Crime and Courts Bill [HL]
Lord Taylor of Holbeach Excerpts(12 years ago)
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“Immigration cases: appeal rights; and facilitating combined appeals
(1) In section 84(1)(b) of the Nationality, Immigration and Asylum Act 2002 (grounds of appeal: decision unlawful because of race discrimination etc by Northern Ireland public authority) after “1997” insert “or by virtue of section 29 of the Equality Act 2010 (discrimination in the exercise of public functions etc) so far as relating to race as defined by section 9(1) of that Act”.
(2) In section 99 of that Act (pending appeals lapse on issue of certificates)—
(a) in subsection (1) (list of provisions under which certificates may be issued) omit “96(1) or (2),”, and(b) in the title, for “96 to” substitute “97 and”.(3) For section 47(1) of the Immigration, Asylum and Nationality Act 2006 (decision that person is to be removed from the United Kingdom may be made while person can bring appeal) substitute—
“(1) Where the Secretary of State gives written notice of a pre-removal decision to the person affected, the Secretary of State may—
(a) in the document containing that notice,(b) in a document enclosed in the same envelope as that document,(c) otherwise on the occasion when that notice is given to the person, or(d) at any time after that occasion but before an appeal against the pre-removal decision is brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002,also give the person written notice that the person is to be removed from the United Kingdom under this section in accordance with directions given by an immigration officer if and when the person’s leave to enter or remain in the United Kingdom expires.(1A) In subsection (1) “pre-removal decision” means—
(a) a decision on an application—(i) for variation of limited leave to enter or remain in the United Kingdom, and(ii) made before the leave expires,(b) a decision to revoke a person’s leave to enter or remain in the United Kingdom, or (c) a decision to vary a person’s leave to enter or remain in the United Kingdom where the variation will result in the person having no leave to enter or remain in the United Kingdom.””
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I shall speak also to Amendment 124, which is in the group.
The new clause to be inserted by Amendment 118 makes three separate changes to the legislation governing immigration appeals. The first two respond to amendments tabled in Committee by my noble friend Lord Avebury.
Subsection (1) of the new clause will reinstate a ground of appeal against an immigration decision on race relations grounds. Such a ground of appeal existed prior to the commencement of the Equality Act 2010, but was removed by the consequential amendments made under that Act. The Government’s stated policy remains that there should be a ground of appeal on race relations grounds and we have therefore brought forward this amendment to reinstate a ground of appeal on those grounds.
Subsection (2) of the new clause corrects an anomaly in Section 99 of the Nationality, Immigration and Asylum Act 2002 identified by my noble friend Lord Avebury in Committee. Sections 96 and 99 of that Act are designed to stop repeated appeals being used to frustrate the immigration system. Where the Secretary of State makes an immigration decision that carries a right of appeal, she may also certify that decision on the basis that the application relies on issues that were, or could have been, raised earlier or dealt with at a previous appeal. The effect of certification is to prevent an appeal being brought. However, there is a lack of clarity within the 2002 Act about the effect of certification on appeals that are already under way.
Section 96(7) of the 2002 Act states that a certificate has no effect in relation to an appeal that is already under way, but Section 99, which makes provision for the interaction between certification and appeals in progress, states that a certificate would cause the appeal to lapse. It is government policy that a decision to certify should not cause an appeal that is already under way to lapse, and the contradiction needs to be resolved so that the effect of the legislation is clear. This technical amendment to Section 99 of the Nationality, Immigration and Asylum Act 2002 therefore seeks to clarify that certifying a decision under Section 96 of that Act does not cause a pending appeal to lapse. I thank my noble friend Lord Avebury for bringing that issue to the attention of the House.
Subsection (3) of the new clause will clarify when a decision to remove a person from the United Kingdom can be given in relation to a decision to refuse to vary leave, to curtail leave or to revoke leave. As noble Lords will be aware, this House has considered this issue before. In 2006, the House supported an amendment which then became Section 47 of the Immigration, Asylum and Nationality Act 2006. It provided a power to make immigration removal decisions where a person has statutorily extended leave to remain in the United Kingdom. Statutorily extended leave is leave which continues where an appeal can be brought against a decision to refuse to vary, to curtail or to revoke leave.
The intention behind Section 47 was that decisions should be made simultaneously, thereby allowing any appeal against removal to be heard at the same time as the appeal against the variation or curtailment decisions.
However, the Upper Tribunal in the recent case of Ahmadi concluded that secondary legislation prevents the simultaneous service of these two decisions. It concluded that the removal decision cannot be made until written notice of the decision to refuse to vary a person’s leave to remain has been given to that person. The impact of this decision is that Section 47 no longer works as it was intended, with the consequence that a removal decision can only be made after the initial appeal against a refusal to vary leave, or a decision to curtail leave or revoke leave, had been heard. The removal decision itself would then generate a second right of appeal. The effect will be to add in unnecessary, and indeed unacceptable, delays and costs into the appeals and removal process.
We are challenging the Upper Tribunal’s decision before the Court of Appeal but we have concluded that we should act swiftly to put the effect of Section 47 beyond doubt and restore the construction of that section which Parliament intended when enacting the 2006 Act. The consequential amendment to Clause 33 ensures that the provisions made by the new clause can be extended to any of the Channel Islands or the Isle of Man by Order in Council. I beg to move.
Lord Lester of Herne Hill
My Lords, perhaps I may add to what my noble friend has just said. My wife is an immigration and asylum judge and from time to time she and her colleagues are sent for training in order to try to understand what the Home Office is producing. I hope that she does not mind my mentioning this, but she and her colleagues find themselves in a quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office. There are two people in the Chamber who will understand these amendments—one is the Minister and the other is my noble friend Lord Avebury. I do not understand them. For me to understand them I would have to read the three different Acts of Parliament, all of which are put in play in these amendments, and I would have to listen to and read again what has been said by the Minister. The net result would be that we will continue to have a network of regulations that it is quite impossible for ordinary men and women, including Members of this House, to understand unless and until the Home Office does what we have repeatedly asked it to do for the past many years—to consolidate the legislation into a single measure that can be understood by users, whether they be would-be immigrants, refugees or asylum seekers, or lawyers, NGOs or the public. At the moment it is almost incomprehensible and lacks, therefore, legal clarity. I very much hope that, when I do understand these amendments, what I have just said may be listened to by the Home Secretary and other Ministers who will instruct their officials, please, to come up with consolidating legislation that we can understand.
Lord Taylor of Holbeach
My Lords, I would like to comment on that because one of my responsibilities within the Home Office is regulatory reform. I agree with my noble friend that no area is more complex than the whole business of the Immigration Rules and the procedures surrounding them. The noble Lord, Lord Curry of Kirkharle, is aware of my involvement in this—indeed, the Better Regulation Executive is seeking to support the Home Office in this endeavour. I will bear in mind the comments of my noble friends because I am a great believer in the law being as simple and as clear as possible so that people can understand and operate it in the most effective way. I note very much what my noble friend has said. I hope he will understand that these amendments are designed to achieve the purpose of clarifying the law in areas of ambiguity.
Lord Lester of Herne Hill
My Lords, many years ago, in 1967, I did the first case in Strasbourg against the United Kingdom: a case called Mohamed Alam & Mohamed Khan. Sir Roy Wilson had produced his report advocating an appeal system. It was as a result of the Strasbourg case and Sir Roy Wilson’s report that the immigration appeals system was first introduced —a system which has gone on until now. I strongly support the explanations and powerful speeches given by the noble Baroness, Lady Smith, and my noble friend Lord Avebury.
What is the situation at the moment? Instead of there being a proper process at first instance before there is an appeal—a process of proper decision-taking based upon the kind of common-sense approach that the noble Baroness, Lady Smith, is advocating—mistakes are made quite frequently. When the appeal comes to someone who is an immigration and asylum judge, often no presenting officer is produced by the Home Office to present the government case or there is no one to represent the applicant. My wife will come home at the end of the day and say, “I have now for the first time to take a proper decision myself as though I were doing it at first instance because I have nobody to help me on either side and I find that the initial decision is defective. I now, on appeal at great public expense, have to correct mistakes which should not have been made in the first place at first instance. The only way in which those mistakes can be corrected is by having an appeal system. It is the only safeguard”.
The system now resembles the fairy story, The Little Prince, which noble Lords may remember, in which the boa constrictor swallows a sheep. One sees the lump of the sheep passing along the boa constrictor. The sheep is the process of taking decisions in this area. Instead of the process being properly determined at first instance and making the need for appeals rare, a great lump, the creature, passes along the snake, which leads to a first-instance appeal, an upper-tier appeal and judicial review.
The remedy is simply the common-sense one. One has at first level as much information as possible for a well informed decision. The advantage of the amendment tabled by the noble Baroness, Lady Smith, is that it would at least enable proper communication between the officer and the applicant or the applicant’s representative. I can see no argument against that, especially if we were to abolish appeals, which I very much hope will not be the case.
Lord Taylor of Holbeach
My Lords, I will address Amendment 118ZA in the name of the noble Baroness, Lady Smith. Before I do so, perhaps I may say that I understand that the contributions made by the noble Baroness and my noble friends Lord Avebury and Lord Lester are designed to build a more efficient system. In my response, I hope that I can demonstrate that that also is the Government’s intention.
The UK Border Agency publishes supporting documents guidance specifically for family visitors. It provides extensive guidance in several languages on the type of documents that customers should consider submitting. Perhaps I may elaborate on that. The UKBA provides guidance on how to fill in the visa application form. It is translated into six languages—Arabic, Chinese, Hindi, Russian, Thai and Turkish. Improvements are also being made to the online visa application process, which will be completed in May 2013. All that is available on UKBA’s website for those wishing to make applications. I should also tell noble Lords that if a refused application is received, the UKBA writes to the refusee to tell them what is missing from their documentation. I believe that this is a valuable way to make sure that the process is as user friendly as possible.
If the amendment in the name of the noble Baroness, Lady Smith, was successful it would put a significant resource burden on entry clearance officers to make inquiries with the minority of applicants—it is a minority of applicants—who do not provide sufficient information with their application. The Government have not been persuaded by the noble Baroness that this is right. Of course there is work to do on continuing to improve the application process. However, the onus must be on applicants to satisfy visa officers that they meet the requirements of the Immigration Rules and to ensure that they have prepared the application properly before submitting it.
Lord Avebury
Will my noble friend deal with the point I made? The exercise of the right of appeal is not only for the purpose of getting the decision reversed but to prevent there being a blot on a person’s record, which may seriously hinder their future ability to travel anywhere?
Lord Taylor of Holbeach
I do not accept that at all. If someone’s application to visit this country is refused, then I regret to say that it must be because either they have failed to fill in the application correctly or there are substantial reasons why they should not be allowed to make that visit. I cannot accept the premise of my noble friend’s argument.
The Government are not persuaded by the case for my noble friend’s Amendment 118A. To accept it would introduce a right of appeal for people who have, for example, practised criminal or other dishonest behaviour, while those who have acted honestly would not have an appeal. It cannot be right that that type of behaviour is rewarded.
Regardless of whether an application is refused, relying on a general ground of refusal, the applicant is free to re-apply setting out why the previous refusal was unjustified. All refusals on general grounds are authorised or reviewed by entry clearance managers before being served. If refused under general grounds, it is also open for an applicant to make a fresh application by providing new evidence which an entry clearance officer will take into account. A refusal under paragraph 320 of the Immigration Rules may also be challenged by a judicial review. Prior to making decisions, all entry clearance officers have to pass a three-week training course, part of which focuses on making decisions using paragraph 320 of the Immigration Rules. There is also an e-learning package specifically relating to the sub-paragraphs of paragraph 320 that may lead to an applicant’s future applications being automatically banned. This package is completed by entry clearance officers during their induction training on arrival at their decision-making post.
I think I have demonstrated that the process is thorough and that there will be considerable advantage to the efficiency of the system and, indeed, to applicants themselves if the Government’s proposals are approved. I trust that I have been able to satisfy my noble friend.
Baroness Smith of Basildon
My Lords, the Minister has always been generous with his time and courteous in his response, but I am sad that he is also disappointing. He seems to have relied on existing guidance being adequate and user-friendly. I thought that my comments that the genuine mistakes that are made could be more easily rectified than they are under the current process or the process proposed by the Government indicated that it is not quite user-friendly. No matter how many languages are used, if people do not understand what is required of them they cannot provide it. Perhaps the Minister thinks the guidance is adequate. If it were adequate, applicants would submit all the information required. There is no interest for applicants to make a mistake or not to supply something that they should.
It beggars belief and is against natural justice that the appeal process can be scrapped and that the Government are not taking steps to improve the original decision-making when the figures show that 37% of appeals are successful.
Lord Taylor of Holbeach
The allegation that we are not taking steps to improve the original decision-making has been refuted by what I said in my response to the amendments. I do not want to make an argument out of this issue, but the Government are very much focused on trying to ensure that the decision-making process is efficient and fair to applicants, as well as to taxpayers.
Baroness Smith of Basildon
I do not doubt that that is the Minister’s intention, but when we hear that the success rate of appeals against family visit visa refusals has risen from 19% in 2004 to 37% in 2010, that does not sound as if the system is getting more efficient, rather that the system is less efficient.
The point I am making is about removing the appeal process at that time. We heard from Sir John Vine about the huge backlog of cases that are currently in the system. There are 100,000 envelopes unopened, including 14,000 containing recorded delivery information. I think that our amendment is a common-sense approach. Remarkably, even the noble and learned Lord, Lord Lester of Herne Hill, who takes a legal approach to these things, agrees with me on this point. I am seeking to be helpful to the Minister and the Government. He may think there are times when I am not, but on this occasion I am seeking to be helpful.
The Minister spoke of the letter which is sent to applicants on reasons for refusal. That reason for refusal may be one very minor, technical matter that can easily be resolved via a phone call. I am extremely disappointed by the Minister’s response. I hope he will take this away and consider further the points that I have made. I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
My Lords, the noble Baroness described me as “noble and learned”. I should not be described in that way because I am not a former law officer or Law Lord—and I am not sure about being noble. However, it is true that I look at matters as a lawyer. I cannot help that; it is a problem that comes with 40 years of doing it.
I am interested to know what the Minister’s response would be to the remark made by the noble Lord, Lord Pannick, when he described this as “arbitrary”. That seems to be a correct way of describing it. Can the Minister explain why, if the amendment tabled by the noble Lord, Lord Avebury, were rejected, the Government would not be highly vulnerable to a legal challenge in our courts or, I dare say, the European Court of Human Rights?
Lord Taylor of Holbeach
My Lords, we set out in Committee the reasons for Clause 27. It demonstrates a current anomaly in legislation that allows high-harm individuals to return here to appeal the decision to cancel leave, despite being excluded from the United Kingdom by the Secretary of State.
Exclusion from the United Kingdom is a key tool in tackling those who seek to cause harm to the United Kingdom. Exclusion is used to tackle a range of conduct including terrorist-related activity, serious criminality and engagement in unacceptable behaviours. The exclusion power is used sparingly and is reserved for those who are considered to be the highest-harm cases. It is therefore crucial that once the Secretary of State makes such a decision, it is given full and immediate effect. It should not be undermined by a separate immigration decision, taken only to give effect to the exclusion, and the accompanying rights of appeal.
Of course any such decision by the Secretary of State should be open to challenge and review by the courts. No one is denying that. However, the Government believe that, given the nature of these cases, it is wholly reasonable that judicial scrutiny of the facts should be carried out while the individual remains outside the United Kingdom. When noble Lords consider the type of conduct that has led to these decisions by the Secretary of State, it seems to be an entirely reasonable and proportionate proposition.
Lord Maclennan of Rogart
The point has already been made in this debate that if such an appeal is made, the appellant is put at a very grave disadvantage as a result of difficulty in communicating with counsel and in speaking to witnesses who may have something to say that is relevant. The rule of law cannot be properly discharged if the Minister cannot find more support for the absence of the appellant.
