Crime and Courts Bill [HL]

Lord Berkeley Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Berkeley]

My Lords, first, I apologise to the House and to the Minister for popping out earlier to speak about sewage in the Moses Room, although I suppose I could rephrase that better by saying, “to speak in the Moses Room about sewage”.

I will make a few remarks this afternoon about border controls, in Part 3, and the problems that are being experienced, such as the delays faced by people coming into this country. It is interesting that the Bill contains three pages about the power of immigration officers but fails to address completely the fact that there are not enough of them. The latest news on Heathrow is that the MoD police have been drafted in, along with clerks—anyone to reduce queues—but I do not know whether they will have the powers conveyed on them by this Bill if it sees its way through both Houses.

The morale in the Immigration Service is said to be at rock bottom, which is really not very surprising when you have the combination of a 25% staff cut imposed by this Government and a requirement for all passengers to have a full check rather than using the risk-based approach. I suggest that one, two or even three hours of delays, as is reported, is pretty bad for business. I am talking not just about the operators, who I will come on to, but about those who do or want to do business in this country.

The Government argued that cutting the top rate of income tax was essential to keeping big business here. Other people have argued that a third runway at Heathrow is needed, otherwise the aircraft manufacturing businesses will all move to France, which has no traffic jams at its airports. I suggest that if the people to whom presumably these remarks are addressed are delayed by one, two or even three hours every time they come into this country, that is probably even more serious than where they set up their offices or the quality of life here. As for the reputation that we may well get if this happens before or during the Olympics, it is pretty worrying.

I give just three examples of where this seems to be going wrong. As I mentioned, at Heathrow, which has had the most publicity, BAA confirms, according to the Sunday Times yesterday, that the queues were up to three hours long at passport control in April. If you have just flown from Paris, Brussels or somewhere else within Europe that takes less than an hour, to be held up for another three hours is probably not very good.

Tony McMullin, the interim regional director of the border force’s northern region, says in an e-mail that attempts to send staff to cover at Heathrow, Stansted, Luton and Gatwick were,

“pretty shambolic and did not work”.

I hope he does not suffer the same face as his predecessor, Mr Brodie Clark, who quite rightly spoke out against the problems and had to resign. It clearly is not working and clearly needs more people.

The second example is Eurotunnel. I talked to someone from Eurotunnel the other day, and there was something in the media about a week ago about the queues of cars going into the terminal at Calais being so long that they were blocking the motorway. The French motorway police phoned the company and said, “We’re going to send everyone to Dunkirk or back to Paris unless you sort out the queues”. Eurotunnel’s only way of sorting out the queues is to send the trains off to the UK half empty, because the immigration people cannot process the people in the cars fast enough. If this went on, it would have a serious affect on Eurotunnel’s business. That is not the fault of the Immigration Service but of Ministers. Do they care? The same thing will probably happen to some of the airlines.

Finally, there is the question of Eurostar. There has been a lot of publicity about that recently. For many years, passengers from Brussels going to Lille were asked to go through British passport control in Brussels. They objected; why should they have to show their ID cards or passports when travelling between two Schengen countries? Our immigration people in Brussels put in something so that if you had a ticket to go to Lille you did not have to show your passport. Of course, pretty quickly those who wanted to come here illegally found that the best thing was to buy a ticket to Lille and stay on the train to get into this country.

Then the French Government threatened the British Government and Eurostar, saying that unless they sorted out this problem they could not run any trains at all, which was not very helpful either. Now, if you come to London, you have to show your passport in Brussels and then again in London. We are back to one or possibly two hours’ delay when you get to St Pancras: again, a problem if you have come for only a short time and were only on the train for an hour or something. It is also pretty irritating if you have taken a family for a couple of days to Euro Disney. I am told that 95% of the passengers on the Disney trains have British passports. These families with small children are still subjected to this one or two hour delay. That really is not right.

The Government have to come up with some solutions pretty quickly. Eurostar announced in the last day or two that it wants to run trains to Geneva, Frankfurt and Amsterdam. Are we going to have outposts of British immigration in every city that these trains want to stop at, checking people’s passports? That does not seem realistic. We have to come up with solutions. I have one or two to put to the Minister and the House.

