Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012
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Lord Bradshaw
I wonder if the Minister can answer a very simple question; if he cannot, perhaps he can write to me. If people arrive here by plane, train or ferry who have not got permission to enter the country, is it possible for the carrier to send them straight back to wherever they came from without them getting any recourse to the immigration procedure?
Lord Rosser
The Minister has explained the purpose of the regulations, which, as I understand it, is to require carriers to provide advance passenger information and seek authority to carry to this country certain foreign national passengers specified in the scheme. As the Minister has said, the regulations also make carriers liable to a penalty of up to £10,000 if they carry a passenger without seeking authority when required to do so, or if they carry a passenger for whom authority was denied. The people for whom prior authority will be required will be those who pose a known security or immigration control threat, and the documentation indicates that through doing that it seeks to reduce,
“the probability of a terrorist attack on an aircraft bound for the UK”.
As I understand it, the Government’s estimate is that the exercise of this power to refuse a carrier authority to carry a specific passenger will be likely to occur on only a limited number of occasions a year. Of course, that is not the same as the number of times an airline will need to seek authority. Can the Minister say a little more about the process? I take it that it involves the airline providing details of foreign nationals on each flight to the UK before the flight leaves the point of departure—that is, the names of all foreign nationals on that flight—although perhaps the Minister could clarify that. As I understand it, the air carriers involved are likely to be issued with an IS72 form.
Lord Rosser
And that will be for some or all of their routes. In the hope that it does not breach national security, can the Minister say a little more about the considerations that would determine whether an airline was going to be issued with an IS72 form?
Queries have already been raised about the length of time it will take to give authority, and I appreciate that that is dealt with in the documentation. But what is the maximum length of time it is expected to take for authority to be given one way or the other to an airline? And is one to assume that until that authority has been given or refused, the flight concerned cannot leave its point of departure for the UK?
Finally, I have one question about the fine of up to £10,000. How will the Secretary of State decide what level to impose? Will there be clear criteria laid down which all occupants of the Secretary of State’s position over the years will be required to adhere to? Or will it be an entirely subjective decision with the approach potentially varying from one Secretary of State for the Home Department to another?
Lord Henley
That is a very interesting question given the range of Home Secretaries under the previous Government. I will have to come back to it at the end of my remarks.
First were the questions put by the noble Lord, Lord Berkeley, about the purpose of the regulations. I can give him assurance that, although the risks are pretty small, it is all about security. As I said in opening, the objective is to enhance the protection of aircraft flying to the United Kingdom and to prevent certain individuals from arriving here and doing harm on board the aircraft or on arrival in the United Kingdom. The purpose is to prevent such individuals boarding aircraft to the United Kingdom in the first place, both for the protection of that airplane and of the United Kingdom.
The noble Lords, Lord Rosser and Lord Berkeley, asked about the process and how quickly the airlines would get a response. Our aim is to give a response to the airlines within 15 minutes, which is relatively easy with modern communications. Airlines are required as of now to submit passenger information no later than 30 minutes before departure. We encourage airlines to provide that earlier if they possibly can but we are offering an assurance that we will be able to respond within 15 minutes.
The noble Lord, Lord Berkeley, also had some concerns about the consultation. He cited the fact that there was one response from a member of the public. I am very grateful that at least one member of the public put their name forward.
Lord Henley
My Lords, obviously we have certain advantages in that we are an island entire unto ourselves—I think I could probably quote a bit more from John of Gaunt’s death speech in “Richard II”. There are easier ways in and harder ways in. We will continue to look at all different routes and at what is possible—what we can and cannot do. Airlines are important. That is why we are doing this.
Lord Rosser
Perhaps I could ask the Minister one more question in the light of the response he gave. I wonder whether I heard that correctly. He confirmed that it was the case that an IS72 would be issued to some carriers, which might apply to all or some of their routes. Did he go on to say—or did I mishear this?—that eventually it might be applied to all carriers? If that is the case, would it then become in effect a blanket requirement for every carrier flying people into the UK?
Lord Henley
Ultimately we envisage the IS72 being rolled out to all carriers—so yes, that is the case.
Police and Crime Panels (Modification of Functions) Regulations 2012
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Lord Shipley
My Lords, the purpose of the regulations is to stop a defaulting local authority from preventing the making of panel arrangements. This is understandable and should be supported. However, there are two issues of detail that I would appreciate the Minister’s clarification of in order to avoid doubt.
First, the Secretary of State has the power to nominate and appoint the appropriate number of members in the event of a failure by a relevant local authority to exercise its power to nominate or to appoint. It would be essential for the Secretary of State, in exercising this duty, to have due regard to the opinions of the other local authorities and to maintain due political and/or geographical balance in making such appointments. I say that because during the passage of the Bill there was significant discussion about the importance of geographical balance and political balance and, where there are two-tier authorities, of lower-tier councils having representation on the panels.
Secondly, will the Minister clarify the meaning of the words in paragraph 2:
“In the case of a multi-authority police area, all the relevant local authorities, with the exception of a defaulting local authority … must agree to the making or modification of the panel arrangements”?
I seek clarification of the words “must agree”. Do they mean that the relevant local authorities are compelled to agree by the decision of the Secretary of State—that is, they must agree to what the Secretary of State wants—or do they mean that only with the agreement of those authorities can the panel arrangements proceed? I took the Minister to mean that it was the latter, but I seek confirmation of my interpretation. If it is the former, I seek the Minister’s reassurance that due regard will be had by the Secretary of State to full consultation with the remaining local authorities and balance being secured in any nominations or appointments that the Secretary of State deems it necessary to make.
Lord Rosser
My Lords, the Minister has explained the reasons for the order. I will be interested to hear the response to the two points that have been raised. On the second one, where reference is made to the wording,
“In the case of a multi-authority police area, all the relevant local authorities … must agree to the making or modification of the panel arrangements”,
it cannot be a requirement that they must agree or presumably the order would not be necessary, because the defaulting authority would not be able to block it. That would be my interpretation, at least, but of course it is what the Minister says about the Government’s interpretation of the wording that counts.
I have a couple of further points. Will the Minister confirm that the Local Government Association does not see any difficulties in implementing the order as it stands? I take it that this is, let us just say, to clarify certain wordings in the Police Reform and Social Responsibility Act.
The Minister made reference to police and crime panels. We have doubts, which we expressed during the passage of the Bill, about the extent to which they will be any meaningful check on the exercise of his or her power by the police and crime commissioner. Do the Government intend to monitor the development of the effectiveness of these panels when they are operational? Will it be their intention to brief Parliament on the findings of any monitoring exercise that they carry out if it is their intention to do so?
Alcohol Strategy: Role of Drinks Industry
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Lord Rosser
My Lords, I add my thanks to the noble Baroness, Lady Coussins, for initiating this debate about the role of the drinks industry in helping to prevent alcohol misuse and in promoting what is described as responsible drinking. Presumably, though, not drinking alcohol is also responsible and socially acceptable. Other speakers have already referred to the nature and extent of the issue we face, with almost 1 million alcohol-related violent crimes and well over 1 million alcohol-related hospital admissions in a year. The industry—whether retailers, producers, pubs, bars, restaurants or shops—recognises the problem and the major producers have established the Portman Group as a self-regulator. I do not know whether the driving force behind the creation of a self-regulator was an ethical or moral one in this case or whether it was concern among the producers at the potential consequences for the industry if they were not seen to be taking action themselves. Perhaps it was both.
In 2009, the Commons Health Select Committee heard evidence that industry profits would fall by 40% if everyone drank within recommended guidelines, a point which I think the noble Lord, Lord Shipley, just made. I am told that over 10 million people currently drink regularly over the guidelines, so we are not talking about a problem affecting a small minority. Self-regulation can work but does not necessarily work, particularly if the objective is to do the minimum needed to try to keep the wolves from the door, as we have seen with the ineffectual Press Complaints Commission.
The drinks industry—that is, retailers, producers and the on-trade and off-trade—must make it clear, and be seen by its actions to be making it clear, that it will take whatever steps it can to eliminate the irresponsible sale and promotion of alcohol in order to make it easier for, and help encourage, those who wish to drink alcohol to do so both in an acceptable manner to society as a whole and in a less risky and dangerous way to their own health. However, to take those steps means looking at the issues of price, availability and marketing, which the Government’s responsibility deal with the industry did not really do. That was why key organisations, as has already been said, declined to become involved. The Government’s responsibility deal did not really address vital issues, despite their saying that too much of the industry still supports and encourages irresponsible behaviour through poor product location, underage sales, excessively cheap drinks and the encouragement of excessive drinking.
It is right that the industry should set out what action it has taken. The noble Baroness, Lady Coussins, referred to a number of such actions but at the moment it does not look as if it is enough. The industry is a source of pleasure to many and of jobs and revenue to the Exchequer, just like other industries, but the impact of its product when misused—as it is all too frequently—is also a source of expenditure for the taxpayer and of loss to other industries and the economy in general through resultant absenteeism and illness, leaving aside the social effects of excessive drinking. I hope that the industry will direct more expenditure and effort into self-regulation, publicity, public relations and campaigning towards actions and developments to reduce drinking and will not be tempted, as appears to have happened in at least one other industry, towards any actions behind the scenes to dilute efforts to address the problem that we all recognise exists.
Justice and Security Bill [HL]
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Lord King of Bridgwater
I am grateful to the noble Lord. He has cheered up the noble Lord, Lord Lamont, quite considerably if that is right because he was telling me of the committee session he must attend in the Recess. I simply say that I support this. I do not know quite what the first part of the amendment means or whether the Minister will explain it. I am not clear what the financial benefits are for Members of the House of Commons when they are on Select Committees. We asked for equivalent arrangements for the ISC. Perhaps somebody will clarify that point.
Lord Rosser
My Lords, the names of my noble friends Lady Smith of Basildon and Lord Beecham are associated with Amendment 9 and we support the proposal that the chair of the Intelligence and Security Committee should be remunerated in line with chairs of departmental Select Committees of the House of Commons. As has already been said clearly, the commitment required by future occupants of this post is likely to be extensive, bearing in mind that the whole purpose of the Bill is to strengthen oversight of the intelligence and security activities of the Government by extending the statutory remit of the Intelligence and Security Committee. The committee, as we know, will be drawn from Members of the House of Commons and your Lordships’ House. It would seem appropriate to determine remuneration as part of the Bill, and to relate it to a not dissimilar position in one of the Houses of Parliament from which the membership of the committee is to be drawn.
A departmental Select Committee in the House of Commons has a different but not widely dissimilar role to that of the Intelligence and Security Committee under the Bill. The chair of a departmental Select Committee in the House of Commons also takes on a considerable additional level of commitment and responsibility. There are a number of such posts and they are not held by Ministers of the Crown. The officeholders, like the Select Committees themselves, are drawn from Back-Benchers, as would be the case with the Intelligence and Security Committee and the chair of that committee. It would therefore seem that the chair of a departmental Select Committee in the House of Commons is the appropriate benchmark, as provided for in Amendment 9, which we support.
