Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Monday 25th June 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, this is mainly a probing amendment although not entirely given the complexity and variety of some of the issues involved and the fact that some of the functions of the National Policing Improvement Agency are being transferred before the Bill completes its passage. This short amendment covers a major issue and through it I seek to understand why the Government are proposing this course of action, what benefits arise from abolishing the National Policing Improvement Agency and dividing its functions up between various different agencies and organisations, and what problems need to be addressed in so doing. Even though a number of the functions have already been transferred in that some have gone to SOCA and will go to the NCA and others will go to the Home Office and to the new IT company, the Government need to provide their justification for believing that this is the best way forward. I still feel slightly puzzled by some of the decisions that have been taken around the National Policing Improvement Agency. They show a tendency on the part of the Government to shoot first and ask questions later. That has become a bit of a theme with the Government. We saw it with the health Bill, where actions were taken before the legislation had gone through Parliament, and we are seeing the same thing with this Bill.

The functions of the NPIA are crucial. When reading the history of these proposals, I was somewhat surprised to learn that so little detail had been made available when decisions were being taken. That was the case almost through to the very end of decisions being taken. I have still been unable to get absolute clarity on what is happening to the various functions of the National Police Improvement Agency, so I struggle to find out why decisions are taken when there is so little detail, and so little follow-up is available. On the functions of the NPIA, the organisation itself commented that it was established in part in response to a perception that,

“existing arrangements for delivering support to police forces and implementing national initiatives—in response to demands from disparate bodies—were inefficient, often mutually contradictory and inconsistent”.

Therefore a number of objectives were assigned to the NPIA:

“The identification, development and promulgation of good practice in policing; the provision to listed police forces of expert advice about, and expert assistance in connection with, operational and other policing matters; the identification and assessment of: opportunities for and threats to police forces … and the making of recommendations to the Secretary of State in the light of its assessment … the international sharing of understanding of policing issues”—

which again, has been very important to the police—

“the provision of support to listed police forces in connection with information technology, the procurement of goods, other property and services, and training and other personnel matters”—

and it ends with a catch-all:

“the doing of all such other things as are incidental or conducive to the attainment of any of the objects described above”.

However, in practice, it has brought a large number of responsibilities together: information services, including the fingerprint identification database; Airwave; automatic number plate recognition; the police national computer; police information infrastructure; the police national network; and the National DNA Database. There are also operational policing services such as the Missing Persons Bureau, the Crime Operational Support Unit and the Central Witness Bureau, as well as issues on people and development services: exams and assessment; the National Senior Careers Advisory Service and the Police Advisory Board. That is just a sample of the whole range of absolutely crucial and important functions undertaken by this organisation. It seems to me that the National Police Improvement Agency has successfully managed critical national infrastructure services. It pioneered the police national database and delivered value-for-money savings through its procurement services.

Why, then, did it have to go? What was the rationale behind it, that the Government thought that this organisation had to be abolished and started to dismantle it before the legislation has even gone through Parliament? As I looked through comments that Ministers have made, the Government said in 2010 that they would axe the NPIA as part of “streamlining the national landscape”, and that,

“now is the right time to phase out the NPIA, reviewing its role and how this translates into a streamlined national landscape”.

I am not sure that I understand what that means, because it seems that we will have fewer police bodies undertaking these functions, and yet we are seeing the creation of new bodies. It would be helpful if the Minister could correct me if I am wrong on this, but it appears that the functions will be allocated across four different bodies, three of which are completely new agencies: the National Crime Agency, NewCo—the new ICT company—the police professional body, and the Home Office. That is what I mean by shoot first and ask questions later.

I looked at the Select Committee evidence. It noted in its conclusions published in September 2011 that,

“from the little that is already known about the likely distribution of the National Policing Improvement Agency’s functions, phasing it out is unlikely to lead to fewer bodies in the national policing landscape, as Ministers had hoped. In this sense, the landscape will not be more streamlined as a result of its closure. However, there remains a possibility that the landscape—and thus, more importantly, the police service itself—may operate more effectively once those functions have been redistributed.”—

and the committee said that it explores this later in the report.

Involving more organisations to carry out the functions than did so originally is not streamlining. Perhaps it was about saving money. Was there a plan to save money and is that why the organisation was to be axed? I looked at the Government’s case for saving money and I found that to be flawed also. There is no doubt that the National Police Improvement Agency could be streamlined and made more efficient and effective—and it undertook that role itself. The NPIA has delivered £1 billion in savings for the police through ICT and procurement transformation; it has itself changed in the past two years and found £100 million of savings; and it has reduced its head count by 36%. Given the cuts that have already taken place and the way that the spoils are being divvied up, it is hard to understand—and there has to be uncertainty and legitimate concern over—the effect that the proposal will have on the future delivery of services. It would be helpful if the noble Lord, when he responds, can give some information and say why he is, I assume, assured that there will be no dilution of service or of quality of service.

One area that gives cause for concern is that roughly half the NPIA’s employees are destined for the new police professional body, which will also take on a large number of the NPIA’s existing functions. What is the justification for axing the agency? There is the cost involved and the potential loss of expertise that that brings with it. About 250 jobs, including posts involved in cost-effectiveness, are due to go, and the National Senior Careers Advisory Service is, I understand, due to be scrapped. There will not be that same kind of advisory service for the police that exists within the NPIA. The service is moving to NewCo, the new police ICT company, whose budget will be cut by £60 million by 2014-15. That creates enormous uncertainty for some of the critical infrastructure services that are provided.

I am sure that the Minister is aware that that has eroded morale within the NPIA. There is a huge morale issue. The staff have done their best and have gone out of their way to make cuts and savings and to create efficiencies; but the organisation is being abolished and some of the staff still do not know where they are going to go. I worry about the specialist staff who are being lost. There is also the great danger that this preoccupation with reorganisation and structural change has taken the focus away from delivering further technical innovations that have helped to reduce costs in the first place.

There is also the issue of timing. I checked what Ministers have said previously about whether the transfer of services will be completed in time. The Home Secretary said that the transfer of functions of the NPIA will be complete by the end of 2012—although originally she said that it would take place by spring 2012. I double-checked and a number of times back in June, the Minister for Police and Criminal Justice said that he believed in consulting “very carefully” with professionals, and that,

“we will shortly be announcing the broad direction of travel”—

even back in June 2011 he was still talking just about the broad direction of travel—

“in terms of where the functions that lie within the NPIA should land, and then further detail will be worked upon and consulted after that”.

The Minister was pressed on what “shortly” meant, and he said, “Before the Recess”. This is still ongoing. I now struggle to know how the new arrangements will be set up by the end of this year. Perhaps the noble Lord can give us some assurances on that, and say whether he believes that the timescale is currently on track.

I looked at what has happened regarding the police professional body, which will perform many of the crucial functions to be taken from the NPIA. No chief executive, no chair and no shadow board have been appointed. The Government have not provided the detail that is needed on how the new body is to be structured. I have to say to the noble Lord that if the Government fail to meet their self-imposed deadline—they chose it; it was not imposed from on high—there could be huge consequences for the service in loss of expertise, delay to service benefits, and the potential for the transitional costs of moving from the NPIA to the NCA, the police professional body, the Home Office or other new companies to be much more expensive if there is any further delay.

I would like the Minister, during today’s debate, to answer a number of questions which arise out of the clause, which would abolish the organisation. First, we need a justification for, an understanding of, the Government’s reasons for axing the NPIA. I appreciate the argument about savings, but I think that has been knocked back, because the NPIA has made its own savings. I understand the Government’s intention to streamline the landscape, as they put it, but I have already shown that the landscape has not been streamlined; in fact, it has grown. There must be some other justification or explanation for why the Government want to take this action. Also, is there an estimate of the savings that will be made by scrapping the NPIA? I do not include the savings that have been made already by the NPIA, or those in the pipeline, but only those made by the changes proposed in the Bill.

One thing I have struggled with—which I mentioned at Second Reading, and to which I hope the Minister can respond—is where all the functions are going. I have been trying to work out a master plan to show which functions go to this or that organisation. It seems that there may be some functions which fall through the colander. Can the Minister provide some kind of master plan, or at least tell us which of the functions of the NPIA will be scrapped as a result of its abolition? It is quite a confusing picture for anyone trying to track where functions are going, and what are the cost implications.

A number of police forces have raised the issue of whether there will be any additional funding burdens on local police forces as a result of the transfer of NPIA functions, in particular those functions that will not go to the police professional body, such as training and careers advice. If those have to be taken on by local police forces, that will incur a cost at a time when their budgets are being cut by 20%, far greater than the Chief Inspector of Constabulary recommended. There is a lot of concern among police forces that they will be asked to make up for some of these cuts and changes, and will not be able to do so.

Another point is the loss of expertise. What actions are the Government taking to prevent the loss of expertise as a result of this restructuring? What efforts have been made? Which posts have not been identified? Which posts have been identified as needed to retain skills? In this kind of restructuring it is always the case that people in skilled posts, who have been there a long time, may seek the opportunity to take early retirement, particularly if their future is uncertain. What efforts have been made to retain them and their skills?

Within the new professional policing body—which is not properly set up yet, and there are still some concerns about that—I gather there will be, within that body, another body called the chief constable’s council. We need to understand how that is going to work. How will it improve on the delivery of the existing services currently provided by the NPIA? Will there be some loss of quality, or is it not expected to undertake the range of functions that the NPIA undertakes? All those are crucial functions.

The final question is, how will the Government ensure that the 2012 deadline is met? Will there be another deadline and then another, as we have seen before? I struggle to understand how that deadline can be met, given that so little work has been done already.

As I said at the start, this is a small amendment, but it opens up many questions. It is an enormous cause for concern if the Government have not worked out the plans for what is happening. I would like the noble Lord to reassure me on some of those questions, including one I have not yet mentioned: the premises and the estate, and what will be undertaken with those. It would be helpful to have some answers as we move forward with the discussion on this. I beg to move.