Lord Taylor of Holbeach
I tend to disagree with the noble Lord. I cannot see why it should be possible to allow somebody whom the Secretary of State for the Home Department has decided to exclude to return to this country purely to pursue an appeal against that decision. I do not accept that that is reasonable and that is why we have included this clause in the Bill.
Lord Pannick
I am grateful to the noble Lord. Is not the point that however reprehensible the allegations against the individual, if they are present in this country then they are entitled to remain and pursue an appeal? The question is whether, because of the accident that they may be abroad for a day or two for entirely understandable compassionate reasons and because the Secretary of State takes advantage of that absence to make a decision, they should then be unable to pursue an appeal while within the United Kingdom.
Lord Taylor of Holbeach
I think we disagree on that. Noble Lords will understand the premise on which the Government are basing their decision. It cannot be right to allow someone to return to this country when the decision has already been made by the Secretary of State that that person is considered to be undesirable to admit to this country and that is the reason for their exclusion. I should perhaps help the debate by giving some figures. Since 2005, 426 individuals have been excluded on the grounds of national security, unacceptable behaviour, serious criminality or war crimes. Annual figures have varied over the years from 111 in 2007 to 40 last year. Incidences of the decision to exclude an individual with an accompanying decision to cancel leave have totalled 30 over that period. The most was seven in one year and the fewest was two. This year to date: nil. I hope that helps noble Lords to put this matter in perspective. The Government have a responsibility for the security of the country and I hope that will carry some weight with noble Lords in this argument.
I will now carry on with what I was intending to say. Clause 27 seeks to provide the Secretary of State with a certification power where she decides that the decision to cancel leave under Section 82(2)(e) of the Nationality, Immigration and Asylum Act 2002 was taken on the grounds that the individual’s presence in the United Kingdom would not be conducive to the public good. The individual must be outside the United Kingdom at the time of the decision for the Clause 27 provision to have effect, the effect being that on certification the in-country right of appeal under Section 92 of the Nationality, Immigration and Asylum Act 2002 no longer applies to such a decision, which means that the person has an appeal from outside the United Kingdom. To be clear, the individual will still have a full merits appeal but that will be exercisable from outside the United Kingdom instead of from within the United Kingdom. We accept that the power to remove appeal rights from the United Kingdom to abroad must be reserved for highest-harm cases. This is why we have restricted the application of the certification power to individuals where the decision to cancel their leave is based on the Secretary of State’s assessment that their presence in the United Kingdom is not conducive to the public good. We have also expressly stated that this applies only to individuals outside the United Kingdom at the time of that decision.
Such cases have been, and will remain, the exception rather than the norm. Clause 27 seeks to maintain the operational integrity of the Secretary of State’s power to exclude an individual from the United Kingdom. Such decisions are not taken lightly and are reserved for the highest-harm individuals. It is therefore imperative that such a decision remains operationally effective, pending judicial scrutiny. For these reasons I cannot support Amendment 118D, which seeks to remove Clause 27 from the Bill. Similarly, Amendment 118C could seriously undermine the Government’s ability to secure our borders against individuals who pose a threat to the United Kingdom. The amendment would exclude from Clause 27 those individuals who are stateless, those who have previously been granted leave to enter, those who remain based on a successful asylum or human rights claim, and those who raise human rights or asylum issues in their grounds for appeal. As previously stated, it is right that we provide protection to those in need and the Government remain committed to their international obligations to such individuals. However, the Government also have an important obligation to protect the public from high-harm individuals whose actions pose a threat to national security or the rule of law.
Lord Lester of Herne Hill
I am sorry to interrupt the Minister but I am now genuinely bemused. We know from the Chahal case that the Special Immigration Appeals Commission was set up so that appeals could be dealt with through closed material proceedings, protecting national security and the interests of justice. I welcomed that because I care about national security as well as justice, and that scheme had to be introduced because the European court said so. Now we are in a position where the Government concede that, if the high-harm person is within this country, they should have the necessary right of appeal. The noble Lord, Lord Pannick, made the point that if the high-harm person happens to be abroad for compassionate reasons, it is arbitrary and irrational that that person should not be in as good a position as if he were in this country. Simply using the Home Secretary’s power to say that someone’s presence is not conducive to the public good, which is what happened in Chahal, is arbitrary. That is what is bewildering us. We cannot understand why the interests of national security should not, at this point, understand the needs of the rule of law.
Lord Taylor of Holbeach
I am not a lawyer but I am, I hope, filled with common sense. It strikes me as being quite nonsensical to allow an individual back into this country to pursue an appeal against exclusion. The exclusion decision, if I may say so, is taken on grounds that the noble Lord has admitted may well include protecting national security. Indeed, criminality and protecting national security are the only grounds on which high-harm individuals may be pursued. Their right of appeal is not removed. The question is whether they should be readmitted to this country to pursue that appeal. I suggest that is nonsensical and I cannot accept the noble Lord’s position on the matter.
I was explaining that for many of these cases the primary objective is to protect the public from individuals where credible evidence suggests involvement in terrorist-related activity or serious criminality. In other cases, it is to protect the public from individuals intent on inciting others to commit crime or on creating divisions between communities. Therefore, the legislative proposal is designed to target the highest-harm cases, and it is proportionate, for the protection of the public, to ensure that any appeal for which a full-merits appeal right still exists is from outside the United Kingdom.
Amendment 118C would potentially provide every individual refused under this provision with an in-country right of appeal as they would simply need to raise human rights or asylum grounds in their appeal. That cannot be right and for that reason we are unable to support the amendment. I hope that, in the light of my remarks, my noble friend Lord Avebury will understand the drivers behind this clause and why the Government have to ask him to withdraw his amendment.
Baroness Butler-Sloss
I have been listening to this debate without any particularly strong views either way. However, perhaps the Minister can assist with this question. On the assumption that a stateless person, for instance, or indeed anyone else who has been refused a return, is outside the country somewhere, how on earth does he or she actually continue an appeal?
Lord Taylor of Holbeach
My Lords, the process of appeal is open to anybody and the circumstances in which they have found themselves is a matter for them. This country and its Government have decided that their presence in this country is not conducive to the public good, which I think is a reasonable decision for the Government to make. It is open to challenge through the judicial process and that individual still has a right of appeal. It is not for me to suggest the details of ways in which that appeal should be processed.
Lord Gilbert
I, too, have been listening very closely to this debate, with no expertise whatever. However, I take on board the concerns of various noble Lords. Could not the matter be satisfactorily resolved by placing on the person making a decision the requirement to let the individual under suspicion know when a decision is going to be taken?
Lord Taylor of Holbeach
I think that would be counterproductive. If the noble Lord thinks through the circumstances of that question, he will understand that.
Lord Woolf
Am I right in thinking that this form of appeal from outside the country has been part of the immigration process for a substantial period? In addition, is it not the case that it can be a written process and that forms can be used for the purposes of the appeal?
Lord Taylor of Holbeach
The noble and learned Lord is perfectly correct in that regard.
Lord Mackay of Clashfern
My Lords, just before my noble friend sits down, I would like to understand the position. Somebody is outside the country having had leave to remain in it previously; the Secretary of State gets information to suggest that that person would be dangerous to the country if he or she returns; and the Secretary of State decides, on that information, that that is so. Is the position then that, in order to comply with the amendment of the noble Lord, Lord Avebury, the Secretary of State would have to allow that person, whom he or she believes to be a dangerous person to the security of the country, back to lodge an appeal? Why should that be? Why should the Secretary of State allow somebody, whom he or she thinks to be a danger to the country, to come back into the country solely for the purpose of appealing against that judgment? If he does come back into the country, there is at least a risk that his activities will not be confined to appealing but may include doing what the Home Secretary has considered constitutes the possibility of danger to the country.
Lord Avebury
My Lords, the crux of the matter is that the Minister suggests that credible evidence exists for the Home Secretary to have made this decision that the person has been involved in serious criminality, terrorism and so on. The Secretary of State waits until the person goes abroad for some reason, whether it be for compassionate reasons, as the noble Lord, Lord Pannick, has suggested, or for any other reason, and then pounces—
Lord Taylor of Holbeach
I realise we are on Report, but I will just say to the noble Lord that it may be that the conduct that leads to the Home Secretary making this decision takes place while this individual is abroad. I think the notion that this is a premeditated trap is false. It is more to do with the possibility that the individual, while abroad, makes contact with someone, or evidence comes to light as to their true intent, or what they might do when they return to this country becomes apparent, and the Home Secretary wishes to deal with the problem.
Baroness Smith of Basildon
My understanding of the case concerning Mr Braithewaite and Miss Williams is that the defendant was charged and convicted of a Section 5 Public Order Act offence for the homophobic insults. There were other offences as well, but homophobic insults were a significant part of that prosecution. It is for the Government to bring forward what they intend to do. I am not against change or further discussion on this but, on the evidence today, I want to see the evidence from the Government in much greater detail and to know exactly what the outcomes and the consequences would be for those who the law currently protects.
Lord Taylor of Holbeach
My Lords, I understand the interest that has been shown in this debate. I thank the noble Baroness, Lady Smith, for at least demonstrating that the issues that the House has to consider are perhaps a little more complicated than some of the speeches have implied. It is important to stress that there was a further sentence to the letter of which the noble Lord, Lord Dear, kindly sent me a copy. After the comments about the ability to prosecute, the letter continued:
“However, I appreciate there are other policy considerations involved”.
He is right that the Government have to consider the full implications of this amendment.
Let us make it clear: the Government are not seeking to change the law. It is this debate and this amendment that are seeking to change the law. The law has existed and has protected free speech, and incidents have been demonstrated. But we need to be properly considerate before we change the law in this area.
Lord Taylor of Holbeach
I am sorry, but I am not prepared to give way. I want the House to hear the argument that has gone through the Government.
We have considered this matter at great length—for too long, as the noble Baroness has suggested—and we have reached the firm view that Section 5 should not be reformed. There is insufficient evidence that the removal of the word “insulting” would be beneficial overall. I regret that this decision will not be welcomed by everyone, but I assure the House that it has been given careful consideration. I regret to say that should the noble Lord, Lord Dear, seek to test the opinion of the House, I will urge noble Lords—
Lord Morris of Aberavon
Would the noble Lord like to comment on the fact that the Director of Public Prosecutions has changed his mind? How do the Government respond to and answer that change of decision?
Lord Taylor of Holbeach
The letter is available, no doubt, from the noble Lord, Lord Dear, in full. I suggest that noble Lords read the full text of the letter, not just selective quotations.
Lord Maginnis of Drumglass
In so far as I understand the term “abusive”—most noble Lords will understand that term—can the Minister define in legal terms the word “insulting”? I have not heard in anything that he said tonight a proper definition of “insulting”. I have heard it defined by the Opposition Front Bench. I shall leave my question at that. Can the Minister define “insulting”?
“( ) Subsection (11) applies to section (Use of force in self-defence at place of residence) only so far as the provisions amended extend to England and Wales or apply in relation to service offences.”
Police (Complaints and Conduct) Bill
Lord Taylor of Holbeach Excerpts(12 years ago)
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Lord Taylor of Holbeach
That the Bill be read a second time.
Relevant documents: 8th Report from the Constitution Committee
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I beg to move that the Bill be now read a second time.
It is important that we remember why we are here today: the tragic events of 15 April 1989 resulted in the deaths of 96 innocent men, women, and children— 96 lives lost, and 700 people injured, many seriously. For those who survived, and those whose family members did not come home that day, the events that unfolded at Hillsborough changed their lives for ever. We must never forget that fact. Yet we are here today, 23 years on, still seeking justice—23 years of hurt and grief for the families, of not knowing the truth; 23 years suffering lies, rumours and innuendo in the media; and 23 years of the authorities actively obstructing the truth, by lying, amending statements and shifting blame for those tragic events on to the fans themselves. That is the “double injustice” to which my right honourable friend the Prime Minister referred. That is why we have brought forward this fast-track legislation: to help to tackle this double injustice.
The truth about the terrible events of that day is now known. The independent panel, chaired by the right reverend Prelate the Bishop of Liverpool, published its report in September. I take this opportunity to record our thanks to the right reverend Prelate, and the rest of the panel, for their dedication and hard work. It has provided the foundation for us to move this issue on. Its work has not only exposed the truth about Hillsborough but helped to keep the needs of the families to the forefront of all our considerations.
I shall not detain the House by thanking the many individuals who could be singled out for their efforts, but I will mention the right honourable Member in another place, Mr Andy Burnham, without whose dedicated work the panel would never have been set up. Most importantly, before I move on, I put on record my thanks and deepest respect to the families and friends of the 96 victims of the disaster, and to the survivors. I was privileged to meet some of their representatives, whose dignity and dedication to the truth is truly inspirational.
The truth exposed in the panel’s report is both shocking and disturbing. The safety of the crowd was “compromised at every level”, the ground was inadequate, and earlier warnings of the potential for disaster had not been acted on. Once the disaster started to unfold, the correct action was not taken, and the emergency response was poor. Then, in the aftermath, the authorities responsible for protecting the public and exposing the truth made a concerted effort to conceal the truth. Statements and evidence were altered. The original inquests were flawed. Attempts were made to shift blame on to the fans themselves, implying that drunken behaviour was at the root of the tragedy.
To understand the extent of the attempted cover-up is a chilling experience, but it is vital that this truth is known so that, after 23 years, we can be sure that it is not the end. For the families who have suffered years of injustice, simply knowing the truth is not enough; we now need to move from the truth to justice. It is for this reason that we have brought this Bill before the House today.
Following the publication of the panel’s report, the Independent Police Complaints Commission announced that it had launched an investigation into the panel’s findings. That is a vital step in the transition from truth to justice and accountability. The IPCC investigation will look into the conduct of all officers at Hillsborough on 15 April 1989 and all those involved in subsequent investigations. It is important to note here that the investigation will look at matters of both misconduct and possible criminality. It will consider the actions of officers currently serving with the police and those who have subsequently retired. The investigation into the Hillsborough disaster will be on an unprecedented scale for the IPCC, which estimates that 2,400 officers could be within its scope. We recognise the additional burden that an investigation of this scale places on the commission and we have made a clear undertaking to provide it with both the resources and the powers needed to conduct a thorough and transparent investigation into the panel’s findings.
Since the independent panel published its report in September, the Home Secretary, my fellow Ministers and officials have been in close contact with the IPCC. The IPCC has made clear that, in order to fulfil its obligations in the Hillsborough investigation, it needs two additional powers and it needs them urgently. Those are the two powers contained in the Bill. There have, of course, been ongoing discussions between the Home Office and the IPCC for some time regarding the powers that the commission has and whether they are sufficient. I should be very clear on this matter: those discussions are still continuing. Should it become apparent that the IPCC needs reform or further additional powers in relation to its regular, day-to-day functions, then the Government will act. If legislation is required, we will bring it forward. The fact that we have introduced this fast-track Bill is testament to our dedication to ensuring that the IPCC has the powers that it needs to function effectively.
However, those questions of wider reform are not for today. The IPCC has been very clear; it needs the two additional powers contained in the Bill in order to conduct as thorough and comprehensive an investigation into Hillsborough as possible. In order to fully investigate the tragic events of the disaster, the IPCC is clear that it will need to hear from those officers involved on the day and in subsequent investigations. The commission already has the power to call serving or retired officers to give evidence where the officer is a subject of the investigation. Officers suspected of misconduct or criminality are already required to attend an interview when they are called. However, the IPCC needs to hear from a wider range of officers; perhaps those who were simply at Hillsborough on the day and who may have witnessed conduct that the commission needs to be aware of, such as colleagues altering statements. The testimony of such witnesses will be vital to the IPCC investigations into Hillsborough.
