Ibrahim Magag: Disappearance

Lord Harris of Haringey Excerpts

Tuesday 8th January 2013 Lords Chamber

[Lord Taylor of Holbeach]

The noble Lord moves the argument on considerably. We will have an opportunity to discuss all sorts of elements. Intercept is not communications data, but such data have been discussed in pre-legislative scrutiny by both Houses. Therefore, these matters are under consideration.

Lord Harris of Haringey: When introducing the legislation that brought about TPIMs, the noble Lord’s predecessor assured the House that not only would extra surveillance resources be made available to the police and the Security Service but also that extra technological measures would be taken to ensure that individuals did not abscond. Perhaps the noble Lord will tell us whether the technological measures were the cause of failure in this instance and, if so, whether the technology that has been purchased has given value for money.

[Lord Taylor of Holbeach]

I am not in a position to give an answer to that. I am sure that the noble Lord will understand why.

Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Tuesday 27th November 2012 Lords Chamber

[Lord Blair of Boughton]

My Lords, I shall support this amendment simply by reflecting on my own experience. I will be very brief. I served at a senior level, although not as commissioner, in the Metropolitan Police when there was no police authority. I also served when there was a police authority. With respect to the noble Lords who served on that police authority, some of whom are present, I did not always agree with them. However, in terms of strategic principle, to have a senior police officer—as the director-general will be—running a large, complex and controversial law enforcement organisation with no statutory advice from any outside body around him or her is dangerous in the modern age. As the noble Baroness has just said, it is not just dangerous for the director-general; it is dangerous for the Secretary of State.

Let us assume for a moment that the investigation which came to be known as “cash for honours” had occurred at a time when no police authority existed in London. As commissioner, while my service was investigating what had or had not happened inside No. 10 Downing Street—presided over by a Labour Prime Minister—I would have been reporting direct to a Labour Home Secretary, rather than to a more variegated body. The difficulties, temptations, pressures and politics of what that would, or could, have been like are pretty obvious and unpleasant to contemplate. What this amendment is suggesting is not a police authority. I am not at all precious about the detail of some of the appointments laid out in the different clauses; I just believe there is no need to mirror the PCC arrangement so recently announced in this kind of central body.

This amendment is less vital to me than Amendment 14, about counterterrorism functions, to which we will come shortly, but my experience suggests that a board of this sort would be an advantageous addition to the NCA, the director-general and the Secretary of State, and I commend the amendment to the House.

[Lord Harris of Haringey]

My Lords, I, too, support this amendment. Having been a member of the police authority to which the noble Lord, Lord Blair of Boughton, reported, I confirm that we did not always agree with the views that he put to us or the proposals that he made—but that was a healthy tension; there was a healthy process of governance. When I was chair of that authority, on three separate occasions a proposal was brought to the police authority by the noble Lord, Lord Blair, in his previous incarnation, which was rejected each time, and in the end a modified proposal emerged, which I think was better for London.

That was a relationship of dialogue and openness. What the Government are proposing in the Bill will be very different. There will simply be the director-general, who will report to the Home Secretary, and the Home Secretary will have the powers to set the strategic direction, the general way in which the organisation operates and, of course, have the power to hire and fire. There will be no scrutiny of that, no external validation and no one else sitting round the table—it will be a one-to-one relationship.

One of the fundamental principles of British policing, ever since Sir Robert Peel started the whole process, is that there should not be direct political control of the police service. What we have here is the creation of a potentially incredibly powerful national policing body that will report to a single politician, with no other people sitting around the table when directions and advice are given.

The advantages of my noble friend’s amendment are that it puts a layer between the Home Secretary and the director-general—a governance board—but also that the governance board has several people and interests represented. That does not absolutely prevent political interference because I am sure that the Home Secretary may on occasion phone the director-general and there will be direct dialogue, but it provides a governance structure that is a safeguard against the distortion of operational priorities for political purposes.

The noble Lord, Lord Blair, referred to the difficulties that he might have faced in respect of cash for honours. At the time of that investigation, there was a Labour chair of the police authority—it was not me; that was after my time, although I was still on the police authority—and I know that that Labour chair came under considerable political pressure from Labour Party colleagues about that investigation. Quite properly, he did not intervene on those matters; indeed, he defended the operational decisions of the police. But even had he been minded not to resist that political pressure, he had around him 22 other members of the police authority calling him to account and saying, “Actually, this must be allowed to run its course, right or wrong”. Here, there will just be the Home Secretary relating to the director-general in private, with no one else around the table able to say, “Is this appropriate or not?”.

It is a profoundly dangerous structure. I am sure it is being done for the best of all possible reasons and we will be told how efficient it is. But I have yet to hear anyone say that the SOCA board has been a waste of time, that it has not added value or that it has not improved the governance of the Serious Organised Crime Agency—none of those points has been put.

Instead, we are offered this direct-line relationship between the director-general and the Home Secretary. It is extremely dangerous. Even if the current Home Secretary and her successors have no intention of ever crossing that line and trying to intervene in the operational decision-making of the director-general, they will be open to the allegation that that is precisely what they have done. That weakens the position both of the director-general and of Ministers. For that reason I believe that the Bill’s proposals are profoundly dangerous, and I support my noble friend’s amendments.

[Baroness Hamwee]

My Lords, my noble friend Lord Marks of Henley-on-Thames and I have Amendment 3 in this group. I am not sure whether the noble Lord, Lord Blair, was looking at me—I believe he was—when he referred to some people in this Chamber having been members of a police authority at the relevant time. I was not a member, but I questioned him in public, carrying out a role that is not unrelated to the subject of this amendment, which is getting information into the public domain—a hugely important role that someone needs to carry out. I am not sure who that someone might be in this structure.

I am aware that the Government have designed an arrangement under which the director-general is accountable to the Secretary of State, who is in turn accountable to Parliament. The Minister, the noble Lord, Lord Henley, in response to my amendment at the previous stage, told me that a supervisory board, which was how I described it, would muddy the waters. I had taken that proposal for a supervisory board from the arrangements that the Department for Communities and Local Government had in place, as I was easily able to access its arrangements. I said then that I was not seeking to change the architecture of the Bill.

I do not propose a governing board, and I do not go as far as the noble Baroness. However, because of the concern not to change the architecture, I have amended my own amendment to include the words, “Subject to Part 1”. That deals with the respective roles of the Secretary of State and the director-general. I tabled my amendment before seeing the outline framework document, which we are told will cover internal governance. Reading Hansard following Committee, I thought that perhaps “supervision” was regarded at any rate as an indelicate term for the relationship, although I felt at the time that the Government were a little oversensitive to my amendment.

However, I will be even blunter and say that as I read the paragraph in the outline framework document, the word that comes to mind is “cosy”. It might be much less cosy if we knew more from this document about what the governance arrangements would consist of. We are to have a management board, which comes under the heading of “Internal Governance”—it is almost the whole of that paragraph. I do not regard management as being the same as governance. Neither do I regard governance as being the same as administration, although that is the umbrella word used for governance in Schedule 2. It is the term used to introduce the concept of governance.

I have used terms including “strategic and corporate leadership” and “advice” in my amendment. If the management board that we are to expect is not to provide strategic and corporate leadership and advice, what is it going to do? Perhaps the Minister can help us today by fleshing this out a little more.

The framework does not tell us what it will do, and that is clearly important. It says only that there will be a description of the role of the board. Although, as I said, my amendment does not go as far as Amendment 1, the points made hitherto raised extremely important issues about governance in the public and political sector. I ask one further question. I do not want to pre-empt the noble Lord, Lord Condon, because it was his question at the previous stage, but will the board include stakeholders? We know that there are to be some ex-officio members and non-executive members. Again, the House would be interested to know who it is anticipated will fulfil those roles.

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[Lord Lloyd of Berwick]

My Lords, my only excuse for intervening is that I was the author of the report on which the Terrorism Act 2000 was based. I was also the first Interception Commissioner and therefore had direct experience of the counterterrorism activities of both the Security Service and the Metropolitan Police.

I have not always agreed with everything that the noble Lord, Lord Blair, has said, but on this occasion I find myself in substantial agreement with him and also with what the noble Lord, Lord Condon, said on the constitutional issues involved. It may be that at some stage it would make very good sense for counter- terrorism functions to be transferred to the new agency, but not now and certainly not by order. I am not as comfortable on these matters as the noble Lord, Lord Dear. If the matter were put to a vote, I would vote with the amendment.

[Lord Harris of Haringey]

My Lords, the noble Lord, Lord Blair, concluded his remarks by advising the Government with the old adage, “If it ain’t broke, don’t fix it”. Of course, that is not quite what the Government are talking about here. The Government’s approach on a number of other issues is, “If it ain’t broke, take it to pieces anyway and see what happens”. However, the problem is that this clause, which my noble friend’s amendment will delete, is saying that if the Government decide that they want to change this, it will go through by the super-affirmative procedure without the full, detailed scrutiny of all the issues involved. That is why the Constitution Committee has highlighted the constitutional issue, and why so many noble Lords are concerned about it. If the Government were to propose this, it would be a very major issue with all sorts of ramifications. It is not something that would lend itself to a one-hour debate at 7.30 pm in your Lordships’ House.

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[Lord Taylor of Holbeach]

Absolutely: I assure the noble and learned Lord that that is exactly the process that we are talking about. It may help noble Lords in this regard if I explain how government policy would be determined by a consultative process before any decision was taken. I thank the noble and learned Lord, Lord Lloyd of Berwick, for making that point.

Clause 2 provides for an order-making power so that the Secretary of State can modify the NCA in relation to counterterrorism functions, including by conferring or removing functions. The order-making power is limited to changing the functions of the National Crime Agency. It does not provide the power to change the functions of other organisations unrelated to the National Crime Agency or to close down organisations. Given the importance of such a decision in the future, before an order can be made the Home Secretary will be required to consult any bodies that she considers will be affected by the order. The order itself will also be subject to the super-affirmative procedure, which is an extended programme of scrutiny by both Houses and indeed the committees of the House.

As a number of noble Lords have pointed out, the Joint Committee on Human Rights yesterday published its report on the Bill and, among other things, raised the question of the mechanism for modifying the functions of the agency. Indeed the report, not unlike the debate today, called for the removal of Clause 2. I can appreciate the concerns of the committee in relation to human rights—these will indeed be important matters for the Government to consider. However, the statutory mechanism for modifying the functions does not diminish the obligations on the Government to give consideration to, and provide assurance on, a whole host of possible implications of a potential future decision. Human rights are only one aspect of a number of consequential effects of any change in policy in this area.

In addition to the Government’s considerations on any future changes, it is important that Parliament can give due time and consideration to any future decisions to modify the agency’s counterterrorism functions. The super-affirmative procedure set out in Schedule 18 will provide Parliament with the appropriate level of scrutiny should an order be made in the future. The House has been reminded of the view of the Constitution Committee on this matter. I will take the opportunity to remind the House of the conclusions of the Delegated Powers and Regulatory Reform Committee. In its report on the Bill it made no recommendation in respect of this power but did comment:

“The idea of adding to a statutory body’s functions by subordinate legislation subject to a Parliamentary procedure is well established”.

There is nothing new in this process that offends the traditions of Parliament.

[Lord Harris of Haringey]

Is there another example of where powers have been added to an existing body that completely distort the functions of that body and increase its activities by 50% or 100%? When the noble Lord answers that point perhaps he can also tell the House why the Government are so desperate to be able to do this by an order-making power rather than by coming back to the House with perhaps a small piece of legislation that has already had the very full consideration that he describes and which could be debated in the normal way.

[Lord Taylor of Holbeach]

A number of noble Lords will remember that in a previous role in this Government I took through the House the Public Bodies Bill where issues such as this occurred. I should emphasise that any bodies affected by any change will be consulted and the whole matter will be a matter of public debate. It is not going to be sprung as a surprise on an unwitting Parliament.

