Baroness Hamwee
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(11 years, 11 months ago)
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Baroness Smith of Basildon
My Lords, this is one of a number of amendments that we have put forward regarding the framework document. Although we do not have a copy of it, a number of questions still need to be addressed.
The Government are getting a bit of a reputation for having a cavalier attitude to the reform of some of the institutions of this country and for bringing forward legislation before the fine details have been worked out, which would enable this House properly to scrutinise the Bill and its implications. The Health and Social Care Bill saw quite an axe being taken to the whole landscape of the NHS before the details were worked out, which started even before parliamentary approval had been obtained. The detail was not ready when the Welfare Reform Bill came before Parliament. With this Bill, not only do we not have the framework document but the Government are still consulting on the plans for community sentencing. We hope that we can recommit the Bill into Committee at the end of the Committee stage and, outside the normal order of amendments and clauses, put another new Clause 23 into the Bill at the end.
The Government announced their intention to create a National Crime Agency around two years ago but we still do not have the document that tells us what the organisation will do and how it will do it. That document will set out the detail of how the agency will be arranged. It is clear that there will be specific operations. One of the most important things in that document will be the relationship with other sections of the police service. Unfortunately, we do not have the strategic policing requirement. The Government say that that will set out a clear framework for how PCCs and chief constables relate to the NCA and, crucially, how they balance local against national priorities.
Looking around your Lordships’ House, I see that I am a relatively new Member of this fine institution—for just under two years—but it has been clear to me from when I first entered your Lordships’ House how seriously the House takes its scrutiny role. Not to have so much information to assist us in discussing the detail of the Bill is pretty shoddy and not the way that we ought to legislate.
Even in this Bill, I am prepared to think the best of the Government and assume that they must have worked out some of the detail of the architecture, even if the document itself is not ready. I do not believe for one moment that the Government came to this House with a Bill not understanding what it will look like at the end when they create a new agency. It would be helpful if, even without the document, the Minister could give the House more detail about what it will contain. Amendments 28 and 29 place a requirement on the Secretary of State to produce the framework document by statutory instrument. That is not ideal, because having that document now would inform the rest of our discussion, as several noble Lords have said. The noble Baroness, Lady Hamwee, at our previous session in Committee, raised issues that should be in the document. Our discussion then was hampered because we did not have it. In the absence of the document being available for scrutiny at this stage, the Home Secretary should place the document before Parliament as an order. That will enable at least some proper scrutiny by both Houses.
Baroness Hamwee
My Lords, I did indeed raise questions about the contents of the framework document. Before we started our debate on Monday, when I was going through the amendments and got to this pair of amendments, I put a tick against them. I have deleted the tick for reasons which will not be very welcome to my noble friend. I am not convinced that an order would allow us to debate the framework document in the way that we would like to see. We need a lot of detail about it. As we all know, the drawback with an order is that we cannot amend it. Methods of operation, methods of exercising functions and administration, including—I have already questioned this—governance and finance, are very big issues.
I therefore hope that the Minister will, if not today, soon be able to tell us that his “due course”—not just his, I am not impugning him—arrives soon, so that we can understand a good deal more. Although I well understand the approach that the noble Baroness has taken, I am not entirely sure that it takes us as far as many of us would like to go.
The Minister of State, Home Office (Lord Henley)
My Lords, I understand what the noble Baroness is getting at and how she wants to provide for the framework document to be subject to some parliamentary procedure —for it to be laid before Parliament. She went on almost to suggest that there was some conspiracy by the Government on this Bill and others in the lack of framework documents and how late they were coming. I think I made it quite clear back on Monday—it seems a long time ago now, having gone through another Bill, as the noble Baroness and I and the noble Lord, Lord Beecham, have done—that we very much hope to get at least an outline of the framework document in front of the House before we come back to the Bill at Report. It is important to point out that that is quite an early stage in the passage of this Bill as, unusually for important Home Office Bills, it is starting in this House. We cannot even claim to be the revising Chamber on this occasion because we are getting it first. We are dealing with it relatively slowly because of the delay we are having over certain items which we want to debate in early October, so that I can miss the Conservative Party conference. After that, it also goes on to another place so there will be considerable time for this House and another place to discuss these things in some detail.
