Anti-social Behaviour, Crime and Policing Bill

Lord Blair of Boughton Excerpts

Wednesday 4th December 2013 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, these government amendments implement the recommendation of the Delegated Powers and Regulatory Reform Committee in relation to Clause 126. They ensure that there is parliamentary scrutiny of any decisions to designate countries, police forces and ranks under that clause. It is entirely appropriate, given its role, that the College of Policing should play a central part in the designation process, so the clause continues to require the Home Secretary to act only after receiving its recommendation. It will remain up to the Home Secretary whether she implements the college’s designations. However, by putting the designations in secondary legislation subject to the negative resolution procedure, we are ensuring that there is an appropriate opportunity for Parliament to consider them. I commend these amendments to the Committee.

For the time being, I will listen to what the noble Lord, Lord Blair, has to say about his amendment, which is in this group, before I respond to the debate that is likely to follow.

[Lord Blair of Boughton (CB)]

My Lords, I draw the attention of the House to my registered interests in relation to policing. Amendment 105 stands not only in my name but also in the names of the noble Lord, Lord Condon, and the noble Baroness, Lady Manningham-Buller. The noble Baroness is not able to be in your Lordships’ House today and has asked me to present her apologies for that. However, I am in a position to say that she remains in firm support of this amendment. Amendment 105 is not affected by, nor affects in any specific terms, the other amendments in this group put forward by the Minister. It is not an amendment to Clause 126 but is about Clause 126. It is actually an addition to the Bill’s last clause, Clause 160—the enactment clause—and can be found at the end of today’s Marshalled List. I am grateful to the Minister for his part in arranging to have it debated now as it is related not to the whole Bill, nor even to the enactment of the whole Bill, but only to the enactment of Section 126.

The amendment is triggered by concerns about how the opening of senior UK police posts will affect those few police chief officer posts that are deeply concerned with UK national security and intelligence. It suggests that the Government should seek the advice of the Intelligence and Security Committee about this point before Section 126 is enacted.

After that, the first thing to say is that neither the noble Lord, Lord Condon—who will be speaking later —nor I have any objections in principle to the appointment of senior officers from abroad, notably those from Commonwealth countries, to UK police positions. That would be hypocritical in that senior UK officers have reasonably often and recently commanded police forces in Commonwealth countries, including Australia.

However, it is pertinent to note that no UK officer has ever been considered to command the Australian Federal Police or for appointment to be director of the FBI or the commissioner of the NYPD for a particular reason. Those posts are concerned with the national security of the United States or Australia, and the postholders routinely share secret intelligence with their national security services. Here our amendment comes to the point. There are similar posts in the UK. There are senior police officers intricately involved in the security and intelligence arrangements of the UK. The amendment picks out four of them and seeks to understand how the Government foresee that these posts can be held by non-UK citizens. It is not easy to see how that would be possible.

The first two of the four we have selected are: the Commissioner of Police of the Metropolis, who is responsible to the Home Secretary for overall national co-ordination of police counterterrorism activity in the whole of the UK, excluding Northern Ireland; and the deputy commissioner, who holds the full powers and duties of the commissioner in the absence of him or her. That is why these two posts alone are royal appointments on the recommendation of the Home Secretary and are not appointed and never have been by a police authority, the police and crime commissioner or even the Mayor of London.

The third post is one of the currently four assistant commissioners of the Met currently described as assistant commissioner specialist operations, appointed by the commissioner to have full-time, day-to-day responsibility for national counterterrorism policing and liaison with the security services. As an assistant commissioner, he or she—it is currently a she—is one of the most senior chief constables in the UK. He or she chairs the ACPO committee on terrorism, ex officio, and has executive jurisdiction throughout the UK except for Northern Ireland. Counterterrorism is not a devolved matter. General policing is, but not counterterrorism, which is what makes these posts so special.

The fourth post is that of the director-general of the new National Crime Agency. We have included this post partially because the NCA has been selected recently by the Government as a potential successor to hold the Met’s current CT responsibilities. But in any event, he or she will already handle secret material in relation to organised crime and child pornography, both of which have significant international dimensions.

All these postholders must be security cleared to the very high level known as developed vetting. The first requirement for DV, as it is known, is that, as far as I and the noble Baroness, Lady Manningham-Buller, can recall, the individual must be a UK citizen and must have lived in the UK for a decade. If that is not true or has been changed, it would be useful to know, so I hope the Minister can tell the Committee.

