Railways: Transport for the North

Debate between Lord Young of Cookham and Lord Rosser

Thursday 19th July 2018 Lords Chamber

[Lord Young of Cookham]

I am very glad that my franchise runs out after seven and a half minutes. I fundamentally disagree with the noble Lord. We have seen a doubling of passenger traffic on the railways. Crucially, we have created a railway operating industry, which we never had before. We had a monopoly with British Rail. If it was not any good there was nothing you could do about it. We now have competing train operating companies and we have unlocked private investment in infrastructure. I wholly reject the negative proposition that my former noble friend put forward.

[Lord Rosser (Lab)]

My Lords, with rail passengers’ satisfaction with their journeys falling, the Commons Public Accounts Committee describing the Department for Transport’s management of two major franchises as completely inadequate, the Department for Transport admitting its part in the current new timetable shambles as a sponsor of the Thameslink programme and a member of the Thameslink Industry Readiness Board, and with the Secretary of State’s decision that an independent inquiry into the Thameslink 2018 new timetable problems is to be conducted by the Office of Rail and Road and led by the chairman of the Office of Rail and Road, with two out of five members also being members of the board of the Office of Rail and Road, while the role of the ORR is one of the matters to be assessed, does this not show the need to get more local, regional and accountable decision-making over our fragmented railway network to mitigate the damaging effect of the involvement of the current Secretary of State?

[Lord Young of Cookham]

I reject the implication from the noble Lord that somehow the ORR is not the right body to do this. It is an independent body with the detailed knowledge of the railway industry that is needed; it was not directly involved in the timetable; it is supported by a panel of, I think, five independent members; and I think they are the right people to look at the role of all those involved in the recent debacle over the timetable. It will produce an interim report in September and a final report in December and I hope that, when it comes out, the noble Lord will feel that he might review the negative criticisms he has made of the composition of the body.

Criminal Justice (European Investigation Order) Regulations 2017

Debate between Lord Young of Cookham and Lord Rosser

Wednesday 6th December 2017 Grand Committee

[Lord Young of Cookham (Con)]

My Lords, I am very grateful to the noble Lord, Lord Rosser, for allowing us to have this debate on the EIO. I will focus on the principal points raised during our discussions, which are, as I understand it, the failure of the Home Office to respond in time to the request for information from the committee and the language it used—I have read in full the minutes of the Secondary Legislation Scrutiny Committee’s meeting on 12 September. Then there was the question of what happens to the football fan, posed by my noble friend Lord Hodgson, then the issues of what happens to the prisoner transferred and their protections. Finally, there was the broader question of what happens post Brexit.

Rather than read out a fairly long brief about why the EIO is a marvellous instrument, I will focus on the specific issues raised during the discussion, beginning with the failure of the Home Office. The noble Lord, Lord Rosser, made the point that it was not the first time the Home Office had apologised for late submissions to the Lords committee. He asked why the assurances given on an earlier occasion had not been fulfilled and delicately asked why we should believe the assurances that have been given this time.

I begin by apologising yet again, as my honourable friend Nick Hurd did, for the time it took to respond to the request from the committee in respect of this legislation. There was a breakdown in the process for handling this piece of correspondence in the department. It was a serious administrative error. I and Ministers in the Home Office take the business of parliamentary scrutiny very seriously. Officials have looked into what happened to learn the lessons and to ensure this does not happen again. They have now put in place a robust process to improve the quality of the material put before parliamentary scrutiny committees. I read the comments from, I think, my noble friend Lady Finn, who complained about the language used.

This supervision includes personal oversight by Ministers, with a named senior civil servant held personally accountable throughout the development of the draft instruments. New quality assurance and trading interventions are already under way. These are all intended to reduce the need for committees to seek additional information and to ensure that when such requests are made there is a clear line of sight throughout the department to ensure that they are expedited.

The matter has been considered at the Home Secretary- chaired regular departmental Ministers’ meetings, which I now attend, to ensure that it is addressed and discussed at the highest level. I hope that this will assure the noble Lord, Lord Rosser, and others, that we take this very seriously.

[Lord Rosser]

The Minister referred a moment ago to “personal oversight by Ministers”. Can we have it quite clearly, then, that if this happens again, it will not be the responsibility of officials but of Ministers, full stop?

[Lord Young of Cookham]

Absolutely. As somebody who has been a Minister on and off for nearly 20 years, I am a fully-paid subscriber to ministerial accountability and responsibility to this House and the other place. I am not a Minister who will, if this happens again, pass responsibility on to civil servants.