Perhaps I may set out what the framework document is designed to do and what we think ought to be in it. The purpose of the document is to set out clearly and transparently how the Home Secretary and the director-general will work together—it is between those two—and the ways in which the NCA is to be administered. It is expected to include the agency’s corporate governance arrangements, the high-level arrangements for financial accounting and reporting, and how the agency will discharge its duty to publish information and promote transparency, including the classes of information which it will publish. It will obviously be a very important document, dealing with how the NCA is to operate, but it will also build on and be clearly subsidiary to the clear foundations set out in the Bill. As we have already debated, the Bill establishes a clear governance model for the NCA; namely, as a Crown body with an operationally independent director-general at its head, appointed by and accountable to the Home Secretary for delivery against the Home Secretary’s strategic priorities for the agency. The agency will be under the direction and control of the director-general and its functions and powers are, again, clearly set out in the Bill.
We have provided in Schedule 2 for the framework document to be laid before Parliament, the Scottish Parliament and the Northern Ireland Assembly, as the NCA will cover all parts of the United Kingdom. We believe that, given the nature of the document, this is the appropriate level of parliamentary procedure. The Delegated Powers and Regulatory Reform Committee made no comment on these provisions so, on that basis, we are on relatively firm ground in assuming that it was content with laying that procedure. Finally, as I think I suggested earlier, the Serious Organised Crime and Police Act 2005 did not even provide for a framework document, let alone one subject to an affirmative procedure, so this provision is an important advance on what has gone before in relation to the Serious Organised Crime Agency.
I appreciate that the noble Baroness would like it to be produced by statutory instrument and produced, as I think my noble friend put it, in due course. I came under a suggestion of pressure that I ought to define what “due course” meant. It is always difficult to define that. I am sure that the noble Baroness will probably remember promising things, when she was a Minister, “some time in the future”, “in due course” or whatever. We have all done this—I remember promising something “later in the spring” and being faintly embarrassed that that turned out to be July. I think most noble Lords understand what I am getting at. I am trying to promise her that we will get at least an outline of this by Report but, as I said at the beginning, I stress that that is an early stage in the process that this Bill is going through. It is starting in this House and still has to go through another place, so we have considerable time. Both Houses of Parliament will get a chance to look at that outline document. I hope therefore that the noble Baroness, who has an understanding of what “in due course” or “shortly” might mean, will feel able to withdraw her amendment.
Baroness Smith of Basildon
We return to the framework document. This paragraph is a puzzle to me. This brief amendment deletes the requirement for the Secretary of State to obtain the consent of the director-general before issuing the framework document, because I am unclear why the Secretary of State would need to depend on the consent of the director-general in order to publish the document. It would seem to show greater courtesy and concern for the views of the director-general than for Parliament. There is no provision for parliamentary oversight at this stage. It is right and appropriate that the Home Secretary should consult the director-general, but if I understand the purpose of the framework document correctly, looking at Schedule 2, it is ultimately about the detail of the architecture of the National Crime Agency. It is not about operational matters, and it does not seem appropriate for the director-general to have a veto. I return to the point I made in earlier discussions about the blurring of the line between what is operational and what is strategic. The framework document is a strategic document. This is a probing amendment to see whether the Minister can explain why the director-general should have a veto over the Secretary of State publishing the framework document. I beg to move.
Baroness Hamwee
My Lords, I am glad that the noble Baroness tabled this amendment. It took me back to reading the paragraph and realising that I did not fully understand it. I am sorry that I have not been able to give the Minister notice of my question, which is: can he in some way translate paragraph 4, particularly sub-paragraph (2)? Does it mean that the framework document takes precedence over the annual plan? Paragraph 4(2) says:
“The Director General’s duty to have regard to the annual plan … does not apply in relation to functions under sub-paragraph (1)”.