Clause 1 extends the existing power, which compels officers who are themselves the subject of an investigation to attend the interview. The clause will provide that serving officers and police staff can be compelled to attend as witnesses. This can bite when the interview arises as part of any investigation managed by, or independently undertaken by, the IPCC. This power will apply to officers in Home Office forces and other policing bodies, such as the British Transport Police and the Civil Nuclear Constabulary. Of course, in the vast majority of cases, I expect that both serving and retired officers will attend an interview willingly, recognising the importance of assisting the IPCC to investigate as serious a tragedy as Hillsborough. Any decent human being would.
The power in Clause 1 applies to individuals still serving with the police. The IPCC will not be able to compel a retired officer to attend an interview as a witness through the use of this power. I am aware that some noble Lords may believe that, given the significance of this investigation, this power should extend to retired officers as well as those still serving. However, we must recognise the status of retired officers. Once officers retire, they are in the same position as any other member of the public. They are no longer bound by the same responsibilities and obligations as serving officers, and are not subject to the same penalties that can be imposed through police conduct regulations. The police themselves do not have the power to compel an ordinary member of the public to attend an interview as a witness. If the police want to compel an individual to attend an interview, they must arrest them as a suspect.
To give the IPCC powers of compulsion over retired officers would be to extend the commission’s powers beyond those held by the police. I do not think that any Member of this House would be comfortable with that, and such a matter would require careful and detailed consideration. Let us remember that the IPCC can, and will, investigate retired officers for misconduct and criminal behaviour, and it has the powers to compel such individuals to attend interview. The power contained in Clause 1 will be used in relation to witnesses, and it is proportionate that this applies to serving officers only. However, as I said before, I expect that many retired officers will attend voluntarily. The IPCC is currently scoping its investigation, and intends to start calling witnesses early in the new year. Noble Lords can be in no doubt, therefore, of the urgency behind this short Bill.
I turn my attention to Clause 2. This allows the IPCC to investigate matters that were previously subject to an investigation by its predecessor, the Police Complaints Authority. The power will be exercised by the IPCC only when it is satisfied that there are “exceptional circumstances” that justify its use. This is a high threshold. The need for this power is clear, because the PCA investigated certain aspects relating to the Hillsborough disaster. In particular, it considered the decision to open exit gate C at the Leppings Lane end of the ground and not to close the tunnel. Those decisions had a huge impact on the events of the day and, without the power in Clause 2, they could not be considered by the IPCC. We must ensure that no aspect of the events of that day is out of scope of the investigation. This power is therefore central to the eventual success of the investigation and, in turn, central to maintaining the trust of the families and the people of Liverpool. Although the power is essential, it must be tightly drawn if we are to avoid the prospect of reopening every old PCA investigation and turning the IPCC into a cold-case review body.
There must also be a sense of finality to the investigations concluded by the PCA or the IPCC. That is why the power in Clause 2 provides the IPCC with the discretion to reopen cases where the matter meets the high threshold of “exceptional circumstances”. This test will allow matters relating to Hillsborough to be considered, but the IPCC itself has stated in the briefing on the Bill that it has given to noble Lords:
“Unless there are powerful public interest reasons, as well as exceptional circumstances, it must be right that scarce resources are not diverted from addressing our extremely important current work”.
The commission goes on to say that,
“the IPCC must be in a position to resist becoming an historic cases body, which it is not designed nor resourced to be … The Commission will therefore want to take a rigorous approach to the application of this clause in other cases, and it would be helpful if it was clear during the Parliamentary debate that this was Parliament’s intention”.
I can confirm that the IPCC has precisely set out the Government’s intention. We do not want the IPCC to spend its time reinvestigating cases that have already been closed, and we see this power being used only in truly exceptional cases. Hillsborough is truly exceptional and it is right that these matters are reinvestigated. It will be for the IPCC as the independent body overseeing the police complaints system to determine whether a case meets this exceptional circumstances threshold, and it is appropriate for it, as an investigatory body, to hold that decision-making power.
The Bill before the House today is essential finally to achieve justice for the 96 innocent men, women and children who died as a result of the Hillsborough disaster. The Bill is narrow in scope, focusing on two powers that the IPCC needs to fulfil its obligations relating to Hillsborough. Rightly, it does not stray into the territory of wider reform of the IPCC. That would not be appropriate for a fast-track Bill. This short Bill provides the IPCC with the tools that it needs and marks one step further along the road to justice for the victims of Hillsborough. All who support this aim should support this Bill, and I commend it to the House.
Lord Taylor of Holbeach
My Lords, we are privileged to sit in this House and have been privileged today to have had the opportunity to participate in this debate. We have heard some impassioned and authoritative speeches, which have helped this House to consider this Bill, as it should do, in the proper context in which the Government have brought it forward.
I think that all noble Lords will have been emotionally touched by the speech of the right reverend Prelate the Bishop of Liverpool. The work that he has done in trying to build a bridge between the authorities and the families has been remarkable. In a way, this is a story of the failure of the establishment to properly engage with the families, to understand the distress of those who suffered loss or were injured or, indeed, those who were just at the match on the day. I hope that we can all help remedy that by our contributions here today.
I think that I can reassure noble Lords that this Bill has been brought to the House with the purpose of expediting truth and justice on this issue. I do not pretend that it can be easy; we have seen from the history of this matter that it is easy for people to make mistakes. Clearly, however, the investigatory role of the IPCC and of the police will be essential in clearing up the fog and mystery of misinformation and in providing clarity for the future.
There have been a number of speeches. I will start with the comments made by the noble Baroness, Lady Smith of Basildon. Indeed, many of her remarks were echoed by the noble Lord, Lord Alton, in his contribution. I readily understand the concern about what happens if officers attend but do not co-operate. There is a power to compel officers to attend if it is a matter of criminal investigation. If it is a question of witness, however, there are limits to the way in which legislation can achieve this objective, as I think the Government have acknowledged. But we are seeking to do that. Compelling witnesses to speak would be an unusual power to bring into a Bill of this nature. I hope that noble Lords will accept that we do not consider it to be appropriate.
However, I said in my opening address that people who volunteer to appear would want to help this process. There is a responsibility on all of us. When he gave evidence at the Home Affairs Select Committee on November 27, Chief Constable Mike Cunningham said that where a police officer attended but refused to answer questions, he would have to consider whether the officer’s employment should continue. This sent a strong signal of how seriously non-co-operation would be taken by the chief constable. I believe that the noble Lord, Lord Blair, said that he agreed that that was the right approach.
The noble Baroness, Lady Smith, also asked whether we would be issuing guidelines to chief officers to ensure that all forces treated refusal to attend interview in the same way. We have already committed to considering whether the existing conduct regulations should be amended or made clearer in this area, and whether misconduct sanctions should apply where an officer refuses to attend an interview as a witness. If we were to make such changes, we would also amend the relevant guidelines relating to the regulations to effect these changes.
The noble Baroness, Lady Smith, also asked about where retired officers may be suspects. I can confirm that any officer, whether serving or retired—or, indeed, an officer who retires part-way through an investigation —can continue to be investigated for criminal or misconduct matters. Officers can be compelled to attend an interview if they are a suspect. The noble Baroness asked also whether, when officers seek early retirement, their application will be considered if this prevents them from appearing as a witness before the IPCC.
It would not be appropriate to stop an officer from retiring who had been called as a witness, not as a suspect. However, the IPCC can investigate retired or resigned officers for criminal and misconduct matters, as it can with serving officers. Therefore, the IPCC will no doubt call retired officers to provide evidence during its investigation into Hillsborough, and I believe that in the vast majority of cases these retired officers will understand the importance of this investigation and attend willingly. If the police had reason to suppose that someone was retiring in order to avoid appearing, they may well consider that as suspect behaviour. However, that would be for the police to decide, not for us or the Bill.
The noble Baroness also asked, with regard to Clause 2, about the IPCC reopening cases where there is a powerful public interest. I know that the noble Lord, Lord Blair, is also concerned about what is meant by “public interest”. If I may disentangle the semantics, public interest in terms of popular interest is of course different from public interest as seen by the Government or by the IPCC itself. It is the IPCC that will determine where the public interest lies, and that is not measured by populist interest. I hope that I have made that clear; I think that I have a clear understanding of the interest.
The “exceptional circumstances” bar means what it says. They will be only cases where exceptional circumstances are involved; indeed, one of those exceptional circumstances is where the discovery of new evidence of high significance could then lead to a case being legitimately reopened. However, the purpose of this legislation is to deal with the particular instance which we have been debating today.
It was interesting to hear from the noble Lord, Lord Alton, who was a Liverpool Member of Parliament and able to talk about the incident as it appeared to someone representing the people of Liverpool. On the discovery of documents, I can confirm that the documents which will be available to the IPCC as part of its investigation will include some which were not available to the panel, because they were discovered after the panel had reported. It is clearly essential that every document is available to those taking forward the investigation. I assure noble Lords that that will happen, so fresh discovery will reinforce the IPCC investigations.
The noble Lord, Lord Alton, asked whether witness interviews will be given to the IPCC under caution. That question was repeated by the noble Lord, Lord Blair. I should make it plain that the police issue a caution to those whom they wish to interview because they are suspected of having committed a criminal offence and therefore may be charged. However, we would not therefore expect anybody providing evidence as a witness to be so cautioned. I think that that is the only way in which I can answer that question.
As many noble Lords have pointed out, the Attorney-General has secured a hearing on the question of reopening the inquests. That was applied for yesterday but it is up to the courts to consider that application. We must not prejudge the outcome of this legal process and even if the Attorney-General’s application were successful, it would be for the coroner to decide how to conduct the inquest. Again, this is an independent, statutory role which the Government cannot interfere in. I am sure that all those involved will recognise the need to expedite this process. Public opinion, the pressure for the truth, will drive this through.
I appreciate that it was not possible for the noble and learned Lord, Lord Falconer of Thoroton, to stay until this point, but I shall answer his question about integration. Clearly, we are dealing with different authorities with different responsibilities, but they have a shared responsibility for providing reconciliation and truth in this matter, and, indeed, justice. The IPCC, the Director of Public Prosecutions, the Attorney-General and the coroner will all work together and the Government will work with them to ensure that they work effectively to provide an outcome. The imperative for this is understood by the Government.
The noble Lord, Lord Blair, asked about disclosure. I can be clear that disclosure of information in relation to an interview by the IPCC, or, indeed, decisions as to how to conduct that investigation, are solely a matter for the IPCC, as the independent body with oversight over the police complaints system. Given that it has that independence, it would be inappropriate for Ministers or the Government to interfere or direct the commission on any aspect of the interview process or the investigation. I hope that that helps the noble Lord, although it does not provide him with an answer. I think that we have dealt with the question of the reopening of the inquiry.
I hope that I have answered most questions; it is quite probable, given the contributions that have been made, that I have not answered them all. I will be happy to write to noble Lords on the detail but our task today is to consider the Bill. We have had an excellent Second Reading; it is an important Bill to take forward reconsideration of the way the establishment dealt with the Hillsborough disaster in the first instance and an opportunity for Parliament, at least, to play its part in addressing this issue.
Police (Complaints and Conduct) Bill
Lord Taylor of Holbeach Excerpts(12 years ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I thank all those who have been engaged in putting this Bill on the fast track through your Lordships’ House and another place. It is not easy to get legislation organised in such a way. I pay tribute to those involved, and I am sure I do so on behalf of the noble Baroness, Lady Smith, and other noble Lords.
Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012
Lord Taylor of Holbeach Excerpts(12 years ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I thank all noble Lords who have spoken. It is not often that a Minister thanks a Member of this House for drawing the House’s attention to a statutory instrument by means of a Motion of Regret, but I do indeed thank the noble and learned Lord, Lord Scott of Foscote, for bringing this matter to the attention of the House. It gives me an opportunity to update the House on this important issue.
I am sure that the noble Lord, Lord Rosser, will know that I would not intend any discourtesy. I understood that the usual channels were informing the Opposition that I would take this Motion, as I am the Home Office Minister responsible for DNA.
Lord Rosser
I assure the Minister that I do not regard it as a discourtesy. I had not picked it up—perhaps I did not listen as hard as I should have—but I am very pleased to see the noble Lord at the Dispatch Box.
Lord Taylor of Holbeach
I thank the noble Lord.
Perhaps I may begin by saying that the Government are deeply committed to protecting the privacy and human rights of its citizens. At the same time, they are committed to maintaining an effective and powerful database that protects the public and reduces crime. To this end, as noble Lords have pointed out, they introduced the Protection of Freedoms Act to ensure that innocent people’s DNA and fingerprints are no longer held on databases.
As my noble friend Lord Palmer of Childs Hill pointed out, this is a complex matter, and so to get it right involves quite a lot of technical application and detail. I have been much engaged, in my short time in the Home Office, in trying to make sure that this is all in place. I am pleased to be able to say that the preparatory work required before implementing the Act is substantially complete. I have now received advice on the timelines of the implementation of the Act, and will announce the full details of this to the House within the next few days by way of a Written Ministerial Statement. However, it may help the House if I give some indication of the detail involved.
We anticipate that the elimination of the estimated 6 million DNA samples covered by the provisions of the Protection of Freedoms Act will begin this month, and will be completed by the end of May 2013. All other material covered by these provisions will be destroyed by the end of September 2013. As I say, I will be able to give fuller details of schedules to noble Lords in a Written Ministerial Statement which I expect will be made in the next few days.
There has been some confusion because this interim statutory instrument, laid by my noble friend and tabled through the Ministry of Defence, appears to contradict the thrust of government policy by extending the period of DNA retention. However, this is an interim measure, and I hope to be able to reassure my noble friend Lord Goodlad, whose work in scrutinising this legislation has perhaps prompted the noble and learned Lord, Lord Scott, to bring this Motion to the House. I hope to be able to assure him that a further statutory instrument in consequence of the commencement of these provisions will be tabled by the Ministry of Defence to bring its police powers in line with civil police powers.
I hope that noble Lords can see that this particular debate occurs at a critical point in the process. Over the next few months we will see the Government’s commitment translated into action by the destruction of this material, which is held on innocent people and should not be in the hands of government. With that, I hope that the noble and learned Lord will be able to withdraw his Motion.
Lord Scott of Foscote
My Lords, I am grateful to the Minister, to the noble Lord, Lord Rosser, and to noble Lords who have spoken on this Motion.
One matter that I should have mentioned, and forgot to mention when I addressed the House a few moments ago, was that following the decision of the Strasbourg court in 2008, the then Labour Administration reacted, as a preliminary, by ordering the destruction of all data held relating to children under 10. That reaction was immediate, and the White Paper was produced shortly after that, indicating the reformulation of the guidelines to the use of the power contained in the 1984 Act, as amended.
In view of the statement made by the Minister, the purpose of my Motion has—as far as I am concerned—been achieved, and so I ask the leave of the House to withdraw it.
Police and Crime Commissioners: Elections
Lord Taylor of Holbeach Excerpts(12 years ago)
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Lord Roberts of Llandudno
To ask Her Majesty’s Government what is their assessment of the operation and turnout of the elections for Police and Crime Commissioners.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, more than 5 million people turned up to vote in last month’s first ever election of police and crime commissioners, giving them an infinitely bigger mandate than the unelected and largely invisible police authorities they replaced. That number will only grow in the future as people see the real impact of PCCs and the changes that they will make in their areas, delivering on public priorities for dealing with crime.
Lord Roberts of Llandudno
I do not know whether to thank the Minister for that reply or not. The turnout nationally was 15%, the lowest being in Staffordshire at 11.6%. Does that really give a valid mandate to these new commissioners? We were told that the turnout would increase in the London mayoral elections, but there was a 34% turnout in 2000, the first election, while this last year it was 38%. It has gone up by only 3% or 4% in 12 years, so the facts do not bear that out. Nationally, in the police and crime commissioner elections, each vote cost £14, but in north Wales, it cost almost double that—£25 a vote. The election cost a conservative estimate of £75 million. It could be more—that is a conservative estimate. The sum would have paid for 3,225 new police constables.
