Crime and Courts Bill [HL]

Lord Rosser Excerpts

Monday 18th June 2012 Lords Chamber

[Baroness Hamwee]

I wish to speak also to Amendment 3. These are both probing amendments.

Amendment 2 seeks to remove Clause 1(10) from the Bill. That subsection excludes prosecution from the NCA’s crime reduction function. Is the point simply what the NCA itself can do? If so, why cannot it prosecute on its own behalf? The crime reduction function is defined and includes activities to combat crime listed in Clause 1(11), which refers to prosecution. If the NCA cannot itself prosecute, how is it anticipated that the process will work? Common sense tells me how it will work but I would like to hear that from the Minister. Why cannot the NCA have the option of prosecuting instead of commissioning prosecution, as it were?

Amendment 3 seeks to understand what is intended by the activity of mitigating the consequences of crime. Of course, that is not something to which I am in any way opposed, but can the Minister expand on that? Is it expected that the NCA will work in partnership with the many organisations which deal with mitigating the consequences of crime such as the Restorative Justice Council and Victim Support? I was pleased but a little surprised to see that referred to and would be glad to have some flesh put on those bones. I beg to move.

[Lord Rosser]

My Lords, as the noble Baroness, Lady Hamwee, has explained, she is, as I understand it, seeking an explanation of why the National Crime Agency is precluded from pursuing its own cases. Presumably, the National Crime Agency would pursue only more serious and organised offences although there is provision in the Bill for NCA officers to become involved in dealing with any crime, so perhaps that is not necessarily the case. Subject to the Minister putting me right, I assume the Government consider that the Crown Prosecution Service would become involved in pursuing most cases. If I am right in thinking that, one advantage is that the Crown Prosecution Service is able to take an independent look at the evidence available to support a charge, and make a decision on whether there is sufficient evidence to put before a jury with a reasonable prospect of success, whether it is in the public interest to proceed and whether the charges being brought are the appropriate ones in the light of the evidence.

One can argue that where an agency or body which is the one that has investigated the case and produced and collated the evidence is also the one that makes the decision on whether the evidence is sufficiently strong to make the charge stand up, there is a possibility that that agency or body may be too close to the case and too involved to make the necessary judgments in an entirely objective manner. We will listen to the Minister’s response to the amendment moved by the noble Baroness, Lady Hamwee, and to the explanations that she is seeking. My only further comment is that independent agencies do not always seem to have a high reputation when it comes to pursuing cases successfully. Some might raise the Serious Fraud Office in that context.

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[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.

[Lord Henley]

My Lords, I thank my noble friends Lord McColl and Lady Doocey for bringing forward their amendments and for highlighting just what we are dealing with in bringing to the attention of the House the appalling crime of trafficking, particularly the trafficking of children. I underline the points made by my noble friend Lord McColl during the passage of the Protection of Freedoms Act. In saying so, I say to the noble Lord, Lord Rosser, that we are still awaiting the report from the Children’s Commissioner. The timing of that will have to be a matter for the commissioner herself, and I cannot give him any further assurance about timing at this stage.

I also thank the noble and learned Baroness, Lady Butler-Sloss, for her references; I think she was the first contributor to refer to the all-party group. I got rather confused as she referred first of all to a committee and then to something else, and I finally worked out that she meant the report from the all-party group, which came out only today—or was it a bit earlier? In due course there will have to be a response to that, and I very much hope that colleagues in the Department for Education with primary responsibility will lead on that.

I thank all noble Lords who referred to the work of CEOP in this field. I have visited that agency since becoming a Minister in the Home Office, and I am sure that other noble Lords have done so and know just what an effective job it does and how well it can do it. Again, I assure my noble friends and other noble Lords, as my noble friend Lord McNally did when he wound up the Second Reading of the Bill, that we believe that the NCA will have a key role to play in building on the existing arrangements for dealing with trafficking, using its enhanced intelligence capabilities and co-ordination functions to target both organised criminal gangs involved in perpetrating these crimes and others, wherever they are.

