Earl Attlee
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Crime and Courts Bill [HL]
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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.
Earl Attlee
“( ) Paragraph 12(1) does not apply to a member of a special police force who is an NCA officer by virtue of a secondment.
Secondments by NCA(1) The Director General may make arrangements for NCA officers to be seconded to a UK police force.
(2) An NCA officer who is seconded to a UK police force is, whilst on secondment, under the direction and control of the chief officer of the police force (but is not a member of the police force).”
Earl Attlee
My Lords, I am conscious that there are a large number of amendments in this group, but they are all essentially technical and drafting in nature. In a few cases, they respond to points raised in Committee and I will deal with these first.
On the first day of Committee on 18 June, I undertook to consider an amendment tabled by my noble friend Lady Hamwee, which sought to provide for secondments from the NCA into police forces. As your Lordships will be aware, the Bill already contains provision for secondments in the other direction, so that police officers can be seconded to the NCA. On reflection, we agree that this was an omission. Amendment 9 makes the necessary change to ensure a two-way exchange of NCA and police officers.
On that first day of Committee, my noble friend also had a probing amendment designed to test why the Bill provided for compensating only NCA specials for loss of salary as a result of an injury or death on duty. We agree that it would be helpful not to unnecessarily restrict the scope of the scheme. Amendments 10 to 13 therefore remove the limitation in respect of loss of salary. The scheme through which NCA specials would be eligible for compensation will, of course, be subject to set criteria as with all existing schemes for public servants. In reality, the calculations made under such schemes are frequently linked to loss of remuneration, so I do not want to give the impression that the scheme for NCA specials will necessarily adopt a different approach. Nor do I want to limit the scheme so that NCA specials who do not receive a salary elsewhere cannot be adequately compensated. I should add that these amendments will also make it possible for NCA specials to be covered by either the Civil Service injury benefits scheme or another stand-alone scheme to be established by the NCA, as appropriate.
Amendment 26 addresses an issue raised by the noble Lord, Lord Rosser, in Committee. The noble Lord will recall that he drew attention to the fact that there was no requirement for the Secretary of State to consent to a direction by the director-general to the chief constable of the British Transport Police to provide assistance to the National Crime Agency. It was our intention to include this consent requirement—it already applies where a direction is made to one of the 43 territorial forces—and I am grateful to the noble Lord for highlighting this gap in the Bill.
Amendment 35 closes a gap in the independent oversight arrangements. It extends the remit of the Police Ombudsman for Northern Ireland to include complaints and conduct matters arising from the exercise of asset recovery functions by NCA officers in Northern Ireland. The Bill already provides for the remit of the Independent Police Complaints Commission to extend to such matters in England and Wales.
Amendments 39 to 55 extend the power to make schemes for the transfer of staff, property, rights and liabilities. As noble Lords will be aware, the National Policing Improvement Agency is currently being wound down as a prelude to its abolition following the enactment of this Bill. Most of its staff and property will have been transferred to the successor bodies by December of this year, but there may be some residual staff, property, rights and liabilities that fall to be transferred on formal abolition of the NPIA. Schedule 8 already enables schemes to be made to make transfers from the NPIA to the National Crime Agency but, as a precaution, these amendments also enable transfers from the NPIA to the Home Office.
Amendments 52 and 56 make transitional provisions in consequence of the abolition of the Serious Organised Crime Agency and the NPIA. Amendment 52 ensures that corporate liability for any criminal acts—for example, health and safety breaches—committed by SOCA or the NPIA passes to the successor body. It is also critical that in creating the National Crime Agency we do not undermine the operational integrity of things done by SOCA or other precursor bodies. In particular, we need to ensure that operations and investigations started by SOCA can and will continue to be investigated and taken through to conclusion by the National Crime Agency.
Amendment 56 has been drafted so that it captures a wide range of documents, contracts, authorisations and legal proceedings. For example, it is important that search warrants secured by SOCA under the Police and Criminal Evidence Act or authorisations granted by senior SOCA officers under RIPA continue to have force at the point at which the National Crime Agency takes over from SOCA. Amendment 56 also ensures that three statutory instruments made under Part 1 of the Serious Organised Crime and Police Act 2005 continue in force, with the necessary adaptations, when the relevant order-making powers are repealed and replaced by equivalent powers in Part 1 of this Bill. Both measures will, as I have said, ensure a smooth transition from SOCA to the NCA.
