Baroness Smith of Basildon
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Crime and Courts Bill [HL]
Baroness Smith of Basildon Excerpts(11 years, 5 months ago)
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“(1) There shall be a body corporate to be known as the National Crime Agency (“NCA”).
(2) The NCA is to be under the strategic direction and control of the NCA Board.
(2A) Schedule (The NCA Board) has effect.
(2B) There shall be a Director General, who is to be one of the NCA officers, and shall be responsible for the exercise of the NCA’s operational and administrative functions.”
Baroness Smith of Basildon
My Lords, Amendment 1 in the first group looks at the governance of the National Crime Agency. The amendments remove responsibility for the direction and control of the National Crime Agency from the director-general. Instead, the NCA will be governed by a board with an independent chair, which will have responsibility for “strategic direction and control” of the agency.
Earl Attlee
My Lords, will noble Lords try to leave the Chamber quietly in order that we can hear the noble Baroness move her amendment?
Baroness Smith of Basildon
I am grateful to the noble Earl, Lord Attlee. The House has hushed immediately, such is his power of control. The point is about the governance arrangements of the National Crime Agency and the move in the direction of control from the director-general to a board. It would have an independent chair, which would have responsibility for “strategic direction and control”, and would be modelled on the existing governance structure of the Serious Organised Crime Agency. Obviously, the director-general has to be responsible for the exercise of the National Crime Agency’s operational and administrative functions. However, the line of accountability would be to the NCA board, which would retain the Secretary of State’s powers to appoint and dismiss the director-general, although that would be subject to a pre-appointment hearing by Parliament. The amendments also provide for police and crime commissioners and chief constables to be represented on the board. That would formalise and facilitate that partnership, which we believe is important, between the NCA and police forces.
Having reread the Minister’s comments in Committee —from a different Minister—after the debate, I found them somewhat unsatisfactory, which is why we have brought forward this amendment today. The Government are scrapping the corporate governance structure that existed for SOCA and are instigating top-down direction from the Secretary of State, despite the fact that the new agency will be designated a non-ministerial department, unlike SOCA, which was a non-departmental government body. As the Minister will be aware, non-ministerial departments—NMDs—are, as a rule, more independent of the Government than non-departmental government bodies. According to the Standard Note in the Library of the other place on the Public Bodies Bill, a body such as an NMD would normally,
“answer directly to Parliament on issues where it has been deemed appropriate to remove executive political interference”.
The note gives the examples of Ofgem and the UK Statistics Authority. The corporate governance structures of SOCA and the NPIA provide for a board headed by an independent chair, as does that of the new Financial Conduct Authority. HMRC, which the Government cite as a model for the NCA’s new designation, has a board whose remit is to develop and approve strategy and final business plans and to advise the chief executive on key appointments. Arguably, many of the problems of the embattled UK Border Agency, which we have just been discussing, could have been avoided had there been a board sitting between the chief executive and the Secretary of State, overseeing the functioning of the organisation.
There seems to be a contrast in that the Government’s vision of the National Crime Agency does not include a similar accountability structure. I understand—and I have to say this carefully—that the director-general will chair a non-statutory board, consisting of, we think, the senior officers, who are most likely to be the heads of the five different pillars of the NCA. I am being careful about saying that we understand that to be the case because we do not have the detail, which is not yet available. I know we will come to this debate later about the framework document and its detail, but it does hamper us somewhat in our discussions about the governance arrangements of the NCA.
The noble Lord, Lord Henley, said in Committee how important good governance is and then said, “We will set that out in the framework document”. That is for another debate, but we were promised a draft of the document and then an outline of the document to flesh out the detail. However, all we have got is a table of contents. If we look at what it says on the NCA management board, the heading is, “The NCA Management Board”, which is followed by bullet points and then sub-bullet points as follows:
“The Director General will establish and chair a Management Board … Description of the role of the Board ... Composition of the Board which will include … Ex officio members … Non-executive members”.
There is not much detail there at all.
