Crime and Courts Bill [HL]

Baroness Smith of Basildon Excerpts

Monday 28th May 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, I am grateful to the Minister for his explanation of the Bill. I have listened carefully to his comments and there is much in the Bill that we can support in principle. It is the Government’s flagship crime Bill, brought to your Lordships’ House as one of the early Bills of the Government’s second Session, and yet it is both disappointing and deficient. We are now seeing increases in crimes, including a 13% increase in personal acquisitive crime, the cutting of 16,000 police from our streets and budget cuts of 20% when Her Majesty’s Inspectorate of Constabulary and the Audit Commission have both warned that cuts of over 12% were unsustainable and would lead to a worse service. Here we have a Bill that, as its top headline, changes the architecture of how we tackle serious and organised crime. It is not enough and is a lost opportunity to tackle the issues that the public tell us hurt them most. I have to say to the Government that making such major changes at a time of such deep and unprecedented financial cuts increases the risks in making those changes.

We broadly welcome the creation of a National Crime Agency but there are significant points of detail that the Bill either fails to address or raises issues that give cause for concern. I wonder whether the Bill has been introduced before it is really ready and before the detail has been worked out by the Government. The Government have had two years to work out the detail of their proposals but have brought forward a Bill which may be worthy in principle but lacks the detail that underpins those principles.

I will give two examples of that. The Bill is in three parts. The whole of Part 1 establishes the National Crime Agency, which is essentially a reorganisation of existing organisations established by the Labour Government, with a few changes. The Bill makes provision for the National Crime Agency framework document which will deal, to quote from Schedule 2,

“with ways in which the NCA is to operate, including … ways in which … functions are to be exercised ... and … ways in which the NCA is to be administered (including governance and finances of the NCA)”.

Basically, that is everything it does and how it will be done. However, that framework document, which is the basis for the whole operation of the NCA, will not be available until the Report stage in your Lordships’ House. It will not even be available for our deliberations in Committee. Why? It is not good enough that we will not have this information for our Committee stage.

The second example is the community sentencing in Clause 23. Clause 23 states:

“The Secretary of State may by regulations make provision for, or in connection with, dealing non-custodially with offenders aged 18 or over”.

Again, that is wholly inadequate. Why is there no further information or detail? It is because the Government have not yet completed their consultation on this matter, so this clause cannot be taken sequentially, but at some later late, after the Summer Recess, when the Government will have to table amendments to the Bill. Despite the fact that the consultation ends in June, those amendments will not be available to your Lordships’ House before the Summer Recess starts. I have to say to the Minister that this is a bad start to a Government flagship Bill.

After two years in Government it is hard to understand why this information has not been made available to your Lordships’ House. I suspect that the timing of the Bill has been partially driven by clauses within it that provide for the abolition of the National Police Improvement Agency, when its dismantling is already taking place before the legislative changes have been made. I hope that Ministers will take these concerns on board and look at ways in which they can improve this situation. We would be happy to discuss these issues further with them. However, as I have said, there is much in the principle of the Bill that we can support, but there are significant points of detail that we will want to probe further in Committee.

First, I will raise the issue of governance and accountability of the NCA. Obviously, we want the NCA to be successful. After all, the Labour Government set up the bodies that will comprise the bulk of its work: the Serious Organised Crime Agency, the Child Exploitation and Online Protection Centre, and the National Police Improvement Agency. However, there is a lack of clarity in some areas and there are also significant changes that require explanation and some justification from the Government.

What we know of the governance issues, given that we do not have the framework document, is weak. The legislation provides that the police and crime commissioners can be consulted, but do not have to be consulted, in setting the strategic priorities of the NCA and the NCA’s annual plan. It is not clear what that will mean in practice and what regard, or what weight, the director-general of the NCA or the Secretary of State will place on the collective opinions of the PCCs.

The PCCs have to ensure that the chief constable co-operates with the NCA. But what will happen when the NCA priorities conflict with the PCC plans, and PCCs have not had the opportunity to make a contribution or feed into the strategic priorities of the NCA, or if they have fed information in and it has not been taken on board? How will any such conflict be addressed and resolved?

The Government have made it clear, through the Policing Protocol Order 2011 and the Police Reform and Social Responsibility Act 2011, that the new PCCs are responsible “for the totality of policing” in their area, that they are publicly accountable, and that they have the power to discipline and even remove a chief constable from office. I can understand why it could be desirable, in certain circumstances, for the NCA to have the power of direction over chief constables. However, it is a major and significant change, and the Government have to explain why it is necessary and in what circumstances.

I listened carefully to what the Minister had to say in his comments, and he referred to this being used in extreme or exceptional cases and only within the police force area. I have to say to him that that is not in the legislation. Although Clause 6 provides criteria, the two that he gave in his speech today are not in the legislation. That shows why we need greater clarity as to how the power of direction sits with the statutory responsibilities of chief constables and the police and crime commissioners.

Until now, the Government have shouted from the roof tops about the power and importance of localism. We even had a Localism Bill, which your Lordships discussed in the previous Session. However, this new power of direction is a distinct and deliberate step away and departure from that principle. I am still very unclear how this will work in practice. I am not convinced that the legislation is adequate to deal with the competing pressures and competing accountabilities between the centre—the National Crime Agency—and the local—the police and crime commissioners and the chief constables. The Government have a duty to ensure that this legislation does not increase the risk of unnecessary conflict because of a failure properly to define accountability and roles, including that of the PCCs that they have introduced.

