Baroness Smith of Basildon
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(12 years, 6 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.
Baroness Smith of Basildon
My Lords, I appreciate that the Minister is trying to be helpful, but that was an extremely unsatisfactory answer. I hope I misunderstood him when he said that he hopes to have an outline of the framework document by Report. I think he misunderstands the point that I am trying to make. I am not merely making the point that we want the document to have parliamentary scrutiny, important though that is, but that the framework document will inform our debate on the rest of the Bill. Not having it hampers our debates and our ability to scrutinise. This is not an isolated point about parliamentary scrutiny. Had we had the document here now, as we should have, our discussions on other aspects of the Bill would be easier and better informed because it seems to me that a lot of the information that the framework document contains is relevant to the discussions we are having. I hope the Minister understands the point I am making.
I take on board the comment by the noble Baroness, Lady Hamwee, about an order being inadequate. I entirely agree with her, but I think that anything that we are able to do at this stage is wholly inadequate because we want to have the document with us now. It is not good enough for the Minister to say that we will have an outline for Report. I do not think that we can pray in aid that this is an early stage of the proceedings and that the Bill is going to go to the House of Commons. This House has a duty to do its job, which is to scrutinise legislation. It is being hampered in doing so by not having the documents. The fact that they will be available to the House of Commons is not enough. I appreciate that the Minister has tried to be helpful, but he has not satisfied me on this point. I shall not press this matter to a vote today, but the Minister will recognise that there is unease around the House, not just on our Benches, on this point.
Lord Henley
I appreciate that the noble Baroness feels that it is important that there should be an order. Should we accept her amendment and have an order, it would not produce the framework document, or even an outline, any earlier. I am saying that we will get that outline during the passage of the Bill. If the noble Baroness were purely to rely on her amendment, she would not get it until after the Bill. That is my understanding of how her amendment works. I have given her an assurance from the Dispatch Box that we will get an outline by Report that will assist our discussions later on. I hope that is hopeful to the noble Baroness and I appreciate that she is going to withdraw her amendment. It would at least allow her, with luck, to discuss these matters on Report.
Baroness Smith of Basildon
Again, I think the Minister is trying very hard to be helpful. I think I said that any proposal we put forward at this stage is inadequate. I withdraw the amendment at this stage, but this is a subject to which we will be returning.
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
My Lords, I will deal first with the various points raised by the noble Baroness, Lady Smith, and then move on to the rather more complicated question about paragraph 4(2) of Schedule 2 and its relationship to sub-paragraph (1), as raised by my noble friend who, as always, bowls googlies of a sort that are designed to get behind one.
The amendment of the noble Baroness, Lady Smith, would remove the requirement for the Home Secretary to obtain the consent of the director-general of the NCA before issuing the framework document. I am faintly unclear as to why she seeks to remove this provision. Does she want that framework document imposed on the director-general? That is what would happen under the amendment—there would no longer be that consultation. As I have indicated, the framework document will set out the relationship between the Home Secretary—
Baroness Smith of Basildon
I apologise for intervening. The noble Lord said that my amendment would result in there being no consultation. I am not trying to prevent consultation. Paragraph 4(1)(a) says:
“The Secretary of State must … consult the Director General”.
I am entirely happy with that; it is completely appropriate. It is the reference in paragraph 4(1)(b) to obtaining the consent of the director-general that I am concerned about. I am sorry if I was not clear.
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.
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 Smith of Basildon
My Lords, I suspect that I had a slightly more successful sporting career at school than either noble Lord; many an ankle has been bashed with my hockey stick.
I remain puzzled on this matter. The Minister has said several times that the framework document sets out the relationship between the Home Secretary, the Secretary of State and the director-general. But nowhere in the schedule does it say that about the framework document. In part, our discussions are hampered by not having the document, which we look forward to seeing in due course.
The Minister made the point about the relationship between the framework document and the annual plan and how the framework document came first. However, it might not always come first because, under paragraph 2 of Schedule 2, the Home Secretary can reissue a framework document at any time, in which case the annual plan may already exist when a new framework document is published. It could get even more confusing. I shall take this away and ponder, as I think the noble Baroness, Lady Hamwee, will equally do.
I still do not accept that it is appropriate for the Secretary of State to seek consent. Consultation, if it is genuine and takes note and not just an exercise for the sake of it, would be the adequate and proportionate way forward. But I beg leave to withdraw the amendment.
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.
Earl Attlee
My Lords, these are purely drafting amendments to the provisions in Schedule 3 relating to the exchange of information between police forces and the National Crime Agency. Paragraphs 3 and 4 of the schedule apply these provisions to each UK police force and the British Transport Police. However, the British Transport Police is already covered by the definition of a UK police force in Clause 16. Consequently, it does not need to be separately listed. The amendments therefore remove the superfluous paragraphs 3(1)(b) and 4(1)(b). I beg to move.
