Crime and Courts Bill [HL]
Lord Henley Excerpts(12 years, 5 months ago)
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Lord Rosser
My Lords, my noble friend Lord Berkeley is not here but I will take the opportunity to move his amendment, if only to hear the Minister’s reply. This amendment seems to address some of the concerns covered in the previous group, but relates to international rail services and the problem of delays to passengers on the Eurostar services caused by new immigration controls. It also sets out how that might be addressed. The amendment contains a number of proposals and appears to suggest a policy of facilitating and welcoming visitors rather than treating everyone in perhaps a less than friendly manner as a result of some of the delays which I understand occur on the Eurostar services at both Brussels and St Pancras. The amendment also refers to the monitoring of waiting times to process incoming passengers at fixed control points. It also talks about processing passengers on international train services between the nearest stations served on each side of the border.
I believe rather than know that there have been meetings between my noble friend Lord Berkeley and the Minister in which the issue of processing passengers on the train—which is perhaps a rather unfortunate phrase—might have been raised. The amendment also raises that issue. We are now part of an expanding high-speed rail network with the introduction of new routes using the Channel Tunnel and the prospect of new operators entering the field.
I think that I am right in asserting that there are significant issues with delays, certainly with Brussels-to-London traffic, which I think are caused in part by double passport checks on passengers at both Brussels and St Pancras, where, I am told, delays can be over an hour. If that statement is right—and I am sure that the Minister will correct me if it is not—it could be damaging to our image as a country and to our economy as it would have an adverse effect on tourism and on the UK as a base for new and expanding businesses.
I am absolutely sure that my noble friend Lord Berkeley would have had a great deal more to say, and that he would have said it an awful lot more effectively than I have, but if I am right in saying that the Minister has had meetings with him, I hope that the Minister will also be able to say where we are on the issue. Perhaps he could also say whether the issue of processing passengers on the train was raised with a view to eliminating some of the delays that are currently occurring. I beg to move.
The Minister of State, Home Office (Lord Henley)
My Lords, I will be relatively brief on this. I can give an assurance to the noble Lord that I have discussed this with his noble friend Lord Berkeley. I also welcome him back to this Bill from his travails on the Civil Aviation Bill. This amendment is, in effect, about the remit of the chief inspector. I think that I can give the noble Lord an assurance that this is all largely dealt with by Section 48 of the UK Borders Act 2007. I have a copy of Section 48 and could go through it in some detail but I do not think that the noble Lord or the rest of the Committee would welcome that. I will just say that the remit of the chief inspector is adequately dealt with in that and he can cover all those matters.
As the noble Lord said, I have had a meeting with his noble friend Lord Berkeley at which we discussed a number of issues, particularly the so-called Lille loophole; the problems coming into St Pancras, problems that we are aware are likely to get much worse when other services, such as the German trains, start coming in, just because of the physical layout of St Pancras; and how we deal with that. We also discussed—again, this is very important—the possibility of using immigration officers on the train to deal with the particular problems that the noble Lord quite rightly highlighted. That is something that we will have to look at for the future, beyond 2015, which is when Deutsche Bahn is likely to start bringing trains in.
Lord Henley
(c) in connection with the prevention, investigation or prosecution of any of the following offences (insofar as that does not involve the exercise of a function which falls within paragraph (a) or (b))—(i) an offence under section 26(1)(a), (b) or (g) of the Immigration Act 1971 (refusal or failure to submit to examination or to furnish information etc, or obstruction of immigration officer);(ii) an offence under section 22 of the UK Borders Act 2007 (assaulting an immigration officer).”
Lord Henley
My Lords, I shall also speak to Amendments 151 to 154. I have written to the noble Baroness, Lady Smith, but I shall explain briefly to the Committee what the amendments do. They are essentially technical and drafting changes to provisions in Clause 26 and Schedule 14.
Amendments 150, 151 and 152 better define what is meant by an immigration offence within the context of Sections 136 to 139 of the Criminal Justice and Public Order Act 1994 and the Criminal Law (Consolidation) (Scotland) Act 1995, with which I am sure all noble Lords will be very familiar. The former allows immigration officers to exercise cross-border powers relating to warrants, arrest and search. The latter establishes a power of detention and arrest for immigration and nationality offences in Scotland. The amendments expand on the original wording which might, if given a narrow construction, have been read to limit the powers of immigration officers to dealing only with foreign nationals entering, residing in or transiting the UK. It is intended to encompass immigration enforcement offences, comprising offences of assaulting or obstructing an immigration officer, or failing to submit to, or produce documents requested during, an examination.
Amendment 154 relates to the provision of legal advice. Among other things, Clause 26 and Schedule 14 ensure that those detained on suspicion of having committed an immigration or nationality offence in Scotland are automatically eligible for publicly funded legal advice. However, as a corollary to this, a duty needs to be placed on the Scottish Legal Aid Board to ensure the availability of solicitors to provide such advice. The amendment makes the necessary change to the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 to provide for this.
Amendment 153 simply corrects a drafting error in Clause 26(13). I beg to move.
Lord Henley
Lord Henley
“(4) Regulation 3(1)(b) of the Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 (duty solicitors: advice for suspects) applies in relation to a person to whom section 25A of the 1995 Act applies by virtue of its amendment by paragraph 46 of this Schedule; and, accordingly, in regulation 3(1)(b), after “customs” insert “, immigration and nationality”.
(5) But regulation 3(1)(b) does not have effect in relation to such a person in a case where—
(a) the person is detained under section 24 of the 1995 Act, and the period of detention began before the time at which paragraph 46 of this Schedule comes into force; (b) the person attends as mentioned in section 25A(1)(d) of the 1995 Act, and the period of attendance began before that time; or(c) the person is arrested and detained as mentioned in section 25A(1)(e) of that Act, and the arrest occurred before that time.(6) Sub-paragraph (4) does not affect the application of regulation 3(1)(b) in relation to a person to whom section 25A of the 1995 Act applies otherwise than by virtue of its amendment by paragraph 47 of this Schedule.
(7) Sub-paragraphs (4) to (6) do not prevent regulation 3(1)(b) from being amended or revoked by exercise of any power conferred by the Legal Aid (Scotland) Act 1986 or any other power.
(8) In this paragraph “1995 Act” means the Criminal Law (Consolidation) (Scotland) Act 1995.”
Lord Henley
My Lords, the noble Baroness is an eternal optimist if she thinks that we will have everything ironed out by Report stage but I am grateful for that optimism. I am also grateful to her for giving me a list of the various questions that she wanted to ask and then putting forward another list of slightly more detailed questions, not all of which I can begin to answer. It will become clear why it is neither possible nor necessary to answer them now. This is probably just the first stage in quite a long discussion that will take place in this House and the other House so that we can get these matters absolutely right.
I am very grateful that the noble Baroness, Lady Meacher, made it in time. At one point I thought that her amendment would not even be moved. It is very important that we have the first discussion—it is only a first discussion—on this clause. I agree with her that this is a road safety issue. It has nothing to do with other drugs issues. She and I will discuss those in other arenas on other occasions. The important point to remember is that anyone who is impaired as a result of using drugs, whether controlled or uncontrolled, can commit an offence under Section 4 of the Road Traffic Act 1988.
In responding, I shall try to keep a very complicated issue as simple as possible. For that reason, those who are old enough—even in this House, that does not necessarily mean everyone—should remember what it was like pre-breathalyser in relation to one drug, namely alcohol. The noble Lord, Lord Dear, was probably a young policeman at the time. There was an offence of driving while impaired by alcohol but it was very difficult to prove. There were all sorts of methods by which one could try to do so. We probably have to go back to the Wilson Government of 1964 when Barbara Castle was Secretary of State for Transport and, as a result of legislation, the breathalyser was introduced. The idea was that you did not have to show that you were impaired; you were deemed to be impaired if you were over a certain limit—that is, if there was so much alcohol in your blood. That has proved very effective over the years.
I do not have the figures in front of me for the number of deaths, other casualties and accidents over the years. However, we have seen not only a massive decline in those but quite a big cultural shift in people’s attitudes to drink-driving. People take much greater care about not being over the limit, as they put it, even though they might think that they are still capable of driving. In other words, people accept that being at the limit means that they are impaired.
In Clause 27 we are trying to do something similar with drugs. However, as I said, on an issue that we want to keep very simple, this is going to be very difficult indeed. All noble Lords who have spoken in this debate—and, I imagine, all those listening as well—will accept that we are dealing with a whole range of different drugs. There are controlled drugs and uncontrolled drugs—a vast array of over-the-counter drugs, which people take for colds or whatever, that we all know can impair driving, and people should be careful whether they take them. I have even seen on a bottle of cough mixture for my children when they were very small, “Do not drive heavy vehicles after using this”. I am not sure why my children were likely to be driving heavy vehicles or heavy machinery after taking some cough mixture, but there is often such advice with medicine. Whether a drug is controlled or uncontrolled, it will still be covered by Section 4 of the Road Traffic Act 1988.
Clause 27 is trying to deal with the controlled drugs at this stage, and we need expert advice on that. Noble Lords who have spoken will also be fully aware that we have set up an expert panel to look at this. I do not have the list of names in front of me, but everyone will know that the people dealing with this matter are very eminent in their field. They will have to work very hard to find ways of defining the appropriate drugs and the appropriate limits. Because of the way we have drafted the Bill at the moment, there might have to be zero tolerance with some drugs, but I note the points that the noble Baroness made, particularly about cannabis and other drugs and how long they stay in the bloodstream. I accept that it is difficult, but we want to wait and hear the advice from the panel. I very much hope that we will have some initial advice before we get to Report. As I said, we are in this lucky position of having Report delayed somewhat until, I imagine, late in October or the beginning of November, so it does give us time to see what comes out, to listen to what the panel has to say and to have further discussions.
Again, we are at that happy stage of the Bill starting in this House and we have the joy of discussing it, but it can go on to another place. Even in another place they sometimes discuss these things seriously and in great detail, as the noble Baroness knows from her great experience there. We have time to get this right and make sure that we have the right procedures in place. In response to the points made by my noble friend Lady Hamwee, we want to make sure that there are appropriate defences for those who have taken over-the-counter medicines inadvertently or incorrectly, or for those who are on prescribed drugs from their doctor—for example, in the case of a statutory offence of someone who takes controlled drugs for medical reasons. We need to look at all these issues.
At the same time, we want to make sure that the expert panel can offer advice about setting appropriate levels for whatever drugs we decide to include in the interests of public safety. I go back to the first point made by the noble Baroness, Lady Meacher—that this is a road safety issue first and foremost. For some drugs, we might have to say that zero is the only safe limit, but we want to wait until we get advice from the experts in this field because, however knowledgeable we are, we are not the experts and we need to listen to that in due course.
I said that I was trying to keep a very complicated issue as simple as possible at this stage, because all I wanted to do was set out what we were trying to do and what the problems are. I hope that between now and Report we can have further discussions about this, and I certainly hope to involve colleagues in the Department for Transport, because I think that they should be involved. This is not a Home Office issue; it just happens to be in a Bill that the Home Office is taking through the House. Others might be involved, and I hope they want to be.
Baroness Smith of Basildon
The Minister’s alcohol analogy is a useful one, although the caution that I would place on that is that testing for alcohol is testing for one drug. As he said, there is an almost unlimited number of drugs to be tested in this case. His comments have reassured me that the matter is being taken seriously and that he recognises that it is a work in progress. However, I am always slightly concerned—alarmed is too strong a word—when the Minister refers to matters coming back to this place and says that we do not have to worry if we do not get it completely right because it then goes to the other place as well. I am glad that he is shaking his head. That is not what he meant, but it has happened a couple of times in the course of this Bill. There is an obligation on us to get it as right as we possibly can. I know that we are not experts—I do not think that I am an expert in anything—but we are legislators or we are advising on legislation, and it is incumbent on us to ask the kind of questions that have been raised today. We need assurances that we will have the answers to those questions before the legislation goes to the other place. If we had answers to those questions before we pass legislation through both Houses, and when this House passes its advice to the other House, we could in all confidence say that we know that we have the procedures in place for this offence to protect people as we think it should.
Lord Henley
My Lords, if I put the matter in the terms described by the noble Baroness, I should not have done. We want to get it right and we shall try very hard to do so, but we need that expert advice. That is why I hope that we will have the beginnings of the expert advice from the expert panel before Report stage. At this stage, I was trying to make it clear that it was the beginnings of a discussion on a very simple idea, although it does not sound simple. The noble Baroness is right to say that we have had it very easy with alcohol, because it is just one drug and we have just one limit. We are now talking about lots of drugs—controlled, legal or illegal—and where we put the limits. It is going to be very complicated, so we want to listen to the experts and have further discussions.
Baroness Meacher
I thank the Minister for his response and openness to further discussions. Can he give a commitment that, if at all possible before Report, we could have an opportunity for some feedback from the expert panel and a discussion with it about the implications of its preliminary findings?
Lord Henley
I can never give an absolute commitment in relation to an expert panel discussing these things, because I cannot put a gun to its head about how it should proceed. However, I would very much welcome a chance for some sort of informal seminar among noble Lords interested in these things in the early days of October. That might be a useful way in which to take these things forward. I see a nod from the noble Baroness, Lady Smith, and, no doubt, also from the noble Baroness, Lady Hamwee. I look forward to it. Tea and coffee will be available on that occasion at some time in October.
Lord Rosser
My Lords, as has been said, the amendment removes the word “insulting” from Section 5 of the Public Order Act 1986. The noble Lord, Lord Mawhinney, has explained the reasoning behind the amendment. We will need to be satisfied as to its justification, the evidence advanced as to why it is needed and the extent to which that evidence reveals a problem that can only really be addressed by a change to the legislation. We will also want to be satisfied that removing “insulting” will not mean that people using such words or behaviour cannot be prosecuted when there is every justification and reason for doing so.
The consultation on this issue closed in January. The Government have not, as far as I am aware, published the replies to that consultation or their own response. Despite this, the Deputy Prime Minister, presumably in his official capacity, has apparently made comments supportive of the approach in the amendment. Bearing that in mind, and the distinguished noble Lords whose names adorn the amendment, I suspect that the Government, at worst, are not going to reject its intentions.
For our part, we will listen to whatever points the Minister has to make, as well as the points made by noble Lords in the debate, to which we will want to pay regard. We also want to consider the replies to the consultation when they are published, along with the Government’s response, before coming to a firm conclusion.
Lord Henley
My Lords, I hope that I can be relatively brief in responding to the speech of my noble friend in moving the amendment, and the remarks that other noble Lords have made. My noble friend need not apologise for the fact that he was a member of the Government and was a signatory to the Public Order Act 1986, which included the word “insulting”. As the noble Lord, Lord Dear, has reminded us, “insulting” goes back to the Public Order Act 1936, introduced by the then National Liberal Home Secretary, Sir John Simon. That was very much borne out of the fascist marches of the 1930s. Section 5 of that Act referred to any,
“person who, in a public place or at a public meeting, uses threatening, abusive or insulting words”.
That is much the same as the 1986 Act which my noble friend now feels embarrassed about having signed up to.
To take the history lessons back a bit further, I take my noble friend back to the Metropolitan Act of 1839. That was under a Whig Government—the forebears of the Liberal Democrats—who, again, introduced the word “insulting”, but which applied only in London and not in other parts of the country. I make this point to say that this has been going on for some time.
Similarly, I apologise to my noble friend for the fact that our consultation ended in January and we have not responded within the appropriate three months; however, it did cover a number of other issues. Obviously, it is now six months since that consultation ended. As has been made clear by a number of noble Lords who spoke, we had some 2,500 responses to that consultation and we want to consider them carefully. It is clear that there are a number of different and passionately held views on the subject. Given the complexity of the issues raised, we in the Home Office, as Ministers and officials, are still considering the balance of all those representations. So, I say to the Committee—and to the noble Lord, Lord Rosser—that I am not in a position today to set out the Government’s position on the amendment.
This is a timely debate, which will help to inform the Government’s further deliberations. I would have been grateful if it could have happened at a time when more noble Lords were here in Committee. Although I appreciate that the names on the amendment of those who support it come from different parts of the House and they all seemed to be on the same side, there are strong believers in other views. We have heard a number of cases indicating the weakness of having “insulting” in the provision. Different noble Lords have cited a number of different cases.
We also have to accept that freedom of expression is never an absolute right. It needs to be balanced with other competing rights. It was made quite clear in the case of Percy and the DPP that Section 5 is proportionate and contains that necessary balance between the right of freedom of expression and the right of others to go about their business without being harassed, alarmed or distressed.
I do not want to go into details at this stage because we are debating this at too late an hour with too empty a Chamber. All that I am saying is that we have had a consultation. That has ended and we have had 2,500 responses. Those need to be considered carefully and all of us need in time to take a view. I hope that all noble Lords will accept that there are arguments on both sides, as the noble Lord, Lord Rosser, put it. Those need to be considered very carefully. I am pretty sure that I can say to my noble friend Lord Mawhinney that we are likely to come back to this issue at a later stage in the Bill.
As I have said on other occasions, we have some considerable time before we get to Report. That might make it easier to come to that considered view. I hope at that point we will be able to put forward the Government’s considered view to the House. Therefore, I hope that my noble friend will, on this occasion, feel able to withdraw his amendment.
Lord Mawhinney
My Lords, I am grateful to the Minister for his response and to other colleagues who have spoken. None of us who spoke is responsible for the fact that the debate is on very late and the House has well below the number of noble Lords who might normally have considered the matter. That is not our fault. I hear what the Minister said about the lateness of the hour tonight. If we come back to this at Report, I am not sure that that argument will carry much water were it to be tried a second time around.
The Minister will have heard that those who have spoken have all spoken with one voice. I would like to pick up the point that the noble Lord, Lord Dear, made about the timing of this. Having been privileged to spend 26 years at the other end of this Corridor and a mere seven at this end, I understand why Governments and Parliament issue guidance. They issue guidance to constrain the power of the Executive to put stuff in the long grass and let it lie there. Guidance is designed to say to Ministers, “You can have reasonable time, but there comes a point when Parliament must be accorded the rights and privileges that go with the name Parliament”.
My noble friend pointed out that there were 2,500 replies, and six months later they are still studying them. Okay, but the guidance was that they should have replied in three months, so at the very least we should have had a message from the Executive two months ago saying, “This is really taking us longer than we thought. We hope Parliament won’t mind if we take a little longer”. Do you know what? I am guessing that Parliament would have said, “Okay, take a little longer”, but here we are after six months. I say to my noble friend, “Take a little longer”. However, I also say that the mood of the House and the mood of the other place would be that, well before Report stage, we would wish to be encouraged to believe that not only had the Government formed a view, which they were willing to share, but that they had done something politically quite sensible and aligned themselves with the vast majority of people who want to see “insulting” removed from Section 5.
As my noble friend goes away to sit at his desk over the summer pondering things, I offer him a reflection from former US President Harry Truman, who had only two frames on his desk. One frame held a picture of his wife, and in the other was a saying from Mark Twain. Every day, Harry Truman read these words:
“Always do right. This will gratify some people and astonish the rest”.
I offer that encouraging thought to the Minister as he contemplates those 2,500 responses and the content of this short debate. I beg leave to withdraw the amendment.
Crime and Courts Bill [HL]
Lord Henley Excerpts(12 years, 5 months ago)
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Baroness Hamwee
My Lords, I do not want to repeat absolutely everything that the noble Baroness and my noble friend have said, but I am afraid that there will be a little repetition and I hope your Lordships will understand that it goes to emphasise the seriousness of the points being made. Both previous speakers referred to the knock-on effect on future applications of clearance being refused, with the applicant’s integrity being impugned in the reasons for refusal. I think that we should take that very seriously.
There have been many complaints about the lack of clarity regarding what is required at the application stage, with the real reason for refusal not being revealed until the appeal hearing. If that is the case—and I have no reason to doubt what we are hearing—it is bound to lead to additional evidence being presented. That is a simple consequence and not something for which we should be criticising applicants. Are there no mechanisms for additional information, or for clarification of information, to be requested without an application being rejected? It seems common sense that the mechanisms should allow for some simple process of that sort.
Like other noble Lords, I am keen to know whether the Government have confidence in the internal review process. Regarding confidence, the noble Baroness asked whether improvements will be made. I would add: are the Government confident that improvements have been made since the chief inspector’s review in December? Unless they have, we are presented with a difficulty regarding this proposal. I simply conclude by saying that it is quite clear that there is a problem, and it is quite clear to at least three speakers that this is not the solution to the problem.
The Minister of State, Home Office (Lord Henley)
My Lords, I start by saying to my noble friend Lady Hamwee that I accept the seriousness of the points being made and I hope that I can deal with them in the course of this debate. I also noted what my noble kinsman Lord Avebury said about the right of appeal on race discrimination grounds, which I think is the subject of his next amendment. As it was my noble kinsman who wanted the amendments to be taken separately, I would prefer to deal with that issue when we come to Amendment 148B.
We have three amendments and a clause stand part debate in this group. My noble kinsman has tabled Amendment 148A and has given notice of his intention to oppose Clause 24, and the noble Baroness, Lady Smith, has tabled Amendments 148AA and 155EA.
As we are all aware, Clause 24 makes provision to remove the full right of appeal against refusal of visa applications to visit family members in the United Kingdom. The Government understand that a visit visa can help maintain family links: we granted some 370,000 family visit visas in 2011 and 1.26 million other visit visas in 2010-11. That is also why we issue, on application, longer validity multiple entry visit visas in some cases, which offer convenience to the family visitors who are granted them. The clause is not in any way about stopping people visiting their family members in the United Kingdom. The rules to qualify for entry are the same for both tourists and family visitors. Any family member who meets our immigration rules will be granted that visit visa.
Lord Rea
Before the Minister sits down, will he answer a simple question? When an appeal is refused under the new rules, he says that it will be open to the applicant to make a new application, benefiting perhaps from the reasons given for the asylum refusal. But that will surely add enormously to the load on the border control officers who are controlling applications for visas in the first place. Will that not give them a huge overload? Anyway, are there not rules that specify the length of time after the first application is refused before a second one can be made? What sort of period are we looking at? Is it six months, a year or two years? Is there a period at all?