The other amendments to Schedule 8 in this group make further consequential amendments to various enactments and subordinate legislation to repeal or replace various statutory references to SOCA. I draw the particular attention of my noble friend Lady Hamwee to Amendment 76, which makes consequential amendments to the Equality Act 2010. My noble friend asked in Committee on 20 June why paragraph 4 of Schedule 4 to the Bill made particular provision for the application of discrimination legislation in Northern Ireland but seemingly not in other parts of the United Kingdom. These amendments to the Equality Act ensure that all NCA officers are protected by the relevant discrimination legislation in each part of the United Kingdom.
Finally, I draw the House’s attention to Amendment 62, which builds on the existing provision in the Bill enabling police officers to retain, in certain prescribed circumstances, their police pension when appointed to posts within the NCA. This amendment extends that provision to include reservists in the Police Service of Northern Ireland so that they are on an equal footing. As I indicated at the start, these amendments cover a lot of ground but I trust that your Lordships will agree that they are necessary changes to refine and build on the provisions of the Bill and to ensure a smooth transition from SOCA to the National Crime Agency. I beg to move.
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.
Earl Attlee
The noble Baroness, Lady Smith, asked who else would compensate. I referred in my speech to a number of possible schemes but I think that it would be helpful if I wrote to the noble Baroness in full detail. Some inspiration has arrived: it will be for the National Crime Agency to determine the most appropriate way of ensuring that NCA specials are covered if they were to be injured or killed on duty. That may be through the Civil Service injury benefit scheme or—if the existing rules of that scheme do not allow adequate provision for individuals who may spend the majority of their time working for another employer—through a separate, tailor-made scheme. The Civil Service scheme, of course, is managed by the Cabinet Office. If I have any further details to add I will write to the noble Baroness.
The noble Baroness also asked how many staff are involved in these provisions. I would imagine that the numbers are fairly low. However, the provisions are precautionary in ensuring that we have sufficient flexibility to deal with any unexpected problems. Again, I will write with the details. The noble Baroness also teased me slightly about the transitional provisions and the funding thereof, but I am sure that she will accept that these are legal provisions to move from SOCA and CEOP to the new NCA.
I am grateful to my noble friend Lady Hamwee for explaining her two amendments, Amendments 57 and 58, to government Amendment 56. Amendment 57 relates to the Secretary of State’s power to determine any questions as to whether a particular function of a precursor body has been transferred and to whom it has been transferred. My noble friend questions whether this should be a role for Ministers or for the courts or, as she explained, for an employment tribunal. Schedule 8 already provides for transfer schemes to be made by the Secretary of State and the Bill provides for the abolition of SOCA and the NPIA. Therefore, in circumstances where there is any doubt, we consider it an administrative task to determine whether a particular function has been transferred from one body to another. This is not an area where we need to involve the courts. I would add that the Police Reform and Social Responsibility Act 2011 adopted a similar approach in relation to the continuity of functions exercised by police authorities when such functions transferred to police and crime commissioners.
I turn now to Amendment 58. It may help if I explain the effect of proposed new paragraph 5A(12) of Schedule 8 as inserted by government Amendment 56. Sub-paragraph (12)(a) is concerned with ensuring the continuity of things done by either SOCA or the NPIA once they are abolished and a successor body takes on the corresponding functions. Sub-paragraph (12)(b) is concerned with ensuring the continuity of things done by a third party where some of the functions of that third party are being taken over by the NCA. The language used in the drafting of these two paragraphs is a reflection of the fact that the NCA will take on functions corresponding to those undertaken by SOCA and in part by the NPIA, which are to be abolished. It will also assume some of the functions of the other third party precursor bodies which continue in being. With that explanation, I hope that my noble friend will be content not to press her amendment.
Earl Attlee
(a) the reimbursement of”
Earl Attlee
My Lords, I am grateful to noble Lords for explaining their amendments. Clause 4 already requires that the agency’s annual plan should be published and must include the strategic priorities determined by the Home Secretary. My noble friend’s Amendment 15 proposes that, in addition to the normal publication of the strategic priorities in the annual plan, the Home Secretary should lay a report before Parliament if she should determine any variation in the NCA’s strategic priorities out of sync with the annual plan cycle. I understand that my noble friend is rightly concerned to ensure that Parliament is kept abreast of changes to the strategic priorities. However, in practice, I do not think that there is any need for this amendment. The strategic priorities are not going to be changed every other month. They will be informed by weighty assessment of the threats from serious and organised crime.