Baroness Smith of Basildon
My Lords, we can see that this is a drafting amendment. I must admit that when I first saw the clause I wondered what had happened to the Civil Nuclear Constabulary and the Ministry of Defence Police, which also should have been covered if it was necessary to include the British Transport Police. I think that the Minister has been able to give me an assurance for each of those special police forces, which, as the definitions on page 12 indicate, are UK police forces. They would have the same relationship as regards having to be notified and the disclosure of information as all other police forces in the UK. It is a helpful amendment that clarifies the existing position.
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.
Earl Attlee
My Lords, this group of amendments all relate to the provisions in Schedule 3 regarding payments for tasks, assistance and facilities. Amendment 40, in the name of noble friend Lady Hamwee, seeks in effect to bring the provisions relating to charging in Schedule 1 into line with those in Schedule 3; namely, that they must be agreed by both sides.
I put it to my noble friend that this amendment would conflate two quite separate charging regimes. The charging provisions in paragraph 4 of Schedule 1 enable the National Crime Agency to provide particular services, whether to another law enforcement agency or to any other person. They are not about the provision of assistance or facilities under Schedule 3 or the tasking arrangements in Clause 5. Such services might include, for example, the provision of training, crime operational support or the services provided by the Specialist Operations Centre. Charging for these services, which are provided on request, will normally have to be on a cost-recovery basis in line with the Treasury’s guidance on managing public money. In other words, these services cannot be made under the old pals act; they have to be properly accounted for.
Amendment 41 seeks to provide for a protocol which sets out the appropriate amounts to be paid for tasks, assistance or facilities performed or provided under the provisions of Clause 5 and Schedule 3. I can certainly support the spirit of this amendment. The National Crime Agency will need to agree policies for cross-charging with the police service and other law enforcement partners that are equitable, practical and help to support the co-ordinated effort to tackle serious and organised crime. However, I do not think the amendment is necessary as the existing schedule already allows for the appropriate amount to be agreed through a broader policy or protocol. The key point in Schedule 3 is that payments for tasks, assistance or facilities, if any, must be agreed between both sides. It does not specify how that agreement must be reached or that it must be done on a case-by-case basis.
Finally, Amendments 42 to 44, in the name of the noble Baroness, Lady Smith, seek to replace the Home Secretary’s role as final arbiter with an independent advisory panel on payments. I would argue that creating another quango is not a good way to provide value for money or to secure the simple and speedy resolution of disputes over charging arrangements. Indeed, I hope that there will be few disputes, and I imagine that both parties would be reluctant to involve the Secretary of State.
In addition, the approach to cross-charging in Schedule 3, including the role of the Secretary of State, broadly mirrors the Serious Organised Crime and Police Act 2005. The previous Administration did not see the need for creating a separate body to decide on appropriate amounts for payments in the absence of agreement, and neither do this Government.
Amendment 43 would remove any role for the devolved Administrations in setting appropriate amounts if agreement cannot be reached. As the budgets for these law enforcement bodies in Scotland and Northern Ireland are devolved, it is right that the devolved Administrations have a role to play in ensuring that payments are fair in situations where either a Scottish or Northern Irish body is involved.
I would hope and expect that the cross-charging arrangements for tasks, assistance and facilities will be agreed amicably between the NCA and its partners. It is right that the Bill includes backstop arrangements for resolving any disputes. The arrangements provided for in the Bill broadly mirror those for SOCA, and there is no good reason why we need to adopt a different approach for the NCA. Accordingly, I would invite my noble friend Lady Hamwee to withdraw the amendment.
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.
“( ) The command of the NCA with main responsibility for discharging functions listed under subsections (1) and (2) shall be the Child Exploitation and Online Protection Centre (CEOP).
( ) CEOP shall be accountable to the NCA Board but shall operate independently of the direction of the Board.
( ) Any funds delegated by the NCA to CEOP shall be reserved for that purpose.”
Baroness Smith of Basildon
My Lords, I hesitate slightly because I know that as soon as there is an amendment that mentions an NCA board, as the amendment does, the Minister will say, “If we haven’t agreed to a board, I don’t have to answer the question”. As he said earlier, I have been on that side of the Chamber—albeit another Chamber—with the same kind of file as the one he possesses now, but I ask him to put that to one side. Although he might not agree with some parts of the amendment or its architecture, he will understand the substance of what I am proposing and the reasons why this matter has been put forward. I hope that he can address my points.