Lord Henley
My Lords, we are finding that, with a large number of appeals, the point that they are appealing on is in effect new evidence that they did not put in their original application. We suggest that it is cheaper to make a new application than to appeal. It does not clog up the appeal system if they make a new application, bringing in that new evidence. Therefore, the appropriate process is to use the new application route rather than clog up the appeals system. That is why I was emphasising that, despite the original intentions of the system brought in by the Government of whom the noble Lord is such a distinguished supporter, it has clogged up the system in a manner that we do not think is appropriate. The new application would be a far simpler, cheaper and better way of dealing with these matters.
Lord Henley
A new application can be made immediately. That would be far quicker for the applicant than waiting for possibly eight months for the appeal to be dealt with. A new application can be dealt with within 15 days. That is a better deal for all involved, particularly if they are coming over for a family event such as a wedding. In eight months, the whole thing might be over: it would depend on how much advance notice they had for the wedding.
Baroness Hamwee
My Lords, as the Minister said, the fee for a new application is a little cheaper than that for an appeal. He quoted a figure for the savings that the measure would achieve. I have just had a look at the impact assessment—although I may not have the right piece of paper with me—which gives in narrative form an explanation of what is proposed, but I cannot find any figures in it for this particular clause.
The Minister may well not have the detail with him at the moment. If he does not, perhaps he could write to noble Lords to unpack that figure, which I think was £102 million, although I might have got that wrong. In any event, when it comes to the amount that the Government expect to save by this, I am having a little difficulty in putting all this together in a mathematical form.
Lord Henley
My Lords, impact assessments are always somewhat obscure documents, as my noble friend and others will well understand. I do not have the impact assessment in front of me at the moment but I think the figure I quoted was savings over 10 years of something like £103 million. My noble friend says £102 million, but what is £1 million between friends? The best I can do on this particular occasion is to offer to write to my noble friend with greater clarity about the impact assessment and what we reckon the savings will be. We think that there are very considerable savings to be made here and that the process is not working as it should or as it was originally intended because there are far many more appeals coming in. A new application would be a simpler way of processing these matters.
Baroness Hamwee
My Lords, it might help if I just say that it seems that an explanation for any savings may be with regard to the time that officers put into dealing with either an appeal or an application. That in itself raises issues. I make that point now in case the answer comes back simply in terms of figures, when there will need to be an explanation if we are all to understand. However, we all agree that the system is not working very well.
Lord Henley
My Lords, I am reminded that the figure I quoted originally was £107 million, so we are talking about a difference of £5 million between myself and my noble friend, which is real money. However, I still promise to write to my noble friend on these matters and to try to bring her greater clarity.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister seeks to reassure me and I wish that he could. However, unfortunately, he has not. There are a number of issues. If, as he points out, it would be quicker, cheaper and easier for everybody concerned—the Government and all the applicants—for there to be no appeals process, why does everybody not welcome this with open arms?
As I pointed out in my earlier comments and as was pointed out by the noble Lord, Lord Avebury, and the noble Baroness, Lady Hamwee, it would be quicker, cheaper and less onerous if so many wrong decisions were not made in the first place. I imagine that those appeals that were not upheld were much easier decisions to make if the application was turned down and the appeal rejected. I am very concerned about those where a wrong decision is made and the appeal is successful because of the wrong decision. I know the noble Lord says that in many cases it is because new information is provided, but it would be very simple to make it absolutely clear what information is required in the first place. That would make the whole application process much quicker and more efficient.
The other problem with making new applications is that there is no opportunity for advocacy or for people to make representations on an applicant’s behalf. I made the point earlier that if somebody is refused and the decision-maker says that they gave inaccurate or wrong information, they can be barred for 10 years. The Minister says they can apply next year and the year after, but in those circumstances they will not be able to apply for 10 years. Even though the decision may be based on inaccurate information, and the person who has been refused a family visitor visa has been told the information they gave was wrong and misleading, there is no opportunity to appeal that and they cannot make another application for 10 years. That seems to be a gap in the noble Lord’s reasoning.
I wonder whether he is dealing with this problem from the wrong end. If we deal with improving the quality of decision-making, in some cases by making it easier, and so more straightforward, for applicants to know what is required of them, we would see this logjam that he talks about removed. To try to deal with the logjam by merely removing the right to appeal does not seem to me to be the right way round.
I was surprised that he drew any comfort from the chief inspector’s report. I think that it is quite damning. Basically, he says, “I make these recommendations, people accept them, but it does not get any better”. Before the Government take an action such as this, they should seek significant changes and improvements in decision-making. I do not lay it all at the door of poor decision-making. However, he tells me that every decision is reviewed by a senior manager, so clearly something is wrong when so many appeals succeed despite that. Something in the process is going badly wrong.
I will not press my amendment today. I am grateful to the Minister for pointing out the deficiencies in my drafting but, despite his very brave attempts, I am not really reassured.
Lord Henley
My Lords, before my noble kinsman decides what to do with his amendment—obviously, it is his decision—I want to pick up one point. The noble Baroness says that an awful lot of appeals are the result of wrong decisions. I accept that some are the result of wrong decisions, but as she would accept, an awful lot are the result of the wrong information coming forward, and that is something far better dealt with by means of a new application. Obviously, we might have to look at how to ensure that people get the right information into their original application so that the correct decision can be made. That is a matter of making sure that we have the right procedures in place and I will certainly be prepared to look at that. However, I do not think that she should imply that all the problems are down to bad decision-making; an awful lot are the result of new information coming forward. That is why there are so many appeals.
Baroness Smith of Basildon
If the noble Lord reads Hansard and looks at my previous comments and at what I have just said, he will find that I acknowledge that sometimes a wrong decision is made because the right information is not supplied. Indeed, I quoted the chief inspector as saying that in 16% of the cases reviewed, applications had been refused on the basis of a failure to provide information, but the applicant was not aware of what information was required. I acknowledge that important point. If the Minister were to take that back to the UK Borders Agency and act on it, that would be an extremely positive step, so that all applicants are made fully aware at the time of application what information is required.
Lord Henley
My Lords, without knowing more about the sort of cases that my noble friend refers to, I do not think that I can respond to him at this stage. The more general point, and the reason for bringing this clause forward, is that we feel that many of the applications can be dealt with by a new application and so the process of a right of appeal is not the right way forward. We are bringing it into line with other parts of the immigration system. In the main, we have found that so many appeals have been on the basis of new information. This is a more appropriate way of dealing with it.
Lord Avebury
My Lords, I dread to think of how many occasions I have sat here and listened to Ministers from the Front Bench saying that they will make amends for the all the criticisms that have come from the chief inspectors of the UK Border Agency or their predecessors; yet on the next occasion we debate precisely the same thing. It is with some reluctance that one accepts the assurances that the Minister has given that the Government are going to sort out the UK Border Agency so that fewer false decisions are made. I am sure that he has been told by the officials that they have this matter in hand but the benefit of past experience shows us that we cannot rely on that.
In relation to the suggestion made by my noble friend Lady Hamwee, that there should be some mechanism whereby, if the entry certificate officer needs some further information that the applicant could not possibly have known would be required on his original application, that should not be the cause of a refusal but of a communication from the ECO to the applicant to say exactly what kind of information is needed and that that would be considered in making the decision. There is no such mechanism at the moment and I am not satisfied that the assurances the Minister has given, that he will look at the proposal, are sufficient. My suggestion is that we could perhaps think about this before Report and come back to it then, to hear further from the Minister about what progress he has been able to make on my noble friend Lady Hamwee’s suggestion.
Even so, there remains a problem: that the applicant has a black mark against them in the Home Office records, which may have deleterious effects on any further application that he makes. When he comes to make another visit and officers look up what happened in the past, they will see that he has had a refusal. In the case that I mentioned of Mrs N in Beirut, who made a number of visits to her husband in London, no problem was ever encountered. It was rather like the case cited by my noble friend Lord Hussain. Quite simply, they granted the entry certificate. She came to visit her husband in London and went back to Beirut afterwards, for the very simple reason that she had an 89-year-old mother there for whom she is the primary carer, as I explained. That was known—it must be on the files—yet on this occasion, after she has been from Beirut to London perhaps a dozen times without any problem, suddenly she was refused.
Mrs N’s solicitor advised her not only to put in a fresh application, which my noble friend thinks is the ultimate solution, but to appeal because she does not want a stain to appear on her record. That is not going to vanish. There is no way in which you can rub off a record of a refusal, except by means of an appeal. Although people may be able to get permission more quickly to come here by putting in a fresh application, as my noble friend says, that application will have to be considered in the light of the fact that there is a record of a refusal. It is less likely that that person will be able to come here in future. The solution that my noble friend has suggested is not the answer and I say again that we will have to return to this on Report, when I hope we can make some further progress on it. Meanwhile, I beg leave to withdraw the amendment.
Lord Avebury
My Lords, the specific race discrimination ground of appeal in immigration cases now relates only to Northern Ireland. The 2002 Act continues to allow an immigration judge to find an immigration decision to be unlawful by reason of race or other unlawful discrimination, because Section 84(1)(e) provides a ground of appeal,
“that the decision is otherwise not in accordance with the law”,
but only where he or she has jurisdiction to hear the appeal in the first place.
The importance of the specific race discrimination ground of appeal is that it is one of two statutory grounds that generally preserve an appeal right that would otherwise be precluded by the 2002 Act. Thus, in the various and complex sections restricting appeal rights in that Act, the following general formula is repeated several times: that the relevant restriction,
“does not prevent the bringing of an appeal on either or both of the grounds referred to in section 84(1)(b) and (c)”.
This general formula previously preserved the right of appeal against an immigration decision, where the would-be appellant sought to challenge the immigration decision on race discrimination or human rights grounds. This has particular relevance to Clause 24 of the Bill, by which it is intended to remove the right of appeal against the refusal of a family visit visa. The provisions that Clause 24 amends will continue to retain the general formula intended to preserve a right of appeal on race discrimination or human rights grounds. Preserving the right of appeal on those grounds is clearly intended, as is stated by paragraph 373 of the Explanatory Notes. It was also made clear on the UK Border Agency website when the Bill was first published, as well as in a more recent announcement on that website concerning changes to remove the right of appeal for aunts, uncles, nieces, nephews and cousins against a refusal of a family visit visa.
However, the omission of the relevant words in Section 84(1)(b) undermines all this. The general formula now preserves appeal rights only where the appeal is brought on human rights grounds in England and Wales or Scotland, and on both race discrimination and human rights grounds in Northern Ireland. The Immigration Law Practitioners’ Association has raised this with the Home Office, and it has been confirmed that this was not intended. ILPA informs us that the Home Office is looking at how best to remedy the omission, and we hope that it can be done while this Bill is in progress. Ideally, the Government will be able to say how and by when this omission is to be corrected in answer to this amendment, and we would then expect to see it implemented on Report.
The events that led to the inadvertent omission of the specific race discrimination ground of appeal highlight once again the notorious complexity of immigration law, including the highly complex statutory appeal provisions. We have just enacted the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in the face of widespread concern both within and outside Parliament about the removal of legal aid in areas such as immigration, which, as the noble Lord, Lord Pannick, said on the last day of debate in the House of Lords before enactment,
“will hit hardest the weakest and most impoverished sections of our society, often on complex questions of law such as are raised by immigration law”.—[Official Report, 25/4/12; col. 1797.]
If the Government cannot even foresee the consequences for the statutory immigration appeals scheme when they draft legislation with an impact on that scheme, they can hardly expect individuals without legal advice or representation to understand the rules and to know what appeal rights they still have, if any. I beg to move.
Lord Henley
My Lords, my noble kinsman has spotted something, and it will be suitable for me to intervene at this stage and save ourselves a debate. As he has explained, Amendment 148B is intended to reinstate a right of appeal against an immigration decision on race relations grounds. Such a right of appeal existed prior to the commencement of the Equality Act 2010, but many noble Lords will remember that the latter stages of that Act were rushed through rather fast in the run-up to the election, and that right was inadvertently removed by the consequential amendments made under that Act. That might encourage us to think more carefully about the wash-up process in the future because of the mistakes that can creep in.
The Government’s stated policy remains that there should be a right of appeal on race relations grounds, and we agree that this appeal right should be reinstated. My noble kinsman asked how we can do that. We do not apparently need primary legislation to rectify this problem as we could effect the necessary change through secondary legislation made under the Equality Act 2010, a point that has been recognised by the Immigration Law Practitioners’ Association in its briefing on this amendment.
I am happy to give a commitment that the problem will be rectified and to explore further over the summer —my noble kinsman will be aware that we have quite a few months before we get to Report—how best this might be achieved. In light of this reassurance, I hope that he will withdraw his amendment.
Lord Avebury
I am happy to withdraw the amendment on the basis of that assurance.
Baroness Smith of Basildon
My Lords, I, too, was sent a brief with the same information by the Immigration Law Practitioners’ Association, which briefed the noble Lord, Lord Avebury, on his amendments. There is a case here that is of interest. There is not much that I can add to what the noble Lord has said but I am interested to hear the Minister’s response, particularly to Amendment 148C. I am concerned about the arrangements for young people and children, particularly those aged under 16. My only comment is that I am willing to listen to the noble Lord’s response to those amendments.
Lord Henley
My Lords, I will deal with the amendments in the same order as my noble kinsman did. Amendment 148C would create a right of appeal whenever someone is refused asylum but is granted any form of leave. It would also have the effect of providing for multiple rights of appeal against the refusal of asylum for a group of cases where no right currently exists, as there will be a right of appeal every time a fresh grant of leave is given. That is possibly an undesirable position.
The original purpose of Section 83 of the Nationality, Immigration and Asylum Act 2002, which, again, the noble Baroness will well remember, was to provide a right of appeal where an asylum application has been refused but the applicant was granted more than 12 months’ leave. Normally when a claim for asylum is refused, there is a right of appeal against the subsequent removal from the UK rather than against the refusal of asylum itself. The appellant can raise asylum grounds as part of that appeal against his removal. However, where someone has been refused asylum but granted leave of less than 12 months, removal directions will not be set and therefore no appeal right arises. In these cases, the short duration of the leave necessarily means that the case will be considered again quickly, reducing the need for an appeal. Where there are no grounds to grant asylum but there are other valid reasons why someone cannot return to their home country, another form of immigration leave is sometimes granted. If leave is granted for more than 12 months, Section 83 of the 2002 Act provides for a right of appeal against the refusal of asylum.
Amendment 148C would remove the 12-month restriction and would create a right of appeal against the refusal of asylum, even where a short period of leave is granted. It is not unusual for these short periods of leave to be extended more than once, and recent case law means that the amendment would create a right of appeal against the earlier refusal of asylum every time further leave was granted. If a decision to remove the applicant from the UK was ultimately taken, a separate right of appeal would arise against that decision. The amendment would possibly undermine the intention of the existing asylum appeals framework, which aims to prevent multiple, fruitless appeals being used to prolong someone’s time in the United Kingdom, often at significant cost to the taxpayer.
My noble kinsman and the noble Baroness asked about the impact on children, particularly unaccompanied children, who are refused asylum. They are normally granted leave until they reach the age of 17 and a half. The 12-month restriction therefore means that some unaccompanied children will be refused asylum and granted less than 12 months’ leave, which means that they do not get an appeal right under Section 83 of the 2002 Act. Those children may not have their asylum considered by a court for more than a year after they first claimed asylum. That is an unfortunate consequence of the otherwise very sensible 12-month restriction, and I can assure my noble kinsman that we will review our policies concerning the length of leave granted to children to ensure that there are no unintended consequences of the sort that he and the noble Baroness implied.
Amendment 148D concerns the Secretary of State’s powers to certify, under Section 94(7) of the Nationality, Immigration and Asylum Act 2002, that removing a person to a safe third country will not breach his or her human rights. The effect of the certificate in such cases is that an appeal can be brought out of country only after that person has been removed. This provision is designed to prevent spurious appeals being used to delay removal in hopeless cases. When determining whether such persons may be removed, the third country must be a place from which the person will not be sent to another country other than in accordance with the refugee convention; we want to make that clear. If the certificate is challenged by judicial review, the court is required to regard the third country as one where the person’s rights under the refugee convention will not be breached. I believe, therefore, that Amendment 148D is unnecessary because the courts are already able to consider whether the person’s human rights may be breached by way of judicial review challenging the issue of that certificate. Once the person has been removed to the third country, an appeal may be brought and refugee convention issues can be considered. In light of that assurance, I hope that my noble friend will feel able to withdraw his amendments.
Lord Avebury
My Lords, I am grateful to my noble kinsman for what he has said about Amendment 148C. I look forward to hearing further from him, perhaps on Report, about the results of the policy review on the length of permission granted for a child and the effects of an appeal being heard after the child has reached the age of adulthood. I hope that I may take it, from what he said, that we will be able to have a more concrete idea of what the Government propose to do to remedy the situation before Report. If legislation is required to remedy it, we must not miss the opportunity presented by the Bill.
On Amendment 148D, the question of whether we need changes in the statute to cope with the cases that I have mentioned, where it was found that the presumption was not justified, is a matter on which I need to take further legal advice, so I will not pursue the matter any further at this point but may well return to it on Report. I beg leave to withdraw the amendment.
Lord Henley
The noble Baroness knows that my legal knowledge is equally limited but my understanding also is that this is a relatively simple tidying-up amendment, and I congratulate my noble kinsman on doing it. If I have understood him properly, he is trying to clarify that certifying a decision under Section 96 of the Nationality, Immigration and Asylum Act 2002 has no effect on any pending appeal. If that is correct, we would want to look at it. If he is willing to withdraw his amendment I am more than happy to consider the matter further and to report back to him in advance of the next stage. Because of the timing of this Bill we are in the very happy position of having some months, even with party conferences, between this stage and the next stage of the Bill—although, sadly, some of us might miss our own party conference because of the date of the next day in Committee on the Bill. We will look at this and if my noble kinsman is prepared to withdraw it, I will get back to him and see what we can do.
Lord Lester of Herne Hill
Perhaps I may ask the noble Lord a question. I have been following these debates as best I can. I have been at the Bar for a very long time. My wife is an immigration and asylum judge. I note that the Court of Appeal has begged the Government to codify and simplify the morass of unintelligible legislation which only my noble friend Lord Avebury truly understands. Is there any hope that once this Bill becomes law the Government will heed the court’s plea—to which I would add people such as my wife who, as a judge, has to interpret and apply this law—so that even if ordinary men and women cannot understand it, at least ordinary lawyers may be able to do so?
Lord Henley
My Lords, I would be the first to say to my noble friend that he is not an ordinary lawyer and nor is his wife—they are both very eminent lawyers. If they say it is a morass of unintelligible law obviously it must be. However, I am not sure it is as unintelligible as he claims. Obviously, we will look at this. As with all law, if consolidation can make matters simpler it is something that can be looked at. If it is a matter for departments—in this case the Home Office—we must look at it. As my noble friend will be aware, finding time for any legislative changes is always difficult.
Lord Deben
I hope that my noble friend will accept that it is not just a matter of making the law intelligible for lawyers. The people who suffer—if I may put it like that—under the immigration laws are people who ought to feel, at least as far as they can, that they have been dealt with fairly. We have had examples already this afternoon of situations that are so complex that it would be very hard to explain to one of these people that they have been dealt with fairly. If they leave this country I would be much happier if they said, “Of course, I ought to have got in but actually I was dealt with fairly”, than if they go away feeling, “I really don’t know why the blazes I wasn’t allowed in”. It seems to me hugely important that we get this formulation right.
Lord Henley
My noble friend is absolutely correct. It is always difficult to make sure that any law is understandable to the ordinary man or woman in the street or the ordinary man or woman on the Clapham omnibus. It is obviously, as our noble friend Lord Lester of Herne Hill put it, sometimes difficult to make the law intelligible to even the extraordinary lawyers let alone the ordinary ones. We try to make sure that it is as intelligible as possible but, as I think my noble friend Lord Lester is aware, even with some of the simplest laws one lawyer will take one view and another will take another view. These matters are often argued in the courts at some considerable length. We try to do what we can to make things as simple as possible. I hoped that this would be a very short amendment, and I hope that the reassurance that I offered to my noble kinsman will be sufficient for him to withdraw the amendment.
Lord Avebury
The important thing is that my noble kinsman has agreed to tidy up Section 99 of the Nationality, Immigration and Asylum Act 2002. I am most grateful to him for that assurance and beg leave to withdraw the amendment.
Lord Henley
My Lords, we are speaking to my noble kinsman’s Amendment 148F, to which is attached his Motion relating to whether Clause 25 should stand part of the Bill, his new Amendment 149A and Amendment 149 in my name and his—which my noble kinsman seemed to think he got down first. I presumed I had got it down first, because my name is at the top of the list. However, we will not argue about that point because I presume that my noble kinsman is grateful for the fact that we have both come to the same conclusion on that, and I will deal with it in due course.
I say to the noble Baroness, Lady Smith, that I have also seen the briefing from the Immigration Law Practitioners’ Association on these amendments and others. I will therefore, I hope, address most of the points that have been put forward by noble Lords on these matters in my response. I will deal with the questions that she has raised and those put by the noble Lord, Lord Judd. Obviously, again—because I presume my noble kinsman is not going to press these amendments, other than government Amendment 149 —we can come back to this on Report. The noble Baroness is making signs of a writing nature at me. I will, of course, write to her in due course; I thought that she was asking for the bill—but not this Bill.
I will first set out what we think Clause 25 does and then say something about the amendments as appropriate. Clause 25 addresses the current anomaly in legislation that allows an individual to return here to appeal a decision to cancel leave, despite being excluded by the Secretary of State—that is, my right honourable friend the Home Secretary—from the United Kingdom. Exclusion is obviously a key tool in tackling those who seek to cause harm to the United Kingdom; we have to remember my right honourable friend’s key and important role in the safety of the kingdom. Exclusion is used to tackle a range of conduct, including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that, once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion and the accompanying appeal right it brings.
Of course, any such decision by my right honourable friend should be open to challenge and review by the courts. However, the Government believe that, given the nature of these cases, it is—despite what the noble Lord, Lord Judd, was saying—wholly reasonable that judicial scrutiny of the decision should be carried out while the individual remains outside the United Kingdom.