One short-term solution is to go back to a risk-based solution by which those who are most likely to be in need of full passport control get it and the others can get through. Secondly, it is a minor detail but if every passenger has to stand behind a red line and then walk five or six yards to the immigration officer, that adds probably 25% to the processing time. Why must you have a line five yards away? Everything is done on a computer reader now. Frankly, one yard away would be perfectly all right.

The Government then have to staff-up to ensure that there is a maximum delay for travellers, except in an emergency. My first thought would be 15 minutes coming from the EU and 30 minutes from outside. This should be combined with a risk-based approach. I do not know how many noble Lords have been through immigration recently, but there are these iris scanners now. They actually take longer than the scanner that looks at your passport; they are both very slow. There must be a quicker way of doing that.

For the through-rains, the only solution, and a perfectly acceptable one, is to do the checks on the train between Lille and Ashford if the train stops at Ashford. You can have hand-held devices to look at passports and any other ID cards that you might need. The trains that Eurostar uses at the moment each have two jails. They are quite nice jails. They are aluminium-lined and with nice hooks so that if you are in handcuffs you can presumably be hooked up to the ceiling. That means that people cannot run away when the doors get opened at St Pancras, and they can be sent back on the next train.

I know that the Minister will reject my final suggestion, but what would really happen if we joined Schengen? Would it be all that different? Why do we go through all this? That is probably a step too far, but something has to be done. It is getting chaotic, and getting worse. We will look real idiots at the time of the Olympics. Besides the Olympics, there are people trying to go about their daily business who we want to live and work in this country. They are getting seriously put off. I look forward to the Minister’s comments when he comes to reply.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I thank the noble Lord, Lord Beecham, for that offer at the end. That is exactly how we wish to approach the Bill. I am grateful for the broad welcome that has come from all parts of the House about the thrust of the Bill and I recognise that, in a limited time, people are bound to raise the points that they do not like rather than emphasise the points that they do like.

The noble Lord was a little modest in his introduction. He is a very distinguished lawyer and, as he knows, I am not. In the two years I have been in this job, I have got used to saying very quickly to people, “I am not a lawyer”. I have now abandoned that mantra because my noble friend Lord Thomas of Gresford took me for lunch the other day with a very distinguished professor of law from the University of Yale. I used my usual defensive opening, “Well, I am not a lawyer”, and he leant forward and said, “Then I’ll speak very slowly”.

However, I share the view of the noble Lord, Lord Beecham, that we have benefited from a debate in which we have been able to hear a wide range of people with tremendous depth of experience about the issues under discussion. We have heard from some of our most distinguished judicial representatives: the noble and learned Lord, Lord Woolf, is a former Lord Chief Justice; my noble and learned friend Lord Mackay, is a former Lord Chancellor; the noble and learned Lord, Lord Lloyd, is a former Law Lord; and the noble and learned Baroness, Lady Butler-Sloss, was President of the Family Division. It is always a great pleasure to hear their contributions. I always have some mixed feelings about the interventions from my noble and learned friend Lord Mackay because he says things in such a gentle voice that I am convinced that he is on my side but at about two o'clock in the morning I wake up and realise that he has delivered the most devastating critique of what I was hoping to do. So I shall wait for that 2 am moment some time tomorrow morning.

This has been a very good debate. I fully take on board that we have a task in Committee to look at these proposals. Some of the issues that have been raised will have to be explained, debated and discussed, and how we propose to do things will have to be weighed against alternatives. That is certainly how my noble friend Lord Henley and I will take this forward. I would also like to put on record our thanks, particularly for Part 2 of the Bill, to the Constitution Committee for its contribution: a very timely report. With her usual courtesy, the noble Baroness, Lady Jay, explained to the House, and to me separately, why she could not be with us for the wind-ups tonight. I know that she will play a full part when we reach Committee.