The noble Baroness, Lady Smith, mentioned Northern Ireland and I was grateful for the sensitivity with which she raised this issue. It is complex and I think noble Lords will appreciate that. We will have an opportunity on the ninth group of amendments to discuss it more fully. The order-making power recognises the important and different arrangements in respect of counterterrorism policing in Northern Ireland and the clause is drafted to respect those arrangements. Should an order be made to confer counterterrorism functions on the National Crime Agency in the future then the agency will require the prior agreement of the Chief Constable of the Police Service of Northern Ireland before it can undertake activities in Northern Ireland in relation to the prevention and detection of terrorism. This arrangement reflects and preserves how the operational relationships work at the moment in relation to counterterrorism policing in Northern Ireland.

It is critical that in creating the National Crime Agency, we do not limit its ability to respond to the changing threat picture of the future. For this reason, the statutory remit of the agency is broad, yet it provides a clear mandate for the agency. However, the clear remit conferred on the agency by Clause 1 and the flexibility of these arrangements go only so far and would not provide sufficient scope for the agency to take on a counterterrorism role in future. This order-making power affords the necessary flexibility to extend the agency’s functions to encompass counter- terrorism.

[Lord Harris of Haringey]

I am grateful to the noble Lord for giving way a second time. Would the order-making power enable the Government to change the Police Act 1996 which confers counterterrorism responsibilities on the Metropolitan Police?

[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.

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[Lord Rosser]

My Lords, the purpose of this group of amendments is to place a duty on the director-general of the National Crime Agency to notify police and crime commissioners before making a request to a chief constable to perform a task under Clause 5. Likewise, a similar duty is placed on a chief constable to notify the police and crime commissioner before making a request of the director-general of the National Crime Agency to perform a task. The amendments also place a duty on the director-general to “make every reasonable effort” to notify the appropriate police and crime commissioner before issuing a direction to the chief constable for that police and crime commissioner’s area.

We had a debate on this issue in Committee when an amendment was moved referring to the director-general consulting the police and crime commissioner responsible for the policing of an area. The amendments today refer to notifying the police and crime commissioner. Without wanting to repeat everything that was said in Committee, one has to go over the argument again to some extent. A police and crime commissioner for a police area has a statutory duty to secure the maintenance of the police force for their area, to ensure that the police force is efficient and effective and to hold the chief constable to account for a wide range of duties and responsibilities, including the effectiveness and efficiency of the chief constable’s arrangements for co-operating with other persons in the exercise of the chief constable’s function. The police and crime commissioner will also be responsible for issuing a police and crime plan, which is required by law to set out a number of matters including the policing of the police area which the chief officer of police is to provide. However, it currently appears to be possible, under the terms of the Bill, for the director-general of the National Crime Agency to come to an agreement with the chief officer of a UK police force for that chief officer to perform a task of unspecified magnitude, scope or significance in relation to resources or impact, on behalf of the director-general or, alternatively, for the director-general of the National Crime Agency to perform a task of unspecified magnitude, scope or significance on behalf of the chief officer of a UK police force without any apparent duty in either case even to tell the elected police and crime commissioner, despite the significant statutory responsibilities the police and crime commissioner has in relation to their police force.

If the director-general of the National Crime Agency was requesting the chief officer of a UK police force to carry out a task which could well have an impact on the efficiency and effectiveness of the police force in question or on their ability to deliver or adhere to the police and crime plan, one would have thought that it was a matter on which the director-general of the National Crime Agency should be required at least to notify the police and crime commissioner. Likewise, if the chief officer of a UK police force found it necessary to request the director-general of the National Crime Agency to perform a task on behalf of or in support of that police force, there should be a duty on the chief officer first to notify—that is what the amendment now calls for—the police and crime commissioner who, after all, might want to satisfy himself or herself that this was not a task that their own police force should be competent and capable of performing and that the request to the director-general was not, in reality, seeking to cover up a weakness in the performance of their police force.

When we debated this issue in Committee, the Government’s response was that we were putting forward amendments that would put at risk the operational independence of chief constables. We said at the time that that seemed a bit rich. Bearing in mind that our amendments state “has first notified”, it would be stretching it a bit if the Minister were to tell us again that we are putting at risk operational independence. Clearly, if directions are being issued to a chief constable by the director-general of the National Crime Agency they could well, under the terms of the Bill, be of a magnitude, size and scope that could call into question the ability of that chief constable to adhere to or deliver the plans and strategic objectives of the police and crime commissioner.

It was also said in Committee that if the director-general of the National Crime Agency had to consult the police and crime commissioner that would cause delay and it might be an emergency. We have sought to address that issue, unlikely though it would be to arise, by once again referring in the amendment to the director-general having to make “every reasonable effort” to notify the police and crime commissioner before issuing a direction to the chief constable for their particular area.

I hope that the Minister’s response will be more helpful than the one we received in Committee. In the wording of the Bill there are no parameters laid down which means that, on the key issue of the director-general of the NCA being able to come to either a voluntary arrangement with or, if he feels it necessary, give a direction to a chief constable, this could be of unlimited scope and have a very considerable impact on the ability of that chief constable to deliver the strategic objectives of the police and crime commissioner for the area. That there is no requirement at all for the director-general even first to notify the police and crime commissioner could, indeed, have an effect on the ability to deliver, for a period of time, effective policing in that area. That is the purpose of the amendments. I hope that the Minister will be able to give a more sympathetic response than the one we received in Committee. I beg to move.

[Lord Harris of Haringey]

My Lords, I have been trying to work out how this Bill was prepared and I can only assume that there was collective amnesia in the part of the Home Office that was preparing it about their other major piece of legislation, which created police and crime commissioners. The mentions of police and crime commissioners in this Bill are few and far between. Had it not been so vigorously resisted by the Minister in Committee, I would have assumed that it was a simple drafting error not to include that the police and crime commissioner should be informed or, better still, consulted—although today’s amendment possibly moves us away from that—about a possible direction or requirement for the use of resources in their area.

Has the Home Office really thought about the practical politics that will arise and the consequences that may flow from failing to put this very simple provision into the Bill? Put yourself into the position of someone who has been elected earlier this month to the position of police and crime commissioner. They sit there with all the majesty of their electoral mandate: many of them have had as much as 4% of the electorate in their areas voting for them, so they know that they have the people behind them. It is clear that they have a substantial, legislative obligation on behalf of the communities they represent, whether it is the 4% or all 100% of them, to hold the chief constable to account for the use of policing resources in that area. That is what the legislation that we spent so many happy hours debating a year or so back was all about. Yet here is a provision in the Bill which enables the director-general of the National Crime Agency to require the use, either by direction or agreement, of police forces in their area.

I can conceive of circumstances in which police and crime commissioners have been elected having said very clearly that their prime focus is going to be on local crime concerns in their particular patch and that they want “zero tolerance”—a number of them did in fact say in their manifestos and websites that they wanted zero tolerance of crime on the streets of their particular area. However, they are suddenly told—or they find out, perhaps because their chief constables tell them, they read it in the newspapers or hear some gossip—that a substantial proportion of the local resources that they thought were going to be devoted to keeping street crime and burglary down in the areas of their mandate is being diverted to some, no doubt very important, serious crime operation. You are likely to then get precisely the sort of row about operational policing that we have said we do not wish to see between police and crime commissioners and chief constables, because police and crime commissioners will suddenly discover that the resources that they thought were being devoted to dealing with crime in their patch are being diverted to another—no doubt very worthy and important—area.

The very simple, practical and political—with a small “p”—way of doing this is to have an obligation on the director-general to at least inform, if not consult, the police and crime commissioner. That might perhaps ensure that, because they hear it first from the National Crime Agency—the people who are making the request—they have an understanding of it. That is much more likely to be acceptable to a police and crime commissioner than their hearing about it from some other source. I wonder why the Home Office, having devoted so much energy, effort and even money into having police and crime commissioners elected, has then excluded them from this part of the Bill. Unless my noble friend’s amendment is passed, you are going to have a situation in which you almost encourage conflict and a reaction from police and crime commissioners saying, “I do not wish the see the resources of my police force area being diverted for those national or other purposes”. You will have created a conflict, because the police and crime commissioner does not have the right to be informed by the National Crime Agency of what is being done.

Maybe the Minister will tell us in a couple of minutes that his expectation is that the chief constable will explain it to the police and crime commissioner. It looks as though that may well be what is in the Minister’s brief. Of course there will be discussion and dialogue, but the common courtesy of the director-general of the National Crime Agency going to the police and crime commissioner to say, “I am about to make this request”, or, “I am asking your chief constable for this”, and, “These are the reasons”, will smooth the passage and make this work better. I cannot understand why, for the sake of a simple telephone call or e-mail, this has been omitted from the legislation. The reality is that it would not delay things, but would make them less liable to create conflict between the police and crime commissioner and the chief constable who has accepted the request from the National Crime Agency director-general, with the police and crime commissioner grandstanding about how he or she is fighting for the people of his or her area and about not having police services diverted to other functions because those services are there for the people of his or her community.

North Wales Abuse Allegations

Lord Harris of Haringey Excerpts

Tuesday 6th November 2012 Lords Chamber

[Lord Taylor of Holbeach]

I have tried to provide a proper balance between my regard for the way in which the original report was undertaken by Sir Ronald Waterhouse and what we are seeking to achieve today. We would be wrong to ignore the terms under which that inquiry was held. It has much to contribute to discovering what went on in the light of the allegations being made today. We would be mistaken if we chose to preserve that inquiry in aspic and say that it did not have lessons to teach us about how to investigate these matters today.

[Lord Harris of Haringey]

My Lords, I am sure that we all welcome the fact that there is to be a new police inquiry into these matters, but I would be grateful for the Minister’s explanation of the thinking behind this being led by Keith Bristow, who is heading up the new National Crime Agency. I have enormous faith in Keith Bristow himself. However, given that the Serious Organised Crime Agency and the yet-to-be-created National Crime Agency are going through a period of enormous flux and confusion while this happens, and the job of the chief executive of an agency that is being set up is usually pretty highly committed to setting up that agency, how will it be possible for him to lead the sort of inquiry that all noble Lords have said they want—very thorough, potentially extremely lengthy and potentially extremely involved? In practice, where will the resources come from? I am not talking about the money but the individual officers. Who is going to co-ordinate that? How is that going to be practically done when the person you are asking to lead the inquiry is supposed to have a more than full-time job setting up a new government agency?

[Lord Taylor of Holbeach]

I remind the noble Lord that the Statement made it quite clear that it was the chief constable of North Wales Police, Mark Polin, who actually requested Keith Bristow to head up this investigation, and to do so using the resources that are available to him through SOCA and other assets that are available for serious investigations. Indeed, we will face a new world with the National Crime Agency, but that still has to come before your Lordships’ House and I would not presume on that. This is a recognition that the inquiry itself may well cross police boundaries; it may well be a matter that is quite properly addressed by an agency set up to deal with serious organised crime.

Police and Crime Commissioners

Lord Harris of Haringey Excerpts

Monday 5th November 2012 Lords Chamber

[Lord Taylor of Holbeach]

No.

[Lord Harris of Haringey]

My Lords, this is a very brave experiment in democracy. When the Bill was going through this House, Ministers told us that we should not criticise the cost of these changes in governance because you could not put a price on democracy. Surely, the Minister has done just that. He said that the extra £30 million for ensuring that every elector knows who the candidates are and what they stand for simply cannot be afforded. Can he tell us how much the other changes to governance with regard to police forces have cost and why he thinks that the extra £30 million is not a proper investment in effective democracy?

[Lord Taylor of Holbeach]

I thank the noble Lord. Of course, £30 million is a significant sum. This election has given us an opportunity to show that it is possible to communicate with electors in different ways. I have given noble Lords the figures: 1 million hits on the website is not an insignificant number and 100,000 requests for printed forms is not a modest number. I believe that the Government have done the right thing in this way. I hope that all noble Lords will see this as an opportunity to bring democracy into police governance in a way that has not existed before and that they will support their favoured candidates for these elections.