Clause 25 therefore seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The effect of that is that, upon certification, where the individual is outside the United Kingdom at the time of the decision, the in-country right of appeal under Section 92 of the 2002 Act no longer applies to such a decision and is replaced by an appeal from outside the United Kingdom only.
We accept that the power to remove appeal rights from the UK to abroad must be reserved for the highest-harm cases; this is obviously not something that can be done on a whim. This is why we have restricted such a change to individuals whose presence in the UK is certified by the Secretary of State to be non-conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of the decision.
Government Amendment 149, which is also in the name of my noble kinsman, seeks to remove subsection (4) of Clause 25. My noble kinsman has identified an issue of concern, which we want to address with our amendment. Subsection (4) would result in the lapsing of appeals against a cancellation of leave which are certified under the new certification power. These individuals will be left without any appeal right. That is not our intention. The intention of subsection (4) was to provide for an initial in-country right of appeal to lapse in the event that the decision to cancel leave was taken before the exclusion decision. However, as drafted, subsection (4) would cause all appeal rights to lapse. Removing subsection (4) ensures that all cases falling within the provisions of Clause 25 will have an out-of-country right of appeal against the decision to cancel leave.
Lord Henley
Baroness Smith of Basildon
My Lords, in the clause that my amendment seeks to address the Government are proposing to extend vastly the powers of the UK Border Agency’s customs and immigration officers. I do not necessarily oppose this in principle. We have to understand the very challenging nature of the work undertaken by border control. The nature of international and global threats is constantly changing and we have to pay tribute to the immigration officers. They have a difficult job, they work in a challenging environment, and they have suffered cuts to their numbers in the last couple of years. However, we need to look at two things.
First, such an extension of powers would need to be properly justified and explained to your Lordships’ House. Secondly, we need to ensure that those exercising those powers have the necessary skills, rank, and remit, in order to ensure public confidence in the UK Border Agency as well as confidence within it. Also, is it up to it? I do not in any way mean the individual border officers, but rather whether they have the resources, training and capacity to undertake those roles.
Clause 26 extends a number of powers to immigration officers, both under the Regulation of Investigatory Powers Act and the Proceeds of Crime Act. Those powers are significant: the power to authorise the use of covert surveillance—“intrusive surveillance”, according to the Bill—and property interference such as wiretapping and installation of listening devices, as well as powers to authorise confiscation and detained cash and money-laundering investigations. These are serious new powers to give to immigration officers. They are currently only authorised by senior officers, and they are exercised by experienced and specialised professionals. Our amendments seek to ensure that if those powers are to be extended to immigration officers, they will be exercised with the same level of expertise and seniority.
When I first looked at the Bill it seemed to contain very wide-ranging powers, and there is a case for the Government to justify those. However, I looked at the Explanatory Notes, and the amendments seek to put on the face of the Bill what is in them. The Explanatory Notes are very helpful in this regard, because they make clear—I refer to page 64 and paragraph 380 in particular—that the intrusive surveillance available under RIPA should only be extended to officers working within the criminal and financial investigation teams. The paragraph says:
“The purpose of this amendment”—
which we are talking about, and which is in the clause—
“is to provide for immigration officers working in Criminal and Financial Investigation (‘CFI’) teams in the UK Border Agency … to be able to apply to exercise property interference powers equivalent to those already used by customs officials”.
It cites the Act and legislation under which they can use them, and states that:
“CFI teams have responsibility for investigating smuggling of drugs, firearms and weapons and organised immigration and customs crimes”.
If, as I understand from the Explanatory Notes, the Government intend these powers to be used only in the specific context of criminal and financial investigation by immigration officers, then it would be helpful to state that in the Bill and be very clear about it, rather than allowing the scope—as seems to be the case at the moment in this clause—for any immigration officer to exercise those powers. I am concerned about whether training and support could be available to all immigration officers, and whether it would be for all staff or only for those above a certain rank. That gives me some cause for concern, because if all immigration officers had that power, there is then the understanding that any immigration officer could exercise that power, even without the training or the appropriate rank or experience. What is in the Explanatory Notes is therefore better than what is in the Bill, though that may be an oversight in drafting.
Amendments 149CB and 153B, which follow Amendment 149CA, are intended to probe the Government’s justification for these highly specialised powers. These probing amendments remove Clause 26(4) and (5) and paragraphs 14 to 39 of Schedule 14, which extend to the UK Border Agency’s chief operating officer the ability to authorise immigration officers’ powers of investigation into confiscation, detained cash and money-laundering under the Proceeds of Crime Act. At present, the only individuals who can exercise those powers are accredited financial investigators, police constables or Customs officials, and in the case of confiscation investigations only SOCA officers—although SOCA has now been absorbed into the National Crime Agency. Notwithstanding police constables, all these individuals work within the specific field of serious financial and economic crime. I assume that once the National Crime Agency is up and running and fully established, it will have responsibility for those crimes.
The Government need to explain and justify for what purposes immigration officers also need such powers. What will be the relationship between the immigration officers who have this power and the National Crime Agency? Earlier clauses in the Bill refer to the relationship between the National Crime Agency and local police forces, and the powers of notification. If immigration officers are given new powers, there should be the same kind of co-operation and information-sharing between immigration officers, who have such powers, and the National Crime Agency, otherwise there will be a gap to fall through; both groups could end up investigating similar crimes or there could be an overlap of crimes. It would be helpful if the Government could clearly explain for what purposes immigration officers need these powers, and why, with the existing powers they have, there could not be co-operation with the National Crime Agency.
Paragraph 381 in the Explanatory Notes says that:
“At present, the UKBA is able to authorise applications from immigration officers investigating serious organised immigration for directed surveillance and Covert Human Intelligence Sources … and the ‘senior authorising officer’ can authorise applications for intrusive surveillance”.
However, this amendment takes it one stage further, so there needs to be a little more justification and understanding. I can understand the issue around the crimes, but I am not clear why any immigration officer could have those powers—which appears to be the case in the Bill, though perhaps not in the Explanatory Notes. Why is it not sufficient to extend the powers of current specialised officers, or to work with them and the National Crime Agency? I would also be interested in some information on the training that would be given to the specialised officers. Would there originally have been any expectation that they should have any specialised skills, or would it have been something that any immigration officer could take on if they had had the appropriate training?
Finally, does the UK Border Agency have the capacity to take on this role? The following amendment, in the name of the noble Lord, Lord Berkeley, which we will discuss shortly, covers a number of issues including queues at Heathrow, where we have seen enormous pressures put on the staff. Given the current wording of the Bill, and in particular that it would seem to apply to any immigration officer, I worry about giving very wide-ranging additional powers and responsibilities to a border agency that, as we heard earlier, is struggling to maintain its current responsibilities. It has had to draft in officers from the Ministry of Defence and civil servants from other parts of the Government. I want an assurance that anybody drafted in on a temporary basis—to help out with extended queues at Heathrow, for example—would not be given the powers of entry and surveillance as outlined in the Bill.
It would be helpful if the Minister could give some answers to those questions. The new powers given to the UK Border Agency are very extensive, and it would be interesting to know the Minister’s justification of them, and how he imagines that they will operate.
Lord Henley
My Lords, I am grateful to the noble Baroness for setting out what she is trying to do in these amendments, which I take it are merely probing amendments, as I believe she said. I am also grateful that she paid tribute to the very difficult job that immigration officers do. However, she probably used rather unfortunate language when she asked whether they were quite up to it, although she qualified what she meant by that. She then said that she thought that the Explanatory Notes were possibly better than the Bill itself. Sadly, we do not have legislation by Explanatory Note. However, I am always more than happy to look again at the wording of individual clauses, should it be necessary. Again, as always, we have any amount of time to deal with these matters between now and Report and the further stages as this Bill proceeds through Parliament.
Put very simply, the noble Baroness is asking what Clause 26 is about and why we think it is necessary. The proposed extension of powers is saying that it is necessary for the United Kingdom Border Agency to have extra powers to respond robustly to serious and organised crime. Customs officials within the UK Border Agency are already entitled to apply for intrusive surveillance under RIPA and for property interference under the Police Act for the purpose of investigating customs offences. This clause will rightly extend these powers to immigration officers for the purpose of investigating serious and organised crime.
I turn to the amendments and, in doing so, I hope that I will answer some of the points. I suspect that the noble Baroness has not quite got the wording of the amendments right because Amendment 149CA achieves the opposite effect to the one she wants. It would require the authorising officer, who is responsible for authorising applications to interfere with property under Section 93 of the Police Act 1997, to be a senior official who is working within a criminal and financial investigation team of the UK Border Agency. Although I suspect it may not have been the intention of the noble Baroness, the effect of this amendment would be to restrict and potentially lower the grade of the authorising officer.
Clause 26(1) already limits the role of the authorising officer to a senior official within the meaning of RIPA who has been designated for that purpose by the Secretary of State—that is, the Home Secretary. Within the police, the relevant rank for an authorising officer would be a chief constable. Under the UK Border Agency’s structure, this would be the current director of operations and deputy chief executive. No one working in the criminal and financial investigation teams would be senior enough to equate to that grade. I am sure that the Committee and the noble Baroness share our view that an authorisation to interfere with property should not be approved by anyone less senior than that level. I should also note that the director of operations and deputy chief executive of the UK Border Agency already effectively authorises applications under Section 93 of the Police Act 1997 with regard to customs investigations.
I appreciate that this is a probing amendment but, in short, it would weaken rather than tighten the controls on the exercise of these intrusive powers under Part 3 of the Police Act 1997. All that said, the noble Baroness made it clear that she is seeking to give effect to our commitment that we will limit the exercise of these intrusive powers—that is why she wanted to know why we are seeking extra powers—to specially trained immigration officers in the UK Border Agency’s criminal and financial investigation teams. We do not, however, consider it appropriate to include such an express provision in the Bill given the existing safeguards in the Police Act 1997 and the Regulation of Investigatory Powers Act 2000. We do not have such specificity for customs officials, and the aim is to provide parity for immigration officers.
As the noble Baroness will be aware, Section 28 of RIPA provides that for a senior authorising officer to grant an authorisation for the carrying out of intrusive surveillance, they must ensure that the activity is proportionate and necessary for preventing or detecting serious crime or in the interests of national security or in the interests of the economic well-being of the United Kingdom. The Police Act 1997 also imposes similarly strict controls over the authorisation of property interference.
I appreciate that Amendments 149CB and 153B are probing amendments. They would remove the powers sought for immigration officers in relation to the Proceeds of Crime Act 2002. These powers have been sought for good reason in an attempt to improve the effectiveness of the UK Border Agency’s investigatory capability. Providing access to the relevant Proceeds of Crime Act powers will ensure that the UK Border Agency’s immigration officers are able to play their part in dealing with the proceeds of organised immigration crime.
Moreover, these provisions will place immigration officers on the same footing as their police and customs counterparts and reduce their reliance on outside bodies such as the police. At present, only the UK Border Agency’s customs officials are able to use the full range of Proceeds of Crime Act powers and even then only in relation to customs offences. Immigration officers presently have to rely on the very few accredited financial investigators within the UK Border Agency or on seconded police officers to conduct those investigations. This is clearly a weakness in the UK Border Agency’s ability to fight organised immigration crime. The Bill ultimately ensures that the UK Border Agency can take action to deal with the proceeds of all the criminal offences in its remit, whether commodity smuggling or serious immigration and nationality crime.
The noble Baroness sought an assurance that, where civil servants and others are drafted in to help, we will be able to maintain the border appropriately and that they will have the extant powers. I can give an assurance that any civil servants brought in to help check passports will not be given the powers being sought. They would obviously not have the training that the noble Baroness and we think is appropriate to do so. In any case, those who are brought in to assist with the management of queues are being brought in specifically for that purpose and not to investigate criminal activity.
I do not know what the usual channels and others are thinking about the timing of these matters or whether the noble Baroness will have to keep going for another three minutes, but I hope that, with those assurances, she will feel able to withdraw her amendment. It may be necessary for me to write to her with further detail. I have explained why I think Amendment 149CA is defective. I leave it to the noble Baroness to consider what to do with her amendments.
Baroness Smith of Basildon
I am grateful to the noble Lord. I am puzzled about my amendment being defective. I know the noble Lord has enjoyed explaining that to me on a number of amendments. I always say they are about the intention behind the amendment and that we will come back on Report with one that satisfies him.
I understand that the Explanatory Notes are not part of legislation, as the Minister pointed out to me the other week—I am rather long in the tooth in regard to some of these things—and I am sure that they are not intended to be misleading. They state:
“The purpose of this amendment is to provide for immigration officers working in Criminal and Financial Investigation … teams in the UK Border Agency … to be able to apply to exercise”—
and then they go on to say what those powers are.
I will have to read very carefully what the Minister said in Hansard to make sure I fully understand what he is saying about it not being exclusively those officers—even though the Explanatory Notes say it would be—but that it would be other officers of a certain grade and level.
I said at the very beginning that we are not opposed to the extension of powers in principle, but we just need to understand the Government’s justification and to have some explanations and clarifications. I will read the Minister’s comments in Hansard to clarify the position for myself, but I wonder whether he is talking about slightly different things. At some point, he may have been talking about the authorisation of the action, while I am talking about the officers undertaking the surveillance as well. I hope we have not misunderstood each other. I want an assurance that the officers undertaking very intrusive forms of surveillance—perhaps phone tapping, as it says in here—will not just be authorised by a senior officer, but will have the appropriate skills, experience and training and that safeguards for the public are built in. This is a probing amendment but it may not remain one. We want to look at this a bit further and in more detail, but I am grateful to the Minister for taking time to explain some of the measures. I will look at what he has said in Hansard and I may come back to him on the point about who will have the powers and what training will be provided and I shall also look for an assurance that it will not undermine the skills of existing police officers.
One area on which the Minister did not respond was the relationship between such officers and the National Crime Agency. Given the debates that we have had earlier during the passage of the Bill, it would be helpful to explore the relationship that border officers, who deal with organised and serious crime issues as regards immigration and border control, have with the National Crime Agency, which is a national police force for organised and serious crime. We need to explore that further. I would be happy for the Minister to write to me on that point. I am happy to withdraw my amendment.
Immigration: Foreign University Students
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The Minister of State, Home Office (Lord Henley)
My Lords, the United Kingdom uses the internationally agreed definition of the migrant, which is someone who comes here for over 12 months. It is right that students staying for that period are counted because during their stay they are part of the resident population. It would damage public confidence in statistics to discount them.
Lord Hannay of Chiswick
My Lords, I thank the Minister for that somewhat familiar reply. The main reason he has given in replies to earlier questions—he has just given it again—for not changing our present practice of classifying students for policy purposes in the net migration figures is the existence of a UN guideline to the effect that anyone who stays for a year is a migrant. Can he confirm that the guideline does not have the force of international law, is therefore not binding on the British Government and, further, is not applied in the calculation of net migration figures for policy purposes by our main competitors in the higher education sector—the US, Canada and Australia? Is it not about time that the Government ceased to handicap the most rapidly growing and most promising invisible export sector we have?
Lord Henley
My Lords, I fail to understand what the noble Lord and Universities UK are getting at in their objections to us applying proper statistics as agreed by international convention, which is what we follow. If the noble Lord is suggesting that by changing the way we count the statistics, we will make life easier for universities, again I fail to understand him. I do not see why they are discouraging undergraduates from coming to this country. All we require of the students is that they show an ability to speak English and that they have an offer of a place at a university in the United Kingdom. The statistics simply do not come into it, so fiddling with them would discourage students because it would imply that probably the only subject they ought to come here to study would be statistics.
Lord Eden of Winton
Can my noble friend assure the House that nothing is being done now that would in any way damage or reduce the substantial economic benefit that bona fide foreign students bring to this country, in particular to our universities, colleges and academies where the English language is taught? It is important that this should continue unabated.
Lord Henley
My Lords, I totally agree with my noble friend, and we want to continue to encourage them to come here. I do not see why changing the statistics is going to discourage them. We have, in fact, seen an increase in the number of students who come to reputable and proper universities, and a reduction in the number of those who come to bogus colleges and schools, who come here not to learn but to work.
Lord Winston
My Lords, is the Minister aware that Britain is regarded by foreign students outside the EEC as a no-go area? I see that that is the case when I visit the United States and see foreign students there. Is he also aware that the Home Office has completely inadequate data on what universities students go to when they enter this country, what courses they take, and what happens to them? Is it not about time that the Home Office made much better preparation of these data so that we can police this better?
Lord Henley
My Lords, what the noble Lord says is complete nonsense. Britain is not seen as a no-go area; we are seeing an increase in the number of students coming here to reputable universities. If this was a no-go area there would be a decrease in the numbers of students.
Baroness Prashar
My Lords, now that the Government have taken the steps to deal with bogus students, what steps are being taken to encourage bona fide and genuine students to come to the UK, and who is taking responsibility for that?
Lord Henley
My Lords, it is for the universities themselves to encourage people to come to them. As I have put it on a number of occasions, we want to control the bogus students. We have not seen a reduction in the number of proper students who come to proper universities. We have, in fact, seen an increase over the years, and I do not see why any changes we make to the way in which we count our immigration statistics are likely to discourage people from coming to this country.
Baroness Hollis of Heigham
My Lords, the Minister will be aware, as the House is aware, that 60% of overseas migrants to this country are students, and the Government are concerned to cap the number of overseas foreign migrants to this country. However, the Minister will surely also be aware of his own Home Office research of November 2010, which shows, as other contributors to your Lordships’ debate have said today, that 96% of students who are registered for degrees at bona fide universities return home at the end of their course. We are talking not about statistics here but about policy. Can the Minister therefore not put students who apply for bona fide degrees, and all the gains between this country and their home countries, in a different stream from the Government’s efforts to cap foreign migrants who come to this country?
Lord Henley
We are, in fact, talking about statistics. The Question is about statistics and about how—
Lord Henley
That is what the Question is about, and I am answering it in those terms. We are talking about the statistics and how we measure the number of migrants coming here. Merely changing the way that we count those immigrants does not affect students coming into this country. I simply do not see how the way in which we count overseas students makes any difference to the decision made by them as to whether they come here. The only restriction we impose on them is that they have to speak English and need an offer of a place at that university.
Baroness Brinton
My Lords, given the Minister’s response to the noble Lord, Lord Hannay of Chiswick, is he aware of the OECD definition of permanent migration, which has a subset that specifically excludes international students? On this basis, does the Minister agree that the UK should follow the example of the USA, Canada and Australia, all of which use this subcategory from the overall immigration numbers?
Lord Henley
We should follow the United States, Australia and other countries that the noble Baroness mentioned, and stick with the United Nations measures, and that is what we will do.
Police and Crime Commissioner Elections (Functions of Returning Officers) Regulations 2012
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Crime and Courts Bill [HL]
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The Minister of State, Home Office (Lord Henley)
I assure the noble Baroness that I visit Durham with great regularity; it is not far from home and I am always delighted to visit any police force anywhere in the country, but even keener to visit police forces in the north of England. I will make a point, sometime over the summer, if I can arrange it, to do just that.
Baroness Butler-Sloss
I endorse what the noble Lord, Lord Blair of Boughton, just said. I had the great privilege of being invited to Bramshill on several occasions to speak to different groups of police about family issues. The time I particularly remember was being left with the most senior group being trained, who I understood were destined for high office. I was introduced in two sentences and the door was shut, and I was facing about 50 men—as it happened the group was made up entirely of men—many of whom were not from United Kingdom police forces. Having somehow or other got my way through that, I learnt, when going to lunch, how enormously valuable it is for the police forces round the world to have the opportunity to go to Bramshill. It is a wonderful institution and I hope, as the noble Lord, Lord Blair said, that it will be given the greatest possible respect and encouragement to remain doing what it does so well at the moment.
Lord Henley
I will start at the end of the debate and deal with questions relating to both Bramshill and Harperley Hall. I ought to declare an interest in relation to Bramshill House. A branch of the Henley family lived there many years ago. That was not my own branch but a branch to which I am connected. It might be that they built it and lived there for a couple of hundred years. Later on it became a police college. I must declare that interest. As the noble Baroness, Lady Armstrong of Hill Top, knows, I also have—as she does—a hereditary interest in Durham. My family comes from there. As I said, if possible I will visit Harperley Hall and see what it does. I agree with her that its work is very important.
I want to get over the message that no decision has been made on either of these sites, particularly on Bramshill, but that we will be making a decision fairly soon. I should stress—all noble Lords should be aware—that Bramshill is a very expensive property. It costs something of the order of £5 million a year merely to maintain it. That is before one has thought about its actual function as a police training college. I also understand how important it is to the entire police service. I was a Minister many years ago in the MoD at about the time that we were thinking of disposing of Greenwich. I understood the importance of that to the Navy. I understand that Bramshill plays a similar role for the police service so any decisions on that will obviously be difficult to make. I hope that all noble Lords will accept that they will have to be made in due course. My right honourable friend the Home Secretary will update both Houses in due course with her thoughts on these matters.
I want to try to answer the various questions on the abolition of the National Policing Improvement Agency that were put by the noble Baroness, Lady Smith, and echoed by other noble Lords. She wanted to know about our rationale. She wanted an estimate of the savings and to know where the functions are going, whether the abolition will increase the funding burden on other police forces, whether it would lead to a loss of expertise, what the police professional body is going to do, what is its likely shape and what is the timing.
The most important thing is to get over the rationale behind the changes. I hope that in doing so I will answer some of the questions that have been put by other noble Lords. I was grateful that the noble Lord, Lord Harris of Haringey, in posing his group of questions on this, which were slightly different from those of the noble Baroness, although they come to the same point, accepted that the agency is not working as well as it might—I think those were his words—so this is not a decision that we want to get wrong.
All our reforms of the policing landscape must be underpinned by clarity of responsibility and appropriate governance arrangements to support an effective and efficient law enforcement response. We accept that the National Policing Improvement Agency has done much to bring about welcome changes to policing but now, in the context of these reforms, is the time to review its role and contribution. The closure of NPIA is a crucial element in a wider programme of reform that is reshaping the way that our policing is delivered and supported to provide a service better equipped to meet the challenges of the future.