A corporate board structure would preserve the agency’s operational independence but would retain the ultimate strategic oversight by, and accountability to, the Government. The NCA will be responsible for a huge range of operations: it has a far wider suite of functions than SOCA has. The role of the DG will be incredibly powerful and important. It seems quite crazy that there should not be an additional layer of scrutiny over the day-to-day operations, which is something that a management board, chaired by the director-general, cannot deliver or provide. The corporate board provides the other role of keeping the Home Secretary clear from direct operational control and oversight, and protects the Home Secretary from any accusation of political interference or control. Under the government model, the NCA will be governed by one all-powerful individual, the director-general, who reports directly to the Home Secretary. The Home Secretary in turn will authorise the director-general’s annual plan, which sets out the operational priorities. The Home Secretary will hire and fire the DG without reference to any other body and determine what operational powers the director-general would have.
Baroness Smith of Basildon
My Lords, when the Minister stood up, he said that he hoped not to disappoint the House with his comments, but I fear that he has indeed done so. It is interesting that not one Member of your Lordships’ House has spoken in support of the Government’s model for what it calls governance of the National Crime Agency. There may not be universal support for the amendment that I have put forward, but the issues raised by the noble Lords, Lord Harris, Lord Blair and Lord Condon, have illustrated their concerns about the governance model that the Government are putting forward.
I believe that the noble Baroness, Lady Hamwee, sought to help the Government by approaching it in a less comprehensive manner than appears in amendments proposed by myself and the noble Lords, Lord Rosser and Lord Blair, but even that seems to have been rejected by the Minister. I fear that a distinction has not been drawn that should be drawn between management and governance. Many of the Minister’s comments made sense in terms of the management of the National Crime Agency. However, the amendments that I put forward deal with governance. There is no attempt to say that the director-general should not, in his words, be in control of the agency, but there should be a governance board. The management board about which he speaks is chaired by the director-general, and, as I said in my comments, it does not do the job.
The Minister said that he was wedded to this model, but I hope that he will reflect on the comments made in your Lordships’ House today. The House is certainly not wedded to this model, although it does not have a universal view about a better model other than that there should be different governance arrangements that involve some kind of board. I hope that he will take the matter away and reflect on it. I do not intend to press my amendment to a vote today, but I hope that the Minister will reflect on the comments that have been made across the board in your Lordships’ House.
Baroness Hamwee
My Lords, my heart sank when I saw the enormous number of government amendments to the Bill. It lifted quite a lot when I realised that the first amendment, on secondment, and the next, on compensation for specials, were in response to points that I made at the previous stage. Then to bookend it, as it were, was the amendment to the Equality Act to which the noble Earl has just referred. I am grateful to the Government for taking those points on board.
I have two amendments to the government amendments, both of which are quite small points. They both refer to Amendment 56. The first would take out proposed new sub-paragraph (7), which provides for determination by the Secretary of State as to the two circumstances set out. I hope that the Minister is aware that my question is on whether the determination should be a matter for the court or the employment tribunal, which is likely to be the relevant tribunal. It occurs to me that the Home Secretary could be a party to the proceedings in question and it seems to deserve a little explanation as to it always being proper for the Secretary of State to determine these questions.
The second amendment is to the provision in proposed new sub-paragraph (12)(b) that deals with,
“the reference to the assumption of a third party function”,
which is limited to the three functions listed. I should be grateful if the Minister can confirm that these are the only cases. My reason for asking is that proposed new sub-paragraph (12)(a) uses the term “includes” and (12)(b) uses the term “is”. Is there no assumption of a function unless there is also a transfer of staff? That is what I read into this, but I may well be wrong.
Baroness Smith of Basildon
My Lords, I confess that when I see a list of almost 50 government amendments that the Minister describes as technical and drafting, I realise that I am becoming quite cynical as I get older. By and large they are technical and drafting amendments, but I have some questions, some of which the noble Earl has sought to address in his comments. However, if I may, I will press him on a couple of points for an explanation.
On government Amendments 10 to 12, compensation of NCA specials is addressed. The amendments take out “NCA” with regard to compensation. The Minister said that that is because they may be compensated from elsewhere. I am not quite clear where the elsewhere would be that would allow for expenses and compensation to NCA specials. Does he envisage a greater role for the private sector to pay them, for example? I do not know, but is he able to elaborate further? That was clearly not envisaged during Committee or when the Bill was first drafted. I am unclear why the Government have felt the need to change it. Who else will compensate or pay the expenses of NCA specials?