It is my job today to deal with the specific amendments, beginning with Amendments 3A and 3B moved by my noble friend Lord McColl, that deal with the functions of the National Crime Agency in Clause 1. I am satisfied that the functions set out in Clause 1—we must also refer to Clause 8—are sufficiently broad to encompass human trafficking. The important point that we need to deal with is whether we need a specific reference in the Bill to human trafficking, particularly in the light of what is available in Clause 8. I remind noble Lords that there are specific references in Clause 8(1) and (2) to Sections 11 and 28 of the Children Act, which make clear that the agency has to discharge its functions in a way that has regard to the need to safeguard and promote the welfare of children. We need to discuss whether we need to bring in my noble friend’s amendments or whether we have taken a sufficiently broad approach to the agency’s functions.

The broad nature of the functions is also critical to ensuring that the agency has the flexibility necessary to respond to the changing threat in future. One needs to be wary of taking an overprescriptive approach to the listing of specific crime types, as this amendment starts to do, which might undermine the approach that we have taken to the functions as set out in Clause 1. Amendment 3A then seeks to go further and add to the agency’s functions by placing on it a specific responsibility for ensuring that the UK meets its obligations under the human trafficking directive, to which I think my noble friend and the noble Lord, Lord Neill, referred. As I hope I made clear on earlier occasions—during, I think, the debates on the Protection of Freedoms Act—we are satisfied that we will meet the requirements and be compliant with that directive. Her Majesty’s Government have had discussions with the Commission about that matter.

I do not consider it appropriate for the agency to have the responsibility for ensuring that wider obligations are met. The agency should be combating human trafficking, not checking that other organisations—which there will be, on this occasion—are meeting their obligations. However, my noble friend is right to highlight the important obligations. Once again, although I am not persuaded of the need to add to the agency’s functions in this way, I do not wish to diminish the importance that the Government place on that directive or the obligations that it places on the United Kingdom.

Amendment 3B seeks to ensure that the functions of the United Kingdom Human Trafficking Centre and CEOP are included within the functions of the National Crime Agency. My noble friend set out the important role that these bodies have in tackling human trafficking. I repeat what other noble Lords have said, just as I said at the beginning, in underlining the valuable work that they do in this area. I categorically assure my noble friend that CEOP and the Human Trafficking Centre, both currently part of the Serious Organised Crime Agency, will continue their important work as part of the National Crime Agency in future.

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Moved by

[Lord Rosser]

7: Schedule 1, page 33, line 26, leave out sub-paragraph (1)

[Lord Rosser]

My Lords, this is a probing amendment. It deletes paragraph 5(1) of Schedule 1 which states:

“For the purposes of the discharge of NCA functions which relate to organised crime or serious crime, an NCA officer may, in particular, carry on activities in relation to any kind of crime (whether or not serious or organised)”.

These words are similar, but not the same, as those relating to SOCA in the Serious Organised Crime and Police Act 2005. Could the Minister explain the significance of the changed wording? On the face of it, the power in paragraph 5(1) of Schedule 1 could be very wide ranging, particularly in the changed world of the new and more powerful National Crime Agency, with the director-general able to direct chief officers of other forces to perform tasks, and in the world of elected PCCs. It would be helpful if the Minister could put on the record how the Government intend that power to be used by the new agency, and in what sort of circumstances and on what kind of occasions.

The functions of the National Crime Agency are set out in Clause 1 of the Bill and refer to combating organised crime and serious crime. Equally, there are references in that clause to combating,

“any other kind of crime”,

and combating,

“crime (or a particular kind of crime, such as organised crime or serious crime)”.

This indicates that the role of the more powerful and influential NCA could be wider than just organised and serious crime. Paragraph 5(1) of Schedule 1 suggests that the power of the NCA and its officers in relation to any kind of crime relates only to occasions when they come across such other crimes when they are involved in dealing with organised and serious crime. If that is the case, no doubt that will be the thrust of what the Minister will say when he responds. However, this clearly could be something of a grey area which presumably could mean National Crime Agency officers becoming involved in dealing with the kind of crime that might be a matter for other police forces rather than the National Crime Agency.