I will try to cover a range of the issues raised during the debate. Although we will be returning to them all in Committee, it is right that I also try deal with them tonight. A large number of people—the noble Lords, Lord Ramsbotham, Lord Harris and Lord Prescott, and the noble Baronesses, Lady Smith and Lady Doocey—raised the question of whether there was an incipient conflict between the accountability of the PCCs and the National Crime Agency. I am not sure. I think that the best answer probably came from the noble Lord, Lord Dear, in his recognition that there will probably be a certain tension in these roles but not a destructive tension.

Somebody mentioned that there has been a debate since 1929 about how national and how local a police force should be. It is true that in this country we have had policing that has done both, but as fresh challenges have come up, successive Administrations have sought to create agencies that can meet the wider challenges that go beyond localism without losing the benefits of localism. I agree with the noble Lord, Lord Dear, that this is not a slippery slope towards an FBI. It will be a powerful agency, and again I hear what the noble Lord says about the importance of the power of direction if it is going to be effective. However, that is something that we can look at in Committee.

I move on to the powers of the director-general to direct a police force in England and Wales to perform a particular task, and whether that conflicts with the chief officer’s accountability to the local police and crime commissioner. The power of the director-general directly to task a police force will be a very limited backstop measure, used only when co-operative arrangements cannot be agreed on and where it is essential for the national effort against serious and organised crime that action is taken by that police force. This power does not cut across the responsibility of police and crime commissioners to hold their chief constables properly to account for the totality of policing in that force’s area, including tackling cross-boundary policing challenges such as organised crime, terrorism, public disorder, civil emergencies and cyberthreats. This includes the responsibility of police and crime commissioners to ensure that their chief constable co-operates effectively with the National Crime Agency.

Noble Lords asked whether this would be done within a reduced budget. We are clear that the National Crime Agency, like SOCA, will need to live within its spending review settlement, which will be based on the respective budgets of the precursor organisations. The agency will deliver more through its enhanced intelligence capability, capturing a single national picture of the threat presented by organised crime. It will also have more effective tasking and co-ordinating arrangements, enabling more effective prioritisation and smarter use of its own and others’ assets.

[Lord Berkeley]

The noble Lord twice mentioned organised crime. Will he explain what disorganised crime is?

[Lord McNally]

Not at 9.35 pm after six hours of debate. We will leave that for another day.

The noble Baronesses, Lady Hamwee and Lady Smith, asked whether CEOP would retain its identity. CEOP will keep its ability to create and maintain the innovative partnerships that are so valuable. It will keep its independent brand and multidisciplinary workforce, and it will have a ring-fenced budget, operational independence within the NCA and independent governance.

The noble Baroness, Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord McColl and Lord Dear, raised the question of human trafficking. The National Crime Agency will have a key role in building on the existing arrangements for tackling human trafficking by using its enhanced intelligence capabilities and co-ordinating functions to target organised criminal gangs involved in human trafficking, wherever they are. The UK Human Trafficking Centre will move into the National Crime Agency as part of the precursor transfer of the Serious Organised Crime Agency. This will ensure that human trafficking continues to receive the priority and attention that it deserves.

My noble friend Lord Alderdice raised the important and particular issue of how the National Crime Agency will operate in Northern Ireland. The NCA will be a UK-wide agency. In framing the provisions of the Bill and developing the operating model on the ground, we were acutely conscious of the fact that policing is devolved in Northern Ireland, and of the need to work with the grain of existing police arrangements. My right honourable friend the Home Secretary worked closely with the Minister of Justice, David Ford, to ensure that the legislative framework properly respects the devolution settlement. The provisions were designed not to interfere with the important accountability arrangements for policing in Northern Ireland. In accordance with the Sewel convention, it will be necessary for the Northern Ireland Assembly to agree a legislative consent Motion in respect of the provisions in Part 1 of the Bill. I am sure that the Assembly will debate the matter robustly, and we will welcome any proposals for strengthening the partnership working between the National Crime Agency and the Police Service of Northern Ireland.