Those functions are about being consulted on, and giving or withholding consent to, the framework document. It is a little difficult to understand how the two work together. It may be that we are being told that one is more important, or simply that one is more overarching—which the framework document should be, I guess—than the other. The relationship between the two will obviously be important and not only because there are different consents and consultation arrangements for the different items.
Lord Henley
Therefore, there would still be consultation but there would be no need for consent. However, as I said, that would imply that the Home Secretary could impose that on the director-general. We believe that the document is designed to set out the relationship between the Home Secretary and the director-general and, as I said on an earlier amendment, how the NCA will operate, including its governance, management and transparency arrangements. Therefore, the director-general will have a proper interest in making sure that it reflects his or her operational view of the NCA. Since the director-general will ultimately be accountable to the Home Secretary for delivering the NCA’s priorities, it is absolutely right that his consent should be gained to crucial decisions about how the agency is administered. It is right that we should stick to that process. I hope that the noble Baroness will agree that the framework document should be agreed between the two, with both consultation and consent.
I turn now to the trickier question—the googly that I referred to—that my noble friend asked as regards paragraph 4(2) of Schedule 2, which states:
“The Director General’s duty to have regard to the annual plan in exercising functions does not apply in relation to functions under sub-paragraph (1)”.
I think that that is relatively clear, although my noble friend obviously does not. All it does is remove the director-general’s duty to consent from those under paragraph 1(1)(a), which refers to,
“ways in which NCA functions are to be exercised (including arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA)”.
I could go on with the rest of that paragraph. I am hoping for advice to come through at this stage.
The important idea to get over is that the framework document and the annual plan are different and have to be dealt with in different ways. The framework document sets out the relationship between the Home Secretary and the director-general of the NCA. The annual plan allows the director-general to set out the activity planned for the year ahead and must take account of the arrangements set out in the framework document. Therefore, in his role in respect of agreeing to the framework document, he cannot have regard at that stage to the annual plan, which comes out later. I hope that that makes matters clearer to my noble friend. I see a faint degree of nodding from her as well as a faint smirk on her face. I hope that it is a smirk of agreement. I will sit down and hear whether my noble friend agrees with what I have said.
Baroness Hamwee
It was not a smirk but possibly mild hysteria. The Minister has confirmed that, to the extent that the two documents have any relationship to one another, the framework document is the primary document. He is nodding at that. I apologise because my point was not intended to be a googly. Anyone who knows me will know that the high point of my sporting career at school was questions such as, “Sally dear, can you see the ball?”. I really am not trying to be difficult. I am grateful to the Minister. I will read it again several times.
Lord Henley
From my noble friend’s confession, I think that her sporting career at school was possibly somewhat similar to mine in terms of its disastrous nature but I shall leave that as another matter. I am grateful for her acceptance. I think I got that right and that I have satisfied the point that she makes. Therefore, I await to see whether the noble Baroness, Lady Smith, wants to withdraw her amendment.
Baroness Hamwee
Baroness Hamwee
In moving Amendment 32, I shall speak also to Amendment 33. The first deals with the framework document and the second with the annual report. In both cases, my amendments would delete the words relating to publication,
“in the manner which the Secretary of State considers appropriate”.
I wondered whether those were intended to be qualifying words. They clearly are qualifying, but they suggest a limitation. I simply look for assurances that the spirit of what we would all understand by “publication” includes something energetic and proactive and that that will be reflected in the practical arrangements that will be made. So this is really only a probing amendment in both cases. I beg to move.
Baroness Smith of Basildon
My Lords, I had some interest in the amendment that the noble Baroness, Lady Hamwee, has proposed. There is some question mark over why there is discretion in this regard, and it would be helpful to hear from the Minister on that. The Minister will understand my concern that there is a growing acceptance these days that everybody has access to the internet and that everything can be obtained from the internet. A large number of people in our population do not have access to the internet. More than that, as the Minister knows, the Home Office website is extraordinarily difficult to access. So I would have great reluctance in seeing a measure go through that gives discretion to the Home Secretary to publish on a website that most people cannot access most of the time.