Lord Henley
My Lords, we can deal with these amendments fairly briefly. The noble Lord, Lord Butler, described them as a simple point of equity. On that basis, I hope the debate has been—or will be—listened to in due course by IPSA in the case of the Commons and, in the case of Members of this House, the House Committee, because in the end decisions have to be made by those appropriate committees. It is not really a matter for legislation.
To underline that, I remind the Committee that Commons Members’ pay is entirely a matter for IPSA and it makes decisions in accordance with resolutions of the House. The relevant resolutions make no provision for additional financial support for ordinary members of Select Committees so it would be a matter only for the chairmen of committees. I will get to the question about the chairman of this committee later. IPSA may determine that MPs who hold a position or office specified in a resolution of the House of Commons should receive a higher salary than ordinary Members. IPSA will have no say as to which positions are on the list—that is obviously a matter for Parliament; once it has decided on that list, it will be for IPSA to set the rate. Again, it is for IPSA to listen to this debate.
Lord Rosser
My Lords, I wish to talk about Amendments 5 and 7 in particular. Amendment 5, as the noble Lord, Lord Butler of Brockwell, said, lays down what happens if a person nominated for membership of the Intelligence and Security Committee is not then appointed by the House of Parliament from which they are drawn. The amendment lays down that in this situation,
“the Prime Minister shall nominate an alternative person”.
The Explanatory Notes to the Bill say that the purpose of the procedure in the Bill for nominating and appointing members of the committee,
“is to ensure that the Government retains some control over those eligible to access”,
highly sensitive information.
Many might feel that the use of the words “some control” in the Explanatory Notes rather understates the position from the government perspective. This amendment does at least make it clear that the relevant House of Parliament is not obliged to accept the Prime Minister’s nominee and that the Prime Minister cannot simply keep resubmitting the same name, or do nothing, but has to nominate an alternative person.
Amendment 7, to which the noble Lord, Lord King of Bridgwater, has already referred, is, certainly at this stage, rather more a probing amendment in the light of the enhanced role that the committee will have and the need for it to be seen as clearly separate from the Executive. It provides, as has already been said, for the chair of the Intelligence and Security Committee to be not only a member of the ISC, chosen by its members, but a member of the ISC from the opposition party. The Public Accounts Committee, for example, is chaired by a senior opposition MP.
It must surely be important that the Intelligence and Security Committee, bearing in mind its strength and oversight of the Government’s intelligence and security activities, and its role in this sensitive and potentially controversial area, is an all-party committee that is not only not open to pressure from government or the intelligence and security agencies in the work it undertakes but perceived as being not open to such pressure.
The Prime Minister has, under the terms of this Bill, considerable influence over the appointments to the committee. He or she is required to consult, not reach agreement with, the leader of the Opposition on nominations, and the two Houses of Parliament can only decline to accept a nomination and cannot appoint someone of their own choosing. Neither does the Intelligence and Security Committee have unchallenged powers to require information from the intelligence and security agencies, even though the members of the committee will all have been nominated through the Prime Minister, as the Secretary of State can veto the giving of information to the committee.
If the chair of the committee were to be not only a nominee of the Prime Minister but from the same party as the Prime Minister and from the same party as the Secretary of State, who could veto the use by the committee in carrying out its statutory oversight remit of the use of its power to require information from the intelligence and security agencies, that might well lead to a perception, no doubt unfairly, that the leadership of the committee and its most influential member was a little too close to the Government of the day, particularly bearing in mind that the objective of the Bill, as explained in paragraph 3 of the Explanatory Notes is to provide,
“for strengthened oversight of the intelligence and security activities of the Government”.
Lord Henley
My Lords, we have four amendments in front of us, all slightly different but all covering appointments to the committee. I will deal with them in turn. Amendment 5 seeks to ensure that if someone is turned down by Parliament the Prime Minister will have to make another nomination. This is something with which the Government entirely agree. However, the amendment is not necessary as it will be achieved by the current drafting of the Bill. If, under the appointments process in the Bill, the Prime Minister’s nominees are rejected by either House, the Prime Minister will have to make another nomination or nominations after consultation with the Leader of the Opposition. This is clear from the fact that the Bill requires the ISC to consist of nine members so if one is turned down another would have to be found. I hope that deals with the point made by my noble friend Lord Lothian, who asked what would happen in such cases. Where we differ is that the amendment in the name of the noble Lord, Lord Butler of Brockwell, insists that an alternative person should have to be nominated and we would like to keep the flexibility because there are occasions where it is possible for the Prime Minister to be able to renominate. It might be that one reached some sort of impasse in due course but it should be possible on occasions to renominate and that renomination might be rejected. Whatever happens, as the Bill is drafted, a ninth person would have to be put forward.
Turning to Amendment 6 from the noble Lord, Lord Campbell-Savours, he suggests that it should no longer be necessary to consult the Prime Minister. He said that he would never have been appointed if it had been left purely to my noble friend Lady Thatcher if she had been in opposition. Obviously, if we accepted the amendment proposed by the noble Lord, Lord Campbell-Savours, and removed the necessity to consult the Leader of the Opposition, there would be even less likelihood that he would be appointed, because my noble friend—or Mrs Thatcher, as she then was—would have made the decision entirely by herself, without consulting the Leader of the Opposition. We believe that it will be important in retaining cross-party support, just as it was when the original 1994 Act went through, requiring that the committee should be appointed by the Prime Minister after consultation with the Leader of the Opposition. For that reason, the Prime Minister should continue to consult the Leader of the Opposition before he nominates any such person.
Lord King of Bridgwater
I am getting very flattered by the noble Lord, Lord Campbell-Savours. I think that there is a real problem in this area and I do not quite understand the amendments tabled here. I certainly do not understand this business in the Bill about what would be before a departmental Select Committee,
“on grounds that were not limited to national security”.
That is the point that the noble Lord, Lord Thomas of Gresford, made and I hope that the Minister will clarify that point to an extent.
I think that there is a point, though it may seem a bit extreme, in what the noble Lord, Lord Campbell-Savours, said. It may strike fear through all proper government structures that the suggestion should be left to the chairman of the committee. I think it is true that it is not just the chairman of the committee: initially, it is the heads of the agencies: they are the people who decide whether they wish to withhold information, then they have to make their case to the chairman.
This takes us into quite interesting country, because one of the arguments used in the past is, to whom are the heads of the agencies responsible? The answer is that they are responsible to the Prime Minister. That raises the question: how does a busy Prime Minister with a thousand problems on his plate really take direct ministerial involvement? One interesting study we did looked at the proposal—one or two members of the committee got quite interested in it—that there should be an intermediate Minister appointed who would have overall responsibility for the agencies at Minister of State level, answering to the Prime Minister. We thought that this was quite a good idea until we discovered that that was exactly what had happened in Germany. I do not remember the name of the Minister, but he became an intermediate and became carried away with his role in intelligence matters—he became a sort of super-M. At one stage he was flying to Iran and other places by private jet trying to negotiate the release of certain German hostages and other people. It had gone completely to his head and people suddenly realised that nobody had much control. One or two senior members of Her Majesty’s Civil Service pointed out the dangers of this role to the Prime Minister—one or two of them may be sitting here—saying that there were occasions when a previous Prime Minister thought that the intelligence agencies were out of control and trying to undermine him. Was it a good idea to pass this off to a junior Minister? The Prime Minister had better keep overall responsibility for it.
Having said all that, I think that there is an argument, for Ministers who are not—if it is the Prime Minister—entirely dependent on official advice on this, that a properly constituted, effective chairman will bear a heavy responsibility if he overrides the head of an agency and says that this information should be made public and then finds that it subsequently proves to be extremely damaging to national security. That would be enormously damaging not just to him or her personally, but, obviously, to the whole role of the ISC. On those grounds, it would not be an irresponsible chairman in this role; it would be somebody who, because of the involvement he has had already, over a period, with the heads of the agencies, could probably be expected to take a more informed and responsible response to representations made by the heads of the agencies.
Lord Rosser
My Lords, I shall be brief, as much of the subject matter has been covered already. I wish to speak to Amendments 21 and 23. The purpose of those two amendments is to ensure that the power to veto disclosure of departmental information can be exercised only by the Secretary of State and not by a Minister of the Crown. Paragraph 3(1)(b) of Schedule 1 requires that only the Secretary of State can decide that information required by the Intelligence and Security Committee can be withheld by the agencies. Moving down to paragraph 3(2)(b), in relation to other government departments, it appears that the Minister of the Crown can make that decision, which would appear to indicate, subject to the Minister’s response, that such a key decision can or would be made at a more junior level than Secretary of State in relation to disclosure of information in respect of a government department. If that is the case, no indication is given about a reason for that decision. Bearing in mind that withholding required information could thwart the Intelligence and Security Committee in its work to meet its statutory remit of strength and oversight of the intelligence and security activities of the Government, such a decision should be taken only at the highest ministerial and accountable level within the department concerned, namely, the Secretary of State. These amendments provide for that.
Lord Lester of Herne Hill
My Lords, perhaps I could briefly explain the problem that arises with the Joint Committee on Human Rights. It is very important that parliamentary committees are well informed. From time to time, under the previous Government and under the present one, the committee has considered inviting someone from the intelligence and security service to provide it with a proper context when it is considering something such as detention without trial for a long period or, for example, the Justice and Security Bill. Under the previous Government, when we tried, we were told that it would not be possible and, therefore, we were not given the benefit of that material. Therefore, we have not tried in relation to the Justice and Security Bill because we are certain that we would find the same refusal.
It seems to me that it ought to be possible for the intelligence and security service to assist a parliamentary committee, on whatever terms are needed, to protect its own position, whether giving evidence in private or in some other way because it is a real handicap. It means that when we produce reports, for example, on this Bill, we are deprived of information that would be very helpful. It makes us look as though we are looking at problems through one eye instead of both. I do not think that we should be put in blinkers. I mention this because it seems to be something that extends to committees other than the one that we are now considering.
Justice and Security Bill [HL]
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Lord Rosser
Lord Rosser
My Lords, Clause 2(2) states:
“The ISC may examine or otherwise oversee such other activities of Her Majesty's Government in relation to intelligence or security matters as are set out in a memorandum of understanding”.
This follows Clause 2(1) which states that:
“The ISC may examine or otherwise oversee the expenditure, administration, policy and operations of —
(a) the Security Service,
(b) the Secret Intelligence Service, and
(c) the Government Communications Headquarters”.
