Crime and Courts Bill [HL]

Lord Condon Excerpts

Tuesday 27th November 2012 Lords Chamber

[Lord Condon]

My Lords, I declare my registered interests in policing. I find myself supporting the spirit of Amendment 1 and Amendment 3, the first in the name of the noble Baroness, Lady Smith, and the latter in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks. If the Government resist all these amendments and the spirit behind them, they will miss an important opportunity to improve transparency, accountability, confidence and governance in the new NCA.

At Second Reading and in Committee, I raised the spectre of a disjointed patchwork of policing through the new arrangements. My fear was of a parochial, local network of policing run by the newly elected police and crime commissioners, and an all-powerful National Crime Agency with no supervisory or governance board, with very little in between and no lines connecting them. The Government will miss a vital opportunity here if they hide behind the notion that the NCA deals with important, national issues which only a relationship between the Home Secretary of the day and the director-general can embrace and satisfy. Whatever emerges through a supervisory or advisory board, or some consultative mechanism, we need to have confidence that it will embrace at least one or more of the new police and crime commissioners, representatives of chief constables and perhaps those elsewhere in policing, and the many other stakeholders who are legitimately concerned about how this new policing architecture will work.

I understand that perhaps Amendment 1 is a step too far because there are matters of national importance that maybe only the Secretary of State in the Home Office can have the chairmanship responsibility for. Yet I hope that the Minister will be able to move some way towards reassuring us that the new arrangements, however they emerge, will improve confidence, transparency and accountability in this important new agency, which I wish the very best. I hope it will succeed.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, I thank the noble Lord, Lord Condon, for his speech and in particular for the goodwill that he demonstrated towards the success of the NCA.

I hope that I do not disappoint noble Lords when I say that I will resist these amendments, but I will address the issue in some detail and fullness. Some of the elements will come up in later debates, but I recognise the importance to noble Lords of this particular group of amendments none the less. They go to the heart of the Government’s arrangements for the NCA. The noble Baroness, Lady Smith, reiterated the position that she outlined in Committee, that the NCA should be led by a statutory board headed by a non-executive chair.

I will come to my noble friend Lady Hamwee’s amendment later, because she talked about a slightly different form of governance. I start by addressing the amendment tabled by the noble Baroness, Lady Smith, and whether it is somehow necessary for the National Crime Agency to have a statutory board. We can establish quite quickly that it is not. The NCA is being established as a Crown body without incorporation. A Crown body without incorporation does not have a separate legal identity from the Crown, so incorporation and a statutory board are not, strictly speaking, required. The functions of the agency are conferred directly on the agency itself, not on a board. This is a tried and tested model for a non-ministerial department and works well for other similar agencies with which noble Lords will be very familiar, such as the Crown Prosecution Service and the Serious Fraud Office.

Not only is no statutory board required, but to create one would be detrimental to the effective governance of the NCA. The noble Lord, Lord Harris, spoke vigorously about the fact that he felt a governance board would be very effective for the NCA. However, we have designed the agency so that the Home Secretary —the elected Government’s representative who is accountable, not to nobody as the noble Baroness, Lady Smith, implied, but to Parliament—has clear strategic oversight, while the director-general, who would be an experienced crime fighter, provides the day-to-day operational leadership. Furthermore, we have designed the agency’s governance arrangements so that the director-general will be directly accountable to the Home Secretary, not beholden to a committee. In this way we will ensure that the accountability structures are clear, practical and non-bureaucratic.

The amendments of the noble Baroness seek to mirror the arrangements for the Serious Organised Crime Agency, which was blessed with the traditional quango-type structure, led by a non-executive chair and a board. However, as my noble friend Lord Henley pointed out in Committee, SOCA’s arrangements have risked more bureaucracy rather than more accountability. The current SOCA chair and board are excellent individuals who have done a good job, but to be led by a committee was never the right structure for a law enforcement agency. Police forces are led by chief constables directly accountable to a single individual—the elected police and crime commissioner. The National Crime Agency should similarly have an operational director-general at its head who is directly accountable to the Home Secretary.