Earl Attlee
My Lords, the Government are committed to publishing the NCA framework document and annual report so that all those with an interest in the work of the agency have ready access to them. That is indeed the spirit intended. The provisions on publication in Schedule 2 are directed to that end. I assure my noble friend that there is nothing sinister in the words,
“in the manner which the Secretary of State considers appropriate”.
They are just a recognition of the fact that it must be for the Home Secretary and the director-general, as the publishers of the framework document and annual report respectively, to determine how best to publish these documents. It is only sensible that the person publishing the document should be empowered to choose the most appropriate means of doing so.
We would expect that, in practice, both documents will most likely be released via the NCA or Home Office website. My noble friend Lord Henley says that he will shortly be writing to the noble Baroness on problems with that website. Whether it is a good use of resources also to print and publish thousands of hard copies of these documents must be left to the judgment of the Home Office or the director-general, as the case may be.
With the assurance that we want these documents to be made freely available, I hope that my noble friend will feel able to withdraw these amendments.
Baroness Hamwee
My Lords, I shall certainly do so, but I have two comments. First, I thank the Minister for confirming the point about the spirit, which I am glad to have confirmed from the Dispatch Box. On another more general point, each Bill seems to be thicker than the last. A few years ago, it would have been adequate to say, “The Secretary of State shall publish a document”. Now we have to say, “The Secretary of State shall publish a document in the manner in which she deems to be appropriate”. The officials will understand why we probe some of these words more often than just from time to time.
Lord Hunt of Chesterton
I was a civil servant in the Met Office and used to visit other agencies. The variability in the publication of annual reports is quite extraordinary. A Minister visited the National Physical Laboratory and asked, “Why do you publish all these annual reports?”. I am glad to say that the Met Office continues to publish annual reports and they are still very valuable and people refer to them. Therefore, I was very surprised by the Minister’s insouciant response to this whole issue of the publication of reports. As the noble Baroness said, the relevant information is very unsatisfactory. Are the Government looking into this more broadly?
Earl Attlee
My Lords, in days of old there was only one way of publishing a report, which was in hard copy. Today we can publish on the internet. We can also issue a CD and issue hard copy on a limited circulation. The provisions in the Bill take account of the various ways of releasing the information without being too prescriptive.
Baroness Hamwee
My Lords, I do not think that I should take the time of the Committee by pursuing the issue but I suspect that the same question will come up more than once during the rest of this Session, as it comes up on almost every Bill. I am grateful to the Minister and beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
I shall speak also to Amendment 41. There are three further amendments in the group in the names of the noble Baroness, Lady Smith, and others, all of which deal with payments. My two amendments concern the paragraph in Schedule 3 which deals with what is the “appropriate amount”. Paragraph 29 of Schedule 3 deals with what is to be paid under paragraphs 26 and 27 by the director-general and the police in the different circumstances. My amendment would extend that to payments under Part 1 of Schedule 1, including paragraph 4, which states:
“The NCA may charge a person for any service provided at the person’s request”.
I am not necessarily suggesting that this is the right way to go about it but I am probing how that charging should be dealt with.
Amendment 41 suggests that there is a way other than an amount agreed or an amount determined by the Secretary of State; that is, to provide for a scale or a formula in advance to be applied generally. As I understand the arrangements for mutual aid between police forces, there are governing scales and arrangements. It seems to me that it would be much better to have these things sorted out in advance rather than to have any sort of haggling being applied at the time. I certainly do not imagine that it would leave people with anything other than a rather sour taste if the Secretary of State had to step in and determine the amounts. I beg to move.