Since the agency was established in 2007, its mission has grown considerably. It has operated and managed the development of the police service’s most critical national services, provided specialist operational services to police forces, helped to improve policing practice and developed national learning, leadership and people strategy products. We believe that that is a broad agenda for one agency to deliver and that the agency has collected too diverse a range of functions and responsibilities to retain strategic coherence. Put very simply, we think it has grown like Topsy. Despite some achievements, the agency’s mission is now too unfocused to deliver efficiently and effectively the level of professionalism that we need to see in policing. In these challenging times, we cannot afford to support organisations that are unfocused or unclear about their priorities and accountabilities. To support our wider policing reforms, we need focus and attention at the national level in priority areas. Closure of the agency provides a timely opportunity to ensure that key functions are given greater priority in successor bodies.
If I wanted, I could go through the areas where all the different bits are going and say which bits are going to the National Crime Agency, which are going to the Home Office and which will go to the new professional policing body. I do not know whether it would assist the Committee if I went through all those in detail or whether it would be easier to write a letter in due course and put a copy in the Library.
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.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for taking the time to go through many of the points and concerns I raised. Despite his efforts, he has not alleviated all those concerns. He called the closure of the NPIA a timely opportunity. It is an opportunity the Government created because they wanted to close the NPIA. I can certainly take on board some of his points. I can understand wanting to streamline the agency and the functions that he thought were better placed with other organisations. My amendments never suggested that there should be no change, but given the change that the NPIA itself had made, full abolition seems unnecessary. I am still not satisfied that the way in which it has been undertaken has not been piecemeal, as and when the Government think a part of it can be moved somewhere else. The Minister will have understood the concerns from around the House on this, not just on these Benches. I wonder whether he has read Lewis Carroll’s Alice in Wonderland? It may have been some time ago, but I will refresh his memory. There is a trial scene and the comment is made: “Sentence first—verdict afterwards”. That is what has happened with the NPIA. The Government decided that the NPIA was to go and then had to work out where all the functions went. They are still doing this. Yes, it was big for one agency; it grew like Topsy, because new functions came along that were best undertaken there; there was room for improvement and change; but the baby has gone with the bathwater.
On timing, the noble Lord says that all these arrangements will be in place, I note originally, by spring 2012. He may have been relying on typical British weather, but it still does not feel like spring 2012 even now. They are now expected at the end of the year. I expect we may see a further spring—perhaps snow again—before these bodies are in place. The police professional body has no chief executive, no chairman and no board. As we heard from my noble friend Lord Harris of Haringey, the new IT company does not have all the processes or financial arrangements in place to enable a smooth transfer. This is an issue that we will have to return to, in order to fully understand and be assured that all the “t”s have been crossed and the “i”s have been dotted. When I looked at the new landscape of policing and what the Government said back in 2010 and 2011, it seems that the goalposts have moved. All we had then was a broad outline. Now we have some detail, but the flesh is not on the bones. I would understand if the Minister said the timescale cannot be met and we are re-examining it. He has not said that, so we will return to it on Report and look at some of the functions and how they will be carried out. For now, I beg leave to withdraw my amendment.
European Court of Justice: Jurisdiction
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Lord Vinson
To ask Her Majesty’s Government whether they will exercise their right, as agreed in the Lisbon Treaty, to opt out of the extension to the United Kingdom from December 2014 of the jurisdiction of the European Court of Justice over crime and policing laws.
The Minister of State, Home Office (Lord Henley)
My Lords, the Government are considering carefully the many different factors involved in this decision and its implications. I am aware of the level of interest in the decision, which we have to make by the end of May 2014. We want to ensure that both Houses of Parliament have the opportunity for a full debate and vote on the issue.
Lord Vinson
I thank the Minister for his considered reply. However, does he agree that we now have the opportunity, at this critical time for the EU’s future, to confirm our opt-out from the EU’s overall control of our policing and justice system? I am sure he appreciates that to opt in would be the final surrender of our sovereignty. Our Ministry of Justice would become largely redundant as the ECJ became our supreme court. We would effectively become a province in the republic of Europe. Will the Minister confirm that the Government are well aware of the severity of this choice for our nation and will inform the wider public accordingly?
Lord Henley
My Lords, as I said in my original Answer, we are committed to making a decision by May 2014. It is a very important decision and we understand its severity. That is why we have committed ourselves to a debate in both Houses of Parliament, followed by a vote. In the end, the decision will be based on what is in the interests of the United Kingdom. My right honourable friend has given that assurance.
Lord Hannay of Chiswick
My Lords, the Minister will recognise that in January 2011, when committing the Government to a vote in both Houses on Protocol 36, the Minister for Europe said in another place:
“The Government will conduct further consultations on the arrangements for this vote, in particular with the European Scrutiny Committees, and the Commons and Lords Home Affairs and Justice Select Committees and a further announcement will be made in due course”.—[Official Report, Commons, 20/1/11; col. 51WS.]
Will the Minister say what sort of consultations they have in mind and what their timing will be? Does he agree that all these consultations need to take place in a deliberate and fully transparent way if the subsequent vote in both Houses is to be conducted on a sound evidential basis?
Lord Henley
My Lords, the precise words that the noble Lord used about the Government conducting further consultations—I could go on—are in front of me in my brief. I agree with them and that is what we committed ourselves to in January 2011. How we conduct those arrangements will be a matter for discussions in the appropriate place at the appropriate time between the European Scrutiny Committees and the Commons and Lords Home Affairs and Justice Select Committees. We need to discuss these things with a number of different committees. I make it clear to the House and the noble Lord today how seriously we take this and why we think it vital that we eventually have that debate and vote in both Houses.
Lord Anderson of Swansea
My Lords, when the Government come to make this important decision, will they recognise that ordinary British citizens are less inclined to be concerned about abstract notions of sovereignty than about the ways in which they will be protected when they are in other European countries? There are very cogent arguments in favour of European harmonisation in these areas.
Lord Henley
My Lords, there are arguments and ordinary citizens would accept some of them. However, ordinary citizens would also accept that some things are better looked after by our own Parliament back in the United Kingdom. That is why we will make the appropriate decision at the appropriate time, after we have listened to both Houses and voted on the matter.
Baroness Hamwee
My Lords, does the Minister agree that there is a great deal of and a great variety of cross-border crime? If he does, does he also agree that it is important that the UK puts itself into a position where we have most influence and the greatest opportunity for leadership?
Lord Henley
My Lords, again I totally agree with my noble friend on that matter. But it means that we have to make very difficult decisions at the time about what is precisely in the United Kingdom’s national interest. We will not make a decision on all 133 measures before that. There might be individual measures, as my noble friend will be aware, on which we might have to make a decision before then. But as a totality we will leave this to 2014.
Lord Dubs
Will the Minister confirm that the Government have no intention of opting out of the European arrest warrant, which, for all its faults, is still the best way to ensure that criminals—some of whom commit very serious offences, including terrorism —are brought to justice in this country?
Lord Henley
My Lords, the European arrest warrant was one of those matters agreed to before 2009. Therefore, it is covered by what we are discussing today. As I have said, we will make our decision at the appropriate time in 2014. It might be that we feel that in the national interest we do want to opt out of it; it might be that we do not. But I think that we will leave that to another day.
Lord Pearson of Rannoch
My Lords, of the 133 measures mentioned by the noble Lord, which were still outstanding before our opt-out last December, does he accept that the Government have already opted in to eight of the most important? Can he therefore give the House an assurance that the Government will not opt into these measures one by one so that there is very little to opt out of when we come to the end of May 2014?
Lord Henley
My Lords, as I think I made clear, I do not want to go through all 133 measures at this stage. The House would not like it at Question Time and it would not be an appropriate use of the limited time I have. We will make appropriate decisions on some of them beforehand if it is appropriate but the larger number is a matter for 2014.
Lord Deben
My Lords, will the Minister confirm that there is more than one view on this side of the House and that the way in which we should discuss this should be as unemotional and as factual as possible, and that we do not help the argument by bringing what can only be called extreme views into the discussion?
Lord Henley
My Lords, to put it very simply, I agree with my noble friend that there is more than one view on this side of the House. There is possibly more than one view on the other side of the House and more than one view in all corners of the House. I agree with every aspect of what my noble friend has said.
Crime and Courts Bill [HL]
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Baroness Hamwee
My Lords, I did indeed raise questions about the contents of the framework document. Before we started our debate on Monday, when I was going through the amendments and got to this pair of amendments, I put a tick against them. I have deleted the tick for reasons which will not be very welcome to my noble friend. I am not convinced that an order would allow us to debate the framework document in the way that we would like to see. We need a lot of detail about it. As we all know, the drawback with an order is that we cannot amend it. Methods of operation, methods of exercising functions and administration, including—I have already questioned this—governance and finance, are very big issues.
I therefore hope that the Minister will, if not today, soon be able to tell us that his “due course”—not just his, I am not impugning him—arrives soon, so that we can understand a good deal more. Although I well understand the approach that the noble Baroness has taken, I am not entirely sure that it takes us as far as many of us would like to go.
The Minister of State, Home Office (Lord Henley)
My Lords, I understand what the noble Baroness is getting at and how she wants to provide for the framework document to be subject to some parliamentary procedure —for it to be laid before Parliament. She went on almost to suggest that there was some conspiracy by the Government on this Bill and others in the lack of framework documents and how late they were coming. I think I made it quite clear back on Monday—it seems a long time ago now, having gone through another Bill, as the noble Baroness and I and the noble Lord, Lord Beecham, have done—that we very much hope to get at least an outline of the framework document in front of the House before we come back to the Bill at Report. It is important to point out that that is quite an early stage in the passage of this Bill as, unusually for important Home Office Bills, it is starting in this House. We cannot even claim to be the revising Chamber on this occasion because we are getting it first. We are dealing with it relatively slowly because of the delay we are having over certain items which we want to debate in early October, so that I can miss the Conservative Party conference. After that, it also goes on to another place so there will be considerable time for this House and another place to discuss these things in some detail.
Perhaps I may set out what the framework document is designed to do and what we think ought to be in it. The purpose of the document is to set out clearly and transparently how the Home Secretary and the director-general will work together—it is between those two—and the ways in which the NCA is to be administered. It is expected to include the agency’s corporate governance arrangements, the high-level arrangements for financial accounting and reporting, and how the agency will discharge its duty to publish information and promote transparency, including the classes of information which it will publish. It will obviously be a very important document, dealing with how the NCA is to operate, but it will also build on and be clearly subsidiary to the clear foundations set out in the Bill. As we have already debated, the Bill establishes a clear governance model for the NCA; namely, as a Crown body with an operationally independent director-general at its head, appointed by and accountable to the Home Secretary for delivery against the Home Secretary’s strategic priorities for the agency. The agency will be under the direction and control of the director-general and its functions and powers are, again, clearly set out in the Bill.
We have provided in Schedule 2 for the framework document to be laid before Parliament, the Scottish Parliament and the Northern Ireland Assembly, as the NCA will cover all parts of the United Kingdom. We believe that, given the nature of the document, this is the appropriate level of parliamentary procedure. The Delegated Powers and Regulatory Reform Committee made no comment on these provisions so, on that basis, we are on relatively firm ground in assuming that it was content with laying that procedure. Finally, as I think I suggested earlier, the Serious Organised Crime and Police Act 2005 did not even provide for a framework document, let alone one subject to an affirmative procedure, so this provision is an important advance on what has gone before in relation to the Serious Organised Crime Agency.
I appreciate that the noble Baroness would like it to be produced by statutory instrument and produced, as I think my noble friend put it, in due course. I came under a suggestion of pressure that I ought to define what “due course” meant. It is always difficult to define that. I am sure that the noble Baroness will probably remember promising things, when she was a Minister, “some time in the future”, “in due course” or whatever. We have all done this—I remember promising something “later in the spring” and being faintly embarrassed that that turned out to be July. I think most noble Lords understand what I am getting at. I am trying to promise her that we will get at least an outline of this by Report but, as I said at the beginning, I stress that that is an early stage in the process that this Bill is going through. It is starting in this House and still has to go through another place, so we have considerable time. Both Houses of Parliament will get a chance to look at that outline document. I hope therefore that the noble Baroness, who has an understanding of what “in due course” or “shortly” might mean, will feel able to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister is trying to be helpful, but that was an extremely unsatisfactory answer. I hope I misunderstood him when he said that he hopes to have an outline of the framework document by Report. I think he misunderstands the point that I am trying to make. I am not merely making the point that we want the document to have parliamentary scrutiny, important though that is, but that the framework document will inform our debate on the rest of the Bill. Not having it hampers our debates and our ability to scrutinise. This is not an isolated point about parliamentary scrutiny. Had we had the document here now, as we should have, our discussions on other aspects of the Bill would be easier and better informed because it seems to me that a lot of the information that the framework document contains is relevant to the discussions we are having. I hope the Minister understands the point I am making.
I take on board the comment by the noble Baroness, Lady Hamwee, about an order being inadequate. I entirely agree with her, but I think that anything that we are able to do at this stage is wholly inadequate because we want to have the document with us now. It is not good enough for the Minister to say that we will have an outline for Report. I do not think that we can pray in aid that this is an early stage of the proceedings and that the Bill is going to go to the House of Commons. This House has a duty to do its job, which is to scrutinise legislation. It is being hampered in doing so by not having the documents. The fact that they will be available to the House of Commons is not enough. I appreciate that the Minister has tried to be helpful, but he has not satisfied me on this point. I shall not press this matter to a vote today, but the Minister will recognise that there is unease around the House, not just on our Benches, on this point.
Lord Henley
I appreciate that the noble Baroness feels that it is important that there should be an order. Should we accept her amendment and have an order, it would not produce the framework document, or even an outline, any earlier. I am saying that we will get that outline during the passage of the Bill. If the noble Baroness were purely to rely on her amendment, she would not get it until after the Bill. That is my understanding of how her amendment works. I have given her an assurance from the Dispatch Box that we will get an outline by Report that will assist our discussions later on. I hope that is hopeful to the noble Baroness and I appreciate that she is going to withdraw her amendment. It would at least allow her, with luck, to discuss these matters on Report.
Baroness Smith of Basildon
Again, I think the Minister is trying very hard to be helpful. I think I said that any proposal we put forward at this stage is inadequate. I withdraw the amendment at this stage, but this is a subject to which we will be returning.
Lord Henley
My Lords, I will deal first with the various points raised by the noble Baroness, Lady Smith, and then move on to the rather more complicated question about paragraph 4(2) of Schedule 2 and its relationship to sub-paragraph (1), as raised by my noble friend who, as always, bowls googlies of a sort that are designed to get behind one.
The amendment of the noble Baroness, Lady Smith, would remove the requirement for the Home Secretary to obtain the consent of the director-general of the NCA before issuing the framework document. I am faintly unclear as to why she seeks to remove this provision. Does she want that framework document imposed on the director-general? That is what would happen under the amendment—there would no longer be that consultation. As I have indicated, the framework document will set out the relationship between the Home Secretary—
Baroness Smith of Basildon
I apologise for intervening. The noble Lord said that my amendment would result in there being no consultation. I am not trying to prevent consultation. Paragraph 4(1)(a) says:
“The Secretary of State must … consult the Director General”.
I am entirely happy with that; it is completely appropriate. It is the reference in paragraph 4(1)(b) to obtaining the consent of the director-general that I am concerned about. I am sorry if I was not clear.
Lord Henley
Therefore, there would still be consultation but there would be no need for consent. However, as I said, that would imply that the Home Secretary could impose that on the director-general. We believe that the document is designed to set out the relationship between the Home Secretary and the director-general and, as I said on an earlier amendment, how the NCA will operate, including its governance, management and transparency arrangements. Therefore, the director-general will have a proper interest in making sure that it reflects his or her operational view of the NCA. Since the director-general will ultimately be accountable to the Home Secretary for delivering the NCA’s priorities, it is absolutely right that his consent should be gained to crucial decisions about how the agency is administered. It is right that we should stick to that process. I hope that the noble Baroness will agree that the framework document should be agreed between the two, with both consultation and consent.
I turn now to the trickier question—the googly that I referred to—that my noble friend asked as regards paragraph 4(2) of Schedule 2, which states:
“The Director General’s duty to have regard to the annual plan in exercising functions does not apply in relation to functions under sub-paragraph (1)”.
I think that that is relatively clear, although my noble friend obviously does not. All it does is remove the director-general’s duty to consent from those under paragraph 1(1)(a), which refers to,
“ways in which NCA functions are to be exercised (including arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA)”.
I could go on with the rest of that paragraph. I am hoping for advice to come through at this stage.
The important idea to get over is that the framework document and the annual plan are different and have to be dealt with in different ways. The framework document sets out the relationship between the Home Secretary and the director-general of the NCA. The annual plan allows the director-general to set out the activity planned for the year ahead and must take account of the arrangements set out in the framework document. Therefore, in his role in respect of agreeing to the framework document, he cannot have regard at that stage to the annual plan, which comes out later. I hope that that makes matters clearer to my noble friend. I see a faint degree of nodding from her as well as a faint smirk on her face. I hope that it is a smirk of agreement. I will sit down and hear whether my noble friend agrees with what I have said.
Baroness Hamwee
It was not a smirk but possibly mild hysteria. The Minister has confirmed that, to the extent that the two documents have any relationship to one another, the framework document is the primary document. He is nodding at that. I apologise because my point was not intended to be a googly. Anyone who knows me will know that the high point of my sporting career at school was questions such as, “Sally dear, can you see the ball?”. I really am not trying to be difficult. I am grateful to the Minister. I will read it again several times.
Lord Henley
From my noble friend’s confession, I think that her sporting career at school was possibly somewhat similar to mine in terms of its disastrous nature but I shall leave that as another matter. I am grateful for her acceptance. I think I got that right and that I have satisfied the point that she makes. Therefore, I await to see whether the noble Baroness, Lady Smith, wants to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I suspect that I had a slightly more successful sporting career at school than either noble Lord; many an ankle has been bashed with my hockey stick.
I remain puzzled on this matter. The Minister has said several times that the framework document sets out the relationship between the Home Secretary, the Secretary of State and the director-general. But nowhere in the schedule does it say that about the framework document. In part, our discussions are hampered by not having the document, which we look forward to seeing in due course.
The Minister made the point about the relationship between the framework document and the annual plan and how the framework document came first. However, it might not always come first because, under paragraph 2 of Schedule 2, the Home Secretary can reissue a framework document at any time, in which case the annual plan may already exist when a new framework document is published. It could get even more confusing. I shall take this away and ponder, as I think the noble Baroness, Lady Hamwee, will equally do.
I still do not accept that it is appropriate for the Secretary of State to seek consent. Consultation, if it is genuine and takes note and not just an exercise for the sake of it, would be the adequate and proportionate way forward. But I beg leave to withdraw the amendment.
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.
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 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.
Lord Rosser
My Lords, this has certainly been an interesting debate. It seems to have created a certain amount of disagreement and passion. I think I heard the Minister say that my amendments would call into question the operational independence of chief constables. I find that rather odd coming from the government Front Bench since the reason for our opposition to police and crime commissioners in the first place was that that was one of the things that it would cause, so to have it thrown at us that we are putting forward amendments that would put at risk the operational independence of chief constables frankly seems a bit rich.
As my noble friend Lord Harris of Haringey said, it is not clear whether the Government’s principal argument is the use of the word “must” in the amendments. The Minister has said that if there had to be consultation with the police and crime commissioner, that would cause delay, and it might be an emergency. However, am I not right in saying that if the director-general approached a chief constable for a voluntary agreement and could not get it, the director-general would then have to go to the Secretary of State to get a direction authorised? Future amendments will tease out whether that is the case, but if it is, that would certainly cause a delay, which is apparently of concern to the Minister.
If there were provision for consultation with the police and crime commissioner, it might help the situation—although I do not think that this has occurred to the Minister—in that the police and crime commissioner might step in if there was any doubt or difficulty over the chief constable coming to a voluntary arrangement with the director-general.
I mentioned that there could be reasons why the police and crime commissioner might want to know, or why there should at least be a requirement for the police and crime commissioner to be consulted, if the chief constable wanted the director-general of the National Crime Agency to perform a task on their behalf, because there could be a difference of view with the police and crime commissioner about whether it was a matter that their own police force should be competent to deal with or whether it was helping to cover up a failing in their own police force. I notice that the Minister declined to address that point.
My noble friend Lord Harris of Haringey pointed out that if the difficulty is the use of “must”, one could produce wording that made it clear that if there were difficulties over time constraints, that requirement would not be there. I got the impression that when my noble friend put that point directly to him, the Minister rather backed off from the argument that there might not be time to consult a police and crime commissioner.
The whole basis of the Government’s approach appears to be as it was during consideration of the 2011 Bill, now an Act: that is, a belief that there is some clear guideline distinguishing what is operational—which in the Government’s view is the responsibility of the chief constable—and the powers of the police and crime commissioner. I am afraid that we did not think during the passage of the Bill, nor do so now, that this clear guideline, which it is obvious the Minister still believes in, exists. There will be grey areas as to whether a matter is solely operational or whether it impinges on the police and crime commissioner’s responsibilities, which are fairly wide-ranging. They include issuing a police and crime plan, which is required by law, to set out a number of matters relating to the policing of the area which the chief officer of police is to provide, and a duty to ensure the effectiveness and efficiency of the chief constable’s arrangements.
I also made the point, picked up on by my noble friend Lord Harris of Haringey, that the tasks that the director-general might require or ask a chief constable to perform are of unspecified magnitude, scope or significance in relation to resources or impact. I note that the Minister did not seek to assure us in his response that these tasks would be minor and would not have an impact on resources. I therefore assume that the point that I made is valid: that these are tasks of unspecified magnitude, scope or significance in relation to resources or impact. To believe that a chief constable could come to an arrangement with the director-general to perform a task that had a significant impact on resources without any consultation with his or her own police and crime commissioner being required in the Bill seems, as my noble friend said, to denigrate the position and authority of a police and crime commissioner.
I have made the points that I wish to make to the Minister. I hope that, despite his response, he will reflect further on our debate and ask himself whether it is really impossible to write into the Bill a provision that there must be—or if he does not agree to “must”, that there will in normal circumstances be—consultation with the police and crime commissioner. If he was prepared to consider that, the Government would save themselves potential difficulties in the relationships between a police and crime commissioner, the director-general of the National Crime Agency and chief constables.