Lord Roberts of Llandudno
I am asking a question. My second question, which I am allowed, is: which is the better way of spending £75 million of public money—is it on 3,225 new police constables or on police commissioner elections with a 15% turnout?
Lord Taylor of Holbeach
My noble friend has worked very hard at producing figures which I am afraid I do not recognise. The total recoverable cost of the election in north Wales, as set out in the Police and Crime Commissioner Elections (Local Returning Officers’ and Police Area Returning Officers’ Charges) Order 2012 is £1,063,000. The north Wales police area returning officer believes that the cost of contingencies for Welsh language ballot papers comes to around £62,000. Therefore, with 80,000 votes cast in north Wales, it comes to significantly less than the figure quoted by my noble friend.
Lord Howarth of Newport
My Lords, is not one of the lessons of this fiasco that people do not want gratuitous constitutional changes shoved down their throats?
Lord Taylor of Holbeach
Two questions were being asked at the same time, but I shall take that of the noble Lord, Lord Howarth of Newport. I do not accept that for one moment. By-elections were held the same day and, in one case, the retiring Member of Parliament received very much the same turnout as the winning candidate in the seat that he had vacated. That does not affect the legitimacy of the outcome, nor will it affect the authority with which police and crime commissioners will tackle their task, with a mandate on behalf of the people to make sure that we have effective crime policies in this country.
Lord Elystan-Morgan
My Lords, does the Minister recollect that when taxed with the question of the low turnout both the Prime Minister and the Home Secretary said that it was easily foreseeable that in a situation as novel as this the turnout would be low. Why, then, was no free mail shot considered? I ask him to answer this question with the sweet benefit of hindsight, but is it the case that perhaps the wrong question was asked? Rather than ask whether we could possibly afford it, perhaps we should have asked whether we could possibly afford not to do it.
Lord Taylor of Holbeach
As the noble Lord will know, because I know that he has been interested in this subject and I have talked to him in Questions before about informing voters on this issue, more than 2 million people took advantage of access to the website to inform themselves about their candidates, and more than 200,000 people asked for a printed version of the candidates’ election address on the website and took advantage of that opportunity. There is no free post, and I do not think that the £30 million that postage would have cost would have been justified.
Lord Waddington
Would it not have been a lot better if the polls had taken place at the time of the local elections? Would the poll not have been very much higher then—and was it not the wish of the Liberals in the coalition who insisted on the vote not being taken at the right time?
Lord Taylor of Holbeach
I note what my noble friend has to say on that matter, but I am a great believer in the coalition. We will be taking his advice, because the next election will be three and a half years from now, in May.
Lord Mackenzie of Framwellgate
Are safeguards in place for the appointment of deputy commissioners? Is he aware of articles in the press suggesting that a number of deputy commissioners have been appointed by commissioners who were relatives and friends? Is this not the nepotism that was predicted?
Lord Taylor of Holbeach
I cannot speak to those particular allegations. All I can say is that the appointment of a deputy police and crime commissioner is not obligatory, but is something that police and crime commissioners can do. Further, they are required to appoint a head of paid staff and a finance officer. The latter two posts are the only ones that the law requires.
Lord Grocott
My Lords, however the Minister might interpret the turnout at the elections, could we agree that there was no evidence of any wild enthusiasm for these new commissioners? Would he further accept that this is in keeping with a pattern? On the same day, the people of Hartlepool decided that they did not want a directly elected mayor; just as nine out of 10 cities earlier this year decided that they did not want a directly elected mayor; just as the overwhelming majority of the British people in a referendum last year decided that they did not want a new electoral system. Could the Minister advise those constitutional experts in the Government who keep wanting to fiddle about with the constitution, that before they do so they might at least think about listening to the views of the British people?
Lord Taylor of Holbeach
I am really sorry, because I have great respect for the noble Lord, that he appears to speak against the extension of democracy to this important area of government. I am prepared to wager with him that the next police and crime commissioner elections will attract increased participation that is a great deal more than these elections.
Immigration: Home Office Meetings
Lord Taylor of Holbeach Excerpts(12 years ago)
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Baroness Smith of Basildon
To ask Her Majesty’s Government when Home Office Ministers last met the Chief Inspector of Borders and Immigration; and how often such meetings are held.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, Home Office Ministers have regular meetings with officials and others as part of the process of policy development and delivery. As was the case under previous Administrations, it is not the Government’s practice to provide details of all such meetings.
Baroness Smith of Basildon
My Lords, I am none the wiser after that Answer than I was before I asked the Question. There was a serious reason for asking, because it is clear that there are serious problems in the UK Border Agency. Even the recent fall in net migration is due to British citizens leaving the country and the fall in student numbers. Time and again, the chief inspector has found problems but, despite commitments to his recommendations to make the system more efficient and fairer, it just does not happen. We now even have the Mayor of London accusing the Government of turning a blind eye to long-term illegal immigrants.
Is part of the problem cuts that have led to 5,000 fewer UK Border Agency staff? Can the Minister give a commitment to your Lordships’ House today that the Government will act, not just promise to act, on the chief inspector’s reports?
Lord Taylor of Holbeach
The chief inspector has published two reports recently, and I thank John Vine, the chief inspector, for them. He will be appearing before the Home Affairs Select Committee tomorrow. I totally accept the view that the UK Border Agency has not performed as strongly as this House would expect, but it is improving, and that is the right direction of travel. The question we have to ask ourselves is: for how long does this go back? I fear that it goes back to 2006, when there was a huge backlog of cases, and that has taken an awful lot of clearing up. The current situation is greatly improved.
Lord Naseby
Does not the number of bogus students mentioned in one of the reports indicate how right it was that Her Majesty’s Government, first, allowed the London Metropolitan University students who were bogus to be dealt with; and, secondly, decided to keep student numbers quite separate from other immigration statistics? Can my noble friend assure us that a firm notice has gone out to all the many agencies scattered around the world looking to bring students to the UK, and through our embassies and consulates, that good, genuine students will always be welcome in United Kingdom but that bogus ones will be sent home?
Lord Taylor of Holbeach
That is exactly the message that the Government are sending. In fact, as has been shown in the most recent reports, university numbers are holding up very well. UCAS acceptances of international students are up by 4%, showing that our policies are having the right effect. There was a 1% increase in visa applications for students attending universities. The university sector now accounts for three-quarters of sponsored visa applications, up from about half in the equivalent period last year.
Lord Dholakia
My Lords, at my noble friend’s next meeting with the Chief Inspector of Borders and Immigration, will he insist on records being kept of cases of domestic violence where there is evidence that judicial decisions on permanent settlement have been overridden by the Executive?
Lord Taylor of Holbeach
I have recently written to the noble Lord because he asked a similar question last week on this issue. Obviously, it is important that we have a regime that is capable of ensuring that people who come to this country are fit and proper persons to be here.
Lord Hannay of Chiswick
My Lords, does the Minister agree that the considerable number of students who were threatened with expulsion following the action at London Metropolitan University were not bogus at all? That presumably was why the Government forked out £2 million to find them new places. We should not shelter behind figures that do not really prove what the Minister tries to make them prove. This sector is enormously competitive. We should be increasing it by much more than the figures he gave and would be so without the chilling effect of the Government’s Minister for immigration going out and beating his chest and saying how jolly well he had done to keep all those students out.
Lord Taylor of Holbeach
The noble Lord is perfectly right. The university sector is very important, as is the contribution made by international students to this country and the economy. I reiterate to noble Lords that there is no limit to the number of students who can come to the UK. Put simply, if they can speak basic English and have sufficient funds and the necessary qualifications, they can come.
Baroness Brinton
Does the Minister agree that it is extremely unfair to class the international students at London Metropolitan University as bogus simply because of the mistakes made by the university? The vast majority of errors were found to be in the registering of students and in the systems to monitor them. It is appalling that we should even contemplate saying that the majority of international students there are bogus. Does the Minister agree?
Lord Taylor of Holbeach
I do not think that I used that word. In fact, I agree with the noble Lord, Lord Hannay. The Government made funds available to ensure that students could continue their studies because we understand that the problem lay with the university, not with the students there.
Lord Morgan
Is the Minister aware of the appalling damage done to graduate studies at our universities, both academically and financially? The figures that we saw last week indicate very clearly that tens of thousands of graduate students have not come to this country, not because they are bogus but because of other qualifications—including financial—imposed by the Border Agency, whose policies have proven to be crass and philistine.
Lord Taylor of Holbeach
I do not agree with that description. The arrangements for graduate students are that they can come, but they have to show that they have an appointment that is capable of earning £20,000 a year. That is a reasonable expectation that we should have for people coming in as graduate students.
Lord Avebury
My Lords, who is accountable for the false statement made by the UKBA last spring that the legacy cases had all been resolved when it now emerges that there were still 147,000 in the queue?
Lord Taylor of Holbeach
As we know, there is a huge number of legacy cases. This was referred to in the Question we tackled last week. It is a matter of concern that these legacy cases were not cleared up promptly; they are being cleared up now and are being tackled so that those students who have been discovered to be here improperly are being sought and obliged to leave.
Lord Brooke of Alverthorpe
Do the legacy cases not cover other people as well as students? Is the fundamental problem not the one which the Minister spoke about last week: the inadequacy of our ability to search and locate these individuals to try to get them out of the country? Is it not true that the department is currently cutting the number of staff it engages by around 5,000, yet claims that it is going to be able to perform better? Will the Minister please tell the House how it will do that?
Lord Taylor of Holbeach
Identification of people who have overstayed is a clear technical problem which requires the application of all the resources of the UKBA. The UKBA is confident that it can achieve this and has given assurances that it will do so.
Lord Forsyth of Drumlean
My Lords, could the Minister possibly answer the question of my noble friend Lord Avebury when he asked who is being held accountable for the fact that we were misled about these legacy cases?
Lord Taylor of Holbeach
There have been a couple of incidences where staff of the UKBA have indeed apologised to the Home Affairs Select Committee for mistakes that they have made. That was done orally last week and, indeed, before then in writing by the head of the UKBA.
Baroness Tonge
My Lords, is the Minister aware that in this country the age of marriage is 16 if that marriage takes place with parental consent? Is he also aware that this is used for some girls to be taken out of the country against their will to be married so that they can then bring their husbands back here? What is his department doing to stop that practice, and when will we bring our age of marriage up to 18 in line with other countries?
Lord Taylor of Holbeach
This House has frequently debated forced marriages. The Government are bringing forward legislation to criminalise them.
The Countess of Mar
My Lords, for 21 years I was a lay member of the Immigration Tribunal until I resigned in 2007 because I thought my job was not worth while. I have heard noble Lords at that Dispatch Box reiterating over and again what the Minister has iterated today. What guarantees are there this time that the Government’s measures will work?
Lord Taylor of Holbeach
The Government’s resolution to deal with this problem is the one thing that I can assure the noble Countess of.
Lord Winston
My Lords, is the Minister aware that at a recent Select Committee when the UK Border Agency was giving evidence, the members of that agency were completely incapable of giving accurate statistics on students, particularly regarding the courses and universities that they were attending? Do we not think that, rather than a ball-park figure, it would be appropriate to know exactly the quality of the students and which universities they are going to?
Lord Taylor of Holbeach
Indeed. I am sure that that information is available. The question is how it is collated.
Baroness Sherlock
My Lords, the Minister told the House that the Government’s resolution is all that they need to solve the problem. Would a little humility not be in order? Maybe if the Minister spent some time looking at why previous solutions have failed, there might be more chance that the Government will succeed. Does he agree with me?
Lord Taylor of Holbeach
I am always prepared to learn. Indeed, I have asked for a meeting with John Vine as a result of the report that I received the other day.
Scrap Metal Dealers Bill
Lord Taylor of Holbeach Excerpts(12 years ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I thank my noble friend Lady Browning for introducing so skilfully the Bill for noble Lords’ consideration and for her important contribution to developing the war against this abuse of metal theft, about which all noble Lords have spoken very robustly today. There is considerable consensus around the House that this illegal activity needs to be tackled. It is fitting that my noble friend was asked to take on this Bill by its sponsor, Richard Ottaway MP, because as noble Lords will know, my noble friend was a Minister in the Home Office when the metal theft epidemic erupted. During her term of office she played a considerable part in developing the Government’s response. I also join all noble Lords in acknowledging the work of my honourable friend the Member for Croydon South, Mr Richard Ottaway, and for bringing forward this Bill. He has immersed himself in this topic by meeting and consulting with stakeholders, and then developing and fostering cross-party and industry support. We have that evidenced in the correspondence that Peers in this House have received. There is widespread support for the Bill.
How pleasant it is for me to be able to thank my noble friend Lord Henley not only for his contribution to this debate, but also as my predecessor in the role that I am now undertaking. I know how deeply he was engaged in dealing with the challenge of legislating for this problem in the Home Office. It may not be particularly appropriate to use the analogy of apostolic succession, but at the very time that my noble friend moved to the Home Office, I was in Defra. We were working in conjunction with the Home Office through the Environment Agency to set up the task force and other arrangements for dealing with this abuse. I am sure that the right reverend Prelate will forgive me, but we have an apostolic succession here today and noble Lords have been able to hear from all three of us.
Let me make it clear that this Bill has wholehearted government support, and it is important to note that the support does not just end there. We have witnessed the support for it here in this Chamber. It is supported by police forces, including the Association of Chief Police Officers, and it is supported by the Local Government Association and local authorities across England and Wales which are keen to be given the powers to regulate scrap metal dealers properly. One of the problems is that there are insufficient powers for enforcement agencies actually to deal with this problem. The noble Lord, Lord Rosser, asked about local authorities’ attitude to seeing this legislation through. I know that they have made it clear that they are keen to see this legislation enacted and implemented as soon as possible. A number of other bodies have written to noble Lords, all expressing their support for the Bill. It is supported by those who have suffered from metal theft, including private industry, those responsible for transport infrastructure and, indeed, the church. More importantly, it is supported by many legitimate scrap metal dealers who seek more effective regulation of their sector. Before I move on, I would like to express my particular thanks for the contribution of the British Metals Recycling Association and its director-general, Ian Hetherington. The BMRA has worked closely with Richard Ottaway on the development of this Bill and with the Government on wider measures to tackle metal theft. The association has at all times sought to represent its members’ interests as well as those of the wider industry, and it continues to provide challenge to government on their behalf. Time and again we have heard examples of unscrupulous scrap metal dealers prospering at the expense of legitimate operators. I believe that this Bill will change that and level the playing field across the metal recycling sector.
The Bill seeks to reform the regulation of the industry, which is currently regulated by legislation dating back to the 1960s—the Scrap Metal Dealers Act 1964. The Government believe that this Act is outdated and no longer reflects the 21st century. This is a £5.6 billion industry, and its development means that the legislation needs to be correspondingly robust. It may interest noble Lords to know that the Scrap Metal Dealers Act 1964 originated in this House, and that the Bill was introduced by Lord Auckland. However, its days are numbered and this Bill is designed to replace it.
Reform of the industry is important for many reasons but I believe that it will make a significant contribution to tackling metal theft. Parts of the scrap metal sector offer the principal market for stolen metal. Unscrupulous scrap metal dealers either purposefully purchase stolen metal, knowing full well what they are doing; or they purchase it without undertaking any checks or due diligence, knowing that lax regulation will allow them to do so without attracting the adverse attention of the authorities.
The rising commodity prices of metals on the world market, coupled with this low-risk, “no questions asked” marketplace, have seen the theft of metals turn into a growing, acquisitive crime. I have a number of examples of my own but will not rehearse them as noble Lords have all been able to come forward with very graphic examples of the economic and cultural damage that has been caused by this pernicious crime.
