Crime and Courts Bill [HL]
Lord Henley Excerpts(11 years, 11 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.
Crime and Courts Bill [HL]
Lord Henley Excerpts(11 years, 11 months ago)
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Lord Rosser
My Lords, Clause 2 modifies National Crime Agency functions. It enables the Secretary of State by order to make provision about National Crime Agency counterterrorism functions and, in particular, to make provision conferring, removing or otherwise modifying such functions. It also provides for such changes to be subject to the super-affirmative procedure, which is referred to in Schedule 16. This is an important issue about who should be responsible for counterterrorism activity, which the Metropolitan Police is currently involved in. That organisation has considerable expertise in this field. There would have to be a strong case to move such responsibilities away from the Metropolitan Police or, indeed, to move them away from the National Crime Agency if such responsibilities rested with that body.
The Government clearly recognise that this is a sensitive issue because, having decided to make changes to National Crime Agency counterterrorism functions by order, they have proposed that the super-affirmative procedure should apply. The super-affirmative procedure is a less comprehensive procedure than primary legislation. Changes in the responsibility for counterterrorism and changes to the structure for meeting that threat should not be easily or quickly made without the full and proper consideration that can be given by Parliament through primary legislation. Primary legislation enables a change in the law to be considered in detail and amended through consideration in Committee and on Report. The Government cannot stop that happening under current practice and procedures but, under the super-affirmative procedure, that will not be the case, as even the more limited procedure for considering government proposals in paragraph 4 of Schedule 16 will not apply if the Government are able to use their effective majority in each House to approve their draft order without even going through the procedure in that paragraph.
We are talking about an issue of substance and concern: where responsibility for counterterrorism should lie. It should not be dealt with by the Government by order, super-affirmative or otherwise; it should be open to the normal and full parliamentary procedure for approving, amending and making changes in statutory arrangements—namely, through primary legislation after full debate, with the Government being compelled to accept the Bill if and as amended by Parliament.
This matter has been considered by two committees. I imagine that until today the Minister was probably not unhappy with the situation, since the committee report that we then had in front of us was that of the Delegated Powers and Regulatory Reform Committee. Its view was:
“The idea of adding to a statutory body’s functions by subordinate legislation subject to a Parliamentary procedure is well established”.
However, this is not just about adding to a statutory body’s function; it is also potentially about taking it away from another body, in this case the Metropolitan Police. Nor is this any function; it is the counterterrorism function, on which the lives and security of the people of this nation depend.
We have now seen the report of the Constitution Committee, which has taken a rather different line. It refers to the fact that Clause 2 concerns the possible future extension of the National Crime Agency’s remit into counterterrorism and points out that currently the counterterrorism command of the Metropolitan Police has the lead national role in counterterrorism policing. The committee goes on to point out that Clause 2 would give the Secretary of State an enabling power,
“to ‘make provision conferring, removing, or otherwise modifying’ NCA counter-terrorism functions”.
If that was applied,
“the Home Office would be in a position to have the option of assigning or transferring relevant functions to the new agency”.
The Constitution Committee has described the enabling power in Clause 2 as,
“an order-making power of the ‘Henry VIII’ type, so empowering the minister to ‘amend or otherwise modify this Act or any other enactment’”.
Those words are found in Clause 2(4), where the Bill states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
It is indeed a wide-ranging power. The Constitution Committee comments on the proposal in respect of the super-affirmative procedure and says:
“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.
The committee says that its approach to Henry VIII clauses,
“is based on the constitutional principle that it is for Parliament to amend or repeal primary legislation. The use of powers allowing amendment or repeal of primary legislation by ministerial order is therefore to be avoided, except in narrowly-defined circumstances. A departure from the constitutional principle should be contemplated only where a full and clear explanation and justification is provided. For assessing a proposal in a bill that new Henry VIII powers be conferred, the Committee has adopted a two-fold test”.
That test is:
“Whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill, and, if so, whether there are adequate procedural safeguards”.
The committee goes on to say:
“We are not persuaded that clause 2 passes the first test. The subject-matter of the proposed order-making powers—the allocation of functions and attendant responsibilities and accountabilities of counter-terrorism policing—is of great importance and public interest. The House will wish to consider whether the constitutionally appropriate vehicle is primary legislation”.
We agree with the views of the Constitution Committee, which was not persuaded that Ministers should have the power to change the statute book for the specific purposes provided for in this Bill in respect of the allocation of functions and attendant responsibilities and of the accountabilities of counterterrorism policy. We are opposed to the question that Clause 2 should stand part of the Bill.
The Minister of State, Home Office (Lord Henley)
My Lords, I hope that I can respond to the noble Lord’s points. I agree with him that this is an important issue, which we need to take very seriously. The noble Lord raised two questions: should counterterrorism move to the agency and, if so, how? They are two distinct questions and we want to consider them in due course. I will consider them in that manner. He also feels that it is a matter on which there should be a full debate in Parliament, relating to the second question: “If so, how?”. I have to say that this is possibly not the best example of such a debate. As the noble Lord made those expressions immediately after dinner, perhaps he felt some embarrassment over what an empty House we have as we discuss what I, like him, consider a very important issue to which I hope we will do justice. We might have to come back to it at a later stage because of its importance.
As the noble Lord knows, the functions of the NCA have been drafted in fairly broad terms to ensure that it is able to tackle all the crimes in which organised crime groups are involved. However, it will also be important for the agency to be able to react quickly to any changes in the threat picture. In particular, careful consideration has been given to how best to future-proof—an expression I do not particularly like, but it is quite useful here—the National Crime Agency for a potential role in counterterrorism. The Government have been clear that there will be no wholesale review of the current counterterrorism policing structures in England and Wales until after the 2012 Olympic and Paralympic Games and the proper establishment of the NCA. It is only then that it will be right to look at how counterterrorism policing is co-ordinated across England and Wales and to decide where it is appropriate for national responsibility to sit. Such a review should sensibly consider whether the National Crime Agency might play a role and, if so, what it might be.
I think that the Home Affairs Select Committee agrees with us. In its September report, New Landscape of Policing, it said:
“We agree with the Government that responsibility for counter-terrorism should remain with the Metropolitan Police until after the Olympics, not least because the National Crime Agency will not be fully functional until the end of December 2013”.
It went on:
“However, we recommend that, after the Olympics, the Home Office consider”—
I am very grateful that it used the word “consider”—
“making counter-terrorism a separate command of the National Crime Agency: there should be full co-operation and interaction between the different commands”.
I give an assurance that any decision that we make will be made after that time and will be considered very carefully. It is not a decision that we need to make at this stage.
I move on to the order-making power, which looks very drastic. It is a Henry VIII clause. I remember being introduced to Henry VIII clauses by my noble kinsman Lord Russell, since deceased, who was the first to spot their increasing use by the previous Government—it was a long time ago—when we were trying to expand the use of these things gradually. They should rightly always be looked at with very great care by all Members of both Houses of Parliament. It is quite right that Parliament should do these things in the proper way.
Clause 2 provides an order-making power so that the Secretary of State can confer, remove or otherwise modify the functions of the NCA in relation to counterterrorism. The order-making power is limited to changing the functions of the NCA. The noble Lord again got very worried about Clause 2(4), which states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
Most simple lawyers, such as me or, possibly, the noble Lord, Lord Beecham, would immediately assume that that meant anything in the world, that we could do what we wanted and that this was a wonderful thing. I am advised by those who are much greater than me and are not just simple lawyers that, if you read the clause in full, subsection (4) does not give that power. Because this has to be taken as a whole, the power is confined to counterterrorism functions and it is only on those that the Secretary of State could act. Having said all that, I accept that it is important to address these issues.
Baroness Hamwee
My Lords, I like the notion of Henry VIII being put to bed. He used to say that of others, did he not?