In our proceedings on Monday, the noble Lord, Lord McColl of Dulwich, raised the issue of the Child Exploitation and Online Protection Centre. It was generally felt around the House that it is an enormously successful body that is held in high regard. If we look at some of the figures, we see that between 2006 and 2011 more than 1,000 children were protected or safeguarded as a direct result of CEOP. There were 1,644 suspects arrested and members of 394 high-risk sex offender networks were arrested. CEOP is one of those organisations that we know is making a difference and wants to continue to do so.
CEOP has pioneered a model of multiagency partnership work that has brought together child protection and law enforcement in a way that has led to the organisation being recognised internationally as a centre of excellence for protecting children from sexual abuse, both physical and mental. Many noble Lords will have an idea of what we are talking about when referring to sexual abuse of children; however, I shall expand our thoughts on that slightly. I do not know if noble Lords had the opportunity to see an article—I cannot remember whether it was in this weekend’s Sunday Mirror or Monday’s Daily Mirror—telling a shocking story about access to internet porn by young people. It referred to quite shocking internet porn that would turn the stomachs of most people. It is not physical abuse, but one had only to read what those young people said to know that that was mental abuse, and it was certainly sexual abuse that had an impact on them. Some of the things that they themselves went on to undertake perpetuated that abuse. Sexual abuse of young people comes in many forms and can often lead to further sexual abuse of other young people.
CEOP deals with an area in which the more successful you become, the less possible it is to pull back, because you have to continue with your activity. You cannot reduce it at all. There are two crucial issues—the expertise and specialist knowledge that have been built up, and the partnerships that CEOP has managed to build with other agencies. The range of organisations and individuals that CEOP works with are interesting, and include children and young people. It has worked successfully with law-enforcement agencies. The public have also played a role—certainly in providing information and intelligence. Charities and voluntary and community groups have come on board, as have industry and international partners.
Since it was first mentioned that CEOP could be absorbed into the NCA, concerns have been mentioned at very senior levels. I said at Second Reading that the head of CEOP, Jim Gamble, resigned as a result. I can see possible great advantages in CEOP having a close relationship with the other commands in the NCA, because there are often links between organised crime, and intelligence can help bring together a picture or put in place the missing part of a jigsaw puzzle that helps lead to a prosecution or arrest. However, I am not convinced, and neither are many others, of the necessity to absorb CEOP into the NCA. That is where the concern arises.
I and the various organisations involved, including the NSPCC, as well as individuals, have welcomed the Government’s strong support for CEOP and its work, and the assurances that they have given—and I thank them for those assurances. However, they must clarify and put on the record—and in statute—the commitments that have been made. That would provide the reassurances that are sought. I appreciate that the noble Lord has sought to do that and has written to noble Lords, and the Home Office has produced another factsheet on the kind of things that CEOP would do within the NCA and how the Government are determined not to see a dilution of its work.
However, perhaps I may raise a couple of points. CEOP must retain its operational independence. On that matter, we seek an assurance that specialist staff will not be pulled off child protection work due to staff shortages or emergencies in other areas. CEOP staff do highly specialised work using the knowledge they build up. If that were to be lost, even for a short time, the gaps in the operation of CEOP within the NCA could be quite damaging.
Another aspect of the amendment is the wish to see authority for its budget clearly delegated—in effect, for its budget to be ring-fenced. One thing at which CEOP has been very successful is raising money from outside sources. I think that it would be very difficult for it to continue doing that if its funding were not ring-fenced, as people contribute money for that particular area of work. If they felt that the money was being diluted across an organisation, they might be less likely to contribute. Therefore, I seek an assurance that the budget will be ring-fenced, together with any money raised by a CEOP organisation within the NCA.
Baroness Smith of Basildon
I am grateful to the noble Lord. That is a very helpful and constructive answer. I think I have now convinced him that it would have been better to have the framework document before the House began to consider the Bill, as I may not have had to raise this issue at all.
On the issue of retaining operational independence, I ask the Minister to look further, because what he has said so far about putting this in the framework document largely addresses the issues. However, operational independence is about maintaining the specialist staff of CEOP within the CEOP command. Could the Minister explore whether that is the case when he looks at the framework document? Operational independence can mean different things to different people, but I am broadly content with what he had to say. I look forward to the framework document and beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, in moving this amendment, I will also speak to Amendments 48, 49, 50 and 51.
This is another set of probing amendments, as I am sure the noble Lord has understood. It follows on from earlier amendments when we talked about a National Crime Agency board. It is about making sure that the Secretary of State has a strategic rather than an operational role. I hope that noble Lords will bear with me as I switch pages.
I am slightly puzzled by this group of clauses. It seems convoluted for the advisory panel to make recommendations to the Secretary of State about the operational powers that the director-general shall have and then the Secretary of State must give effect to those recommendations. It would make more sense for the board responsible for the director-general to make such proposals. But I find myself completely puzzled because the Secretary of State is responsible for operational powers designation, which is in Part 2 of Schedule 5 and in Clause 9.