I also thank the Government for dealing with the comment made by my noble friend Lord Rosser about clarifying the position on which Secretary of State would apply regarding transport. That was helpful. As regards the transitional provision, I am sorry that this was not in a separate group of amendments because that might have been helpful to your Lordships’ House. We discussed this in some detail during earlier stages of the Bill and I have asked Parliamentary Questions about the transitional costs and how the transition should be arranged. The concept of the transition from the predecessor organisations to the NCA is extremely important.
Baroness Smith of Basildon
My Lords, this is one of the most important and significant amendments that we are putting forward because it addresses one of the most serious clauses in the Bill. In Committee the noble Lord, Lord Alderdice, raised specific concerns relating to Northern Ireland about this clause. The noble Lord was concerned whether the Northern Ireland Executive would agree a legislative consent Motion. I raised similar concerns and said that this matter would have to be resolved. I will not go into the specific detail of those issues today, but it would be extremely unsatisfactory to agree that the Government can take the power to transfer counter-terrorism from the Metropolitan Police to the National Crime Agency without further primary legislation to consider the serious and complex issues affecting Northern Ireland.
When we discussed this in Committee, the response from the then Minister, the noble Lord, Lord Henley, was not encouraging. In fact, it gave me cause for concern—the noble Earl, Lord Attlee, seems surprised at that. The noble Lord, Lord Henley, said:
“I understand that the Justice Minister and the Justice Committee of the Assembly … have agreed in principle to take forwards a legislative consent Motion, and officials in the Department for Justice in Northern Ireland are seeking to secure the agreement of the Executive Committee before proceeding to the next stage. Any legislative consent Motion needs to be adopted by the Assembly before the Bill reaches its last amending stage. Although things have not been proceeding quite as quickly as we might wish them to have done, since we know that the Bill is designed not to proceed as quickly as sometimes Ministers wish Bills to proceed and we will not complete the Committee stage until October, there is a considerable chance that we will get to that stage before the Bill gets on to the statute book”.—[Official Report, 18/6/12; col. 1609.]
There are no guarantees of that, and saying that we think it might get there is not good enough.
As well as concerns about the complexities of Northern Ireland, there are serious constitutional concerns over why this clause should be deleted from the Bill. Clause 2 allows for modifications to the National Crime Agency specifically to allow the NCA to take on the counter- terrorism functions through the super-affirmative procedure. Clearly the Government recognise the sensitivity of the issue, and that is why they have chosen the super-affirmative procedure over the affirmative or, alarmingly, even the negative procedure, but the primary responsibility of any Government is to keep their citizens safe. Counterterrorism is a hugely significant part of ensuring citizens’ safety. It is currently undertaken by the Metropolitan Police who, over time, have built up considerable expertise and skills. If the Government wish to remove that responsibility and function from the Met, they would need to have a very strong case to do so. That case should be properly and fully examined by Parliament. There may even be a role for a Select Committee to look at the issue again. It should, at least, be a matter for primary legislation.
In Committee, the noble Lord, Lord Henley, relied on the response of the Home Affairs Select Committee to the new landscape of policing when it said that the Government “should consider” such a transfer of responsibilities after the Olympics. Consideration is one thing, because that consideration would allow the Government to make their case and would allow Parliament to exercise its judgment. However, the committee did not say that the Government should take the power to do so by way of a Henry VIII clause. In effect, we have here an enabling power for the Government for one of the most serious and crucial roles that a Government can fulfil and although it would have to be passed by super-affirmative order, that really is not the same as full parliamentary scrutiny through primary legislation. The Constitution Committee raised its concerns and described it as,
“an order-making power of the ‘Henry VIII’ type”.
Also raised in Committee was this comment from the Constitution Committee:
“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.
The Constitution Committee looked at the issue around Clause 2 and what the test was to say if it should be undertaken by an order, albeit super-affirmative, or primary legislation. It said:
“The subject-matter of the proposed order-making powers—the allocation of functions and attendant responsibilities and accountabilities of counter-terrorism policing—is of great importance and public interest. The House will wish to consider whether the constitutionally appropriate vehicle is primary legislation”.