[Lord Harris of Haringey]

My Lords, my noble friend talked about the Government shooting first and asking questions later. It seems that the decision to abolish the NPIA stemmed from the Government’s desire to be seen to be abolishing quangos of various sorts, irrespective of considering whether the quango was being effective. I do not say that the National Policing Improvement Agency was working as well as it might have, but that does not mean that our first step should be to abolish it. That is the approach of, “If it ain’t broke, take it to pieces anyway”.

--- Later in debate ---

I rather regret the tone of the questions of the noble Lord, Lord Harris, about some of these matters. He was very careful in his use of words but seemed to imply that Home Office civil servants were not capable of delivering in this area. I think that tone is regrettable but we are still looking at the long-term options for some of the technology and other matters in terms of that transfer in this area. I shall give way to the noble Lord.

[Lord Harris of Haringey]

I am sorry at the reluctance that comes into the noble Lord’s voice every time I stand up. I am grateful to him for the courtesy with which he gives way on every occasion. If it was the view of Government that for the new IT company to function effectively it had to have in its leadership a chief executive who was paid at a commercial rate to attract the degree of expertise necessary, which might be of the order of £500,000 a year, to negotiate those contracts better than existing police services do and presumably better than the NPIA is thought to do at the moment, how will that not be the same argument that applies for these infrastructure contracts which will go to the Home Office? I am assuming that the Home Office will not be able to pay those sorts of sums to attract the technical expertise which is thought necessary for the other contracts.

[Lord Henley]

The two matters are not related; the Home Office has the appropriate expertise to deal with these matters. I was regretting the tone of voice that the noble Lord carefully used to make it clear that he did not think that there was the appropriate expertise in the Home Office to deal with these matters. We believe that that expertise does exist.

I was about to deal with the issue of the new information communications technology company which will be owned and controlled by police and crime commissioners. It will be led and funded by its customers, who will determine the services it provides. It will be responsive to local operational needs, offering forces a route to better value for money and innovation in the delivery of police information technology services. The company will ensure a more efficient approach to police information and communications technology provision and aggregate demand to exploit the purchasing power of the police service to get a good deal for the taxpayer.

The police professional body will directly support police officers at all ranks and police staff to equip the service with the skills it needs to deliver effective crime-fighting in a challenging and what must be a leaner and more accountable environment. The body will ultimately be independent of the Home Office. It will have a powerful mandate to enable the service to implement the standards that it sets for training, development, skills and qualifications. Its core mission will be to support the fight against crime and safeguard the public by ensuring professionalism in policing.

The noble Baroness, Lady Smith, was also keen to discuss timing and allegations that we had not met our targets. I appreciate that this frequently happens and that there can be slippage. I have known this throughout my career. There have been a number of times when one has announced that something will come out later in the spring and “later in the spring” has turned out to be July. However, we are on track to transfer the functions of the NPIA by the end of 2012. We began a phased transition of functions last year, with the non-ICT procurement moving to the Home Office. In April 2012, the following functions moved to SOCA: the Central Witness Bureau, the National Missing Persons Bureau, serious crime analysis, the Specialist Operations Centre and crime operational support. Obviously, more needs to be done and there are challenges, but I am more than happy that we will reach the target and do that by the end of the year. If we have any further problems, no doubt we will be the first to let the House know.

The noble Baroness was worried that the transition from the NPIA risked a loss of expertise. Giving staff certainty about their future is key to retaining their expertise, of which we are very proud. That is why we have been making announcements about this for some time and will continue to do so. Again, we are on track to complete those functions by the end of 2012. As a result, the majority of the NPIA’s staff will transfer to its various successor bodies by December 2012. Any reduction in staffing levels will arise from the already agreed budget reductions, which were part of the 2010 spending review.

Having looked at timing, rationale and other matters, I hope I have answered most of the questions that the noble Baroness and others asked. Obviously, we will have to say more later, particularly about the future of Bramshill and Harperley and the police professional body. Announcements will be made at the appropriate time. I hope that the noble Baroness will now accept that the abolition of the NPIA is a necessary part of the changes that we are making and of the Bill. Now is not necessarily the time to revisit what has, in effect, been a long-standing commitment, ever since the first announcement by my right honourable friend. Given the advanced state of wind-down of the agency and the transfer of its functions, now is the time to press on with our reforms, instead of looking back. Therefore, I hope that the noble Baroness will feel able to withdraw her amendment.

Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, it is not very often that I agree with the noble Lord, Lord Thomas of Gresford; in fact, I try to make it a general principle to disagree with him. However, on this occasion he has put his finger on an extraordinary gap in the Bill, and I can only assume that Home Office Ministers do not have the courage of their convictions.

We spent many happy months debating the principle of electing police and crime commissioners and we were told what significant individuals they were going to be. They were going to hold to account the chief constable and police service for all that went on in their area. Now, under the arrangements in this Bill the director-general of the National Crime Agency can say to any chief constable, “I would like the following resource from you dedicated to a particular operation”, but there is no requirement at all to inform the elected police and crime commissioner about that. Surely at the very least there should be a recognition that the police and crime commissioner might consider this matter important.

I am not a candidate to be a police and crime commissioner, but if I were in some remote part of the country outside London and had run on an election campaign saying that I wanted to see the police of my county devoted to the rural villages, the town centres or whatever, and I then discovered that behind my back the director-general of the National Crime Agency had said to my chief constable, “We’ve got to have this chunk of your resources and use them for a particular operation”, I would find it extraordinary that I had not even been told that that was happening and that my position as the directly elected police and crime commissioner, with a remit from the people of my area, was being undermined. I assume that this is an error in the drafting of the Bill.

I thought that my noble friend Lord Rosser was extraordinarily generous to the government Front Bench in offering two or three arguments as to why these amendments might not be necessary. However, unless the Minister is prepared to stand up and say, “Yes, of course, this was a drafting error. We did intend that police and crime commissioners would be informed”, the Government will be undermining what was apparently a flagship policy for this Administration.

Why might such a provision not be included in the Bill? The suggestion that this is a potentially trivial and merely operational matter that should not worry the police and crime commissioner is, frankly, nonsense. These are precisely the sorts of issues that will exercise local communities. Some of your Lordships may remember that at the time of the riots and disturbances last August one chief constable, quite properly, responded to a request to send a substantial number of police officers to London in support of ensuring that the streets were under control only to find that there were then disturbances in his own patch. He was then subject to all sorts of criticisms for having agreed to release those officers. What would the position be in very similar circumstances, although perhaps not a visible riot, in which the director-general of the National Crime Agency requested the movement of police officers for a particular operation and that then left the force concerned short? The police and crime commissioner would have to justify that this had been allowed to happen, even though he had not been informed in advance that such a request had been made. What would happen if the police and crime commissioner took a different view from that of the chief constable about whether this request was reasonable or justifiable? This is not an ordinary operational decision by the chief constable. The chief constable is not deciding within the framework of what is going on in that area how to deploy his or her resources; it is a decision to deploy them and to take them out of that area. That is precisely the area where the police and crime commissioner may say, “I want all the resources of my force kept in this area”.

So what is the justification for not having these provisions in the Bill? I hope that the Minister will tell us that he will adopt the amendments of the noble Lord, Lord Rosser, and incorporate them in the Bill, if not today, on Report. If he is not prepared to say that, I hope that he will give us a real explanation and reaffirm that, as far as the Home Office is concerned, the police and crime commissioners really matter, otherwise we spent three or four months in this Chamber debating the police and crime commissioners for no purpose whatever. They will be elected officials with no significant function.

[Lord Henley]

My Lords, I wish to say how sad I am that the noble Lord, Lord Harris, will not be a candidate for a PCC. We understand that there is already a PCC for London and the noble Lord would have to move out of his own city in order to stand as a candidate. He might want to consider that in due course and I am sure that he would make a very fine PCC, should he wish to do so.

Sadly, I was not involved in what the noble Lord referred to as those happy months debating the Police Reform and Social Responsibility Act. I was then involved with another department but I was very grateful to my noble friends for the way in which they took that Bill through and discussed those matters.

The points put forward by the noble Lords, Lord Rosser and Lord Harris, and my noble friend Lord Thomas seem to imply a misunderstanding of the role of the PCCs and seem to suggest that PCCs should be involved in operational matters. I hope that I can explain why that will not be the case.

First, I shall speak about the policing protocol which was mentioned and which, I stress, has already been laid before Parliament. It outlines how the new policing governance arrangements established in the Police Reform and Social Responsibility Act will work and it clarifies the roles and responsibilities of police and crime commissioners, the Mayor’s Office for Policing and Crime in London, chief constables, police and crime panels and the London Assembly Police and Crime Panel. It outlines what those bodies are expected to do and how they are expected to work together to fight crime and to improve policing. It also underlines the Home Secretary’s role as being ultimately accountable to Parliament and charged with ensuring the maintenance of the Queen’s peace with all force areas, safeguarding the public and protecting our national borders and security.

I do not think that directed tasking by the director-general in anyway undermines the police and crime commissioners in fighting serious and organised crime. It is a shared concern for the NCA and the PCCs. The tasking to the NCA from a police force in England and Wales would be used to fight cross-boundary serious and organised crime which police forces and PCCs must already have regard to in strategic policing requirements.

I believe that the noble Lord, Lord Rosser, was right to draw attention to those voluntary tasking arrangements between the NCA, all United Kingdom police forces and other enforcement bodies. Those two-way tasking provisions closely reflect the operational reality of how police forces and law enforcement agencies already work together and are the central, but co-ordinating, efforts against serious and organised crime.

Amendment 34 places a duty on the director-general of the NCA to consult the relevant PCC, prior to requesting its chief constable to perform a task under the voluntary tasking arrangements.

I want to emphasise to the noble Lord that the NCA will have a key relationship with the PCC in the fight against serious and organised crime. For example, police and crime commissioners will be consulted when the agency determines its strategic priorities and an annual plan respectively.

However, the tasking—I emphasise that word—of police forces by the agency and the tasking of the agency by chief constables are operational matters, where command and control of an operation is transferred to the organisation being tasked. Given the operational nature of tasking, I am certainly not persuaded of the case for the consultation and notification requirements set out in Amendments 34 and 35 tabled by the noble Lord for debate today.

