as I do—have agreed in principle to take forward a legislative consent Motion, and officials in the Department for Justice in Northern Ireland are seeking to secure the agreement of the Executive Committee before proceeding to the next stage. Any legislative consent Motion needs to be adopted by the Assembly before the Bill reaches its last amending stage. Although things have not been proceeding quite as quickly as we might wish them to have done, since we know that the Bill is designed not to proceed as quickly as sometimes Ministers wish Bills to proceed and we will not complete the Committee stage until October, there is a considerable chance that we will get to that stage before the Bill gets on to the statute book.

I hope that my noble friend Lord Alderdice will accept that we are making progress. We will continue to do more and continue to discuss this with my right honourable friend the Secretary of State for Northern Ireland and others. We will carefully reflect on my noble friend’s points between now and Report, which will not happen until some time in late October or thereabouts.

I will quickly say a few words about Amendment 21. It seeks to limit the extent to which an order under Clause 2 may be amended or otherwise modified by the Crime and Courts Act and other enactments. I can give an assurance that Clause 2 is already limited purely to counterterrorism functions. While that is not restated expressly in subsection (4), the effect of that subsection when read with the clause as a whole is to limit the power to make amendments to primary legislation to those that are consequential on conferring counterterrorism functions on the National Crime Agency. Again, I suspect that that is a matter that we will discuss in greater detail when we come to the Clause 2 stand part debate. It was considered by the Delegated Powers and Regulatory Reform Committee. The committee made no recommendation in respect of that power in its report. In fact it went so far as to state that the idea of adding to a statutory body’s functions by subordinate legislation subject to parliamentary procedure is well established. I hope that my noble friend will feel that her Amendment 21 is therefore not necessary.

Going back to the original amendment of my noble friend Lord Alderdice, I hope that what I have said gives him the appropriate reassurance. We fully understand the sensitivities in this area and I hope that he will therefore feel able to withdraw his amendment on this occasion.

[Lord Alderdice]

My Lords, I am grateful to my noble friend. He said—I think I have the words correctly—that given that some of these powers were excepted matters, it sat uncomfortably to require the Home Secretary to consult a devolved institution. I understand that from a London perspective, but with regard to these very matters, the Good Friday agreement and the Anglo-Irish agreement require a sovereign Government to consult another sovereign Government about precisely these matters. That is something that sat uncomfortably with many people. I rather think on many issues that some people in Whitehall have not quite worked their way through to understanding what this really means. To me, the way things were presented not by my noble friend tonight but in the initial proposal for the Bill suggest a failure to understand the sensitivities and requirements under international treaty now to engage.

However, this is a probing amendment. I will read my noble friend's words carefully, but I think that he has spoken with considerable openness, candour and straightforwardness about the difficulties of finding our way through this issue. I am happy to withdraw the amendment at this point. I may find it necessary to come back to this question, not to create difficulties but for wholly the other reason of trying to assist the Government by pointing out issues that will be a problem down the road if they are not fully addressed. I have tried to give some kind of indication as to where they need to be addressed. I hope that I will not need to come back to this at a later stage and that the Government are successful in the difficult discussions to which my noble friend referred. At this point, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.