It will be clear to the House from my amendment before the dinner break that I am merely an ordinary lawyer. I am probably what my noble friend Lord Roper calls a “cooking solicitor”, the analogy being cooking sherry. I am glad to have understood a little better how these things work.
I did not want to come in before the Minister spoke, because I wanted to hear what he had to say. Like the noble and learned Baroness, I am a little confused about the rationale for postponing this measure when we know that this Bill will still be in Committee in this House—it will not even have reached the other House—after the Olympic and Paralympic Games. Like her, I am not sure why that is the case, unless the Government have some reason to feel that it would undermine the authority of the Metropolitan Police during the Games. I cannot see it, given that somebody who is being dealt with under some terrorism charge is not going to thumb their nose and say, “Yoohoo, you’re not going to have this function for much longer”. That is not life, is it? So I remain confused about that.
Like the noble and learned Baroness, I feel that although the super-affirmative procedure clearly gives more opportunity for debate and response than the simpler secondary legislation procedures, the response to what the Minister proposes is almost a nuclear option, because it would mean the whole order being rejected rather than dealing with small parts of it. On such a serious matter, which I know that the Government have thought about very seriously, I am reluctant to say—but I do say it—that I am not convinced. I expected the Minister to tell the Committee that legislative time was short, and so on. I do not think that he has prayed that in aid, but had he done so I would have said that this was so important an issue that time needs to be made for it.
Lord Henley
My Lords, first, I take up a point that my noble friend Lady Hamwee took up when commenting on the remarks from the noble and learned Baroness, Lady Butler-Sloss, when she said that it was time to put Henry VIII to bed. She might find that that remark appears in The House magazine fairly soon as quotation of the week. But I leave it for her and the editors of that magazine. It was a very good remark and we all knew what she meant.
I want to make it very clear, as I hope that I did in my opening response to the noble Lord, Lord Rosser, that we do not want to address the issue as to whether counterterrorism should go in at this stage. My right honourable friend the Home Secretary has made that clear the whole way through. No decision has been made.
The noble and learned Baroness suggested two alternatives, because she was unhappy with the use of Henry VIII powers. She suggested that we could put the provision into the Bill with a delaying clause and enact later, but that would imply that we have already made up our minds on this. This is the point that I want to get over—that no decision has been made, and we do not want anyone to assume that a decision has been made. She then said that, if we did not want to do that, there was the route of primary legislation. On that point, I am grateful to my noble friend Lady Hamwee, who said that you could always find a slot for primary legislation. I can tell her that in my experience in government and opposition, that is simply not the case. The noble Baroness, Lady Smith, nods at me. We all know the difficulty of finding those slots. Very occasionally, if it is an emergency and you have agreement from all sides of the House, you can move very quickly. But finding legislative slots is very difficult. That is why in the end we thought that going down a route where we used the super-affirmative procedure provided the right level of scrutiny by both Houses. I appreciate that it still means that there is not the ability to amend in other ways, but with the super-affirmative procedure there is considerably greater examination of what is in front of both Houses than with an affirmative model or a negative resolution. That is probably why I rather cynically said at the beginning that we could have offered the negative resolution procedure and then in one House offered the affirmative as a concession and then moved on to the super-affirmative. As it was, we considered this very carefully and decided that the super-affirmative was appropriate. We think that we have probably got it right. I hope that we have and that the House will accept that.
I appreciate that the Constitution Committee disagrees with our view. I received its report this morning as I came in and have seen what it had to say at paragraph 7. However, I pray in aid the fact that another equally great committee of this House, the Delegated Powers and Regulatory Reform Committee, has looked at the measure and felt that it was not inappropriate. Therefore, there can be differences of view. I go back to the phrase that I have used on many occasions in relation to the Home Office—in the end one has to find the right balance. I hope that we have found the right balance on this and that the House will accept that Clause 2 is necessary so that we can consider this matter in due course. As I said, I leave it to the noble Lord, Lord Rosser, to decide how he wishes to proceed.
Baroness Smith of Basildon
My Lords, I have some sympathy with the noble Baroness’s contribution because the strategic priorities seem to be a bit of a puzzle. A key part of what the NCA does must be that the public and everyone else can understand the strategic priorities of this organisation. When you look through the Bill to see what the role of the NCA is, the description is extraordinary broad. It has the function of,
“gathering, storing, processing, analysing, and disseminating information that is relevant to any of the following … activities to combat organised crime or serious crime”,
and,
“activities to combat any other kind of crime”,
or “exploitation proceeds investigations”.
That is an extraordinarily broad area. It covers all kinds of crime, yet the strategic priorities are a very small part.
I looked to see whether there was something about the strategic priorities within the framework document. Like the noble Baroness, Lady Hamwee, I could not see it there. I am not questioning the right of the Secretary of State to determine those priorities: the Secretary of State should have that strategic oversight. But I am not clear what scrutiny there is and what form of publication there will be. Clause 3 states:
“The Secretary of the State may determine strategic priorities”,
including whether he or she wants to have priorities or not, and will consult strategic partners, the director-general and anyone else the Secretary of State thinks appropriate. It is extraordinarily broad.
If we then look at operations, it is clear that the strategic priorities play an enormous role in what the director-general then sets out in the annual plan of what the organisation is to do. I feel that we need more information about this. Will the Minister say something about the relationship between the strategic priorities of the NCA and the framework document? I am not clear how the two work together. If we look at Schedule 2, the framework document seems to describe the,
“ways in which NCA functions are to be exercised”,
and the,
“ways in which the NCA is to be administered”,
but that will depend on what the strategic priorities are. Some guidance and enlightenment from the Minister would be useful.
Lord Henley
My Lords, I hope that I can help and can be relatively brief. The important thing for my noble friend and the noble Baroness, Lady Smith, to do is to look at Clause 3 and Clause 4 together. If they do that, things become somewhat clearer. The amendment would place a duty on the Home Secretary to lay a report before Parliament following her determination of the strategic priorities. Clause 4 of the Bill already requires that the agency’s annual plan be published and include a statement of the strategic priorities determined by the Home Secretary. That is clear in Clause 4(2)(a), which refers to,
“any strategic priorities for the NCA (see section 3)”.
This is a new way of drafting that makes these Bills a lot easier to understand. The draftsmen are moving ahead. So there is a mechanism in the Bill for ensuring that the strategic priorities are published.
Moreover, the Bill also provides for the agency’s annual report to be laid before Parliament and for such reports to include an assessment of the extent to which the annual plan for the year has been carried out. So this again provides a mechanism for informing Parliament of the strategic priorities and how the agency is delivering against them. It would then obviously be a matter for both Houses to determine in a way that I do not understand but I am sure the noble Baroness does. We were discussing the usual channels much earlier in the Chamber. They will decide how these matters will be debated and discussed and how the Home Secretary will be held to account on these matters in both Houses. That is something that will happen in due course.
Given those provisions, I do not think that it is necessary to have a further procedure for laying the strategic priorities before Parliament as provided for in this amendment since Clause 3 interpreted with Clause 4 and read backwards again seems to do exactly what is sought. I hope that my noble friend will feel that the matters that appear in her amendment are covered by what is already there. I hope that I have also dealt with the points raised by the noble Baroness, Lady Smith.
Baroness Smith of Basildon
My Lords, this amendment would remove the requirement on the director-general to gain the consent of the Secretary of State for the annual plan. The amendment suggests that it should be undertaken by the National Crime Agency board. I know that the Minister will say that there is no board and no response to be made. However, I want to explore the broader issue. I am somewhat puzzled as to why the Secretary of State would sign off and have to give consent to the publication of an operational document. There has been no question or disagreement in the House that the Home Secretary should retain the ultimate strategic oversight and overview of the NCA. At the same time, it is vital to preserve the operational independence of the National Crime Agency and the director-general from government.