Placing a duty on the director-general of the National Crime Agency to consult the relevant PCC before entering into a voluntary tasking arrangement risks blurring the line between operational independence and political accountability.

Moreover, imposing such a duty could disrupt a time-critical operation. For example, the director-general of the agency may need to task a specific police force to take the lead on a time-sensitive interdiction, such as a stop, arrest or search, in a long-running operation. Although a duty to notify, as provided for in Amendment 35, is less objectionable, again I remain to be persuaded of the case for including this in the Bill for the same reasons. As I have previously outlined, tasking arrangements ought properly to be left to an operational determination rather than imposing a uniform obligation of notification in England and Wales, irrespective of the nature of the tasking request.

Tasking of the National Crime Agency may also need to take place in time-critical situations. For example, a chief constable may request the director-general of the agency urgently to take the lead on activity where a resident in their police area has been kidnapped and their location is unknown in the United Kingdom. Under such circumstances, there may be operational consequences if executive action were to be delayed because the relevant PCC could not be contacted or notified in time—the individual may not have been available, had their mobile turned off, or whatever. A whole host of reasons might have made that difficult.

That is not to say that a PCC would not be notified of a tasking request by their chief constable. I would expect that a chief constable would notify their PCC as soon as it was feasible, practical and sensible to do so, if not beforehand. But formal, statutory notification prior to every tasking request would not be appropriate.

I trust that the party opposite is as committed as are the Government to protecting the operational independence of the director-general of the agency and chief constables, and to ensuring that swift action can be taken during time-critical operations. On that basis, I hope that those explanations deal with the points that the noble Lord raised, and having listened to what I had to say, he will feel able to withdraw his amendment.

[Lord Harris of Haringey]

My Lords, I am slightly confused by the response from the noble Lord, Lord Henley. He implied that this group of amendments is designed to undermine the operational independence of the chief constable. But this is not about an operational decision. This is not saying that the police and crime commissioner must approve. It is simply saying that before making a request to use the resources that are properly the responsibility of that police and crime commissioner —the resources for which that police and crime commissioner is answerable to the public and the police and crime panel and so forth—as a minimum, the police and crime commissioner should be informed. This is not saying that the police and crime commissioner will then interfere in the operational judgment of the chief constable as to whether those resources can be released and what the implications of that are. Let us not pretend that this is not potentially hugely significant. As my noble friend Lord Rosser pointed out, there is nothing that prescribes the size or scale of these requests, so they could be enormously significant.

--- Later in debate ---

[Lord Henley]

The noble Lord protests too much. I will not go back to the various remarks he made about the police and crime commissioners. That is an argument that we had in another place—dare I say it, in another country—a long time ago. It has been dealt with. That is what Parliament has agreed.

[Lord Harris of Haringey]

My Lords—

[Lord Henley]

No, no, the noble Lord can intervene after I have dealt with the points about his amendment. The noble Lord objects to what is happening, and apparently supports Amendments 34 and 35. Interestingly, he did not put his name down to them, but that is possibly why he made a speech of that sort—because he knows that the amendments go too far. He knows perfectly well that the amendments say “must”, which is why I talked about time-sensitive problems and said that it was not appropriate that the director-general “must” always consult the police and crime commissioner or, in Amendment 35, that,

“a chief officer of a UK police force must notify the Police and Crime Commissioner”,

because these things are not practical in those circumstances. That is what I dealt with in the amendment and in my answer to the noble Lord, Lord Rosser, who will respond in due course.

We all welcome the chance to listen to the noble Lord, Lord Harris, yet again making one of the speeches that he no doubt made during the passage of the Bill, which sadly I was not able to take part in but which my noble friend dealt with so well. I hope that my explanation of why the word “must” is not appropriate in Amendments 34 and 35 is satisfactory and that the noble Lord, Lord Rosser, will feel able to withdraw his amendment, as I suggested earlier.

[Lord Harris of Haringey]

My Lords, I hesitate to correct the Minister, but if he checks back on the speeches I made during the Police Reform and Social Responsibility Bill when it was being considered in your Lordships’ House, he will see that I was not a particular supporter of the concept of police and crime commissioners. What I am doing today is fighting on their behalf for them to be given the information to enable them to do their job. They should be allowed to be the police and crime commissioners that the Conservative Party envisaged when it put this measure before Parliament.

If we are now being told that the only reason for rejecting this amendment is the word “must” because of the implications of urgency, as I said in my previous intervention, that is very easily remedied. If the noble Lord is saying that he is happy to table these amendments on Report with an urgency exclusion, obviously I cannot speak for the opposition Front Bench but I am sure we would think that progress had been made.

[Lord Henley]

My Lords, I am always happy to look at further amendments to amendments. Similarly, I am happy to think that one of the things I could do in the long summer months when the Olympics are on is read some of the noble Lord’s speeches on police and crime commissioners. Those will no doubt provide me with a great deal of pleasure and possibly put me to sleep. They will be great speeches and I will read them just as I will listen to the noble Lord.

What the noble Lord, Lord Rosser, does with his amendments is a matter for him. I was responding to the specific amendments that were put before me. The noble Lord, Lord Harris, can add his name, if he wishes, to the amendments that the noble Lord, Lord Rosser, might bring forward in due course.

--- Later in debate ---

[Lord Rosser]

My Lords, the amendment would delete the requirement on the director-general of the National Crime Agency to seek the consent of the Secretary of State before issuing a direction to the chief constable of the British Transport Police, as set out in Clause 5(9). There does not seem to be, in Clause 5, a similar requirement for the director-general to seek the consent of the Secretary of State to a direction to perform a task that is given to the chief officer of an England and Wales police force, as opposed to the chief constable of the British Transport Police.

Schedule 3(8) provides for the director-general of the National Crime Agency to direct, among others, a chief officer of an England and Wales police force, and the chief constable of the British Transport Police, to provide specified assistance to the National Crime Agency, subject to the appropriate consent being given to the direction—meaning that of the Secretary of State in relation to the chief officer of a police force. However, Schedule 3 appears to remain silent on whether the consent of the Secretary of State is required for the director-general of the National Crime Agency to give a direction to provide specified assistance to the chief constable of the British Transport Police—unless of course the chief constable of the British Transport Police is included within the reference to a “chief officer of” a “police force”.

I accept that we may not have correctly understood the wording in the parts of the Bill to which I have just referred. I am sure that if we have not, the Minister will point that out. However, if we have understood it correctly, can the Minister explain the significance or otherwise of the necessity for the director-general of the NCA to obtain the consent of the Secretary of State to give a direction only to the chief constable of the British Transport Police appearing in Clause 5, when that clause also deals with directions being given to the chief officer of an England and Wales police force; and the significance or otherwise of the necessity for the director-general of the National Crime Agency to obtain the consent of the Secretary of State to give a direction only to a chief officer of an England and Wales police force appearing in Schedule 3, when that schedule also deals with directions being given to the chief constable of the British Transport Police?

Why is the necessity for the director-general of the National Crime Agency to seek the consent of the Secretary of State to the giving of a direction to both a chief officer of an England and Wales police force, and the chief constable of the British Transport Police, not dealt with in the same place in the Bill, whether at Clause 5 or Schedule 3, instead of being split, as appears to be the case at present? I accept that Clause 5 and Schedule 3 may address different circumstances, hence the difference in wording. Such a distinction between Clause 5 and Schedule 3 does seem to be drawn in Part 5 of Schedule 3, addressing the issue of payments. No doubt the Minister will clarify the position in his reply.

Amendment 39 would remove the requirement for the consent of the Secretary of State to be given. The Minister’s response to these amendments may address some of the points we wish to raise under Amendment 39.

Finally, as we are dealing with the issue of directions being given by the director-general, the Minister 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. Can he tell us where in the Bill it states, “in exceptional circumstances”?

[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.

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[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.

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Debate on whether Clause 7, as amended, should stand part of the Bill.

[Lord Harris of Haringey]

My Lords, I seek clarity from the Minister. This is a genuine attempt to secure information. Clause 7(1) states:

“A person may disclose information to the NCA if the disclosure is made for the purposes of the exercise of any NCA function”.

I seek to clarify whether this is as broad a statement as I think it may be. Does it mean that any person may choose out of sheer devilment to ignore any other requirements to which they may be subject under the Data Protection Act or anything else to disclose information to the NCA because they think that it may be useful for the purposes of the exercise of its work? I am trying to get at who determines whether the disclosure is for the exercise of the NCA’s functions. Could I as a private individual who holds some privileged information decide that I think the NCA ought to be interested in the information because I think it relates to serious crime, and therefore I may decide to ignore the legal obligations on me not to disclose that information and pass it to the NCA? I could understand it if the wording was, “The NCA may require me to disclose the information because it is investigating something and gets the necessary permissions to override it”. I may be completely misinterpreting Clause 7(1) but I would be grateful for clarity on that point.

[Lord Henley]

I am sorry but I am slightly confused by the procedure that we are adopting. My understanding was that the noble Baroness, Lady Smith, was going to oppose the Question that Clause 7 stand part of the Bill. The noble Lord has intervened at this stage to ask a question about Clause 7. Does he want to wait for the general debate that we are going to have? However, the noble Baroness seems to be implying that there will not be a—

[Lord Harris of Haringey]

This is the debate. That is all you are getting.

[Lord Henley]

I am distraught. There I was expecting a major debate and the noble Lord asked me only about Clause 7(1), who the relevant person may be and whether it was any person. I would have thought the simplest way of dealing with this matter is the way that I was taught many years ago—the noble Lord, Lord Beecham, will remember this from when he first trained as a lawyer—namely, that you look at what the words on the face of the Bill say. We hope that the Bill will become an Act when we have finished dealing with it and it has gone through all its stages. The Bill states:

“A person may disclose information to the NCA if the disclosure is made for the purposes of the exercise of any NCA function”.

I would have thought that that is fairly straightforward. That is what the Bill says. My advice suggests that one need not go beyond that. The words “A person” imply that any person can disclose information to the NCA,

“if the disclosure is made for the purposes of the exercise of any NCA function”.