It is extremely difficult to imagine these postholders being able to carry out their roles without access to the full range of CT intelligence, which a person will not have if they are not DVed. Furthermore, particularly in the case of a US rather than perhaps a Commonwealth citizen, it is possible that a foreign postholder would inevitably have mixed allegiances. Many counterterrorist operations are highly international and fast moving, being briefed upwards to Prime Ministers and Presidents. It is inevitable that, during a near crisis, different Governments will have different security priorities at different times. COBRA, in which the commissioner and the assistant commissioner specialist operations sit, battles with this regularly.

The noble Lord, Lord Condon, will return to this matter. He will also speak about the fact that the Metropolitan Police Commissioner is responsible for the protection of the monarch and her heirs and successors, as well as the Prime Minister, some Ministers and some foreign ambassadors. We understand that appointments like these will not be undertaken lightly and that they will be political—in the best use of the word—decisions involving senior Ministers. The Government have a clear duty to lay out what mechanisms they would use to mitigate the difficulties I have outlined. In the second section of the amendment we make a proposal which provides a parliamentary solution to the problem. This suggests a delay to the enactment of Clause 126—and only that clause—until such time as the Secretary of State has sought and received advice from the Intelligence and Security Committee on the viability of appointing foreign nationals to these four posts and has ensured that the committee’s findings have been laid before both Houses of Parliament.

This is not a frivolous amendment. It is about a very serious national security issue. The fact that all four noble Lords who have held the office of Metropolitan Police Commissioner are sitting here at this time of night is an indication that there may be something we need to consider. There are no vacancies at present in any of these four posts. A referral to the ISC would create no delay. If that is not what the Government wish to do, what does the Minister propose to do to mitigate this situation?

[Lord Condon (CB)]

My Lords, I put my name to Amendment 105, not seeking to undermine Clause 126 in any way. I supported Clause 126 at Second Reading and spoke of the example of a Canadian Governor of the Bank of England. I am certainly not against, in principle, the notion of exceptional overseas candidates leading police forces in the UK. Like my noble friend Lord Blair, I am merely seeking to explore the additional challenges and hurdles of appointing an overseas candidate to one of the posts mentioned in the amendment. In particular, I would like to explore the challenges of appointing an American citizen to the post of commissioner. Without overpersonalising it, I believe we got reasonably close to an attempt to appoint an American the last time there was a vacancy for that post.

An American citizen has an unequivocal duty, first and foremost, to the laws, constitution and interests of the United States of America. Imagine an American appointed to the post of commissioner who finds himself or herself in the Cabinet Office briefing room with the Prime Minister and heads of the security services at a time of national crisis. This country and the United States of America might have subtle, or even significant, policy differences and interests at that time. In the recent past, for example, extraordinary rendition, Irish terrorism and mega-data collection have all led to subtle or significant differences between our country’s policy approach and that of the United States of America, one of our oldest allies. There are additional challenges which are not insurmountable but it is important to place on record that these issues must be taken account of at some stage when the Prime Minister and Home Secretary of the day get close to appointing an overseas candidate.

In addition, the commissioner has a personal role in protecting the monarch and those in the line of succession, whether they are in this country or anywhere in the world. I had the honour of holding the post of commissioner for seven years and swore an oath of allegiance to Her Majesty the Queen. There will be times in the future when there may be subtle or significant differences over protection arrangements for our monarch and the line of succession when they find themselves in other parts of the world. Again, these are not insurmountable challenges but they are important considerations to have on record. No other country, as my noble friend Lord Blair has said, has even come close to considering a foreign national in an equivalent security-sensitive senior police post.

--- Later in debate ---

[Lord Taylor of Holbeach]

My Lords, this has been an interesting debate. One or two things have been said that I would have to refute. I disagree with the view of the noble Lord, Lord Elystan-Morgan, on police and crime commissioners, and they are not really the subject of this amendment or this debate. With the greatest respect, I have to say that I disagree with the noble Lord, Lord Imbert, on the views of this Government about policing. There is no way in which any member of the Government who I know holds the police in disdain, and there is no sense that the Bill is in any way about getting at the police, as the noble Lord implied. I must put that on the record because I owe it to all my colleagues to do just that.

There is a serious issue in these amendments and I am grateful to noble Lords for addressing them and to the noble Lord, Lord Blair, for bringing them to our attention. I am also grateful to the noble and learned Lord, Lord Hope of Craighead, for being a non-policing lay person who wishes to contribute to this debate. I hope that I can reassure the noble Lord, Lord Rosser, as well on this issue.