The timetable for that assessment process will be in sync with the development of the annual plan, which will itself inform the agency’s annual financial planning cycle determining how it allocates resources. The annual plan really is the right place for the strategic priorities to sit. Indeed, it is highly likely that in some years, as has been the case for SOCA, the strategic priorities will remain the same because the strategic threat picture remains consistent. The only reason for changing the priorities mid-year would be if there was a seismic shift in the organised crime landscape, such as the emergence of a totally new threat. If that were to happen, Parliament would undoubtedly already be well aware of it, and in any case the Home Secretary would, of course, notify Parliament, whether through an Oral or Written Statement or by some other established mechanism. The Bill also provides for the agency’s annual report to be laid before Parliament and for such reports to include an assessment of the extent to which the annual plan for the year has been carried out. Parliament will be well informed about the strategic priorities and how the agency is delivering against them.
I turn now to Amendments 16 and 17, spoken to by the noble Lord, Lord Rosser. I understand the concerns expressed in Committee by the noble Baroness, Lady Smith, that the provision requiring consent to the annual plan before issuing it invites potential political interference in the operational independence of the agency. Let me first be clear on the purpose of the annual plan. It is intended as the means by which the director-general sets out how he intends to deliver the NCA’s objectives for the coming year, chief among which will be the Home Secretary’s strategic priorities. Using his operational expertise and an informed picture of the threat, he crafts a high-level plan for the National Crime Agency’s operational response to serious and organised crime over the coming year. He still, of course, has independent operational responsibility for decisions throughout the year about which individual operations to mount and how they should be conducted, as is clearly set out in Clause 4. Equally, it is crucial that he gains agreement to the annual plan from those to whom he is ultimately accountable at the national level for delivery against the strategic priorities.
Let me seek to explain why. First, let us consider the consent of the Home Secretary. I do not at all see this as political interference, as the noble Lord has suggested, but as a common-sense approach to guarantee consistency between what the Home Secretary needs the National Crime Agency to deliver, as set out in the strategic priorities, and what the director-general intends to deliver operationally in any given year. How can my right honourable friend be held truly accountable to Parliament for the agency’s performance in the fight against serious and organised crime if she has not publicly agreed the high-level direction set for the agency by the director-general in the annual plan?
Secondly, but no less importantly, let us consider the consent of the devolved Administrations. They will play an important role in shaping the fight against organised crime through consultation on the strategic priorities, ensuring that the priorities of the devolved Administrations in Scotland and Northern Ireland feed into the overall strategic priorities that the Home Secretary will set. Given their accountability for the fight against organised crime in Scotland and Northern Ireland, it therefore follows that the devolved Administrations should rightly have a role in agreeing those aspects of the annual plan which affect Scotland and Northern Ireland, not least to ensure that the agency’s operational priorities set out in the annual plan are consistent with the serious and organised crime priorities there.
I would go so far as to say that I am a little surprised that the noble Lord would want to water down this clear and important safeguard for the devolved Administrations. We will come to discuss Northern Ireland later, but I fully expect that the Northern Ireland Department of Justice will be stressing the important safeguards that we have included in the Bill to respect the devolution settlement in discussions in Northern Ireland, with this provision being a case in point. I know how strongly the noble Lord feels about securing arrangements in Northern Ireland that meet the needs of Northern Ireland but it rather seems that this amendment undermines that end.
In summary, given the clear mechanisms already in the Bill to ensure that the strategic priorities are published regularly, I am not persuaded that it is necessary to have a further procedure for laying the strategic priorities before Parliament “in-year”. Similarly, I am clear that the requirement of consent is an important level of assurance—for the Home Secretary, for the devolved Administrations, for Parliament and for the public—that the agency is heading in the right direction to spearhead the national response to serious and organised crime. I hope, therefore, that noble Lords will not press their amendments at the appropriate point.
Baroness Hamwee
My Lords, the Minister assures us that the activities will be in sync. Circumstances indeed might change. We all know about events—sometimes with a capital E. He takes the view that there would need to be a change only if there were a seismic shift in the security threat. I appreciate that, if that were the case, everyone would know that there had been a seismic shift. However, we are talking here about priorities. Prioritising means putting things in the order in which you have regard to them, or spend money on them, or whatever, and there could be a change in priorities in much less dramatic circumstances than my noble friend describes.