The issue arises as to what are these,
“other activities of Her Majesty's Government in relation to intelligence or security matters”,
that are so vague that they cannot be set out in the Bill, or what are such unknown other activities of Her Majesty’s Government that not even Her Majesty’s Government know what they are. Rather than declare them now, the Government want to tuck them away in a memorandum of understanding that must be agreed with the Prime Minister and not be subject to prior discussion as part of this Bill or subsequently approved by Parliament. This idea of not providing important details when a Bill is published, or within a Bill itself, is becoming a feature of Home Office legislation. We have seen the same thing with the framework document which is still awaited under the Crime and Courts Bill. It is a most unsatisfactory and lazy approach on the part of the Home Office.
The amendment seeks to define what those other activities are in subsection (2) which, under this amendment, would read:
“The Intelligence and Security Committee may examine or otherwise oversee any part of a government department, or any part of Her Majesty's forces, which is engaged in intelligence or security activities”.
That is in line with the wording in paragraph 4 of Schedule 1 to the Bill, which defines sensitive information as,
“information which might lead to the identification of, or provide details of, sources of information, other assistance or operational methods available to—
(i) the Security Service,
(ii) the Secret Intelligence Service,
(iii) the Government Communications Headquarters, or
(iv) any part of a government department, or any part of Her Majesty's forces, which are engaged in intelligence or security activities”.
The wording in the amendment makes Clause 2(2) less vague and more specific. If the Minister does not like the amendment, perhaps he could set out what,
“other activities of Her Majesty’s Government in relation to intelligence or security matters”,
are not covered by the amendment and by Clause 2(1). Perhaps he could also say why the Government prefer to spell out some areas of examination or oversight by the ISC in a subsequent memorandum of understanding, rather than spell them out in the Bill. I beg to move.
Lord Henley
My Lords, this is the first of a number of amendments that deal with a memorandum of understanding. I start by apologising to the noble Lord, Lord Rosser, who makes attacks on the Home Office for being somewhat remiss in the slowness with which it produces things, particularly in relation to the framework document. As the noble Lord is aware, I have promised that we will have a draft or an outline of that framework document before we get to Report stage of the Crime and Courts Bill. Since that is unlikely to take place in this House before the end of October, we have a certain amount of time.
On the memorandum of understanding, as set out in the Bill, I am grateful for the support of my noble friend Lord King on this. It is right that the memorandum of understanding should spell out the precise remit of the ISC in relation to bodies other than the agencies, because the memorandum of understanding can make provision at a level of detail that is not appropriate for primary legislation. This is particularly important because parts of government departments engaged in intelligence and security activities may well be engaged in other activities besides, which would not properly fall within the remit of the ISC.
Clearly, things change over time. Departments reorganise. The functions done by one department one year may be done by another the following year. The noble Lord will remember when his party was in Government, how frequently they changed the names and the functions of departments. I have completely lost track of the number of changes there were to departments. One of the things we did very firmly when we came back into office was not to change the names or functions of departments, except in the most marginal capacity.
I believe the intelligence world is no different to any other part of government. For example, as with the recent Levene report, we could find that future reorganisations of defence may change organisational boundaries that affect the MoD’s intelligence activities. A memorandum of understanding is a flexible document. It can be changed much more easily than primary legislation. It will enable the intention of the Government that the ISC should have oversight of substantively all of central government’s intelligence and security activities to be realised now and, more importantly, in the future should they change. The amendment seeks to limit that. For that reason I cannot offer any support to the amendment. I hope the noble Lord will feel able to withdraw it.
Lord Rosser
I thank the Minister for the reply. Of course, my amendment does not refer to any government department by name because it lifts the wording from paragraph 4 of Schedule 1, which refers to,
“any part of a government department, or any part of Her Majesty’s forces, which is engaged in intelligence or security activities”.
From what the noble Lord has said, I am still not quite sure how extensive the areas will be that might be included in the memorandum of understanding that would not be included in the definition that I have given in this amendment, when that is also allied to Clause 2(1). So I am not sure I have had a very direct answer to that question.
Nor has the Minister addressed the fact that putting it in a memorandum of understanding means that it will not be subject to prior discussion as part of this Bill. It is a document that the ISC has to agree with the Prime Minister and, as I understand it, it will not have to be approved subsequently by Parliament. The more reliance that is put on that memorandum of understanding and the more information that is put in it, the less opportunity this House has to discuss the issue.
I would have thought that since the wording I used has been lifted from another part of his own Bill, the Minister might at least have accepted that that was worth considering because it would, at the very least, reduce the amount that had to be covered in the memorandum of understanding, and thus reduce the amount that could not be debated as part of this Bill and which would not require the approval of Parliament. There has been no offer from the Minister even to look at this issue from that aspect. It is just a straight dismissal of the terms of this amendment. I express my disappointment at the Minister’s reply—he could have been much more sympathetic and helpful—but I note his reply and beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, the Minister should not blame the post; it came to me by e-mail this morning. The post may follow in about three days. I want to put on the record what the note told me and other noble Lords who have seen it about the memorandum of understanding. It states:
“The MoU needs to be agreed between the ISC and the Prime Minister”.
We know that. It continues:
“We are starting this process of drafting and agreeing this document, and will do so in parallel”—
I stress those words—
“with the Bill’s passage ... Once we have an agreed draft … it is our intention that it is published, to help inform debate”.
The thrust of my amendment is that it should be subject to debate. The Ministers who sent the letter then told us:
“The matters covered … may include … The factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing and/or of significant national interest … A description of the arrangements by which the ISC will request, be provided with and hold information, including the circumstances in which the ISC will be able to access primary source materials … A description of the role of investigative staff in the ISC’s work; and … A description of the process for producing an ISC report”.
As the noble Lord said, the memorandum of understanding will be a public document, so it cannot be so sensitive that that is a reason for it not to be debated. I say to the Committee that today’s debates have shown how much Parliament—and this House in particular—has to contribute to consideration of the criteria that will be applied. We are told in Clause 2(4)(a) that the memorandum of understanding,
“may include other provision … which is not of the kind envisaged in subsection (2) or (3)”.
That is very wide. I realise that “envisaged” is another term that I have not come across in legislation before. I do not know whether it means more than “not within”, “not as described” or “not subject to” subsections (2) and (3). I am beginning to feel like an awful old fogey in raising these points but legislation should be completely clear. I believe that the criteria should be matters for debate and not simply for the draft, although we look forward to it as it will inform debate. Reading this note, it seems to me that the approach is more top-down than I should like to have seen.
Lord Rosser
My Lords, perhaps I may make one brief comment. I have already expressed our views about the memorandum of understanding and I think that in return I was told by the noble Lord, Lord King of Bridgwater, that I was being savage.
I just wish to pursue the point that the noble Baroness, Lady Hamwee, made about other references in Clause 2 to the kind of content that will be included in the memorandum of understanding, which we will not get an opportunity to debate and which does not have to be approved by Parliament. Clause 2(3) says:
“The ISC may, by virtue of subsection (1) or (2), consider any particular operational matter but only so far as the ISC and the Prime Minister are satisfied that … the matter … is not part of any ongoing intelligence or security operation, and … is of significant national interest, and … the consideration of the matter is consistent with any principles set out in, or other provision made by, a memorandum of understanding”.
One has to bear in mind that this is not a document that we will be able to debate and discuss and it will not need to be approved by Parliament unless the Minister is going to move on this amendment. What are these principles that will be set out in the memorandum of understanding which we are not going to be told about when discussing the Bill and which we are not going to be allowed to discuss?
Lord Henley
My Lords, first, I apologise to the noble Baroness, Lady Hamwee—who is great on drafting. She has picked out another word—envisaged—which she has not come across in legislation before. We will add that to “ongoing”. I suspect that, like her, I am probably an old fogey on these matters. These matters are new to drafting but develop in the way that they do. We will consult the draftsman on whether he is happy with “envisaged” or whether some other word could do it.
It would probably be helpful if I first explain the purpose of the memorandum. We believe that it will be an important document in the relationship between the ISC and the Government. It will define the precise extent of the ISC’s oversight of parts of the intelligence community other than the agencies. It will set principles or other criteria that must be met before the ISC can consider particular operational matters. It will describe the arrangements by which the agencies and other intelligence bodies will supply information to the ISC. We expect that it will also cover matters such as: the factors to be taken into account in deciding whether a particular operational matter which the ISC might wish to consider is ongoing, current—or whatever word we particularly wish to use—and/or of significant national interest; a description of the arrangements by which the ISC will request and hold information, including the circumstances in which the ISC will be able to access primary source materials; a description of the role of investigative staff in the ISC’s work; and a description of the process for producing an ISC report. That is what we intend that it should cover. There will no doubt be other matters that will also need to be covered.
The memorandum of understanding in the Bill must be agreed between the Prime Minister and the ISC and it can be altered or replaced at any time by agreement. It is intended that the first memorandum of understanding will be agreed immediately on the coming into force of the relevant provisions. As I said, however, we hope that we can give some idea of what it is going to look like by the time we reach Report.
As is usual for a memorandum of understanding—this is not an unusual procedure—there is no parliamentary approval procedure. This was looked at by the Delegated Powers and Regulatory Reform Committee and it was perfectly happy with this. While the memorandum of understanding itself will be an unclassified document which will be published and laid before Parliament, its precise terms are very likely to be shaped by matters which are sensitive in terms of national security and which therefore cannot be made public. In these circumstances, it is particularly appropriate that the memorandum of understanding can be concluded without the need for parliamentary approval.
Of course the terms of the memorandum of understanding must be agreed with the ISC. The Bill makes that clear—it is agreed between the Government and the ISC. The ISC, we must always remind ourselves, is a committee composed of parliamentarians—nine from both Houses. It could be eight members from this House and one from another, but it might be some other arrangement, as it is at the moment—seven from another place and two from this House. As a result of the changes that the Bill will bring about the committee will be appointed by and accountable to Parliament. In some ways, requiring these parliamentarians to seek the approval of the rest of Parliament is a restriction on the independence of the body. I think that it would be unusual for Parliament to have such control over the detailed way in which what amounts to a Select Committee—as the noble Lord, Lord Campbell-Savours, is looking for—has decided to conduct its business.
We have not yet published the memorandum for the simple reason that the memorandum of understanding does not exist. We are starting the process of agreeing this document with the ISC and will do so in parallel with the Bill’s passage through Parliament.
Crime and Courts Bill [HL]
Lord Rosser Excerpts(12 years, 4 months ago)
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“(6A) In the UK Borders Act 2007, in section 48 (establishment) after paragraph (2)(b) insert—
“(c) practice and procedure in facilitating the entry into the UK of all bona fide EU and other passport holders, in monitoring of waiting times for processing of incoming passengers at fixed control points, and in processing passengers on international train services between the nearest stations served on each side of the border.””