I believe that that is the Government’s intention but there are several places in the Bill where that is not as clear as it should be and it becomes a little confused. There are lots of documents and we are unclear about what they contain. There is a framework document that we have yet to see; there are strategic priorities that the Secretary of State will publish; there is the annual plan which the director-general will publish; and then there is the annual report which gives an indication of how far the director-general has been able to achieve the annual plan in that year. There will be some overlap and there needs to be clarity as we proceed.
The director-general has a statutory obligation to ensure that the annual plan meets the strategic priorities as determined by the Home Secretary. However, the annual plan itself seems to give operational effectiveness and direction to the strategic priorities. So the strategic priorities are for the Secretary of State and the annual plan will be for the director-general. Yet, the clause states:
“Before issuing any annual plan, the Director General must obtain … the consent of the Secretary of State … the consent of the Scottish Ministers … the consent of the Department of Justice in Northern Ireland as it relates to activities in Northern Ireland”.
I do not understand it. If we could remove the consent of the Secretary of State or politicians to the annual plan, that would make it clear that there is no political interference in the operational determinations of the director-general. The Bill is unclear as it stands and allows for the opportunity for political interference in operational matters, which I know the Government are keen to avoid.
This is not directly related to the amendment, but the clause states:
“The Director General must arrange for each plan to be published in the manner which the Director General considers appropriate”.
We may wish to give more guidance to the director-general over a matter that he thinks is appropriate. From our previous conversations, the Minister will know of my concern that it might end up on the website and not be seen by anybody at all, so we will have come back to that one. This is a clear case of the Secretary of State having to give consent and thereby being involved in operational decisions. That is not what Ministers have said throughout debates and discussions on the Bill or indeed at Second Reading. I beg to move.
Lord Henley
My Lords, I should first make it clear that there is no board, but we discussed that at an earlier stage and will no doubt do so again in due course. The proposed amendment would remove the requirement for the Home Secretary and the devolved Administrations to consent to the annual plan. I shall briefly address why the plan should be subject to their consent. The noble Baroness said that she wanted to get rid of what I think she referred to as “political interference” in these matters; I would refer to it as the Home Secretary being accountable to Parliament.
The annual plan will be important to ensure that the agency is open and transparent. Together with the annual report, it will provide the key mechanism by which Parliament and the public can hold the agency to account. Foremost, however, it is the place where the director-general will set out how he intends to deliver the NCA’s objectives for the coming year. It will be against those plans that the NCA’s performance is assessed, not least in the annual report at the end of the year.
As such, the annual plan must accurately reflect the strategic priorities which the Home Secretary has set for the NCA, as well as the wider national picture on organised crime and policing. The Home Secretary will ultimately remain accountable to Parliament for the national response to serious and organised crime and, indeed, for the performance of the agency.
It is therefore important that the NCA’s success is measured against the objectives that the Home Secretary has set for it. The requirement for the Home Secretary’s consent provides the most appropriate means of ensuring consistency between the annual plan and her strategic priorities. It also gives reassurance to Parliament and the public that she is content with the director-general’s approach to delivering those priorities.
The devolved Administrations in Scotland and Northern Ireland will also play an important role in shaping the fight against organised crime, and will therefore be consulted by the Home Secretary when she is setting the NCA’s strategic priorities. Given their accountability to their own electorates for the fight against organised crime, they will rightly have a role in agreeing those aspects of the annual plan which affect Scotland and Northern Ireland.
The annual plan will be an important document in measuring the effectiveness of the NCA. It is important that its contents are agreed—not, as the noble Baroness put it, interfered with politically—by those who will ultimately be accountable for that fight against organised crime at the national level. I appreciate that the noble Baroness put down the amendment to probe, but I hope that she will feel happy to withdraw it.
Baroness Smith of Basildon
My Lords, I hope—and thought—that I said that the amendment would remove the potential for political interference or any suggestion of it. I still think that that is a danger in the way that the clause is drafted. I fully accept the Minister’s explanation that there is no intention for there to be operational control or involvement by the Home Secretary; but by having to consent to the annual plan, she would have an oversight role in operational matters.
I do not intend to press the matter at this point. Lots of consultation and reports will occur as a result of the Bill—I wonder how bureaucratic one Bill can get. I will listen to what the Minister says on this and other clauses but, for now, I am happy to beg leave to withdraw the amendment.
Lord Henley
My Lords, I am grateful to my noble friends and to the noble Lord, Lord Rosser, for explaining what was behind their amendments—Amendments 26 and 65 from my noble friends and Amendment 66 form the noble Lord, Lord Rosser. Obviously, each is approaching this in a slightly different manner. The noble Lord’s party exempted SOCA when it was in government and brought it in. It wants to continue that exemption but do not want exemption for the other bodies that are coming in. I will deal with that in due course but—as always, using that word “balance”—it is a situation where we have to get these things right, and we have considered it very carefully.
I also want to make it quite clear to the noble Lord that we have a commitment—and the commitment is clear on the face of the Bill—that, as with SOCA, the NCA’s strategic priorities, annual plan and annual report will be published and will even go beyond that. We provide in Clause 6 that the director-general must,
“make arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA”.
We want to make it clear that we want to be open.
We considered very carefully whether the agency should also be subject to the Freedom of Information Act. As I have just made clear, we are all aware that SOCA is exempt from that and was exempt from it when it was created back in 2005. We concluded that it was right to maintain the status quo. To apply the Freedom of Information Act, as these amendments from my noble friends set out to do, would jeopardise the NCA’s operational effectiveness and ultimately result in lower levels of protection for the public. Like SOCA, the NCA will handle large volumes of operationally sensitive information, including intelligence material, which could have a detrimental impact on national security if released. Naturally, the Freedom of Information Act exemptions would apply to much of this material so that it could be protected from release, even if the agency were subject to FOI, but two key risks would remain.
First, the National Crime Agency will depend on the absolute confidence of its partners so that they share all the information they can with the agency. That is what will give the agency its superior natural intelligence picture, which in turn will enable it to pursue and catch the criminals who are the threat. If those partners believe that sensitive information held by the agency could be subject to public release, they are likely to be more reluctant to share that information with the NCA in the first place.
Secondly, intelligence shows that organised criminals are increasingly sophisticated in their methods and seek to exploit any avenues possible to further their criminal activity. There is the danger that they would be likely to use the Freedom of Information Act to acquire information about the NCA’s operational tactics, disrupt its operations and evade detection. While the exemptions might again apply to some of this information, that might not always be the case. This is obviously also a concern for the private sector. Organised criminal gangs could identify and then target vulnerabilities in private sector companies working with the NCA.
In short, the National Crime Agency’s operational effectiveness could, we believe, be materially weakened by application of the Freedom of Information Act, and it would be quite wrong to apply such a handicap to the new agency. I have to make that quite clear—and I suspect that the Opposition, in their attitude to SOCA and the Act that created it back in 2005, are in agreement on a large part of it. As I said, it would be wrong to place such a handicap on it. We are committed to ensuring that there is no loss of public transparency as a result of this decision, but we expect the agency to publish more information than its predecessors because of the open, proactive publication that it aims to adopt.
The noble Lord, Lord Rosser, seeks in his Amendment 66 to preserve the status quo by applying this exemption only to the functions of the agency that are being transferred from SOCA. There will clearly be precursor units joining the National Crime Agency, as I think he made clear, from the National Policing Improvement Agency and the Metropolitan Police, which are currently subject to the Freedom of Information Act. This amendment would provide that, in respect of those functions, FOI continued to apply.
I recognise the motivation behind the noble Lord’s amendment, and I am sure that he is sincere in it—I hope that he is just probing on these matters—but I am afraid that applying the Freedom of Information Act to some parts of the agency but not to others would simply not be a workable option. I do not want to make remarks about curate’s eggs, but this is one of those occasions when the curate’s egg principle really would work. You cannot have an egg that is only partially edible, and I have a sneaking feeling that what the noble Lord seeks on this occasion is the same.