Chilcot Committee: Intercept Evidence

Lord Harris of Haringey Excerpts

Tuesday 24th July 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, the supposition seems to be that a large number of cases do not proceed to court because intercept evidence is not admissible. Could the Minister give us the Government’s estimate of how many such cases there are that would have proceeded to court had this evidence been available?

[Lord Henley]

My Lords, I cannot give the noble Lord that, but I remind him of the remarks made by his noble friend Lord West about the number of cases that possibly would never have been pursued at all because of lack of intelligence. He must differentiate between intelligence and evidence. That is what we are trying to do—to make sure we still have the intelligence and do not lose it as a result of making use of it as evidence.

Police and Crime Panels (Modification of Functions) Regulations 2012

Lord Harris of Haringey Excerpts

Thursday 12th July 2012 Grand Committee

[Lord Henley]

My Lords, a number of questions have been put to me. First, I shall deal with those asked by my noble friend Lord Shipley. I can assure him that, yes, the Secretary of State will take note of views from other local authorities and will want to take account of political and geographical differences. That is the point behind what we are trying to set up in these authorities. The noble Lord will know as well as I do how police areas vary very much from authority to authority.

My part of the world, Cumbria, has a county council and six regional councils. Thames Valley Police has something rather complicated with, I think, 18 authorities, which are all single tier. I cannot remember whether I am right on that. However, it is very different from the traditional county district. In areas such as the noble Lord’s in the north-east, there are other set-ups. Obviously, we will want to take account of political and geographical differences. My noble friend’s second question was about what was meant by the words “must agree”. As regards the second part, obviously it is only with the agreement of all the local authorities, as he said.

The noble Lord, Lord Rosser, asked whether the LGA had any concerns. I can assure him that, as always, it has been closely involved in the development of the policy and regulations, and is working with us very much on the transition programme. As regards any monitoring of the effectiveness of the panels, I do not believe that that is a role for central government. I believe that local authorities will be key to ensuring the success of panels. If those panels turn out to be toothless, or whatever, it will be for local authorities to challenge that. I think that the noble Lord and others will be the first to raise their concerns should that be the case.

[Lord Harris of Haringey]

My Lords, perhaps the Minister can clarify his answer to the noble Lord, Lord Shipley, about political balance. Is he talking about the political balance of the entire police force area or of the defaulting authority? As I understand the construction of the police and crime panels, there is one representative from each authority and the purpose of this order is to deal with a situation in which one local authority has failed to put forward a suitable nomination. Is the intention under those circumstances that the Secretary of State will appoint someone to achieve some form of political balance across the whole area or simply to reflect whatever is regarded as the political majority within that particular local authority area? They are very different things.

[Lord Henley]

My Lords, we are trying to achieve some sort of balance across the whole area of panels covering a police force. I can think of some areas where every local authority is Labour or every local authority is Conservative. That does not mean that one would want every member of the panel to be Labour or Conservative—to take those two extremes—as obviously a vast number of voters would not be represented. We hope that there will be negotiations between local authorities, even if—dare I say?—some Tory authorities want to push forward a Labour candidate for the panel to make sure that overall, throughout the entire area, there is a proper balance that represents the views of the electors of that area. That might be despite the authorities being red in one case or blue in another. Does the noble Lord follow what I am getting at? We are trying to achieve genuine cross-party representation with a balance that represents the constabulary in a proper manner.

[Lord Harris of Haringey]

I am grateful to the noble Lord for that clarification. I am not sure it completely helps me. In a two-tier area, with which he is familiar, you will have a county council that will be elected on a specific date. You will then have district councils either elected in thirds or possibly on specific dates but not the same date as the county council. Are we talking about a political balance that relates to the county or to the districts? They will not necessarily be the same thing—they might be by chance, but not necessarily.

The Local Government Association spent many happy years devising a system that is supposed to balance elections held at different times and the different status of counties, districts, unitary authorities and so on. That sort of formula might be the approach that is taken. But I had understood that this legislation did not necessarily prescribe for political balance but simply for area balance.

[Lord Henley]

I do not want to be overprescriptive on these matters, particularly as every authority varies quite dramatically. I will use my own county, Cumbria, as an example because I happen to know it well. Cumbria County Council coincides with the police authority and so it is quite an easy one to do. There is a county council that has elections every four years. There are six district councils, one or possibly two of which have an election every four years while the other four have elections in the three years when there are not county elections. So everyone is electing at different times in different ways. All we are trying to do is ensure that local authorities act together to try to produce something that is reasonably practical. Possibly the model that the noble Lord is suggesting is not a bad one. He was taking it from the Local Government Association. We are not demanding anything absolutely precise; we are just trying to make sure that, as far as is reasonably practical, all views can be taken into account.

Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Monday 25th June 2012 Lords Chamber

[Baroness Smith of Basildon]

My Lords, this is mainly a probing amendment although not entirely given the complexity and variety of some of the issues involved and the fact that some of the functions of the National Policing Improvement Agency are being transferred before the Bill completes its passage. This short amendment covers a major issue and through it I seek to understand why the Government are proposing this course of action, what benefits arise from abolishing the National Policing Improvement Agency and dividing its functions up between various different agencies and organisations, and what problems need to be addressed in so doing. Even though a number of the functions have already been transferred in that some have gone to SOCA and will go to the NCA and others will go to the Home Office and to the new IT company, the Government need to provide their justification for believing that this is the best way forward. I still feel slightly puzzled by some of the decisions that have been taken around the National Policing Improvement Agency. They show a tendency on the part of the Government to shoot first and ask questions later. That has become a bit of a theme with the Government. We saw it with the health Bill, where actions were taken before the legislation had gone through Parliament, and we are seeing the same thing with this Bill.

The functions of the NPIA are crucial. When reading the history of these proposals, I was somewhat surprised to learn that so little detail had been made available when decisions were being taken. That was the case almost through to the very end of decisions being taken. I have still been unable to get absolute clarity on what is happening to the various functions of the National Police Improvement Agency, so I struggle to find out why decisions are taken when there is so little detail, and so little follow-up is available. On the functions of the NPIA, the organisation itself commented that it was established in part in response to a perception that,

“existing arrangements for delivering support to police forces and implementing national initiatives—in response to demands from disparate bodies—were inefficient, often mutually contradictory and inconsistent”.

Therefore a number of objectives were assigned to the NPIA:

“The identification, development and promulgation of good practice in policing; the provision to listed police forces of expert advice about, and expert assistance in connection with, operational and other policing matters; the identification and assessment of: opportunities for and threats to police forces … and the making of recommendations to the Secretary of State in the light of its assessment … the international sharing of understanding of policing issues”—

which again, has been very important to the police—

“the provision of support to listed police forces in connection with information technology, the procurement of goods, other property and services, and training and other personnel matters”—

and it ends with a catch-all:

“the doing of all such other things as are incidental or conducive to the attainment of any of the objects described above”.

However, in practice, it has brought a large number of responsibilities together: information services, including the fingerprint identification database; Airwave; automatic number plate recognition; the police national computer; police information infrastructure; the police national network; and the National DNA Database. There are also operational policing services such as the Missing Persons Bureau, the Crime Operational Support Unit and the Central Witness Bureau, as well as issues on people and development services: exams and assessment; the National Senior Careers Advisory Service and the Police Advisory Board. That is just a sample of the whole range of absolutely crucial and important functions undertaken by this organisation. It seems to me that the National Police Improvement Agency has successfully managed critical national infrastructure services. It pioneered the police national database and delivered value-for-money savings through its procurement services.

Why, then, did it have to go? What was the rationale behind it, that the Government thought that this organisation had to be abolished and started to dismantle it before the legislation has even gone through Parliament? As I looked through comments that Ministers have made, the Government said in 2010 that they would axe the NPIA as part of “streamlining the national landscape”, and that,

“now is the right time to phase out the NPIA, reviewing its role and how this translates into a streamlined national landscape”.

I am not sure that I understand what that means, because it seems that we will have fewer police bodies undertaking these functions, and yet we are seeing the creation of new bodies. It would be helpful if the Minister could correct me if I am wrong on this, but it appears that the functions will be allocated across four different bodies, three of which are completely new agencies: the National Crime Agency, NewCo—the new ICT company—the police professional body, and the Home Office. That is what I mean by shoot first and ask questions later.

I looked at the Select Committee evidence. It noted in its conclusions published in September 2011 that,

“from the little that is already known about the likely distribution of the National Policing Improvement Agency’s functions, phasing it out is unlikely to lead to fewer bodies in the national policing landscape, as Ministers had hoped. In this sense, the landscape will not be more streamlined as a result of its closure. However, there remains a possibility that the landscape—and thus, more importantly, the police service itself—may operate more effectively once those functions have been redistributed.”—

and the committee said that it explores this later in the report.

Involving more organisations to carry out the functions than did so originally is not streamlining. Perhaps it was about saving money. Was there a plan to save money and is that why the organisation was to be axed? I looked at the Government’s case for saving money and I found that to be flawed also. There is no doubt that the National Police Improvement Agency could be streamlined and made more efficient and effective—and it undertook that role itself. The NPIA has delivered £1 billion in savings for the police through ICT and procurement transformation; it has itself changed in the past two years and found £100 million of savings; and it has reduced its head count by 36%. Given the cuts that have already taken place and the way that the spoils are being divvied up, it is hard to understand—and there has to be uncertainty and legitimate concern over—the effect that the proposal will have on the future delivery of services. It would be helpful if the noble Lord, when he responds, can give some information and say why he is, I assume, assured that there will be no dilution of service or of quality of service.

One area that gives cause for concern is that roughly half the NPIA’s employees are destined for the new police professional body, which will also take on a large number of the NPIA’s existing functions. What is the justification for axing the agency? There is the cost involved and the potential loss of expertise that that brings with it. About 250 jobs, including posts involved in cost-effectiveness, are due to go, and the National Senior Careers Advisory Service is, I understand, due to be scrapped. There will not be that same kind of advisory service for the police that exists within the NPIA. The service is moving to NewCo, the new police ICT company, whose budget will be cut by £60 million by 2014-15. That creates enormous uncertainty for some of the critical infrastructure services that are provided.

I am sure that the Minister is aware that that has eroded morale within the NPIA. There is a huge morale issue. The staff have done their best and have gone out of their way to make cuts and savings and to create efficiencies; but the organisation is being abolished and some of the staff still do not know where they are going to go. I worry about the specialist staff who are being lost. There is also the great danger that this preoccupation with reorganisation and structural change has taken the focus away from delivering further technical innovations that have helped to reduce costs in the first place.

There is also the issue of timing. I checked what Ministers have said previously about whether the transfer of services will be completed in time. The Home Secretary said that the transfer of functions of the NPIA will be complete by the end of 2012—although originally she said that it would take place by spring 2012. I double-checked and a number of times back in June, the Minister for Police and Criminal Justice said that he believed in consulting “very carefully” with professionals, and that,

“we will shortly be announcing the broad direction of travel”—

even back in June 2011 he was still talking just about the broad direction of travel—

“in terms of where the functions that lie within the NPIA should land, and then further detail will be worked upon and consulted after that”.

The Minister was pressed on what “shortly” meant, and he said, “Before the Recess”. This is still ongoing. I now struggle to know how the new arrangements will be set up by the end of this year. Perhaps the noble Lord can give us some assurances on that, and say whether he believes that the timescale is currently on track.

I looked at what has happened regarding the police professional body, which will perform many of the crucial functions to be taken from the NPIA. No chief executive, no chair and no shadow board have been appointed. The Government have not provided the detail that is needed on how the new body is to be structured. I have to say to the noble Lord that if the Government fail to meet their self-imposed deadline—they chose it; it was not imposed from on high—there could be huge consequences for the service in loss of expertise, delay to service benefits, and the potential for the transitional costs of moving from the NPIA to the NCA, the police professional body, the Home Office or other new companies to be much more expensive if there is any further delay.