Lord Rosser
My Lords, my noble friend Lord Berkeley is not here but I will take the opportunity to move his amendment, if only to hear the Minister’s reply. This amendment seems to address some of the concerns covered in the previous group, but relates to international rail services and the problem of delays to passengers on the Eurostar services caused by new immigration controls. It also sets out how that might be addressed. The amendment contains a number of proposals and appears to suggest a policy of facilitating and welcoming visitors rather than treating everyone in perhaps a less than friendly manner as a result of some of the delays which I understand occur on the Eurostar services at both Brussels and St Pancras. The amendment also refers to the monitoring of waiting times to process incoming passengers at fixed control points. It also talks about processing passengers on international train services between the nearest stations served on each side of the border.
I believe rather than know that there have been meetings between my noble friend Lord Berkeley and the Minister in which the issue of processing passengers on the train—which is perhaps a rather unfortunate phrase—might have been raised. The amendment also raises that issue. We are now part of an expanding high-speed rail network with the introduction of new routes using the Channel Tunnel and the prospect of new operators entering the field.
I think that I am right in asserting that there are significant issues with delays, certainly with Brussels-to-London traffic, which I think are caused in part by double passport checks on passengers at both Brussels and St Pancras, where, I am told, delays can be over an hour. If that statement is right—and I am sure that the Minister will correct me if it is not—it could be damaging to our image as a country and to our economy as it would have an adverse effect on tourism and on the UK as a base for new and expanding businesses.
I am absolutely sure that my noble friend Lord Berkeley would have had a great deal more to say, and that he would have said it an awful lot more effectively than I have, but if I am right in saying that the Minister has had meetings with him, I hope that the Minister will also be able to say where we are on the issue. Perhaps he could also say whether the issue of processing passengers on the train was raised with a view to eliminating some of the delays that are currently occurring. I beg to move.
The Minister of State, Home Office (Lord Henley)
My Lords, I will be relatively brief on this. I can give an assurance to the noble Lord that I have discussed this with his noble friend Lord Berkeley. I also welcome him back to this Bill from his travails on the Civil Aviation Bill. This amendment is, in effect, about the remit of the chief inspector. I think that I can give the noble Lord an assurance that this is all largely dealt with by Section 48 of the UK Borders Act 2007. I have a copy of Section 48 and could go through it in some detail but I do not think that the noble Lord or the rest of the Committee would welcome that. I will just say that the remit of the chief inspector is adequately dealt with in that and he can cover all those matters.
As the noble Lord said, I have had a meeting with his noble friend Lord Berkeley at which we discussed a number of issues, particularly the so-called Lille loophole; the problems coming into St Pancras, problems that we are aware are likely to get much worse when other services, such as the German trains, start coming in, just because of the physical layout of St Pancras; and how we deal with that. We also discussed—again, this is very important—the possibility of using immigration officers on the train to deal with the particular problems that the noble Lord quite rightly highlighted. That is something that we will have to look at for the future, beyond 2015, which is when Deutsche Bahn is likely to start bringing trains in.
Lord Rosser
I will be brief. I thank the Minister for his reply which I am sure will be read by my noble friend Lord Berkeley with interest and I beg leave to withdraw the amendment.
Lord Rosser
My Lords, as has been said, the amendment removes the word “insulting” from Section 5 of the Public Order Act 1986. The noble Lord, Lord Mawhinney, has explained the reasoning behind the amendment. We will need to be satisfied as to its justification, the evidence advanced as to why it is needed and the extent to which that evidence reveals a problem that can only really be addressed by a change to the legislation. We will also want to be satisfied that removing “insulting” will not mean that people using such words or behaviour cannot be prosecuted when there is every justification and reason for doing so.
The consultation on this issue closed in January. The Government have not, as far as I am aware, published the replies to that consultation or their own response. Despite this, the Deputy Prime Minister, presumably in his official capacity, has apparently made comments supportive of the approach in the amendment. Bearing that in mind, and the distinguished noble Lords whose names adorn the amendment, I suspect that the Government, at worst, are not going to reject its intentions.
For our part, we will listen to whatever points the Minister has to make, as well as the points made by noble Lords in the debate, to which we will want to pay regard. We also want to consider the replies to the consultation when they are published, along with the Government’s response, before coming to a firm conclusion.
Lord Henley
My Lords, I hope that I can be relatively brief in responding to the speech of my noble friend in moving the amendment, and the remarks that other noble Lords have made. My noble friend need not apologise for the fact that he was a member of the Government and was a signatory to the Public Order Act 1986, which included the word “insulting”. As the noble Lord, Lord Dear, has reminded us, “insulting” goes back to the Public Order Act 1936, introduced by the then National Liberal Home Secretary, Sir John Simon. That was very much borne out of the fascist marches of the 1930s. Section 5 of that Act referred to any,
“person who, in a public place or at a public meeting, uses threatening, abusive or insulting words”.
That is much the same as the 1986 Act which my noble friend now feels embarrassed about having signed up to.
To take the history lessons back a bit further, I take my noble friend back to the Metropolitan Act of 1839. That was under a Whig Government—the forebears of the Liberal Democrats—who, again, introduced the word “insulting”, but which applied only in London and not in other parts of the country. I make this point to say that this has been going on for some time.
Similarly, I apologise to my noble friend for the fact that our consultation ended in January and we have not responded within the appropriate three months; however, it did cover a number of other issues. Obviously, it is now six months since that consultation ended. As has been made clear by a number of noble Lords who spoke, we had some 2,500 responses to that consultation and we want to consider them carefully. It is clear that there are a number of different and passionately held views on the subject. Given the complexity of the issues raised, we in the Home Office, as Ministers and officials, are still considering the balance of all those representations. So, I say to the Committee—and to the noble Lord, Lord Rosser—that I am not in a position today to set out the Government’s position on the amendment.
This is a timely debate, which will help to inform the Government’s further deliberations. I would have been grateful if it could have happened at a time when more noble Lords were here in Committee. Although I appreciate that the names on the amendment of those who support it come from different parts of the House and they all seemed to be on the same side, there are strong believers in other views. We have heard a number of cases indicating the weakness of having “insulting” in the provision. Different noble Lords have cited a number of different cases.
We also have to accept that freedom of expression is never an absolute right. It needs to be balanced with other competing rights. It was made quite clear in the case of Percy and the DPP that Section 5 is proportionate and contains that necessary balance between the right of freedom of expression and the right of others to go about their business without being harassed, alarmed or distressed.
I do not want to go into details at this stage because we are debating this at too late an hour with too empty a Chamber. All that I am saying is that we have had a consultation. That has ended and we have had 2,500 responses. Those need to be considered carefully and all of us need in time to take a view. I hope that all noble Lords will accept that there are arguments on both sides, as the noble Lord, Lord Rosser, put it. Those need to be considered very carefully. I am pretty sure that I can say to my noble friend Lord Mawhinney that we are likely to come back to this issue at a later stage in the Bill.
As I have said on other occasions, we have some considerable time before we get to Report. That might make it easier to come to that considered view. I hope at that point we will be able to put forward the Government’s considered view to the House. Therefore, I hope that my noble friend will, on this occasion, feel able to withdraw his amendment.
Crime and Courts Bill [HL]
Lord Rosser Excerpts(12 years, 5 months ago)
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Lord Rosser
“( ) Before making a request under subsection (1) the Director General must consult the Police and Crime Commissioner responsible for the totality of policing in that area.”
Lord Rosser
My Lords, the two paragraphs of Clause 5 to which these amendments relate provide for a chief officer of a UK police force or a UK law enforcement agency to perform a task if the director-general of the National Crime Agency requests, and for the director-general of the National Crime Agency to perform a task if requested to do so by a chief officer of a UK police force or a UK law enforcement agency. In respect of the references in the two paragraphs in question to,
“the chief officer of a UK police force”,
there is no reference to any requirement at all for the elected police and crime commissioner for that police force to be consulted by the person requesting that a task be performed, whether it be the director-general of the National Crime Agency or the chief officer of the commissioner’s own police force. So far there has been no explanation of or justification for this omission despite the fact that under the Police Reform and Social Responsibility Act 2011 a police and crime commissioner for a police area has a statutory duty to secure the maintenance of the police force for their area, ensure that the police force is efficient and effective and hold the chief constable to account for a wide range of duties and responsibilities, including the effectiveness and efficiency of the chief constable’s arrangements for co-operating with other persons in the exercise of the chief constable’s functions.
The police and crime commissioner will also be responsible for issuing a police and crime plan, which is a plan that is required by law to set out a number of matters, including the policing of the police area which the chief officer of police is to provide. Yet it would appear as though it is possible under the terms of the Bill for the director-general of the National Crime Agency to come to an agreement with the chief officer of a UK police force for that chief officer to perform a task on behalf of the director-general, and a task of unspecified magnitude, scope or significance in relation to resources or impact; or, alternatively, for the director-general of the National Crime Agency to perform a task on behalf of the chief officer of a UK police force—once again, of unspecified magnitude, scope or significance—without any apparent duty in either case to consult the elected police and crime commissioner despite the significant statutory responsibilities the police and crime commissioner has in relation to their police force. If the director-general of the National Crime Agency was requesting the chief officer of a UK police force to carry out a task which could well have an impact on the efficiency and effectiveness of the police force in question, or on the ability to deliver or adhere to the police and crime plan, one would have thought that it was a matter on which the director-general of the National Crime Agency should be required to consult the police and crime commissioner.
Likewise, if the chief officer of a UK police force found it necessary to request the director-general of the National Crime Agency to perform a task on behalf, or in support, of that police force, there should be a duty on the chief officer to consult the police and crime commissioner, who might want to satisfy himself or herself that this was not a task that their own police force should be competent and capable of performing and that the request to the director-general was not in reality seeking to cover up a weakness in the performance of their police force. In this context, it is worth pointing out, for example, that Part 4 of Schedule 3 to the Bill provides for the director-general of the National Crime Agency to make arrangements with the elected police and crime commissioner for the NCA to use facilities made available by that police and crime commissioner’s police force. In addition, the Secretary of State will also be required to consult PCCs in determining the NCA’s strategic priorities, and a similar requirement is placed on the director-general of the NCA in preparing its annual plan. However, there is apparently no requirement for the director-general to notify or consult PCCs on voluntary agreements with chief constables or before using their powers to direct chief constables.
I will obviously await the Minister’s response to all the points that I have made. I suspect he is not going to say that I have drawn attention to gaps in the Bill that the Government now intend to address. However, I wait to see whether the argument will be that responding to requests referred to in Clause 5 is, for some reason, nothing whatever to do with the elected police and crime commissioner, or whether the Minister is going to say either that there are other provisions in the Bill that would require the police and crime commissioner to be consulted—or his or her consent sought—or that there are provisions in the Police Reform and Social Responsibility Act 2011 that would require the commissioner to be consulted, or his or her consent sought, such as in paragraph 7 of Schedule 2 to that Act, which states:
“A chief constable may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of chief constable”,
and,
“That includes … entering into contracts and other agreements (whether legally binding or not), but only with the consent of the relevant police and crime commissioner”.