The NCA is being designed as an integrated whole to ensure a free flow of information and intelligence between the central intelligence hub and all parts of the agency. This is essential so that it can effectively map, analyse and task action against serious, organised and complex crime. It would defeat the purpose of this integrated approach and seriously weaken the agency’s effectiveness—
Lord Henley
Can I just complete the sentence before I give way to the noble Lord? It would weaken the agency’s effectiveness if we had to cordon off individual parts of the agency that were subject to the Freedom of Information Act.
Lord Rosser
In the light of what the Minister has said, is it the Government’s case that all other agencies or bodies are either completely covered by or completely exempt from the Freedom of Information Act, and that one does not find in any other organisation or agency that some of the activities are covered by the Act and some are exempt?
Lord Henley
Without notice, I do not think that I can answer that question, but I will certainly look at it. The point that I was trying to make is that the noble Lord is trying to make something rather peculiar here: SOCA is completely exempt and is coming into the NCA, but other bodies that are not exempt are also coming in and they are then all one whole. In effect, he has created something that, when I mentioned the curate’s egg, I probably got exactly right. You cannot do it in a curate’s egg way because the whole egg will be bad once one part of it is bad. That is why we want to do it our way.
Obviously some bodies could be exempt, but on this occasion we think that it is right to create the new agency, as I am sure noble Lords opposite would have done if they were creating a new national crime agency to build on SOCA, just as they did with SOCA itself. It is for those reasons that we would like to preserve the exemption for SOCA for the new agency, and we think that what the noble Lord is suggesting is illogical or worse, and certainly not the right way to go about it. I hope that my noble friend will feel able to withdraw her amendment and that the noble Lord will consider carefully what I have said, particularly in the light of, as my noble friend and others might remember, the debates on the Bill that created SOCA back in 2005.
Baroness Hamwee
My Lords, the Minister started his reply by talking about balance. I have always thought that that was what the Freedom of Information Act exemplified within itself; it does not provide that everything can be subject to a FOI request but provides the exemptions.
I do not believe that the general reporting requirement to which the Minister has referred will cover the same sort of functions as FOI would do. I am not arguing against the exemptions, but there are different ways of dealing with issues of transparency and they produce different results. We have heard that the NCA depends on the confidence of its partners and that organised criminals could exploit FOI. Well, this would not be the first organisation that had to be very careful about what it disclosed. If there is an issue of that sort, maybe after this evening, and possibly in private, the Minister could give us some examples of where police forces, which are subject to FOI, have been caught out in the way that he suggests would be a danger if the NCA were subject to the provisions.
SOCA is exempt because of its particular functions. I am afraid that I remain unconvinced that the NCA—extending, as the noble Lord, Lord Rosser, has said clearly, to other functions—should be exempt in its totality. What I draw from this is the anxiety of the intelligence agencies not to let anyone else be in a position where they might take decisions that the intelligence agencies would not like. I shall withdraw the amendment today, but this issue justifies further examination. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, again, I have some sympathy with these amendments. I have resisted the temptation of putting forward amendments on different issues that should be included in the framework document, but the noble Baronesses, Lady Hamwee and Lady Doocey, are right that not having the framework document and having only very limited information about what will be in it means that, at this stage, the Committee has to seek assurances about things that we consider it important should be in the document. So far I have resisted the temptation, but if we got to Report and did not have the document, that temptation may be given free rein.
The issues that have been raised are extremely important and perhaps these amendments do not go as far as we would have gone. They talk about protocol relationships, which is slightly weaker than some of the things that we would have suggested, in terms of how the relationships would work and what should be in the framework document. However, I say to noble Lords that if they do not want to accept these amendments, they have only themselves to blame. We really need to see this framework document as a matter of urgency. Debating this Bill without it means that we will be having some debates not once but two or three times, because not only will we have to debate the issues now but when we get the document we will want to debate them again. It is in the interests of good governance and good progress of business in this House that we have the framework document as soon as possible.
I am also interested in what the Minister has to say about Amendment 46A. Like the noble Baroness, Lady Doocey, I inferred from that that the fact that the Secretary of State would be making decisions and regulations on the equipment to be used seems a highly operational matter. I am not convinced—though the noble Lord may have information to the contrary that will convince me—that it is an appropriate involvement in operational details of NCA work or why the Secretary of State wants that power. I would be interested to hear what the Minister has to say about that amendment. On the other amendments, we need to ensure that these kinds of issues are going to be determined in the framework document. Any enlightenment that he can give us would be extremely helpful.
Lord Henley
My Lords, I am grateful to both my noble friend and the noble Baroness, Lady Smith, for all that they have said on this group of amendments. My noble friend is right to draw attention to the need for the agency to work closely with its law enforcement partners. Obviously such co-operation will be essential. The conduct of the agency’s relationships with other law enforcement agencies, however, is already underpinned by the clear provisions of Section 5 and Schedule 3 to the Bill. This includes the two-way duty to co-operate in paragraph 1 of Schedule 3. By contrast, the purpose of the framework document—I appreciate that the noble Baroness, Lady Smith, and others are still waiting to see it—is to set out clearly and transparently how the Home Secretary and the director-general will work together and the ways in which the NCA is to be administered.
The document 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 cost of information that will be published by the NCA. That framework document, when it appears, will set out the relationship between two people: the director-general and the Home Secretary. They are the only people required to have regard to the framework document. This duty will not apply to others and, given the nature and purpose of the document, we do not consider it to be the appropriate place to go into the minutiae of the operational relationship between the NCA and other agencies. I recognise that there may be a need for detailed operational protocols between the agency and its law enforcement partners, but we would expect these to be agreed separately between the director-general and the agency or agencies concerned. I accept the principle behind Amendment 27A, but I respectfully suggest that the framework document is not necessarily the right place for such detailed operational protocols.
I also note the particular reference to including a protocol regarding integrating training and interoperability between the NCA and its partners. Obviously these are matters that the director-general should consider when looking more broadly at how they can deliver the NCA efficiently and effectively and how they can work well with partners. I also agree that the agency will need to ensure that its IT and communications systems are interoperable with others. I should also note that the NCA is taking on many of the assets of its precursor agencies and, as such, is not starting from a clean sheet. Also, it is expected that the director-general will focus the training and equipment requirements of the NCA to ensure that it is fully capable of delivering its priorities, working with others such as the new police professional body. The director-general needs flexibility to make the right operational decisions about these issues to address the ever-changing threat from serious crime. However, I am sure that considering best practice as well as the requirements and assets of partners will inform the decisions that he takes.
Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) Order 2012
Lord Henley Excerpts(11 years, 11 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) Order 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.
Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012
Lord Henley Excerpts(11 years, 11 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.
Counter-Terrorism Act 2008 (Code of Practice for the Video Recording with Sound of Post-Charge Questioning) Order 2012
Lord Henley Excerpts(11 years, 11 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Counter-Terrorism Act 2008 (Code of Practice for the Video Recording with Sound of Post-Charge Questioning) Order 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.
Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012
Lord Henley Excerpts(11 years, 11 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments
Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012
Lord Henley Excerpts(11 years, 11 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.
The Minister of State, Home Office (Lord Henley)
My Lords, the measures in these draft instruments flow in the main from the changes to the barring arrangements in the Protection of Freedoms Act, which received Royal Assent at the end of the previous Session. The second Motion, the draft order, does three things. First, it revokes previous provisions on the definition of regulated activity that are no longer meaningful in view of the new definition of regulated activity. In 2009, Ministers specified that those who provide treatment to a child or vulnerable adult, but not as the main purpose of their contact with that person, would not be within regulated activity. Such activity will not be within the new definition of regulated activity, so the exception is no longer required. The draft order also revokes a previous exception to the definition of “vulnerable adult”, because the definition of “vulnerable adult” is removed by the Protection of Freedoms Act.