Lord Henley
“(4A) Subsection (4) authorises an NCA officer to disclose information for the purpose of the exercise of—
(a) the functions of the Lord Advocate under Part 3 of the Proceeds of Crime Act 2002 (“PCA 2002”), or(b) the functions of the Scottish Ministers under, or in relation to, Part 5 of PCA 2002,only where the information has been obtained by the NCA in connection with the exercise of a function under PCA 2002 (other than a function under Part 6 of that Act).(4B) Where information has been obtained by the NCA in connection with the exercise of a function under Part 6 of PCA 2002 (revenue functions), subsection (4) does not authorise an NCA officer to disclose the information.
(4C) But an NCA officer may disclose the information if the disclosure is—
(a) to the Commissioners for Her Majesty’s Revenue and Customs,(b) to the Lord Advocate for the purposes of the exercise by the Lord Advocate of the Lord Advocate’s functions under Part 3 of PCA 2002 (confiscation: Scotland),(c) to any person for purposes relating to civil proceedings (whether or not in the United Kingdom) which relate to a matter in respect of which the NCA has functions, or(d) to any person for the purposes of compliance with an order of a court or tribunal (whether or not in the United Kingdom).”
Lord Henley
In moving Amendment 45, I wish to speak also to Amendments 59 to 63. I offer a brief apology to the Committee if it appears that I have been moonlighting and leaving too much work for my noble friend to do. However, I can give an assurance that I will be responding to the next half-dozen amendments. I congratulate the Committee on the extraordinary speed with which we are dealing with the Bill. That is refreshing and encouraging.
These amendments make a number of technical changes to the provisions in Clauses 7 and 12 and Schedule 7 which deal with the disclosure of information. I imagine that we will deal with that in greater detail when we get on to the clause stand part debate relating to Clause 7.
Amendments 45 and 61 relate to the disclosure of information obtained under the Proceeds of Crime Act 2002. The amendments address a lacuna in the drafting of paragraph 6 of Schedule 7, which inadvertently prevents the onward disclosure by an NCA officer of information obtained under the Proceeds of Crime Act other than information obtained under Part 6 of that Act, which relates to sensitive personal tax information and is therefore subject to specific restrictions. The default position is that information obtained by an NCA officer should be capable of being further disclosed for a permitted purpose; for example, the prevention and detection of crime.
In the case of information obtained under Part 6 of the Proceeds of Crime Act, Amendment 45 also creates a separate gateway for the onward disclosure of such information, but only to specified persons such as the Commissioners for Revenue and Customs. In substance, the new provision is designed to achieve the same end as paragraph 6 of Schedule 7 which it replaces.
As these provisions in respect of information obtained under the Proceeds of Crime Act primarily seek to authorise the disclosure of information rather than apply restrictions to such disclosure, we have taken the opportunity to move the provisions to Clause 7, as we believe they sit better there.
Amendment 59 to Clause 12 clarifies the relationship between the powers as to the disclosure of information and the restrictions on disclosure set out in Schedule 7. Clause 12 specifically provides that a duty to disclose information has effect subject to Schedule 7. This amendment simply applies the same principle to any power to disclose information.
Amendment 60 is a drafting amendment in respect of the definition of a relevant authority in paragraph 2(3) of Schedule 7. Amendments 62 and 63 clarify the rules governing the onward disclosure of information provided by an NCA officer where such information is in a public document. Our intention, for obvious reasons, is that there should be no restrictions on the onward disclosure of information contained in a public document issued by the NCA: for example, information contained in the annual plan or report, or in the framework document, or which has otherwise been made available under the duty to publish information provided for in Clause 6. The new paragraph 9A of Schedule 7, as inserted by Amendment 63, sets this out in clearer terms than is the case with paragraph 7(2)(a) which it replaces.
I hope that that brief explanation is sufficient and that the letter which I think I sent detailing these matters assisted noble Lords opposite. I beg to move.
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 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.
Baroness Hamwee
I am not sure that it is insight, but the noble Lord is right to raise the point. I hope that he will at least feel that I can intervene on that basis, even if we are without insight. Schedule 7 states that this part of the Bill does not authorise disclosure in contravention of the Data Protection Act or the Regulation of Investigatory Powers Act. If there are other general statutory provisions that would override the situation that the noble Lord is talking about and would always apply, it needs to be made clear that someone may disclose, subject to other statutory provisions. I do not know whether what I have said takes the matter any further but I, for one, am now convinced that there is an issue.
Lord Henley
I am sure that there is no issue here and that the noble Lord, Lord Harris of Haringey, is not suggesting some conspiracy theory that these words mean something different from what I suggested they mean. That is why I said that one should look at what is there on the packet. However, I suspect that the best thing to do would be for me to write to the noble Lord and make sure that that is copied to his colleagues on the Front Bench and my noble friend Lady Hamwee; and if there is any problem, we can deal with that in due course. I am sure that there is no problem, and that the matter is straightforward and can be quickly resolved. Does the noble and learned Lord agree? Perhaps I can call him the noble and learned Lord, because he is so good at these drafting matters that I will elevate him on this occasion. If he is happy with that, I will leave it to the Committee to accept Clause 7.
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.
Lord Henley
My Lords, first, I apologise to my noble friend. I think I have the gist of what she was saying about Amendment 46B, but I have to confess that there was a brief conversation between me and my noble friend the Chief Whip, which meant that I might have missed some of the points she made. I hope that I still grasped what she was saying and that the response I am able to give her will be sufficient. If not, I will have to write to her.
On Amendment 46B, as an employer, the National Crime Agency can be held to account for any unlawful conduct by its employees during the course of their employment. That does not therefore need to be set out in the Bill. The NCA will be liable for its specials actions in the same way that it would be liable for the actions of any other NCA officer. Given that the NCA will not operate in isolation and will be tasking and co-ordinating wider law enforcement, having clear lines of accountability for the NCA and its partners is important.
Paragraph 2 of Schedule 4 provides important clarity as to exactly when the NCA will be held to account for the unlawful conduct of a person who is not employed by the agency but is carrying out NCA-related activities. Unless my noble friend wants to come back to me after I sit down, I hope that that deals with her particular points.
I will say a word about Amendment 46C because we want to take that away and have another look at it. National Crime Agency officers will benefit from protection against discrimination in the UK. It is intended that secondees to the NCA will benefit from the same protections. Having looked at that and having looked at my noble friend’s amendment, further consideration is required to ensure that particularly secondees, including police constables, are properly covered by the relevant legislation. I want to come back to my noble friend on that in due course. If there are any other queries, I will write to her in due course.
Baroness Hamwee
My Lords, I think that the penny has just dropped on paragraph 2, so I thank the Minister for that. On Amendment 46C, I am beginning to feel that I am beginning to do myself out of a job. This is the third time the Government have said that they will look at something again. I spoke on one for less than two minutes, on another for less than one minute, and on this one the Minister did not quite hear what I had to say.
Lord Henley
I think it was my noble friend Lord Attlee who recommended that brevity often yielded much greater results in this House. He commended it to my noble friend.
Baroness Hamwee
I had better not say any more other than I beg leave to withdraw the amendment.
Lord Henley
My Lords, Part 2 of Schedule 5 relates to the director-general and designation under Section 9. The first four amendments in this group relate to the NCA board, which I think we dealt with earlier. What I really want to address on this occasion is the principal amendment, Amendment 51, which proposes leaving out paragraph 5 of Schedule 5 on page 54, on the question of there being no advisory panel.
As I think I made clear earlier, the director-general is an operational crime-fighter appointed by and directly accountable to the Home Secretary. A bespoke designation process is required to ensure that he holds the operational police, customs and immigration powers that he needs. The designation process for the director-general provides a clear and independent mechanism for providing him with operational powers. The advisory panel will be a small, focused body of experts established for a specific purpose and then dissolved.
I appreciate that the noble Baroness’s amendment is probing and that she might want to come back to it in due course. The amendment would remove paragraph 5 from Schedule 5. In other words, it would remove the ability of the Home Secretary to set out in regulations the circumstances in which the advisory panel would not need to be convened for the purpose of designating the director-general with operational powers.
The ability to make regulations does not contradict or undermine the important role of the advisory panel. It is simply a recognition that a newly appointed director-general may already have the necessary training to enable him or her to exercise those operational powers. In the absence of that regulation-making power, it would still be necessary to go through the process of appointing an advisory panel—to no good end, if he or she had all the necessary training. That does not sound like an efficient or effective process to me. I would even go so far as to suggest that the removal of the regulation-making power risks turning a clear, independent and streamlined process into a cumbersome and rather bureaucratic one that is not fitting of the type of responsive crime-fighting agency that we are trying to create.
I recognise that this is a significant regulation-making power to the extent that it would disapply the advisory panel process, and that is why we have made the regulations subject to the affirmative resolution procedure. It is right that the circumstances under which the advisory panel would not be required are subject to an appropriate level of scrutiny by both Houses, and we have already provided for that. I hope that that explains matters. Obviously, I want to get this right and, if necessary, I will write to the noble Baroness if she has any further questions on it, but I hope that that deals with Amendment 51.
As I said, I do not think that I particularly need to address Amendments 47 to 50, which relate to the noble Baroness’s board. We discussed that earlier. I think it is a matter that she wishes to come back to, but I do not think it is appropriate to discuss it now.
Lord Mackay of Clashfern
I wonder if my noble friend can help me. I am trying to follow what he is saying about this. Is this advisory panel to be charged with advising in connection with the first arrangements for the new principal officer? And once that is done, has the panel finished, leaving the Secretary of State to do it himself? Is that the idea, or is the advisory panel to continue and be consulted only when the Secretary of State feels that he requires some extra independent and expert advice since he does not feel able to completely decide for himself?
Lord Henley
My Lords, if I can assist my noble and learned friend, the point we were trying to get over is that the actual designation of the director-general is a matter for my right honourable friend the Home Secretary. She will make an assessment of the director-general’s suitability and capability to exercise the operational powers in any given case. It might be that the advisory panel, through its chair, could then assess whether the director-general was adequately trained to exercise those operational powers and if, as experts—as we hope they would be—they were satisfied that the director-general met the requirements for exercising his designated duties. But it might be that the Home Secretary was satisfied about the director-general’s suitability and capability to exercise those powers, in which case there would be no need for the board.
Baroness Smith of Basildon
I appreciate that the noble Lord was trying to be helpful but I am now more puzzled than ever. He has spoken to the confines of my final Amendment 51 and yet the reason for putting forward all these amendments is a broader issue. If it helps the noble and learned Lord, Lord Mackay of Clashfern, the advisory panel would be set up whenever there was to be an appointment of a director-general. That is where this clause is so confusing. The panel’s chair decides the question of the adequacy of the director-general’s training. I can fully appreciate that a new director-general might not have the expertise in all the areas dealt with by the National Crime Agency. I do not have an issue with that part. It then says:
“produce a report containing recommendations as to the operational powers which the Director General should have”.
That implies that the operational powers change depending on who the director-general is. Surely what we expect the director-general of the National Crime Agency to do should be set in stone. You cannot keep changing the operational powers of somebody in this kind of role depending on who applies for the job. There have to be certain criteria for key operational powers that have to be undertaken. I do not understand that part of the clause at all.
On the issue of there being an advisory panel, the reason for taking out paragraph 5 in Part 2 of Schedule 5 is that if paragraph 4 says that the Secretary of State must appoint an advisory panel, clearly there is good reason for doing so. Given that the panel reports on the adequacy of training and the operational powers, why would we then have a paragraph which says that the Secretary of State does not need that? I cannot understand under what circumstances a Secretary of State or an advisory panel would say that a particular director-general would not have full operational powers or that this one will not have the operational powers undertaken by a previous director-general. If we are saying that the operational powers of a director-general are flexible, we are talking about a very different kind of organisation. My understanding was that the framework document would set out exactly what the National Crime Agency would do, what was expected of it and how it would be run. Now we find we have a degree of flexibility in what the agency does because of a panel of experts advising the Secretary of State on what the director-general does.
The noble Lord is looking through his folder, as I have done on occasion. If he is fully honest with me, I suspect he is thinking, “Give me a note quickly. I seek inspiration”. It may be that inspiration on this one does not come to him quite quickly enough this evening, but I think this is a matter we want to pursue. It is a bit odd because the Government have already appointed the first director-general without the advisory panel so presumably they know what operational powers that director-general will have. However, I find this situation completely unsatisfactory as it stands.
Lord Henley
The noble Baroness is an old hand, as I am. She is a very young old hand but she is long in experience. She need not blush. She has stood at the Dispatch Box in Government on many occasions and she knows the process. This is a wonderful process that we go through with these Bills, as a result of which we hope to make them better. She is quite right to point out in paragraph 4 of Schedule 5 what she thinks is an odd process. This is obviously something that I must reflect on. That is why we go through this process. I will be more than happy to do so and I will write to her. Again, it is one of the joys of the process that we are going through that there is a considerable amount of time between now and Report. We want to get this right. I am not going to try and bluff my way through as I have done on many occasions in the past, and as I am sure the noble Baroness has done. She has caused me some problems with paragraphs 4 and 5 of Schedule 5. All I can say is, I want to get this right and I will try to make sure that she gets a proper answer or that we make the appropriate changes.
Baroness Smith of Basildon
I am grateful to the noble Lord. This is not the first time he has been this helpful. He was similarly helpful just last week. The fact that he is going to reflect on this and come back to me and to the House is very useful. On that basis I am happy to withdraw my amendment.
Lord Henley
Baroness Doocey
My Lords, my concern is about the type of investigation that the Independent Police Complaints Commission might carry out in relation to the National Crime Agency. The Government want the NCA to be,
“a transparent and accountable organization open to the public it protects”.
To satisfy those criteria, formal scrutiny and investigations must be thorough and above suspicion. I am concerned that the provisions for scrutiny and transparency in the Bill are inadequate.
I am concerned particularly about how the IPCC might carry out its functions. The Bill gives the IPCC the power to undertake investigations into complaints about misconduct, serious injury, death or other matters at the discretion of the Secretary of State, the object being to give the IPCC oversight of the NCA in broadly the same way as it oversees the police. However, as the noble Lord, Lord Rosser, said, the NCA will have considerable powers—far greater than any police force—so it requires much more rigorous scrutiny on the part of the IPCC.
The situation now is that, if a complaint or allegation is made to the IPCC, it makes a decision as to what it will do to investigate it. It has four choices. The highest level of investigation is an independent investigation, carried out by IPCC investigators and overseen by an IPCC commissioner. The second level is a managed investigation, carried out by a police force’s professional standards department but under the direction of the IPCC. The third level is a supervised investigation, also carried out by a police professional standards department but under its own direction and control. The IPCC merely sets the terms of reference and receives the investigation report when it is complete. The lowest level is a local investigation which is carried out entirely by police.
Despite there being four different options open to the IPCC, the evidence shows that in the vast majority of cases it opts for a supervised investigation, which in practice means that it leaves the police to investigate themselves. This policy is at best questionable when applied to police forces, but is completely unacceptable when applied to the NCA, given the enormous powers that that body will have. It is essential that all investigations into the NCA are independent, carried out by the IPCC and overseen by an IPCC commissioner.
Everyone accepts that the NCA will be handling sensitive and confidential information, but that just increases the need for independent scrutiny. I would welcome an assurance from the Minister that serious complaints and allegations of misconduct in the NCA will be independently investigated so that the public can have full confidence in the processes and procedures.
Lord Henley
My Lords, as always when dealing with a group of four amendments—in this case, three from noble Lords opposite and one from my noble friends behind me—I start with the good news. Amendment 57 would alter what is currently a power to make the relevant regulations to a duty to do so. We have every intention of exercising this power for the simple reason that it is only through that mechanism that we can confer the necessary functions on the IPCC. That being the case, the Government would be very happy to accept the noble Lord’s Amendment 57. That is the good news; the Government have agreed to change “may” to “must”. In the past when I have sat where the noble Lord is, I have frequently put forward amendments changing “may” to “must”, because it always provides the Government with an opportunity to explain what they are doing, and sometimes, just occasionally, one gets concessions. The same goes for those amendments that we have all put down demanding that negative resolution be shifted to affirmative. I have given the noble Lord his Amendment 57.
I cannot be quite so accommodating with Amendment 58, which appears to be similar. It states that the regulations made under new Section 26C of the Police Reform Act 2002 “must” apply the provisions of Part 2 of that Act, subject to any necessary modifications, and make provision for the agency to contribute to the costs of the IPCC. On this occasion, it is important to retain flexibility as to the content of the regulations, including, for example, the funding arrangements for meeting the costs of the IPCC’s work in relation to the NCA.
Amendment 56 is unnecessary. Paragraph 9 of Schedule 6 makes the necessary amendment to Section 10(1)(g) of the Police Reform Act 2002—of blessed memory. That amendment, together with the regulations to be made under new Section 26C, will ensure that the IPCC has the same functions in relation to the NCA, with appropriate modifications, as in relation to police forces. For that reason, Amendment 56 is unnecessary.
Amendment 58A was spoken to by my noble friends Lady Hamwee and Lady Doocey. My noble friend Lady Hamwee indicated that her intention was for the power to make the regulations to be subject to the affirmative resolution procedure. In fact, the effect of the amendment would be that regulations could be made without being subject to any parliamentary procedure. That is a drafting point and I shall not dwell on it, but if my noble friend wanted to move to an affirmative procedure, it would have to be addressed in due course. We decided on the negative procedure. My understanding is that that was deemed appropriate by the Delegated Powers Committee.
My noble friend Lady Doocey wanted to ensure that all complaints against NCA officers could be independently investigated, which is the substantive part of her amendment. The form of investigation conducted by the IPCC will be a matter for regulations. Our starting point will be that the arrangements for the agency should be consistent with the arrangements for dealing with complaints against police forces; that is, the regulations will set out which complaints should be referred to the IPCC for a mode of investigation. Where complaints are serious but do not have to be referred, complainants will still have a right of appeal to the IPCC. Where the complaint is less serious, we think that it is appropriate that the appeal is handled within the National Crime Agency. This is the more proportionate response and will ensure that the IPCC’s resources are used to deal with more serious complaints.
Lord Rosser
My Lords, it is in something of a state of shock that I stand here. I thank the Minister for his response and for accepting Amendment 57. He has set out his reasons for not thinking that Amendment 58 is appropriate and, as I understand it, has effectively said that Amendment 56 is actually addressed to other parts of the Bill and the 2002 Act. In the light of the Minister’s response, I take it that I am meant to agree the withdrawal of Amendments 56 and 58 and that Amendment 57 has been accepted.
Lord Henley
Lord Henley
UK Border Agency: Visa Applications
Lord Henley Excerpts(12 years, 6 months ago)
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Lord McConnell of Glenscorrodale
To ask Her Majesty’s Government how they will respond to the report by the chief inspector of the UK Border Agency on the handling of visa applications to the United Kingdom from Africa.
The Minister of State, Home Office (Lord Henley)
My Lords, we take the chief inspector’s recommendations seriously. We have accepted them all and have a team working to ensure that they are implemented so that we provide a high quality service for genuine applicants while ensuring that those who do not meet the immigration rules are prevented from entering the United Kingdom.
Lord McConnell of Glenscorrodale
I thank the Minister for his Answer. This is an excellent report by Mr Vine and his team, but it contains some disturbing evidence and very disappointing conclusions. It refers to the disappointing quality of decision-making, the lack of an audit trail, an inconsistent approach to the retention of documents, the manipulation of performance to meet targets, bad value judgments, the use of inappropriate language, and checks that were not performed. If this was an African country, Members of this House would be standing up asking for aid to be withdrawn. The Government need to act more quickly on these recommendations, and I would welcome an assurance from the Minister that they will act more quickly than they have in response to Mr Vine’s previous reports and recommendations.
Lord Henley
My Lords, I join the noble Lord in paying tribute to John Vine for the work that he does and for his report. I think that he has slightly overegged the pudding—if I can put it in those terms—in his criticism. The chief inspector found some very good practice in three out of four sections that he visited. He found that they were good on timelines, although I accept the criticism that there was possibly an attempt to push things forward purely to meet targets. There was obviously some criticism about accuracy.
We will obviously move forward as fast as we can on producing responses to this, but, as the noble Lord will be aware, there have been quite a number of reports from the chief inspector’s office and we are still processing some of the others. Some of the facts that he deals with in his report relate back to as early as February or even to last year. Things have moved on since then, but I can assure the noble Lord that we are treating this matter with urgency.
Lord Avebury
My Lords, neither entry clearance manager reviews nor complaints procedures are of sufficiently high quality and cannot be relied on. Will my noble kinsman say how family visitors who are to be denied a right of appeal in the future will be able to get redress without an appeal mechanism? Bearing in mind that the ability to apply the law correctly is poor, how will the Government ensure that the errors detected in this report will not happen when decisions are made under the new rules on family immigration?
Lord Henley
My noble kinsman is right to draw attention to the changes we are making, which we discussed at Second Reading of the Crime and Courts Bill. We will have further discussions on this in due course when we get to the appropriate stage of that Bill in Committee. However, I can say, and I think I said it at Second Reading, that someone who has been refused a visit visa can reapply and address the reasons why they were refused. A decision will be received more quickly as a result. Typically, that will take 15 days compared with going through an appeal, which can take eight months. On top of that, the application fee is cheaper when reapplying than when pursuing an appeal.
The Lord Bishop of St Edmundsbury and Ipswich
Is the Minister aware of an anxiety from the churches at the present time about African Christians responding to invitations to enter this country? It seems that a new economic test is being applied to them. Able, well qualified Africans are being invited to conferences in this country and endorsed even by bishops and the Archbishop of Canterbury, but are being turned down because their personal income is low. As most African clergy live on sacrificial stipends that are intermittently paid, we are wondering whether we can ever invite anyone again from Tanzania.
Lord Henley
My Lords, I will look very carefully at this. I cannot believe that someone who is being endorsed by the Archbishop of Canterbury or, for that matter, by any right reverend Prelate, could be turned away. I would want to look at that and at the particular circumstances to which the right reverend Prelate has referred. Certainly, we would not want that to be the case.