Alternatively, perhaps the Minister is going to say in response that the points I have raised will be covered in the elusive framework document that he has so far been unable to produce. I await his response. I beg to move.
Lord Thomas of Gresford
These amendments concern something I raised at Second Reading—the relationship between the National Crime Agency, the police commissioner and the chief constable of a police force. I still do not understand just how that is to be worked out. We tabled amendments suggesting a protocol, which we dealt with in Committee on Monday, and learnt that a protocol is something to be discussed as an operational matter once the Bill is in force. Does the police commissioner come anywhere within the architecture of the Bill, or is the commissioner in an outhouse? I just do not understand where he is.
Lord Henley
My Lords, I am always happy to look at further amendments to amendments. Similarly, I am happy to think that one of the things I could do in the long summer months when the Olympics are on is read some of the noble Lord’s speeches on police and crime commissioners. Those will no doubt provide me with a great deal of pleasure and possibly put me to sleep. They will be great speeches and I will read them just as I will listen to the noble Lord.
What the noble Lord, Lord Rosser, does with his amendments is a matter for him. I was responding to the specific amendments that were put before me. The noble Lord, Lord Harris, can add his name, if he wishes, to the amendments that the noble Lord, Lord Rosser, might bring forward in due course.
Lord Rosser
My Lords, this has certainly been an interesting debate. It seems to have created a certain amount of disagreement and passion. I think I heard the Minister say that my amendments would call into question the operational independence of chief constables. I find that rather odd coming from the government Front Bench since the reason for our opposition to police and crime commissioners in the first place was that that was one of the things that it would cause, so to have it thrown at us that we are putting forward amendments that would put at risk the operational independence of chief constables frankly seems a bit rich.
As my noble friend Lord Harris of Haringey said, it is not clear whether the Government’s principal argument is the use of the word “must” in the amendments. The Minister has said that if there had to be consultation with the police and crime commissioner, that would cause delay, and it might be an emergency. However, am I not right in saying that if the director-general approached a chief constable for a voluntary agreement and could not get it, the director-general would then have to go to the Secretary of State to get a direction authorised? Future amendments will tease out whether that is the case, but if it is, that would certainly cause a delay, which is apparently of concern to the Minister.
If there were provision for consultation with the police and crime commissioner, it might help the situation—although I do not think that this has occurred to the Minister—in that the police and crime commissioner might step in if there was any doubt or difficulty over the chief constable coming to a voluntary arrangement with the director-general.
I mentioned that there could be reasons why the police and crime commissioner might want to know, or why there should at least be a requirement for the police and crime commissioner to be consulted, if the chief constable wanted the director-general of the National Crime Agency to perform a task on their behalf, because there could be a difference of view with the police and crime commissioner about whether it was a matter that their own police force should be competent to deal with or whether it was helping to cover up a failing in their own police force. I notice that the Minister declined to address that point.
My noble friend Lord Harris of Haringey pointed out that if the difficulty is the use of “must”, one could produce wording that made it clear that if there were difficulties over time constraints, that requirement would not be there. I got the impression that when my noble friend put that point directly to him, the Minister rather backed off from the argument that there might not be time to consult a police and crime commissioner.
The whole basis of the Government’s approach appears to be as it was during consideration of the 2011 Bill, now an Act: that is, a belief that there is some clear guideline distinguishing what is operational—which in the Government’s view is the responsibility of the chief constable—and the powers of the police and crime commissioner. I am afraid that we did not think during the passage of the Bill, nor do so now, that this clear guideline, which it is obvious the Minister still believes in, exists. There will be grey areas as to whether a matter is solely operational or whether it impinges on the police and crime commissioner’s responsibilities, which are fairly wide-ranging. They include issuing a police and crime plan, which is required by law, to set out a number of matters relating to the policing of the area which the chief officer of police is to provide, and a duty to ensure the effectiveness and efficiency of the chief constable’s arrangements.
I also made the point, picked up on by my noble friend Lord Harris of Haringey, that the tasks that the director-general might require or ask a chief constable to perform are of unspecified magnitude, scope or significance in relation to resources or impact. I note that the Minister did not seek to assure us in his response that these tasks would be minor and would not have an impact on resources. I therefore assume that the point that I made is valid: that these are tasks of unspecified magnitude, scope or significance in relation to resources or impact. To believe that a chief constable could come to an arrangement with the director-general to perform a task that had a significant impact on resources without any consultation with his or her own police and crime commissioner being required in the Bill seems, as my noble friend said, to denigrate the position and authority of a police and crime commissioner.
I have made the points that I wish to make to the Minister. I hope that, despite his response, he will reflect further on our debate and ask himself whether it is really impossible to write into the Bill a provision that there must be—or if he does not agree to “must”, that there will in normal circumstances be—consultation with the police and crime commissioner. If he was prepared to consider that, the Government would save themselves potential difficulties in the relationships between a police and crime commissioner, the director-general of the National Crime Agency and chief constables.
Lord Rosser
Lord Rosser
My Lords, the amendment would delete the requirement on the director-general of the National Crime Agency to seek the consent of the Secretary of State before issuing a direction to the chief constable of the British Transport Police, as set out in Clause 5(9). There does not seem to be, in Clause 5, a similar requirement for the director-general to seek the consent of the Secretary of State to a direction to perform a task that is given to the chief officer of an England and Wales police force, as opposed to the chief constable of the British Transport Police.
Schedule 3(8) provides for the director-general of the National Crime Agency to direct, among others, a chief officer of an England and Wales police force, and the chief constable of the British Transport Police, to provide specified assistance to the National Crime Agency, subject to the appropriate consent being given to the direction—meaning that of the Secretary of State in relation to the chief officer of a police force. However, Schedule 3 appears to remain silent on whether the consent of the Secretary of State is required for the director-general of the National Crime Agency to give a direction to provide specified assistance to the chief constable of the British Transport Police—unless of course the chief constable of the British Transport Police is included within the reference to a “chief officer of” a “police force”.
I accept that we may not have correctly understood the wording in the parts of the Bill to which I have just referred. I am sure that if we have not, the Minister will point that out. However, if we have understood it correctly, can the Minister explain the significance or otherwise of the necessity for the director-general of the NCA to obtain the consent of the Secretary of State to give a direction only to the chief constable of the British Transport Police appearing in Clause 5, when that clause also deals with directions being given to the chief officer of an England and Wales police force; and the significance or otherwise of the necessity for the director-general of the National Crime Agency to obtain the consent of the Secretary of State to give a direction only to a chief officer of an England and Wales police force appearing in Schedule 3, when that schedule also deals with directions being given to the chief constable of the British Transport Police?
Why is the necessity for the director-general of the National Crime Agency to seek the consent of the Secretary of State to the giving of a direction to both a chief officer of an England and Wales police force, and the chief constable of the British Transport Police, not dealt with in the same place in the Bill, whether at Clause 5 or Schedule 3, instead of being split, as appears to be the case at present? I accept that Clause 5 and Schedule 3 may address different circumstances, hence the difference in wording. Such a distinction between Clause 5 and Schedule 3 does seem to be drawn in Part 5 of Schedule 3, addressing the issue of payments. No doubt the Minister will clarify the position in his reply.
Amendment 39 would remove the requirement for the consent of the Secretary of State to be given. The Minister’s response to these amendments may address some of the points we wish to raise under Amendment 39.
Finally, as we are dealing with the issue of directions being given by the director-general, the Minister said at Second Reading that the Bill provides that the director-general should, in exceptional circumstances, be able to direct police forces in England and Wales. Can he tell us where in the Bill it states, “in exceptional circumstances”?
Lord Harris of Haringey
I see the noble Earl, Lord Attlee, readying himself to answer on this amendment. Perhaps he can answer my simple question. We listened to the protestations of the noble Lord, Lord Henley, that the amendments that we just considered were completely unworkable because of the use of the word “must”, and that there would be circumstances in which urgent matters and urgent operational needs had to be dealt with. Why do we now find a clause in the schedule which says that before you can get the British Transport Police to do anything, the prior approval of the Secretary of State has to be obtained?
When the noble Earl reads his note, perhaps he could also say whether a fine distinction is being drawn between a direction and a request? If so, perhaps he could also tell us what is the status of the British Transport Police Authority. Does it have no say in the matter? Is it simply for the Secretary of State? I assume that we are here talking about the Secretary of State for Transport, although I understand that there is always a fiction in our legislative process whereby Secretaries of State are indivisible. I assume that, before a direction can be given, the Secretary of State for Transport must be found, diverted from whatever consideration she or he might be giving to high-speed rail, airports or whatever, and told that there is an urgent operational direction needed by the British Transport Police. How is that really meant to work?
Earl Attlee
My Lords, in a terrifying case of urgency, it is in my opinion inconceivable that the British Transport Police would not agree to assist.
In answer to the noble Lord’s question about the British Transport Police Authority, he is right to point out that the chief constable of the British Transport Police is accountable to the British Transport Police Authority in the same way that chief constables of police forces in England and Wales are accountable to their respective police and crime commissioners. However, in the case of a directed tasking to the British Transport Police, the Secretary of State for Transport is ultimately responsible for the security of passengers and staff on the national rail network and on underground and light-rail systems. It is therefore right that she should have the ability to consent to direct tasking of the British Transport Police at the national level aimed at tackling serious and organised crime.
Moreover, tasking by the National Crime Agency may need to take place in time-critical situations. Members of the British Transport Police Authority meet six times a year to set British Transport Police targets and to allocate funds for its budget. It may not be possible to clear consent with the British Transport Police Authority in time for the necessary executive action to take place. This is not to say that the British Transport Police Authority would not be notified by its chief constable of a direct tasking request. I have no doubt that the chief constable of the British Transport Police would notify the British Transport Police Authority of direct tasking as soon as it was feasible to do so. Noble Lords have not convinced me that a situation would arise where the British Transport Police would refuse to provide assistance voluntarily.
Lord Rosser
If the Minister believes that there are no circumstances in which the British Transport Police would fail to provide the assistance required, why does he need directions in the Bill at all on the basis that, presumably, any police force would provide the assistance required?
Earl Attlee
As I said, it is to provide a necessary backstop. When two negotiating parties know that one party will win at the end of the day, it is amazing how agreement is reached quite quickly.
Lord Rosser
I think the Minister has answered the point that I made. If he is arguing that about the British Transport Police, he does not need the provision in the Bill for any police force.
I want to clarify that I have understood correctly what has been said. What I have inferred—and I would be grateful if the Minister would confirm that I have understood it correctly—is that if the director-general makes a direction under Clause 5 that would require a chief officer of an England and Wales police force to perform a task, that direction does not require the consent of the Secretary of State, albeit that it would if it was in relation to the British Transport Police. Likewise, Schedule 3 provides that the director-general may,
“direct any of the following”,
including the chief officer of an England and Wales police force and the chief constable of the British Transport Police,
“to provide specified assistance to the NCA”.