Secondly, the draft order revokes a number of transitional arrangements that were specified in the fifth commencement order of the Safeguarding Vulnerable Groups Act. That order set out three transitional periods, all with reference to the commencement of registration and monitoring requirements. As the Protection of Freedoms Act repeals registration and monitoring, those arrangements are no longer required.
Thirdly, as a result of that revocation, the draft order creates two time-limited transitional arrangements, both of which will operate until the new direct check of the barred list in new Section 30A of the Safeguarding Vulnerable Groups Act is introduced. The first allows for the continuation of the provisions that permit the Independent Safeguarding Authority to provide information that a person is barred to someone who can demonstrate that they have a legitimate interest in knowing that fact. Legitimate interest must be related to safeguarding.
Baroness Smith of Basildon
My Lords, I put on record my comments from the previous debates, and I am grateful to the Minister for his offer of briefings from his department. Those would be very helpful, particularly on some of these more complex orders. I also find it difficult when going through an order if many of the references are to other legislation and you have to hunt through that legislation to find out exactly what they relate to. The Explanatory Notes are quite inadequate to address the issues that have been raised. However, his department has been quite helpful. I have spoken to officials at the Home Office and received some more information that has helped me with the comments that I wish to make today.
The issue covered by the first order was a contentious one during debate on what is now the Protection of Freedoms Act, and we were pleased by the government concessions that were made. I think that originally the Government had intended that there would be no automatic barring but that there would be an application and a process by which people could be barred. The Government changed that, and the process by which there is an automatic bar but a right to appeal is a better one.
During debate in your Lordships’ House, the noble Baroness, Lady Stowell, made it clear that the Government had,
“listened carefully to the concerns raised in this House and by organisations such as the NSPCC”,
and had,
“concluded that where someone has been convicted of a crime on the list of the most serious offences—that is, an offence that leads to an automatic bar without the right to make representations—the Independent Safeguarding Authority should bar that person whether or not they … intend to work in regulated activity. An automatic bar without representation would apply to convictions for the most serious sexual and violent offences, such as, in the case of the children’s barred list, the rape of a child. In these cases, there are no conceivable mitigating circumstances—that is why representations are not permitted—and there can be no question that the person is a risk to vulnerable groups”.—[Official Report, 15/2/12; col. 804.]
That seems to be saying that the test for someone who has been automatically barred to have the right of appeal to that barring could be mitigating circumstances. I asked the Home Office for a list, as there has to be a strong justification for removing someone from automatic barring through a process by which they can be barred but may appeal against that barring.
My understanding of the current position is that if someone is automatically barred, they have a right of appeal and the bar can be removed. Under the Protection of Freedoms Act, it is the other way round. If someone is going to be automatically barred, they have a right to appeal first and must do so within a period of eight weeks. That appeal has then to be considered. If the information that I have been given by the Home Office is correct, there could be a considerable period before someone who was subject to an automatic barring with appeal could be given that barring order.
I am grateful to the Minister and his officials for providing me with a list of the offences that are changing. I am pleased to say that rape, sexual assault by penetration, the rape of a young child and sexual assault on a young child by penetration all remain offences that will be subject to an automatic bar. Where I struggle is with offences that, although they are said to be subject to an automatic bar, have a right of appeal. The noble Baroness, Lady Stowell, has said in the House on a previous occasion that there would have to be mitigating circumstances for an appeal against the bar to be allowed. Can the Minister explain what he or his officials think is a conceivable mitigating circumstance that would allow someone to appeal against the bar?
One of the offences is in Section 20 of the Sexual Offences (Scotland) Act 2009: sexual assault on a young child—that is, a child under the age of 13. I am told by officials at the Home Office that, although only sexual assault is referred to, it has to be sexual assault with penetration. I find it difficult to understand any conceivable circumstance where someone who has been convicted of a sexual assault against a young child with penetration could be allowed to appeal against a bar. I presume, because the offence has been included in the list before us today, that the Government think that there are mitigating circumstances.
The same goes for an offence such as causing a young child to participate in a sexual activity. What conceivable mitigation can there be for someone to appeal against a bar if they were convicted of that offence? The list also includes: causing a person to engage in sexual activity without consent; trafficking people for sexual exploitation; and even female genital mutilation—an individual convicted of that offence would be allowed to appeal against the bar. I struggle to understand why that should be so. Given, as I have said, that the Protection of Freedoms Act allows a person to appeal against a bar being imposed in the first place, there could be a period of several months where someone convicted of some of the most serious sexual offences against adults or young children under the age of 13 might not be subject to a bar.
I would be grateful if the Minister could answer those questions, because I remain dissatisfied. I may have the wrong information or have misunderstood something, so if the Minister is able to reassure me, it would be helpful. If he is not, I may want to pray against the order so that we might tease out further explanation from the Government. At the moment, on the basis of the information that I have been given, the order gives me enormous cause for concern.
Lord Henley
My Lords, perhaps I may begin by addressing the problems that the noble Baroness, Lady Smith, has had with the way in which orders are dealt with generally. I appreciate that it is often difficult for the Opposition to cope with difficult orders such as this, which require a lot of cross-referencing from one to another. Even as a lawyer, I find all these things, particularly when one is amending one Act that has consequences on another, always very difficult. As an anecdote, I can tell the noble Baroness that the late Lord Underhill, whom she will remember fondly, had a wonderful technique whereby, if in doubt on some difficult order, he would read out the Explanatory Memorandum and say to the Minister, “Now explain that”. It worked quite well, causing great confusion for a number of Ministers who thought that they had grasped everything but had not looked at the simple Explanatory Memorandum, which was probably not as simple as it should have been. I note what the noble Baroness says about that. If noble Lords come to us in advance to let us know, we will, as always, be happy to offer briefing. I also take up the point that I made earlier about the Home Office website, which is probably going to be engraved on my heart for many years to come.
Baroness Walmsley
My Lords, I have the advantage of some other Members of the Committee in having taken part in the passage of the Act. I well remember that some Members on the same Benches as the noble Baroness, Lady Smith, agreed that where the ages of the perpetrator and victim are very close and where the age of the perpetrator is very young, there may be mitigating circumstances.
Lord Henley
That was why I referred to Section 28 of the Sexual Offences (Scotland) Act 2009, which concerns having intercourse with an older child where the ages of the perpetrator and victim are very close and it is marginal.
I was trying to say that if you take the more extreme example, rightly given by the noble Baroness, of sexual assault on a younger child, it is very difficult to see where there might be mitigating circumstances but, in law, one must accept that there might be. I would rather the noble Baroness did not ask me to explain what they might be. It is possible that there could be mitigating circumstances, although it is very unlikely, other than in the sort of case to which the noble Baroness refers. In those circumstances, we ought to leave the law as it is, because it would be for the appropriate authority to decide whether there were or were not mitigating circumstances. The noble Baroness wishes to intervene.
Baroness Smith of Basildon
I am grateful to the Minister. He tried very hard to think of mitigating circumstances and has been unable to do so. The noble Baroness, Lady Walmsley, refers to the age difference. I am very well aware of that. As the noble Lord said, Section 28 of the Sexual Offences (Scotland) Act refers to sexual intercourse with an older child. If someone is convicted, we are not talking about a borderline offence where the police do not know whether to prosecute. If someone is convicted of sexual assault on a young child with penetration, I cannot understand what mitigating circumstance there could be.
There are other offences here, such as causing a person to engage in sexual activity without consent or trafficking people for sexual exploitation, where I do not understand what the mitigating circumstances might be. Given that regulated activity is now more tightly drawn, we should be more careful to ensure that those who are convicted of such serious sexual and violent offences cannot work with vulnerable people. Female genital mutilation is another example where I find it hard to conceive that there could be mitigating circumstances in which that person could undertake a regulated activity. It is not just violent and sexual offences; there are others. I wonder whether the balance has moved too far. I understand that the Government did not want so much automatic barring but we seem to have moved a little too far in the wrong direction. I entirely accept the Minister’s comment that there are greyer areas where there may be some mitigation, but there are others where I struggle to understand what the mitigation might be.