Baroness Smith of Basildon
My Lords, our amendments on this issue perhaps come from a different direction but they still try to address a similar concern that we have. We are looking at different ways to resolve this. The noble Baroness, Lady Hamwee, is right that if an agreement on payment cannot be reached between two parties, to seek resolution or determination by the Secretary of State does not seem the correct way to behave. Throughout this Bill, we have sought to remove the Secretary of State from day-to-day operational issues and this proposal would bring the Secretary of State back into those kinds of issues.
There is also a conflict of interest or at least a divided responsibility. There is a concern that one thing that will happen with the NCA and the charges and costs involved is that, given that funding may not be adequate to the task, particularly with additional responsibilities coming in, some extra funding or support may be sought from police authorities, particularly in cases such as this. The Home Secretary has a direct responsibility for the funding of police forces across the country. It seems somewhat difficult, therefore, if there is a disagreement between a local police force and the NCA, that it should be the individual who has responsibility for funding local police forces who should seek a determination on that. The noble Baroness, Lady Hamwee, said something about that creating a bad feeling or some difficulties, and I certainly think that it would in this case.
The noble Baroness and I may not have found exactly the right format here. We are suggesting an advisory body, but I am not wedded to any particular way of doing this. It seems inappropriate for the Secretary of State to be making those decisions. To labour a point made by the noble Baroness, Lady Hamwee, about a protocol in the framework document, that may be what the Minister is considering—but we do not know, because we do not have the framework document. It is clearly inappropriate for the Secretary of State to be the arbiter. We would like to see some other way to resolve difficulties or disputes and we are suggesting an advisory board.
Baroness Smith of Basildon
My Lords, I wonder sometimes whether the noble Earl lives in a slightly different and more benign world than I do. Several times during the course of today’s debate, whether it has been on the power of direction and payments, he has said, “We hope that it will be okay, we can’t see ourselves using this power, things should work out okay”. Real life is not like that; disputes occur. This idea of having a backstop and saying that it does not matter if it is not perfect and not okay because it will hardly ever be used is not really good enough. We need to have some kind of process. I do not know whether the noble Earl took on board what I said. I am not wedded necessarily to an advisory board, but I think that we need a process that is not the Secretary of State or, as the noble Earl calls it, a backstop.
There will from time to time be disputes on payments and the power of direction, and we need to have a process that this House is confident can deal with any of those problems that occur—and not just think that it will be okay because it will not happen very often. I think that we will pursue this at a later stage. There may be further discussions in Committee, but at this stage I am happy not to press my amendment.
Baroness Hamwee
My Lords, I share the noble Baroness’s concerns about this. I wrote down “amicable?”. The noble Earl referred to a backstop, but the point of providing a very clear framework—although I do not want to use that term—and making clear provisions is that they are clear and, if things are not amicable, one knows where to go. It had never occurred to me until an earlier group of amendments that the old pals arrangement might apply to anything under this Bill—but perhaps I am just too cynical.
On Amendment 40, as I understood the noble Earl’s remarks, the NCA will be subject to certain formal Treasury guidelines. He is nodding at that, but I wonder whether he might share those with Members of the Committee after the debate. It may not be appropriate to go into all the detail now, but it would be very helpful to be clearer about this before we return to the matter, as I suspect we will.
Earl Attlee
My Lords, I was referring to the Treasury guidance on managing public money.
Baroness Hamwee
Let us see how the Treasury website operates and whether we can get into it.
On Amendment 41, the noble Earl argued that what is provided in paragraph 29 is not on a case-by-case basis but is an overall principle. I do not read it like that, because paragraph 29 refers to a provision requiring,
“one person (“R”) to pay the appropriate amount to another person (“P”)”.
The only way in which I can construe that paragraph is that we are talking about the particular “R” and the particular “P”, not anyone who might come under “R” or “P” in a range of different situations. Perhaps that is something that we can seek to understand rather better after the Committee stage. I beg leave to withdraw Amendment 40.