I should also like to address the issue of the Child Exploitation and Online Protection Centre. CEOP is highly regarded and highly successful. Ministers will be aware of the concerns that absorbing CEOP, first, into the Serious and Organised Crime Agency and then into the NCA, could dilute its effectiveness, which led to the resignation of the CEOP chief executive. His fear was that CEOP staff could be drawn away from child protection work and deployed in other areas of policing activity, possibly because of shortages of resources or staff or a perceived emergency in another area of policing. There was also a related concern about how the pioneering multi-agency approach that CEOP had developed, bringing in valuable assistance, including funding, from private sector bodies and children’s charities, might be jeopardised.

When this was first announced, the Home Secretary and Ministers expressed strong support for CEOP and reassured those raising concerns that this would enhance rather than dilute that work. Those assurances were widely and gratefully accepted. In Committee, it would be useful to examine whether the Government’s view has moved on in any way since CEOP has been part of SOCA and also look at whether CEOP has maintained the high level of skills and expertise that have made it so highly effective and regarded. It could also be helpful to look at the wider responsibilities related to missing persons and human trafficking.

On the abolition of the National Police Improvement Agency, to which I referred a few moments ago, again the agency is highly regarded and undertook a whole range of functions, some of which have taken a long time to develop and get right. Given that range, there is logic in bringing some of them into the National Crime Agency, alongside SOCA and CEOP. I confess that I am not yet entirely clear how all the different functions of the NPIA will be carried out under the new arrangements. It would be helpful if a complete analysis of this was provided to your Lordships. Understandably, we will seek some clarifications and assurances in Committee to ascertain exactly what Ministers are seeking to achieve and whether total abolition of the NPIA is the right way to do that. We will want to probe two areas further with the Minister: the role and funding of the police professional body, and the new police information and communication technology company that is being set up.

I want also to raise the overarching concerns about funding, staffing and skills. Ministers have provided an indication of funding and have previously said that organisations coming into the NCA will bring their funding with them. However, that is the funding after the spending review and there is no reference to funding the new responsibilities and duties of the NCA. On skills, I have already mentioned the concerns around CEOP as an example that some expertise within the agency could be diluted. We want the NCA to be successful and able to bring together and co-ordinate intelligence to make tackling serious and organised crime more effective. We will look at this in more detail to seek assurances that the funding is adequate for the tasks and additional responsibilities. We will also look for assurances that the new body will retain the skills, expertise and experience of specialist staff and ensure that it is not spread too thinly across different areas.

If Ministers can help on this point, I would also like information about the role of volunteers in the NCA, particularly as, following the Olympics, the Secretary of State will have the power to bring terrorism investigations into the NCA. If, as expected and as the Minister indicated, the Government bring forward such legislation, a number of issues will need to be addressed. The Minister acknowledged that in his comments. There is an understandable fear and concern that any agency that includes terrorism within its brief could find itself diverting resources from other areas to finance that work. The Government will have to consider very carefully how this would be managed if they want to pursue that.

My final point on Part 1 is about freedom of information. As with its main predecessor body, SOCA, the NCA will be exempt from freedom of information legislation. However, the additional functions taken on from the NPIA and the UK Borders Agency were not previously exempt from FOI. This is a significant extension of the exemption, for which I am sure the Government will be able provide proper justification and explanation.

Part 2 of the Bill deals with the court system and judicial appointments. It probably raises fewer concerns and is less likely to attract discussion outside the legal profession which deals with these issues and is well represented in your Lordships’ House, including by my noble friend Lord Beecham. I have already expressed the concerns about Clause 23 on community sentences. However, there are other issues that we will want to probe further and seek reassurances on. I look forward to hearing from the expertise on these issues in your Lordships’ House. My noble friend Lord Beecham will say more about these issues when he winds up for us at the end of the debate.

I turn briefly to Part 3 of the Bill. Clauses 24 to 26 deal with immigration. I want to say something specifically about Clause 24, which, as the Minister indicated, removes the full appeal rights in family visit cases. I listened carefully to the Minister’s explanation that there are many more appeals than anticipated and 63% of the appeals that the Government lose are because new evidence is brought at appeal stage. However, there are other factors that will need to be taken into consideration, including the reasons why 37% of appeals against the Government succeed. Ministers have made the case that the new process is both quicker and cheaper, but it denies the visitor the opportunity to challenge a wrong decision and for representations in support of the applicant to be made.

In 2011, the Chief Inspector of the then UK Border Agency looked at entry clearance decisions where there is currently no full right of appeal; that is, those decisions that are currently subject to the limitations that are sought in this Bill for family visit decisions. In 33% of the 1,500 cases he looked at, the entry clearance officer had not properly considered the evidence. The Government must prioritise better decision-making on first-round applications. It is unfair to demand that applicants make a fresh application as an alternative to an appeal if so many applications are turned down for reasons that are no fault of the individual.

The other issue in Part 3 is drug-driving. This is a very important area, as the Minister indicated. It has our support in principle, but this is, as he has acknowledged, a complex and difficult area to get right. The proposal is to look at this issue in the same way as drink-driving in that a certain level of drugs would be an offence even if there were no problems detected with driving. I was struck by and interested in the comments of the noble Baroness, Lady Meacher, in a speech on the Queen’s Speech just a couple of weeks ago, about the complexities of this area. Clearly we will want to debate this further and seek assurances from the Minister about how this could be put into practice in an effective way.

In conclusion, as I said at the beginning, this is a disappointing Bill, light on detail and confused in places, but I am confident that it will benefit from the scrutiny and advice of your Lordships’ House. I hope that the Government will be willing to listen and take on board comments and amendments made during the progress of the Bill to ensure that we fully address these issues in order that we may have an effective crime-fighting and justice system.