Metal theft peaked in the UK in 2010-11. Since then, there has been considerable work by a range of organisations to tackle metal theft, which is having some success. Last month, ACPO estimated that reported metal thefts have fallen by around 39% this year; an excellent achievement. I have some Home Office figures here that will perhaps help my noble friend Lord Henley, who wanted to know what the impact had actually been of the Operation Tornado task force and of the anti-theft design of many materials. I will read out this tabulation as it will be useful to put it on the record.
Scotland has seen a 64% reduction, north-east England 53% and north-west England 58%. I do not know what the noble Lords, Lord Greaves, and Lord Willis, will make of that. The noble Lord, Lord Willis, is not in his place now but Yorkshire and the Humber has only seen a 16% reduction. We would have to calculate whether that was because they were all going across to the north-west, as the noble Lord, Lord Greaves, alleged. The east Midlands has seen a 29% reduction, the West Midlands 48%, Wales 26%, south-west England 50%, south-east England 49%, London 29% and the east of England 60%. These are sizeable figures and show that there has already been an impact as a result of having more confident enforcement in this area. How much better it will be when we have these measures in place, which is why I hope we will be able to implement them.
The noble Lord, Lord Faulkner, asked about funding. I cannot give him a positive response. Of course, we are awaiting the Autumn Statement. We are aware of the considerable representations that have been made on this issue, and will be looking at whether it will be possible to implement it. This debate has reinforced the continuing importance of this enforcement drive.
The reduction in metal theft can be put down to a number of different activities, including: greater law enforcement activity by a number of organisations, assisted by the £5 million made available to the national metal theft task force; seeking design solutions, which has made a great deal of difference, as my noble friend Lord Henley mentioned; strengthening the intelligence on metal thefts and offenders; working with the scrap metal industry to voluntarily improve its trading standards, in particular through Operation Tornado; and seeking to strengthen the criminal justice system response to metal theft cases, including working with the Crown Prosecution Service and metal theft victims to inform the courts of the full costs, including consequential costs, of all metal theft offences, especially to help inform sentencing decisions.
All this activity is making an impact and we hope the response will be strengthened further by the measures, commencing on Monday, that the Home Office included —at the prompting of the noble Lord, Lord Faulkner—in the LASPO Act 2012. These measures include: the prohibition of cash payments to purchase scrap metal, which will bring greater traceability for those selling metals—I assure the noble Lord, Lord Rosser, that cheques given in payment need to be crossed, and a paper trail will still exist even in the circumstances that he described; increasing the financial penalty for offences in the Scrap Metal Dealers Act 1964; and revising the police’s powers of entry into unregistered scrap metal yards, which was an anomaly that I think all noble Lords accept was one of the biggest difficulties for the police.
The noble Lord, Lord Faulkner, asked how these measures will work. The Home Office has worked very closely with the British Transport Police and ACPO to deliver guidance in relation to the new provisions that come into force on Monday. We are confident that they will make a difference.
The Bill has been refined in its passage through the other place and I believe that it now provides effective and proportionate regulation of the scrap metal sector. The Bill has many important features. I will not talk about each one but will limit myself to what I consider to be the most important. The Bill will allow for local authorities to properly manage this sector, allowing them to decide who should and should not be licensed. The fee covers not just the costs associated with administering the licensing procedure but the enforcement that is involved for local authorities. Although the guidance will be given by the Secretary of State and we expect local authorities to abide by that, we anticipate that local authorities will be able to recover the costs that this Bill imposes upon them.
The Bill will also provide much needed closure powers to tackle unscrupulous dealers who operate without a licence. My noble friend Lord Greaves asked what “residential premises” are. No definition is provided in the Bill; it would be for the police to decide whether premises were predominantly used as a home or were business premises. This will be a question of substance rather than superficial appearance. I hope that that provides some answer to my noble friend on that issue.
The Bill will also require scrap metal dealers to record fully the metals that they are purchasing and disposing of, as well verifying the identification of the people with whom they transact. The Bill will end the exception for itinerant collectors, which the Government no longer wish to continue. Finally, the Bill will integrate the separate regulation for motor salvage operators with the scrap metal sector.
I know that the Bill was written and developed following close consultation with many legitimate scrap metal dealers, who, as the House knows, fully support the Bill. The Bill strikes the right balance between supporting legitimate operators and providing powers to tackle those who wilfully break the law. It should contribute to raising trading standards across the whole of the scrap metal sector. It will restrict the market for stolen metal that part of the industry currently offers. As noble Lords will know, there is a point at which stolen metal enters this trade, and it is sealing off that point of entry that the legislation is designed to do. The Bill will provide local authorities and the police with the powers they need to tackle businesses that operate illegally. The Bill will build on good practice already used by parts of the industry, such as strengthening the record-keeping requirements that have formed the key component of the successful Operation Tornado.
A number of noble Lords, including the noble Lord, Lord Rosser, and my noble friend Lady Hamwee, asked about the commencement of the provisions of the Bill. As has been said in guidance, it is recognised that around six months will probably be needed for local authorities to have in place the necessary provisions so that licensing can commence. Subject to any requirement to adhere to common commencement dates and the introduction of regulations, the dates are mandated by BIS, so we need to work this together. However, it is the Government’s intention that the Bill should be effective and brought into play as quickly as possible.
The response to metal theft does not rest with this Bill, but I remain convinced that the only long-term response to metal theft is to introduce a new, more robust system of regulation for the scrap metal sector, which is what this Bill is designed to achieve. I am delighted that it has been welcomed by all corners of the House.
Lord Faulkner of Worcester
My Lords, there was a suggestion that the Government intended to move an amendment in Committee to insert a sunset clause into the Bill. The Minister has not referred to that, and I cannot see why it should be necessary when one views Clause 18, which provides for review after five years. Is the Minister able to clarify that?
Lord Taylor of Holbeach
The noble Lord is right about the review, but my honourable friend the Minister for Crime Prevention, Mr Jeremy Browne, made a commitment to insert a sunset clause into the Bill. I imagine the details of that will be presented to this House in Committee. That provision was agreed by the Government during the Bill’s passage through the other place. I am pleased to confirm that. It was alluded to earlier by the noble Lord, Lord Rosser.
I was in full-flight oratory, saying how much I welcome the support of the House at this Second Reading. We all wish the Bill well. It is designed to tackle an abuse that we all condemn. The Government give the Bill their full support.
Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012
Lord Taylor of Holbeach Excerpts(12 years ago)
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Lord Taylor of Holbeach
That the draft order laid before the House on 15 October be approved.
Relevant document: 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 26 November.
UK Border Agency
Lord Taylor of Holbeach Excerpts(12 years ago)
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Lord Avebury
To ask Her Majesty’s Government what is their response to the report by the Independent Chief Inspector of Borders and Immigration on the UK Border Agency’s handling of legacy asylum and migration cases.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, the UK Border Agency’s response to the report of the Independent Chief Inspector of Borders and Immigration was published on its website on 22 November. We accept that there are lessons to be drawn from the UK Border Agency’s handling of these legacy cases. The agency’s response to the report accepts all of the chief inspector’s recommendations. However, as the chief inspector himself states, since April 2012 the agency has,
“started to tackle the problems”,
and,
“a much more robust approach [has] been introduced to locate and trace”,
individuals.
Lord Avebury
My Lords, considering the appalling record of irresponsibility, obfuscation and mendacity revealed by this report, does not my noble friend agree that control of immigration and asylum should be returned to the Home Office so that responsibility can rest on the Home Secretary herself, where it properly belongs? Will the Government allow time for a debate on this report and on the Government’s response to it?
Lord Taylor of Holbeach
I cannot pre-empt the usual channels and their negotiations on these matters, but I note my noble friend’s interest in this subject. This Question reminds me somewhat of the situation in which the noble Lord, Lord Rooker, found himself in dealing with the Rural Payments Agency. This agency has had a poor record on delivery but as the new transformation plan has been developed, and as the chief inspector highlights, it has started to tackle the problems.
Lord Tomlinson
Bearing in mind the popularity with Members opposite of the Mayor of London, do the Government share the views expressed by him during his visit to India or do they support the current government policy?
Lord Taylor of Holbeach
I am afraid that I have not been following what the Mayor of London has been saying.
Lord Dholakia
My Lords, does the UKBA await the outcome of court judgments on domestic violence cases before the right to settle in the UK is granted? Is the Home Secretary consulted before the UKBA exercises such authority over judicial decisions?
Lord Taylor of Holbeach
The noble Lord has asked a specific question to which I cannot give a detailed answer, except to say that the rules governing entrance into and settlement in this country are extraordinarily complex. We had an opportunity to debate elements of them yesterday. I will investigate the matter and write to the noble Lord.
Lord Brooke of Alverthorpe
Is it not true that one of the lessons which the Government are increasingly learning is that locating and tracing individuals is one of the biggest problems they face in modern society, especially given how people travel around the world in the way they do? Will the Government reflect on their early decision to abandon ID cards, which provided for locating and tracing, and will they not come to regret having taken the decision to abandon them?
Lord Taylor of Holbeach
The direct answer to that question is no. In terms of the reference that I should make, of course it is important to be able to match identity. Recently I visited the Criminal Records Bureau in Liverpool where much of the job is about matching individuals with the police national computer. It is a similar task here, and fortunately that task is now being undertaken properly.
Baroness Smith of Basildon
My Lords, it might help if I advise the Minister that the comments by the Mayor of London, Boris Johnson, were about the Government’s policies on students and immigration from India. Perhaps the best advice for the Minister is not to agree with Boris, but he might want to agree with government policy. There is clearly a difference in the Conservative Party on this issue.
On the subject of the report which the noble Lord, Lord Avebury, mentioned, it is not the first time that John Vine has raised very serious concerns about the UK Border Agency. This report is shocking: it actually says that Home Office UK Border Agency officials lied to Parliament. I am pleased to hear the Minister’s comments that the Government are accepting all 10 of John Vine’s recommendations. However, John Vine has previously complained about his recommendations being accepted and then nothing happening. How will the Government ensure that these recommendations are acted on? How will they be monitored? Can the Minister commit now to reporting progress back to Parliament?
Lord Taylor of Holbeach
I am always happy to report back to Parliament on this sort of issue. This issue has a very long history and it did not start with the coalition Government coming into office. The key question is: is the agency now directed in a way that is going to lead to improvement? I think that the answer to that is yes. In respect of the particular comments made by individuals in front of the Home Affairs Select Committee, the individual concerned has written to the committee explaining the reason why he inadvertently misled them.
The Earl of Sandwich
Does the Minister agree that responsibility for students who overstay their welcome in this country lies with the UKBA and not the universities and colleges? Is he aware that the universities and colleges are being harassed in relation to this and many other issues?
Lord Taylor of Holbeach
It is important to see this as a partnership. The universities want students from overseas and I am, fortunately, able to say that the number of students in this country from non-EEA countries has actually increased, despite the review which has been placed on them and the difficulties we have had with London Metropolitan University. Universities and the UK Border Agency need to act in partnership if we are going to have both effective control and the freedom and movement which we all, at bottom, desire.
Crime and Courts Bill [HL]
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Lord Condon
My Lords, I declare my registered interests in policing. I find myself supporting the spirit of Amendment 1 and Amendment 3, the first in the name of the noble Baroness, Lady Smith, and the latter in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks. If the Government resist all these amendments and the spirit behind them, they will miss an important opportunity to improve transparency, accountability, confidence and governance in the new NCA.
At Second Reading and in Committee, I raised the spectre of a disjointed patchwork of policing through the new arrangements. My fear was of a parochial, local network of policing run by the newly elected police and crime commissioners, and an all-powerful National Crime Agency with no supervisory or governance board, with very little in between and no lines connecting them. The Government will miss a vital opportunity here if they hide behind the notion that the NCA deals with important, national issues which only a relationship between the Home Secretary of the day and the director-general can embrace and satisfy. Whatever emerges through a supervisory or advisory board, or some consultative mechanism, we need to have confidence that it will embrace at least one or more of the new police and crime commissioners, representatives of chief constables and perhaps those elsewhere in policing, and the many other stakeholders who are legitimately concerned about how this new policing architecture will work.
I understand that perhaps Amendment 1 is a step too far because there are matters of national importance that maybe only the Secretary of State in the Home Office can have the chairmanship responsibility for. Yet I hope that the Minister will be able to move some way towards reassuring us that the new arrangements, however they emerge, will improve confidence, transparency and accountability in this important new agency, which I wish the very best. I hope it will succeed.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I thank the noble Lord, Lord Condon, for his speech and in particular for the goodwill that he demonstrated towards the success of the NCA.
I hope that I do not disappoint noble Lords when I say that I will resist these amendments, but I will address the issue in some detail and fullness. Some of the elements will come up in later debates, but I recognise the importance to noble Lords of this particular group of amendments none the less. They go to the heart of the Government’s arrangements for the NCA. The noble Baroness, Lady Smith, reiterated the position that she outlined in Committee, that the NCA should be led by a statutory board headed by a non-executive chair.
I will come to my noble friend Lady Hamwee’s amendment later, because she talked about a slightly different form of governance. I start by addressing the amendment tabled by the noble Baroness, Lady Smith, and whether it is somehow necessary for the National Crime Agency to have a statutory board. We can establish quite quickly that it is not. The NCA is being established as a Crown body without incorporation. A Crown body without incorporation does not have a separate legal identity from the Crown, so incorporation and a statutory board are not, strictly speaking, required. The functions of the agency are conferred directly on the agency itself, not on a board. This is a tried and tested model for a non-ministerial department and works well for other similar agencies with which noble Lords will be very familiar, such as the Crown Prosecution Service and the Serious Fraud Office.
Not only is no statutory board required, but to create one would be detrimental to the effective governance of the NCA. The noble Lord, Lord Harris, spoke vigorously about the fact that he felt a governance board would be very effective for the NCA. However, we have designed the agency so that the Home Secretary —the elected Government’s representative who is accountable, not to nobody as the noble Baroness, Lady Smith, implied, but to Parliament—has clear strategic oversight, while the director-general, who would be an experienced crime fighter, provides the day-to-day operational leadership. Furthermore, we have designed the agency’s governance arrangements so that the director-general will be directly accountable to the Home Secretary, not beholden to a committee. In this way we will ensure that the accountability structures are clear, practical and non-bureaucratic.
The amendments of the noble Baroness seek to mirror the arrangements for the Serious Organised Crime Agency, which was blessed with the traditional quango-type structure, led by a non-executive chair and a board. However, as my noble friend Lord Henley pointed out in Committee, SOCA’s arrangements have risked more bureaucracy rather than more accountability. The current SOCA chair and board are excellent individuals who have done a good job, but to be led by a committee was never the right structure for a law enforcement agency. Police forces are led by chief constables directly accountable to a single individual—the elected police and crime commissioner. The National Crime Agency should similarly have an operational director-general at its head who is directly accountable to the Home Secretary.
The noble Baroness argues that the statutory board will help preserve the director-general’s operational independence. She is perhaps concerned that his operational independence might be dented by too frequent contact with the Home Secretary without the protection of a committee. My noble friend used the word “cosy”. I cannot reconcile that idea with reality. The director-general will be an experienced crime fighter and a strong leader in his or her own right, not a shrinking violet, and that is certainly not how anybody who knows Keith Bristow, nor any noble Lord with direct experience of governance in policing, would describe him.
To put it another way, the relationship between the director-general and the Home Secretary, just like that between chief constables and the police and crime commissioners, will be a robust, professional partnership where both parties have their own roles to play which are set out clearly in the legislation. In particular, Clause 4 establishes the operational decisions test which rests with the director-general. If the legislation is not enough protection, I do not see what a non-executive chair or committee is going to add, other than a further layer of bureaucracy through which the director-general’s discussions with the Home Secretary will have to filter.