On the other point I raised about the changes under the Protection of Freedoms Act—that people can appeal before they are barred—that creates an additional delay before the barring takes place. An individual convicted of such an offence has up to eight weeks to lodge an appeal against being barred. I understand from the Home Office that, once they make that appeal to the ISA—or the Disclosure and Barring Service, as it will become—that will take some time and the ISA may have to go back for additional information before it can make a decision. Therefore, we could be talking about several months before someone is barred. The current position, as the noble Lord rightly stated, is that the bar is immediate and then there can be an appeal against it, which seems to me a much fairer way to proceed. Given that the Government have changed from that to the new position, where there will be a delay, every caution should be taken to protect young and vulnerable people from those who are convicted of serious sexual offences. I am not convinced that the order gets the balance right. That is my concern.
I appreciate all the comments that the Minister has made, but he has not really done enough to satisfy me that the correct balance is reached. If there is anything else that he can say, I shall be happy to hear from him, but there are a number of offences here. He has the same list that the Home Office helpfully supplied to me, and I look at it and worry that there are people convicted of these offences who will not be subject to a bar because they have the right to appeal.
Lord Henley
I suspect that we are again getting into detail that might be more easily discussed in a meeting with the noble Baroness and possibly others. For example, she went into the various offences in the Sexual Offences (Scotland) Act 2009, and we talked about Section 20 concerning sexual assault on a young child. My understanding, certainly under the English rules, is that the sexual assault of a young child with penetration is auto-barred without representation—that is in draft regulation 3(3)—but sexual assault involving sexual touching is with representation and therefore is treated slightly differently.
At this stage there is a danger of getting into a state of confusion about this, which is why I am saying: “Can we go ahead with this Motion at the moment?”. In due course we will have to put it to the House because that is the proper process, but before we do that it might be worth the noble Baroness having a further conversation with me. I assure her that there is no need for her to pray against the Motion; these are affirmative regulations so there is nothing to pray against as the Motion has to go to the House. However, we could delay the next stage until we have a further discussion about this, which might be the proper way to go ahead. I want to give the appropriate assurances to the noble Baroness that her concerns are being dealt with. Would that meet her requirements? We move this at the moment so that the Committee has considered it; we put off the next stage for a week or so, otherwise we will be moving it next week; and we have a meeting and make sure that we get things straight in such a manner that the noble Baroness is happy with what we are doing and there are the appropriate safeguards that she wishes to see.
Baroness Smith of Basildon
I am grateful to the Minister for the offer. I think it would be helpful to meet before this goes before the House. I had already suggested to the Government Whips Office that they might not want to put it before the House tomorrow because that would be rather too soon, but the opportunity to discuss the areas of concern in detail is very welcome and I am grateful for that offer.
Lord Henley
My Lords, since we seem to have reached a degree of agreement on this, I will formally move the regulations at this stage and then move the order.
Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012
Lord Henley Excerpts(11 years, 11 months ago)
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Lord Henley
That the Grand Committee do report to the House that it has considered the Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012.
Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.
The Minister of State, Home Office (Lord Henley)
My Lords, in moving this Motion, I shall speak also to the next three Motions standing in my name on the Order Paper, which I shall move in their proper place at the appropriate time. I will explain, in turn, all the orders, which were laid before Parliament on 10 May 2012.
The Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012 reflects a recommendation in the Government’s review of counterterrorism and security powers, published in January 2011. The review recommended that stop and search powers under Sections 44 to 47 of the Terrorism Act 2000, which allowed police officers to stop and search persons without any reasonable suspicion that the person was a terrorist, should be repealed and replaced with a more focused power.
Section 47A of the Protection of Freedoms Act 2012 provides for a considerably more stringent test to be met before a police officer of ACPO rank may authorise the exercise of powers to stop and search persons and vehicles without reasonable suspicion. In effect, the Act places the powers provided by the Terrorism Act 2000 (Remedial) Order 2011 on a permanent footing. The Protection of Freedoms Act 2012 also amends the counterterrorism stop and search powers in the Terrorism Act 2000, which require reasonable suspicion to enable searches of vehicles or their occupants.
The codes of practice, which govern the use of terrorism stop and search powers in Great Britain and Northern Ireland, set out detailed requirements for the making of an authorisation and the exercise of the powers. They reflect the significantly greater thresholds for the use of the powers and reflect lessons from the experience of the now repealed Section 44 powers.
The new stop and search powers, and the robust statutory framework provided by these codes, provide the police with the powers they need to protect the public while ensuring that there are robust safeguards to prevent a return to the previous excessive use of stop and search without suspicion.
The next two orders—the Counter-Terrorism Act 2008 (Code of Practice for the Video Recording with Sound of Post-Charge Questioning) Order 2012 and the Terrorism Act 2000 (Video Recording with Sound of Interviews and Associated Code of Practice) Order 2012—also reflect a recommendation from the Government’s review of counterterrorism powers. That review recommended that the provisions contained in the Counter-Terrorism Act 2008 which enable the post-charge questioning of terrorist suspects should be commenced. This could help in individual prosecutions and may encourage terrorists who have been arrested and charged to assist investigations. The Act requires that any post-charge interviews of suspects must be video-recorded with sound and that a code of practice must be issued to provide guidance on that recording. It also provides that the relevant PACE codes of practice must make provision for post-charge questioning.
Accordingly, we are revising the relevant PACE codes and introducing a new code of practice for the video-recording with sound of interviews of individuals detained in respect of terrorism or terrorism-related offences. We have decided, as an additional safeguard, to require that interviews conducted pre-charge under Section 41 of the Terrorism Act 2000 should also be video-recorded, as should interviews under Schedule 7 to that Act. This reflects a commitment made by the previous Government during the passage of the Counter-Terrorism Act 2008. If the House approves these codes, we will commence the substantive powers shortly afterwards.
Lastly, the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012 is also before the Committee. This order makes changes to the PACE codes of practice relating to detention, treatment and questioning in Code C, power of arrest in Code G, and the detention, treatment and questioning of suspected terrorists in Code H.
Other than the changes to Code H relating to post-charge questioning, which I have already alluded to, the most significant changes to Codes C and H relate to two areas: increasing safeguards in the procedure to be followed by the police where a detainee changes their mind about wanting legal advice, and clarifying what the custody officer can delegate to other staff in order to help the efficient operation of custody suites, along with a number of other changes to reduce the administrative burden on custody officers and staff.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for his explanation and for information on the four orders before us today. For most of my research on this matter, I felt at a distinct disadvantage. I hope that the comments that I am about to make do not become a regular feature of our debates in Grand Committee or on the Floor of the House, but I have to say that the Home Office website really is a disgrace. I understand that it has not been accessible since we returned from Recess. I have been unable to access via the website either the codes of practice or the consultation; nor have I been able to respond to the consultation. My questions will therefore have to reflect the paucity of information that I have been able to obtain.
I know that the Minister likes to be helpful and his private office contacted me to say that it would look into this matter, for which I was grateful. I was grateful, too, to the parliamentary adviser at the Home Office, who was able to send some information to us. However, he was unable to access it until today—it came over at 1.55 pm. There were 356 pages. I can read pretty fast, but not that fast. I hope that the Minister can take my comments back, because it would have been helpful to have information on the significant changes being made, albeit in a digested form, and a summary of responses to the consultation. It would be helpful to have that information always made available if it is not going to be available on the website. I hope that some mighty experts will resolve this matter; otherwise, as I have threatened previously, I will phone the Minister on a Sunday afternoon to get the information that I need while I am working on these issues.