I would like the Minister, during today’s debate, to answer a number of questions which arise out of the clause, which would abolish the organisation. First, we need a justification for, an understanding of, the Government’s reasons for axing the NPIA. I appreciate the argument about savings, but I think that has been knocked back, because the NPIA has made its own savings. I understand the Government’s intention to streamline the landscape, as they put it, but I have already shown that the landscape has not been streamlined; in fact, it has grown. There must be some other justification or explanation for why the Government want to take this action. Also, is there an estimate of the savings that will be made by scrapping the NPIA? I do not include the savings that have been made already by the NPIA, or those in the pipeline, but only those made by the changes proposed in the Bill.

One thing I have struggled with—which I mentioned at Second Reading, and to which I hope the Minister can respond—is where all the functions are going. I have been trying to work out a master plan to show which functions go to this or that organisation. It seems that there may be some functions which fall through the colander. Can the Minister provide some kind of master plan, or at least tell us which of the functions of the NPIA will be scrapped as a result of its abolition? It is quite a confusing picture for anyone trying to track where functions are going, and what are the cost implications.

A number of police forces have raised the issue of whether there will be any additional funding burdens on local police forces as a result of the transfer of NPIA functions, in particular those functions that will not go to the police professional body, such as training and careers advice. If those have to be taken on by local police forces, that will incur a cost at a time when their budgets are being cut by 20%, far greater than the Chief Inspector of Constabulary recommended. There is a lot of concern among police forces that they will be asked to make up for some of these cuts and changes, and will not be able to do so.

Another point is the loss of expertise. What actions are the Government taking to prevent the loss of expertise as a result of this restructuring? What efforts have been made? Which posts have not been identified? Which posts have been identified as needed to retain skills? In this kind of restructuring it is always the case that people in skilled posts, who have been there a long time, may seek the opportunity to take early retirement, particularly if their future is uncertain. What efforts have been made to retain them and their skills?

Within the new professional policing body—which is not properly set up yet, and there are still some concerns about that—I gather there will be, within that body, another body called the chief constable’s council. We need to understand how that is going to work. How will it improve on the delivery of the existing services currently provided by the NPIA? Will there be some loss of quality, or is it not expected to undertake the range of functions that the NPIA undertakes? All those are crucial functions.

The final question is, how will the Government ensure that the 2012 deadline is met? Will there be another deadline and then another, as we have seen before? I struggle to understand how that deadline can be met, given that so little work has been done already.

As I said at the start, this is a small amendment, but it opens up many questions. It is an enormous cause for concern if the Government have not worked out the plans for what is happening. I would like the noble Lord to reassure me on some of those questions, including one I have not yet mentioned: the premises and the estate, and what will be undertaken with those. It would be helpful to have some answers as we move forward with the discussion on this. I beg to move.

[Lord Harris of Haringey]

My Lords, my noble friend talked about the Government shooting first and asking questions later. It seems that the decision to abolish the NPIA stemmed from the Government’s desire to be seen to be abolishing quangos of various sorts, irrespective of considering whether the quango was being effective. I do not say that the National Policing Improvement Agency was working as well as it might have, but that does not mean that our first step should be to abolish it. That is the approach of, “If it ain’t broke, take it to pieces anyway”.

--- Later in debate ---

I rather regret the tone of the questions of the noble Lord, Lord Harris, about some of these matters. He was very careful in his use of words but seemed to imply that Home Office civil servants were not capable of delivering in this area. I think that tone is regrettable but we are still looking at the long-term options for some of the technology and other matters in terms of that transfer in this area. I shall give way to the noble Lord.

[Lord Harris of Haringey]

I am sorry at the reluctance that comes into the noble Lord’s voice every time I stand up. I am grateful to him for the courtesy with which he gives way on every occasion. If it was the view of Government that for the new IT company to function effectively it had to have in its leadership a chief executive who was paid at a commercial rate to attract the degree of expertise necessary, which might be of the order of £500,000 a year, to negotiate those contracts better than existing police services do and presumably better than the NPIA is thought to do at the moment, how will that not be the same argument that applies for these infrastructure contracts which will go to the Home Office? I am assuming that the Home Office will not be able to pay those sorts of sums to attract the technical expertise which is thought necessary for the other contracts.

[Lord Henley]

The two matters are not related; the Home Office has the appropriate expertise to deal with these matters. I was regretting the tone of voice that the noble Lord carefully used to make it clear that he did not think that there was the appropriate expertise in the Home Office to deal with these matters. We believe that that expertise does exist.

I was about to deal with the issue of the new information communications technology company which will be owned and controlled by police and crime commissioners. It will be led and funded by its customers, who will determine the services it provides. It will be responsive to local operational needs, offering forces a route to better value for money and innovation in the delivery of police information technology services. The company will ensure a more efficient approach to police information and communications technology provision and aggregate demand to exploit the purchasing power of the police service to get a good deal for the taxpayer.

The police professional body will directly support police officers at all ranks and police staff to equip the service with the skills it needs to deliver effective crime-fighting in a challenging and what must be a leaner and more accountable environment. The body will ultimately be independent of the Home Office. It will have a powerful mandate to enable the service to implement the standards that it sets for training, development, skills and qualifications. Its core mission will be to support the fight against crime and safeguard the public by ensuring professionalism in policing.

The noble Baroness, Lady Smith, was also keen to discuss timing and allegations that we had not met our targets. I appreciate that this frequently happens and that there can be slippage. I have known this throughout my career. There have been a number of times when one has announced that something will come out later in the spring and “later in the spring” has turned out to be July. However, we are on track to transfer the functions of the NPIA by the end of 2012. We began a phased transition of functions last year, with the non-ICT procurement moving to the Home Office. In April 2012, the following functions moved to SOCA: the Central Witness Bureau, the National Missing Persons Bureau, serious crime analysis, the Specialist Operations Centre and crime operational support. Obviously, more needs to be done and there are challenges, but I am more than happy that we will reach the target and do that by the end of the year. If we have any further problems, no doubt we will be the first to let the House know.

The noble Baroness was worried that the transition from the NPIA risked a loss of expertise. Giving staff certainty about their future is key to retaining their expertise, of which we are very proud. That is why we have been making announcements about this for some time and will continue to do so. Again, we are on track to complete those functions by the end of 2012. As a result, the majority of the NPIA’s staff will transfer to its various successor bodies by December 2012. Any reduction in staffing levels will arise from the already agreed budget reductions, which were part of the 2010 spending review.

Having looked at timing, rationale and other matters, I hope I have answered most of the questions that the noble Baroness and others asked. Obviously, we will have to say more later, particularly about the future of Bramshill and Harperley and the police professional body. Announcements will be made at the appropriate time. I hope that the noble Baroness will now accept that the abolition of the NPIA is a necessary part of the changes that we are making and of the Bill. Now is not necessarily the time to revisit what has, in effect, been a long-standing commitment, ever since the first announcement by my right honourable friend. Given the advanced state of wind-down of the agency and the transfer of its functions, now is the time to press on with our reforms, instead of looking back. Therefore, I hope that the noble Baroness will feel able to withdraw her amendment.

Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Wednesday 20th June 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, it is not very often that I agree with the noble Lord, Lord Thomas of Gresford; in fact, I try to make it a general principle to disagree with him. However, on this occasion he has put his finger on an extraordinary gap in the Bill, and I can only assume that Home Office Ministers do not have the courage of their convictions.

We spent many happy months debating the principle of electing police and crime commissioners and we were told what significant individuals they were going to be. They were going to hold to account the chief constable and police service for all that went on in their area. Now, under the arrangements in this Bill the director-general of the National Crime Agency can say to any chief constable, “I would like the following resource from you dedicated to a particular operation”, but there is no requirement at all to inform the elected police and crime commissioner about that. Surely at the very least there should be a recognition that the police and crime commissioner might consider this matter important.

I am not a candidate to be a police and crime commissioner, but if I were in some remote part of the country outside London and had run on an election campaign saying that I wanted to see the police of my county devoted to the rural villages, the town centres or whatever, and I then discovered that behind my back the director-general of the National Crime Agency had said to my chief constable, “We’ve got to have this chunk of your resources and use them for a particular operation”, I would find it extraordinary that I had not even been told that that was happening and that my position as the directly elected police and crime commissioner, with a remit from the people of my area, was being undermined. I assume that this is an error in the drafting of the Bill.

I thought that my noble friend Lord Rosser was extraordinarily generous to the government Front Bench in offering two or three arguments as to why these amendments might not be necessary. However, unless the Minister is prepared to stand up and say, “Yes, of course, this was a drafting error. We did intend that police and crime commissioners would be informed”, the Government will be undermining what was apparently a flagship policy for this Administration.

Why might such a provision not be included in the Bill? The suggestion that this is a potentially trivial and merely operational matter that should not worry the police and crime commissioner is, frankly, nonsense. These are precisely the sorts of issues that will exercise local communities. Some of your Lordships may remember that at the time of the riots and disturbances last August one chief constable, quite properly, responded to a request to send a substantial number of police officers to London in support of ensuring that the streets were under control only to find that there were then disturbances in his own patch. He was then subject to all sorts of criticisms for having agreed to release those officers. What would the position be in very similar circumstances, although perhaps not a visible riot, in which the director-general of the National Crime Agency requested the movement of police officers for a particular operation and that then left the force concerned short? The police and crime commissioner would have to justify that this had been allowed to happen, even though he had not been informed in advance that such a request had been made. What would happen if the police and crime commissioner took a different view from that of the chief constable about whether this request was reasonable or justifiable? This is not an ordinary operational decision by the chief constable. The chief constable is not deciding within the framework of what is going on in that area how to deploy his or her resources; it is a decision to deploy them and to take them out of that area. That is precisely the area where the police and crime commissioner may say, “I want all the resources of my force kept in this area”.

So what is the justification for not having these provisions in the Bill? I hope that the Minister will tell us that he will adopt the amendments of the noble Lord, Lord Rosser, and incorporate them in the Bill, if not today, on Report. If he is not prepared to say that, I hope that he will give us a real explanation and reaffirm that, as far as the Home Office is concerned, the police and crime commissioners really matter, otherwise we spent three or four months in this Chamber debating the police and crime commissioners for no purpose whatever. They will be elected officials with no significant function.

[Lord Henley]

My Lords, I wish to say how sad I am that the noble Lord, Lord Harris, will not be a candidate for a PCC. We understand that there is already a PCC for London and the noble Lord would have to move out of his own city in order to stand as a candidate. He might want to consider that in due course and I am sure that he would make a very fine PCC, should he wish to do so.

Sadly, I was not involved in what the noble Lord referred to as those happy months debating the Police Reform and Social Responsibility Act. I was then involved with another department but I was very grateful to my noble friends for the way in which they took that Bill through and discussed those matters.

The points put forward by the noble Lords, Lord Rosser and Lord Harris, and my noble friend Lord Thomas seem to imply a misunderstanding of the role of the PCCs and seem to suggest that PCCs should be involved in operational matters. I hope that I can explain why that will not be the case.

First, I shall speak about the policing protocol which was mentioned and which, I stress, has already been laid before Parliament. It outlines how the new policing governance arrangements established in the Police Reform and Social Responsibility Act will work and it clarifies the roles and responsibilities of police and crime commissioners, the Mayor’s Office for Policing and Crime in London, chief constables, police and crime panels and the London Assembly Police and Crime Panel. It outlines what those bodies are expected to do and how they are expected to work together to fight crime and to improve policing. It also underlines the Home Secretary’s role as being ultimately accountable to Parliament and charged with ensuring the maintenance of the Queen’s peace with all force areas, safeguarding the public and protecting our national borders and security.

I do not think that directed tasking by the director-general in anyway undermines the police and crime commissioners in fighting serious and organised crime. It is a shared concern for the NCA and the PCCs. The tasking to the NCA from a police force in England and Wales would be used to fight cross-boundary serious and organised crime which police forces and PCCs must already have regard to in strategic policing requirements.