Of course, we can all absolutely agree on the importance of good governance for the NCA. While the director-general is rightly ultimately charged with leading the organisation, in doing so he will obviously need and want the advice and challenge of other experienced voices from inside and outside the NCA. Here I can perhaps help noble Lords because the NCA, like other non-ministerial departments without statutory boards, will still need to have a management board to advise the director-general on the strategic direction of the organisation, ensure that there are proper audit and risk arrangements in place and so forth.
The outline framework document has been referred to and we will be discussing it later. I hope noble Lords have been able to see it, and I will try to make sure that copies are available in the Printed Paper Office, if they are not there already. It provides for the board to be established under the chairmanship of the director-general, which my noble friend Lady Hamwee referred to, and it will include non-executive members. The role of those non-executive members, just like non-executive board members anywhere else in government—or outside government, for that matter—will be to advise and challenge the executive on the basis of their outside experience and skills in order to help the organisation do better.
I contrast that picture of non-executive membership with the non-executive posts provided for in Amendment 2. Under the noble Baroness’s proposed model, the NCA board would comprise persons representing the views of police and crime commissioners and chief officers in the different parts of the United Kingdom. The noble Baroness argued that this is needed to ensure that the NCA is sufficiently alive to the interests of those groups. Clearly PCCs and the chiefs of the United Kingdom’s various police forces will be key partners for the NCA. That is why the Bill provides that they will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency through consultation on the NCA’s strategic priorities and the agency’s annual plan. The director-general will also, of course, want to engage personally with chief officers and PCCs across England, Wales, Scotland and Northern Ireland to ensure that the NCA is doing everything it can to help protect their communities from serious and organised crime. He will do that, and is already doing that, through building solid relationships with individual chiefs and PCCs, and through the Association of Chief Police Officers and the new Association of Police and Crime Commissioners. These practical working relationships will ensure that the NCA is alive to the complex needs of communities and of its partners that serve those communities.
Four individuals attending the NCA board could hardly do the same. In seating these individual representatives at the table of the NCA board, the noble Baroness has turned it from a board—in other words, a body which one might expect to focus on using its diverse experience to get the best possible performance from the NCA—into something more like a stakeholder forum for the NCA’s partners to air their views. I believe that the Government’s model is a better one and gives better direct access to the director-general.
My noble friend’s amendment would also create a statutory board for the National Crime Agency, in this case chaired by the Home Secretary with a further ministerial member and a number of non-executive members in addition to the NCA’s executive leadership. This is a similar structure to that adopted by ministerial departments, albeit that has never been set out in statute and nor, as far as I am aware, has anyone called for it to be so set out. I am not persuaded of the case for such a board. I appreciate that my noble friend’s amendment tries to leave the director-general in control of the agency and directly accountable to the Home Secretary by underlining that the board will function subject to the provisions set out in Part 1, but let us be pragmatic here. It will hardly help establish the director-general’s clear operational leadership of the agency if its key leadership body is chaired by the Secretary of State. Furthermore, many corporate management decisions that properly fall to a board—for example, on the people strategy—would not be for the Home Secretary, and she would not see it as her role to chair those sorts of deliberations, since to do so would cut across the director-general’s leadership and direction of the agency. So the director-general would still need to establish and chair an NCA management board to deal with those issues.
Baroness Hamwee
My Lords, I have a difficulty with this amendment because it seems to seek not pre-appointment scrutiny, as the noble Lord has described it, but appointment veto. Pre-appointment scrutiny, questioning a proposed candidate but then leaving it to the appointer to take the final decision in the light of that scrutiny is something which, as the House will know, I have advocated in other contexts. For very senior and important positions I think that that is very desirable. However, I do not go so far as wanting to see Select Committees approving appointments such as this. Although the noble Lord’s speech was very persuasive, what he is seeking the House to agree to is something even more than he was arguing for.
Lord Taylor of Holbeach
My Lords, I agree with my noble friend that this amendment seeks to make the appointment of the director-general of the NCA subject to the approval of the Home Affairs Select Committee. This is a step up from the amendment tabled by noble Lords in Committee, which provided only for consultation with that committee.
As my noble friend Lord Henley outlined during the Committee stage, the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is right, therefore, that she is responsible for appointing the director-general. Of course, there is a place for departmental Select Committees to approve certain key public appointments, but we do not believe that this is one of them.
In the Government’s June 2012 response to the House of Commons Liaison Committee’s report on public appointments, we indicated that,
“there are some posts where it is appropriate for Parliament to exercise a formal control over appointments”.
However, the response went on to say:
“This is exceptional and where the remit is associated with the functions of Parliament”.
That is not the case with this appointment, as it was not the case with the appointment of the director-general of the Serious Organised Crime Agency. The Home Affairs Select Committee will, of course, have a role in scrutinising the work of the National Crime Agency, in the same way as it has scrutinised the work of SOCA, and I believe it is in this capacity that it can best contribute. Indeed, Keith Bristow gave evidence to the committee as recently as 16 October, and I expect that he will be frequently before that committee to be challenged on how the NCA is performing.
The Government do not agree to Select Committees having an effective veto on a wider range of appointments and for that reason I ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for his response. He said that he does not agree with the Select Committee having what he described as the power of veto over an appointment. I do not exactly have the impression that the Minister is in favour of the Select Committee having any say in, or even being able to express any view on, the appointment to the post of director-general. I do not think the issue with the Minister is over the type of role the Select Committee should play but rather of it having any role in relation to the appointment of the director-general of the National Crime Agency, even to be able to interview the individual and to express a view to the Secretary of State on the appointment that he or she wishes to make. We need to be clear about that. This Government’s opposition is in fact to any involvement of the Select Committee in the appointment process for this post, unless the Minister wishes to stand up and contradict me over that. No, he is not contradicting me, so I think I have got it right. It is not about the wording of this amendment, and what the Minister has described as a power of veto, it is about any Select Committee involvement at all.
One can only say again that that is contrary to what is in the coalition agreement. Of course I can understand why the Minister is not too happy about the coalition agreement, because it provides a specific commitment to,
“strengthen the powers of Select Committees to scrutinise major public appointments”.
I should have thought that this was a major public appointment. There are real dangers over the occupant of this post being under pressure from the Secretary of State. The appointment is going to be made by the Secretary of State apparently without reference elsewhere. This individual will not have the protection of any sort of board between this individual and the Secretary of State. Clearly, everyone will want to be sure that the person appointed to this post is the kind of individual who will be capable of dealing with potentially very sensitive issues, including ones that may have political implications, and will not allow themselves to be in any way influenced by the Secretary of State in the decisions they make in what should be an operational matter. I should have thought that that was something that the Select Committee could at least seek to satisfy itself would be the case before the appointment was finalised. The Minister said that the Select Committee will have a role in scrutinising the work of the National Crime Agency. That will be a bit late when it comes to looking at what the director-general is doing because the director-general by then will have been appointed.
I note the Minister’s response. I cannot say that I am entirely surprised at the response that he has given on behalf of the Government, but I regret that response. I beg leave to withdraw the amendment.
Lord Taylor of Holbeach
My Lords, I have a job to steady the House on this issue. It is an important issue and I understand the commitment that noble Lords have shown in addressing it.
The functions of the National Crime Agency have been drafted in broad terms to ensure that the agency is able to tackle all the crimes that organised crime groups are involved in. However, it will also be important that the agency is able to react quickly to any changes in the threat picture. The creation of a new agency with a focus on national threats and the co-ordination of the UK-wide response naturally brings with it consideration of counterterrorism. We have always been clear that counterterrorist policing already has as it stands effective structures but that in time it might be right to consider these national arrangements in light of the reforms that have been made to the national policing landscape.
The maintenance of our highly regarded counter- terrorism policing effort is paramount. Any consideration of changes will not be undertaken lightly by any Government, nor is it wise to distract or disrupt the critical structures with unhelpful speculation. But it is also sensible that we give careful consideration to how we can best future proof the National Crime Agency for a potential role in counterterrorism in the future. 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 establishment of the NCA. Only then will it be right to look at how counterterrorism policing is co-ordinated across England and Wales and 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 that role might be.
Lord Lloyd of Berwick
I am not sure I entirely understand this and it may be important. Is there to be a further review after the creation of the new agency and before these powers are exercised? If there was to be a further review, I might be satisfied.
Lord Taylor of Holbeach
Absolutely: I assure the noble and learned Lord that that is exactly the process that we are talking about. It may help noble Lords in this regard if I explain how government policy would be determined by a consultative process before any decision was taken. I thank the noble and learned Lord, Lord Lloyd of Berwick, for making that point.
Clause 2 provides for an order-making power so that the Secretary of State can modify the NCA in relation to counterterrorism functions, including by conferring or removing functions. The order-making power is limited to changing the functions of the National Crime Agency. It does not provide the power to change the functions of other organisations unrelated to the National Crime Agency or to close down organisations. Given the importance of such a decision in the future, before an order can be made the Home Secretary will be required to consult any bodies that she considers will be affected by the order. The order itself will also be subject to the super-affirmative procedure, which is an extended programme of scrutiny by both Houses and indeed the committees of the House.
As a number of noble Lords have pointed out, the Joint Committee on Human Rights yesterday published its report on the Bill and, among other things, raised the question of the mechanism for modifying the functions of the agency. Indeed the report, not unlike the debate today, called for the removal of Clause 2. I can appreciate the concerns of the committee in relation to human rights—these will indeed be important matters for the Government to consider. However, the statutory mechanism for modifying the functions does not diminish the obligations on the Government to give consideration to, and provide assurance on, a whole host of possible implications of a potential future decision. Human rights are only one aspect of a number of consequential effects of any change in policy in this area.
In addition to the Government’s considerations on any future changes, it is important that Parliament can give due time and consideration to any future decisions to modify the agency’s counterterrorism functions. The super-affirmative procedure set out in Schedule 18 will provide Parliament with the appropriate level of scrutiny should an order be made in the future. The House has been reminded of the view of the Constitution Committee on this matter. I will take the opportunity to remind the House of the conclusions of the Delegated Powers and Regulatory Reform Committee. In its report on the Bill it made no recommendation in respect of this power but did comment:
“The idea of adding to a statutory body’s functions by subordinate legislation subject to a Parliamentary procedure is well established”.
There is nothing new in this process that offends the traditions of Parliament.
Lord Harris of Haringey
Is there another example of where powers have been added to an existing body that completely distort the functions of that body and increase its activities by 50% or 100%? When the noble Lord answers that point perhaps he can also tell the House why the Government are so desperate to be able to do this by an order-making power rather than by coming back to the House with perhaps a small piece of legislation that has already had the very full consideration that he describes and which could be debated in the normal way.
Lord Taylor of Holbeach
A number of noble Lords will remember that in a previous role in this Government I took through the House the Public Bodies Bill where issues such as this occurred. I should emphasise that any bodies affected by any change will be consulted and the whole matter will be a matter of public debate. It is not going to be sprung as a surprise on an unwitting Parliament.
The noble Baroness, Lady Smith, mentioned Northern Ireland and I was grateful for the sensitivity with which she raised this issue. It is complex and I think noble Lords will appreciate that. We will have an opportunity on the ninth group of amendments to discuss it more fully. The order-making power recognises the important and different arrangements in respect of counterterrorism policing in Northern Ireland and the clause is drafted to respect those arrangements. Should an order be made to confer counterterrorism functions on the National Crime Agency in the future then the agency will require the prior agreement of the Chief Constable of the Police Service of Northern Ireland before it can undertake activities in Northern Ireland in relation to the prevention and detection of terrorism. This arrangement reflects and preserves how the operational relationships work at the moment in relation to counterterrorism policing in Northern Ireland.
It is critical that in creating the National Crime Agency, we do not limit its ability to respond to the changing threat picture of the future. For this reason, the statutory remit of the agency is broad, yet it provides a clear mandate for the agency. However, the clear remit conferred on the agency by Clause 1 and the flexibility of these arrangements go only so far and would not provide sufficient scope for the agency to take on a counterterrorism role in future. This order-making power affords the necessary flexibility to extend the agency’s functions to encompass counter- terrorism.
Lord Harris of Haringey
I am grateful to the noble Lord for giving way a second time. Would the order-making power enable the Government to change the Police Act 1996 which confers counterterrorism responsibilities on the Metropolitan Police?
Lord Taylor of Holbeach
The effect of the order-making power would be to make new arrangements for counterterrorism policing in the United Kingdom, if that was the decision that was made. I cannot state the matter more clearly. No decision has been made. I am arguing neither for nor against the change. I speak neither for the status quo nor for the future. I am seeking to provide through the Bill a mechanism by which future government decisions can be reflected after a due process of consultation with all bodies involved and after the parliamentary process.
We expect police and other partners to be fully involved in the review when the time is right. Any decisions should be evidence-based and preserve those features of the current arrangements that work well. No one is going to upset an arrangement that is fully satisfactory unless they can be certain that the alternative arrangement will be an improvement.
We all recognise that counterterrorism policing structures work effectively. It is right and proper that we do not rush decisions in relation to counterterrorism now. Equally we do not want to rule out the possibility of some change in the future. I therefore urge the noble Baroness to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for explaining some of the reasoning behind the Government’s position. At the very beginning of his comments, he said something with which I entirely agree. If my handwriting was fast enough to catch his comments, he said, “In time it might be right to consider these national arrangements with changes to the national policing landscape”. I entirely agree with him on that point. It may well be the right thing to do, but the issue is the consideration that your Lordships’ House is able to give to those proposals. The Minister referred to a review on this issue. My understanding is that there is a Home Office review, but it seems a bit premature to make decisions at this stage to give a power to the Government to transfer the counterterrorism function from the Metropolitan Police to the new National Crime Agency without the full consideration in Parliament that a primary legislation route would allow. This is an extremely serious issue. As I said in my original comments, nothing is a more serious function of government than ensuring the safety and security of citizens.
I am not an expert on counterterrorism. I defer to the noble Lords, Lord Blair and Lord Condon, in the role that they have had. They expressed serious reservations about the transfer. They said that that is not the issue at stake today and made the case that it should be undertaken only after full scrutiny. The noble Lord, Lord Condon, said that he did not want to see a turf war between the Metropolitan Police and the National Crime Agency. The noble Lord is absolutely right in that. I do not think that there will be a turf war. My experience of those involved in counterterrorism responsibilities and security is that they want what is best. I think that they would have an enormous contribution to make if this House were discussing the issues and we had legislation before your Lordships’ House and the other place on the role of the security agencies and the role of those involved in counterterrorism in the Met. They would make presentations to your Lordships’ House and to committees—perhaps to a Select Committee—and that would be extremely valuable in considering this issue.
The noble Lord, Lord Dear, said that he felt that the NCA could, in time, be a proper receptacle for counterterrorism. It may well be, but I do not think that is the issue today. The issue is whether it is appropriate at this stage to give the Government the power to transfer counterterrorism from the Met to the National Crime Agency by a super-affirmative order. I personally think that the super-affirmative order is a clumsy legislative mechanism. Noble Lords who have read Schedule 18 might not be reassured by that. However, the route of primary legislation gives this House an opportunity to exercise its responsibilities in this regard.
To give the Government the power to transfer counterterrorism from the Metropolitan Police to the new National Crime Agency without full parliamentary scrutiny would be a serious step. The Constitution Committee has voiced concerns about it. The Joint Committee on Human Rights has said that this clause should be deleted from the Bill. The role of Parliament is properly to scrutinise legislation and properly scrutinise such serious matters. This clause will severely restrict the right of Parliament to scrutinise such a transfer of some of the most important responsibilities that the state holds. The Minister has sought to reassure us on this issue, but he has not been able to do so. I beg leave to test the will of the House.
Lord Taylor of Holbeach
My Lords, I shall come to the amendments proposed by the noble Baroness, Lady Smith, but will start with Amendment 18. When my noble friend Lady Hamwee debated the amendment in Committee with my noble friend Lord Henley she called it a googly and I shall have to make sure that my batting is in order to deal with it.