By ensuring that such changes could only be made by primary legislation, the Government would have the opportunity to make a clear, defined and first-rate case for the transfer of these functions. I am not convinced that they have yet done this, though that is the subject for a separate debate. The Joint Committee on Human Rights says on page 10, paragraph 15, of its recently published Legislative Scrutiny: Crime and Courts Bill:
“We are concerned about the lack of clarity that the wide order-making power introduces into the Bill. It is not clear, for example, which particular ‘counter-terrorism functions’ the clause contemplates. We do not see the necessity for including such a provision before the intended review of the current counter-terrorism policing structures in England and Wales has been carried out. In our view, the potential human rights implications of a decision to confer counter-terrorism functions on the NCA are sufficiently significant to warrant primary rather than secondary legislation, to ensure that Parliament has the fullest opportunity to scrutinise the possible implications. We recommend that clause 2 be deleted from the Bill”.
If the Government wish to have the power to move counter-terrorism to the National Crime Agency and to do so without primary legislation, they have to have strong arguments and reasons why. Your Lordships’ House is not unreasonable, it would listen to those arguments—but the National Crime Agency is in its infancy. It is a new body and the full details of how it will operate, its governance arrangements and its interrelation with other organisations have not yet been tested or even fully worked out. We do not even have the framework document, just a list of items that will go into it.
Despite my worries about funding, I have great expectations and confidence in the National Crime Agency. However, as legislators, Parliament should have the opportunity to access that before giving the power to transfer responsibilities that the Government are asking for today. There would be a question as to whether we were abdicating our responsibility if we did not take the opportunity to have full primary-legislation scrutiny of such an important and serious measure. Great care has to be taken when dealing with national security and the security of citizens, with full examination of all the facts and all the relevant issues. I do not consider that the Government have made their case sufficiently well to allow this House to give them such a wide-ranging power that they can, without full primary-legislation scrutiny but merely by super-affirmative order, transfer counterterrorism from the Metropolitan Police to the National Crime Agency, which is not yet even a fully functioning body and where there is still work to be done. That case has not yet been made. I beg to move.
Lord Taylor of Holbeach
The effect of the order-making power would be to make new arrangements for counterterrorism policing in the United Kingdom, if that was the decision that was made. I cannot state the matter more clearly. No decision has been made. I am arguing neither for nor against the change. I speak neither for the status quo nor for the future. I am seeking to provide through the Bill a mechanism by which future government decisions can be reflected after a due process of consultation with all bodies involved and after the parliamentary process.
We expect police and other partners to be fully involved in the review when the time is right. Any decisions should be evidence-based and preserve those features of the current arrangements that work well. No one is going to upset an arrangement that is fully satisfactory unless they can be certain that the alternative arrangement will be an improvement.
We all recognise that counterterrorism policing structures work effectively. It is right and proper that we do not rush decisions in relation to counterterrorism now. Equally we do not want to rule out the possibility of some change in the future. I therefore urge the noble Baroness to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for explaining some of the reasoning behind the Government’s position. At the very beginning of his comments, he said something with which I entirely agree. If my handwriting was fast enough to catch his comments, he said, “In time it might be right to consider these national arrangements with changes to the national policing landscape”. I entirely agree with him on that point. It may well be the right thing to do, but the issue is the consideration that your Lordships’ House is able to give to those proposals. The Minister referred to a review on this issue. My understanding is that there is a Home Office review, but it seems a bit premature to make decisions at this stage to give a power to the Government to transfer the counterterrorism function from the Metropolitan Police to the new National Crime Agency without the full consideration in Parliament that a primary legislation route would allow. This is an extremely serious issue. As I said in my original comments, nothing is a more serious function of government than ensuring the safety and security of citizens.