We agree with tighter restrictions on stop and search. As I think the Minister knows, and as my colleagues have said in the other place, the powers were being used more widely than originally intended in the legislation. Indeed, former Home Secretary Alan Johnson had already taken some action in that area and provisional data had shown quite a significant drop in the number of stop-and-search cases from 2009 to 2010. We support sensible measures that will bring the legislation more closely into line with the original intention behind stop and search.
I have some specific questions—as I said, I was unable to obtain a copy of the consultation and have only the Explanatory Notes to work from. If the Minister does not have answers to them, I will be very happy for him to write to me with the information. The noble Lord said that there were 11 responses in the Explanatory Notes, of which the majority were in favour. Who were these responses from, since some but obviously not all of them were listed, and which organisations were not in favour or had objections to the changes being made? What issues did they raise with their concerns and what changes were made to the draft order following the consultation responses that came in?
Turning to the other two orders on counterterrorism and video recording, again, can the Minister say something about the issues raised in the consultations? I have the consultation responses on the code of practice on Codes C, G and H but not specifically on video recording, although there is some information in there. There is obviously a crossover. However, if other issues were raised, by whom were they raised and what changes were made to these two specific orders on video recording as a result of the consultation responses?
On the Police and Criminal Evidence Act order, I would like to commend those who were able to get some good information for the shadow Ministers who are looking at these issues. I was pleased to see a number of points being taken on board, particularly when potentially vulnerable people are being questioned and on mental health issues. A lot of the representations that were made in response to the consultation were taken on board. I hope the Minister understands that I feel rather limited, given the lack of information available. If that could be resolved for future orders and if he can answer my questions either now or in writing, that would be appreciated.
Lord Henley
My Lords, I start with an abject apology on behalf of both myself and the Home Office in response to the noble Baroness’s complaints about the website. I have raised it within the department but I will now go back to it. The first thing I had better do is find out which of us five junior Ministers has responsibility for the website, if any at all, and make sure that one of us looks personally at these problems to ensure that we can sort it out. Obviously, the noble Baroness should not have to wait until 1.55 pm today to get the information that she needs to deal with these matters.
It might also be worth my while offering the noble Baroness my home and mobile numbers so that she can get hold of me in Cumberland on a Sunday afternoon. I will tell her whether I will be available on future Sundays on an ad hoc basis, so that she can occasionally discuss these things. Again, I hope that the noble Baroness will get hold of me in my office whenever she is going to have specific problems because, as she knows from her own extensive experience in government, these matters can very often be resolved by talking about them beforehand. Similarly, if she comes through my office I am always more than happy to arrange a briefing for her to make sure that these things happen. This is a complete apology with my and the department’s mea culpa. We will try to resolve these matters.
Having said that, I was grateful for what I suspect is her and the Official Opposition’s general support for the line down which we are going on these matters. However, I appreciate that she has a number of fairly detailed questions about how we adjusted things as a result of the consultation, who was in favour and who opposed and, on the video recording, the responses to the consultation and what changes we made. On stop and search, the changes were limited as we had previously consulted on a similar remedial code of practice order. These changes related to removing references to random searches, and there was further advice on photography issues.
At this stage, it would probably be better for me to offer to write in greater detail to the noble Baroness, Lady Smith of Basildon, giving fuller, further and better particulars of these matters so that we can get all this right. I note the Official Opposition’s general support for what we are doing, but obviously we have to resolve many more detailed points. Having said that, I hope the noble Baroness will allow me to move this order, and to offer, first, my apology again and, secondly, the guarantee that I will write to her with fuller and better details on the consultation.
Crime and Courts Bill [HL]
Lord Henley Excerpts(11 years, 11 months ago)
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Lord Henley
That it be an instruction to the Committee of the Whole House to which the Crime and Courts Bill [HL] has been committed that they consider the Bill in the following order:
Clause 1, Schedule 1, Clauses 2 to 4, Schedule 2, Clause 5, Schedule 3, Clauses 6 to 8, Schedule 4, Clause 9, Schedule 5, Clauses 10 and 11, Schedule 6, Clause 12, Schedule 7, Clauses 13 to 15, Schedule 8, Clauses 16 and 17, Schedules 9 to 11, Clause 18, Schedule 12, Clause 19, Schedule 13, Clauses 20 to 22, Clauses 24 to 26, Schedule 14, Clause 27, Schedule 15, Clause 23, Clause 28, Schedule 16, Clauses 29 to 31.
Crime and Courts Bill [HL]
Lord Henley Excerpts(11 years, 11 months ago)
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The Minister of State, Home Office (Lord Henley)
My Lords, the Crime and Courts Bill represents the next stage of our reform of the justice system. Last Session, we legislated to strengthen public accountability of local policing by introducing directly elected police and crime commissioners and by bringing forward reforms to reduce reoffending and put the legal aid system on a sustainable path. However, we need to do more to protect the public and to improve further the efficiency, responsiveness and transparency of the justice system. This Bill is directed to those ends.
Part 1 will establish the National Crime Agency. Organised crime costs this country between £20 billion and £40 billion a year. It manifests itself in street corner drug dealing, in the trafficking of men and women forced into modern-day bonded servitude or prostitution, in the online sharing of horrific images of sexually abused children and in cyber-enabled scams that deprive people of their life savings. With some 7,000 organised crime groups operating in this country, we need a more effective response if we are to tackle the human misery they inflict.
The question—why do we need a new agency when the Serious Organised Crime Agency has only been operating for six years?—has quite rightly been posed. I pay tribute to all those working in SOCA. They have had many successes and have earned a high reputation in their dealings with overseas law enforcement agencies, but the threat posed by serious and organised crime is changing and our response needs to adapt and evolve if we are to counter the threat effectively.
The National Crime Agency will have a wider remit to tackle serious and organised crime at the borders, fight fraud and cybercrime and protect children from sexual exploitation. For the first time, the agency will produce a single, authoritative intelligence picture on organised criminal gangs and their activities that will provide the basis for a co-ordinated national response.
Working in collaboration with other law enforcement agencies, the National Crime Agency will prioritise resources and ensure a joined-up approach to the activities undertaken at the local, national and international level to disrupt organised crime gangs and bring their members to justice.
The National Crime Agency’s relationship with police forces and others will be based on a partnership, with the mutual exchanges of information and the provision of two-way operational support. Importantly, however, the Bill provides that the director-general should, in exceptional circumstances, be able to direct police forces in England and Wales to undertake a specific task, for example to take action against a particular criminal gang based in the force area.
I fully expect that this power will be rarely used, but it is a necessary back-stop to underpin the strategic policing requirement that supports chief officers and police and crime commissioners in effectively balancing local and national priorities.
In addition to its core crime reduction and criminal intelligence functions, Clause 2 enables the Home Secretary to confer counterterrorism functions on the National Crime Agency. With the creation of this powerful new crime-fighting agency, it is sensible that we build in flexibility to confer on the NCA counterterrorism functions if, in the future, there is a compelling case for doing so. This is not the time for a review of counterterrorism policing. For the present, we need to focus on delivering a safe and secure Olympics and on firmly establishing the National Crime Agency in fact as well as in law. I recognise that any decision in this area should be subject to particularly careful consultation and scrutiny, and that is why we have made this order-making power subject to the super-affirmative procedure.
The National Crime Agency will be headed by a director-general, operationally independent but accountable to the Home Secretary and, through her, to Parliament. The director-general will first and foremost be an operational crime-fighter, and for that reason the Bill provides a mechanism for the director-general to be vested with operational powers.
Given the breadth of the agency’s remit, including its central role in leading the operational response to serious immigration crime and preventing the importation of drugs and firearms, the director-general and NCA officers will in appropriate cases need to be able to exercise the full suite of powers of a police, immigration and customs officer. In all cases, this will be subject to proper training.