Part 2 of Schedule 5, says:
“The Secretary of State must appoint an advisory panel (to enable recommendations to be made as to the operational powers which the Director General should have),
but that contradicts the original clause relating to operational powers.
Paragraph 4 of Schedule 5 says:
“The Secretary of State must appoint an advisory panel”,
but that is then qualified by,
“whenever there is an appointment of a Director General”,
or,
“when the Secretary of State considers that it is appropriate to do so”.
So it seems that they can appoint an advisory panel at any time. That also implies that it is not a permanent body. Surely such a panel, set up to advise a Secretary of State on the operational powers of a director-general, would want to gain expertise and knowledge, but according to how the schedule is worded, a new panel would be appointed each time a director-general was going to be appointed. That means it would be an ad hoc panel, which seems rather strange.
Lord Henley
My Lords, if I can assist my noble and learned friend, the point we were trying to get over is that the actual designation of the director-general is a matter for my right honourable friend the Home Secretary. She will make an assessment of the director-general’s suitability and capability to exercise the operational powers in any given case. It might be that the advisory panel, through its chair, could then assess whether the director-general was adequately trained to exercise those operational powers and if, as experts—as we hope they would be—they were satisfied that the director-general met the requirements for exercising his designated duties. But it might be that the Home Secretary was satisfied about the director-general’s suitability and capability to exercise those powers, in which case there would be no need for the board.
Baroness Smith of Basildon
I appreciate that the noble Lord was trying to be helpful but I am now more puzzled than ever. He has spoken to the confines of my final Amendment 51 and yet the reason for putting forward all these amendments is a broader issue. If it helps the noble and learned Lord, Lord Mackay of Clashfern, the advisory panel would be set up whenever there was to be an appointment of a director-general. That is where this clause is so confusing. The panel’s chair decides the question of the adequacy of the director-general’s training. I can fully appreciate that a new director-general might not have the expertise in all the areas dealt with by the National Crime Agency. I do not have an issue with that part. It then says:
“produce a report containing recommendations as to the operational powers which the Director General should have”.
That implies that the operational powers change depending on who the director-general is. Surely what we expect the director-general of the National Crime Agency to do should be set in stone. You cannot keep changing the operational powers of somebody in this kind of role depending on who applies for the job. There have to be certain criteria for key operational powers that have to be undertaken. I do not understand that part of the clause at all.
On the issue of there being an advisory panel, the reason for taking out paragraph 5 in Part 2 of Schedule 5 is that if paragraph 4 says that the Secretary of State must appoint an advisory panel, clearly there is good reason for doing so. Given that the panel reports on the adequacy of training and the operational powers, why would we then have a paragraph which says that the Secretary of State does not need that? I cannot understand under what circumstances a Secretary of State or an advisory panel would say that a particular director-general would not have full operational powers or that this one will not have the operational powers undertaken by a previous director-general. If we are saying that the operational powers of a director-general are flexible, we are talking about a very different kind of organisation. My understanding was that the framework document would set out exactly what the National Crime Agency would do, what was expected of it and how it would be run. Now we find we have a degree of flexibility in what the agency does because of a panel of experts advising the Secretary of State on what the director-general does.
The noble Lord is looking through his folder, as I have done on occasion. If he is fully honest with me, I suspect he is thinking, “Give me a note quickly. I seek inspiration”. It may be that inspiration on this one does not come to him quite quickly enough this evening, but I think this is a matter we want to pursue. It is a bit odd because the Government have already appointed the first director-general without the advisory panel so presumably they know what operational powers that director-general will have. However, I find this situation completely unsatisfactory as it stands.
Lord Henley
The noble Baroness is an old hand, as I am. She is a very young old hand but she is long in experience. She need not blush. She has stood at the Dispatch Box in Government on many occasions and she knows the process. This is a wonderful process that we go through with these Bills, as a result of which we hope to make them better. She is quite right to point out in paragraph 4 of Schedule 5 what she thinks is an odd process. This is obviously something that I must reflect on. That is why we go through this process. I will be more than happy to do so and I will write to her. Again, it is one of the joys of the process that we are going through that there is a considerable amount of time between now and Report. We want to get this right. I am not going to try and bluff my way through as I have done on many occasions in the past, and as I am sure the noble Baroness has done. She has caused me some problems with paragraphs 4 and 5 of Schedule 5. All I can say is, I want to get this right and I will try to make sure that she gets a proper answer or that we make the appropriate changes.
Baroness Smith of Basildon
I am grateful to the noble Lord. This is not the first time he has been this helpful. He was similarly helpful just last week. The fact that he is going to reflect on this and come back to me and to the House is very useful. On that basis I am happy to withdraw my amendment.