I am not an expert on counterterrorism. I defer to the noble Lords, Lord Blair and Lord Condon, in the role that they have had. They expressed serious reservations about the transfer. They said that that is not the issue at stake today and made the case that it should be undertaken only after full scrutiny. The noble Lord, Lord Condon, said that he did not want to see a turf war between the Metropolitan Police and the National Crime Agency. The noble Lord is absolutely right in that. I do not think that there will be a turf war. My experience of those involved in counterterrorism responsibilities and security is that they want what is best. I think that they would have an enormous contribution to make if this House were discussing the issues and we had legislation before your Lordships’ House and the other place on the role of the security agencies and the role of those involved in counterterrorism in the Met. They would make presentations to your Lordships’ House and to committees—perhaps to a Select Committee—and that would be extremely valuable in considering this issue.
The noble Lord, Lord Dear, said that he felt that the NCA could, in time, be a proper receptacle for counterterrorism. It may well be, but I do not think that is the issue today. The issue is whether it is appropriate at this stage to give the Government the power to transfer counterterrorism from the Met to the National Crime Agency by a super-affirmative order. I personally think that the super-affirmative order is a clumsy legislative mechanism. Noble Lords who have read Schedule 18 might not be reassured by that. However, the route of primary legislation gives this House an opportunity to exercise its responsibilities in this regard.
To give the Government the power to transfer counterterrorism from the Metropolitan Police to the new National Crime Agency without full parliamentary scrutiny would be a serious step. The Constitution Committee has voiced concerns about it. The Joint Committee on Human Rights has said that this clause should be deleted from the Bill. The role of Parliament is properly to scrutinise legislation and properly scrutinise such serious matters. This clause will severely restrict the right of Parliament to scrutinise such a transfer of some of the most important responsibilities that the state holds. The Minister has sought to reassure us on this issue, but he has not been able to do so. I beg leave to test the will of the House.
Baroness Hamwee
My Lords, Amendment 18 brings us to the issue of the framework document in Schedule 2. I am afraid that I am still having difficulty in following paragraph 4 of that schedule. Paragraph 4(1) tells us that the Secretary of State must consult the director-general in preparing a framework document and obtain his consent before issuing it. Paragraph 4(2) then states that the director-general’s duty to have regard to the annual plan does not apply in relation to the two functions I have just spelled out. My amendment refers to the functions of responding to the consultation and giving consent, the ones in question, and I ask the Minister whether it spells out what is provided—I am sure that he will tell me that it is not necessary—or whether the paragraph means something else. Perhaps the Minister will say also whether the annual plan or the framework document takes precedence in this context. I beg to move.
Baroness Smith of Basildon
My Lords, I shall speak to Amendments 19 and 20. I did not wish to raise this issue again—I apologise to the Minister for doing so—but I had hoped that the Government would have come forward with something a little more substantial than they have done to date. I am slightly confused and disappointed that not all noble Lords had been able to get access to the outline framework document earlier in the debate. I know the Minister intended that they should have access and it was disappointing that the document was not available.
Schedule 2 to the Bill stresses the importance of the framework document and outlines what it does and how it does it. The framework document explains almost everything about the National Crime Agency. It is a far-reaching document, is hugely significant and includes provisions for NCA finance and governance. The goalposts have been moved on more than one occasion since we first discussed this issue. We understood originally that we would have the document by this stage, but then it became only the outline. We are now at Report and all we have is the outline, which is inadequate for scrutiny. The fact that we have so little information about it may have had an impact on the previous decision in this House not to include counterterrorism within the National Crime Agency.
I looked through the document to see how much of an outline it really is. I have already referred to the issues around the NCA management board. The outline framework document basically lists what provisions will be in the framework document, including: that the director-general will establish and chair a management board; a description of the board; the composition of the board; and that further committees may be established by the board which must include audit and risk and nominations and governance. As for working in partnership, the document contains only a bullet point about the NCA’s use of immigration or customs facilities. As for scrutiny, transparency and information, there are three bullet points: the first is on scrutiny; the second on the duty to publish information in accordance with publication arrangements, which will be set out in an annexe and which we also have not seen; and the third is on public information handling and complaints.
“( ) Before giving such a direction, the Department of Justice must consult—
(a) the Northern Ireland Policing Board; and(b) any other persons the Department considers it appropriate to consult.”