Who, then, will make the decision on whether a National Crime Agency officer should carry on activities in relation to another kind of crime when it is neither serious nor organised? Will it be for individual NCA officers on the spot to decide or the director-general of the NCA? Will the director-general decide but require the consent of the Secretary of State, or will it be a matter that can be undertaken only by NCA officers when there is prior agreement between the chief officer of the police force that would normally deal with such a crime and the director-general of the National Crime Agency?

There is a possibility that this particular provision in Schedule 1, allied to the provisions of Clause 1, could be used by the director-general of the new, more powerful and influential National Crime Agency to seek to extend his or her wings and influence. The director-general could take the view that a range of other crimes could,

“relate to organised crime or serious crime”,

and be addressed by the National Crime Agency and thus could and should involve National Crime Agency officers. It might well be that the Minister may say that this will not happen, but what is to stop it happening under this Bill? Bear in mind that the director-general of the new National Crime Agency has wider powers and responsibilities, including stronger powers of direction than have previously applied in relation to chief constables of other forces.

There is potential for friction between the National Crime Agency and police forces in England and Wales, particularly with elected police and crime commissioners on the scene, unless some very clear guidelines are provided on the kind of circumstances in which the powers of the National Crime Agency to become involved in dealing with any kind of crime, in addition to organised crime and serious crime, can and should be used. I hope that the Minister will be able to set out how the Government see this power in paragraph 5(1) of Schedule 1 being exercised by the new, more powerful and influential National Crime Agency and its officers under the terms of this Bill. I beg to move.

[Lord Henley]

My Lords, I am grateful to the noble Lord for explaining what lay behind his probing amendment. I hope that I will be able to set out what paragraph 5(1) of Schedule 1 is about. It makes it clear that the National Crime Agency can undertake the widest possible operational activity to maximise its impact on serious and organised crime. Clause 1 sets out clear expectations for the range of operational activity that it will be necessary for the agency to be able to undertake. Paragraph 5 goes further, making it clear that the agency can undertake operational activity,

“in relation to any kind of crime (whether or not serious or organised)”,

if it will ultimately deliver its crime reduction function. This includes disruption activity.

We are clear that the agency needs to be focused on national crime threats. That is why the crime reduction function has been drafted in the way that it has. This is not about interfering in local policing or taking over the work of individual police forces. Rather, the National Crime Agency will work with and support the work of local policing and police forces nationally to tackle crime that warrants a response beyond the boundaries of a local police force. It is also not about broadening the remit of the agency, but strengthening the ability of the police to respond to the serious and organised crime threats that face every community in the United Kingdom every day.

Criminal gangs have networks that can span from street-corner drug-dealing to the international importation of drugs and firearms. Therefore, it is important that the agency is able to take action against such gangs and other serious criminals along the whole spectrum of crime across which they can operate, from that very local level up to national and international levels. This amendment would therefore significantly curtail the effectiveness of the operational activity that the agency could undertake. It is right that the agency’s efforts should be concentrated on serious and organised crime, but the Committee will recognise that sometimes the most effective way of disrupting a crime network is to tackle the lower-level, seemingly less serious crime to have the greatest impact and stop the crime group operating. For example, an agency officer may want to use their powers to arrest a suspect for a possession-of-drugs offence to disrupt a much larger operation that involves a number of people in the supply of illicit drugs.

In all cases, the activity of the agency should be directed towards its core role of protecting the public from serious and organised crime. That is already written into paragraph 5. Where an agency officer is tackling crime that is not serious or organised, it must be to deliver the agency’s function of tackling serious and organised crime.

Finally, I point out to the noble Lord that there is a very similar provision in Section 5(3) of the Serious Organised Crime and Police Act 2005. The previous Administration accepted the need for such a provision. I appreciate that this is a probing amendment but I hope that the noble Lord will see that it is unnecessary and, in effect, a replication of what was there before. With those assurances and that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

[Lord Rosser]

My Lords, I thank the Minister for his response, which has clarified the Government’s intentions behind the wording “any kind of crime”. I referred to the fact that there is similar wording relating to SOCA in the Serious Organised Crime and Police Act 2005. I commented that it was not the same wording as appears in the Bill and asked the noble Lord to explain the significance of the change, which he has not done. Maybe the wording has been changed for a good reason but at the moment I am not clear as to what that is.