Paragraph 4 of Schedule 2, which my noble friend seeks to amend—although I sense a little probing in her amendment—sets out the Secretary of State’s duty to consult the director-general on the framework document and obtain his consent to that document before it is published. In drafting the paragraph it occurred to us that there was room for confusion. We have already established in Clause 4 that the director-general must have regard to the annual plan and the framework document. How, then, should he respond if a proposed revision to the framework document should be seen to be in direct conflict with the annual plan? I have the answer to that conundrum: the framework document deals with the ways in which the NCA is to operate—in other words, the how—and the annual plan deals with the what: the NCA’s planned activity for the coming the year. So in considering the framework document it is, admittedly, unlikely that the director-general should think to himself, “Dear me, that point about the NCA’s publication arrangements is not compatible with this year’s plan”. However, if he should happen to have such a thought, he should not let it influence him because it does not make sense to allow the annual plan that is issued for the current year to influence his judgment about whether the framework document arrangements are appropriate when they are meant to apply over the longer term. Hence we indicate in paragraph 4(2) that:
“The Director General’s duty to have regard to the annual plan in exercising functions does not apply in relation to”,
the function he is given in paragraph 1—namely the function of giving or withholding consent to the framework document. My noble friend’s amendment replaces the reference in paragraph 4(2) to the functions under sub-paragraph (1) with a more explicit reference to the director-general’s function of responding to the Home Secretary’s consultation and conferring, or otherwise, his consent. That is exactly the sense in which sub-paragraph (2) is intended to read, and since her amendment does not change the sense of the paragraph, I do not think that it is necessary to make it. However, I hope that I have been able to clarify the necessity of this provision.
Perhaps I may turn to Amendment 19 tabled by the noble Baroness, Lady Smith. It seeks to include the strategic partners among those who must be consulted on the framework document. I have to say to the noble Baroness that we remain unconvinced of the need to expand the list of statutory consultees. As has already been indicated by my noble friend Lord Henley, the framework document is a document that is drawn up by the Home Secretary and the director-general and they are the only two people who are required to have regard to it. Given that the intention is for the National Crime Agency to operate UK-wide, it is obviously right and proper that the devolved Administrations are consulted on the framework document because the NCA will be operating in their jurisdictions, but it appears to me to be wholly unnecessary to provide a statutory duty for the NCA to consult all in law enforcement about how it will arrange its own affairs. The last thing we want is a document that the Home Secretary and the director-general are required to have regard to but which is in effect an unworkable myriad of partners’ expectations laid at the agency’s door.
I turn finally to Amendment 20. This amendment returns to the question of whether the framework document should be subject to parliamentary approval. I apologise to noble Lords if they have not received the letter that my noble friend Lord McNally and I have written. A copy of the letter was sent to the noble Baroness and to the noble Lord, Lord Beecham, and I am sorry if they have not received it. I also sought to make arrangements for the document to be available in the Printed Paper Office today, but I have to say that when I went into the office shortly before I came to answer Questions here in the House, I noted that it was not there. I apologise to noble Lords for that because I take seriously my responsibility to try to inform them on these issues. However, I am pleased that we do at least have the outline framework document to inform our debate today.
This is going to be an important document that deals with the way in which the NCA is to operate. It is also clearly subsidiary to the actual provisions in the Bill. This is evidenced by the outline which I have sought to provide to noble Lords. On that subject, I note the disappointment of the noble Baroness in the document I have supplied, but I put it to noble Lords that it would be premature, at this stage in the legislative process, to produce a full draft of the document. The contents of the document should be informed by the parliamentary debates on the Bill as well as by the detailed work in progress to build the agency. But although it is only an outline of the final document, it does move us forward. It sets out clearly what the Government expect the framework document to cover and what it will not, a matter on which Peers were seeking clarity. It also answers a number of questions put by noble Lords, and in particular it gives an outline of the NCA’s management board arrangements, underlines the fact that the CEOP six principles will be upheld in the NCA, and clarifies that the director-general is expected to notify the Home Secretary and the relevant PCC of any use of directed tasking or directed assistance powers.
By sharing the outline I hope that I have given noble Lords some new information and I will be very interested to hear their comments, which will help to inform our ongoing work on the framework document. However, given that the outline clearly shows that the document will be subsidiary to the legislation and that it will be essentially an agreement between the Home Secretary and the director-general about how they will do their jobs in respect of the NCA, I do not think that it is either necessary or proportionate to require parliamentary approval. I am sure that had the Delegated Powers and Regulatory Reform Committee taken a contrary view, it would have done so, but we can take it from the committee’s report on the Bill that it was evidently content for this document to be laid before Parliament and no more.
In summary, while the framework document will clearly be an important procedural document for the director-general and the NCA, it is wholly secondary to the legislation and directly impacts only on the NCA and the Home Secretary. I therefore do not consider it necessary to require parliamentary approval or to expand the statutory consultation required for the document. I trust also that my noble friend Lady Hamwee is now clear about the relationship between the annual plan and the framework document, and the director-general’s functions in that regard. On the basis of my reassurances on this matter, I hope that my noble friend will be able to withdraw her amendment.
Lord Taylor of Holbeach
My Lords, that was an interesting contribution from the noble Lord, Lord Harris of Haringey, on this series of amendments. I am pleased that the noble Lord, Lord Rosser, has drawn these amendments to the attention of the House again—they are in a somewhat changed form but really representing the same point as before—because it draws attention to the tasking responsibilities and the arrangements between the National Crime Agency and UK police forces. It is important to stress—and I think I can reassure the noble Lord, Lord Harris, on this—that chief constables head up the operational arrangements for police forces and that the director-general deals with the operational arrangements within the NCA. I am afraid that I take the view that he thought I would take. I am sure that these are perfectly proper roles. We will come on perhaps to talk about how relationships between PCCs and chief constables might develop. They are not part of the Bill but they are associated with the issues that these amendments cover. I will say that these amendments do not apply to Scotland or Northern Ireland, where they do not have PCCs.
(a) the crime-reduction function,(b) the criminal intelligence function, or(c) functions conferred by the Proceeds of Crime Act 2002.”
Lord Taylor of Holbeach
My Lords, I am pleased to propose this short series of government amendments. Intelligence will sit at the heart of the National Crime Agency and will drive its crime-fighting activity across its operational commands. The NCA’s intelligence hub will be a vital component of the fight against serious and organised crime. It will gather intelligence to identify targets and threats and will enable the agency to direct operational activity against the most serious threats to the public.
The success of the NCA’s intelligence hub will be based on its ability to access and analyse information. Recent serious crimes have strongly highlighted the need for strengthened information-sharing agreements across government and the law enforcement community. Schedule 3 already contains a duty on UK police forces to keep the NCA informed of any information they hold which appears to be relevant to the exercise of NCA functions and to disclose this information on request.
However, we know that organised crime gangs come into contact with a number of different agencies. They are involved in corruption, using fraudulent passports and in some cases amassing property empires, as well as gun running and drug dealing. We believe that the public can be better protected from the damaging effects of serious and organised crime by improving the intelligence picture across a wide range of organisations. As a result, Amendment 25 will extend the existing duty on the police to the Serious Fraud Office, the UK Border Agency and the UK Border Force, to increase the information flows between the NCA and a wider range of government bodies.
Amendments 31 and 120 complement Amendment 25 by conferring a power to add to the list of bodies subject to the information-sharing duty by order. Any such order would be subject to the affirmative procedure. This is necessary for two reasons. First, it is a reality that the remit and structures of relevant agencies and bodies change over time; for example, in response to the changing nature of a threat. Secondly, if an organisation consistently refused reasonable and appropriate requests for information, to the detriment of collective law enforcement efforts to respond to serious criminal activity, it would be right and proper for the Government to have the means to consider, through secondary legislation, whether that body should be subject to the strengthened duty to share information.
Of course, information sharing needs to be balanced with safeguards to protect personal and other sensitive information. Schedule 7 to the Bill sets out a number of important restrictions which will apply to the onward disclosure of information by the NCA. Amendment 36 is a drafting amendment which makes it clear beyond doubt that those restrictions on onward disclosure apply to the duty to share as well as to the permissive gateway in Clause 7.
Finally, Amendment 24 brings the duty on UK police forces in Schedule 3 into line with the new duty on the Serious Fraud Office, the UK Border Agency and the UK Border Force. This means that the duty on UK police forces is also now restricted to the crime reduction, criminal intelligence and the Proceeds of Crime Act functions conferred on the NCA. I beg to move.
“Duty to keep NCA informed: government bodies4A (1) Each specified body must keep the Director General informed of any information held by that body which—
(a) is held in connection with the exercise of a relevant function of that body, and(b) appears to that body to be relevant to the exercise by the NCA of—(i) the crime-reduction function,(ii) the criminal intelligence function, or(iii) functions conferred by the Proceeds of Crime Act 2002.(2) Where a specified body informs the Director General of such information, that body must disclose to the NCA any of that information which the Director General requests that body to disclose.
(3) This paragraph does not require a specified body to keep the Director General informed of information which appears to that body to be information obtained (whether directly or indirectly) from the NCA.
(4) This paragraph does not require the Director of the Serious Fraud Office to keep the Director General informed of, or to disclose to the NCA, any information obtained under section 2(2) or (3) of the Criminal Justice Act 1987 (information which the Director of the SFO may require a person to produce etc).
Duty to keep government bodies informed4B (1) The Director General must keep each specified body informed of any information obtained by the NCA in the exercise of any NCA function which appears to the Director General to be relevant to the exercise by that specified body of any relevant function for the purposes of carrying out activities to combat crime.
(2) This paragraph does not require the Director General to keep a specified body informed of information which appears to the Director General to be information obtained (whether directly or indirectly) from that body.
Meaning of “specified body” & “relevant function”4C In paragraphs 4A and 4B—
(a) “specified body” means a body specified in the first column of this table;(b) “relevant function”, in relation to such a body, means a function that falls within the functions specified in relation to that body in the second column of this table.
Specified bodies | Relevant functions |
|---|---|
The Secretary of State. | Functions relating to immigration, nationality or customs. |
The Director of Border Revenue. | All functions. |
The Director of the Serious Fraud Office. | Investigatory functions (but not any prosecution functions).” |
Lord Taylor of Holbeach
I thank the noble Baroness for raising these issues. Of course, it is important that we consider the impact of this legislation on Northern Ireland, which the noble Baroness and I have discussed.
It is critical that the National Crime Agency has a UK-wide presence, reflecting the reach and threat of organised crime. In providing a UK-wide presence it is equally important that the arrangements for the National Crime Agency respect the devolution of policing and justice in Scotland and Northern Ireland. As the activities of the National Crime Agency touch on a mix of transferred, reserved and excepted matters in Northern Ireland, the provisions require the consent of the Northern Ireland Assembly, in so far as they cover transferred matters.
As the House is aware, securing legislative consent is a devolved process. The Home Office and the Northern Ireland Office are supporting the Department of Justice in Northern Ireland to take forward these discussions. I am pleased to say that David Ford and his department are engaged in constructive discussions with the parties in Northern Ireland with a view to securing a collective discussion in the Northern Ireland Executive Committee and thereafter in the Assembly.
I recognise that progress has not been as quick as we might have liked. I also know that the interests of the noble Baroness, Lady Smith—like those of the Government—are firmly focused on ensuring that the National Crime Agency will have a UK-wide presence but that the arrangements work for Northern Ireland. I share the House’s disappointment with the slow progress, but it is critically important that the Northern Ireland Executive and the Assembly are reassured that, through proper scrutiny, the proposals will work in Northern Ireland.
I also appreciate that the Bill is nearing the completion of its passage through the House and that there is some concern that the House is being asked to endorse the NCA provisions before the Northern Ireland Assembly has had an opportunity to debate the legislative consent Motion. However, we have until the last amending stage—Report—in the other place to secure legislative consent. Should amendments be made in the other place, this House will of course have an opportunity to consider them in the spring.
I know that the House might have liked more details of how the negotiations are going, but I hope that noble Lords will understand that we should give David Ford the necessary space to continue his discussions. I am sure that he will wish to take note of what the noble Baroness has said in this debate. I can undertake to update her on progress in due course, but for now I ask her to withdraw her amendment.
I will turn briefly to the amendment at hand, which concerns paragraph 11 of Schedule 3 and seeks to provide additional consultation requirements to the Department of Justice in Northern Ireland before directing the director-general of the National Crime Agency to provide assistance to the Police Service of Northern Ireland, subject to the consent of the Home Secretary. This is not unlike the additional consultation arrangements provided for under paragraph 12, whereby the Department of Justice in Northern Ireland must consult the Northern Ireland Policing Board and others before issuing a direction to the Police Service of Northern Ireland to assist the National Crime Agency. This is an important protection to the backstop arrangements for directed assistance from a devolved body—in this case, the Police Service of Northern Ireland—to the National Crime Agency.
Among its other responsibilities, the Northern Ireland Policing Board sets the Policing Plan for the Police Service of Northern Ireland and as such has an interest in how devolved policing resources are being deployed, particularly if diverting resources meant that the objectives of the Policing Plan would not be achieved. It is with a view to that relationship and the interests of the Policing Board that additional consultation has been provided where the direction impacts on the provision of assistance by a devolved body. However, this will not be the case when assistance is provided by the National Crime Agency to the benefit of the Police Service of Northern Ireland.
I am sure that this amendment is seeking to provide an additional safeguard to Northern Ireland, but these further consultation requirements will only add further bureaucracy and delay to the National Crime Agency providing assistance to the Police Service of Northern Ireland in the unusual event that a direction is used. Furthermore, as I have indicated, discussions on the arrangements for the National Crime Agency are ongoing in Northern Ireland and it will be for the Northern Ireland Executive and Assembly to consider whether the arrangements are appropriate and what changes may be needed, if any. Only at that point will it be right for the Government to consider if changes are needed to the Bill—rather than for Westminster to decide what is in the best interests of Northern Ireland.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for talking about the wider context as well as the specific amendments. Although some of the contentious issues will have been removed with the deletion of Clause 2, he is quite right that some will remain and a legislative consent Motion will still be required.
I am grateful for the Minister’s offer to start to update me on the progress of negotiations. He will be aware that I have been asking for such information and my noble friend Lord Rosser tabled a parliamentary Question regarding the implications of this Bill for Northern Ireland. There has not been much information from the Government, which is frustrating because this matter has to be resolved.
I am not clear what the implications are for the Bill as a whole if a legislative consent Motion cannot be obtained. Perhaps the noble Lord could look into this and give us some advice on that. I am happy for him to write to me on that point. This underscores how important it is to reach this agreement with David Ford, the Minister of Justice, and with the Northern Ireland Executive as a whole.
I am grateful for the Minister’s explanation of why he is resisting my amendment—I am used to his explanations of why he is resisting my amendments. He will be pleased to hear that I do not intend to press this matter to a vote, but I would like to read his comments in Hansard and share them with my honourable friend Vernon Coaker in the other place. I beg leave to withdraw the amendment.
“Duty to provide information etc: power to amend specified bodies etc30A (1) The Secretary of State may, by order, amend paragraph 4C of this Schedule by making any of the following kinds of provision—
(a) provision adding a person to the specified bodies in the relevant table;(b) provision specifying in the relevant table one or more relevant functions in relation to—(i) the Secretary of State, or(ii) a person added to the specified bodies by virtue of sub-paragraph (a);(c) provision removing from the relevant table provision made by virtue of sub-paragraph (a) or (b).(2) But the Secretary of State may not add any of the following to the specified bodies—
(a) a person operating only in Scotland;(b) a person operating only in Northern Ireland.(3) Before making provision under this paragraph which adds a person to the specified bodies, the Secretary of State must consult that person.
(4) In this paragraph “relevant table” means the table in paragraph 4C.”