I believe that the noble Lord, Lord Rosser, was right to draw attention to those voluntary tasking arrangements between the NCA, all United Kingdom police forces and other enforcement bodies. Those two-way tasking provisions closely reflect the operational reality of how police forces and law enforcement agencies already work together and are the central, but co-ordinating, efforts against serious and organised crime.

Amendment 34 places a duty on the director-general of the NCA to consult the relevant PCC, prior to requesting its chief constable to perform a task under the voluntary tasking arrangements.

I want to emphasise to the noble Lord that the NCA will have a key relationship with the PCC in the fight against serious and organised crime. For example, police and crime commissioners will be consulted when the agency determines its strategic priorities and an annual plan respectively.

However, the tasking—I emphasise that word—of police forces by the agency and the tasking of the agency by chief constables are operational matters, where command and control of an operation is transferred to the organisation being tasked. Given the operational nature of tasking, I am certainly not persuaded of the case for the consultation and notification requirements set out in Amendments 34 and 35 tabled by the noble Lord for debate today.

Placing a duty on the director-general of the National Crime Agency to consult the relevant PCC before entering into a voluntary tasking arrangement risks blurring the line between operational independence and political accountability.

Moreover, imposing such a duty could disrupt a time-critical operation. For example, the director-general of the agency may need to task a specific police force to take the lead on a time-sensitive interdiction, such as a stop, arrest or search, in a long-running operation. Although a duty to notify, as provided for in Amendment 35, is less objectionable, again I remain to be persuaded of the case for including this in the Bill for the same reasons. As I have previously outlined, tasking arrangements ought properly to be left to an operational determination rather than imposing a uniform obligation of notification in England and Wales, irrespective of the nature of the tasking request.

Tasking of the National Crime Agency may also need to take place in time-critical situations. For example, a chief constable may request the director-general of the agency urgently to take the lead on activity where a resident in their police area has been kidnapped and their location is unknown in the United Kingdom. Under such circumstances, there may be operational consequences if executive action were to be delayed because the relevant PCC could not be contacted or notified in time—the individual may not have been available, had their mobile turned off, or whatever. A whole host of reasons might have made that difficult.

That is not to say that a PCC would not be notified of a tasking request by their chief constable. I would expect that a chief constable would notify their PCC as soon as it was feasible, practical and sensible to do so, if not beforehand. But formal, statutory notification prior to every tasking request would not be appropriate.

I trust that the party opposite is as committed as are the Government to protecting the operational independence of the director-general of the agency and chief constables, and to ensuring that swift action can be taken during time-critical operations. On that basis, I hope that those explanations deal with the points that the noble Lord raised, and having listened to what I had to say, he will feel able to withdraw his amendment.

[Lord Harris of Haringey]

My Lords, I am slightly confused by the response from the noble Lord, Lord Henley. He implied that this group of amendments is designed to undermine the operational independence of the chief constable. But this is not about an operational decision. This is not saying that the police and crime commissioner must approve. It is simply saying that before making a request to use the resources that are properly the responsibility of that police and crime commissioner —the resources for which that police and crime commissioner is answerable to the public and the police and crime panel and so forth—as a minimum, the police and crime commissioner should be informed. This is not saying that the police and crime commissioner will then interfere in the operational judgment of the chief constable as to whether those resources can be released and what the implications of that are. Let us not pretend that this is not potentially hugely significant. As my noble friend Lord Rosser pointed out, there is nothing that prescribes the size or scale of these requests, so they could be enormously significant.

--- Later in debate ---

[Lord Henley]

The noble Lord protests too much. I will not go back to the various remarks he made about the police and crime commissioners. That is an argument that we had in another place—dare I say it, in another country—a long time ago. It has been dealt with. That is what Parliament has agreed.

[Lord Harris of Haringey]

My Lords—

[Lord Henley]

No, no, the noble Lord can intervene after I have dealt with the points about his amendment. The noble Lord objects to what is happening, and apparently supports Amendments 34 and 35. Interestingly, he did not put his name down to them, but that is possibly why he made a speech of that sort—because he knows that the amendments go too far. He knows perfectly well that the amendments say “must”, which is why I talked about time-sensitive problems and said that it was not appropriate that the director-general “must” always consult the police and crime commissioner or, in Amendment 35, that,

“a chief officer of a UK police force must notify the Police and Crime Commissioner”,

because these things are not practical in those circumstances. That is what I dealt with in the amendment and in my answer to the noble Lord, Lord Rosser, who will respond in due course.

We all welcome the chance to listen to the noble Lord, Lord Harris, yet again making one of the speeches that he no doubt made during the passage of the Bill, which sadly I was not able to take part in but which my noble friend dealt with so well. I hope that my explanation of why the word “must” is not appropriate in Amendments 34 and 35 is satisfactory and that the noble Lord, Lord Rosser, will feel able to withdraw his amendment, as I suggested earlier.

[Lord Harris of Haringey]

My Lords, I hesitate to correct the Minister, but if he checks back on the speeches I made during the Police Reform and Social Responsibility Bill when it was being considered in your Lordships’ House, he will see that I was not a particular supporter of the concept of police and crime commissioners. What I am doing today is fighting on their behalf for them to be given the information to enable them to do their job. They should be allowed to be the police and crime commissioners that the Conservative Party envisaged when it put this measure before Parliament.

If we are now being told that the only reason for rejecting this amendment is the word “must” because of the implications of urgency, as I said in my previous intervention, that is very easily remedied. If the noble Lord is saying that he is happy to table these amendments on Report with an urgency exclusion, obviously I cannot speak for the opposition Front Bench but I am sure we would think that progress had been made.

[Lord Henley]

My Lords, I am always happy to look at further amendments to amendments. Similarly, I am happy to think that one of the things I could do in the long summer months when the Olympics are on is read some of the noble Lord’s speeches on police and crime commissioners. Those will no doubt provide me with a great deal of pleasure and possibly put me to sleep. They will be great speeches and I will read them just as I will listen to the noble Lord.

What the noble Lord, Lord Rosser, does with his amendments is a matter for him. I was responding to the specific amendments that were put before me. The noble Lord, Lord Harris, can add his name, if he wishes, to the amendments that the noble Lord, Lord Rosser, might bring forward in due course.

--- Later in debate ---

[Lord Rosser]

My Lords, the amendment would delete the requirement on the director-general of the National Crime Agency to seek the consent of the Secretary of State before issuing a direction to the chief constable of the British Transport Police, as set out in Clause 5(9). There does not seem to be, in Clause 5, a similar requirement for the director-general to seek the consent of the Secretary of State to a direction to perform a task that is given to the chief officer of an England and Wales police force, as opposed to the chief constable of the British Transport Police.

Schedule 3(8) provides for the director-general of the National Crime Agency to direct, among others, a chief officer of an England and Wales police force, and the chief constable of the British Transport Police, to provide specified assistance to the National Crime Agency, subject to the appropriate consent being given to the direction—meaning that of the Secretary of State in relation to the chief officer of a police force. However, Schedule 3 appears to remain silent on whether the consent of the Secretary of State is required for the director-general of the National Crime Agency to give a direction to provide specified assistance to the chief constable of the British Transport Police—unless of course the chief constable of the British Transport Police is included within the reference to a “chief officer of” a “police force”.

I accept that we may not have correctly understood the wording in the parts of the Bill to which I have just referred. I am sure that if we have not, the Minister will point that out. However, if we have understood it correctly, can the Minister explain the significance or otherwise of the necessity for the director-general of the NCA to obtain the consent of the Secretary of State to give a direction only to the chief constable of the British Transport Police appearing in Clause 5, when that clause also deals with directions being given to the chief officer of an England and Wales police force; and the significance or otherwise of the necessity for the director-general of the National Crime Agency to obtain the consent of the Secretary of State to give a direction only to a chief officer of an England and Wales police force appearing in Schedule 3, when that schedule also deals with directions being given to the chief constable of the British Transport Police?

Why is the necessity for the director-general of the National Crime Agency to seek the consent of the Secretary of State to the giving of a direction to both a chief officer of an England and Wales police force, and the chief constable of the British Transport Police, not dealt with in the same place in the Bill, whether at Clause 5 or Schedule 3, instead of being split, as appears to be the case at present? I accept that Clause 5 and Schedule 3 may address different circumstances, hence the difference in wording. Such a distinction between Clause 5 and Schedule 3 does seem to be drawn in Part 5 of Schedule 3, addressing the issue of payments. No doubt the Minister will clarify the position in his reply.

Amendment 39 would remove the requirement for the consent of the Secretary of State to be given. The Minister’s response to these amendments may address some of the points we wish to raise under Amendment 39.

Finally, as we are dealing with the issue of directions being given by the director-general, the Minister said at Second Reading that the Bill provides that the director-general should, in exceptional circumstances, be able to direct police forces in England and Wales. Can he tell us where in the Bill it states, “in exceptional circumstances”?

[Lord Harris of Haringey]

I see the noble Earl, Lord Attlee, readying himself to answer on this amendment. Perhaps he can answer my simple question. We listened to the protestations of the noble Lord, Lord Henley, that the amendments that we just considered were completely unworkable because of the use of the word “must”, and that there would be circumstances in which urgent matters and urgent operational needs had to be dealt with. Why do we now find a clause in the schedule which says that before you can get the British Transport Police to do anything, the prior approval of the Secretary of State has to be obtained?

When the noble Earl reads his note, perhaps he could also say whether a fine distinction is being drawn between a direction and a request? If so, perhaps he could also tell us what is the status of the British Transport Police Authority. Does it have no say in the matter? Is it simply for the Secretary of State? I assume that we are here talking about the Secretary of State for Transport, although I understand that there is always a fiction in our legislative process whereby Secretaries of State are indivisible. I assume that, before a direction can be given, the Secretary of State for Transport must be found, diverted from whatever consideration she or he might be giving to high-speed rail, airports or whatever, and told that there is an urgent operational direction needed by the British Transport Police. How is that really meant to work?

[Earl Attlee]

My Lords, in responding to the amendment, I start by emphasising that in almost all cases, tasking will be voluntary, based on strong relationships and mutual co-operation, exploiting intelligence and building on existing arrangements. If not, surely something is going badly wrong, so of course such circumstances will be exceptional. In answer to the noble Lord, Lord Rosser, about “exceptional”, there are already strict legal tests in the Bill to prevent misuse of the directed tasking powers.

In order for the director-general of the agency to use those powers, a threefold test must be met. The performance of the task would be to assist the NCA to carry out its functions; it would need to be expedient for the directed body to perform the task; and satisfactory arrangements could not have been made, or made in time. A further safeguard is that the director-general must personally exercise the power and may delegate it in his absence only to a senior NCA officer, who would be nominated for the purpose. Directed assistance powers would also be subject to a threefold test. There would have to be a special need for that assistance; it would need to be expedient for the directed body to provide assistance; and voluntary assistance could not have been made, or made in time. In addition to that threefold test, any directed assistance to the NCA would require consent from the relevant Secretary of State. Separate arrangements are in place for Northern Ireland.

The noble Lord, Lord Harris, asked about the term “Secretary of State”. He will know very well that it is a legal term.

I was asked about the difference between tasking and assistance. “Tasking” means that the responsibility for the direction and control of the operation goes to the agency being tasked. Examples are that the NCA may task a specific police force to take the lead to disrupt a human-trafficking gang that is predominantly based in that force area but impacting across the UK, or that a police force could task the NCA, subject to the NCA’s agreement, to take the direction and control in an operation to disrupt that organised crime group’s overseas financial infrastructure by using its specialist cybercapabilities and overseas liaison officers. Under assistance, resources transfer from the operational command of one organisation to another. One example is that if a specific police force is faced with a local kidnapping case, the chief officer could maintain direction and control but request some assistance from the NCA’s specialist kidnapping unit. In the case of a co-ordinated day of national action against the smuggling of rhino horns, the NCA could request assistance from UKBA specialists on the Convention on International Trade in Endangered Species of Wild Fauna and Flora to assist with identifying seized ivory.