I am not entirely surprised by the Minister’s response. I understand his point that, in addressing serious and organised crime, there may come a need or a necessity to address other kinds of crime in the course of those investigations. In moving the amendment and asking those questions, I was simply pointing out that it depends on the extent to which this power is used and how it is used. Although I posed the question, I am still not clear as to what the Government’s intentions are in respect of who will decide whether the powers in paragraph 5(1) of Schedule 1 should be used. I asked whether it would be the NCA officer on the ground, the director-general or the director-general with the clearance of the Secretary of State, or whether it would be a matter for agreement between the director-general and the chief constable of another force. I have not had a specific response to that point either. Does the Minister wish to intervene?

[Lord Henley]

I will intervene if the noble Lord will give way. On his point about the comparison between the 2005 Act and the Bill, I will look carefully at what he said. I do not have the wording of the 2005 Act in front of me and it does not stick firmly in my head. However, I am sure that there are very wise words in the Act. Our intention was to replicate what was there. If there are differences in the wording, there is no intention to do anything different. The intention was to achieve the same object. It might be worth my looking again at the precise wording of the 2005 Act and what we have here and writing to the noble Lord, just to make it clear that our intention and that of the draftsman—remember that over seven years the style of drafting will change—was to achieve the same things. Is the noble Lord happy to accept a letter from me on that matter?

[Lord Rosser]

Yes, I would certainly accept a letter. I do not wish to imply that there are major differences in the wording but it is not precisely the same. However, if the intention is that it should mean the same, that is fine. If the Minister could write to me, saying that, it would clear up the matter. In the light of the Minister’s reply, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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[Baroness Hamwee]

My Lords, I can be extremely brief on this. Paragraph 13 of Schedule 1 provides for secondment to the NCA. My amendment would allow for secondments both ways. I felt that it was an issue worth raising because I think that secondment can often be extremely helpful to both organisations involved. It may be that the Minister will tell me that it is not necessary to provide for NCA officers to be seconded to a UK police force because that would be covered by some other existing police legislation. If it is covered, that is well and good; if it is not, why not? I beg to move.

[Lord Rosser]

My Lords, as the noble Baroness, Lady Hamwee, said, this amendment makes provision for National Crime Agency officers to be seconded to a UK police force, as well as for persons to be seconded to serve as National Crime Agency officers. I would like to raise two points on this paragraph in Schedule 1. It refers to “persons” being seconded to the National Crime Agency to serve as National Crime Agency officers. There is no qualification before the word “persons”. Could it literally be anybody and still be within the terms of the statutory provisions of the Bill? I ask that because paragraph 7(2) of Schedule 1 says:

“A person may not be appointed as Director General unless the Secretary of State is satisfied that the person—

(a) is capable of effectively exercising operational powers; and

(b) is a suitable person to exercise operational powers”.

In other words, if the Secretary of State makes an appointment that stretches credibility, and the Secretary of State could have satisfied himself or herself on the points referred to, presumably the appointment could be challenged under the provisions of the Bill. There is, however, no apparent requirement on the part of the director-general to satisfy himself or herself on any point in relation to “persons” seconded under the Bill as it stands, or indeed to National Crime Agency officers seconded under the terms of the amendment, although one could take the view that if they were existing National Crime Agency officers there ought not to be a problem.

Can the Minister say why there is no requirement in the sub-paragraph that we are discussing for the director-general to have to satisfy himself or herself that any person seconded to the National Crime Agency has to be, for example, appropriately qualified, bearing in mind that the Bill lays down requirements on the Secretary of State over the appointment of the director-general?

Finally, can the Minister say what the definition is of a National Crime Agency officer? Is it anyone employed by or working for the National Crime Agency, or does it refer only to certain kinds of posts or activities being undertaken within the National Crime Agency?