On the question of the language, I apologise again for the quality of the memorandum on this occasion. As I said a moment ago, the Home Office has put in place robust processes to improve the quality of material put before the scrutiny committee, and again, this includes personal oversight by the Ministers, with a named civil servant within the apartment accountable for the development of these draft instruments. As I said a moment ago, the buck stops with Ministers.

In the example given by my noble friend Lord Hodgson, he would not be a prisoner in the UK, therefore the temporary transfer provisions simply would not apply. They apply only if the person is a prisoner in the UK. The Secretary of State then has to be satisfied, first, that the prisoner consents, and secondly, that no alternative means of providing evidence exists. In the evidence given by Stephen Jones on 12 September, we read:

“Baroness O’Loan: What if the prisoner refuses to go? … Stephen Jones: If the prisoner refuses to consent to the transfer taking place, then it will not happen”.


I hope that reassures my noble friend that he can go and watch his favourite football team in Bucharest and be an innocent witness to an exchange which may result in a crime being committed. He can come back to this country confident that he will not have to go back there under the provisions of the EIO.

The noble Baroness, Lady Ludford, and the noble Lord, Lord Rosser, raised the question of what will happen if a prisoner is not returned. First, the temporary transfer of persons held in custody for the purpose of investigation has already been possible for a number of years under the existing mutual legal assistance system, which the EIO replaced, so this order is not introducing a new provision. However, the UK central authority’s records suggest that the numbers for transferring prisoners held under custody are extremely low. We are aware of one instance of this happening in the past five years. The prisoner is normally able to give evidence in person through court or through video telephone conferencing, and it would have to be authorised by a Minister.

Under the directive, a country receiving a prisoner under an EIO must return the prisoner back to the executing state. However, I accept that the point is not explicit in legislation, which I think was the point raised by the noble Baroness, Lady Ludford. As with other matters relating to EU law, the Court of Justice of the European Union will be competent to give a view, in this instance on the application of the directive, and in particular on the interpretation of Article 22.1, which we consider makes it clear that a prisoner has to be sent back to the executing state—the UK—within the period stipulated by the executing state. Such an interpretive ruling would be binding on the member concerned.

[Lord Rosser]

How long would it take to go through this procedure?

--- Later in debate ---

[Lord Young of Cookham]

I think I will respond to those remarks rather than accept them. The noble Baroness prefaced her remarks by saying “notwithstanding any arguments about legal aid”, but I think that that is probably exactly the issue, in that the proposition she has just put forward would mean extending legal aid into an area where it does not exist at the moment. That takes us into a broader argument about legal aid. Perhaps I might offer to write to the noble Baroness if I have misunderstood her comments.

[Lord Rosser]

I raised one question at the end of my remarks which I do not think the Minister has responded to, and I am quite happy to repeat it. It refers to a statement at the end of the fifth report of the Secondary Legislation Scrutiny Committee. I asked whether, first, the Home Office and, secondly, the Government, accept—and will ensure that they abide by—the committee’s clear statement in its fifth report that,

“although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”.

My question was, first, does the Home Office accept and will ensure that it abides by that and, secondly, do the Government accept and will ensure that they abide by it?

[Lord Young of Cookham]

I have in front of me the response given by the Minister to the committee—it was right at the end—to a question from my noble friend Lord Kirkwood of Kirkhope. He asked:

“Can you give us some assurance as the numbers ramp up that you think the quality will not suffer?”.


Mr Hurd replied:

“I can give you as much reassurance as I can. It needs to be tested. There will be a high volume of secondary legislation, but I am absolutely sincere in saying I hope and believe this instance we had to come and apologise for is exceptional and will not be repeated. It is a basic function of any department to support Ministers in the scrutiny process with Parliament. I cannot guarantee that balls will not get dropped at all because to err is human, but that is what has happened in this case”.


In its fifth report, the committee also made it clear that,

“although an increased volume of SIs was to be expected from all Government Departments during the Brexit period, that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny”.

I accept that.

[Lord Rosser]

The Minister accepts it on behalf of the Government as well as on behalf of the Home Office, I take it.

[Lord Young of Cookham]

I accept it in the context that I have just repeated it.

[Lord Rosser]

I am not quite sure what answer I have had. I would have thought it fairly clear that if I asked whether that also represented the Government’s view, as opposed to the Home Office view, the Minister could have said either yes or no. I invite him to say either yes or no. Do the Government intend to accept and abide by the statement that he has just repeated, which appears at the end of the Secondary Legislation Committee’s report?