Baroness Smith of Basildon
My Lords, as the Minister has accepted in his responses to my noble friend Lord McConnell and the noble Lord, Lord Avebury, the findings in this report impact on the Government’s proposals on family visa applications and appeals in the Crime and Courts Bill. What concerns me most about the report is when John Vine says that despite his previous recommendations to help improve the agency, he has seen little progress in a number of areas. He says:
“This is especially frustrating considering the agency has adopted the recommendations, and yet I continue to identify the same issues”.
The quality of decision-making appears to be a key issue. The Minister says he wants to act as fast as he can, but have the Government identified the reason why so little action has been taken to correct problems found in the past? Is the problem a lack of will or a lack of resources?
Lord Henley
My Lords, it is neither a lack of will nor of resources, and we are still trying to push these things on as fast as we can. The noble Baroness quite rightly refers to the Crime and Courts Bill; we are in the middle of its Committee stage and we will discuss those provisions when we get to them some time in July. However, it is right to make the point that we think we will be able to provide a better service to a number of people by withdrawing those appeal procedures as a result of them then being able to apply again.
I want to make clear, as I made clear in my original response to the noble Lord, Lord McConnell is that we take these findings very seriously indeed and we will continue to push them forward. However, the chief inspector produces four or five different reports a year and it takes time to push them forward. He is talking about issues that he looked at back in February, obviously changes have occurred since then and we hope things are better as a result of actions we took following his report. Obviously some things have moved on since then.
Lord Dholakia
My Lords, will the Minister take into account the fact that when a visa application has been refused, the individual’s reapplication should not be considered by the same entry clearance officer the second time around?
Lord Henley
I cannot give any guarantee that the application will be looked at by a different officer, but in most cases it obviously will be looked at by a different officer because the situation will have moved on.
Lord Tomlinson
As the Minister referred to the noble Lord, Lord McConnell, as having perhaps “overegged the pudding”, can he tell us which particular egg that the noble Lord sought to throw should be excluded from that mix?
Lord Henley
The point that I was trying to get over to the noble Lord, Lord McConnell—and I think the noble Lord, Lord Tomlinson, knows this—is that he was overemphasising all the criticisms in the report without underlining the fact that Her Majesty’s inspector on these matters had pointed out that three out of the four sections he visited were performing pretty well and that he found good practice. There obviously were criticisms and, quite rightly, noble Lords opposite and the Government will focus on those criticisms. I just want to say that it was not all that bad.
Justice and Security Bill [HL]
Lord Henley Excerpts(12 years, 6 months ago)
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The Minister of State, Home Office (Lord Henley)
My Lords, this has been an interesting and long debate. It seems quite a while since we started at 3 pm. We have got through some 22 speakers and I find myself being the 23rd. It is a short Bill, of some 16 clauses, but it raises some pretty big issues and has attracted a very distinguished congregation—if I may put it in those terms—to speak on it.
There has been some comment about the number of lawyers here today, and I was very grateful to the noble Lord, Lord Dubs, for being the first to point out—echoed by others—that this is not just a legal Bill and not just for the lawyers. I was glad that the noble Baroness, Lady Smith, having done a quick count, pointed out that the non-lawyers are in the majority in this debate, which is probably as it should be. However, as the noble Baroness said, it has attracted a lot of other distinguished speakers. We are very grateful for the presence of all those who are members of the JCHR and the Constitution Committee; all those who, like my noble friend Lord Lothian and the noble Lord, Lord Butler, are currently members of the Intelligence and Security Committee; and former members, self-described as part of the awkward squad, in the form of the noble Lord, Lord Campbell-Savours.
We are grateful for all that, and I hope that, as part of this debate and a fairly lengthy Committee stage and other stages, we will be able to go some way towards achieving the consensus that the noble Lord, Lord Lester, was looking for. It will not be possible to get consensus on every item, because I think that there are some fairly deeply held views that cannot be brought together, but I am sure that there are many things on which we will be able to get agreement. I am sure, too, that we will make every effort to ensure that the best possible Bill leaves this House to go on to another place. As my noble friend Lord Faulks, stressed, we need a very thorough Committee and later stages.
As I said, it is a short Bill that raises some extremely big issues. My noble and learned friend Lord Wallace took it in its proper order. He dealt first with Part 1 and then with Part 2 on the restrictions on the disclosure of sensitive material. If noble Lords will bear with me, I prefer to take it the other way round, because there has been far more talk in the debate about Part 2 than Part 1, but I will get to Part 1 in due course. I must also say in my opening remarks that it will obviously be very difficult for me to answer all the points put this afternoon in the necessarily shortish speech that I have to make, but I shall try to cover some of the broad themes. I hope that my noble and learned friend and I will be able to write to noble Lords and copy those letters to others as appropriate after the debate and ensure that we get those letters out before Committee, which, I understand, will be in the week commencing 9 July, so we have a little time to do that.
I begin with Part 2, with CMPs and Norwich Pharmacal. That has obviously excited most of the debate. Like my noble and learned friend the Advocate-General, I believe that the case is made to change how we deal with sensitive information in our courts. The novel application of Norwich Pharmacal jurisdiction to national security information has had consequences with key allies, as many noble Lords mentioned—I think the first was the noble Lord, Lord Butler. It is not just America, as some have implied, it is all our key allies. However, the provisions in the Bill are not driven solely by our intelligence partners. Secret intelligence generated by the UK’s own security and intelligence agencies could be liable to be disclosed as well. Parliament has recognised that the work of the security and intelligence agencies is of a special type. Information is core to their work and special arrangements already cover how they use and disclose it.
Although we all aspire to be able to hear every court case in open court with all relevant information disclosed to all parties in the case, I think that most noble Lords have accepted that there will be times when some of that information cannot be disclosed without damaging the public interest. The question we must put to ourselves—this will take some time in the course of our debate in Committee—is how we deal with that situation. Settling cases or asking the court to strike them out as untriable, may mean that claims, often making extremely serious allegations, can go unexamined and we are unable to get to the truth of what happened. I do not believe that that is justice.
PII has been another approach. It enables cases to go ahead with fully open proceedings but at the expense of excluding relevant and sensitive material from the case. That can work in some cases, but there are times when it does not—for example, where a case is saturated in sensitive material, as David Anderson QC put it. A successful PII application can render a case untriable or leave the Government unable to defend themselves without damaging national security. That can be unfair for claimants or for the Government.
CMPs have been the solution to that problem and they have worked successfully in a number of contexts. The noble Lord, Lord Butler, said that they were the least worst option. My noble friend Lord Lothian described them as being, on balance, about right. Openness is sacrificed for part of the proceedings, and this enables all relevant material, including national security sensitive material, to be taken into account by the court, but it is done in such a way that the proceedings are fair and the interests of any party excluded are properly represented. The Supreme Court has stated that it is for Parliament to decide what the procedures should be for dealing with such cases. The Government produced the Green Paper and we listened to the views. Again, many noble Lords, I think particularly my noble friends on the Liberal Democrat Benches, have accepted that we listened to the views and have moved forward a great deal from what was in the Green Paper and put forward for public consultation. We have brought forward the amended proposals in this Bill.
Noble Lords have highlighted a number of key issues in this debate and those discussions that we will have during subsequent stages of the Bill will obviously let us explore whether the Government have the balance right in these important matters. Perhaps I might deal with one or two of the points that have been raised that deserve some response at this stage, if I can find the right bits of paper—they are all here but in a strange order.
First, I wanted to cover the points made about special advocates and the recent paper that they put to the Joint Committee on Human Rights. I have seen their evidence, which I believe was published last week. The special advocates are reiterating arguments which they have made and, in effect, have had rejected by the courts. To some extent, special advocates do themselves a disservice. They are extremely effective, particularly in arguing in court that more information should be disclosed, and have helped to win cases by challenging closed evidence on occasions. The best way of dealing with this would be to quote what the noble and learned Lord, Lord Woolf, said in M v Secretary of State for the Home Department. He stated:
“Having read the transcripts, we are impressed by the openness and fairness with which the issues in the closed session were dealt with by those who were responsible for the evidence given before SIAC … We feel the case has additional importance because it does clearly demonstrate that, while the procedures which SIAC have to adopt are not ideal, it is possible by using special advocates to ensure that those detained can achieve justice and it is wrong therefore to undervalue the SIAC appeal process”.
I commend that to the special advocates and would suggest that they reflect on it.
I turn to the Binyam Mohamed case, which the noble Lord, Lord Lester, raised and has dealt with. He probably knows more about it than anyone else. On the information revealed in that case and whether it was in the public domain, my understanding is that the Court of Appeal ordered that seven paragraphs redacted from the Divisional Court’s judgment, which contained a summary of US intelligence reporting, should be restored to the judgment despite the existence of a PII certificate from the Foreign Secretary. The judge in the US did not put the contents, or a summary of the contents of the US intelligence reporting provided to the UK, into the public domain. The court made findings of fact based on allegations about Binyam Mohamed’s treatment that were not challenged by the United States Government.
I turn from that to the questions raised by the noble Baroness, Lady Ramsay, about the Bill’s provisions on intercept and how the evidence to support the conclusions of the Privy Council’s report on intercept would be used in criminal cases. The amendment contained in this Bill to Section 18 of RIPA lifts the prohibition in Section 17 of that Act so that intercept material can also be discussed in a CMP. This is in line both with other, existing statutory CMPs and with our desire to take account of all relevant information in CMPs.
As the noble Baroness knows, the Government are separately conducting an extensive and detailed review in order to assess the benefits, costs and risks of introducing intercept as evidence in criminal proceedings. This work continued under the guidance of the cross-party group of Privy Counsellors that she referred to. It will report in due course. I appreciate—I answered a question on this a few months ago—that we have been using that expression “in due course” for some time. However, I think that it underlines the very great difficulty of coming to a reasonable solution in this matter. I myself have changed my views this way, that way and again, and I know other far more distinguished people than me who have looked at this in much greater detail than I have who have also found it very difficult to come to a final decision. However, the process will continue. I was grateful that the noble Baroness referred to the work being done by the distinguished body of Privy Counsellors that is dealing with that.
The noble Lords, Lord Dubs and Lord Pannick, and other noble Lords, dealt with the whole question of whether it was for the courts to decide between PII or closed material proceedings. We are not convinced that the question of whether there should be a PII claim or a CMP should be left to the courts. It is a very important constitutional point that the Executive in the end have to be the guardian of the United Kingdom’s national security interests. Obviously, the courts will play an essential role in scrutinising the Government’s exercise of these functions. However, we believe that the question of whether to claim PII, and, accordingly, a CMP, should be left to the Home Secretary.
Similarly, the noble Lord, Lord Macdonald, suggested that a CMP should be held only after a full PII exercise, but we believe that it would be costly and illogical to go through a potentially lengthy PII process first. It may be obvious at the beginning, for example, that too much will be excluded. We understand that the Lords Constitution Committee did see the need for full PII; the report says that we can see force in the argument that it will sometimes be otiose to push the PII process to its completion before turning to a CMP.
Lord Pannick
Does the Minister at least accept that a CMP should be a last resort if, and only if, there are no effective means of addressing all relevant factors?
Lord Henley
That is a point that we will consider at much greater detail when the noble Lord puts down his amendments, which I am sure will appear. We will discuss that in Committee and no doubt at later stages. The point is that at the moment I am making our case and want to clear the arguments in detail. That is why I was rather loath to take too many interventions in this winding-up speech. I appreciate that my noble and learned friend took some seven interventions in opening, but on this occasion I am going to resist most of them, because the important point is that we discuss these matters in Committee, when we can deal with them in greater detail. The noble Lord will then be allowed to intervene to his heart’s content.
I see that my time is beginning to run up, and I want to get on. However, I shall say one more thing on this. I will deal with the question on sensitive information in Norwich Pharmacal clauses, which a number of noble Lords—my noble and learned friend, Lord Mackay, and the noble Lords, Lord Pannick and Lord Dubs, for example—all seemed to think was somewhat too wide. I must stress that this is the definition in the Norwich Pharmacal clauses; I appreciate that the noble Baroness also raised the definition of sensitive information for the Intelligence and Security Committee in Schedule 1, but that is obviously a different matter.
The fact is that virtually all material sought by Norwich Pharmacal applicants from the security and intelligence agencies is material the public disclosure of which would damage the public interest in safeguarding national security. Applicants do not seek open-source information or other unclassified material from agencies; they seek information specific to them that would be held by an agency and available only from that agency. If it was information necessarily derived from sensitive sources or from techniques or capabilities from a foreign intelligence department, all or any of that could be damaging to the public interest if disclosed. The approach taken in the clause in the Bill mirrors the protection of such information found, for example, in the Freedom of Information Act.
I turn to the less controversial part of the Bill, Part 1—if I can find the right part of my notes—which deals with oversight. This part had somewhat less coverage than the rest of it, but, after the speech from the noble Lord, Lord Campbell-Savours, and the interventions from the noble Baroness, Lady Smith, I am beginning to understand that it might generate just a bit of controversy and I might have some work to do, unlike my noble and learned friends, as I do that part of the Bill in Committee. I did not want to overlook the important changes that we are making to this and it is right that we should periodically re-examine the way in which we scrutinise that work. Again, I pay tribute to the current members of the Intelligence and Security Committee.
We are grateful to the noble Lord, Lord Butler, and my noble friend Lord Lothian for sharing the benefit of their experience of sitting on that committee. I am also grateful for the views that we heard from the noble Baroness, Lady Manningham-Buller, particularly what she said about trusting the head of the security services far more than she would trust Ministers. I will take that on the chin. I think she was echoing what the noble Lord, Lord Campbell-Savours, said, but she echoed it with approbation.
I recognise the experience that the noble Lord, Lord Campbell-Savours, has, and I am pleased that we will have an interesting time in Committee on that aspect of the Bill. The noble Baroness, Lady Ramsay, was concerned about the membership and thought that there was scope in the Bill for more Members of this House. I do not believe that there is any detail in the Bill about how many there can be, but I think the current rules are that at least one must come from each House, so it would be possible to have eight Peers and one Member of the Commons, or it could be the other way around. It will be for the Committee to decide what the appropriate number should be. That is something that we can discuss.
Lord Campbell-Savours
Prior to us going into Committee, might the Minister find out for what reason it is not to be a parliamentary Select Committee, as against the structure proposed? There must be some explanation.
Lord Henley
Again, my Lords, I was interested in the noble Lord’s suggestion. I do not think that it is necessarily the right path to go down, but that is the sort of point that we need to argue about and try to reach some agreement on in Committee. I am sure that the noble Lord will put down amendments and that we will have the opportunity to discuss them. I look forward to hearing the views of his Front Bench and other Members of this House.
I have more or less used up my time and have answered a mere tithe of the very good points that have been raised. As I said, we are going to have a detailed Committee stage in due course, when we will get to a lot of these detailed points. I look forward to that process, as does my noble and learned friend. Both of us will write a number of letters over the coming weeks that we hope will at least make it easier to deal with these matters. With that, I commend the Bill to the House.
Crime and Courts Bill [HL]
Lord Henley Excerpts(12 years, 6 months ago)
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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?
Lord Henley
My Lords I am not sure that these booklets will come from the Home Office website. I will double check and make sure that I get an appropriate response to the noble Lord. All I am saying is that it is within the Home Office website that we have been having this problem. We want to get it right and are desperately keen to be open and fair. We want to get things across, and that is why I want to make sure that I can deal with all these matters and why I will write to the noble Lord’s noble friend, copying it to my noble friend and no doubt copying it also to the noble Lord, Lord Harris, and others who wish for a copy. We might discuss this later.
It might be useful if I set out—I hope not at excessive length—what we are trying to do with the National Crime Agency, where we are trying to get and why we think the Government’s arrangements are appropriate. Then we shall listen to the response from the noble Baroness. As she is aware, the National Crime Agency will be operationally focused, with a demanding mission to fight serious and organised crime and protect the public. We considered carefully how we would get the right governance arrangements for this agency to make sure that it maximises its effectiveness, accountability and, of course, minimises bureaucracy. That is something that the noble Lord, Lord Harris, did not stress, but might have done.
We have drawn up in the Bill the arrangements which we firmly believe achieve that right balance. Ever since I came to the Home Office, I have been talking about balance and it is important that there is the right balance between strategic oversight by the Home Secretary and effective operational leadership of the agency by the director-general. The director-general will lead and direct the agency and be directly accountable to my right honourable friend the Home Secretary and through her to Parliament, because she is answerable to Parliament. I must make it clear that this is entirely consistent with the tried and tested arrangements in place at many non-ministerial departments, of which there are a number. Let us, for example, take two that have a Home Office focus: law enforcement agencies such as the Serious Fraud Office—despite what the noble Baroness said—and the Crown Prosecution Service. As she will be aware, there are others outside what we could call the Home Office family. For example, there is the Food Standards Agency, which is chaired by the noble Lord, Lord Smith, and is answerable to the Department of Health or Defra—I forget which. Again, it is a non-ministerial department that responds to a department.
The noble Baroness proposes creating an NCA board, headed by a non-executive chairman, which would lead and direct the agency and to which the director-general would report. Instead of an operational crime-fighter, the Opposition want to put a non-executive chairman and board in charge of the NCA. Instead of the director-general being directly accountable to the Home Secretary, he would report through the board, which would inevitably be a slower and—I stress—more bureaucratic process. That is not the best governance model for a law enforcement agency that has to respond quickly and decisively to threats to protect the public. It would be like having your local police force, for example, run by a committee instead of by the chief constable.
In that example, chief constables must be held properly to account on behalf of the electorate, as must the director-general. However, people want to see effective accountability, not bureaucratic accountability. Creating more quangos, which is, in effect, what the noble Baroness suggests in her amendment, is hardly the way to protect the public from crime. Chief constables will be accountable to a single, directly elected police and crime commissioner in their force area. He will be visible and able to be held to account by local communities. In the same way, the director-general will be accountable to the Home Secretary, who can then be held to account by the taxpayer, noble Lords in this House and colleagues in another place. It is the Home Secretary who ultimately has responsibility for ensuring that the public are protected from crime and who will come before Parliament to account for the performance and impact of the NCA. Inserting a predominantly non-executive board and chair between the director-general and the Home Secretary will not increase accountability; it will just create more bureaucracy and more officeholders.
The amendments suggested here essentially replicate the arrangements that were put in place for the Serious Organised Crime Agency, which are more typical of non-departmental public bodies. However, SOCA is the only law enforcement agency with the sole responsibility of fighting crime that has this quango structure. It was always an anomaly. I do not know why the previous Government thought it was necessary, compared to, say, the Serious Fraud Office or the Crown Prosecution Service. Putting that non-executive chair and committee in charge of SOCA has inevitably led to more bureaucracy without adding to accountability. It has reduced the clarity over who is responsible for what.
In saying that, I make no criticism of the current SOCA chair and board members, who are distinguished professionals in their fields and who have done a very good job as a committee. However, I do not believe that it was the right structure for a law enforcement agency. The NCA is an agency that will have the power and responsibility to investigate serious and organised crime, and the officers of which will, like the police, be able to use coercive and intrusive powers. In its work to protect the public, there must be absolute clarity of accountability. What the noble Baroness proposes in her amendments would do away with that clarity.
Amendment 4 further specifies that the NCA board should include representatives of police and crime commissioners in England and Wales and of the police service. They are obviously key partners for the National Crime Agency and the director-general will want to work with them. However the Bill already clearly provides that these key policy partners will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency. Clause 3 requires the Home Secretary and the director-general to consult strategic partners before determining the strategic priorities for the NCA. Clause 4 also provides for these partners to be consulted on the agency’s annual plan.
The noble Lord, Lord Harris, put forward the idea of the importance of non-executive directors to be part of the internal governance of the NCA. He referred to the framework document, which will be issued in due course. In accordance with the principles of good governance set out by the Cabinet Office and the Treasury, in that document we will set out what those internal arrangements must be. They will include the role of potential non-execs, which we will consider carefully as regards the NCA but not in the manner suggested in the noble Baroness’s amendments. We will make an outline of that framework document available to Parliament in due course, as I think I made clear at Second Reading, to make sure that we can discuss these matters at later stages of the Bill.
Turning to Amendment 5, my noble friend Lady Hamwee is right to emphasise again the importance of good governance for the NCA, with which we agree. We will set that out in the framework document in due course. But the supervisory board proposed by my noble friend is a step too far. As I have said, we believe that the NCA should be led by the operational head, the director-general. Unlike the Opposition’s amendments which we have just discussed, this amendment sensibly leaves the director-general as the person responsible for “leadership and control” of the agency as set out in Clause 1.
However, creating a supervisory board headed by the Home Secretary muddies the waters over the director-general’s line of accountability. Therefore, I do not think that I can give it much support at this stage. I hope that those explanations are sufficient to deal with the concerns raised by noble Lords about the governance of the NCA. Obviously, we will discuss other more detailed matters on some later amendments. No doubt, we will come back to this issue at later stages of the Bill. I hope that I have largely dealt with most of the concerns put by noble Lords as regards this amendment and that the noble Baroness, Lady Smith, will feel able to withdraw her amendment.
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 Henley
My Lords, I apologise to the noble Lords, Lord Rooker and Lord Smith. The noble Lord, Lord Harris, is absolutely right to say that it is the noble Lord, Lord Rooker, who chairs it. I was just giving it as an example of one of those boards that is slightly different in the way in which it reports to Ministers.
The noble Lord is also right about the importance of when we will be publishing the framework document. We want to share an outline of that document with Parliament in due course and I hope that we can do that before we get to the Report stage of the Bill. I remind noble Lords that the Bill started in this House so we have quite a time before it goes through both Houses. As the noble Lord will be well aware, in terms of the timetable, we will not even finish Committee stage until we return in the autumn, when I think we will have one day of Committee to deal with some matters. I believe it coincides with the Conservative Party conference, which, sadly, I will have to miss, but one often has to make enormous sacrifices in the course of duty and I will be deeply upset to make that sacrifice. However, I will try to ensure that the noble Lord gets the framework document in due course.
I also note exactly what my noble friend said about the importance of making sure that we distinguish between administration and governance. I think that she is right to stress those two points. I hope that noble Lords will bear with me and be prepared to wait for the framework document, which I hope we will get in due course.
Lord Condon
Can the Minister confirm that he is not excluding the notion of key stakeholders being drawn into a formalised relationship with the new NCA, even if it is not a supervisory board or a strategic board? He is acknowledging that the framework document may well create a role for key stakeholders to have a formalised relationship with the new NCA, something more than just being a vague consultee, who receives a letter saying, “What do you think of … ?”.