The noble Baroness argues that the statutory board will help preserve the director-general’s operational independence. She is perhaps concerned that his operational independence might be dented by too frequent contact with the Home Secretary without the protection of a committee. My noble friend used the word “cosy”. I cannot reconcile that idea with reality. The director-general will be an experienced crime fighter and a strong leader in his or her own right, not a shrinking violet, and that is certainly not how anybody who knows Keith Bristow, nor any noble Lord with direct experience of governance in policing, would describe him.

To put it another way, the relationship between the director-general and the Home Secretary, just like that between chief constables and the police and crime commissioners, will be a robust, professional partnership where both parties have their own roles to play which are set out clearly in the legislation. In particular, Clause 4 establishes the operational decisions test which rests with the director-general. If the legislation is not enough protection, I do not see what a non-executive chair or committee is going to add, other than a further layer of bureaucracy through which the director-general’s discussions with the Home Secretary will have to filter.

Of course, we can all absolutely agree on the importance of good governance for the NCA. While the director-general is rightly ultimately charged with leading the organisation, in doing so he will obviously need and want the advice and challenge of other experienced voices from inside and outside the NCA. Here I can perhaps help noble Lords because the NCA, like other non-ministerial departments without statutory boards, will still need to have a management board to advise the director-general on the strategic direction of the organisation, ensure that there are proper audit and risk arrangements in place and so forth.

The outline framework document has been referred to and we will be discussing it later. I hope noble Lords have been able to see it, and I will try to make sure that copies are available in the Printed Paper Office, if they are not there already. It provides for the board to be established under the chairmanship of the director-general, which my noble friend Lady Hamwee referred to, and it will include non-executive members. The role of those non-executive members, just like non-executive board members anywhere else in government—or outside government, for that matter—will be to advise and challenge the executive on the basis of their outside experience and skills in order to help the organisation do better.

I contrast that picture of non-executive membership with the non-executive posts provided for in Amendment 2. Under the noble Baroness’s proposed model, the NCA board would comprise persons representing the views of police and crime commissioners and chief officers in the different parts of the United Kingdom. The noble Baroness argued that this is needed to ensure that the NCA is sufficiently alive to the interests of those groups. Clearly PCCs and the chiefs of the United Kingdom’s various police forces will be key partners for the NCA. That is why the Bill provides that they will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency through consultation on the NCA’s strategic priorities and the agency’s annual plan. The director-general will also, of course, want to engage personally with chief officers and PCCs across England, Wales, Scotland and Northern Ireland to ensure that the NCA is doing everything it can to help protect their communities from serious and organised crime. He will do that, and is already doing that, through building solid relationships with individual chiefs and PCCs, and through the Association of Chief Police Officers and the new Association of Police and Crime Commissioners. These practical working relationships will ensure that the NCA is alive to the complex needs of communities and of its partners that serve those communities.

Four individuals attending the NCA board could hardly do the same. In seating these individual representatives at the table of the NCA board, the noble Baroness has turned it from a board—in other words, a body which one might expect to focus on using its diverse experience to get the best possible performance from the NCA—into something more like a stakeholder forum for the NCA’s partners to air their views. I believe that the Government’s model is a better one and gives better direct access to the director-general.

My noble friend’s amendment would also create a statutory board for the National Crime Agency, in this case chaired by the Home Secretary with a further ministerial member and a number of non-executive members in addition to the NCA’s executive leadership. This is a similar structure to that adopted by ministerial departments, albeit that has never been set out in statute and nor, as far as I am aware, has anyone called for it to be so set out. I am not persuaded of the case for such a board. I appreciate that my noble friend’s amendment tries to leave the director-general in control of the agency and directly accountable to the Home Secretary by underlining that the board will function subject to the provisions set out in Part 1, but let us be pragmatic here. It will hardly help establish the director-general’s clear operational leadership of the agency if its key leadership body is chaired by the Secretary of State. Furthermore, many corporate management decisions that properly fall to a board—for example, on the people strategy—would not be for the Home Secretary, and she would not see it as her role to chair those sorts of deliberations, since to do so would cut across the director-general’s leadership and direction of the agency. So the director-general would still need to establish and chair an NCA management board to deal with those issues.