While the approval of the Secretary of State would be required for a direction to a chief officer of an England and Wales police force, it would not be required for a direction to the chief constable of the British Transport Police. I simply want the Minister to clarify that I have understood what he said and that that is the distinction between Clause 5 and Schedule 3. I see the noble Lord, Lord Henley, nodding so I take it that what I have just said is a correct understanding of the position that the Minister explained.
I listened—frankly, I will wish to read it in Hansard—to the distinction between performing a task, which is referred to in Clause 5, and the director-general directing,
“any of the following to provide specified assistance to the NCA”.
Bear in mind that from the director-general’s point of view, if he can satisfy himself—or herself—that he requires a task to be performed by the chief officer of an England and Wales police force, he does not need the consent of the Secretary of State. Therefore, it might be quite tempting for a director-general to try to make sure that any direction that he gives comes under the heading of “performing a task”, rather than “providing specified assistance”. That is also what I have inferred from the Minister’s answer.
Earl Attlee
My Lords, I hope the noble Lord is not suggesting that the director-general would base an operational decision on bureaucratic convenience.
Lord Rosser
I am sure it would not be based on bureaucratic convenience. If he could satisfy himself that he was asking for a task to be performed, there would be less bureaucracy as he would not have to get the consent of the Secretary of State. Once again, I fear that there may be a view that there is a very clear divide between what could be defined as performing a task and what might be deemed to be providing specified assistance. I suspect that there will be grey areas over that in at least some cases.
I pointed out to the Minister that it was said at Second Reading that,
“the Bill provides that the director-general should, in exceptional circumstances, be able to direct police forces in England and Wales”.—[Official Report, 28/5/12; col. 974.]
I asked where in the Bill it says “exceptional circumstances”. I take it from the noble Earl’s answer that he agrees with me that the statement that the Bill provides for the director-general to be able to direct police forces in England and Wales in exceptional circumstances is not correct. Such wording does not appear in the Bill, although this was implied at Second Reading. In the light of that, I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
In relation to a previous amendment, I mentioned that we had put down Amendment 39 and that the discussion on Amendment 36 might clarify the issue that I wanted to raise on Amendment 39; namely, the distinction between the wording in Clause 5 to “perform a task” specified in the direction and the wording in paragraph 8 of Schedule 3 about providing,
“specified assistance to the NCA”.
I asked the Minister if my interpretation of what he had said was correct and he indicated that it was.
Lord Rosser
“( ) In the Police Reform Act 2002, leave out section 10(1)(g) and insert—
“( ) to carry out functions in relation to the National Crime Agency which correspond to those conferred on the Commission in relation to police forces by paragraph (2) of this subsection”.”
Lord Rosser
My Lords, these amendments deal with the inspections and inspection scrutiny arrangements for the National Crime Agency. Currently the Bill requires the inspection of the National Crime Agency by HMIC but gives the Secretary of State the discretion to decide whether it should also be subject to scrutiny by the Independent Police Complaints Commission. Amendments 57 and 58 change the word “may” to “must” so as to ensure that the actions of the director-general and all other National Crime Agency officers may be subject to the scrutiny of the IPCC. Amendment 56 adds the National Crime Agency oversight into the general functions of the IPCC.
It is not at the moment clear why the Government have chosen not to give the IPCC automatic scrutiny functions over the actions of National Crime Agency officers, especially considering the fact that the National Crime Agency will be performing many more functions than its predecessor and also because both SOCA and the MPA officers were subject to IPCC scrutiny. Presumably by leaving the decision up to the Secretary of State’s discretion, the Government envisage circumstances in which they do not believe it would be either appropriate or alternatively necessary for the behaviour of NCA officers to be subject to independent scrutiny by the IPCC. If that is the situation, it would be helpful when the Minister responds if he could give an indication as to what those circumstances are and what change the Government believe would be required for the Secretary of State to accept that regulations should be made conferring functions on the IPCC in relation to the exercise of functions by the director-general and other National Crime Agency officers. Alternatively, if the Secretary of State is to decide that the IPCC should not have responsibility for the scrutiny of National Crime Agency officers, then who will? I beg to move.
Lord Rosser
My Lords, it is in something of a state of shock that I stand here. I thank the Minister for his response and for accepting Amendment 57. He has set out his reasons for not thinking that Amendment 58 is appropriate and, as I understand it, has effectively said that Amendment 56 is actually addressed to other parts of the Bill and the 2002 Act. In the light of the Minister’s response, I take it that I am meant to agree the withdrawal of Amendments 56 and 58 and that Amendment 57 has been accepted.
Lord Henley
The noble Lord withdraws Amendment 56 and then moves Amendment 57.
Lord Rosser
Crime and Courts Bill [HL]
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Baroness Hamwee
I wish to speak also to Amendment 3. These are both probing amendments.
Amendment 2 seeks to remove Clause 1(10) from the Bill. That subsection excludes prosecution from the NCA’s crime reduction function. Is the point simply what the NCA itself can do? If so, why cannot it prosecute on its own behalf? The crime reduction function is defined and includes activities to combat crime listed in Clause 1(11), which refers to prosecution. If the NCA cannot itself prosecute, how is it anticipated that the process will work? Common sense tells me how it will work but I would like to hear that from the Minister. Why cannot the NCA have the option of prosecuting instead of commissioning prosecution, as it were?
Amendment 3 seeks to understand what is intended by the activity of mitigating the consequences of crime. Of course, that is not something to which I am in any way opposed, but can the Minister expand on that? Is it expected that the NCA will work in partnership with the many organisations which deal with mitigating the consequences of crime such as the Restorative Justice Council and Victim Support? I was pleased but a little surprised to see that referred to and would be glad to have some flesh put on those bones. I beg to move.
Lord Rosser
My Lords, as the noble Baroness, Lady Hamwee, has explained, she is, as I understand it, seeking an explanation of why the National Crime Agency is precluded from pursuing its own cases. Presumably, the National Crime Agency would pursue only more serious and organised offences although there is provision in the Bill for NCA officers to become involved in dealing with any crime, so perhaps that is not necessarily the case. Subject to the Minister putting me right, I assume the Government consider that the Crown Prosecution Service would become involved in pursuing most cases. If I am right in thinking that, one advantage is that the Crown Prosecution Service is able to take an independent look at the evidence available to support a charge, and make a decision on whether there is sufficient evidence to put before a jury with a reasonable prospect of success, whether it is in the public interest to proceed and whether the charges being brought are the appropriate ones in the light of the evidence.
One can argue that where an agency or body which is the one that has investigated the case and produced and collated the evidence is also the one that makes the decision on whether the evidence is sufficiently strong to make the charge stand up, there is a possibility that that agency or body may be too close to the case and too involved to make the necessary judgments in an entirely objective manner. We will listen to the Minister’s response to the amendment moved by the noble Baroness, Lady Hamwee, and to the explanations that she is seeking. My only further comment is that independent agencies do not always seem to have a high reputation when it comes to pursuing cases successfully. Some might raise the Serious Fraud Office in that context.
Lord Harris of Haringey
My Lords, we are all grateful to the noble Lord, Lord McColl, for introducing the subject of child trafficking into the Committee today. One reason why it is so important that we look at what should or should not be written into the Bill about child trafficking, human trafficking, child exploitation and so on is the concern that there will be, from those who are concerned with these issues, that somehow these matters will get lost in the new National Crime Agency. I recall the concern expressed when SOCA was set up about what was to happen to the high-tech crime unit. It appeared to disappear completely. Because that unit had disappeared into the new agency, it was not apparent to those who had been working with it whether those activities were still continuing as time went on. There is a very real concern that some of these issues about child exploitation, human trafficking and so on may disappear or not be given the same priority.
Part of that comes back to what I suspect may not be included in this much vaunted framework document, which is: what governance and external-facing relationships is the National Crime Agency going to have? CEOP, for example, has a highly regarded partnership structure that relates to other organisations which are active in the field. It relates to those technology companies and to all sorts of organisations which need to work with it to help deal with child online exploitation. The danger is that unless we are told explicitly that these activities will carry on and that those relationships with external agencies will continue, some of them will disappear. There is a real fear about some of these activities and relationships as far as CEOP is concerned, which is why we are seeing amendments such as the one before us that are trying to pin down what the responsibilities will be on issues such as trafficking and child exploitation. I hope that the Minister can give us some reassurance that these issues will be dealt with explicitly in the framework document, so that we can be reassured that the National Crime Agency will continue to have robust external relationships on this range of issues.
Lord Rosser
My Lords, the noble Lord, Lord McColl of Dulwich, has long championed the issue of child victims of human trafficking, having had, I believe, a Private Member’s Bill in the last Session and an amendment to the Protection of Freedoms Bill to introduce a system of guardians for child victims who enter the system. His amendments today, however, relate to including in the NCA’s statutory functions a duty to fulfil the requirements of the EU directive on human trafficking. They also provide that the functions of the National Crime Agency would include the functions of the UK Human Trafficking Centre and of CEOP. We support this group of amendments as a means of strengthening the requirement on the Government to implement the directive fully and of providing clear roles and responsibilities for the NCA on trafficking, including child trafficking, since there is a serious problem that needs to be addressed, as the noble Lord and others have said.
The Home Office has itself acknowledged that some 32% of child victims went missing from care between 2005 and 2009, with many being abducted back by their traffickers. The guardians system, which was the subject of the amendment tabled to the Protection of Freedoms Bill, is advocated by UNICEF and leading children’s charities as a means of ensuring continuity of care and continuous oversight of trafficked children who have been taken into care by the state. At the Report stage of the Protection of Freedoms Bill, as I recollect it, the noble Lord, Lord McColl, did not move his amendment, which would have placed a duty on the Secretary of State to introduce the guardians system for child victims of human trafficking, because of assurances that the noble Lord, Lord Henley, gave that the Government would commission a report by the Children’s Commissioner into ways to improve retention of child victims in care.
As has been said, this is a particularly topical issue as the Children’s Minister has accepted that the system is failing in preventing children in care going missing, as revealed in the report published today by the All-Party Group on Runaway and Missing Children and Adults, to which the noble and learned Baroness, Lady Butler-Sloss, has already referred. Its report stated that vulnerable young people are being systematically let down. The Children’s Minister has, I believe, promised urgent action to address the problems that have been identified. It seems that there are big discrepancies between police and Department for Education figures, as has already been said. The DfE last year said that 930 children went missing, whereas the police estimate that 10,000 children in care went missing. We need accurate and reliable figures, since going missing is regarded as a key indicator that children are open to the risk of abuse. Indeed, one of the main reasons that the all-party group felt led to children running away was that 46% of children in children’s homes were placed away from their home town.