Lord Henley
My Lords, as the Bill makes clear, it is quite obvious that we want those key stakeholders to be involved. How formalised that should be is another matter. I would hope that the noble Lord would be prepared to wait for the framework document and how we consider it. It will be for all of us to decide how formal, formalised or informal that is, and what is the right balance—again I use that great Home Office word. It is getting the balance right.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister is trying to be helpful regarding the framework document. However, I hope that he understands how difficult it is for your Lordships’ House to consider properly the governance arrangements when we are told that we are going to get a lot of the information later, probably at Report. He said that we will not complete the Committee stage until after we return from the Summer Recess, with his great sacrifice of missing his party conference. The only reason the Committee stage is finishing so late is that in another part of the Bill the consultation, which will inform the clause in the Bill, has not yet been completed. As I said at Second Reading, I wonder whether this Bill should have come before your Lordships’ House at this stage or whether it would have been better, in order to consider properly the governance arrangements and the later clauses on community sentences, to have had that information with us now. We have already heard from the noble Baroness, Lady Hamwee, and my noble friend Lord Harris of the difficulties of trying to make suggestions and looking at exactly what the Government are proposing when we do not have a lot of the information with us today. I am slightly disappointed by the Minister’s response because even without the framework document being available to noble Lords he dismissed the idea that there could be a more formalised structure for involvement in a governance board, as the noble Lord, Lord Condon, said, before we had even had a chance to look at and consider the framework document.
I have listened to comments from around the Committee and there seem to be several points of agreement. There is a general recognition that the NCA is a big beast, taking on what the Minister called a “demanding mission”. It is clear that noble Lords want it to succeed in tackling some of the worst and most difficult crimes in our country. The only reason why we would discuss governance structures at all is not to make the Minister’s life more difficult or deny him the opportunity to attend his party conference, but because we want those structures to reflect the importance of the organisation and ensure that it has the best possible information, advice and governance to be adequate to the task that it faces. As other noble Lords have said, nobody is wedded to any specific structure, but there has to be some recognition that it is not really satisfactory to have a relationship whereby the director-general responds and reports to the Secretary of State, who sets the guidelines that the director-general works under.
The Minister mentioned some kind of advisory body. There is provision in legislation for that, but with a very limited capacity. That is not particularly clear, either. My noble friend Lord Harris referred to the importance of the relationship between the director-general of the NCA and policing bodies and PCCs across the country. The power of direction in the legislation is something that the Minister has said will be used in exceptional circumstances and that agreement would be sought at all times. Surely, if there is a board or some kind of body of which the director-general is part and to which he reports, which involves the police and the police and crime commissioners, among other people whom the Secretary of State may choose, that makes those relationships and understanding of the work of both much better and, therefore, more effective.
I take the Minister’s point about bureaucracy, but I do not think that that should be an excuse to remove good governance processes and practices, which have proved themselves in other regards. As my noble friend Lord Harris said, the Minister gave the example of the Food Standards Authority, which has a board. I asked what the benefits were of the NCA not having a board, why it needed to be accountable directly to the Home Secretary and what the model was for the organisation. I did not really get an answer to those questions in the Minister’s reply.
I have another point that I would like the Minister to think about a bit more. He said that one concern that he would have if there was a board was that the response from the director-general would be slower, and that it would be more bureaucratic, when he had to respond quickly and decisively to any threats. The role of the board as we see it would not be an operational one but strategic and about giving advice. I would not expect the director-general to consult the board every time he thought that he or his colleagues had to respond to a specific threat. That would clearly be unacceptable. We are talking about the role in the legislation that the Minister and the Government intend for the Secretary of State, and our suggestion is that it should be the board’s role. When the Government create bodies such as police and crime commissioners, we have to look at how they are brought into the general architecture of how the police and other law enforcement services work. It is unhelpful to good working practices to sideline them as they are in this Bill.
I would like to take this matter away and reflect on it. I do not intend to pursue it further at this stage. There may be more opportunities as we go through the Bill and debate other clauses around the issue of governance. At some stage, we will have a framework document, but I hope that it comes some time before Report. This House cannot do its duty of scrutiny as well as it should when we do not have such information. To suggest that it will be there for the Commons stage and that therefore we do not need it is unsatisfactory. I am sure that we will return to the issues of governance and, depending on how things go in the course of the debates in Committee, we will decide whether or not to return to them at a later stage. I beg leave to withdraw the amendment.
Lord Henley
My Lords, I am grateful to my noble friend for putting forward these amendments and for making it quite clear that they are probing amendments. I hope that I can deal with some of her concerns.
I start with her first amendment, which simply suggests leaving out subsection (10). As I said, she put it forward as a probing amendment and I understand what my noble friend is seeking to ask. In setting out the expectation that agency investigations will lead to prosecutions, it is necessary to provide clarity on the role that the agency will take in relation to prosecutions—hence subsection (10), which provides that the agency does not have the function of prosecuting offences or, in Scotland, the function of instituting criminal proceedings. Rather, the agency will work closely with the prosecutors—that is, the CPS in England or the Lord Advocate in Scotland—to ensure that the right criminal justice outcome is achieved. I think it is right that those two agencies should do that, along with, in Northern Ireland, the Public Prosecution Service for Northern Ireland. Therefore, there is no inconsistency here. The NCA will not itself undertake prosecutions but will work with others to undertake activities to combat serious organised crime. Such activities must, quite rightly, include the prosecution of offences.
I turn to my noble friend’s Amendment 3, which would insert at the end of subsection (11)(d),
“in conjunction with other appropriate persons”.
I am very grateful to her for indicating that she also wanted to get over the fact that this is important in terms of the relations of the victims of crime. We have been clear that the reason for establishing the National Crime Agency is the need to respond to the changing nature of the threat posed by serious and organised crime—it has changed and will continue to change—and to ensure that our response keeps pace with the changing threat now and into the future.
As we are all well aware, where there is a crime, there is also a victim of crime. If we are committed to the agency tackling some of the most serious and pernicious forms of crime that we face, so too we must be committed to the agency playing an important role and working with other agencies and the voluntary sector to support the victims of crime. I suspect that my noble friend would like the reassurance that the agency will be able to work with any partners as it deems necessary to carry out its work. I can certainly give her the assurance that the agency’s primary relationships will be with other law enforcement partners but it will also be important for it to build wider partnerships with the private and voluntary sectors.
I hope that that assurance goes as far as my noble friend would like. I want to assure her that in due course the agency will take its responsibilities for all people, but particularly for victims, very seriously. With that, I hope that she will be sufficiently satisfied and will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I am glad of that reassurance. I expected it but I am glad to have it. Indeed, there is something of a change in the nature of crime and the need to recognise what is required to assist victims of crime. We will no doubt come on to that in more detail with the next group of amendments.
I remain a little perplexed as to why it does not remain an option for the NCA to undertake prosecutions. Indeed, one might have thought that this was something that the framework document would address and give some explanation of, as it is about the way that the NCA is to operate. However, I have heard what the Minister has said and beg leave to withdraw the amendment.
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.
Lord Henley
My Lords, I thank my noble friends Lord McColl and Lady Doocey for bringing forward their amendments and for highlighting just what we are dealing with in bringing to the attention of the House the appalling crime of trafficking, particularly the trafficking of children. I underline the points made by my noble friend Lord McColl during the passage of the Protection of Freedoms Act. In saying so, I say to the noble Lord, Lord Rosser, that we are still awaiting the report from the Children’s Commissioner. The timing of that will have to be a matter for the commissioner herself, and I cannot give him any further assurance about timing at this stage.
I also thank the noble and learned Baroness, Lady Butler-Sloss, for her references; I think she was the first contributor to refer to the all-party group. I got rather confused as she referred first of all to a committee and then to something else, and I finally worked out that she meant the report from the all-party group, which came out only today—or was it a bit earlier? In due course there will have to be a response to that, and I very much hope that colleagues in the Department for Education with primary responsibility will lead on that.
I thank all noble Lords who referred to the work of CEOP in this field. I have visited that agency since becoming a Minister in the Home Office, and I am sure that other noble Lords have done so and know just what an effective job it does and how well it can do it. Again, I assure my noble friends and other noble Lords, as my noble friend Lord McNally did when he wound up the Second Reading of the Bill, that we believe that the NCA will have a key role to play in building on the existing arrangements for dealing with trafficking, using its enhanced intelligence capabilities and co-ordination functions to target both organised criminal gangs involved in perpetrating these crimes and others, wherever they are.
It is my job today to deal with the specific amendments, beginning with Amendments 3A and 3B moved by my noble friend Lord McColl, that deal with the functions of the National Crime Agency in Clause 1. I am satisfied that the functions set out in Clause 1—we must also refer to Clause 8—are sufficiently broad to encompass human trafficking. The important point that we need to deal with is whether we need a specific reference in the Bill to human trafficking, particularly in the light of what is available in Clause 8. I remind noble Lords that there are specific references in Clause 8(1) and (2) to Sections 11 and 28 of the Children Act, which make clear that the agency has to discharge its functions in a way that has regard to the need to safeguard and promote the welfare of children. We need to discuss whether we need to bring in my noble friend’s amendments or whether we have taken a sufficiently broad approach to the agency’s functions.
The broad nature of the functions is also critical to ensuring that the agency has the flexibility necessary to respond to the changing threat in future. One needs to be wary of taking an overprescriptive approach to the listing of specific crime types, as this amendment starts to do, which might undermine the approach that we have taken to the functions as set out in Clause 1. Amendment 3A then seeks to go further and add to the agency’s functions by placing on it a specific responsibility for ensuring that the UK meets its obligations under the human trafficking directive, to which I think my noble friend and the noble Lord, Lord Neill, referred. As I hope I made clear on earlier occasions—during, I think, the debates on the Protection of Freedoms Act—we are satisfied that we will meet the requirements and be compliant with that directive. Her Majesty’s Government have had discussions with the Commission about that matter.
I do not consider it appropriate for the agency to have the responsibility for ensuring that wider obligations are met. The agency should be combating human trafficking, not checking that other organisations—which there will be, on this occasion—are meeting their obligations. However, my noble friend is right to highlight the important obligations. Once again, although I am not persuaded of the need to add to the agency’s functions in this way, I do not wish to diminish the importance that the Government place on that directive or the obligations that it places on the United Kingdom.
Amendment 3B seeks to ensure that the functions of the United Kingdom Human Trafficking Centre and CEOP are included within the functions of the National Crime Agency. My noble friend set out the important role that these bodies have in tackling human trafficking. I repeat what other noble Lords have said, just as I said at the beginning, in underlining the valuable work that they do in this area. I categorically assure my noble friend that CEOP and the Human Trafficking Centre, both currently part of the Serious Organised Crime Agency, will continue their important work as part of the National Crime Agency in future.
Baroness Butler-Sloss
I am extremely grateful to the Minister for giving way. Will there be any reference, in any documentation such as the framework or anything else of significance for the NCA, to human trafficking?
Lord Henley
I refer the noble and learned Baroness, as I did at the beginning, to Clause 8 and its reference to the Children Act, which does not refer to trafficking but makes quite clear that the interests of children should be taken very seriously. That said, I do not believe that it is necessary—this is what I have been trying to explain to the noble and learned Baroness and to the rest of the House—to refer to it specifically in the Bill in the manner she suggests. Further, I take her back to the references that have been made to the EU directive. We believe that we will be compliant with that and it is very important that that is also there.
I see that I must give way again to the noble and learned Baroness.
Baroness Butler-Sloss
I apologise to the Minister, but it is just possible that he misunderstood me. I was asking whether, if these amendments were not accepted, there would be anything—not in primary or indeed in secondary legislation but at least in either the framework or other instructions to the NCA—to make very clear the importance of dealing with the trafficking of children and adults and the other points that we have made so that it was known in writing rather than being a general admonition.
Lord Henley
I take the noble and learned Baroness’s point and I will certainly consider a specific reference when it comes to the framework documents. I was dealing with what was in the Bill, which I think is very important due to the reason that I set out—the changing nature of crime. For example, 10 or 15 years ago we had never heard of cybercrime. Now we have. Things change and move on and the danger of listing things in primary legislation in the manner that she suggests is that it may confine us unnecessarily and is not the best way of dealing with these matters.
I hope that those assurances are sufficient for my noble friend to feel able to withdraw his amendment. We might want to have further words and noble Lords and noble Baronesses might want to see more in due course, but for the moment I hope that he is satisfied. I await what he has to say with interest.
Baroness Hamwee
Following up the noble and learned Baroness’s point, surely one would expect, among the strategic priorities that the Secretary of State has to address and determine under Clause 3—she will have to report to Parliament—the issues of child and adult trafficking to which she referred and the different purposes of trafficking.
Lord Henley
My Lords, I look forward to my right honourable friends setting out their strategic priorities and to reports in due course. Whether I am the one who has to respond in this House when they appear is another matter. I am sure that the sort of pressure that my right honourable friend will be coming under will be such that she will certainly take on board what the noble and learned Baroness has had to say.
Lord McColl of Dulwich
My Lords, as a Scot I do not like wasting words and paper and so on and I understand that we cannot have lots of things in the Bill, but this is such an important issue. It is even more important than I thought it was until the noble and learned Baroness, Lady Butler-Sloss, brought out the figure of 10,000. When we were talking about 300 children missing, perhaps the Bill would have been big enough to cope, but 10,000 children missing is appalling. This House and the country as a whole do not understand just how terrible the situation is. In answer to the noble Lord, Lord Neill, I must say that these amendments are essential and that we really have to press forward to do something about these appalling facts. Children are being brought over here and made to work on cannabis farms. They are then arrested and taken to court, which they do not understand, and then sent to prison. It is appalling. Something really has to be done.
I thank the Minister for all his help. We have been to see him on several occasions and we feel that we are moving forward. I thank him for his helpful reply, which we will certainly reflect on. I beg leave to withdraw the amendment.
Lord Condon
My Lords, at Second Reading I raised concerns about the resourcing of the NCA, not in the sense of special pleading for the police service in general or for the NCA in particular, but having now been around policing for just over 45 years, I have never encountered a time when individual police forces were under such rigorous challenge as regards their resources and their budgets. I totally accept that, as part of the wider challenge that we face economically as a country, there is no element of special pleading in what I am saying, and I am most grateful to the Minister, who very kindly agreed to a meeting last week, at which the new director-general of the NCA and officials were also present. I was reassured, as I knew I would be, by the energy, intelligence and commitment of all those present to give the NCA the best possible start, but having spent over 35 years in and around policing as a serving officer and then over the past 10 or more years as a very interested spectator, I am still left with concerns that the remit for the NCA is going to be tough to deliver against its budget.
Although the Minister may not feel able to concede much on this amendment or be able to put anything similar in the Bill, there is a pragmatic challenge about how the new NCA, with all its co-ordinating tasks, new tasks and the demands put on it, will be able to deliver against the background of its budget. It will work smarter and do more for less, but my experience in both the public and the private sectors is that sometimes you have to spend to save, to get economies of scale, to get new, smarter ways of working and to get synergies. There are start-up costs, and I would like to think that there will be some flexibility around the budget, even if this amendment is not accepted. Like others in this House, I want the NCA to get off to a very good start, and I would not want anxiety around some, relatively speaking, small resource issues to undermine the potential for it to be such a force for good.
Lord Henley
My Lords, I quite understand the concerns expressed by the noble Lord, Lord Condon, and we understand that very difficult decisions have been made by different police forces up and down the country about where they are going to rein in expenditure, just as all agencies of the Government of one form or another are having to make very difficult decisions, but we believe that the cuts that they face are manageable. We also believe, and I think this is something to get over, that merely throwing money at a problem does not necessarily, as we discovered before 2010, solve problems, and increasing budgets does not always bring improvements in the service that the public have a right to expect from all services that the Government and taxpayers provide in one form or another.
It will, no doubt, be difficult for the NCA, which, like SOCA, will have to live within its budget and the review settlement. The NCA’s budget will be based on the budgets of the precursor organisations. It will have to deliver that wider remit through enhanced intelligence, tasking and co-ordination arrangements that I hope will make more effective use of its resources—its own assets and those of others. Creating the agency will also provide opportunities to rationalise some functions, remove duplication in others and generate efficiencies.
Turning to the amendment of the noble Baroness, Lady Smith, and her question, in effect, about the responsibility of the Home Secretary, the important point is that the Home Secretary is ultimately accountable to Parliament for public protection. She has a vested interest in ensuring that the National Crime Agency has sufficient resources to deliver the priorities set for it. The Home Secretary will want to make sure that sufficient resources are therefore provided for the important work of the NCA when she negotiates with colleagues in the Treasury. The noble Baroness knows exactly what this is like and I look at other Ministers who have negotiated these things in the past. Sometimes those negotiations can be difficult, but it is something that the Home Secretary will have to address after the next spending review.
Importantly, she will remain responsible and answerable to Parliament after those decisions have been taken for making and setting the strategic priorities for the NCA. Again, the Home Secretary will consult others, whether it is the director-general of the NCA or whomsoever. The director-general will be able to provide that operational understanding of the resources required to deliver in this area. He will also need to ensure that the resources are allocated in the most effective and efficient manner. The important work of the NCA will need to be delivered within the budgets of its precursor bodies in those first years of operation. The budget constraints for the remainder of this Parliament will obviously continue to remain challenging. That means that the NCA, like many other bodies, will look closely at identifying duplication of effort and maximising opportunities for savings. I believe it will be able to ensure greater efficiencies by more effective prioritisation and smarter use of its own assets and those of others.
It is in the interests of the Home Secretary to work with the director-general to ensure that there are adequate resources for the National Crime Agency. The fact that my right honourable friend is answerable to Parliament means that the amendment is unnecessary and I hope that the noble Baroness will feel able on this occasion to withdraw it.
Baroness Smith of Basildon
I am grateful to the Minister, but I wonder whether saying that the Home Secretary is accountable to Parliament is adequate. He will recall that I asked him a question about Essex police. Obviously he is accountable to Parliament, but he told me that it was the responsibility of the chief constable. If the Home Secretary is questioned about funding not being available or adequate to the task, will she merely say, “That is an operational matter for the director-general”? Allocating funding within the organisation would be a matter for the director-general, but it is the overall envelope of funding that puts pressure on him. I am encouraged by the comments of the noble Lord, Lord Condon, which I share, that he is reassured by the intelligence and commitment of those who will be involved in running the NCA. However, the Minister has said that it is going to be difficult. Hearts must sink when people go into a new organisation, really wanting it to succeed, but they are told that it will be difficult to make it work within the budget.
I am also disappointed by the Minister’s comments that we cannot just throw money at a problem. I do not think that anyone has suggested that money be thrown at a problem, but there could well be a problem if the resources for the NCA are not adequate for the task that it has to undertake. If the NCA starts by struggling for funds and not being able to fulfil its obligations, it will lose credibility. I understand the point that he makes and I do not think that he is going to concede as regards looking at the funding or funding additional responsibilities that the NCA will take on. I wonder whether there is a case for reviewing the expenditure and operation after one year. Perhaps a Select Committee could undertake that role and we might return to it. For now, I take on board what he has said and I beg leave to withdraw the amendment.
Lord Rosser
My Lords, this is a probing amendment. It deletes paragraph 5(1) of Schedule 1 which states:
“For the purposes of the discharge of NCA functions which relate to organised crime or serious crime, an NCA officer may, in particular, carry on activities in relation to any kind of crime (whether or not serious or organised)”.
These words are similar, but not the same, as those relating to SOCA in the Serious Organised Crime and Police Act 2005. Could the Minister explain the significance of the changed wording? On the face of it, the power in paragraph 5(1) of Schedule 1 could be very wide ranging, particularly in the changed world of the new and more powerful National Crime Agency, with the director-general able to direct chief officers of other forces to perform tasks, and in the world of elected PCCs. It would be helpful if the Minister could put on the record how the Government intend that power to be used by the new agency, and in what sort of circumstances and on what kind of occasions.
The functions of the National Crime Agency are set out in Clause 1 of the Bill and refer to combating organised crime and serious crime. Equally, there are references in that clause to combating,
“any other kind of crime”,
and combating,
“crime (or a particular kind of crime, such as organised crime or serious crime)”.
This indicates that the role of the more powerful and influential NCA could be wider than just organised and serious crime. Paragraph 5(1) of Schedule 1 suggests that the power of the NCA and its officers in relation to any kind of crime relates only to occasions when they come across such other crimes when they are involved in dealing with organised and serious crime. If that is the case, no doubt that will be the thrust of what the Minister will say when he responds. However, this clearly could be something of a grey area which presumably could mean National Crime Agency officers becoming involved in dealing with the kind of crime that might be a matter for other police forces rather than the National Crime Agency.
Who, then, will make the decision on whether a National Crime Agency officer should carry on activities in relation to another kind of crime when it is neither serious nor organised? Will it be for individual NCA officers on the spot to decide or the director-general of the NCA? Will the director-general decide but require the consent of the Secretary of State, or will it be a matter that can be undertaken only by NCA officers when there is prior agreement between the chief officer of the police force that would normally deal with such a crime and the director-general of the National Crime Agency?
There is a possibility that this particular provision in Schedule 1, allied to the provisions of Clause 1, could be used by the director-general of the new, more powerful and influential National Crime Agency to seek to extend his or her wings and influence. The director-general could take the view that a range of other crimes could,
“relate to organised crime or serious crime”,
and be addressed by the National Crime Agency and thus could and should involve National Crime Agency officers. It might well be that the Minister may say that this will not happen, but what is to stop it happening under this Bill? Bear in mind that the director-general of the new National Crime Agency has wider powers and responsibilities, including stronger powers of direction than have previously applied in relation to chief constables of other forces.
There is potential for friction between the National Crime Agency and police forces in England and Wales, particularly with elected police and crime commissioners on the scene, unless some very clear guidelines are provided on the kind of circumstances in which the powers of the National Crime Agency to become involved in dealing with any kind of crime, in addition to organised crime and serious crime, can and should be used. I hope that the Minister will be able to set out how the Government see this power in paragraph 5(1) of Schedule 1 being exercised by the new, more powerful and influential National Crime Agency and its officers under the terms of this Bill. I beg to move.