Baroness Hamwee
I am not sure that it is insight, but the noble Lord is right to raise the point. I hope that he will at least feel that I can intervene on that basis, even if we are without insight. Schedule 7 states that this part of the Bill does not authorise disclosure in contravention of the Data Protection Act or the Regulation of Investigatory Powers Act. If there are other general statutory provisions that would override the situation that the noble Lord is talking about and would always apply, it needs to be made clear that someone may disclose, subject to other statutory provisions. I do not know whether what I have said takes the matter any further but I, for one, am now convinced that there is an issue.
Lord Henley
I am sure that there is no issue here and that the noble Lord, Lord Harris of Haringey, is not suggesting some conspiracy theory that these words mean something different from what I suggested they mean. That is why I said that one should look at what is there on the packet. However, I suspect that the best thing to do would be for me to write to the noble Lord and make sure that that is copied to his colleagues on the Front Bench and my noble friend Lady Hamwee; and if there is any problem, we can deal with that in due course. I am sure that there is no problem, and that the matter is straightforward and can be quickly resolved. Does the noble and learned Lord agree? Perhaps I can call him the noble and learned Lord, because he is so good at these drafting matters that I will elevate him on this occasion. If he is happy with that, I will leave it to the Committee to accept Clause 7.
Lord Dear
My Lords, I fully endorse what has been said about the work of CEOP. We have referred to this organisation many times over the past year or so in your Lordships’ House. It is a highly successful organisation but it is only really beginning to identify the tip of an iceberg. We are just beginning to understand exactly how much crime in that area is committed. It has already been said today that there is a crossover with people trafficking, and in fact child trafficking comes very much within CEOP’s remit. People trafficking in general is a highly organised crime.
It seems to me that the question is: should CEOP come within the remit of the NCA at all? Personally, I think that it should, given the seriousness of what it deals with, the revulsion that all right-minded people feel about this crime and the way in which CEOP’s work interfaces with highly organised crime. The one thing that I am concerned about is the suggestion in the amendment that CEOP should be accountable to the NCA board, accepting that it is part of its remit, but should operate independently of the direction of the board. If that were to appear in the Bill, there would be considerable confusion. It seems to go against logic and against all tenets of management. “One man, one boss” is often used as shorthand for that. If CEOP is one of the four pillars of the NCA—as I believe it should be—not only should the board oversee the operation but it should be responsible for it, and CEOP should not be allowed to operate independently.
I take the point that, in a strange sort of way, CEOP is outside the normal remit of much of mainstream policing because it has a multiagency dimension. I understand that. In fact, I remember back in the 1970s piloting the first multiagency approach that attacked what was then called “baby battering”, then shorthanded as “child abuse”. That approach was highly successful and was rolled out right across the country from Nottinghamshire, where I was then serving. At that time it became the model of how best to approach this sort of problem. Therefore, I understand the particular sensitivities of multiagency approaches. Notwithstanding that, I would be unhappy to see CEOP operate independently of the direction of the board because I think that it would lead to confusion.
Baroness Hamwee
My Lords, the noble Lord, Lord Dear, has expressed very well my concerns about the second paragraph of the amendment. He has also said very clearly exactly what I would want to be said right around the Committee and to be on the record concerning the value of CEOP’s work. Like those of the noble Lord, my comments are in no way directed at criticising CEOP, not valuing its work or not wanting to see it continue as successfully as it has done.
Perhaps I may add a query about the third paragraph of the amendment. First, I am a little unclear about what is meant by the delegation of funds within an organisation, as would be the case if CEOP were part of the NCA. What exactly is meant by delegation? Secondly, for what purpose are the funds reserved? If funds are identified as being needed for CEOP’s operation, are they not for the whole of its operation, or is there something specific that the funds are intended to be reserved for?
I am sorry to appear to be taking apart an amendment on this matter. Like others, I feel that what has been said about the importance of CEOP’s work is absolutely undoubted, and my questions about the amendment are genuinely probing.
Baroness Hamwee
Baroness Hamwee
My Lords, in moving this amendment, I will also speak to Amendment 46C. I hope that I can be brief.