Baroness Smith of Basildon
My Lords, in Committee I raised concerns, with other noble Lords, about the application of this legislation to Northern Ireland, with specific reference to counterterrorism. Your Lordships have now voted to remove that particular clause to the Bill and so those issues around counterterrorism no longer arise. However, there are other issues and I discussed this matter with my honourable friend Vernon Coaker, the Shadow Secretary of State for Northern Ireland, in the other place. He was equally perplexed by this particular clause. It would be helpful if the Minister could offer some guidance.
In Schedule 3 to the Bill, paragraph 11 is about directed assistance by the National Crime Agency to Northern Ireland; paragraph 12 is about directed assistance to the NCA from Northern Ireland. I am unclear why the qualifications for direction differ between the two. If assistance is to be given to Northern Ireland, the direction can be given only if,
“it appears to the Department of Justice that it is appropriate for the Police Service to receive directed assistance from the Director General”,
And,
“if the Secretary of State consents”.
I assume that that is the Secretary of State from the Home Office agreeing to directed assistance going in. Perhaps the Minister can answer when he responds. However, for directed assistance to the National Crime Agency from Northern Ireland, there is a consultation process: it would consult the Department of Justice, which consults the Northern Ireland Policing Board and,
“any other persons the Department considers it appropriate to consult”.
However, if Northern Ireland is to receive such directed assistance, there is no consultation with the Policing Board or any other persons. It would be helpful to understand why the Minister thinks it is appropriate to have these different arrangements for each in place.
I beg to move.
Lord Taylor of Holbeach
I thank the noble Baroness for raising these issues. Of course, it is important that we consider the impact of this legislation on Northern Ireland, which the noble Baroness and I have discussed.
It is critical that the National Crime Agency has a UK-wide presence, reflecting the reach and threat of organised crime. In providing a UK-wide presence it is equally important that the arrangements for the National Crime Agency respect the devolution of policing and justice in Scotland and Northern Ireland. As the activities of the National Crime Agency touch on a mix of transferred, reserved and excepted matters in Northern Ireland, the provisions require the consent of the Northern Ireland Assembly, in so far as they cover transferred matters.
As the House is aware, securing legislative consent is a devolved process. The Home Office and the Northern Ireland Office are supporting the Department of Justice in Northern Ireland to take forward these discussions. I am pleased to say that David Ford and his department are engaged in constructive discussions with the parties in Northern Ireland with a view to securing a collective discussion in the Northern Ireland Executive Committee and thereafter in the Assembly.
I recognise that progress has not been as quick as we might have liked. I also know that the interests of the noble Baroness, Lady Smith—like those of the Government—are firmly focused on ensuring that the National Crime Agency will have a UK-wide presence but that the arrangements work for Northern Ireland. I share the House’s disappointment with the slow progress, but it is critically important that the Northern Ireland Executive and the Assembly are reassured that, through proper scrutiny, the proposals will work in Northern Ireland.
I also appreciate that the Bill is nearing the completion of its passage through the House and that there is some concern that the House is being asked to endorse the NCA provisions before the Northern Ireland Assembly has had an opportunity to debate the legislative consent Motion. However, we have until the last amending stage—Report—in the other place to secure legislative consent. Should amendments be made in the other place, this House will of course have an opportunity to consider them in the spring.
I know that the House might have liked more details of how the negotiations are going, but I hope that noble Lords will understand that we should give David Ford the necessary space to continue his discussions. I am sure that he will wish to take note of what the noble Baroness has said in this debate. I can undertake to update her on progress in due course, but for now I ask her to withdraw her amendment.
I will turn briefly to the amendment at hand, which concerns paragraph 11 of Schedule 3 and seeks to provide additional consultation requirements to the Department of Justice in Northern Ireland before directing the director-general of the National Crime Agency to provide assistance to the Police Service of Northern Ireland, subject to the consent of the Home Secretary. This is not unlike the additional consultation arrangements provided for under paragraph 12, whereby the Department of Justice in Northern Ireland must consult the Northern Ireland Policing Board and others before issuing a direction to the Police Service of Northern Ireland to assist the National Crime Agency. This is an important protection to the backstop arrangements for directed assistance from a devolved body—in this case, the Police Service of Northern Ireland—to the National Crime Agency.
