National Crime Agency (Directed Tasking) Order 2023

Lord Coaker Excerpts

Tuesday 30th January 2024 Grand Committee

[Lord Coaker (Lab)]

My Lords, we also welcome the general direction that the Government are taking in this SI. It goes without saying that we all agree that financial and economic crime and fraud are very serious issues and that we must do all we can to tackle them. Obviously, there is no disagreement between us at all.

I start where the noble Lord, Lord Sharkey, finished. There is a bit of confusion. It is necessary for the Minister to clarify some of the territorial applications between the various powers outlined in the order. I highlight paragraph 6.3 of the EM, which says:

“Section 5(5) of the 2013 Act makes provision for the Director General of the NCA to direct chief officers of an England and Wales police force or the Chief Constable of the British Transport Police”.


Clearly, that does not apply to direct tasking in Scotland and Northern Ireland, yet this order applies to the whole of the UK. How do the NCA’s powers, as directed under this SI, and the Serious Fraud Office’s powers relate to each other? It is about understanding that and having some clarity around the legislation with respect to that issue; this would also give clarity to the NCA, the Serious Fraud Office and the chief officers of the police of all four parts of the United Kingdom. The noble Lord, Lord Sharkey, is quite right to raise this; indeed, it is one of the issues that I was going to raise.

I want to ask the Minister about a couple of other things. Can he say why the change is needed? Presumably, the co-operation is good. If it is, why does it need to be legislated for? Have there been occasions when there has been a refusal by the SFO director to do something that the NCA’s director-general has asked them to do, leading the Government to think that we need some clarity there? What problems have emerged in the current arrangements to necessitate the Government deciding that they need to take this action?

Also, can the Minister explain what direct tasking actually is? Is it a compulsory demand that the SFO does this or that? Is there a level of seriousness that must be met, or is it a subjective judgment on the part of the NCA’s director-general—that is, this is what they would like the SFO to do and can require them to do? The other thing that emerges from this is the fact that, presumably, there is no way in which the SFO’s director can refuse? Otherwise, there would be no point to this legislation. Some clarity around direct tasking and the problems or difficulties that have come up, including what this SI seeks to overcome and in what circumstances it may be used, is needed.

Clearly, we all support this attempt to do more about economic and financial crime and fraud. The Government think that this order will help. I think that a little more explanation of how it will help, rather than an assertion that it will, would be helpful in our deliberations.

[Lord Gascoigne (Con)]

My Lords, I thank both noble Lords for their comments and their support for this order. I will begin with some brief remarks that should answer a number of the points raised and then try to tackle any specific outstanding ones.

As we have discussed, this order would amend the Crime and Courts Act 2013 to grant the National Crime Agency direct tasking power over the Serious Fraud Office in relation to combating fraud, bribery and corruption. The use of this power would be at the discretion of the director-general of the National Crime Agency. It will be used when it is deemed that such tasking would assist the agency in its role of investigating and reducing crime and, in particular, tackling serious and complex fraud, including bribery and corruption, as well as when satisfactory voluntary arrangements cannot be made, or cannot be made in time.

Through the extension of these tasking powers to the Serious Fraud Office, we align the arrangement between this office and the National Crime Agency, as I have said, with those for police forces in England and Wales and the British Transport Police. In doing so, we are strengthening the mechanisms for co-operation and a system-wide response. The agency has previously used its power to task to great effect: taking weapons off our streets; identifying and bringing to justice the highest-harm drug gangs we face; searching for and tackling prolific child sexual abusers; and combating fraudsters and seizing the proceeds of crime.