I understand the concerns that the noble Lord, Lord Blair, has raised, and I am grateful for the experience and knowledge of policing that he and his colleagues have brought to bear on this important issue. I agree that it is essential that those who are appointed as police officers undergo vetting appropriate to the role that they undertake. In the case of posts that have responsibility for counterterrorism policing, such as those that are pointed out in the amendment, it is of course vital that very stringent checks can be carried out.

Of the posts mentioned in the amendment, though, only the post of the Metropolitan Police Commissioner would be affected by the proposals in Clause 126. All the others are not mentioned in this clause or indeed relevant to it. Clause 126, as the noble Lord says, removes the requirement for an applicant to have served as a constable in the UK before being appointed as a chief constable or as the commissioner—where they have certain alternative relevant experience, which is important to emphasise as well. I have to say that there is no requirement under law to have served as a constable in the UK before being appointed as a deputy or assistant commissioner. With regard to the Metropolitan Police Commissioner, it will be for the Home Secretary to decide whether to include further restrictions beyond those set out in primary legislation in advertising for the role when a vacancy arises.

That is the same position as now. As things stand, no policing posts are restricted to British nationals by legislation. I recognise that there will be some posts that will require UK nationals only. However, we do not feel it necessary to start specifying this in legislation. We have not done so up to now; why should we start? The Home Secretary has the ability to impose nationality requirements for the commissioner post if necessary, as indeed she did when the post was last advertised. Similarly, the Home Secretary can also impose this requirement when appointing the deputy commissioner and the director-general of the National Crime Agency. It is for the Commissioner of the Metropolitan Police to make the decision when it comes to assistant commissioners—they are not a Home Office appointment.

The noble Lord, Lord Blair, has explained why he does not believe that this is a sufficient safeguard, and that the Home Secretary and Parliament must be required to consider the advice of the Intelligence and Security Committee. However, it would be more appropriate for the Home Secretary to take advice from whom she thinks relevant when she is in the position to make these appointments, so that it is current and pertinent to the role being recruited at that time. However, I reassure noble Lords that, whatever nationality restrictions are imposed, no appointment would be made by this or any future Home Secretary that would put national security at risk. We would always expect the successful candidate to undergo the appropriate vetting procedures. If an applicant cannot be vetted, they will not be appointed.

I shall inform the House about current vetting requirements. The UK has reciprocal agreements with Governments of some EU and NATO countries whereby we recognise their vetting as equivalent to ours. Decisions will need to be made on a case-by-case basis. There is currently no bar to foreign citizens undergoing developed vetting, nor is there a requirement to have a British parent, but 10 years’ residency is usually required.

While I accept and acknowledge the expertise in the ISC, I do not believe we need to be obliged by law to refer this matter to it. I am satisfied that there are sufficiently robust vetting arrangements in place for these sensitive posts—they are, indeed, sensitive posts. Any change in the law to exclude foreign nationals being appointed to them would be introducing a requirement that has not hitherto applied. With these assurances, I hope the noble Lord will be content not to move his amendment.

[Lord Blair of Boughton]

The Minister has puzzled me about the idea that the deputy commissioner and the assistant commissioners of the Metropolitan Police are not chief constables. They are chief constables. You have to be a chief constable to be an assistant commissioner or the deputy commissioner. At least, that is my understanding of the matter, and I am getting various nods from my colleagues. Titles in the Metropolitan Police are different, as the Minister knows. To say that the deputy commissioner and the assistant commissioners are not chief constables when they are the most senior chief constables in the land is an oddity. Would the Minister care to reflect on that?

[Lord Taylor of Holbeach]

I shall certainly reflect on it. I am speaking from my notes. While they acknowledge the deputy commissioner role, they make quite clear that there is no requirement to have served as a constable in the UK before being appointed as a deputy commissioner or assistant commissioner. I say that on the information that I have been supplied. If it proves to be wrong, I will certainly write to the noble Lord and inform the House by placing that letter in the Library.

[Lord Blair of Boughton]

I am grateful to all noble Lords who have spoken in this debate. I and colleagues will reflect on what the Minister said and what he has and has not agreed. I think it will come as a general surprise to the holders of the deputy commissioner and assistant commissioner posts that they are not chief constables, but we will come to that in due course. I reserve the right to return to the matter on Report and will be grateful for any further information the Minister can provide.

Amendment 56R agreed.