Among its other responsibilities, the Northern Ireland Policing Board sets the Policing Plan for the Police Service of Northern Ireland and as such has an interest in how devolved policing resources are being deployed, particularly if diverting resources meant that the objectives of the Policing Plan would not be achieved. It is with a view to that relationship and the interests of the Policing Board that additional consultation has been provided where the direction impacts on the provision of assistance by a devolved body. However, this will not be the case when assistance is provided by the National Crime Agency to the benefit of the Police Service of Northern Ireland.
I am sure that this amendment is seeking to provide an additional safeguard to Northern Ireland, but these further consultation requirements will only add further bureaucracy and delay to the National Crime Agency providing assistance to the Police Service of Northern Ireland in the unusual event that a direction is used. Furthermore, as I have indicated, discussions on the arrangements for the National Crime Agency are ongoing in Northern Ireland and it will be for the Northern Ireland Executive and Assembly to consider whether the arrangements are appropriate and what changes may be needed, if any. Only at that point will it be right for the Government to consider if changes are needed to the Bill—rather than for Westminster to decide what is in the best interests of Northern Ireland.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for talking about the wider context as well as the specific amendments. Although some of the contentious issues will have been removed with the deletion of Clause 2, he is quite right that some will remain and a legislative consent Motion will still be required.
I am grateful for the Minister’s offer to start to update me on the progress of negotiations. He will be aware that I have been asking for such information and my noble friend Lord Rosser tabled a parliamentary Question regarding the implications of this Bill for Northern Ireland. There has not been much information from the Government, which is frustrating because this matter has to be resolved.
I am not clear what the implications are for the Bill as a whole if a legislative consent Motion cannot be obtained. Perhaps the noble Lord could look into this and give us some advice on that. I am happy for him to write to me on that point. This underscores how important it is to reach this agreement with David Ford, the Minister of Justice, and with the Northern Ireland Executive as a whole.
I am grateful for the Minister’s explanation of why he is resisting my amendment—I am used to his explanations of why he is resisting my amendments. He will be pleased to hear that I do not intend to press this matter to a vote, but I would like to read his comments in Hansard and share them with my honourable friend Vernon Coaker in the other place. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, I raised this issue in Committee with the then Minister, the noble Lord, Lord Henley. The debate got into a pickle and he was not able to answer all my questions. He kindly wrote to me, which was helpful up to a point but did not allay my concerns over this particular clause. My Amendment 31B seeks to delete paragraph 5 of Schedule 5, which is about the advisory panel. I admit that even after the debate in Committee and the letter from the noble Lord, Lord Henley, I remain really puzzled by the purpose of both that paragraph and the clause.
The Bill before us allows for an advisory committee to be set up to advise the Secretary of State once the director-general has been appointed as to the operational responsibilities that the director-general should have. I fully understand that not all candidates and not necessarily every director-general who will be appointed for however long it is will have all the skills and expertise in the wide-ranging areas of responsibility that the National Crime Agency will have. But the advisory panel, if it is the panel of experts that I am told it will be, is not to be set up prior to interview and so will not be able to ascertain with the Secretary of State what additional support a potential director-general would need. Instead, the Secretary of State can appoint an advisory committee after somebody has been appointed—although she or he does not have to set up such a panel—to give advice on the operational responsibilities.
When the then Minister responded previously, he said that the Secretary of State for the Home Office,
“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”.—[Official Report, 20/6/12; col. 1824.]
So the Secretary of State, presumably prior to appointment, decides that the director-general is capable and suitable to have these operational powers. Then, having made a decision, she—one day we might have a he again—may ask an advisory panel to advise on what training is required. That is where this starts to break down. If this role is so important as to give the Secretary of State that advice, why is it an ad hoc body?
The reason given in the letter to me from the noble Lord, Lord Henley, was basically, as I have pointed out, about what a wide-ranging group of responsibilities there are and that it would be unusual and unlikely to find somebody who had the capacity and ability in all the areas they would need to have. But before the agency is set up, the Secretary of State has appointed a director: Keith Bristow. Clearly she is entirely confident that he has all these capabilities—although we are not clear what some of those capabilities could be because we have not yet seen a framework document—because she has not set up an advisory panel.