Further to the comments of the noble Lord, Lord Coaker, ideally this mechanism would not need to be used because of the already very good co-operation and relationship between the National Crime Agency and the Serious Fraud Office. However, it is important to have it in place to ensure a joined-up response to serious or complex fraud, including bribery and corruption, when and if needed. This step is part of the response set out in the Government’s serious and organised crime strategy. As we have discussed, this new strategy, which the Home Secretary published last year, makes clear the challenges we face from serious and organised crime. Its mission is to reduce serious and organised crime in the UK by disrupting and dismantling the organised crime groups operating in and against the UK. The strategy has five lines of action for reducing serious and organised crime: in-country, at the border, international, technology and capabilities, and a multiagency response. The package of measures announced as part of the strategy also included new powers in the Criminal Justice Bill that will clamp down on organised criminal gangs. As I have said, there is also a further £5 million for the police to disrupt organised immigration crime and £24 million allocated to the modern slavery fund to address the serious root causes of modern slavery and human trafficking.

To be clear, this power is intended to strengthen the ability of the NCA to lead the system in tackling serious and organised crime. The Serious Fraud Office will remain a strong and independent body. The wider reform agenda being delivered by Director Ephgrave is strengthening its capacity to deliver more effective investigations into the most complex cases. It has had several notable successes over the past few years, including deferred prosecution agreements, which have contributed almost £1.3 billion to the public purse since 2017. This attests to its capacity and capability to investigate the most serious, complex and harmful fraud cases and prosecute those responsible.

I will now try to address the points raised—with the emphasis on “try”. The devolved Administrations have been consulted on this and, before any application, we will have further discussions with them. They have been consulted in advance, but we will continue to do so. The SFO may need to use its powers to investigate crime within its jurisdictions in England, Wales and Northern Ireland. The noble Lord, Lord Sharkey, asked when there would be a review of the MoU. This is a consultative process, and we will check on requirements to update the MoU—but I reiterate that this is consultative and collaborative, and that is the crucial part.

I was also asked about examples. I think the noble Lord, Lord Coaker, asked whether there have been refusals. As it stands, there have not been any. A lot of it is just streamlining the process to ensure that it is there. I am informed that when different agencies talk it may not be possible for the NCA to raise a specific issue, so in effect it is a power that it has in its back pocket.

On how it might be used, decisions on voluntary and directed tasking are taken following discussions with the national strategic tasking and co-ordination group where it is assessed that improving the intelligence picture or operational delivery to tackle a threat is required as a priority. Obviously, there are discussions between a number of parties at official and senior level in advance of those discussions. Directing tasking will occur only where a voluntary arrangement cannot be made or made in time.

[Lord Coaker (Lab)]

The territorial complexities of that may need to be teased out a little more between now and discussion in the other place. To be fair, there is still a little confusion in my mind about the inter- relationship between all that. I leave that on the table for the Minister to consider. That would be helpful; I do not know whether the noble Lord, Lord Sharkey, agrees.

Before we move on, the main point I want to make on this direct tasking is that there clearly is an issue where the National Crime Agency wants to be able to direct the Serious Fraud Office to do certain things that the NCA is worried the SFO is not going to do. Is that a fair interpretation? In other words, the Home Office wants to strengthen the response to financial and economic crime, it is worried about whether the Serious Fraud Office will take the same priorities as the National Crime Agency, and this is a way of saying, “If you don’t, we’ll direct task you to do it”.

[Lord Gascoigne (Con)]

I thank the noble Lord for those two points. I will certainly write to both noble Lords on the devolved nations and any other outstanding issues. I completely appreciate the points made.

Forgive me if I have not been clear. Given that this has not been used in other circumstances, my understanding is that this has always been the intent for some time. It is not in response to anything in particular but an important part of a broader strategy to tackle crime. I am assured, having spoken to officials in those bodies, that there is a very good working relationship at senior level. My understanding is that this is just a backstop, just in case, should that relationship not work. If I am not correct on that I will write to both noble Lords, but I will also reiterate the point if it is correct.

To conclude, this measure represents a positive step forward, in our view. It is part of a larger effort and a wider package of measures to strengthen our collective ability to identify and investigate the most harmful and complex criminal cases, and prosecute those responsible.