As a law enforcement organisation operating 24 hours a day, seven days a week, it is essential that the agency remains operationally effective at all times. We cannot be faced with a situation in which public safety is put at risk by operational NCA officers taking industrial action. NCA officers who are designated with operational powers will therefore be precluded from taking strike action in the same way as police officers are. Our preference is that we can reach a voluntary no-strike agreement with the NCA staff and their representatives, and in that event the statutory no-strike provisions can be put into abeyance.
The provisions in Part 2 will further our reforms of the courts and tribunals system so that it is more responsive to the needs of users, more transparent to the public in how it operates, more representative of the communities it services and more efficient and effective in its use of resources.
Responsiveness to users is the driving force behind the creation of the single county court and the single family court. The current structure of 170 geographically and legally separate county courts, some dealing only with routine civil cases while others also handle more complex areas of the civil law, is both confusing to litigants and an inefficient use of resources. There is a similar confusing set of arrangements for dealing with family proceedings, with different types of cases being dealt with in the High Court, county courts and magistrates’ courts.
County court users will be able to issue their claim at the court that best meets their needs. That may still be their local court, but equally it could be the nearest to where they work or where waiting times are significantly shorter. It will enable the court estate and the available judicial resources to be utilised more efficiently to facilitate the quicker resolution of cases across the board.
Similarly, the creation of the single family court will make it easier for users to navigate their way through the system, and enable cases to be allocated to the appropriate level of judiciary without the need to transfer proceedings to a different level of court, thereby reducing costs and delays.
Our proposals to introduce greater flexibility in the deployment of members of the judiciary seek to secure a similar outcome in improved efficiency. The deployment of the judiciary is properly a matter for the Lord Chief Justice and the senior president of tribunals. The Bill does not change that, but it affords them greater flexibility by expanding the list of judicial office holders who are capable of sitting in each court or tribunal. Such flexibility will enable the available pool of judges to be used to best effect, thereby further contributing to the quicker resolution of cases.
Our judiciary has a worldwide reputation for integrity and independence. This, in no small measure, is down to the process by which judges are appointed. That process was the subject of significant overhaul with the passage of the Constitutional Reform Act and the creation of the Judicial Appointments Commission. Those reforms have led to increased public confidence in the appointments process by making it more independent and transparent, but after six years of operation it is right that we take stock of the new regime to see where we can make further improvements.
One such area relates to judicial diversity. Progress has undoubtedly been made over the past decade. Ten years ago, little over 10% of judges were women and around 2% were from a black or other minority ethnic background. Today those figures are 22% and 5% respectively. That is welcome progress, but we need to do better to ensure that the judiciary fully reflects the communities that it serves.
Of course, further legislation on its own is not the answer, but there are some useful measures that we can and should take to promote greater diversity. In particular, the Bill will facilitate greater opportunities for part-time working at the most senior levels of the judiciary by providing for the statutory limits on the number of High Court, Court of Appeal and Supreme Court judges to be expressed in full-time equivalents. We are also providing, where two candidates are equally meritorious, that it will be possible to select the candidate from an underrepresented group.
We are also taking the opportunity to achieve a better balance between executive, judicial and independent responsibilities in the appointments process. The Lord Chancellor has a legitimate role to play in ensuring the efficiency, effectiveness and integrity of the appointments process as a whole. This does not mean that the Lord Chancellor needs to have a hand in all judicial appointments. Accordingly, the Bill transfers to the Lord Chief Justice and the Senior President of Tribunals the Lord Chancellor’s responsibilities for the appointment of some judges below the High Court.
However, when it comes to the appointments of the president of the Supreme Court and the Lord Chief Justice, we believe it is right that the Lord Chancellor should have a meaningful role in the process, given that the holders of both these offices have a significant influence on the administration of justice. We do not consider that this change will politicise these appointments. They will continue to be made solely on merit, and the Lord Chancellor will be one among five or more on a selection panel. Furthermore, where he sits on the panel, the Lord Chancellor will lose his current right to reject the panel’s recommendation.
Fines are the most common form of sentence imposed in the criminal courts, accounting for nearly two-thirds of all sentences. As with other non-custodial sentences, the public must have confidence in this form of disposal. Significant improvements have been made in the enforcement of fines in recent years, but we need to do more. This is why the Bill provides that, where an offender defaults on the payment of a fine, the additional collection costs fall to the offender rather than to the taxpayer, thereby providing an added incentive to offenders to pay their fines on time.
As I have indicated, it is vital that the law-abiding public should have confidence in all non-custodial sentences. While there are some good examples of effective community sentences that reduce reoffending, all too often such sentences fail to command public confidence as a punishment. That is why we are consulting on proposals to improve the effectiveness of community disposals, including ways of ensuring that there is a clear punitive element in every community order. The current consultation runs to 22 June. Subject to the outcome of that consultation, I give notice to the House that the Government will bring forward amendments to the Bill in Committee as part of the next stage of our sentencing reforms.
Lastly, this part also contains an important provision that will help to increase public understanding of the justice system. Most members of the public have no direct personal experience of what goes on inside a courtroom. Their perceptions will be derived from TV dramas that more often than not give a distorted view of reality. Allowing the broadcasting of judicial proceedings will help to demystify the workings of the justice system and increase public confidence. Of course, there is a balance to be struck between increased transparency and the safeguarding of the proper administration of justice. To this end, we want to start by allowing the broadcasting of advocates’ arguments and judgments in the Court of Appeal before extending this to sentencing remarks in the Crown Court. However, I can assure the House that there is no question of victims, witnesses, defendants or jurors being filmed.
Part 3 of this Bill makes two changes to the immigration appeals system. First, we are removing the full right of appeal against the refusal of a visa to visit family members in the United Kingdom. No other category of visit visa attracts a full right of appeal, and in the Government’s view it is a disproportionate use of taxpayers’ money. Moreover, the family visit visa appeal right no longer serves its intended purpose. It is very expensive to administer, costing around £29 million a year, and has lengthy processing times, taking up to eight months to conclude an appeal. In many cases appeals are successful because new evidence has been submitted by the applicant. If an applicant has new evidence in support of a visa application, we believe that the proper course is to submit a fresh application and not to seek a new decision through the appeals system.
Part 3 also removes the in-country right of appeal in cases where existing leave has been cancelled in line with a decision to exclude a person from the United Kingdom on the grounds that their presence is not conducive to the public good. A decision to exclude a person on such grounds is taken personally by the Home Secretary on the basis that their presence in this country presents a risk to national security or public safety. It is anomalous that in such cases the excluded person should be able to enter, and remain in, this country pending the outcome of an appeal against the cancellation of their leave. The current arrangements undermine the intended effect of the exclusion decision, and the Bill will rectify this. We are not removing this appeal right, but in future it will be exercisable from outside the country.
Finally, Clause 27 introduces a new, specific offence of drug driving. Figures for 2010 identified impairment by drugs as a contributory factor in nearly 1,100 road casualties, including some 50 deaths. We also know from studies that the extent of the road casualty problem is a lot greater than these reported statistics suggest. We need to do more to tackle this scourge and to protect road users. There is already an offence of driving while being unfit through drugs, but there are few convictions because of the requirement to prove impairment. The new offence is modelled on the analogous drink-driving offence, where it is not necessary to prove impairment but simply that the driver had a concentration of alcohol in his or her body above the prescribed limit.
A person will be guilty of the new drug-driving offence if found to have in his or her body a concentration of a specified controlled drug in excess of the specified limit for that drug. The maximum penalty will be the same as for the analogous drink-driving offence: namely, in the case of a person driving or attempting to drive a vehicle, six months’ imprisonment or a £5,000 fine, or both, and disqualification from driving for at least 12 months. The new offence will, we believe, make a significant contribution to road safety and is one that has been widely welcomed by road safety campaigners. The objectives underpinning this Bill are, I think, ones that the whole House can support. The provisions themselves are equally deserving of your Lordships’ support, and I commend the Bill to the House. I beg to move.