The powers in respect of directed tasking are a necessary and sensible backstop to enable the National Crime Agency to fulfil its role of ensuring that there is a co-ordinated national response to serious, organised and complex crime. In particular, directed powers could be vital in time-critical situations where arrangements need to be made quickly and there is not time to establish satisfactory voluntary arrangements. The question that the noble Lord, Lord Rosser, has quite reasonably posed is: why is it necessary for the Secretary of State to consent before the director-general can direct the British Transport Police to perform a task yet there is no equivalent consent requirement when one of the 43 territorial forces in England and Wales is subject to such a direction?

The British Transport Police is different from police forces in England and Wales for three reasons. First, it is not a Home Office police force but a special police force, ultimately accountable to the Secretary of State for Transport under the Railways and Transport Safety Act 2003. Secondly—

[Lord Harris of Haringey]

Can the noble Earl explain how that accountability differs from the accountability that a Home Office force has to the police and crime commissioner?

[Earl Attlee]

My Lords, I will go on to say that but what is particularly important is how the British Transport Police is funded. Secondly, unlike police forces in England and Wales, the British Transport Police has a national remit which includes jurisdiction across the railway network in England and Wales—and in Scotland, where policing in the latter is otherwise devolved to the Scottish Government. Thirdly, the British Transport Police is primarily contracted and funded by providers of railway services—the train operators and Network Rail—applying the “user pays” principle. Railway service providers are required to enter into a police services agreement with the British Transport Police as a condition of their licence to operate. Home Office forces have no such contractual or financial relationship with industry of day-to-day significance.

Taking into consideration these difficulties, a direction to the British Transport Police is so significant in regards to the potential impact on accountability, devolved policing arrangements with Scotland and arrangements with industry that it requires a Secretary of State to affirm that the issue is of sufficient national interest. I would also be very surprised if my right honourable friend the Secretary of State did not want to be aware that agreement could not be reached. It would be a very serious matter. On that basis, I hope that the noble Lord will be prepared to withdraw his amendment.

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[Lord Harris of Haringey]

Perhaps the noble Earl could also address this point. I understand the point about the different funding arrangements for the British Transport Police, which is extremely significant, but the funding is therefore coming not from the Government but from the transport operating companies. Those companies are engaged through the British Transport Police Authority so why does this clause not therefore relate to that authority, to which the chief constable is accountable, where the funders, who may feel that they have an issue at stake, would be represented? Would that not be a better arrangement?

Perhaps the noble Earl will respond to the question about the terrifying cases of urgency that the noble Lord, Lord Henley, worried us with on the previous group of amendments. How are they going to be dealt with with this requirement for the prior approval of the Secretary of State?

[Earl Attlee]

My Lords, in a terrifying case of urgency, it is in my opinion inconceivable that the British Transport Police would not agree to assist.

In answer to the noble Lord’s question about the British Transport Police Authority, he is right to point out that the chief constable of the British Transport Police is accountable to the British Transport Police Authority in the same way that chief constables of police forces in England and Wales are accountable to their respective police and crime commissioners. However, in the case of a directed tasking to the British Transport Police, the Secretary of State for Transport is ultimately responsible for the security of passengers and staff on the national rail network and on underground and light-rail systems. It is therefore right that she should have the ability to consent to direct tasking of the British Transport Police at the national level aimed at tackling serious and organised crime.

Moreover, tasking by the National Crime Agency may need to take place in time-critical situations. Members of the British Transport Police Authority meet six times a year to set British Transport Police targets and to allocate funds for its budget. It may not be possible to clear consent with the British Transport Police Authority in time for the necessary executive action to take place. This is not to say that the British Transport Police Authority would not be notified by its chief constable of a direct tasking request. I have no doubt that the chief constable of the British Transport Police would notify the British Transport Police Authority of direct tasking as soon as it was feasible to do so. Noble Lords have not convinced me that a situation would arise where the British Transport Police would refuse to provide assistance voluntarily.

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Debate on whether Clause 7, as amended, should stand part of the Bill.

[Lord Harris of Haringey]

My Lords, I seek clarity from the Minister. This is a genuine attempt to secure information. Clause 7(1) states:

“A person may disclose information to the NCA if the disclosure is made for the purposes of the exercise of any NCA function”.

I seek to clarify whether this is as broad a statement as I think it may be. Does it mean that any person may choose out of sheer devilment to ignore any other requirements to which they may be subject under the Data Protection Act or anything else to disclose information to the NCA because they think that it may be useful for the purposes of the exercise of its work? I am trying to get at who determines whether the disclosure is for the exercise of the NCA’s functions. Could I as a private individual who holds some privileged information decide that I think the NCA ought to be interested in the information because I think it relates to serious crime, and therefore I may decide to ignore the legal obligations on me not to disclose that information and pass it to the NCA? I could understand it if the wording was, “The NCA may require me to disclose the information because it is investigating something and gets the necessary permissions to override it”. I may be completely misinterpreting Clause 7(1) but I would be grateful for clarity on that point.

[Lord Henley]

I am sorry but I am slightly confused by the procedure that we are adopting. My understanding was that the noble Baroness, Lady Smith, was going to oppose the Question that Clause 7 stand part of the Bill. The noble Lord has intervened at this stage to ask a question about Clause 7. Does he want to wait for the general debate that we are going to have? However, the noble Baroness seems to be implying that there will not be a—

[Lord Harris of Haringey]

This is the debate. That is all you are getting.

[Lord Henley]

I am distraught. There I was expecting a major debate and the noble Lord asked me only about Clause 7(1), who the relevant person may be and whether it was any person. I would have thought the simplest way of dealing with this matter is the way that I was taught many years ago—the noble Lord, Lord Beecham, will remember this from when he first trained as a lawyer—namely, that you look at what the words on the face of the Bill say. We hope that the Bill will become an Act when we have finished dealing with it and it has gone through all its stages. The Bill states:

“A person may disclose information to the NCA if the disclosure is made for the purposes of the exercise of any NCA function”.

I would have thought that that is fairly straightforward. That is what the Bill says. My advice suggests that one need not go beyond that. The words “A person” imply that any person can disclose information to the NCA,

“if the disclosure is made for the purposes of the exercise of any NCA function”.

The noble Lord will now come back to me, because he always does, and I enjoy our debates. This statute is relatively simple to interpret. We know that that is not always the case and that great complications can arise in the interpretation of statutes. However, I should have thought that the words we are discussing are as simple as you can get.

[Lord Harris of Haringey]

My Lords, perhaps I did not make myself as clear as I should have done. If I am a data controller in an organisation and I have certain obligations placed on me not to disclose information, does Clause 7(1) override my normal duties as a data controller under the Data Protection Act and allow me to decide whether certain information looks as though it ought to fall within the remit of the NCA, and therefore enable me to disclose it to that body? That is my simple question and, even though I am trying to behave as though the words on the paper mean what they seem to mean, I am simply trying to understand whether this is as broad a “may” for the persons concerned as I think it is.

[Lord Henley]

I was probably not as clear as I ought to have been. Obviously, the persons would be subject to any other enactment, which would include, as the noble Lord said, the Data Protection Act. One could also mention the Regulation of Investigatory Powers Act 2000. They would be covered by the provisions of those Acts. The situation is as it states on the package, but subject to other statutory provisions.

[Lord Harris of Haringey]

I really do not wish to prolong this, unless the noble Baroness, Lady Hamwee, is about to explain what the words mean. What is the purpose of having this provision at all? If all that it is saying is that I, as an individual person, may do something that I am not prohibited from doing, what is the point of even putting it in the legislation in the first place? If the subsection is merely saying, “I have a bit of information that I am not prohibited from passing on, and I may decide to pass it to the NCA”, it seems to be completely unnecessary. It clearly means something, and I think that it means rather more than, “I can provide information without being constrained by, say, the Data Protection Act”. Unless the noble Baroness, Lady Hamwee, is going to provide some insight on this point, it may be something that the noble Lord can write to us about.

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[Lord Mackay of Clashfern]

My Lords, can my noble friend deal with the point about funding? At the moment, to what extent does CEOP get outside funding to help it with its work? What safeguard is there? Will CEOP continue to get that money for its work as a result of the Government’s proposals?

[Lord Harris of Haringey]

My Lords, when my noble friend Lady Smith introduced the amendment, she made it clear that there was not necessarily a desire to stick to the wording before us: rather, that what we are having at this stage is very much a probing discussion. All your Lordships in this Committee support the work done by CEOP and we all want to see it succeed. Given that the Government intend to put CEOP within the National Crime Agency—for which there are some very strong arguments in favour but also some arguments against—the question is how one preserves the integrity of CEOP’s work and makes sure that the work continues and is seen to continue.

The amendment is partly about safeguarding the funding streams, as well as the external funding, and it is partly about ensuring that the existing partnership structures with CEOP, which are reflected in the current board structure of CEOP, are continued. Although the wording of my noble friend’s amendment does not necessarily resolve all these issues, it gives us an opportunity to highlight the concerns.

The principles are clear: we want to see CEOP’s work continue; we want to see it protected; and we want to see the retention of the partnership structure, which involves not only bringing in resources from outside but ensuring that those who provide the resources have confidence that the public contribution is retained and remains transparent. We want to ensure that in the operation of the agency there is a genuine partnership that involves different parties working together to achieve a common end.

We look to the Minister for some account of how the benefits of that separate entity, which is currently CEOP, can be preserved within a new structure. This is not a new concept. The presence on the government Bench reminds me that we had a very similar debate about the creation of Healthwatch within the Care Quality Commission; and there, completely erroneously of course, the Government’s objective was to create something that was independent and that had its own income flow and governance structure that was different from the rest of the Care Quality Commission. Although I do not think that the solution that the Government adopted in that particular model was perfect, it demonstrates that a number of models are available that try to achieve the objective of preserving this continuing area of activity, preserving the partnership structure and preserving the funding and independence of that funding for the future. I hope that the Minister can respond in those terms.

[Lord Henley]

My Lords, again, I regret that I missed the debates on the Care Quality Commission. I shall spend the summer reading those as well as the other ones. In response to the speech from the noble Lord, Lord Harris, I make it clear that I fully understand that his noble friend’s amendment is probing and seeks reassurances about what CEOP does and how it works. I shall not dismiss it purely on the grounds of its wording, nor shall I say that it is merely a fantasy amendment because we do not yet have the NCA board that she was looking for, as that was dealt with at an earlier stage. I accept that this as a probing amendment and that there is a need for reassurances from me and the Government about the future of CEOP and what will happen under the new arrangements.

I pay tribute to the work of CEOP, which I saw when I visited it, as I am sure other noble Lords have done. We should all be very grateful that that child protection work will continue through the work of the agency. Since its creation, it has been a significant success story. It is important that I remind noble Lords that it has not previously had a statutory basis that is distinct from that of SOCA, and that has had no detrimental impact on its operational independence. It has worked perfectly well, and the six principles, to which I shall turn later, that underpin CEOP will continue to underpin it on the transition to the NCA.

Before I go through what I want to get on the record as an assurance, perhaps I may respond to my noble and learned friend Lord Mackay on the funding of CEOP and the fact that it can receive funds from outside sources. At the moment its existing funding model allows it to charge, for example, for training services that are provided mainly to the police, teachers and child protection workers and to raise income or support in kind through sponsorship and corporate arrangements. We certainly want those arrangements to continue with the NCA; there will be no change to that.

I assure the Committee that child protection will run throughout the National Crime Agency. CEOP will still exist as a part of that as a separate command within it, but we would not want to see it silo-ised—an inelegant word—within the department. It is important that its work runs throughout the agency. As well as building on CEOP’s existing role as the national centre dedicated to working with others to protect children from sexual exploitation and sexual abuse, the NCA will also be subject to a new statutory duty, which in essence is to safeguard and to promote the welfare of children. That means that the agency will give appropriate priority to children when it comes into contact with them and that it will share early concerns about the safety and welfare of children, ensuring preventive action before a crisis develops.