The noble Baronesses, Lady Doocey, Lady Hamwee, Lady Harris and Lady Smith, and the noble Lords, Lord Dear and Lord Condon, raised the question of counterterrorism functions. We have made it very clear that decisions on the future of counterterrorism policing should not be taken until after the 2012 London Olympic and Paralympic Games, and after the NCA has been fully established. Only then will counterterrorism policing be considered, and decisions taken on what role the NCA might play. Without prejudice to any further decision on the issue, Clause 2 will enable the functions of the NCA to be extended by order to cover counterterrorism policing. Any such order would be subject to super-affirmative procedures to ensure full parliamentary scrutiny. I agree with the noble Lord, Lord Dear, that we do want any turf wars. Just as we will set an example in this House of constructive examination of the cases, I hope the various police authorities will do the same.

The noble Baroness, Lady Smith and my noble friend Lady Harris raised the question of whether the new agency will be exempt from the Freedom of Information Act. I am the Minister responsible for freedom of information and I have given this considerable thought. At the moment SOCA is covered by the Freedom of Information Act. The question I had to face was whether it was cleaner simply to make the larger body exempt. It is a matter that can be well examined in Committee. We are committed to making the National Crime Agency open, public-facing and transparent. Careful consideration was given to whether the National Crime Agency should be brought under the Freedom of Information Act, which was not the case with the Serious Organised Crime Agency. We want the public to have access to a wide range of information about what the agency is doing, how it is performing, its internal procedures and the latest assessment of the threat from organised crime. The measures in the Bill, such as a duty to publish information, will ensure that this happens. The National Crime Agency will handle large volumes of sensitive information, including intelligence material which could have a critical impact on national security. If the National Crime Agency were subject to the Freedom of Information Act, there is a risk that international and private-sector partners would be more reluctant to share information with the agency. Intelligence shows that organised criminals will seek to exploit any avenue, including freedom of information requests, to further their criminal activity. As I said, it was a matter of a judgment. I am very happy to revisit it in Committee. Perhaps when we do so, the Opposition could tell us why SOCA was exempt from the Freedom of Information Act and we could explore their thinking at that time. I suspect it was not very far from the thinking that we have gone through when looking at the setting-up of this agency.

The noble Baroness, Lady Smith, and the noble Lord, Lord Condon, asked about the National Policing Improvement Agency functions. The wind-down of the agency is well under way with some functions already transferred to the Home Office and others to the Serious Organised Crime Agency as an interim step to their new home in the National Crime Agency in 2013. A programme of further transfers to other successor organisations, such as the new police professional body and the new police information and communications technology company is being managed in conjunction with the National Policing Improvement Agency. My right honourable friend the Home Secretary has already set out the details of these transfers in two Written Ministerial Statements. The future destination of all remaining National Policing Improvement Agency functions will be announced in due course.

The noble and learned Lord, Lord Lloyd of Berwick, the noble and learned Baroness, Lady Butler-Sloss, the noble Lords, Lord Elystan-Morgan and Lord Ponsonby of Shulbrede, and my noble friends Lord Thomas of Gresford and Lord Dholakia asked about changes to the county and family courts. There is no secret agenda for further court closures. That is a separate issue that will be debated, discussed and decided on its merits at the time. In both cases this will give greater flexibility and efficiency, and in the main the practitioners involved in those courts have welcomed the move. I was particularly pleased to hear the endorsement that the noble and learned Baroness, Lady Butler-Sloss, felt able to give, although I suspect that, once again, we will examine this carefully in Committee.

An issue that is of concern to my noble friend Lord Dholakia and the noble Lord, Lord Ponsonby, as well as the noble and learned Baroness, Lady Butler-Sloss, is whether the role of magistrates will be diminished in the new single family court. I can assure noble Lords that the Government have no intention of diminishing the importance of magistrates in the family justice system. Magistrates will continue to play a vital role in the new family court, but on the specific question of whether a lay magistrate would sit alone in these cases, the answer is no.

There was a full and informed discussion on the merits of diversity. One of my tasks in the Ministry of Justice is to promote diversity. To a certain extent I accept the point made by my noble friend Lord Thomas that, particularly at the top end, the shape of our judiciary reflects the Bar of 30 years ago. However, I have said before from this Box that when people ask me what the biggest difference is on returning to Whitehall after a 30-year gap, it is that the Civil Service has managed to diversify in a most remarkable way over that period. Although I might have started life as a Fabian, I am not convinced that the inevitability of gradualness is going to produce the diverse judiciary that a 21st century functioning democracy deserves. I am in nothing but awe of both the intellectual calibre and the integrity of our judiciary. Wherever I go, I realise what a great national asset we have in it. However, I do not think that its merit cannot be produced from a more diverse source that better reflects our society.