The noble Lord will now come back to me, because he always does, and I enjoy our debates. This statute is relatively simple to interpret. We know that that is not always the case and that great complications can arise in the interpretation of statutes. However, I should have thought that the words we are discussing are as simple as you can get.

[Lord Harris of Haringey]

My Lords, perhaps I did not make myself as clear as I should have done. If I am a data controller in an organisation and I have certain obligations placed on me not to disclose information, does Clause 7(1) override my normal duties as a data controller under the Data Protection Act and allow me to decide whether certain information looks as though it ought to fall within the remit of the NCA, and therefore enable me to disclose it to that body? That is my simple question and, even though I am trying to behave as though the words on the paper mean what they seem to mean, I am simply trying to understand whether this is as broad a “may” for the persons concerned as I think it is.

[Lord Henley]

I was probably not as clear as I ought to have been. Obviously, the persons would be subject to any other enactment, which would include, as the noble Lord said, the Data Protection Act. One could also mention the Regulation of Investigatory Powers Act 2000. They would be covered by the provisions of those Acts. The situation is as it states on the package, but subject to other statutory provisions.

[Lord Harris of Haringey]

I really do not wish to prolong this, unless the noble Baroness, Lady Hamwee, is about to explain what the words mean. What is the purpose of having this provision at all? If all that it is saying is that I, as an individual person, may do something that I am not prohibited from doing, what is the point of even putting it in the legislation in the first place? If the subsection is merely saying, “I have a bit of information that I am not prohibited from passing on, and I may decide to pass it to the NCA”, it seems to be completely unnecessary. It clearly means something, and I think that it means rather more than, “I can provide information without being constrained by, say, the Data Protection Act”. Unless the noble Baroness, Lady Hamwee, is going to provide some insight on this point, it may be something that the noble Lord can write to us about.

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[Lord Mackay of Clashfern]

My Lords, can my noble friend deal with the point about funding? At the moment, to what extent does CEOP get outside funding to help it with its work? What safeguard is there? Will CEOP continue to get that money for its work as a result of the Government’s proposals?

[Lord Harris of Haringey]

My Lords, when my noble friend Lady Smith introduced the amendment, she made it clear that there was not necessarily a desire to stick to the wording before us: rather, that what we are having at this stage is very much a probing discussion. All your Lordships in this Committee support the work done by CEOP and we all want to see it succeed. Given that the Government intend to put CEOP within the National Crime Agency—for which there are some very strong arguments in favour but also some arguments against—the question is how one preserves the integrity of CEOP’s work and makes sure that the work continues and is seen to continue.

The amendment is partly about safeguarding the funding streams, as well as the external funding, and it is partly about ensuring that the existing partnership structures with CEOP, which are reflected in the current board structure of CEOP, are continued. Although the wording of my noble friend’s amendment does not necessarily resolve all these issues, it gives us an opportunity to highlight the concerns.

The principles are clear: we want to see CEOP’s work continue; we want to see it protected; and we want to see the retention of the partnership structure, which involves not only bringing in resources from outside but ensuring that those who provide the resources have confidence that the public contribution is retained and remains transparent. We want to ensure that in the operation of the agency there is a genuine partnership that involves different parties working together to achieve a common end.

We look to the Minister for some account of how the benefits of that separate entity, which is currently CEOP, can be preserved within a new structure. This is not a new concept. The presence on the government Bench reminds me that we had a very similar debate about the creation of Healthwatch within the Care Quality Commission; and there, completely erroneously of course, the Government’s objective was to create something that was independent and that had its own income flow and governance structure that was different from the rest of the Care Quality Commission. Although I do not think that the solution that the Government adopted in that particular model was perfect, it demonstrates that a number of models are available that try to achieve the objective of preserving this continuing area of activity, preserving the partnership structure and preserving the funding and independence of that funding for the future. I hope that the Minister can respond in those terms.

[Lord Henley]

My Lords, again, I regret that I missed the debates on the Care Quality Commission. I shall spend the summer reading those as well as the other ones. In response to the speech from the noble Lord, Lord Harris, I make it clear that I fully understand that his noble friend’s amendment is probing and seeks reassurances about what CEOP does and how it works. I shall not dismiss it purely on the grounds of its wording, nor shall I say that it is merely a fantasy amendment because we do not yet have the NCA board that she was looking for, as that was dealt with at an earlier stage. I accept that this as a probing amendment and that there is a need for reassurances from me and the Government about the future of CEOP and what will happen under the new arrangements.

I pay tribute to the work of CEOP, which I saw when I visited it, as I am sure other noble Lords have done. We should all be very grateful that that child protection work will continue through the work of the agency. Since its creation, it has been a significant success story. It is important that I remind noble Lords that it has not previously had a statutory basis that is distinct from that of SOCA, and that has had no detrimental impact on its operational independence. It has worked perfectly well, and the six principles, to which I shall turn later, that underpin CEOP will continue to underpin it on the transition to the NCA.

Before I go through what I want to get on the record as an assurance, perhaps I may respond to my noble and learned friend Lord Mackay on the funding of CEOP and the fact that it can receive funds from outside sources. At the moment its existing funding model allows it to charge, for example, for training services that are provided mainly to the police, teachers and child protection workers and to raise income or support in kind through sponsorship and corporate arrangements. We certainly want those arrangements to continue with the NCA; there will be no change to that.

I assure the Committee that child protection will run throughout the National Crime Agency. CEOP will still exist as a part of that as a separate command within it, but we would not want to see it silo-ised—an inelegant word—within the department. It is important that its work runs throughout the agency. As well as building on CEOP’s existing role as the national centre dedicated to working with others to protect children from sexual exploitation and sexual abuse, the NCA will also be subject to a new statutory duty, which in essence is to safeguard and to promote the welfare of children. That means that the agency will give appropriate priority to children when it comes into contact with them and that it will share early concerns about the safety and welfare of children, ensuring preventive action before a crisis develops.

Those requirements will be part of the training that each and every NCA officer will receive. I emphasise the point that CEOP will be a separate command within the NCA; we do not want to see these matters silo-ised. Contrary to the noble Baroness’s amendment, it is imperative that the responsibility to discharge that duty remains with the whole of the National Crime Agency and not just with CEOP.

Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Monday 18th June 2012 Lords Chamber

[Lord Condon]

My Lords, I would not seek to challenge the architecture in the Bill for control and accountability, but it is not a question of all or nothing—there can remain clear direction and control by the director-general and clear accountability to the Home Secretary and onwards to Parliament. Nevertheless, I hope that the Minister will find ways to reassure your Lordships’ House and the wider public that in this day and age notions of good governance demand that there should be something more than just that naked architecture of the DG in control and the Home Secretary being accountable. It would be good to have reassurance around the notion of a management board, a supervisory board, an advisory board or some board mechanism that allows both stakeholder interest and independent voices to contribute to the health and well-being in the future of the NCA so that issues such as value for money, good governance, priorities and so on could somehow be part of a wider debate within that family than just between the DG and the Home Secretary. I understand that the Bill and this agency will deal with some of the most challenging criminal matters facing the country. Should terrorism subsequently also be transferred as a responsibility to the NCA, I understand that there must be very clear direction, control and accountability, but a committee-type model does not fit well with those demands. Nevertheless, there is ample scope for reassurance around the notion of a management board that involves stakeholders from the police service, the emerging police and crime commissioners, the wider local authority family and the business community. I hope that the Minister, today or subsequently, will be able to give us some reassurance that the Bill will be able to move us in that direction.

[Lord Harris of Haringey]

My Lords, I certainly do not want to fall into the trap of automatically accepting the Government’s architecture for these proposals. However, the amendment put forward by my noble friend does not necessarily undermine that architecture. The key point of this part of the proposed legislation is the creation of a new National Crime Agency. That is the key concept, and in this group of amendments we are dealing with some of the accountability mechanisms and the arrangements that will be put around the agency to ensure that its governance is of an appropriate and effective standard.

Let us be clear why this is important. The National Crime Agency, as proposed, will be a tremendously significant organisation. It will be responsible for ensuring that as a country we deal effectively with the most serious types of crime. In due course, it may be responsible for dealing with terrorism. This is not some minor government body; it is an extremely important part of the arrangements that we put in place to ensure that our citizens are properly protected against serious crime.

The other fundamental part of the architecture of the Bill, if you are wedded to that architecture, as no doubt the Minister is—no doubt we will come onto this in due course—are the provisions within the legislation that enable the director-general to require from police services around the country various things to happen. There is a potential power of direction—and certainly the expectation in terms of individual operations—that local police forces will work with the National Crime Agency to ensure that certain operations proceed. The relationship between the director-general and individual chief officers of police will be a fundamental one. That is precisely why, when we look at the governance structures and the arrangements that will be put around the director-general, we need to ensure that there are appropriate mechanisms for chief officers of police and those responsible for their governance, in terms of police and crime commissions, to be adequately represented within them.

The Government have to put forward a clear justification as to why this very lean approach to governance has been included in the Bill. As a number of your Lordships have already indicated in Committee, there is a virtue in having a proper governance structure, a group of non-executives and a group of individuals to whom the director-general must report or explain or expand on his or her proposals on how the agency goes forward. That is not to decry the direct accountability to the Home Secretary because it will be the Home Secretary who will, whatever is written into the Bill, have to answer to Parliament as to whether this new structure works. It supports that function and gives the Home Secretary reassurance that all the processes and procedures that any sensible Home Secretary would expect to be around the director-general are in place.