I shall not pursue the issue now. I hope, of course, that we never see a seismic shift. I beg leave to withdraw the amendment.
Earl Attlee
My Lords, I hope I can persuade my noble friend Lady Hamwee and the noble Lord, Lord Rosser, that these amendments are unnecessary. First, I will emphasise that the National Crime Agency will build on the policy of the Serious Organised Crime Agency, which is not to charge law enforcement partners for tasks, assistance and facilities unless agreed with partners beforehand; for example, in exceptional circumstances.
This means that law enforcement partners will have the opportunity to draw on the National Crime Agency’s specialist services, including investigative, overseas, cyber, forensic and civil recovery assets, free of charge. The National Crime Agency will make intelligence available to partners on a routine basis, which will result in more effective deployment of partner resources. For example, the National Crime Agency’s intelligence functions will ensure that multiple partners do not investigate the same criminals or gangs without being aware of each other’s activities.
Baroness Hamwee
My Lords, perhaps I can use this moment to ask if—possibly not immediately, but shortly—the Whips could clarify how far we will go on this evening. I was told that we would finish after disposing of Amendment 78, but the Annunciator is talking about Amendment 107A, which may cause some of us a little panic.
Baroness Hamwee
I thank the Minister. Perhaps we should calm down, or even, “Calm down, dear”.
I do not suggest, with my amendment, that there should not be a backstop if the parties cannot reach agreement, but it is better to have a formula. My amendment does not specify the detail of the arrangement because I was doing the Government the courtesy of allowing them to put that into the framework document when they come up with it. I have heard what the noble Earl has said and beg leave to withdraw my amendment.
Baroness Hamwee
My Lords, I will speak also to Amendment 38. In Committee I sought to understand the relationship between Schedules 6 and 7. Paragraph 1 of Schedule 7 provides that,
“This Part of this Act”—
I will come back to those words in a moment—
“does not authorise or require”,
disclosures which would be prohibited by the Data Protection Act or Part I of the Regulation of Investigatory Powers Act, which are importance provisions. Among other things, I did not then, and still do not quite, understand whether the regulations that may be made under paragraph 5 of Schedule 6 could override primary legislation. These amendments are in response to the noble Earl’s assurances that neither of these Acts is affected. However, we still have a provision in paragraph 5(5) of Schedule 6 that the Secretary of State can make regulations regarding the disclosure of information which, under paragraph 5(6), may,
“modify any provision of Schedule 7 in its application to such a disclosure, or … disapply any such provision from such a disclosure”.
I would be grateful if, in the light of the permissive arrangement under Schedule 6, the Minister could confirm that it does not mean what it seems to when we get to paragraph 1 of Schedule 7.
My second question concerns,
“This Part of this Act”.
Can the Minister confirm that that means Part 1 of the Bill rather than Part 1 of this schedule? I think it is that way round. Given that “This Part” could refer to part of the schedule or the main part of the Bill, it would be helpful to have it confirmed. I would also like to give my thanks to those who have corrected the annunciator. My blood pressure and that of the noble Earl have come down considerably over the past five minutes as a result. We will see how many noble Lords get caught out by how swiftly we are going to move from Amendment 38 to Amendment 78.
Earl Attlee
My Lords, I thank my noble friend Lady Hamwee for explaining her amendments. I am sure that she would be pleased to know that we both want the same thing, namely that nothing in Part 1 of the Bill enables the National Crime Agency or others to override or modify the application of the Data Protection Act 1998 or the Regulation of Investigatory Powers Act 2000 in relation to the disclosure of information.
The aim of the restrictions on disclosure set out in Schedule 7 is to ensure that any onward disclosures by NCA officers will, among other things, be subject to the existing safeguards in data protection legislation. The current wording does not provide any powers to amend existing primary legislation and therefore inserting “modify” is unnecessary. Without the provision in paragraph 1 of Schedule 7, the information gateways provided for in Clause 7 could be read as being capable of overriding the provisions of the Data Protection Act and RIPA.
There is no need to extend these statutory restrictions to cover the whole Bill as we are dealing here only with the information gateways available to the National Crime Agency and its law enforcement partners, as provided for in Part 1 of the Bill. My noble friend is correct that we are referring to Part 1 of the Bill. I hope my noble friend is reassured that paragraph 1 of Schedule 7 is necessary to prevent any overriding of the important safeguards in data protection legislation and, on that basis, would agree to withdraw her amendments.