Those requirements will be part of the training that each and every NCA officer will receive. I emphasise the point that CEOP will be a separate command within the NCA; we do not want to see these matters silo-ised. Contrary to the noble Baroness’s amendment, it is imperative that the responsibility to discharge that duty remains with the whole of the National Crime Agency and not just with CEOP.

Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Monday 18th June 2012 Lords Chamber

[Lord Condon]

My Lords, I would not seek to challenge the architecture in the Bill for control and accountability, but it is not a question of all or nothing—there can remain clear direction and control by the director-general and clear accountability to the Home Secretary and onwards to Parliament. Nevertheless, I hope that the Minister will find ways to reassure your Lordships’ House and the wider public that in this day and age notions of good governance demand that there should be something more than just that naked architecture of the DG in control and the Home Secretary being accountable. It would be good to have reassurance around the notion of a management board, a supervisory board, an advisory board or some board mechanism that allows both stakeholder interest and independent voices to contribute to the health and well-being in the future of the NCA so that issues such as value for money, good governance, priorities and so on could somehow be part of a wider debate within that family than just between the DG and the Home Secretary. I understand that the Bill and this agency will deal with some of the most challenging criminal matters facing the country. Should terrorism subsequently also be transferred as a responsibility to the NCA, I understand that there must be very clear direction, control and accountability, but a committee-type model does not fit well with those demands. Nevertheless, there is ample scope for reassurance around the notion of a management board that involves stakeholders from the police service, the emerging police and crime commissioners, the wider local authority family and the business community. I hope that the Minister, today or subsequently, will be able to give us some reassurance that the Bill will be able to move us in that direction.

[Lord Harris of Haringey]

My Lords, I certainly do not want to fall into the trap of automatically accepting the Government’s architecture for these proposals. However, the amendment put forward by my noble friend does not necessarily undermine that architecture. The key point of this part of the proposed legislation is the creation of a new National Crime Agency. That is the key concept, and in this group of amendments we are dealing with some of the accountability mechanisms and the arrangements that will be put around the agency to ensure that its governance is of an appropriate and effective standard.

Let us be clear why this is important. The National Crime Agency, as proposed, will be a tremendously significant organisation. It will be responsible for ensuring that as a country we deal effectively with the most serious types of crime. In due course, it may be responsible for dealing with terrorism. This is not some minor government body; it is an extremely important part of the arrangements that we put in place to ensure that our citizens are properly protected against serious crime.

The other fundamental part of the architecture of the Bill, if you are wedded to that architecture, as no doubt the Minister is—no doubt we will come onto this in due course—are the provisions within the legislation that enable the director-general to require from police services around the country various things to happen. There is a potential power of direction—and certainly the expectation in terms of individual operations—that local police forces will work with the National Crime Agency to ensure that certain operations proceed. The relationship between the director-general and individual chief officers of police will be a fundamental one. That is precisely why, when we look at the governance structures and the arrangements that will be put around the director-general, we need to ensure that there are appropriate mechanisms for chief officers of police and those responsible for their governance, in terms of police and crime commissions, to be adequately represented within them.

The Government have to put forward a clear justification as to why this very lean approach to governance has been included in the Bill. As a number of your Lordships have already indicated in Committee, there is a virtue in having a proper governance structure, a group of non-executives and a group of individuals to whom the director-general must report or explain or expand on his or her proposals on how the agency goes forward. That is not to decry the direct accountability to the Home Secretary because it will be the Home Secretary who will, whatever is written into the Bill, have to answer to Parliament as to whether this new structure works. It supports that function and gives the Home Secretary reassurance that all the processes and procedures that any sensible Home Secretary would expect to be around the director-general are in place.

I am not suggesting that the Home Secretary is incapable of providing adequate supervision of the agency. I am simply saying that it is not necessarily the most effective or efficient way of doing it and that some board structure supporting that process is better and more likely to be successful. I have looked for precedents for this sort of one-to-one relationship between the Home Secretary and significant agencies. For 175 years the Home Secretary was the police authority for London and at the end of those 175 years the Metropolitan Police was so well governed, despite the excellent leadership at that stage provided by the noble Lord, Lord Condon, that it did not have a system in place—it was a £2 billion business at the time—for telling whether it had paid a bill more than once. I rather suspect that had the Home Office—I absolve previous Home Secretaries from day-to-day responsibility for this—been doing its job properly proper accountancy systems would have been installed within the organisation. However, the supervision of the Home Office and the Home Secretary was quite properly on the main policing issues, which would have been advised by the noble Lord, Lord Condon, and his predecessors as Commissioner of Police of the Metropolis. This was not about the way in which the organisation was run, administered or governed. That is the natural tendency. Home Secretaries are busy people. They have broad responsibilities. They are not going to be involved in day-to-day issues about the robustness or otherwise of governance structures. The history of the Metropolitan Police is not a sound precedent.

More recently we have the precedent of the border agency. Here, the opposite problem seems to have occurred. You seem to have a Home Secretary—perhaps successive Home Office Ministers would be a fairer way of putting it—who wanted certain things to happen and applied pressure on the border agency to do so. You then end up in arguments about what was said to whom by whom because of that one-to-one relationship. In all the fuss that there was a few months ago about whether certain expectations were being bypassed to let people into the country and remove queues, would it not have been better for there to have been a supervisory board between the Home Secretary and the chief executive of the border agency where there would have been a record, minutes, and perhaps an opportunity for dissent to be expressed? All that would be missing in the arrangements for the National Crime Agency, which raises the question of whether we are not in danger of creating a structure where the Home Secretary has too much of a role in respect of a policing body.

In this country, we have always expressed real concern about politicians having direct operational control of policing. That is part of the reason why there was a little bit of debate about the creation of police and crime commissioners, but that debate has moved on and we are now well into the process with the Labour Party having today announced a selection of candidates for those positions that includes my noble friend Lord Prescott. The Labour Party will clearly have an excellent set of candidates and we wait to see whether the Conservative list will be quite as exciting or interesting. The reason that there was some concern about that and there is even more concern about a national agency directly under the control of a single politician is the danger that that power is abused. I am certainly not accusing the present Home Secretary of having any desire to abuse that power. I am simply saying that we are creating a structure where such an abuse is possible and that it might happen in future.

Imagine occasions when there is a considerable threat from some organised crime group or a terrorist organisation, if that is the direction that the new agency goes in, and it is the responsibility of the Home Secretary to direct what the agency should do. The guarantees in the Bill for operational independence do not amount to very much in those circumstances. There is no place for control freakery here. This has to be about a proper system of governance. In a few years’ time, I would not want people to be making all sorts of sinister connections between policing operations that happen under the auspices of the National Crime Agency and saying that there are sinister implications that they have been personally directed or required by the Home Secretary, but that is the danger of the governance model that the Government have created.

My final point returns to what I mentioned in passing earlier. A critical part of this new agency will be the ability of the National Crime Agency to say that it wants local police forces to carry out or collaborate on particular operations. The danger of having a National Crime Agency that is divorced from the rest of the police structure is very real. I recall the discussions that took place over several years to try to get a system that worked on counterterrorism with primacy for one force and the ability to make operations happen across the country. It was not an easy process. The Government are making it more difficult for the director-general of the National Crime Agency if there are not police and crime commissioners or chief officers of police playing an active part in the governance of this new organisation. If they are there, if they are around the table and able to say, “This is a better way of doing that”, or to encourage the director-general to do things in a way that ensures their collaboration, that is surely going to mean that it is more likely that this new agency will succeed.

My noble friend’s amendments, which address precisely those points, are very welcome. There is a slight drafting error in that they make no reference to London, but I am sure that could be adjusted when we return to this at a later stage. The key issue that the Minister has to explain today is why this particular governance model has been put forward and why it is genuinely an improvement on a supervisory board which involves, for example, chief officers of police and police and crime commissioners.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I hope that in due course I will be able to answer those points, in particular those final questions from the noble Lord, Lord Harris. I begin, though, with two points. First, my noble friend Lady Hamwee referred to “architecture”. I think that the noble Lord, Lord Condon, and the noble Lord, Lord Harris, also used that word. My noble friend did not particularly like the term and I agree with her. I find it inelegant, but as a form of shorthand, it is quite useful on this occasion. Therefore, I suspect that architecture is something that might be referred to. Secondly, I make a brief apology to my noble friend about the website.

I was discussing the Home Office website with the noble Baroness, Lady Smith, earlier during the Division that took place. We have had some problems with the Home Office website. This is true of other government departments, all of which have been targeted. I hope to write to the noble Baroness in due course and I am more than happy to copy my letter about the problems we are having with the website to my noble friend Lady Hamwee. It can be difficult for all noble Lords if, in trying to discover what the Home Office is doing—or any other department for that matter—they cannot get into our website. Obviously, that is the means on every occasion by which we learn what is going on. There have been problems and we hope to address them. Perhaps for the first of many times, I give way to the noble Lord.

[Lord Harris of Haringey]

My Lords, since the Minister raises the issue of the website, I believe that the Home Office’s explanation of why booklets will not be issued about the election of police and crime commissioners is that people will be able to access the information about candidates from the website. When the Minister writes to my noble friend, what reassurances will he give that the elections will not be interfered with by the same sort of malign intervention on his website?

--- Later in debate ---

[Baroness Hamwee]

My Lords, before the noble Baroness tells the House what she proposes to do with her amendment, perhaps I may raise with the Minister the way in which references to the framework document are set out in Schedule 2. We are told that the document will deal with ways in which the NCA is to operate, including how it,

“is to be administered (including governance and finances)”.

No doubt the Minister and his officials will consider further the points that have been made today—I am by no means certain what should happen after this stage on this issue—and at least they will consider whether the term “administered” covers the issues of governance which noble Lords have raised. To me, governance is not something which is included in administration; it is an issue on its own. To include it within administration downgrades its importance.

[Lord Harris of Haringey]

Before my noble friend responds to the debate, perhaps the Minister will also tell us precisely when we are likely to have this framework document. Clearly, he is saying, “Don’t worry your heads about the governance arrangements because when you see the framework document you will be entirely satisfied and it will all be all right. Therefore, this amendment is unnecessary.”. We are in Committee and have not yet seen the framework document. The Government announced their intention to create a national crime agency nearly two years ago, so it is quite extraordinary that this fundamental piece of the jigsaw is not available to us. It would be very helpful to have it.

Incidentally, while the noble Lord was speaking, I checked on the Food Standards Agency. As far as I can see, it has a fully functioning board; I believe that the noble Lord, Lord Rooker, is its chair rather than the head of the agency, but that is a mere detail.

--- Later in debate ---

[Lord Harris of Haringey]

My Lords, we are all grateful to the noble Lord, Lord McColl, for introducing the subject of child trafficking into the Committee today. One reason why it is so important that we look at what should or should not be written into the Bill about child trafficking, human trafficking, child exploitation and so on is the concern that there will be, from those who are concerned with these issues, that somehow these matters will get lost in the new National Crime Agency. I recall the concern expressed when SOCA was set up about what was to happen to the high-tech crime unit. It appeared to disappear completely. Because that unit had disappeared into the new agency, it was not apparent to those who had been working with it whether those activities were still continuing as time went on. There is a very real concern that some of these issues about child exploitation, human trafficking and so on may disappear or not be given the same priority.

Part of that comes back to what I suspect may not be included in this much vaunted framework document, which is: what governance and external-facing relationships is the National Crime Agency going to have? CEOP, for example, has a highly regarded partnership structure that relates to other organisations which are active in the field. It relates to those technology companies and to all sorts of organisations which need to work with it to help deal with child online exploitation. The danger is that unless we are told explicitly that these activities will carry on and that those relationships with external agencies will continue, some of them will disappear. There is a real fear about some of these activities and relationships as far as CEOP is concerned, which is why we are seeing amendments such as the one before us that are trying to pin down what the responsibilities will be on issues such as trafficking and child exploitation. I hope that the Minister can give us some reassurance that these issues will be dealt with explicitly in the framework document, so that we can be reassured that the National Crime Agency will continue to have robust external relationships on this range of issues.