I am not suggesting that the Home Secretary is incapable of providing adequate supervision of the agency. I am simply saying that it is not necessarily the most effective or efficient way of doing it and that some board structure supporting that process is better and more likely to be successful. I have looked for precedents for this sort of one-to-one relationship between the Home Secretary and significant agencies. For 175 years the Home Secretary was the police authority for London and at the end of those 175 years the Metropolitan Police was so well governed, despite the excellent leadership at that stage provided by the noble Lord, Lord Condon, that it did not have a system in place—it was a £2 billion business at the time—for telling whether it had paid a bill more than once. I rather suspect that had the Home Office—I absolve previous Home Secretaries from day-to-day responsibility for this—been doing its job properly proper accountancy systems would have been installed within the organisation. However, the supervision of the Home Office and the Home Secretary was quite properly on the main policing issues, which would have been advised by the noble Lord, Lord Condon, and his predecessors as Commissioner of Police of the Metropolis. This was not about the way in which the organisation was run, administered or governed. That is the natural tendency. Home Secretaries are busy people. They have broad responsibilities. They are not going to be involved in day-to-day issues about the robustness or otherwise of governance structures. The history of the Metropolitan Police is not a sound precedent.

More recently we have the precedent of the border agency. Here, the opposite problem seems to have occurred. You seem to have a Home Secretary—perhaps successive Home Office Ministers would be a fairer way of putting it—who wanted certain things to happen and applied pressure on the border agency to do so. You then end up in arguments about what was said to whom by whom because of that one-to-one relationship. In all the fuss that there was a few months ago about whether certain expectations were being bypassed to let people into the country and remove queues, would it not have been better for there to have been a supervisory board between the Home Secretary and the chief executive of the border agency where there would have been a record, minutes, and perhaps an opportunity for dissent to be expressed? All that would be missing in the arrangements for the National Crime Agency, which raises the question of whether we are not in danger of creating a structure where the Home Secretary has too much of a role in respect of a policing body.

In this country, we have always expressed real concern about politicians having direct operational control of policing. That is part of the reason why there was a little bit of debate about the creation of police and crime commissioners, but that debate has moved on and we are now well into the process with the Labour Party having today announced a selection of candidates for those positions that includes my noble friend Lord Prescott. The Labour Party will clearly have an excellent set of candidates and we wait to see whether the Conservative list will be quite as exciting or interesting. The reason that there was some concern about that and there is even more concern about a national agency directly under the control of a single politician is the danger that that power is abused. I am certainly not accusing the present Home Secretary of having any desire to abuse that power. I am simply saying that we are creating a structure where such an abuse is possible and that it might happen in future.

Imagine occasions when there is a considerable threat from some organised crime group or a terrorist organisation, if that is the direction that the new agency goes in, and it is the responsibility of the Home Secretary to direct what the agency should do. The guarantees in the Bill for operational independence do not amount to very much in those circumstances. There is no place for control freakery here. This has to be about a proper system of governance. In a few years’ time, I would not want people to be making all sorts of sinister connections between policing operations that happen under the auspices of the National Crime Agency and saying that there are sinister implications that they have been personally directed or required by the Home Secretary, but that is the danger of the governance model that the Government have created.

My final point returns to what I mentioned in passing earlier. A critical part of this new agency will be the ability of the National Crime Agency to say that it wants local police forces to carry out or collaborate on particular operations. The danger of having a National Crime Agency that is divorced from the rest of the police structure is very real. I recall the discussions that took place over several years to try to get a system that worked on counterterrorism with primacy for one force and the ability to make operations happen across the country. It was not an easy process. The Government are making it more difficult for the director-general of the National Crime Agency if there are not police and crime commissioners or chief officers of police playing an active part in the governance of this new organisation. If they are there, if they are around the table and able to say, “This is a better way of doing that”, or to encourage the director-general to do things in a way that ensures their collaboration, that is surely going to mean that it is more likely that this new agency will succeed.

My noble friend’s amendments, which address precisely those points, are very welcome. There is a slight drafting error in that they make no reference to London, but I am sure that could be adjusted when we return to this at a later stage. The key issue that the Minister has to explain today is why this particular governance model has been put forward and why it is genuinely an improvement on a supervisory board which involves, for example, chief officers of police and police and crime commissioners.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I hope that in due course I will be able to answer those points, in particular those final questions from the noble Lord, Lord Harris. I begin, though, with two points. First, my noble friend Lady Hamwee referred to “architecture”. I think that the noble Lord, Lord Condon, and the noble Lord, Lord Harris, also used that word. My noble friend did not particularly like the term and I agree with her. I find it inelegant, but as a form of shorthand, it is quite useful on this occasion. Therefore, I suspect that architecture is something that might be referred to. Secondly, I make a brief apology to my noble friend about the website.

I was discussing the Home Office website with the noble Baroness, Lady Smith, earlier during the Division that took place. We have had some problems with the Home Office website. This is true of other government departments, all of which have been targeted. I hope to write to the noble Baroness in due course and I am more than happy to copy my letter about the problems we are having with the website to my noble friend Lady Hamwee. It can be difficult for all noble Lords if, in trying to discover what the Home Office is doing—or any other department for that matter—they cannot get into our website. Obviously, that is the means on every occasion by which we learn what is going on. There have been problems and we hope to address them. Perhaps for the first of many times, I give way to the noble Lord.

[Lord Harris of Haringey]

My Lords, since the Minister raises the issue of the website, I believe that the Home Office’s explanation of why booklets will not be issued about the election of police and crime commissioners is that people will be able to access the information about candidates from the website. When the Minister writes to my noble friend, what reassurances will he give that the elections will not be interfered with by the same sort of malign intervention on his website?

--- Later in debate ---

[Baroness Hamwee]

My Lords, before the noble Baroness tells the House what she proposes to do with her amendment, perhaps I may raise with the Minister the way in which references to the framework document are set out in Schedule 2. We are told that the document will deal with ways in which the NCA is to operate, including how it,

“is to be administered (including governance and finances)”.

No doubt the Minister and his officials will consider further the points that have been made today—I am by no means certain what should happen after this stage on this issue—and at least they will consider whether the term “administered” covers the issues of governance which noble Lords have raised. To me, governance is not something which is included in administration; it is an issue on its own. To include it within administration downgrades its importance.

[Lord Harris of Haringey]

Before my noble friend responds to the debate, perhaps the Minister will also tell us precisely when we are likely to have this framework document. Clearly, he is saying, “Don’t worry your heads about the governance arrangements because when you see the framework document you will be entirely satisfied and it will all be all right. Therefore, this amendment is unnecessary.”. We are in Committee and have not yet seen the framework document. The Government announced their intention to create a national crime agency nearly two years ago, so it is quite extraordinary that this fundamental piece of the jigsaw is not available to us. It would be very helpful to have it.

Incidentally, while the noble Lord was speaking, I checked on the Food Standards Agency. As far as I can see, it has a fully functioning board; I believe that the noble Lord, Lord Rooker, is its chair rather than the head of the agency, but that is a mere detail.

--- Later in debate ---

[Lord Harris of Haringey]

My Lords, we are all grateful to the noble Lord, Lord McColl, for introducing the subject of child trafficking into the Committee today. One reason why it is so important that we look at what should or should not be written into the Bill about child trafficking, human trafficking, child exploitation and so on is the concern that there will be, from those who are concerned with these issues, that somehow these matters will get lost in the new National Crime Agency. I recall the concern expressed when SOCA was set up about what was to happen to the high-tech crime unit. It appeared to disappear completely. Because that unit had disappeared into the new agency, it was not apparent to those who had been working with it whether those activities were still continuing as time went on. There is a very real concern that some of these issues about child exploitation, human trafficking and so on may disappear or not be given the same priority.

Part of that comes back to what I suspect may not be included in this much vaunted framework document, which is: what governance and external-facing relationships is the National Crime Agency going to have? CEOP, for example, has a highly regarded partnership structure that relates to other organisations which are active in the field. It relates to those technology companies and to all sorts of organisations which need to work with it to help deal with child online exploitation. The danger is that unless we are told explicitly that these activities will carry on and that those relationships with external agencies will continue, some of them will disappear. There is a real fear about some of these activities and relationships as far as CEOP is concerned, which is why we are seeing amendments such as the one before us that are trying to pin down what the responsibilities will be on issues such as trafficking and child exploitation. I hope that the Minister can give us some reassurance that these issues will be dealt with explicitly in the framework document, so that we can be reassured that the National Crime Agency will continue to have robust external relationships on this range of issues.

[Lord Rosser]

My Lords, the noble Lord, Lord McColl of Dulwich, has long championed the issue of child victims of human trafficking, having had, I believe, a Private Member’s Bill in the last Session and an amendment to the Protection of Freedoms Bill to introduce a system of guardians for child victims who enter the system. His amendments today, however, relate to including in the NCA’s statutory functions a duty to fulfil the requirements of the EU directive on human trafficking. They also provide that the functions of the National Crime Agency would include the functions of the UK Human Trafficking Centre and of CEOP. We support this group of amendments as a means of strengthening the requirement on the Government to implement the directive fully and of providing clear roles and responsibilities for the NCA on trafficking, including child trafficking, since there is a serious problem that needs to be addressed, as the noble Lord and others have said.

The Home Office has itself acknowledged that some 32% of child victims went missing from care between 2005 and 2009, with many being abducted back by their traffickers. The guardians system, which was the subject of the amendment tabled to the Protection of Freedoms Bill, is advocated by UNICEF and leading children’s charities as a means of ensuring continuity of care and continuous oversight of trafficked children who have been taken into care by the state. At the Report stage of the Protection of Freedoms Bill, as I recollect it, the noble Lord, Lord McColl, did not move his amendment, which would have placed a duty on the Secretary of State to introduce the guardians system for child victims of human trafficking, because of assurances that the noble Lord, Lord Henley, gave that the Government would commission a report by the Children’s Commissioner into ways to improve retention of child victims in care.

As has been said, this is a particularly topical issue as the Children’s Minister has accepted that the system is failing in preventing children in care going missing, as revealed in the report published today by the All-Party Group on Runaway and Missing Children and Adults, to which the noble and learned Baroness, Lady Butler-Sloss, has already referred. Its report stated that vulnerable young people are being systematically let down. The Children’s Minister has, I believe, promised urgent action to address the problems that have been identified. It seems that there are big discrepancies between police and Department for Education figures, as has already been said. The DfE last year said that 930 children went missing, whereas the police estimate that 10,000 children in care went missing. We need accurate and reliable figures, since going missing is regarded as a key indicator that children are open to the risk of abuse. Indeed, one of the main reasons that the all-party group felt led to children running away was that 46% of children in children’s homes were placed away from their home town.