I can understand why it would be helpful prior to interview for the Home Secretary to have a committee of experts which would decide the operational powers required. I would have thought that those should be given in the job description for a director-general. The committee would say, “This particular candidate does not have this or that, but there is training”, and then look at what support was required so that the candidate chosen would have all of it. That is not what is here today.
I then find it strange that the Secretary of State can do away with the committee anyway and not have it there. If it is needed, it should be there permanently; if it is not needed, it should not be there at all. This is confusing and has not really been very well thought out. As I said, the previous response from the Minister did not give me the answer I sought. I am not likely to press this to a Division but I need to understand why the Government think this is an appropriate way forward; what skills they would expect the panel to have; and why, if it is so important that the Secretary of State has that advice, she can choose, basically on a whim, not to have it.
Lord Taylor of Holbeach
I shared with the noble Baroness an initial uncertainty over what this is about but it is to ensure that an appointee to the post of director-general has the proper skill base to exercise the operational functions that go with that job. We have an exceptional appointment in Keith Bristow because he has exercised the office of chief constable. There is no anxiety in that respect. Of course, any future appointment—we hope these will not be made that frequently—will need to have a process to make sure that we get the right person and then to ensure that there is a methodology in terms of operational authority, skills and competence.
I am very happy to make a second attempt at writing to the noble Baroness on this because I understand the complication and the somewhat complicated process of an ad hoc advisory committee to deal with these matters within the regulation. I am assured that it is the most effective way to ensure that no shortcuts are taken in this process and that we end up with a director-general of the NCA who has these powers. Having given an ad lib answer, I will, if noble Lords will allow me, go through what I have written here, too, because it is useful to reiterate the background.
First, the Bill is explicit on the powers that can be designated, those being police, customs and immigration powers. Secondly, the director-general will be subject to the same tests of suitability, capability and training as other NCA officers. That is an important part of consistency and a critical point of assurance given the range of powers we are talking about. There is a broad range of powers. Thirdly, through the advisory panel the Bill provides independent assurance on the training to the Home Secretary before a designation can be made. Fourthly, any setting aside of the part played by an advisory committee is subject to regulations that have to be made under an affirmative procedure. This regulation-making power does not undermine the arrangements for the advisory panel; rather, the two provisions will work together.
Police, customs and immigration powers provide an extensive suite of operational powers. It is right that the DG, as an NCA officer, has to go through the same checks of adequate training as other NCA officers—as well as suitability and capability on appointment—to be designated with those operational powers. That is what the advisory panel is for: to provide an independent check on the adequacy of the training so that the Home Secretary can designate the director-general with operational powers. The regulation-making power is necessary for circumstances where a prospective director-general has already undertaken the training necessary to enable him or her to exercise particular operational powers. In those circumstances it is sensible that the advisory panel is not required to consider whether the prospective appointee has the necessary training. Keith Bristow is a case in point. As a police officer he has been extensively trained in police powers throughout his career and is a highly experienced investigator. There can be little question that he has the necessary training to exercise the powers of a constable.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord and also very grateful that he has offered to write to me again. On some parts he has satisfied me. He said that part of the role of an ad hoc advisory panel would be to be an independent check on the adequacy of training if a new director-general had been deemed—presumably by the Secretary of State—to need training in areas where they did not already have operational capabilities. However, he then said—I will read Hansard to check what it says—that this can be designated without reference to the advisory panel. If the advisory panel is supposed to be a check on the adequacy of training, I am not sure how the operational powers could be designated without reference to it. I will look at what he says and perhaps he could include that in this letter to me.
My point of concern regarded protection for the Secretary of State and a potential director-general. The Secretary of State appoints a director-general without reference to a board. If there is a board advising on operational capabilities and any training needs, it would be helpful to a Secretary of State to have that information prior to appointment. The last thing anybody wants to see is a director-general whose capabilities are questioned by the wider police family or by those working in the criminal justice system. If an advisory panel could assess the director-general’s operational capability and any training needs it would provide protection for both the Secretary of State and the director-general. It would be helpful if, perhaps in the letter, he could explain why it is after appointment by an individual Secretary of State, not before, that such advice and information was given. The Minister has been very helpful on this point and I am happy to withdraw my amendment.