[Lord Young of Cookham]

At the risk of bringing my ministerial career to a premature end, I can say yes. Of course the Government accept the principle that the committee has made clear: that pressure would not be an acceptable excuse for any decrease in the quality of the material presented to the House for scrutiny. I am happy to put my name to that proposition.

[Lord Rosser]

I thank the Minister for his responses. I am sure that he would not say that he found himself in a difficult situation, since he has had no responsibility for the Home Office’s failures to which we have referred and which were referred to in the committee’s report. I am very grateful to him for making it clear that if there are further failures by the Home Office, the responsibility rests fair and square on the shoulders of Ministers. It is just not good enough to turn up in front of a committee or to make statements that somehow it is due to an administrative failure, which by implication means that they are passing the buck on to officials. Ministers gave assurances; Ministers are responsible for seeing that those assurances are kept and, if they are not, it is only Ministers who are responsible and accountable for that. They should be prepared to accept that responsibility if they have to appear in front of the committee again, and not seek to say words which imply that somebody else within the department at a lower than ministerial level is somehow responsible.

I also thank the noble Lord, Lord Hodgson of Astley Abbots, and the noble Baroness, Lady Ludford, for their contributions to this debate and for the issues they raised, along with the questions they asked and to which the Minister has had to respond. I say in closing only that my motive in tabling this Motion, apart from raising my specific questions, is that we have some duty when we see such a report from the Secondary Legislation Scrutiny Committee to make sure that it is debated. I do not think that the committee is prone to making such critical comments and observations about a department—and, in this instance, its failure—every five minutes. I think it really would have to be pushed to feel moved to write its fourth and fifth reports in the vein that it did. I will leave it at that and thank everyone who has participated. I thank the Minister again for his responses and, since this is a take-note Motion, I take it that this Committee agrees to take note of the Motion.

Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) Order 2018

Debate between Lord Young of Cookham and Lord Rosser

Tuesday 5th December 2017 Lords Chamber

[Lord Young of Cookham]

My Lords, I am grateful to both noble Lords for their support for these measures, and I will try as best I can to answer the questions raised. I can confirm that the powers cannot be applied to G4S. I repeat the assurance my ministerial colleague gave yesterday in another place.

Questions were raised about Northern Ireland. As I explained when I introduced the order, the new powers and the amendments to existing powers in the Criminal Finances Act 2017 will not be commenced in Northern Ireland until a legislative consent Motion can be obtained. As a result, the codes that are laid before the House, in so far as they apply to Northern Ireland, will continue to make provision for the existing POCA powers, but not for the amendments and the new powers in the Criminal Finances Act. In answer to the question about how this is done, the statutory instruments will apply the codes in Northern Ireland and the limitation I have just referred to is in the wording of the codes themselves rather than in the statutory instruments that bring the codes into force. The approach we have taken in drafting the codes is that it is clear in the wording that guidance on the new powers introduced by the Criminal Finances Act will not apply to Northern Ireland for the reasons that I have just given. It is clear, however, that the rest of the code that provides guidance on the use of existing powers will apply to Northern Ireland. If it would help both noble Lords, I would be happy to drop them a line explaining which bits apply now and which bits will apply later.

In answer to the question about who we are corresponding with, I imagine we are corresponding at official level within Northern Ireland. If and when an LCM is obtained from the Assembly, the codes will be revised to remove the restrictions in relation to Northern Ireland. In response to the noble Lord, Lord Rosser, this will require further consultation and debates in Parliament, and the revised codes will be brought into force by further statutory instruments, so we will go round the course again.

I have here a list of which sections of POCA relate to England and Wales and which extend to Northern Ireland. Rather than read it out—it is long and complicated—I think it would be best if, as I said a few moments ago, I wrote to noble Lords and placed a copy of the letter in the Library.

[Lord Rosser]

I thank the Minister for that. It will be extremely helpful. In writing that letter, will the Minister set out whether the fact that the provisions will not apply in Northern Ireland at this stage, and may not apply there for some time, will have any detrimental effect on their application in Great Britain as opposed to Northern Ireland? I am not entirely clear what the detrimental effects will be for Northern Ireland or for Great Britain of the provisions of these instruments not being applicable in Northern Ireland until some date that is not yet known.

[Lord Young of Cookham]

It would clearly have been better if there had been a Northern Ireland Assembly in operation and we could have got an LCM and extended the powers throughout the United Kingdom. As we cannot extend them to Northern Ireland, some of the new provisions that were introduced in the Criminal Finances Act earlier this year will not immediately be applicable to Northern Ireland. To that extent, therefore, the Act will not be as effective as we initially hoped. However, it will come into effect in the rest of the United Kingdom, and the terrorist financing amendments will commence as that is a reserved matter, not a devolved matter.