Considering today’s report by the all-party group and statement by the Children’s Minister that children are being “systematically let down” by the care system in failing to prevent them going missing, are the Government going to introduce a system of guardians or legal advocates for child victims of human trafficking, who are among the most vulnerable children in our care? The Government declined to accept the amendment to introduce guardians for child victims of human trafficking at Report on the Protection of Freedoms Bill, which is now of course an Act. Instead, they said that they would commission a report from the Children’s Commissioner to investigate measures to mitigate the number of trafficked children who go missing from care. When will the Children’s Commissioner actually report, and what steps are the Government intending to take in the mean time to protect these children and reduce the substantial number who go missing from care?

There is also the question of how this Bill and its provisions will help to address the situation that many of your Lordships have so eloquently identified already in this debate. Under this Bill, the National Crime Agency absorbs the Child Exploitation and Online Protection Centre. Can the Minister spell out how the Government believe that this will improve the situation? How will CEOP retain its own identity and operational independence and what assurances can the Government give that its integration into the National Crime Agency will not adversely affect its ability to protect children or to continue its multiagency approach, which might be put at risk if the National Crime Agency were seen as primarily a policing organisation? Which areas will CEOP continue to lead on in future in relation to trafficked and missing children and will there, as has already been asked, be any split of related functions in this area within the National Crime Agency that might lead to some cases falling between two stools, or rather between two agencies or organisations?

I repeat that we support these amendments and I very much hope that in his reply the Minister will be able to address the many points that have been raised.

Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, I should declare my interests as chair of the Audit Panel for the Metropolitan Police and the Mayor’s Office for Policing and Crime, and as an adviser to KPMG, Airwave Solutions, Lockheed Martin UK and a number of other companies that provide services to police forces around the country. It is a privilege to follow the noble Lord, Lord Condon, in the debate. I, too, want to speak primarily about Part 1 and the new National Crime Agency.

The Government’s intention to create a National Crime Agency has been known about for almost two years. However, we have yet to hear a clear explanation of what the problem is with the existing arrangements that these changes are required to fix. I am sure that the Government’s policy is, “If it ain’t broke, don’t fix it”, but perhaps it goes a bit further than that by saying, “Even if it doesn’t need fixing, take it to pieces anyway”, because we are not at all clear about which problems will be solved by these reorganisations. Given that the Government’s intentions have been clear for the past two years, we have to ask what has been going on during that period. We still do not have a definitive version of the strategic policing requirement, and we do not see any sign of the NCA framework document, even in draft, although it is pivotal to understanding how the new arrangements will work.

My understanding is that, because of this pending reorganisation, senior people in SOCA and the other agencies have spent the past two years sitting in meetings arguing with officials from the Home Office and other bodies rather than devoting themselves to their main purpose, which is that of fighting serious and organised crime. But all the meetings that have taken place over the past two years seem to have failed to produce anything definitive on how the new arrangements are supposed to work. What we are told about the likely organisational structure suggests that we are going to have a series of silos that are spatchcocked together. If that is all it is, frankly it is not clear why the reorganisation is better than a general injunction on the different organisations that currently exist to work together better. Moreover, there remains a lack of clarity about one of the central issues as to how the agency is going to work—a lack of clarity about the powers of tasking and co-ordination, whether voluntary or mandated.

We spent many happy months in your Lordships’ House discussing the Police Reform and Social Responsibility Act. That Act clearly states, as does the policing protocol, that elected police and crime commissioners are responsible for the totality of policing within their jurisdiction and that they alone are publicly accountable for the delivery and performance of policing. That responsibility is placed clearly in their hands on behalf of the electorate.

Under this Bill, directed tasking arrangements allow the Home Secretary to empower the director-general of the NCA and allow the director-general of the NCA to task police forces and other law enforcement agencies to carry out specific activity. While the PCC would have to be notified when such a direction is initiated, this tasking would in practice interfere with the operational independence of the chief officer as set out in the Police Reform and Social Responsibility Act, and interfere with the police and crime commissioner’s responsibility for the totality of policing. My prediction is that, unless this is handled correctly and there is rather more substance to it than is contained in the Bill, conflict is going to be inevitable.

The whole point of these new accountability arrangements created by the Government is that police and crime commissioners will be elected with a mandate to deliver in respect of local concerns. That is what they are there to do. What is going to happen when the elected police and crime commissioner for Loamshire or some such place decides that his or her number one priority is going to be addressing volume street crime in Loamshire and its larger towns and yet suddenly there is a directive to divert resources from Loamshire to somewhere else to help deal with particular problems of organised crime, when for the public of Loamshire—the electorate that elect the police and crime commissioner—organised crime is not a particular issue facing that local community? How that is going to be managed is not clear from the Bill.

Indeed, the whole Bill poses a series of questions. Who is accountable to the public for activity that is being directed? When things go wrong—as they will—is the Home Secretary or the NCA director-general liable for any repercussions from this activity? How is this going to interfere with the PCC’s setting of local strategic priorities and indeed that accountability of PCCs to the public that the Government tell us is so critical? Will the police and crime commissioner for Loamshire or for any other area be able to veto a direction using his or her powers? Presumably that will be the case if it is a voluntary direction because that is my understanding of what “voluntary” means. What if it is not? What are the implications if the chief officer of police accepts a voluntary direction but his or her police and crime commissioner says, “No, I do not think that is in the interests of our local community, which I am elected to defend”? How is that going to be resolved? Who will be responsible under those circumstances?

Of course, the Government have got a let-out clause, as you would expect. I am sure the Minister is aware of paragraph 30 of Schedule 3, which gives the Home Secretary the power to amend the requirement to get prior consent before issuing directions. So we are actually being told that this is not going to be voluntary but there will be this power to dispense with the requirement to have prior consent. I suggest that this is going to create more conflict and more difficulties. Again, perhaps it is not very helpful that the detail has not yet been worked out.

This situation is made all the stranger when you observe that this new agency seems to have virtually no governance arrangements. The director-general reports and is accountable to the Home Secretary, who is in turn accountable to Parliament. There is no board; there are no non-executives; there are not even a few token elected police and crime commissioners sitting in that structure perhaps to provide some coherence with the expressed wish of the local electorate about police and crime priorities. There is no mechanism for scrutinising what is happening. Even the elected police and crime commissioners—which some of us were not hugely enamoured of—had these scrutiny arrangements created within the local authority structure. There is no parallel here.

Of course, the legislation contains promises that the director-general will be operationally independent, but what will that amount to in practice? How will it be enforced, and who is going to scrutinise that operational independence in the absence of any of those governance structures? Let us be clear: operational independence is not all that it might appear or be cracked up to be. It certainly does not apply to policing equipment. I suspect that most chief officers of police would think that their choice of equipment is very much part of their operational decision-making. I do not personally always agree with them on that, but paragraph 1 of Schedule 4 allows the Home Secretary to make regulations on the use of specified equipment and the NCA director-general will be required to comply. There is not much operational independence there. This is the Home Secretary, to whom he or she is accountable, saying, “You will or will not use this type of equipment”. That hardly sounds like operational independence to me.

Then there are the very strange provisions under paragraph 4 of Schedule 5. I am sure that the noble Lord, Lord McNally, will explain to us precisely why these are here. Paragraph 4 creates an advisory panel; a new quango, if you like—from a Government who promised us a “bonfire of the quangos”—and what is this new advisory panel going to do? It is going to give advice to the Home Secretary on whether the director-general has sufficient training to carry out his operational powers. I wonder where they dream up things like this—which cellar in the Home Office is responsible for thinking up new committees to do this sort of thing.

This proposal is certainly not a carry-over from the legislation that created the Serious Organised Crime Agency, because it was not thought necessary to have an advisory panel to decide whether or not the director-general of the Serious Organised Crime Agency had the necessary training to carry out their operational functions. So why is it here? Is it because the Home Secretary is planning to replace the current director-general with an individual whose qualifications are so questionable that a panel is needed to test them? That is as may be, but paragraph 5 explains how the Home Secretary can ignore the advice of that panel under any circumstances.

We have to question what model of organisation was used for devising the governance structures for the National Crime Agency. The best example of that, one with which the Home Office is intimately familiar, is the relationship between the Home Secretary and that paragon of effective service delivery, the UK Border Agency. That relationship has worked so well in recent months, between the Ministers and the people with executive responsibility of the agency concerned—two impossible demands before breakfast and the agency, of course, has to comply.

Finally, I will say a word about Clause 2, which allows the Home Secretary by order—admittedly subject to the super-affirmative procedure—to add counterterrorism to the functions of the National Crime Agency. I have to question whether a decision of that magnitude should properly be done simply by order. Let us also be clear: if counterterrorism becomes part of the functions of the National Crime Agency, it will totally transform the National Crime Agency. This body, that has taken two years in gestation merely to talk about a series of organisational silos spatchcocked together, will suddenly have spatchcocked onto it an even larger organisation completely distorting and changing the priorities.

As the noble Lord, Lord Condon, said, it may or may not make sense ultimately to have counterterrorism as a function of a national agency of that form. However, having been involved in the convoluted discussions to get the current structure in place, I think you have to be very clear about the case you are making before you embark on those changes and very clear about why you want to go ahead with them. The experience in other countries—according to the FBI, for example—is not always a happy one in terms of relationships with local forces regarding counterterrorism. There is a real danger of divorcing a counterterrorism elite squad from ordinary policing, not only in terms of intelligence but also in managing community relations following operational decisions.

I am sure the intentions of the Bill are fine. The Government had two years to move from intentions to detailed proposals but in those two years we have yet to see the fruits of their labour and to understand exactly how these new arrangements are intended to work.