[Lord Rosser]

My Lords, the noble Lord, Lord McColl of Dulwich, has long championed the issue of child victims of human trafficking, having had, I believe, a Private Member’s Bill in the last Session and an amendment to the Protection of Freedoms Bill to introduce a system of guardians for child victims who enter the system. His amendments today, however, relate to including in the NCA’s statutory functions a duty to fulfil the requirements of the EU directive on human trafficking. They also provide that the functions of the National Crime Agency would include the functions of the UK Human Trafficking Centre and of CEOP. We support this group of amendments as a means of strengthening the requirement on the Government to implement the directive fully and of providing clear roles and responsibilities for the NCA on trafficking, including child trafficking, since there is a serious problem that needs to be addressed, as the noble Lord and others have said.

The Home Office has itself acknowledged that some 32% of child victims went missing from care between 2005 and 2009, with many being abducted back by their traffickers. The guardians system, which was the subject of the amendment tabled to the Protection of Freedoms Bill, is advocated by UNICEF and leading children’s charities as a means of ensuring continuity of care and continuous oversight of trafficked children who have been taken into care by the state. At the Report stage of the Protection of Freedoms Bill, as I recollect it, the noble Lord, Lord McColl, did not move his amendment, which would have placed a duty on the Secretary of State to introduce the guardians system for child victims of human trafficking, because of assurances that the noble Lord, Lord Henley, gave that the Government would commission a report by the Children’s Commissioner into ways to improve retention of child victims in care.

As has been said, this is a particularly topical issue as the Children’s Minister has accepted that the system is failing in preventing children in care going missing, as revealed in the report published today by the All-Party Group on Runaway and Missing Children and Adults, to which the noble and learned Baroness, Lady Butler-Sloss, has already referred. Its report stated that vulnerable young people are being systematically let down. The Children’s Minister has, I believe, promised urgent action to address the problems that have been identified. It seems that there are big discrepancies between police and Department for Education figures, as has already been said. The DfE last year said that 930 children went missing, whereas the police estimate that 10,000 children in care went missing. We need accurate and reliable figures, since going missing is regarded as a key indicator that children are open to the risk of abuse. Indeed, one of the main reasons that the all-party group felt led to children running away was that 46% of children in children’s homes were placed away from their home town.

Considering today’s report by the all-party group and statement by the Children’s Minister that children are being “systematically let down” by the care system in failing to prevent them going missing, are the Government going to introduce a system of guardians or legal advocates for child victims of human trafficking, who are among the most vulnerable children in our care? The Government declined to accept the amendment to introduce guardians for child victims of human trafficking at Report on the Protection of Freedoms Bill, which is now of course an Act. Instead, they said that they would commission a report from the Children’s Commissioner to investigate measures to mitigate the number of trafficked children who go missing from care. When will the Children’s Commissioner actually report, and what steps are the Government intending to take in the mean time to protect these children and reduce the substantial number who go missing from care?

There is also the question of how this Bill and its provisions will help to address the situation that many of your Lordships have so eloquently identified already in this debate. Under this Bill, the National Crime Agency absorbs the Child Exploitation and Online Protection Centre. Can the Minister spell out how the Government believe that this will improve the situation? How will CEOP retain its own identity and operational independence and what assurances can the Government give that its integration into the National Crime Agency will not adversely affect its ability to protect children or to continue its multiagency approach, which might be put at risk if the National Crime Agency were seen as primarily a policing organisation? Which areas will CEOP continue to lead on in future in relation to trafficked and missing children and will there, as has already been asked, be any split of related functions in this area within the National Crime Agency that might lead to some cases falling between two stools, or rather between two agencies or organisations?

I repeat that we support these amendments and I very much hope that in his reply the Minister will be able to address the many points that have been raised.

Crime and Courts Bill [HL]

Lord Harris of Haringey Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Harris of Haringey]

My Lords, I should declare my interests as chair of the Audit Panel for the Metropolitan Police and the Mayor’s Office for Policing and Crime, and as an adviser to KPMG, Airwave Solutions, Lockheed Martin UK and a number of other companies that provide services to police forces around the country. It is a privilege to follow the noble Lord, Lord Condon, in the debate. I, too, want to speak primarily about Part 1 and the new National Crime Agency.

The Government’s intention to create a National Crime Agency has been known about for almost two years. However, we have yet to hear a clear explanation of what the problem is with the existing arrangements that these changes are required to fix. I am sure that the Government’s policy is, “If it ain’t broke, don’t fix it”, but perhaps it goes a bit further than that by saying, “Even if it doesn’t need fixing, take it to pieces anyway”, because we are not at all clear about which problems will be solved by these reorganisations. Given that the Government’s intentions have been clear for the past two years, we have to ask what has been going on during that period. We still do not have a definitive version of the strategic policing requirement, and we do not see any sign of the NCA framework document, even in draft, although it is pivotal to understanding how the new arrangements will work.

My understanding is that, because of this pending reorganisation, senior people in SOCA and the other agencies have spent the past two years sitting in meetings arguing with officials from the Home Office and other bodies rather than devoting themselves to their main purpose, which is that of fighting serious and organised crime. But all the meetings that have taken place over the past two years seem to have failed to produce anything definitive on how the new arrangements are supposed to work. What we are told about the likely organisational structure suggests that we are going to have a series of silos that are spatchcocked together. If that is all it is, frankly it is not clear why the reorganisation is better than a general injunction on the different organisations that currently exist to work together better. Moreover, there remains a lack of clarity about one of the central issues as to how the agency is going to work—a lack of clarity about the powers of tasking and co-ordination, whether voluntary or mandated.

We spent many happy months in your Lordships’ House discussing the Police Reform and Social Responsibility Act. That Act clearly states, as does the policing protocol, that elected police and crime commissioners are responsible for the totality of policing within their jurisdiction and that they alone are publicly accountable for the delivery and performance of policing. That responsibility is placed clearly in their hands on behalf of the electorate.

Under this Bill, directed tasking arrangements allow the Home Secretary to empower the director-general of the NCA and allow the director-general of the NCA to task police forces and other law enforcement agencies to carry out specific activity. While the PCC would have to be notified when such a direction is initiated, this tasking would in practice interfere with the operational independence of the chief officer as set out in the Police Reform and Social Responsibility Act, and interfere with the police and crime commissioner’s responsibility for the totality of policing. My prediction is that, unless this is handled correctly and there is rather more substance to it than is contained in the Bill, conflict is going to be inevitable.

The whole point of these new accountability arrangements created by the Government is that police and crime commissioners will be elected with a mandate to deliver in respect of local concerns. That is what they are there to do. What is going to happen when the elected police and crime commissioner for Loamshire or some such place decides that his or her number one priority is going to be addressing volume street crime in Loamshire and its larger towns and yet suddenly there is a directive to divert resources from Loamshire to somewhere else to help deal with particular problems of organised crime, when for the public of Loamshire—the electorate that elect the police and crime commissioner—organised crime is not a particular issue facing that local community? How that is going to be managed is not clear from the Bill.

Indeed, the whole Bill poses a series of questions. Who is accountable to the public for activity that is being directed? When things go wrong—as they will—is the Home Secretary or the NCA director-general liable for any repercussions from this activity? How is this going to interfere with the PCC’s setting of local strategic priorities and indeed that accountability of PCCs to the public that the Government tell us is so critical? Will the police and crime commissioner for Loamshire or for any other area be able to veto a direction using his or her powers? Presumably that will be the case if it is a voluntary direction because that is my understanding of what “voluntary” means. What if it is not? What are the implications if the chief officer of police accepts a voluntary direction but his or her police and crime commissioner says, “No, I do not think that is in the interests of our local community, which I am elected to defend”? How is that going to be resolved? Who will be responsible under those circumstances?

Of course, the Government have got a let-out clause, as you would expect. I am sure the Minister is aware of paragraph 30 of Schedule 3, which gives the Home Secretary the power to amend the requirement to get prior consent before issuing directions. So we are actually being told that this is not going to be voluntary but there will be this power to dispense with the requirement to have prior consent. I suggest that this is going to create more conflict and more difficulties. Again, perhaps it is not very helpful that the detail has not yet been worked out.

This situation is made all the stranger when you observe that this new agency seems to have virtually no governance arrangements. The director-general reports and is accountable to the Home Secretary, who is in turn accountable to Parliament. There is no board; there are no non-executives; there are not even a few token elected police and crime commissioners sitting in that structure perhaps to provide some coherence with the expressed wish of the local electorate about police and crime priorities. There is no mechanism for scrutinising what is happening. Even the elected police and crime commissioners—which some of us were not hugely enamoured of—had these scrutiny arrangements created within the local authority structure. There is no parallel here.

Of course, the legislation contains promises that the director-general will be operationally independent, but what will that amount to in practice? How will it be enforced, and who is going to scrutinise that operational independence in the absence of any of those governance structures? Let us be clear: operational independence is not all that it might appear or be cracked up to be. It certainly does not apply to policing equipment. I suspect that most chief officers of police would think that their choice of equipment is very much part of their operational decision-making. I do not personally always agree with them on that, but paragraph 1 of Schedule 4 allows the Home Secretary to make regulations on the use of specified equipment and the NCA director-general will be required to comply. There is not much operational independence there. This is the Home Secretary, to whom he or she is accountable, saying, “You will or will not use this type of equipment”. That hardly sounds like operational independence to me.

Then there are the very strange provisions under paragraph 4 of Schedule 5. I am sure that the noble Lord, Lord McNally, will explain to us precisely why these are here. Paragraph 4 creates an advisory panel; a new quango, if you like—from a Government who promised us a “bonfire of the quangos”—and what is this new advisory panel going to do? It is going to give advice to the Home Secretary on whether the director-general has sufficient training to carry out his operational powers. I wonder where they dream up things like this—which cellar in the Home Office is responsible for thinking up new committees to do this sort of thing.

This proposal is certainly not a carry-over from the legislation that created the Serious Organised Crime Agency, because it was not thought necessary to have an advisory panel to decide whether or not the director-general of the Serious Organised Crime Agency had the necessary training to carry out their operational functions. So why is it here? Is it because the Home Secretary is planning to replace the current director-general with an individual whose qualifications are so questionable that a panel is needed to test them? That is as may be, but paragraph 5 explains how the Home Secretary can ignore the advice of that panel under any circumstances.

We have to question what model of organisation was used for devising the governance structures for the National Crime Agency. The best example of that, one with which the Home Office is intimately familiar, is the relationship between the Home Secretary and that paragon of effective service delivery, the UK Border Agency. That relationship has worked so well in recent months, between the Ministers and the people with executive responsibility of the agency concerned—two impossible demands before breakfast and the agency, of course, has to comply.

Finally, I will say a word about Clause 2, which allows the Home Secretary by order—admittedly subject to the super-affirmative procedure—to add counterterrorism to the functions of the National Crime Agency. I have to question whether a decision of that magnitude should properly be done simply by order. Let us also be clear: if counterterrorism becomes part of the functions of the National Crime Agency, it will totally transform the National Crime Agency. This body, that has taken two years in gestation merely to talk about a series of organisational silos spatchcocked together, will suddenly have spatchcocked onto it an even larger organisation completely distorting and changing the priorities.

As the noble Lord, Lord Condon, said, it may or may not make sense ultimately to have counterterrorism as a function of a national agency of that form. However, having been involved in the convoluted discussions to get the current structure in place, I think you have to be very clear about the case you are making before you embark on those changes and very clear about why you want to go ahead with them. The experience in other countries—according to the FBI, for example—is not always a happy one in terms of relationships with local forces regarding counterterrorism. There is a real danger of divorcing a counterterrorism elite squad from ordinary policing, not only in terms of intelligence but also in managing community relations following operational decisions.

I am sure the intentions of the Bill are fine. The Government had two years to move from intentions to detailed proposals but in those two years we have yet to see the fruits of their labour and to understand exactly how these new arrangements are intended to work.