I was asked about resources and whether these powers will place more resource burdens on law enforcement at a time of pressure. These powers extend and strengthen the powers in POCA. They add to the toolkit, rather than being powers to use in isolation. As such, they may be used in a strategic fashion that may save money.

The powers are making the use of POCA more effective and more streamlined. In addition, due to the terms of the asset recovery incentivisation scheme, the more an agency recovers, the more it receives. In the past two years, we have amended the scheme that distributes the money recovered under POCA. A £5 million topslice of the amounts recovered is now available for bidding for national schemes to support further asset recovery work. In addition, where more than £184 million is recovered, under the old terms of the asset recovery incentivisation scheme, the Home Office will return 50% above that threshold to the regional organised crime units.

I hope I have been able to address the issues raised in this short debate and repeat that I am grateful for the broad support. I beg to move.

Proceeds of Crime Act 2002 (Investigations: Code of Practice) Order 2018

Debate between Lord Young of Cookham and Lord Rosser

Tuesday 5th December 2017 Lords Chamber

[Lord Young of Cookham (Con)]

My Lords, the three orders before your Lordships give effect to revised codes of practice, providing guidance on the use of investigatory powers in the Proceeds of Crime Act 2002—our old friend POCA—and on the use of powers in relation to “terrorist property” under the Anti-terrorism, Crime and Security Act 2001—ATCSA.

POCA and ATCSA provide strong powers in the fight against organised crime and terrorism, enabling investigations and the recovery of assets which are the proceeds of crime or which are used to fund terrorism. These powers may involve significant interference with the privacy and property of persons suspected of certain offences, and the purpose of these codes of practice is to guide law enforcement officers in the lawful and proportionate exercise of those powers. They are therefore a safeguard to ensure effective and consistent use of the powers.

The codes may be revised, or new ones created, in the light of legislative changes, and the revised codes now before your Lordships reflect the changes made to POCA and ATCSA by the Criminal Finances Act 2017. I ask noble Lords to note that two of these codes relate to POCA: one contains guidance for law enforcement officers and is issued by the Secretary of State, while the other contains guidance for prosecutors and is issued by the Attorney-General. The third code relates to ATCSA and contains guidance for officers, and is issued by the Secretary of State.

The three codes build on previous codes issued under POCA and ATCSA and closely follow those issued to police officers under the Police and Criminal Evidence Act 1984. The POCA and ATCSA powers available to law enforcement have been significantly strengthened by the Criminal Finances Act 2017. The codes need to be updated as a consequence of these amendments. Once commenced, the new powers will give officers important new tools to assist with investigations and with the recovery of assets. This is a key part of the Government’s commitment to tackling all levels of crime.

Noble Lords may find it helpful if I clarify the territorial extent of the powers subject to the codes of practice we are considering today. Noble Lords may recall that when this legislation was undergoing its parliamentary passage, the Northern Ireland Assembly was dissolved, which meant that a legislative consent Motion could not be obtained. The Minister for Security made a commitment in the other place not to commence any legislation relating to devolved matters without the appropriate consent in place.

I assure noble Lords that we are working with the authorities in Northern Ireland to commence these powers as soon as possible. For the time being, however, the codes, in so far as they apply to Northern Ireland, will cover only existing POCA powers. The new powers for terrorist financing will be commenced in Northern Ireland, since terrorist financing, as I said a moment ago, is a reserved matter. The ATCSA provisions apply across the whole of the UK and thus include Scotland. The POCA provisions to which these codes relate are for England and Wales and Northern Ireland only, and do not extend to Scotland.

We plan to commence the majority of the new and amended POCA and ATCSA powers on 31 January 2018. Once approved, the codes before your Lordships will come into operation at the same time, enabling the full operation of the powers. Of course, the powers to which the amended codes relate have already been debated by your Lordships, and the Criminal Finances Act received Royal Assent in April. Again, therefore, we are not debating the powers themselves today: rather, we are considering the codes which give guidance on the use of those powers.

Briefly, the amended codes of practice are required as a result of the introduction of new investigation powers and some amendments and extensions of existing ones, and new seizure, detention and forfeiture powers under ATCSA. POCA and ATCSA stipulate that the Secretary of State must prepare and publish a draft of any new or revised code, consider any representations made and modify the draft as appropriate. I can assure noble Lords that a public consultation has been undertaken on all the codes that I am referring to today.