Stephen Lawrence

Lord Harris of Haringey Excerpts

Tuesday 24th April 2012 Lords Chamber

[Lord Henley]

My Lords, on occasions, I have heard allegations that one in three people think that the police are corrupt, but other surveys seem to show relatively high levels of satisfaction with the police, both in the white community and in the BME community. It is much the same for both groups, although it varies once one gets into sub-groups. I note what my noble friend said about the need for a new independent inquiry. That has not been ruled out and it is a matter that my right honourable friend the Home Secretary will consider in due course. As the noble Lord, Lord Blair, put it, at the moment it is right for the Met to conduct and complete its internal review and for this to move on in the appropriate way. I think he was also right to stress the need not to rush on too fast in these matters.

[Lord Harris of Haringey]

My Lords, public confidence in the police is extremely important. If there is an underlying feeling that the police, either in these circumstances or in others when allegations have been made, have acted in a way that is not with full integrity and is corrupt, is the Home Office satisfied with the current arrangements within the police service for monitoring and reassuring the public about the integrity of officers? What steps does the Home Office envisage putting in place to ensure that priority is given to this work when the new regime of police and crime commissioners comes into force later this year?

[Lord Henley]

My Lords, the noble Lord is absolutely right to talk about the importance of public confidence in the police. If we do not have public confidence in the police, we move to a rather different form of policing and one which neither he nor I would ever wish to see. I shall not go wider into the debate on police and crime commissioners at this stage as I appreciate that there are differences of view between the noble Lord and myself about them. We believe that they will bring greater accountability and that, in future, we shall have better policing as a result. As I made clear in the Statement, my right honourable friend takes all allegations of this sort extremely seriously. If any allegation, and particularly this one, is proved to be true, that can undermine public confidence in the police force which he and I and everyone else in the House considers so important.

Criminal Records Bureau

Lord Harris of Haringey Excerpts

Wednesday 21st March 2012 Lords Chamber

[Lord Henley]

My Lords, the Bill has not completed its passage and it will obviously have to come back to this House after consideration of Lords amendments in another place. After completion, when we have had our last chance to discuss these matters, we will issue that guidance.

[Lord Harris of Haringey]

Further to that question, the noble Baroness suggested that it would be discretionary for the ISA to pass such information to the police. I had understood the Minister to say that his intention was for that information to be passed to the police automatically, so that they could use their discretion. Does he agree that having two sets of discretion in this area is likely to lead to individual cases falling through the net, which could be very damaging to the children who might subsequently be abused?

[Lord Henley]

My Lords, I do not have the precise words that I used on that occasion, but the noble Lord is probably right to imply that we were offering discretion to the police.

Police and Crime Panels

Lord Harris of Haringey Excerpts

Monday 12th March 2012 Lords Chamber

[Lord Henley]

My Lords, I have made it quite clear that we are going to fund the panels properly. I am not going to respond to the specific allegation made by the noble Lord, but if necessary—if I think it appropriate—I will write to him. What I am making clear is that we think we are providing appropriate funding for the panels to do the job that was set out in the police Bill last year. We think that they can do that because their job is to look at what the PCCs are doing.

[Lord Harris of Haringey]

My Lords, the experience in London is that so far the only information to have emerged from the Mayor’s Office for Policing and Crime, which is a surrogate police and crime commissioner, is a series of listed decisions on the website. How on earth is a police and crime panel outside London going to get to grips with the detail underlying that and the issues determined by the police and crime commissioner, with money that is insufficient to employ more than one or two people in support of busy local authority councillors who will have many other roles in addition to that on the panel?

[Lord Henley]

My Lords, I think that the noble Lord misunderstands—dare I say it?—how local authorities work. Obviously, the funding will be available to provide for some staffing to assist that panel, but within that local authority there will be other officers doing other jobs who will also be able to assist in that role. That does not require the extra funding that he described. However much money the Government offered, no doubt he and others would say that it was inadequate. We made an announcement on how much it would be. Having reviewed it, we have since increased it. We think that it will be sufficient.

Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Monday 12th March 2012 Lords Chamber

Moved by

[Lord Harris of Haringey]

4: Clause 64, page 53, line 9, at end insert “and includes the monitoring of verbal, sign language and written communication between the supervised person and such children”

[Lord Harris of Haringey]

My Lords, this group of amendments deals with the vetting and barring of people working with children. I am grateful to the Minister for the meeting that took place with a number of your Lordships to consider these complicated and difficult issues. The breadth of attendance at that meeting indicated that this is a widespread, non-political concern about trying to get this part of the Bill to be as good as we can get it.

The Government are trying to reduce the number of people and individuals who have to be subjected to a vetting process before they can be employed. That general objective of reducing the numbers who go through this process is entirely laudable, but the balance has to be struck between that desire to reduce numbers and ensuring that children and young people can safely take part in activities, knowing that the adults who are working with them are proper individuals who can be trusted with children. The legislation would include certain categories automatically, in an expectation that they would be subjected to the vetting arrangements. Yet volunteers and others may not be subject to such vetting if they are under day-to-day supervision, which the Government have defined within the amendments considered at the previous stage of this Bill. I do not believe that the question of day-to-day supervision, however defined and however much additional guidance is issued, will automatically be a helpful distinction.

I think that many of your Lordships will have received a very helpful briefing from the children's charities, which have highlighted why this is an issue. They say that Clause 64,

“revises the definition of regulated activity which includes all the positions covered by vetting and barring arrangements. If positions are not included in regulated activity employers will not have to check people who work in these roles and even if they do, they will not be told if the individual is barred from working with children or vulnerable adults”.

The situation is that as the legislation stands, people who are subject to day-to-day supervision do not need to be checked. Even if they are checked, the information that will emerge from CRB and enhanced CRB checks may not necessarily include the barring information showing that incidents have occurred in previous employments, or whatever else may be the case. That is where there is a serious loophole. Indeed, the briefing goes on to say:

“We are concerned that the proposed definition of regulated activity does not cover some groups of people who have frequent and close contact with children. This creates risks for children. Those who seek to harm children can be predatory and manipulative. If certain types of work are exempt from vetting and barring, in some sectors or settings, but not in others, dangerous adults are likely to target those organisations with weaker arrangements”.

--- Later in debate ---

[Lord Henley]

My Lords, I will again remind the noble Lord and the House that we are at Third Reading. I shall repeat the words I used. If the police judge it relevant to the post applied for they may disclose it on an enhanced certificate—no more and no less.

[Lord Harris of Haringey]

I am grateful to noble Lords who have contributed to the debate. I was particularly struck by the contributions of the noble Lord, Lord Bichard, the right reverend Prelate the Bishop of Hereford, the noble Baronesses, Lady Walmsley and Lady Howarth, and the noble and learned Baroness, Lady Butler-Sloss.

The issue is to protect children. While we, as parents, warn our children against stranger danger, we are talking here about individuals who are not strangers. These are people who have been put into a position where it looks as though they are trusted individuals. That is why these complicated discussions we are having about what checks should be done on individuals who are supervised and the nature of the supervision are extremely important.

Because of the developing thinking that has taken place in your Lordships’ House through the Committee stage, Report and now at Third Reading, my amendment was almost a Committee stage probing amendment to try to understand the nature of the guidance the Government are envisaging and what day-to-day supervision would look like. However, we have heard that the Government do not think it will be possible to provide sufficient guidance on day-to-day supervision to give the reassurance we are looking for. That is why the amendment proposed by the noble Lord, Lord Bichard, refers to guidance on,

“regular and close contact with children”.

Quite properly, the issue is whether the relationship between the adult and child is one where the contact will create that position of trust.

The Minister talked about the circumstances in which information that has led to an individual being barred is provided to the police. In my 26 years in local government, to which the Minister referred earlier as being insufficient to have acquired adequate judgment about these things, I chaired on a number of occasions disciplinary panels to decide whether individuals should be dismissed for inappropriate behaviour with children. Those individuals were not reported to the police but would have been put on a barred list. Now I am a trustee of a charity, for which I have been CRB-checked, which has volunteers working with children to put on theatrical productions, and so on. As a trustee or a parent I would be appalled if some of those volunteers could not be checked to see whether they had been barred previously from working with children, whatever the circumstances.

It is a strange way to go about the business that, rather than the simple information on which the authority has decided that an individual should be barred, it should now rely on that information being passed to the police and the chief officer of the police deciding whether it is relevant. It is a very convoluted way to do something when most of your Lordships—I accept not all—believe that there is a more sensible way.

The substantive issue is explored in Amendment 5 and in a moment we will hear what the noble Lord, Lord Bichard, intends to do with that amendment. In the mean time, partly because I have not received the clarification that suggests to me that day-to-day supervision can appropriately be defined in guidance—my amendment could not do so either, I suspect because it is impossible to provide adequate reassurance about day-to-day supervision—I beg leave to withdraw my amendment.

Amendment 4 withdrawn.

Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Wednesday 15th February 2012 Lords Chamber

[Lord Bichard]

My Lords, I do not want to detain the House by repeating any of the points that I made in speaking to Amendments 53 and 54 the other evening, but I do not think that we have yet reached an entirely satisfactory outcome on these issues. I welcome the Minister’s commitment to further discussions, which he has repeated to me since that debate. I hope that we will able to have those discussions before Third Reading, because I think there is continuing unease about this issue within the House and among children’s charities and the wider public.

Although I know that we trying to reduce bureaucracy, I am beginning to worry that we are in danger of making an extremely complex system even more confusing by the way in which we are distinguishing between places, whether they are specified or not, and organisations —we have heard the distinctions drawn between colleges and schools and between paid and unpaid workers. I hope that we can perhaps move to a much simpler statement. The amendment may not be the right form of words, which is why I welcome the further discussions, but I would like to think that we could say quite simply that all organisations employing adults, whether paid or unpaid, to work regularly with children, in whatever settings, should be able to carry out enhanced CRB checks, and that should be recommended by the department as good practice. Regulated activities and the barring system are an additional protection, but we should have a basic position which ensures that anyone working with children regularly can be checked by the organisation, because that is the only way in which an organisation can be sure that it is doing all it can to reduce the risk to that child. My concern will always be how we reduce the risk to the child, rather than how we drive down the bureaucracy.