--- Later in debate ---

[Lord Blair of Boughton]

My Lords, I declare my registered interest in policing. Last week, during the debates on the Justice and Security Bill, a number of noble Lords expressed the sentiment that national security is the first duty of government. I agree with that point of view. I put my name to this amendment because I believe that Clause 2 directly affects national security and so, in my view, is more important than any other clause in this section of the Bill.

The Metropolitan Police currently has—and has had for many years—primacy for counterterrorist law enforcement in all parts of the United Kingdom, including Scotland and Wales, although not Northern Ireland. The roles of the commissioner, the Assistant Commissioner for Specialist Operations—who, by agreement, is the ex-officio chair of the ACPO Terrorism and Allied Matters Committee—and of the National Coordinator of Terrorist Investigations, who are all Metropolitan Police officers, are understood and accepted by chief officers of police throughout the land, and by our colleagues in the security services and the Special Forces.

A whole regime of counterterrorist units outside London and national procedures has been developed, including the ceding to the Metropolitan Police of ultimate responsibility for CT executive operations. This is an effective and tried and trusted regime that allows for the transmission of intelligence and decisions about surveillance, interception and arrests to flow from the very local to the global, and vice versa, without crossing organisational boundaries—the curse of arrangements in so many countries, including the United States.

However, along with the noble Baroness, that is not the case that I make today. The decision as to arrangements for counterterrorist policing, including whether they should be passed from the Met to the NCA, is not a matter for the police or even for ex-commissioners of the police, but for Parliament. However, I suggest it should not be done this way. I understand the super-affirmative procedure laid out in Schedule 18, and it has many checks and balances, but it is essentially passive. It does not require debate in depth. The kernel of my argument for deleting this clause is that nothing is more important than national security, and in my lifetime no change more significant than this in the policing arrangements to protect our nation has ever been contemplated. A change in the NCA’s responsibility may be right, but it may not be. Lives—lots of lives—may depend on this piece of legislation. Such a decision deserves primary legislation, to allow the suggestion to be scrutinised, debated and amended by both Houses of Parliament.

Moreover, I am suspicious of the motivation behind such a change even being contemplated. He has been mentioned already in your Lordships’ House today, but from the very moment he entered office in 2008, the Mayor of London, Boris Johnson, began to speak to me, as commissioner, and to others, about the anomaly of the police of London having responsibilities outside London; not only for counterterrorism but for investigations in UK overseas dependent territories and the protection of prominent persons, including the Royal Family, wherever that might be. He and his senior advisers wanted those duties removed. The reason for that was not economy, or the security of London, but so that he and his successors had the untrammelled ability to select and dismiss the Commissioner of the Metropolitan Police without reference to the Home Secretary, who currently recommends the person to be appointed to that post to Her Majesty the Queen. I do not know where this idea has come from. I do not know whether the current idea is in some sense about tidying up—a conviction on the part of the Government. However, if it has entered government thinking in order to satisfy a mayoral ambition, that would be wrong both in practice and in principle. I would be grateful to be assured by the Minister that such ambition has no place in this legislation.

As I said at the beginning, I am not here arguing the case for the status quo, nor for change, but merely because I know—having spoken to them—that senior police officers who have current responsibility for these matters believe that the maximum public scrutiny should occur of the reasons for and against such a change. They are owed no less. The people who do this have a very dangerous and responsible job. They believe with me that, “It ain’t broke, so it doesn’t need fixing”.