Lord Henley
My Lords, I am grateful to the noble Lord for explaining what lay behind his probing amendment. I hope that I will be able to set out what paragraph 5(1) of Schedule 1 is about. It makes it clear that the National Crime Agency can undertake the widest possible operational activity to maximise its impact on serious and organised crime. Clause 1 sets out clear expectations for the range of operational activity that it will be necessary for the agency to be able to undertake. Paragraph 5 goes further, making it clear that the agency can undertake operational activity,
“in relation to any kind of crime (whether or not serious or organised)”,
if it will ultimately deliver its crime reduction function. This includes disruption activity.
We are clear that the agency needs to be focused on national crime threats. That is why the crime reduction function has been drafted in the way that it has. This is not about interfering in local policing or taking over the work of individual police forces. Rather, the National Crime Agency will work with and support the work of local policing and police forces nationally to tackle crime that warrants a response beyond the boundaries of a local police force. It is also not about broadening the remit of the agency, but strengthening the ability of the police to respond to the serious and organised crime threats that face every community in the United Kingdom every day.
Criminal gangs have networks that can span from street-corner drug-dealing to the international importation of drugs and firearms. Therefore, it is important that the agency is able to take action against such gangs and other serious criminals along the whole spectrum of crime across which they can operate, from that very local level up to national and international levels. This amendment would therefore significantly curtail the effectiveness of the operational activity that the agency could undertake. It is right that the agency’s efforts should be concentrated on serious and organised crime, but the Committee will recognise that sometimes the most effective way of disrupting a crime network is to tackle the lower-level, seemingly less serious crime to have the greatest impact and stop the crime group operating. For example, an agency officer may want to use their powers to arrest a suspect for a possession-of-drugs offence to disrupt a much larger operation that involves a number of people in the supply of illicit drugs.
In all cases, the activity of the agency should be directed towards its core role of protecting the public from serious and organised crime. That is already written into paragraph 5. Where an agency officer is tackling crime that is not serious or organised, it must be to deliver the agency’s function of tackling serious and organised crime.
Finally, I point out to the noble Lord that there is a very similar provision in Section 5(3) of the Serious Organised Crime and Police Act 2005. The previous Administration accepted the need for such a provision. I appreciate that this is a probing amendment but I hope that the noble Lord will see that it is unnecessary and, in effect, a replication of what was there before. With those assurances and that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Rosser
My Lords, I thank the Minister for his response, which has clarified the Government’s intentions behind the wording “any kind of crime”. I referred to the fact that there is similar wording relating to SOCA in the Serious Organised Crime and Police Act 2005. I commented that it was not the same wording as appears in the Bill and asked the noble Lord to explain the significance of the change, which he has not done. Maybe the wording has been changed for a good reason but at the moment I am not clear as to what that is.
I am not entirely surprised by the Minister’s response. I understand his point that, in addressing serious and organised crime, there may come a need or a necessity to address other kinds of crime in the course of those investigations. In moving the amendment and asking those questions, I was simply pointing out that it depends on the extent to which this power is used and how it is used. Although I posed the question, I am still not clear as to what the Government’s intentions are in respect of who will decide whether the powers in paragraph 5(1) of Schedule 1 should be used. I asked whether it would be the NCA officer on the ground, the director-general or the director-general with the clearance of the Secretary of State, or whether it would be a matter for agreement between the director-general and the chief constable of another force. I have not had a specific response to that point either. Does the Minister wish to intervene?
Lord Henley
I will intervene if the noble Lord will give way. On his point about the comparison between the 2005 Act and the Bill, I will look carefully at what he said. I do not have the wording of the 2005 Act in front of me and it does not stick firmly in my head. However, I am sure that there are very wise words in the Act. Our intention was to replicate what was there. If there are differences in the wording, there is no intention to do anything different. The intention was to achieve the same object. It might be worth my looking again at the precise wording of the 2005 Act and what we have here and writing to the noble Lord, just to make it clear that our intention and that of the draftsman—remember that over seven years the style of drafting will change—was to achieve the same things. Is the noble Lord happy to accept a letter from me on that matter?
Lord Rosser
Yes, I would certainly accept a letter. I do not wish to imply that there are major differences in the wording but it is not precisely the same. However, if the intention is that it should mean the same, that is fine. If the Minister could write to me, saying that, it would clear up the matter. In the light of the Minister’s reply, I beg leave to withdraw the amendment.
Lord Henley
My Lords, I hope that I can deal relatively briefly with the amendments in the name of the noble Baroness. I can assure her that in moving the amendment she was, as always, her usual moderate self, for which I am very grateful. Perhaps I may deal first with Amendments 9 to 13 and then deal with Amendment 8 in more detail. Since Amendments 9 to 13 deal with discussing these matters with the chairman of an NCA board and so on, and since we have already dealt with an amendment on which I made it clear that we are not minded to have an NCA board—the noble Baroness will no doubt want to come back to that on Report—it seems somewhat artificial to discuss this issue at this stage. In the absence of a board and the absence of our desire to have a board, discussing such matters is possibly, dare I say, a waste of time.
As regards Amendment 8, I repeat again that the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is therefore right that she should be responsible for appointing and, if necessary—although I hope that it will not happen—dismissing the director-general. She will make any appointment on merit following a fair and open competition and will consult, as the Bill makes clear, her counterparts in the devolved Administrations, reflecting the fact that the NCA will be a UK-wide agency. Under Amendment 8 the noble Baroness seeks to ensure that the selection and appointment of the director-general is subject to scrutiny by the relevant Select Committee, which in this case would be the Home Affairs Select Committee.
We accept that there is a place for departmental Select Committees to undertake pre-appointment hearings for certain key public appointments but we do not believe that this is one of them. I should remind the noble Baroness that the Liaison Committee considered this issue in its July 2011 report on public appointments. It argued for a role for Select Committees where the post exercised one or more of three types of function, including,
“scrutiny of government over matters of propriety, ethics and standards in public life … uphold and defend the rights and interests of citizens; and/or … stand in the shoes of Parliament by exercising direct scrutiny or control over the activities of Ministers”.
None of those criteria apply to the NCA. Perhaps I may add that, for example, the director-general of the Serious Organised Crime Agency was not on the Liaison Committee’s list of appointments to be subject to Select Committee scrutiny.
The Home Affairs Select Committee obviously will have a role in scrutinising the work of the agency in the same way as it has scrutinised the work of SOCA. I believe that it is in that capacity that they can best contribute. But in line with the advice of the Liaison Committee, we do not believe that it is necessary for the Home Affairs Select Committee to have a role in the appointment of the director-general. That is a matter for the Home Secretary. I repeat, and I will probably have to repeat it again, that the Home Secretary is responsible to Parliament and it is right that she should be. Therefore, I hope that the noble Baroness will feel able to withdraw Amendment 8.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord for his explanation. When we put forward Amendments 9 to 13 it did not occur to me that he would not accept our amendment for an NCA board with open arms. We thought that it would be a welcome suggestion and that we were being very helpful to him. We may return to those particular issues as I am disappointed with his response.
There seems to be ambiguity in Schedule 5 regarding the skills and abilities required of the director-general and those requirements can change. Given the provisions of Schedule 5, to which we will come later, some oversight by a Select Committee would be helpful to a Home Secretary in making appointments. I take on board what the noble Lord has said at this stage. Perhaps we may return to it when we discuss Schedule 5. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, this is a probing amendment to clarify and understand the role of specials in the NCA and what they will do. When I read this clause, I thought I understood the role of specials. I went to my favourite police force—Essex—and looked at its website and at the government factsheet on specials in the NCA to try to tie the two together.
The government factsheet says that volunteers will be,
“similar to the police Special Constabulary”,
with,
“some or all of the policing powers available to”,
the NCA. It describes specials as,
“civic-minded volunteers in … public protection work … who may have particular specialist skills … in the fight against serious, organised or complex crime”.
Yet in all the information that I can find regarding the recruiting of special constables in the police force, not one mentions specialist skills or experience. In fact, it talks about special constables being unpaid volunteers and says that they are,
“a manifest sign of partnership between the public and the police”,
with key responsibilities of, for example, performing,
“police duties at public events eg. airshows, concerts and county shows to complement the regular police provision”,
and in emergencies performing,
“additional police duties to assist regular officers”.
It talks about how they have a range of skills, but mainly it is about having more visible policing on the streets.
I would like an explanation of how this translates into specials with the National Crime Agency. Will the agency seek to recruit only specialists—and, if so, what kind of specialist, and how would it seek to recruit them? Surely the work of the NCA is very different to that of a local police force. It is investigative and is to do with serious organised crime, with very complex issues. Police specials have to do a minimum of four hours a week; it is quite difficult to understand how a special in the NCA could fulfil any meaningful function in that time. The Bill refers to part-time specials, but then paragraph (14)(3) says that they can be “otherwise than … part-time”—and the only definition that I know of that is full time. I am not clear why someone would be regarded as a special if they were seconded or taken on a full-time role.
I am happy to be reassured and am looking for reassurance, but I am slightly uneasy as to how this would look across a range of functions and different commands within the NCA—with border control, for example, or CEOP. Did any of the constituent bodies previously use volunteers or specials in this way? Did CEOP do so, for example? Those who wish to abuse children are sometimes very cunning and intelligent in many cases in trying to get to the place where they can get information. Have volunteers been used in the past—and if an NCA special volunteer worked in one area, would that volunteer be allowed to undertake work across the range of NCA functions and responsibilities? What will they do exactly? Also, given the relationship with the PSNI, has there been a discussion with the Northern Ireland Executive on this part of the NCA’s work there? I am a bit puzzled as to how this would work in practice, and any information that the Minister can give would be greatly appreciated.
Lord Henley
My Lords, the noble Baroness pays tribute to her favourite police force in Essex, so I will say a word or two in relation to specials in Cumbria. I mention them in the other end of the country purely to make a point. Two Saturdays ago, I went with them to Appleby for the horse fair, where a very large number of the travelling community descend on a very small town and there are quite serious public order issues. It is the biggest issue in the Cumbrian police force’s annual list of events; from a very small police force it has to provide something like 200 officers over the course of that week on duty to make sure that things remain under control. As a result, I am very proud to say, they make enormous use of their specials in Cumbria, as I am sure that Essex would do in its events. We should all pay tribute to those who give their efforts unpaid and voluntarily as special constables for the work they do and how effective they can be. The role of the NCA specials will be somewhat different than for ordinary specials—if you can call them ordinary—in Essex or Cumbria or wherever.
It may be useful if I set out in some detail how we see the specials developing and the NCA recruiting its own cadre of NCA specials. Enabling the recruitment of NCA specials will build on the approach that has worked effectively for many years in the Police Service. Like ordinary police specials, NCA specials will be unpaid and part time. But we expect many to be recruited on the basis of particular specialist or technical skills that they can offer, such as an understanding of complex financial products to aid the NCA’s counterfraud efforts or expertise in information technology and the internet to help tackle cybercrime. This is not that different from how reservists are often used in the Armed Forces. The noble Baroness will know that there are many specialities that it would be impractical for the Armed Forces to keep in large numbers, in full employment the whole time. But it is worth while having reservists that they can bring in to act as doctors, as they do in Afghanistan.
Like other NCA officers, NCA specials would be able to be designated with operational powers to play a full role in the agency’s work to tackle serious, organised or complex crime. Again, like other NCA officers, NCA specials would be required to be suitable, capable and adequately trained before being designated with the appropriate powers, which, for NCA specials, will be limited to the powers and privileges of a constable, in England and Wales only. NCA specials will not have operational powers in Scotland or Northern Ireland. So there is a distinction there.
The terms and conditions of NCA specials will be for the director-general to determine, but the Bill sets out some core principles. Although NCA specials are NCA officers, they will not be covered by every provision applying to other NCA officers. It will not be possible for the director-general to delegate his or her functions to an NCA special, and they will not form part of any group of NCA officers provided by way of assistance to another law enforcement body. That means that NCA specials will always operate under the direction and control of the NCA director-general. An NCA special will also not be able to form part of the advisory panel designating the director-general with his or her powers.
As unpaid volunteers, NCA specials will not be provided with a wage, a pension or allowances, and will not be covered by the no-strike provisions, which no doubt we will deal with later, for paid NCA officers. They will not form part of the Civil Service. But they will be reimbursed for expenses, and provided with the necessary subsistence, accommodation and training needed to perform their role. They will be able to receive payment to compensate for loss of salary in the event of injury or death resulting from the performance of their duties.
Finally, we have provided for the powers of an NCA special to be ring-fenced so that when a person is both an NCA special and a special constable or Northern Ireland reservist, any powers conferred on him or her as an NCA special cannot be exercised when acting in the latter roles.
We believe that these measures on NCA specials will represent an attractive opportunity for individuals who want to volunteer and to contribute to protecting the public, as well as bolstering the expertise of the National Crime Agency across its remit. The idea behind it is to bring in expertise that might not otherwise be available. They will form an important part of the agency’s stronger co-operation with the private sector, harnessing skills that exist, and are constantly refreshed, in the private sector.
I hope that that explanation is sufficient for the noble Baroness and that we will in due course see them performing as valuable a role as specials in the rest of the police force, although obviously that will be rather a different role bearing in mind their expertise and the nature of the NCA.
Lord Henley
As I said, they will be unpaid in exactly the same way as existing specials are. We hope that we will find volunteers but the NCA is looking to find people with the relevant expertise. Until I came to this job I was not aware that specials were unpaid. I presumed that they were in exactly the same position as my noble friend Lord Attlee, who has had long and distinguished service in the Territorial Army, where he would have been paid for the days that he served and the weeks and months of service when he was on Operation Telic and other such matters. However, the specials have always been treated differently; they are unpaid. We are leaving them in the same position. Just as the ordinary police—I should not say “ordinary”—can manage to get specials who will do this work unpaid, for which we are very grateful, we believe that the same will be true of the NCA. The NCA will be looking for the specialist expertise that it needs which some people—for example, those who are experts in IT—might feel that they can offer in their spare time. That is much the same process as happens with specials at the moment except that they are not offering that expertise.
Baroness Smith of Basildon
I still have some doubts that this process will work although I hope that I am wrong. It might be helpful if the director-general includes in the annual report something about the role of specials. I hope that the noble Lord will write to me on the following question, which he did not answer: namely, whether any of the organisations such as SOCA or CEOP have had specials working in this way. I understand that specials are unpaid, a bit like shadow Ministers in your Lordships’ House. Incidentally, I am happy for him to write to me on the other point as well.
Lord Henley
I can give the noble Baroness a partial answer. There is no comparable scheme within the Serious Organised Crime Agency. However, I understand that some police forces have made use of specialists as specials; for example, the City of London police do so for some fraud inquiries. I think that the same is true of the Metropolitan Police e-Crime Unit, which makes some use of specials in this way: that is, in bringing in expertise. However, as I said, within the precursor organisations, SOCA certainly has not had the ability to do that. I do not know about CEOP and others but I will find out and write to the noble Baroness.
Baroness Smith of Basildon
I appreciate that. CEOP is the body about which I have the most concerns and queries. However, given the Minister’s explanations and his offer to write to me, I beg leave to withdraw the amendment.
Lord Henley
Baroness Smith of Basildon
My Lords, I listened to the noble Lord, Lord Alderdice, with some care. As noble Lords know, I have maintained an interest in Northern Ireland issues, having spent a number of years as a Minister there. I find it very difficult to understand how the Government can proceed with issues that affect Northern Ireland, particularly in this area, if there is not agreement from the First Minister and Deputy First Minister or discussions have not been held with David Ford, the Minister for Justice.
This is a sensitive area and I appreciate that, as the noble Lord, Lord Alderdice, said, these things can take some time to resolve when the Executive in Northern Ireland meets. Decisions by the Executive may not always be speedy, but the passage of the Bill will not be speedy either in that the Committee stage will continue after the Summer Recess. I hope that the Minister will take on board the comments of the noble Lord, Lord Alderdice, which we support. We think that the First Minister and Deputy First Minister should have an opportunity to comment on this and I hope that some agreement can be reached prior to moving forward with these clauses.
Lord Henley
My Lords, there are possibly two issues here. The first is the wider one on the order-making power in Clause 2, to which we will come later when we deal with whether the clause should stand part of the Bill. I trust that that will happen after we have broken for dinner, which may be convenient because I suspect that, in the light of the Constitution Committee’s report published today, it is a debate on which a number of noble Lords will want to speak and one on which we may want to take a reasonable amount of time.
The duty of the Home Secretary to consult Northern Ireland Ministers before laying before Parliament a draft order on counterterrorism functions is important. I hope that I can give some reassurance about the consultation that we are undertaking, who we have discussed these matters with and where we are at the moment. I am sure that my noble friend knows as much as I do about where this is with the Executive at the moment.
I recognise that the amendment seeks clarity on the relationship between the NCA and arrangements in Northern Ireland if a decision is made in the future—I stress if such a decision is made in the future—that the agency should have that counterterrorism function. That has been at the forefront of our consideration of these arrangements, not just for the order-making power but in relation to the agency as a whole, balancing the need for an effective United Kingdom response while respecting the important accountability arrangements for policing in Northern Ireland.
We recognise the particular sensitivities of the arrangements in Northern Ireland which is why in this clause we have already provided specific arrangements that recognise the responsibilities of the chief constable of the Police Service of Northern Ireland, who has operational responsibility for the police response to terrorism in Northern Ireland. It is absolutely vital that we are clear about the relationship between the NCA and the Police Service of Northern Ireland in the event that the agency were to take on the counterterrorism function. That is why Clause 2(2) provides such clarity by stipulating that the agency may carry out counterterrorism activities in Northern Ireland only,
“with the agreement of the Chief Constable of the Police Service of Northern Ireland”.
Furthermore, any draft order will be subject to the super affirmative process, which includes a requirement for the Home Secretary to consult those persons whom she considers will be affected by the draft order. Again, we will discuss that in somewhat greater detail when we get to Clause 2 stand part, which it would be appropriate to leave until after dinner, if everyone is happy with that suggestion.
Seeking clarity on the consultation requirement in relation to Northern Ireland is understandable and the broad nature of the consultation requirement in Schedule 16 could, of course, include the devolved Administrations—that applies to Scotland as much as it does to Northern Ireland—as well as operational partners, government departments and others. I do not think that we have a gap there.
As the House will be aware, under the terms of the Northern Ireland Act 1998, national security is an excepted matter and the National Crime Agency will be a reserved matter. A duty to consult on excepted and reserved matters therefore sits uncomfortably with the devolution settlement as it relates to counterterrorism matters. I recognise that counterterrorism policing in Northern Ireland cannot be divorced from the generality of policing which is, of course, a transferred matter. Indeed, the National Crime Agency itself will undertake a mix of reserved and devolved activity in relation to its serious and organised crime remit. That is why the provisions in Part 1 of the Bill will require the Northern Ireland Assembly to adopt a legislative consent Motion. That is also why there are provisions throughout the Bill which provide for the necessary checks and balances to reflect devolution at certain points. Obviously, there needs to be consultation with the Department of Justice in Northern Ireland.
I understand that the Justice Minister and the Justice Committee of the Assembly—I am sure that my noble friend knows as much as I do—have agreed in principle to take forward a legislative consent Motion, and officials in the Department for Justice in Northern Ireland are seeking to secure the agreement of the Executive Committee before proceeding to the next stage. Any legislative consent Motion needs to be adopted by the Assembly before the Bill reaches its last amending stage. Although things have not been proceeding quite as quickly as we might wish them to have done, since we know that the Bill is designed not to proceed as quickly as sometimes Ministers wish Bills to proceed and we will not complete the Committee stage until October, there is a considerable chance that we will get to that stage before the Bill gets on to the statute book.
I hope that my noble friend Lord Alderdice will accept that we are making progress. We will continue to do more and continue to discuss this with my right honourable friend the Secretary of State for Northern Ireland and others. We will carefully reflect on my noble friend’s points between now and Report, which will not happen until some time in late October or thereabouts.
I will quickly say a few words about Amendment 21. It seeks to limit the extent to which an order under Clause 2 may be amended or otherwise modified by the Crime and Courts Act and other enactments. I can give an assurance that Clause 2 is already limited purely to counterterrorism functions. While that is not restated expressly in subsection (4), the effect of that subsection when read with the clause as a whole is to limit the power to make amendments to primary legislation to those that are consequential on conferring counterterrorism functions on the National Crime Agency. Again, I suspect that that is a matter that we will discuss in greater detail when we come to the Clause 2 stand part debate. It was considered by the Delegated Powers and Regulatory Reform Committee. The committee made no recommendation in respect of that power in its report. In fact it went so far as to state that the idea of adding to a statutory body’s functions by subordinate legislation subject to parliamentary procedure is well established. I hope that my noble friend will feel that her Amendment 21 is therefore not necessary.
Going back to the original amendment of my noble friend Lord Alderdice, I hope that what I have said gives him the appropriate reassurance. We fully understand the sensitivities in this area and I hope that he will therefore feel able to withdraw his amendment on this occasion.
Lord Alderdice
My Lords, I am grateful to my noble friend. He said—I think I have the words correctly—that given that some of these powers were excepted matters, it sat uncomfortably to require the Home Secretary to consult a devolved institution. I understand that from a London perspective, but with regard to these very matters, the Good Friday agreement and the Anglo-Irish agreement require a sovereign Government to consult another sovereign Government about precisely these matters. That is something that sat uncomfortably with many people. I rather think on many issues that some people in Whitehall have not quite worked their way through to understanding what this really means. To me, the way things were presented not by my noble friend tonight but in the initial proposal for the Bill suggest a failure to understand the sensitivities and requirements under international treaty now to engage.
However, this is a probing amendment. I will read my noble friend's words carefully, but I think that he has spoken with considerable openness, candour and straightforwardness about the difficulties of finding our way through this issue. I am happy to withdraw the amendment at this point. I may find it necessary to come back to this question, not to create difficulties but for wholly the other reason of trying to assist the Government by pointing out issues that will be a problem down the road if they are not fully addressed. I have tried to give some kind of indication as to where they need to be addressed. I hope that I will not need to come back to this at a later stage and that the Government are successful in the difficult discussions to which my noble friend referred. At this point, I beg leave to withdraw the amendment.