These are both probing amendments. The first relates to the paragraph in Schedule 4 headed: “Liability of NCA for unlawful acts”. It states:
“In any of the following cases, the NCA is liable in respect of unlawful conduct of a person”.
I suggest changing,
“In any of the following cases”,
to “including in the following cases” in order to understand whether paragraph 2(1) is exclusive of all other cases and in particular how it relates to paragraph 2(7), which states that,
“the liability of the NCA for the conduct of NCA officers”,
is not affected by this paragraph. The first amendment is about the inter-relationship of those words with paragraph 2(7).
Amendment 46C is an amendment to paragraph 4, which is headed: “Application of discrimination legislation to secondees: Northern Ireland”. It is a rather similar amendment to add “including” before the list of the provisions in respect of which an NCA secondee is to be treated as being employed by the NCA. Again, the amendment seeks to understand whether what is listed is exclusive of other provisions. It occurred to me only after tabling the amendment that there might be something specific about Northern Ireland legislation that is required to be set out. I beg to move.
Lord Henley
My Lords, first, I apologise to my noble friend. I think I have the gist of what she was saying about Amendment 46B, but I have to confess that there was a brief conversation between me and my noble friend the Chief Whip, which meant that I might have missed some of the points she made. I hope that I still grasped what she was saying and that the response I am able to give her will be sufficient. If not, I will have to write to her.
On Amendment 46B, as an employer, the National Crime Agency can be held to account for any unlawful conduct by its employees during the course of their employment. That does not therefore need to be set out in the Bill. The NCA will be liable for its specials actions in the same way that it would be liable for the actions of any other NCA officer. Given that the NCA will not operate in isolation and will be tasking and co-ordinating wider law enforcement, having clear lines of accountability for the NCA and its partners is important.
Paragraph 2 of Schedule 4 provides important clarity as to exactly when the NCA will be held to account for the unlawful conduct of a person who is not employed by the agency but is carrying out NCA-related activities. Unless my noble friend wants to come back to me after I sit down, I hope that that deals with her particular points.
I will say a word about Amendment 46C because we want to take that away and have another look at it. National Crime Agency officers will benefit from protection against discrimination in the UK. It is intended that secondees to the NCA will benefit from the same protections. Having looked at that and having looked at my noble friend’s amendment, further consideration is required to ensure that particularly secondees, including police constables, are properly covered by the relevant legislation. I want to come back to my noble friend on that in due course. If there are any other queries, I will write to her in due course.
Baroness Hamwee
My Lords, I think that the penny has just dropped on paragraph 2, so I thank the Minister for that. On Amendment 46C, I am beginning to feel that I am beginning to do myself out of a job. This is the third time the Government have said that they will look at something again. I spoke on one for less than two minutes, on another for less than one minute, and on this one the Minister did not quite hear what I had to say.
Lord Henley
I think it was my noble friend Lord Attlee who recommended that brevity often yielded much greater results in this House. He commended it to my noble friend.
Baroness Hamwee
I had better not say any more other than I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, my noble friend Lady Doocey and I have Amendment 58A in this group. I shall leave it to her to speak to the substance of the regulations referred to. The amendment would simply make the regulations to be introduced under new Section 26C of the Police Reform Act 2002 subject to affirmative resolution.
Baroness Doocey
My Lords, my concern is about the type of investigation that the Independent Police Complaints Commission might carry out in relation to the National Crime Agency. The Government want the NCA to be,
“a transparent and accountable organization open to the public it protects”.
To satisfy those criteria, formal scrutiny and investigations must be thorough and above suspicion. I am concerned that the provisions for scrutiny and transparency in the Bill are inadequate.
I am concerned particularly about how the IPCC might carry out its functions. The Bill gives the IPCC the power to undertake investigations into complaints about misconduct, serious injury, death or other matters at the discretion of the Secretary of State, the object being to give the IPCC oversight of the NCA in broadly the same way as it oversees the police. However, as the noble Lord, Lord Rosser, said, the NCA will have considerable powers—far greater than any police force—so it requires much more rigorous scrutiny on the part of the IPCC.