Considering today’s report by the all-party group and statement by the Children’s Minister that children are being “systematically let down” by the care system in failing to prevent them going missing, are the Government going to introduce a system of guardians or legal advocates for child victims of human trafficking, who are among the most vulnerable children in our care? The Government declined to accept the amendment to introduce guardians for child victims of human trafficking at Report on the Protection of Freedoms Bill, which is now of course an Act. Instead, they said that they would commission a report from the Children’s Commissioner to investigate measures to mitigate the number of trafficked children who go missing from care. When will the Children’s Commissioner actually report, and what steps are the Government intending to take in the mean time to protect these children and reduce the substantial number who go missing from care?
There is also the question of how this Bill and its provisions will help to address the situation that many of your Lordships have so eloquently identified already in this debate. Under this Bill, the National Crime Agency absorbs the Child Exploitation and Online Protection Centre. Can the Minister spell out how the Government believe that this will improve the situation? How will CEOP retain its own identity and operational independence and what assurances can the Government give that its integration into the National Crime Agency will not adversely affect its ability to protect children or to continue its multiagency approach, which might be put at risk if the National Crime Agency were seen as primarily a policing organisation? Which areas will CEOP continue to lead on in future in relation to trafficked and missing children and will there, as has already been asked, be any split of related functions in this area within the National Crime Agency that might lead to some cases falling between two stools, or rather between two agencies or organisations?
I repeat that we support these amendments and I very much hope that in his reply the Minister will be able to address the many points that have been raised.
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.
Lord Rosser
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.
Baroness Hamwee
My Lords, I can be extremely brief on this. Paragraph 13 of Schedule 1 provides for secondment to the NCA. My amendment would allow for secondments both ways. I felt that it was an issue worth raising because I think that secondment can often be extremely helpful to both organisations involved. It may be that the Minister will tell me that it is not necessary to provide for NCA officers to be seconded to a UK police force because that would be covered by some other existing police legislation. If it is covered, that is well and good; if it is not, why not? I beg to move.
Lord Rosser
My Lords, as the noble Baroness, Lady Hamwee, said, this amendment makes provision for National Crime Agency officers to be seconded to a UK police force, as well as for persons to be seconded to serve as National Crime Agency officers. I would like to raise two points on this paragraph in Schedule 1. It refers to “persons” being seconded to the National Crime Agency to serve as National Crime Agency officers. There is no qualification before the word “persons”. Could it literally be anybody and still be within the terms of the statutory provisions of the Bill? I ask that because paragraph 7(2) of Schedule 1 says:
“A person may not be appointed as Director General unless the Secretary of State is satisfied that the person—
(a) is capable of effectively exercising operational powers; and
(b) is a suitable person to exercise operational powers”.
In other words, if the Secretary of State makes an appointment that stretches credibility, and the Secretary of State could have satisfied himself or herself on the points referred to, presumably the appointment could be challenged under the provisions of the Bill. There is, however, no apparent requirement on the part of the director-general to satisfy himself or herself on any point in relation to “persons” seconded under the Bill as it stands, or indeed to National Crime Agency officers seconded under the terms of the amendment, although one could take the view that if they were existing National Crime Agency officers there ought not to be a problem.
Can the Minister say why there is no requirement in the sub-paragraph that we are discussing for the director-general to have to satisfy himself or herself that any person seconded to the National Crime Agency has to be, for example, appropriately qualified, bearing in mind that the Bill lays down requirements on the Secretary of State over the appointment of the director-general?
Finally, can the Minister say what the definition is of a National Crime Agency officer? Is it anyone employed by or working for the National Crime Agency, or does it refer only to certain kinds of posts or activities being undertaken within the National Crime Agency?
Crime and Courts Bill [HL]
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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
I wonder whether we have fallen into the trap of seeing this matter through the lens of parliamentary procedures. However, there is another way of looking at it—namely, looking at how the NCA actually operates. If we are undertaking legislation setting up a new agency, which is not designed from the start to deal with counterterrorism—we must assume that that is the case, and I do not expect the Minister to respond to this as I am putting it rather rhetorically—should we not let it be formed, see how it operates and consider the addition of a very serious function when we know something more about how it is functioning? As I say, we are inevitably looking at this in terms of the way we operate, but we have left out that rather serious consideration.
Lord Rosser
My Lords, I thank all noble Lords who have taken part in this debate and thank the Minister for his response. It is clear that the Government are seriously thinking about making this change although I accept that the Minister has said that no final decision has been made. However, it is clear that the Government are seriously contemplating this change; otherwise, they would not have included this clause in the Bill. If the Government have reached the stage of seriously contemplating the change, although I accept that no final decision has been made, as I said, the odds are probably on the Government making that change; otherwise, they would not have gone so far as to put this clause in the Bill.
However, as I said, this is not just about adding to functions, which is how the Delegated Powers and Regulatory Reform Committee looked at this matter; it is also about taking those functions away from a body that has had them for some time and has expertise in that field. The Government may be able to make out a strong case for doing so, and I would not want my comments to be taken as meaning that I have decided that they cannot make out a strong case for making the change. Perhaps they can; we will have to wait and see. However, the issue concerns what is the appropriate way in which the matter should be dealt with. Should it be dealt with on the basis of a super-affirmative order, which restricts the amount of debate and discussion which takes place, or should it be dealt with on the basis of primary legislation? If no final decision has been made—and I accept what the Minister says—then clearly this matter could be left and be dealt with in further primary legislation once a decision is made to change the present arrangements.
The Minister addressed that point in part. I may have written down incorrectly what he said and, if I have, I apologise. I wrote that he said that primary legislation is a lengthy process and quite difficult. However, in a parliamentary democracy that does not seem to be a very good argument for not making a change of this magnitude through primary legislation. Saying that primary legislation is a lengthy process and quite difficult sounds like a plea that all Governments of whatever colour have probably made over the years. However, as I said, that is not an argument for dealing in this way with an issue of this magnitude and importance.
The Minister referred to Clause 2(4), which states:
“An order under this section may amend or otherwise modify this Act or any other enactment”.
I had not assumed that it extended beyond counterterrorism but, even though it relates purely to counterterrorism, the fact that:
“An order under this section may amend or otherwise modify this Act or any other enactment”,
is still a fairly extensive power.
I sincerely hope that the Government, through the Minister, will rethink this issue, although at the moment the Government clearly take the view that the super-affirmative procedure is appropriate. At this stage, I conclude my comments by again referring to the Constitution Committee, which said:
“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”.
I hope that the Minister and the Government will reflect on that. In the mean time, I do not intend to pursue my opposition to Clause 2 standing part of the Bill.
Baroness Hamwee
I have also tabled Amendment 65 in this group, which is essentially consequential on Amendment 26. Amendment 26 would make the NCA subject to the Freedom of Information Act. I know that this is a matter that Ministers have considered very carefully, and they have taken the view that so much information would be exempt under the Act that it is more straightforward not to bring the NCA within the scope of the Act.
I do not intend to say a great deal at this stage, because it is really for the Minister to justify the exclusion of the NCA rather than for me to justify its inclusion. I appreciate that there are important provisions in the Bill requiring the director-general to publish information and material, including the annual report and the Secretary of State’s laying of the annual report before Parliament, but we will not know what the director-general and the Secretary of State have chosen to omit. If one makes a freedom of information request, the very fact of the recipient relying on an exemption sometimes gives some sort of clue, and the override regime provides for the application for a decision by the Information Commissioner and an appeal to the tribunal.
However many reports the director-general and the Secretary of State are required to publish, the public can only react to them. They cannot ask questions. Members of Parliament can ask questions and instigate debate, but in some cases that may be unnecessarily cumbersome and a bit less incisive. The freedom of information regime gives a proactive tool to the citizen. I remain to be convinced—I look forward to being convinced—that it is appropriate that that tool should not be available to the citizen in the case of the National Crime Agency. I beg to move.
Lord Rosser
Our Amendment 66 qualifies the National Crime Agency exemption to cover only those functions subject to exemption prior to 1 April 2012, which I believe was the date on which the NPIA functions were transferred to SOCA. Schedule 8 provides that the NCA will be exempt from freedom of information legislation. However, the functions of the NPIA and the UK Border Agency, which the Bill proposes to be covered by the NCA, were not previously exempt from the Freedom of Information Act. As yet, we have had no real explanation or justification for that exemption, especially as an extensive exemption regime already exists under the Freedom of Information Act.
SOCA, of course, is exempt from the operation of the Freedom of Information Act, but, as I said, as the National Crime Agency’s functions extend beyond those undertaken by SOCA, so the extended exemption provided for in the Bill is significant and needs justification. Police, immigration services and customs are not exempt and the National Crime Agency will effectively be covering the work of these agencies, so there must be an argument for not exempting from the operation of the Freedom of Information Act additional functions taken on by the NCA from the NPIA and the UKBA that were not previously exempt from the Act.
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.
Proceeds of Crime: EUC Report
Lord Rosser Excerpts(12 years, 6 months ago)
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Lord Rosser
My Lords, I thank the noble Lord, Lord Hannay of Chiswick, for his very helpful opening speech, for the work that he and his committee have done on the draft directive that we are discussing and which we broadly welcome, and for the report that has been presented to us.
We await the Government’s response with interest, but I understand that a decision has now been taken to put back the scheduled debate upon the draft directive in the other place. It was scheduled to take place tomorrow. No doubt the Minister will confirm whether that is the case and, if so, will tell us why and, unless the reason is a lack of time in the other place tomorrow, why the Government considered it appropriate to proceed with our debate today.
The treaty of Amsterdam gave the Council the power to legislate in this field of police and judicial co-operation, since when four framework decisions and one decision have been adopted covering the area that we are considering today. The framework decisions require member states to enable confiscation, harmonise confiscation laws and provide for mutual recognition of freezing orders and confiscation orders. The Commission’s view is that member states have been slow in transposing the framework decisions on harmonising confiscation laws and providing mutual recognition of freezing orders and confiscation orders, and that the relevant provisions have often been implemented in an incomplete or incorrect way. The noble Lord’s committee has made it clear that it finds this most unsatisfactory, and it would be helpful to know if that is also the Government’s view.
The new draft directive appeared at one stage to have been expected by the Commission to strengthen the EU legal framework on confiscation through allowing more third-party confiscation and extended confiscation, and to facilitate the mutual recognition of non-conviction- based confiscation orders between member states. As the committee’s report states, though, in actual fact the draft directive is silent about mutual recognition, and the committee expressed its concern at the failure of the draft directive to deal adequately with the mutual recognition of extended confiscation orders and to deal at all with the mutual recognition of civil recovery orders. Once again, it would be helpful if the Minister said whether that concern is shared by the Government.