One order gives effect to a revised code of practice providing guidance on the use of powers of investigation by law enforcement officers under Chapter 2 of Part 8 of POCA.

The revised code caters for new and amended powers introduced by the Criminal Finances Act, including unexplained wealth orders and changes to the way in which disclosure orders may be applied for and used. UWOs will enable an enforcement authority to require an individual or company to specify how property in the order was obtained, and may state that specific documents or information are to be provided in order to establish whether certain assets have been legitimately obtained.

The section relating to disclosure orders has been significantly revised. In addition to confiscation and civil recovery investigations, appropriate officers will now be able to apply for disclosure orders in a money-laundering investigation. In addition, the code includes the exercise of investigation powers in two new categories of investigation that were introduced by the Criminal Finances Act: namely, detained property investigations and frozen fund investigations. These new investigations support the new powers to forfeit certain listed items of property, such as precious metals and stones, and to forfeit funds in bank or building society accounts where the relevant property derives from or is intended for use in unlawful conduct.

Persons who may apply for these orders are clearly set out in the revised code, as are the procedure and statutory requirements for applying. The code also highlights the points that enforcement authorities and appropriate officers should consider before making an application.

There is a similar investigation code providing guidance for prosecutors using powers under Chapter 2 of Part 8 of POCA, which is issued by the Attorney-General, and the order bringing that into effect is also before your Lordships today. I can assure noble Lords that the Attorney-General’s revised code mirrors the form and substance of the Home Secretary’s revised investigation code. As such, we are debating the codes jointly and, in this instance, I am speaking on behalf of the Attorney-General.

The third order gives effect to a revised code of practice, made under the Terrorism Act 2000, for officers exercising asset recovery powers conferred on them through the terrorist property provisions of Schedule 1 to ATCSA. This code has been updated to reflect the amendments made to the Terrorism Act—TAct—and ATCSA by Part 2 of the Criminal Finances Act 2017, including a new power to administratively forfeit terrorist cash and new civil recovery powers to seize, detain and forfeit listed terrorist assets and to freeze and forfeit terrorist money held in bank and building society accounts.

The orders before your Lordships will bring all the relevant codes of practice into effect, ensuring that effective, up-to-date safeguards are in place and enabling full commencement of the POCA and ATCSA amendments that I just described. We are working towards a common commencement date for the powers covered by these codes of 31 January 2018.

I make no apology for repeating the important point that the revised codes are an important safeguard to ensure the targeted, proportionate and effective use of the POCA and ATCSA powers. Among other things, the codes ensure that officers consider the rights of the individual and the community more widely and that they follow a structured process when arriving at a decision to use the relevant powers, and also when executing them. The codes also ensure that a full audit trail in relation to the use of the powers will be recorded. It is of note that the training which all investigators obtain from the NCA ensures that investigators are familiar with these codes.

The codes form an important safeguard which ensure that the powers are used in an effective, considered and targeted manner. I beg to move.

[Lord Rosser (Lab)]

I again thank the Minister for his explanation of the purpose and meaning of these orders. On the Proceeds of Crime Act 2002 (Investigations: Code of Practice) Order 2018, the Criminal Finances Act 2017 amended some investigation powers, introduced new powers and widened the definitions of an investigation for the purposes of POCA. Where relevant, those changes are reflected in the revisions to the code of practice. The same applies to the Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: Code of Practice) Order 2018, which relates to the exercise of functions by the Director of Public Prosecutions, the director of the serious fraud squad and the Director of Public Prosecutions for Northern Ireland, as well as officers of the Serious Fraud Office.

In relation to the second order, paragraph 8 of the Explanatory Memorandum on the consultation outcome states:

“Two responses were received … and the draft code … was amended as appropriate”.


From where did the two responses come, and what changes were made to the draft code of practice in the light of those responses?

The Terrorism Act 2000 (Code of Practice for Authorised Officers) Order 2018 brings into force a revised code of practice, which will enable officers to discharge their functions in respect of existing terrorist asset provisions by including guidance on operational requirements for officers on the exercise of the various new powers created by the Criminal Finances Act 2017. I shall not ask about the content of the consultation responses primarily because, apparently, there were none. We support these orders.

[Lord Young of Cookham]

I am very grateful to the noble Lord for his support. I asked the same question as he did about the responses that we received to the consultation. I was told that they were technical and minor. I do not have at my fingertips the names of those who responded, or what the technical and minor changes were, but I shall, of course, write to the noble Lord when I have that information, which I hope he finds illuminating.