I look forward to discussing these issues in Committee and I hope that we will see broad cross-party support in this House for what we are trying to do. We are not proceeding recklessly, rather we are building on some worthwhile reforms. We have listened to much of the advice given by the Constitution Committee and I think that we are on the right track. However, I also agree with a point that was made a number of times, which is that if we are going to get diversity, it is not a matter for government alone. The professions and the judiciary have to buy into it. The noble Baroness, Lady Neuberger, asked particularly about the Judicial Diversity Taskforce. The work of the taskforce on diversity is crucial and I can provide a reassurance that it will continue to drive progress in this area. I certainly made it clear when I became Minister that one of my priorities was attending meetings of the taskforce and making sure that we kept up the pressure and commitment from the various parts of the system that are recommended on that force.

The noble Baronesses, Lady Neuberger and Lady Prashar, and the noble and learned Lord, Lord Woolf, queried the involvement of the Lord Chancellor in the appointment process. Obviously, we will return to this. I have sat in on some of the discussions and it certainly is not any kind of power grab by the present Lord Chancellor. In fact, like me, he is rather an enthusiast for the separation of powers. In the discussions, the opinion came from a number of sources that the relationship between the President of the Supreme Court, the Lord Chief Justice and the Lord Chancellor was absolutely crucial to the effective working of justice and therefore making sure that they were a cohesive group was very important.

As has been pointed out, at the moment the Lord Chancellor has a veto, which is a pretty large intrusion into any selection process. In these proposals, that veto is dropped and he becomes one of a committee. It will be very interesting to tease this out in Committee. As the noble and learned Lord, Lord Woolf, will confirm, these are not only judicial offices but considerable administrative offices—perhaps they regret it—particularly for the Lord Chief Justice, and their relationships with the Executive and Parliament have to be managed properly to reflect the realities of those relationships. Looking over at the Cross Benches, I can see that noble Lords are keeping their powder dry for Committee.

The noble Lords, Lord Touhig and Lord Ponsonby, raised the issue of the enforcement of fines. The issue of fines enforcement and the vulnerable is important. Fines are a criminal sentence and taxpayers should not be subsidising those who deliberately avoid payment. Under our proposals, if the offender provides accurate means information at the outset of their engagement with the justice system and keeps to the payment plan set out by the court, enforcement action will not take place.

We heard a number of very interesting comments on court broadcasting from the noble Baroness, Lady Kennedy, and the noble and learned Lord, Lord Mackay, who is much influenced by Scottish experience. Again, let us have a good Committee session on that.

On community sentencing, I would make a virtue of the fact that it is only a holding clause at the moment. It is also an opportunity. We heard my noble friend Lady Linklater and the noble Lords, Lord Ramsbotham, Lord Judd and Lord Dholakia, eloquently putting the case for constructive community sentencing. We are in consultation; this is the opportunity to use that consultation to make that case.

On drug-driving, I draw the House’s attention to the fact that my noble friend Lord Attlee has been here throughout this debate precisely because he is going to cover those clauses in the Bill. He even whispered to me that if any noble Lords wished to nobble him and talk to him before that, he is ready to receive them.

It would only be fair if I said that we could leave other matters to Committee. I understand the concerns expressed by the noble Baroness, Lady Smith, and the noble Lord, Lord Judd, about family visa cases and, again, we will make our case in Committee.

On the timetable that the noble Lord, Lord Elystan-Morgan, asked about, I am afraid that I cannot help. The Bill will be the first steps in the reform of the family court. There are significant changes in store that will take some time to implement, so I cannot at this time give a timetable, but we will do so when we are able.

The noble Lord, Lord Henley, and I look forward to exploring these and other issues in Committee. I believe that this Bill will greatly enhance the national response to serious and organised crime while delivering a swift, more transparent and effective courts and tribunals system. I warmly commend it to the House.