The principal issue considered in the report from the noble Lord’s committee is whether the Government should opt in to the proposed directive, and it is in no doubt that they should. The noble Lord’s committee has drawn attention to the very small proportion of the proceeds of serious organised crime that is currently recovered, has observed that confiscation would be a more effective weapon if there were better co-operation at international level and has stated that a failure by the Government to opt into a measure setting out minimum provisions to be adopted by member states would be against our national interest, since it would be in our national interest for all member states to introduce tougher measures on the confiscation of criminal assets. The committee also expressed the view that not opting in would send entirely the wrong message to our partners about the Government’s attitude to international co-operation. What is the Government’s response to this case for opting in that the committee has made in its report?
The Government have stated in their Explanatory Memorandum that they take a case-by-case approach to the application of the opt-in protocol and that, in this instance, the issues that they will need to consider in particular are: the ability to support or develop our asset recovery programme; wider domestic developments in tackling organised crime; the burden on the legislative programme; cost; and association with other international developments. The committee was clearly underwhelmed by the strength of the issue of,
“burden on the legislative programme”,
describing it as “lacking in merit”, bearing in mind that member states will have two years from the date of adoption of the draft directive in which to transpose it into national law, and bearing in mind that the Government consider that United Kingdom law already complies with most of the substantive provisions of the directive. In the light of the comment in the committee’s report, will the Minister say if,
“burden on the legislative programme”
is still seriously being advanced as an issue that needs considering when determining whether or not to opt in?
A decision on whether or not to opt in needs to be taken, as I understand it, by the middle of June, since the directive will apply to the United Kingdom only if by 15 June the Government notify the President of the Council that we wish to take part in the adoption and application of the directive—in other words, to opt in.
In the later paragraphs of their Explanatory Memorandum, the Government make a number of points that, frankly, could be construed as the basis of developing a case for not opting in. While the committee has made an argument in its report for opting in, and indeed strongly supports taking that course of action, the Explanatory Memorandum appears to lack any particularly positive statements about the draft directive. I hope that the Minister will give us an indication of the Government’s current thinking on the draft directive, although maybe, if it is true that there has been a hiccup that has led to the debate in the other place being put back, we shall find that the Minister is no longer in a position to say anything very much.
It would be helpful, though, if he could say what further developments there have been since the Explanatory Memorandum of 26 March that update any of the issues or points referred to in that memorandum. It would also be helpful if he spelt out in more detail, if they have not yet made a decision, the specific points being considered and why they are crucial under the five issues that the Government are considering before deciding whether or not to opt in, which I referred to earlier and which are set out in paragraph 26 of the Explanatory Memorandum. Included in those five issues is the issue of cost. What conclusions have the Government reached on this score, and why?
The report of the committee of the noble Lord, Lord Hannay, sets out, in paragraphs 14 and 15, certain legal questions. What is the Government’s response to those questions and points? The committee also says in paragraph 20 of its report that the joint action and certain provisions of the two framework decisions are to be repealed and replaced, but only,
“in relation to Member States participating in the adoption of this Directive”.
The report goes on to say on this point that if the United Kingdom does not opt in, it will continue to be bound by the existing measures and that this would be an unfortunate situation and an unnecessary complication. Do the Government share the committee’s view on this point?
The House of Commons European Scrutiny Committee said in its report last month that,
“the draft Directive nevertheless represents a significant extension of EU competence on such matters as third party and non-conviction based confiscation and on the freezing of property, in some cases without first obtaining a court order”.
Is that the Government’s view as well? If so, is it this point that is the Government’s principal concern over opting in?
We share the committee’s view about the importance of co-operation at the international level on the freezing and confiscation of the proceeds of cross-border organised crime. I hope that today the Minister will be able to tell us more about the Government’s stance on the draft directive, including issues that are still of concern to them or are unresolved and which may still be precluding a final decision on whether or not to go down the road recommended by the noble Lord’s committee—namely, that we should opt in to this draft directive.
The Minister of State, Home Office (Lord Henley)
My Lords, as always, I welcome the opportunity to debate the draft directive. I offer my thanks to the noble Lord, Lord Hannay, for his introduction, particularly for his explanation of the process, for his explanation of the Ashton undertaking and how we are supposed to take these things forward. It is obviously right that the Government should listen to the expertise that we have in this House and on the European Union Committee. On that basis, I welcome the presence of the noble Lord, Lord Roper, the former chairman of that committee; the noble Lord, Lord Boswell, whom I can no longer call my noble friend now that he has taken over that job; and all those who offer their expertise, particularly the noble Lord, Lord Hannay. The Government will certainly bear all that in mind before making their decision on whether to opt in or out.
At this point I must offer an apology to the House as, at this stage, the Government have not made a decision as to which way we should go. As the noble Lord, Lord Hannay, made clear, if we want to opt in at an early stage, we must do so before 15 June. A decision will certainly be made before then. However, it is always possible that we could opt in after final decisions have been taken and the whole adoption stage has been completed, when we have seen what has been agreed. There are very difficult decisions to be made. I hope I will be able to explain exactly why we have not yet made a decision and give some thought to our reasoning behind the different options before us.
Before I do so, I will say a little about the timing of this debate and the debate in another place, which was raised by the noble Lord, Lord Rosser. I know that the noble Lord is immensely experienced and has been in this House for a number of years. However, he obviously does not realise that things operate on a very different basis between the two Houses in this particular matter. In line with the Ashton undertaking, the appropriate time for this debate to take place was a matter for the noble Lord, Lord Hannay, as chairman of the sub-committee, to negotiate with the usual channels. It was agreed some weeks ago—before we prorogued, I think—that it would take place around now. Quite rightly, it went ahead. Even though the Government have not come to their final decision, it would not have been right for me or anyone else to go to the noble Lord, Lord Hannay, to suggest that it should be put off to a later date, purely because we had not made a decision.
The debate in another place is on a government Motion, which is completely different. It would not be right for the Government to table a Motion before they have made up their mind. However, as the noble Lord is probably aware, the Government will make up their mind before 15 June. We will have that debate and another place will have a debate—I give that assurance—before 15 June.
Lord Rosser
I think I understand the procedures. Will the Minister just confirm whether it is true that the debate in the other place was scheduled to take place tomorrow and that it has been put back?
Lord Henley
My Lords, my understanding is that a debate was to take place tomorrow. It was put back because the Government have not come to a final decision. There is nothing wrong with that. The Government want to make the right decision. All that I make clear to the noble Lord, who obviously does not understand these procedures, is that we will have done so before 15 June. That is our timeline. I give the noble Lord that assurance. The noble Lord seems to imply that there is some sort of conspiracy here. The Government want to get it right and must put down a Motion for the debate. Procedures in this House are different, which is why we do things differently. The noble Lord should have understood that.
I want to explain relatively briefly what our thinking is and not which way we are going—as I have said, a decision has not yet been made—but the pros and cons of the different options before us. I want to make it quite clear to the House that we believe that asset recovery is a very important weapon in our efforts to tackle organised crime. We believe that the proceeds of crime are not only a central motivation for organised criminals but that they also fund further criminality. Freezing and confiscating criminal finances hurts organised criminals and protects the public.
The United Kingdom has advanced legislation in this area, as other noble Lords have alluded to, and we have had real operational success. In 2010-11, United Kingdom law enforcement agencies froze or recovered more than £1 billion worth of criminal assets. The amount of assets recovered has increased year-on-year since the Proceeds of Crime Act 2002 was passed. As my noble friend Lord Hodgson made clear, the United Kingdom is recognised as a leader in this field. We still want to do more, particularly on international asset recovery, as we made clear in our organised crime strategy in July 2011. In 2008, it was estimated that some £560 million of UK criminal assets was held abroad. Improved international co-operation is a necessary step towards recovering that money. That is why we welcome the aims of this directive. It is right that we seek, as leaders in this field, to drive up standards throughout the European Union and to find better ways of working together with our EU partners. To this end the directive covers confiscation following a criminal conviction, extended confiscation, third-party confiscation, non-conviction-based confiscation, and powers to freeze assets.
We must, of course, consider carefully the contents of the draft directive. The Government’s analysis is in progress. Our recommendation on the opt-in decision will be communicated to the parliamentary scrutiny committees at the first opportunity. The United Kingdom already has all of the powers envisaged by the directive in our Proceeds of Crime Act 2002. In almost all areas we exceed the minimum standards established by the directive. There are, however, areas where changes to domestic legislation might be necessary were the final version of the directive to include the same provisions as this draft.
Some aspects of the directive’s provisions on non-conviction-based confiscation, extended confiscation, and freezing without a court order do not sit easily with our domestic regime. Without prejudice to the Government’s final position, it should be noted that the directive as drafted appears to pose a risk to our domestic non-conviction-based confiscation regime. Our non-conviction-based confiscation powers are civil law measures—they allow prosecution agencies to take action against property that they think has been acquired through unlawful activity. The action is not taken against an individual and no criminal conviction is necessary. It is a particularly useful tool for tackling the high-level, organised criminals against whom it is difficult to achieve a criminal conviction. In 2011-12, some £20 million worth of criminal assets were recovered using non-conviction-based confiscation powers.
Due to its criminal law basis, the directive risks placing non-conviction-based confiscation measures in the UK onto a criminal law footing, opening new avenues of legal challenge to our powers. If criminal law procedural protections and a criminal law standard of proof were introduced, our domestic regime could be severely weakened and our law enforcement agencies would find it harder to disrupt the workings of some of the most dangerous organised criminals.
The Government are considering whether the best approach is to opt in to the directive and attempt to negotiate out those aspects that conflict with our domestic regime; or whether the conflict in some areas is sufficiently serious that not opting in at this stage is the better approach. While the directive does not offer direct benefit to the United Kingdom’s domestic regime, tougher legislation and more effective action elsewhere in the EU will help tackle those cross-border criminals who cause harm in the UK, as the European Union Committee said in its report, and for that we are grateful. We believe that it is vital that we get the detail right and we must consider the effect of the directive on our domestic regime and its likely operational impact.
The noble Lord, Lord Hannay, wanted to know whether we would press for mutual recognition to be included in the directive from both conviction and non-conviction-based confiscation. We would like to see effective mutual recognition arrangements for both conviction and non conviction-based confiscation. This aim would be better achieved through separate instruments. The directive is a minimum standards directive; obviously, we will continue to work with our partners to seek further new mutual recognition instruments from the Commission.
None the less, it is certainly our intention to play an active part in the negotiations on this directive, irrespective of whether we opt in or not at the outset: that is, before 15 June, the date to which the noble Lord, Lord Hannay, referred. The United Kingdom’s internationally recognised experience and expertise in asset recovery will help us to achieve an influential position in negotiations. The directive offers us a valuable opportunity to raise the standard of asset recovery legislation in the EU, enhance our co-operation with member states, and increase our powers to recover criminal assets held overseas. I repeat the fact that the expert views of the EU sub-committee will play a very important part in the Government’s thinking as they decide whether to opt into this directive. For that I am very grateful, and again we will take note of everything that has been said.