[Lord Condon]

My Lords, I support this amendment. However, I must say at the outset that I am not interested in turf wars between the Metropolitan Police and the new NCA; I am not interested in protecting the status quo or over-arguing that it should remain with the Metropolitan Police. But I am passionately engaged in the constitutional issues which have been set out by the noble Baroness, Lady Smith, in moving the amendment. This is a hugely important matter that deserves primary legislation rather than an affirmative order, however comprehensive that seeks to be. I had the role for seven years of worrying about terrorism nationally. I worked very closely with all the agencies involved here and abroad. History tells us that more than 80% of terrorist incidents in this country happen in London. The fight against terrorism is as much about hearts and minds as it is about laser-like operations to combat terrorism. That hearts and minds approach involves great co-operation with local communities; in the London context, that has involved working with the Islamic community, with the mosques, the schools and the integration of neighbourhood policing in that preventive role. In London, therefore, there is a very inter-connected prevention and detection response to terrorism which has been built up over many years and in response to terrorism which has emerged from all around the world.

As I say, I am not interested in a turf war or in arguing for the status quo. However, this is hugely important for this country. The Constitution Committee has isolated why this is so important and why primary legislation is more desirable than the super-affirmative process. I support the amendment passionately.

[Lord Dear]

My Lords, I, too, declare a registered interest from my experience in policing. I would add in this context that I know quite a lot about terrorism, having suffered two determined attempts on my life at the hands of terrorism, once in this country and once in India. We are talking about the National Crime Agency. I have already spoken in your Lordships’ House on 1 November, giving some examples of the gravity of the issues with which the NCA is likely to be confronted once it gets under way. Its role in the whole architecture of policing will be not only important but critical. One should reflect on the fact that it will be responsible for international dimensions, so far as they interface with and affect the United Kingdom, certainly England and Wales: national, cross-border, inter-force and cross-boundary dimensions of crime. That is what we are talking about: whether the NCA is a proper receptacle for this additional responsibility.

Having served in the Metropolitan Police for five years, I, too, recognise the first-class service on counterterrorism that it has given the population, not only of London but of the whole United Kingdom, going all the way back over 100 years to the special Irish branch, which re-named itself the Special Branch; to the 1970s, when the IRA and the Provisional IRA began bombing in London and elsewhere; to the bomb squad, as it was then called; and to the counterterrorist commands that we see today. If there is any logic at all in counterterrorism, it has to be handled nationally—by definition, the National Crime Agency is national.

At some stage, an argument could well be advanced to move counterterrorism into the ambit and responsibility of the newly formed National Crime Agency, but clearly not yet; the National Crime Agency is not yet born. In its gestation period and infancy, I suspect that it would not be able to pick up and run with the complexities and importance of counterterrorism. But there might come a time in the future when that case can be made—I do not say that it necessarily will be made, but it might be. It seems both sensible and proper that we should be able to legislate to move counterterrorism from the Metropolitan Police to the National Crime Agency if that case is proved.

Like the noble Lord, Lord Condon, I, too, hope that we are not going to get into turf wars over this. The Metropolitan Police has proved itself, as I have already said, and it is right to put on record the high degree of skill that it has demonstrated over many years and indeed the enormous personal bravery of some of its officers on occasions, to whom we owe a great debt. However, I do not think that we should stand in the way of a properly proven logical rearrangement.

The nub of the issue is set out in the Joint Committee on Human Rights paper published on 20 November, which has already been alluded to. I take no position on this, other than to say that on balance—I suppose that I am taking a position; it is a very fine balance—I am prepared to go against the amendment and with the Government. However, I would need reassurance that were such a move to take place—not now but in the months, perhaps even years, to come—there will be a proper consideration of the reasons for such a move, so that one can be satisfied that the decision is being taken in the open, so far as the diktats of confidentiality and so on are concerned. If one follows that line of reasoning, there can be no objection to the clause as it stands.

I do not want to get into a turf war; that would be totally improper. Recognising the severity and the importance of the issues concerned, I simply make the point that a logical rearrangement in the future, if it is so proved, would be the way to go.