Baroness Smith of Basildon
My Lords, I raised this issue in Committee with the then Minister, the noble Lord, Lord Henley. The debate got into a pickle and he was not able to answer all my questions. He kindly wrote to me, which was helpful up to a point but did not allay my concerns over this particular clause. My Amendment 31B seeks to delete paragraph 5 of Schedule 5, which is about the advisory panel. I admit that even after the debate in Committee and the letter from the noble Lord, Lord Henley, I remain really puzzled by the purpose of both that paragraph and the clause.
The Bill before us allows for an advisory committee to be set up to advise the Secretary of State once the director-general has been appointed as to the operational responsibilities that the director-general should have. I fully understand that not all candidates and not necessarily every director-general who will be appointed for however long it is will have all the skills and expertise in the wide-ranging areas of responsibility that the National Crime Agency will have. But the advisory panel, if it is the panel of experts that I am told it will be, is not to be set up prior to interview and so will not be able to ascertain with the Secretary of State what additional support a potential director-general would need. Instead, the Secretary of State can appoint an advisory committee after somebody has been appointed—although she or he does not have to set up such a panel—to give advice on the operational responsibilities.
When the then Minister responded previously, he said that the Secretary of State for the Home Office,
“will make an assessment of the director-general’s suitability and capability to exercise the operational powers in any given case. It might be that the advisory panel, through its chair, could then assess whether the director-general was adequately trained to exercise those operational powers”.—[Official Report, 20/6/12; col. 1824.]
So the Secretary of State, presumably prior to appointment, decides that the director-general is capable and suitable to have these operational powers. Then, having made a decision, she—one day we might have a he again—may ask an advisory panel to advise on what training is required. That is where this starts to break down. If this role is so important as to give the Secretary of State that advice, why is it an ad hoc body?
The reason given in the letter to me from the noble Lord, Lord Henley, was basically, as I have pointed out, about what a wide-ranging group of responsibilities there are and that it would be unusual and unlikely to find somebody who had the capacity and ability in all the areas they would need to have. But before the agency is set up, the Secretary of State has appointed a director: Keith Bristow. Clearly she is entirely confident that he has all these capabilities—although we are not clear what some of those capabilities could be because we have not yet seen a framework document—because she has not set up an advisory panel.
I can understand why it would be helpful prior to interview for the Home Secretary to have a committee of experts which would decide the operational powers required. I would have thought that those should be given in the job description for a director-general. The committee would say, “This particular candidate does not have this or that, but there is training”, and then look at what support was required so that the candidate chosen would have all of it. That is not what is here today.
I then find it strange that the Secretary of State can do away with the committee anyway and not have it there. If it is needed, it should be there permanently; if it is not needed, it should not be there at all. This is confusing and has not really been very well thought out. As I said, the previous response from the Minister did not give me the answer I sought. I am not likely to press this to a Division but I need to understand why the Government think this is an appropriate way forward; what skills they would expect the panel to have; and why, if it is so important that the Secretary of State has that advice, she can choose, basically on a whim, not to have it.
Lord Taylor of Holbeach
I shared with the noble Baroness an initial uncertainty over what this is about but it is to ensure that an appointee to the post of director-general has the proper skill base to exercise the operational functions that go with that job. We have an exceptional appointment in Keith Bristow because he has exercised the office of chief constable. There is no anxiety in that respect. Of course, any future appointment—we hope these will not be made that frequently—will need to have a process to make sure that we get the right person and then to ensure that there is a methodology in terms of operational authority, skills and competence.
I am very happy to make a second attempt at writing to the noble Baroness on this because I understand the complication and the somewhat complicated process of an ad hoc advisory committee to deal with these matters within the regulation. I am assured that it is the most effective way to ensure that no shortcuts are taken in this process and that we end up with a director-general of the NCA who has these powers. Having given an ad lib answer, I will, if noble Lords will allow me, go through what I have written here, too, because it is useful to reiterate the background.
First, the Bill is explicit on the powers that can be designated, those being police, customs and immigration powers. Secondly, the director-general will be subject to the same tests of suitability, capability and training as other NCA officers. That is an important part of consistency and a critical point of assurance given the range of powers we are talking about. There is a broad range of powers. Thirdly, through the advisory panel the Bill provides independent assurance on the training to the Home Secretary before a designation can be made. Fourthly, any setting aside of the part played by an advisory committee is subject to regulations that have to be made under an affirmative procedure. This regulation-making power does not undermine the arrangements for the advisory panel; rather, the two provisions will work together.
Police, customs and immigration powers provide an extensive suite of operational powers. It is right that the DG, as an NCA officer, has to go through the same checks of adequate training as other NCA officers—as well as suitability and capability on appointment—to be designated with those operational powers. That is what the advisory panel is for: to provide an independent check on the adequacy of the training so that the Home Secretary can designate the director-general with operational powers. The regulation-making power is necessary for circumstances where a prospective director-general has already undertaken the training necessary to enable him or her to exercise particular operational powers. In those circumstances it is sensible that the advisory panel is not required to consider whether the prospective appointee has the necessary training. Keith Bristow is a case in point. As a police officer he has been extensively trained in police powers throughout his career and is a highly experienced investigator. There can be little question that he has the necessary training to exercise the powers of a constable.
“(d) omit subsection (7).”
“Continuity in relation to functions5A (1) The abolition of SOCA or the NPIA does not affect the validity of anything done before the abolition.
(2) The transfer of a function does not affect the validity of anything done before the transfer.
(3) Sub-paragraphs (4) to (6) apply in relation to the transfer of a function.
(4) Where anything—
(a) relates to the transferred function, and(b) is in the process of being made or done by or in relation to the transferor immediately before the transfer takes effect,it may be continued afterwards by or in relation to the transferee.(5) Where anything—
(a) relates to the transferred function,(b) has been made or done by or in relation to the transferor, and(c) is in effect immediately before the transfer takes effect,it has effect afterwards as if made or done by or in relation to the transferee.(6) The transferee is to be substituted for the transferor in any documents and other instruments, contracts or legal proceedings which—
(a) relate to the transferred function, and(b) are made or commenced before the transfer takes effect.(7) The Secretary of State may, by direction, determine any question under this paragraph as to—
(a) whether there has been a transfer of a particular function, or(b) the person to whom there has been a transfer of a particular function.
(8) The preceding provisions of this paragraph are without prejudice to the powers under section 32 (transitional, transitory or saving provision).
(9) The following provisions of this paragraph apply for the purposes of this paragraph.
(10) A reference to—
(a) the abolition of SOCA includes a reference to the ending of a person’s membership of SOCA or membership of the staff of SOCA;(b) the abolition of the NPIA includes a reference to the ending of a person’s membership of the NPIA or membership of the staff of the NPIA.(11) A reference to the transfer of a function is a reference to—
(a) the transfer of a SOCA function by or under this Act,(b) the transfer of an NPIA function by or under this Act, and(c) the assumption of a third party function by the NCA.(12) For that purpose—
(a) the reference to the transfer of a SOCA function or NPIA function by or under this Act includes a reference to a case where—(i) a SOCA function or NPIA function is abolished, and(ii) a corresponding function is conferred on another person,by or under this Act; (b) the reference to the assumption of a third party function by the NCA is a reference to the case where—
(i) a function (other than a SOCA function or an NPIA function) is exercisable before the changeover by a person (the “third party”),(ii) a corresponding function is included in the NCA functions, and(iii) a person employed by, or otherwise serving, the third party wholly or partly for the purpose of the exercise of the function becomes an NCA officer under a staff transfer scheme;and references to the transferred function, the transferor and the transferee are to be read accordingly.(13) A reference to a thing being, or having been, made or done includes—
(a) a reference to—(i) a document or other instrument being, or having been, made or otherwise produced,(ii) a contract being, or having been, agreed, and(iii) legal proceedings being, or having been, brought; and(b) a reference to a thing being, or having been, made or done under—(i) a document or other instrument,(ii) a contract, or(iii) legal proceedings.(14) A reference to a thing which relates to a transferred function includes a reference to a thing made or done for the purposes of, or otherwise in connection with, a transferred function.
(15) These expressions have the meanings given—
“instrument” includes a designation, authorisation, warrant, or order of any court;“NPIA functions” means functions of—(a) the NPIA,(b) a member of the NPIA, or(c) a member of the staff of the NPIA;“SOCA functions” means functions of—(a) SOCA,(b) a member of SOCA, or(c) a member of the staff of SOCA.Continuity in relation to subordinate legislation5B (1) After the changeover, the subordinate legislation specified in an entry in the first column of the following table—
(a) continues to have effect (subject to any subsequent amendment or revocation) as if made under the powers conferred by the provision of this Act specified in the corresponding entry in the second column; and(b) may be amended or revoked by (in particular) the exercise of the powers conferred by that provision.
Subordinate legislation | Provision of this Act |
|---|---|
The Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order 2006 (S.I. 2006/987) | Paragraphs 27 to 29 of Schedule 5 |
The International Joint Investigation Teams (International Agreement) Order 2009 (S.I. 2009/3269), insofar as it is made under powers conferred by the Serious Organised Crime and Police Act 2005 | Paragraph 5(1)(c) of Schedule 4 |
The Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2010 (S.I. 2010/1955) | Paragraph (p) of the definition of “permitted purpose” in section 16(1) |
The Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order 2006 (S.I. 2006/987)
Articles 2 and 4(4) and paragraph 21 of Schedule 1 | The reference to section 43(1)(a) of the Serious Organised Crime and Police Act has effect as a reference to section 9 or 10 of this Act |
Articles 3(b) and 4(1)(b) | The reference to Chapter 2 of Part 1 of the Serious Organised Crime and Police Act 2005 has effect as a reference to Part 1 of this Act |
Article 4(3) | The reference to section 46 of the Serious Organised Crime and Police Act 2005 has effect as a reference to Part 4 of Schedule 5 to this Act |
Article 5 and Paragraph 6 of Schedule 2 | The reference to section 43(1)(c) of the Serious Organised Crime and Police Act 2005 has effect as a reference to section 9 or 10 of this Act |
Articles 6(b) and 7(1)(b) | The reference to Chapter 2 of Part 1 of the Serious Organised Crime and Police Act 2005 has effect as a reference to Part 1 of this Act |
Schedule 1 | Each reference to a SOCA office has effect as a reference to a place for the time being occupied by the National Crime Agency |
Article 2(d) | The reference to sections 30(5)(c) and 57(6)(c) of the Serious Organised Crime and Police Act 2005 has effect as a reference to paragraph 5(1)(c) of Schedule 4 to this Act |
Article 2 | The reference to section 33 of the Serious Organised Crime and Police Act 2005 has effect as a reference to the definition of “permitted purpose” in section 16(1) of this Act |
(4) The preceding provisions of this paragraph are without prejudice to sections 31 (consequential amendments) and 32 (transitional, transitory or saving provision).”
Lord Taylor of Holbeach
My Lords, the Government take their own view on issues, although we, of course, respect the Joint Committee and all its works. I am very grateful to my noble friend for raising this issue. She cares greatly about the responsibility of government to provide transparency and the Freedom of Information Act is just one thing that can be used to provide transparency.
As the noble Lord, Lord Rosser, said, my noble friend Lord Henley dealt with this at the Committee stage. We are committed to ensuring that the National Crime Agency will be open and transparent to the public which it has been created to protect. That commitment is clearly set out in Clause 6. The intention is that this organisation will be fundamentally more public-facing than its predecessor organisations and open in its relationships with the public, partners, the media and, of course, Parliament. Indeed, in the framework document, under the second bullet point in item 10, noble Lords will note a duty to publish information in accordance with publication arrangements that will be set out in a future annexe. It is really designed to indicate in the framework document itself the importance that the Government attach to this. We want the public to be able to access as wide a range of information about the NCA as possible provided it does not compromise in any way the NCA’s effectiveness in fighting crime. We expect that this will include information on what the NCA is doing to tackle serious and organised crime, what it is spending and how well it is doing—so performance indicators as well.
I want to reassure noble Lords that the decision to exempt the NCA from the FOI Act was not taken lightly. We considered this carefully, having particular regard to the fact that some of the precursor functions transferring from the NCA have been undertaken by bodies that are currently subject to the FOI Act. That has been pointed out by both noble Lords. The agency’s largest precursor, the Serious Organised Crime Agency, including CEOP, has not been subject to the FOI Act since its inception. However, we have analysed the FOI requests made to other precursor bodies, such as the NPIA, and we are confident that the agency can balance being FOI-exempt with proactive publication to ensure that there is no loss of public transparency as a result of the approach being taken in the Bill.
I recognise the efforts made in this amendment to apply a partial application of the FOI Act. However, we remain of the view that a blanket exemption is the most appropriate arrangement, not for administrative convenience but to ensure full effectiveness and as a critical operational safeguard. We are talking about a fully integrated, crime-fighting, operational agency that will be charged with spearheading the fight against some of the most dangerous and pernicious criminals and crime groups that impact our communities. Some information about the discharge of those functions will be fit for release into the public domain; some will not. The distinction does not come from an arbitrary line drawn in legislation that seeks to differentiate some of the NCA’s functions from others; it comes from a deep understanding of the types of information that no one would want to fall into the wrong hands. I firmly believe that the National Crime Agency will be able to make this distinction.
I recognise the argument that the scope of the exemptions provided for in the FOI Act could potentially apply to much of the material that the National Crime Agency is seeking to protect. However, as my noble friend Lord Henley said, this is not the only consideration. First, the National Crime Agency will depend on the absolute confidence of its partners to provide the backbone of the agency’s superior national intelligence picture. If those partners believe that sensitive information held by the agency could be subject to public release, they are likely to be more inhibited about sharing that information with the NCA in the first place. Chief among these concerned partners are those in the private sector and overseas—partners who are perhaps not as familiar with FOI as we are.
Secondly, intelligence shows that organised criminals are increasingly sophisticated in their methods and seek to exploit any avenues possible to further their criminal activities. The FOI Act offers them an opportunity to acquire information about the NCA’s operational tactics, to disrupt its operations and to evade detection. While the exemptions might apply to some of this information, the risk is that it might not always be the case.
In short, we remain resolute in our decision to maintain the NCA’s exemption from the FOI Act. To do otherwise would jeopardise the NCA’s operational effectiveness and ultimately result in lower levels of protection for the public. While partial application of the FOI Act might, at face value, look attractive, it is simply not a viable option for an integrated crime-fighting agency. In the mean time, the whole purpose of the duty to publish will be to provide the public with as much information about the organisation’s activities as possible. For these reasons, I urge my noble friend to withdraw her amendment.
Baroness Hamwee
My Lords, I opened the debate on these amendments by saying that some of our colleagues might be surprised by how quickly the next amendments are dealt with. I could, of course, deal with that, giving them warning by dividing the House, but that may not be possible and I think I see signs that the Whips have the matter in hand. I would say to the noble Lord, Lord Rosser, that what is worse than being illogical—to my mind and, I suspect, to his as well—is to betray one’s values.
I anticipated most of the Minister’s arguments, not surprisingly because they largely repeated, and were consistent with, what we were told at the previous stage. Noble Lords have been directed to the duties under Clause 6, but the problem with reports such as this that are in the hands of the organisation which is the subject of one’s concern, is that that organisation itself determines the content and the depth of information and the level of detail. The use of freedom of information requests puts the impetus in the hands of the person making the request. There is quite a different balance in this. The provisions in the Bill are to be subject to whatever is in the framework document and what the annexe to the framework document has to say will be extremely important. I look forward to seeing what that may be.
I remain disappointed, but the Minister probably anticipated that. He will not be surprised by my last remark, which is that the freedom of information regime should not be optional. Having made that point, I beg leave to withdraw the amendment.
“117A In section 333A (tipping off: regulated sector), in subsection (2)(d), for “member of staff of the Serious Organised Crime Agency” substitute “National Crime Agency officer”.”