[Lord Harris of Haringey]

My Lords, I want to say how much I agree with the noble Baroness, Lady Sharp, but I would want to go a little further than she did. She was applying her remarks very much in the context of colleges and so on, but the principle applies to a younger age group as well. I hope that when the Minister responds to the noble Lord, Lord Bichard, and, I hope, indicates that further discussions can take place before Third Reading, he will consider the points that have been very clearly made.

The Minister has talked about the importance of proper supervision in reducing the risk of improper conduct. He said that it would also reduce the risk of improper relationships developing. The real difficulty in this category is that there will be individuals who have not been checked who will be in close, regular contact with children. They will be supervised, so nothing untoward can happen in that context, but something may happen elsewhere. A relationship may build up. The noble Baroness, Lady Sharp, talked about relationships that were pursued in pubs, with underage drinking, but with younger children the context could be very different. It could be a kick-about in the park or whatever. That is where the difficulty arises.

When we debated these issues the other night, the Minister talked about the proper role of parents. I do not think anyone here doubts that parents have an incredibly important role in this, but parents’ main message to children is about stranger danger, and these individuals are not strangers. They are individuals whom the child or young person meets in the context of what is regarded as a secure and safe setting. When the Minister responds, I hope that he will address that issue and how we might take it forward. Can he give us some indication as to whether his concept of supervision includes some means of ensuring that contact is not developed outside, whether by way of e-mails, Facebook or anything else?

Also, there has been a lot of discussion that has muddied the waters about enhanced CRB checks and checks using the information available to the Independent Barring Board. The reality is that 20 per cent of those who are on the lists maintained by the Independent Barring Board have not been through the criminal justice system, so they will not show up through those criminal record checks. The point that has been made about providing a facility whereby colleges, schools or youth clubs can ask if they think it is appropriate for those checks to be made does not necessarily go far enough unless you are able to take on board the issue of the information that is held by the barring authorities.

Nobody is pretending that these are simple issues, but I hope that when the Minister responds he will recognise that they are issues that need further work and that we can try to get this right before Third Reading.

Protection of Freedoms Bill

Lord Harris of Haringey Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Rosser]

My Lords, the amendments in this group remove the distinction that the Bill makes between supervised and unsupervised work with children in regulated activities. The Bill would restrict the definition of roles that fall under “regulated activity” and would mean that employers would not be required to do CRB checks for many employees working with, and in close proximity to, children.

Furthermore, employers would not be able to access information on whether that individual had been barred from working with children and vulnerable adults. I note the further safeguards that the Government have introduced following Committee, which amend the definition of “supervised” as specifically that which is reasonable for the protection of the children concerned. That is a step forward and clarifies that organisations and employers in regulated activity are under a statutory duty to provide adequate supervision for the safety of those children. However, without the ability to access information as to whether an individual had been barred from working with children, it is not clear how the Government expect organisations to discharge such a responsibility adequately. They appear, in effect, to be placing the burden of responsibility wholly on to organisations for the protection of children while denying them access to key information.

Perhaps more seriously, the Government’s proposed amendment to the definition of supervision fails to recognise the serious issue of secondary access, which has been raised by numerous children’s charities and voluntary organisations. Many cases of child abuse do not occur in a place of regulated activity such as a school or sports club but in other unregulated, unsupervised places, as a result of the trust they forge with both the child and the parent through their position of authority and as a result of the assumption that that individual has been adequately vetted by the organisation. The case of Barry Bennell demonstrates just how such relationships can develop over many years, outside the supervision of a regulated activity. That individual received a long jail sentence for the serial abuse of young boys over a period of years when he was a scout for north-west and midlands junior football teams. He gained secondary access to players through his position and invited the boys to stay with him at his home or took them on tours to various places where he sexually abused them.

Revising and re-revising the definition of supervision through guidelines and amendments is not enough and will not stop men like that from gaining the trust of children and their parents by working without any checks in close and sustained contact with children. I know the Government are determined to remove what they regard as unnecessary regulation, but regulation is often about protecting and safeguarding people—often vulnerable people—from the potentially careless, irresponsible or criminal acts of others. The Government should think hard about the words of the noble Lord, Lord Bichard, and the potential consequences of the exemption of supervised workers and volunteers, which means that not all those working in regular contact with children and vulnerable adults are regulated.

[Lord Harris of Haringey]

It is unfortunate that we are debating these amendments at this time of night in a fairly sparse Chamber. I fear that in a few years time people will look back on this debate and say, “Why did Parliament not do more? Why was Parliament so happy to allow those changes to go through without further checks and cautions?”. I am therefore grateful to the noble Lord, Lord Bichard, for his amendments. He is quite right to say that a balance has to be struck and that no system will necessarily protect all children against abuse and against predators. However, the omission that is being created by this Bill is enormous. It is saying that if a volunteer, or someone working with children, is subject to supervision, they do not have to be checked at all. The reality is that parents send their child to a school or a club because they assume that it is a safe place. They assume, therefore, that the people who will be in contact with their child at that school, that club or that activity are also safe. I suspect that unless they pore over the details of our debate, which I am sure is not the case, they will assume that all those people are being checked against these registers and lists. Of course they will not be. They are volunteers or they are under the day-to-day supervision that is envisaged.

--- Later in debate ---

[Lord Henley]

I am grateful to my noble friend for that correction. My noble friend Lady Stowell has just reminded me that there is a strong distinction between schools and FE colleges. For that reason I think it is very important. Oh, dear, I have to give way to the noble Lord, Lord Harris. Can he wait and let me finish my remarks? Calm down, as they say. I shall look very carefully at what I said. Obviously there is an important distinction between the two. I now give way to the noble Lord.

[Lord Harris of Haringey]

All I would ask is that when the noble Lord is looking very carefully to clarify that distinction he also looks at the situation of the large numbers of volunteer assistants in schools and volunteers used for out-of-school activities linked to the school—for example, to interest children in science, since we have been talking about technicians, but it could also be in art or other activities—to see whether they would be covered.

[Lord Henley]

Of course I will look at those matters and respond to my noble friends Lady Randerson and Lady Walmsley. I will even send a copy of that letter to the noble Lord, Lord Harris, in due course.

Let us return to the amendments because that is the important thing to do. I suspect this might now have to be the last amendment that we can deal with. In putting forward the amendment, the noble Lord has questioned whether we are confident that any supervision would be adequate to protect these children. In making the case for these amendments, reference has been made to the concept of secondary access. Some commentators imply a unique causal link between initial contact with the child and later contact elsewhere if the first is the place where most work is regulated activity. We do not accept that premise. Initial contact may happen where regulated activity takes place or it may happen in some other setting, such as a leisure centre, library, church or wherever. In our view, one type of setting does not offer significantly more help than any other for seeking contact with the same child later and elsewhere. Whatever the setting, we believe that parents have the primary responsibility for educating their child in how to react to an approach from any adult if it goes beyond that adult’s normal role. I give way to the noble Baroness.

--- Later in debate ---

[Lord Henley]

My Lords, on the contrary, it would be covered now, and following the changes that we are going to make it would still be covered. He was not covered by what was in place before and that is how he slipped through the net. That is why the noble Lord, Lord Bichard, was asked to set up his review into these matters and why the changes were made. The point that we are trying to make is that the changes have gone too far—this was the point also made by the noble and learned Baroness, Lady Butler-Sloss—in terms of the bureaucracy involved. As the noble Lord, Lord Bichard, put it, one can never totally eliminate risk and there has to be a degree of balance in how one deals with these matters. One must be proportionate. Merely to think that any number of checks imposed by the state is going to eliminate all risk is, I suspect, a wish too far. I give way to the noble Lord.

[Lord Harris of Haringey]

My Lords, I am grateful to the noble Lord. He said a few moments ago that there is a responsibility for parents in this. The difficulty is that the normal assumption of parents will be that every person whom their child comes into contact with in a club or other activity is safe. So presumably what the noble Lord is saying is that, in the guidance that will explain what all this means, parents will be provided with a list. It will say, “The following people whom your child comes into contact with have been checked and the others on the list have not been checked. Please advise your children not to have any contact outside this activity”. That is the implication of what the Minister is saying. Of course parents have a responsibility, but what the Government are doing is creating a situation in which parents will think that an environment is safe, but it is not because some individuals will not have been checked and those individuals may build up a relationship of trust with a child that they could choose to abuse at secondary contact.

[Lord Henley]

The noble Lord may say what he wishes, but he should not try to put words into my mouth, which is what he is trying to do. He is trying to suggest that we could tell all parents exactly who is safe and who is unsafe. Obviously we cannot do that. What we are trying to do is create a system that will provide the necessary safeguards but does not make parents feel that their children are automatically safe. Parents must still have the duty of looking after their children by warning them of potential dangers. They should not assume that merely because someone has been CRB-checked, merely because the process has been gone through and merely because every box has been ticked, which is what the noble Lord seems to suggest, all is safe.

[Lord Harris of Haringey]

My Lords—

[Lord Henley]

I am not going to give way to the noble Lord. I am going to get on with my speech. If the noble Lord will allow me to do so, I will continue.

These amendments seek to preserve what we believe is a disproportionate disclosure and barring scheme that covers the employees and volunteers far more than is actually necessary on this occasion for safeguarding purposes. In so doing, it subjects all the businesses, organisations and whatever to unnecessary red tape and discourages volunteering. The noble Lord, Lord Bichard, also made the important point of whether it would still be open to schools, organisations and businesses to continue to check volunteers and others. Of course they can, and we will ensure that they are still able to request the enhanced CRB certificate when necessary. We want to emphasise the importance of good sense and judgment by the managers on the ground when they look at this issue. That is at the heart of our proposal and it is why we think we have got the balance right. The noble Lord, Lord Bichard, is now looking somewhat quizzical but no doubt we can have further discussion about this between now and another stage.

The right thing is to get the correct balance in how one looks at these things. The noble Lord asked about schools and what they could do. This gives local managers the ability to determine these things flexibly and make extra checks. With the various interruptions I have had, I appreciate the slight muddle I got into earlier over the letter to my noble friend Lady Walmsley. There has been a degree of confusion here.