Crime and Courts Bill [HL]

Baroness Butler-Sloss Excerpts

Monday 18th June 2012 Lords Chamber

I believe that we all recognise that counterterrorism policing structures work effectively now and we do not wish to undermine or disrupt those arrangements by creating any uncertainty, particularly in the coming months. It is right and proper that we do not rush decisions on a possible role for the National Crime Agency in relation to counterterrorism for the future, so we do not want to rule out the ability to make those decisions in the future. I hope that those assurances are sufficient for the noble Lord. I appreciate that there are concerns about this matter, but I hope that he will feel able not to press his opposition to Clause 2 standing part.

[Baroness Butler-Sloss]

My Lords, I am sorry to say that I have been rather slow on the uptake and have only just read the report of the Constitution Committee. Since this is Committee stage, I believe that I am permitted to speak even though it is after the Minister.

I support what the noble Lord, Lord Rosser, has proposed. I can see that there may well be great advantages in the National Crime Agency one day taking over the role of the Metropolitan Police. Nevertheless, as I understand it from what the Minister said, there will be a review as to whether this is the appropriate way to do it. I cannot see why the Government could not deal with this in one of two ways—I speak, of course, as a novice in the procedures of this House compared with the Minister and, indeed, with the noble Lord, Lord Rosser. If the Government are fairly clear that this is what they want to do, I cannot see why they cannot put it firmly in Clause 2 that they will transfer to the NCA from the Metropolitan Police, but not until 2013 or 2014 so that it does not come into force until after the Olympics and the Paralympics. Alternatively, if they do not know for certain that this is what they want to do, why on earth can they not just put in a very short Bill to deal with counterterrorism? That should not take an enormous amount of time going through both Houses, if it does not have added to it all the stuff that tends to be added to almost every Bill by any Government. It is possible to pare it down to just this point.

I share with diffidence, but none the less quite firmly, the concerns of the Constitution Committee set out in the first part of its report. Since the noble Lord, Lord Pannick, is not here, I thought it was important that a Cross-Bencher should express a view so that it is not seen just as a party political manoeuvre of any sort.

I think that there are a number of disadvantages to using the super-affirmative procedure. First, although it is perhaps at the highest ranking of subordinate legislation, it is not primary legislation. Perhaps more importantly, if anything is wrong with the drafting—drafting is not always perfect—we cannot tease it out in debate. It stands or falls in its entirety. We can have amendments to primary legislation that we cannot have when using the super-affirmative procedure, even as I would understand it.

I share the concerns of the noble Lord, Lord Rosser, but I particularly share the concerns of the Constitution Committee. I just wonder whether the Government are right to try to proceed this way on what seems to be a clear Henry VIII clause. Perhaps it is almost time that Henry VIII was put to bed.

[Baroness Hamwee]

My Lords, I like the notion of Henry VIII being put to bed. He used to say that of others, did he not?

It will be clear to the House from my amendment before the dinner break that I am merely an ordinary lawyer. I am probably what my noble friend Lord Roper calls a “cooking solicitor”, the analogy being cooking sherry. I am glad to have understood a little better how these things work.

I did not want to come in before the Minister spoke, because I wanted to hear what he had to say. Like the noble and learned Baroness, I am a little confused about the rationale for postponing this measure when we know that this Bill will still be in Committee in this House—it will not even have reached the other House—after the Olympic and Paralympic Games. Like her, I am not sure why that is the case, unless the Government have some reason to feel that it would undermine the authority of the Metropolitan Police during the Games. I cannot see it, given that somebody who is being dealt with under some terrorism charge is not going to thumb their nose and say, “Yoohoo, you’re not going to have this function for much longer”. That is not life, is it? So I remain confused about that.

Like the noble and learned Baroness, I feel that although the super-affirmative procedure clearly gives more opportunity for debate and response than the simpler secondary legislation procedures, the response to what the Minister proposes is almost a nuclear option, because it would mean the whole order being rejected rather than dealing with small parts of it. On such a serious matter, which I know that the Government have thought about very seriously, I am reluctant to say—but I do say it—that I am not convinced. I expected the Minister to tell the Committee that legislative time was short, and so on. I do not think that he has prayed that in aid, but had he done so I would have said that this was so important an issue that time needs to be made for it.