The situation now is that, if a complaint or allegation is made to the IPCC, it makes a decision as to what it will do to investigate it. It has four choices. The highest level of investigation is an independent investigation, carried out by IPCC investigators and overseen by an IPCC commissioner. The second level is a managed investigation, carried out by a police force’s professional standards department but under the direction of the IPCC. The third level is a supervised investigation, also carried out by a police professional standards department but under its own direction and control. The IPCC merely sets the terms of reference and receives the investigation report when it is complete. The lowest level is a local investigation which is carried out entirely by police.
Despite there being four different options open to the IPCC, the evidence shows that in the vast majority of cases it opts for a supervised investigation, which in practice means that it leaves the police to investigate themselves. This policy is at best questionable when applied to police forces, but is completely unacceptable when applied to the NCA, given the enormous powers that that body will have. It is essential that all investigations into the NCA are independent, carried out by the IPCC and overseen by an IPCC commissioner.
Everyone accepts that the NCA will be handling sensitive and confidential information, but that just increases the need for independent scrutiny. I would welcome an assurance from the Minister that serious complaints and allegations of misconduct in the NCA will be independently investigated so that the public can have full confidence in the processes and procedures.
Baroness Hamwee
Baroness Hamwee
My Lords, I beg to move Amendment 58B. Paragraph 5 of Schedule 6 deals with the disclosure of information, and regulations that may cover disclosure. We are told at sub-paragraph (6) that:
“Such regulations may, in particular … modify any provision of Schedule 7 in its application to such a disclosure, or … disapply any such provision”.
My amendment would exclude from that modification or disapplication paragraph 1 of Schedule 7, which provides that,
“any disclosure, in contravention of any provisions of the Data Protection Act”,
or,
“prohibited by Part 1 of the Regulation of Investigatory Powers Act”,
is not authorised. I hope, and expect to be told by the Minister, that that is what Schedule 6 provides because of the way that it is drafted. However, that was not obvious to me when I read it, and therefore it seemed quite important to clarify the point.
Earl Attlee
My Lords, although I recognise the absolute importance of safeguarding the disclosure of sensitive personal information, I believe that Amendment 58B is unnecessary. The kinds of information that will be required for the purpose of an inspection will be limited in nature to those required for exercising an inspection function. The disclosure of information to a policing inspectorate, and any onward disclosure, will be subject to the safeguards in Schedule 7.
Schedule 6 contains a back-stop power that enables the Home Secretary, by regulations, to make further provision about the disclosure of information by the NCA to policing inspectorates. Although this includes a power to modify Schedule 7, should this be necessary to enable the proper, independent inspection of the NCA, it is not intended to use this power to override important existing statutory safeguards relating to sensitive personal data.
Furthermore, let me reassure my noble friend, it is not paragraph 1 of Schedule 7 that applies the extensive safeguards set out in the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, but those Acts themselves. This paragraph simply puts that beyond doubt. I will be clear that should any regulations be made governing the disclosure of information from the NCA to policing inspectorates and their onward disclosure of such information, those regulations cannot override these safeguards by modifying paragraph 1 of Schedule 7.
I hope that in the light of this explanation, my noble friend is satisfied that there will be adequate arrangements in place to independently inspect the agency that respect important data protection safeguards. I accordingly invite her to withdraw her amendments.
Baroness Hamwee
My Lords, I think I had better read that following today’s debate, because the noble Earl seemed to be saying that those two Acts could be not be overridden; but he started his explanation by saying that it was not intended to use the provision in Schedule 6 to override them. I do not quite understand how those two statements fit together. If they cannot be overridden, the Secretary of State could not intend to override them. However, that was not, as I heard it, the implication of the introduction when he said that it was not intended to use them in that way. Of course, I withdraw the amendment, but will also read what has been said and make sure that I am entirely comfortable with it.