Crime and Courts Bill [HL]

Lord Rosser Excerpts

Monday 18th June 2012 Lords Chamber

Debate on whether Clause 2 should stand part of the Bill.

[Lord Rosser]

My Lords, Clause 2 modifies National Crime Agency functions. It enables the Secretary of State by order to make provision about National Crime Agency counterterrorism functions and, in particular, to make provision conferring, removing or otherwise modifying such functions. It also provides for such changes to be subject to the super-affirmative procedure, which is referred to in Schedule 16. This is an important issue about who should be responsible for counterterrorism activity, which the Metropolitan Police is currently involved in. That organisation has considerable expertise in this field. There would have to be a strong case to move such responsibilities away from the Metropolitan Police or, indeed, to move them away from the National Crime Agency if such responsibilities rested with that body.

The Government clearly recognise that this is a sensitive issue because, having decided to make changes to National Crime Agency counterterrorism functions by order, they have proposed that the super-affirmative procedure should apply. The super-affirmative procedure is a less comprehensive procedure than primary legislation. Changes in the responsibility for counterterrorism and changes to the structure for meeting that threat should not be easily or quickly made without the full and proper consideration that can be given by Parliament through primary legislation. Primary legislation enables a change in the law to be considered in detail and amended through consideration in Committee and on Report. The Government cannot stop that happening under current practice and procedures but, under the super-affirmative procedure, that will not be the case, as even the more limited procedure for considering government proposals in paragraph 4 of Schedule 16 will not apply if the Government are able to use their effective majority in each House to approve their draft order without even going through the procedure in that paragraph.

We are talking about an issue of substance and concern: where responsibility for counterterrorism should lie. It should not be dealt with by the Government by order, super-affirmative or otherwise; it should be open to the normal and full parliamentary procedure for approving, amending and making changes in statutory arrangements—namely, through primary legislation after full debate, with the Government being compelled to accept the Bill if and as amended by Parliament.

This matter has been considered by two committees. I imagine that until today the Minister was probably not unhappy with the situation, since the committee report that we then had in front of us was that of the Delegated Powers and Regulatory Reform Committee. Its view was:

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

However, this is not just about adding to a statutory body’s function; it is also potentially about taking it away from another body, in this case the Metropolitan Police. Nor is this any function; it is the counterterrorism function, on which the lives and security of the people of this nation depend.

We have now seen the report of the Constitution Committee, which has taken a rather different line. It refers to the fact that Clause 2 concerns the possible future extension of the National Crime Agency’s remit into counterterrorism and points out that currently the counterterrorism command of the Metropolitan Police has the lead national role in counterterrorism policing. The committee goes on to point out that Clause 2 would give the Secretary of State an enabling power,

“to ‘make provision conferring, removing, or otherwise modifying’ NCA counter-terrorism functions”.

If that was applied,

“the Home Office would be in a position to have the option of assigning or transferring relevant functions to the new agency”.

The Constitution Committee has described the enabling power in Clause 2 as,

“an order-making power of the ‘Henry VIII’ type, so empowering the minister to ‘amend or otherwise modify this Act or any other enactment’”.

Those words are found in Clause 2(4), where the Bill states:

“An order under this section may amend or otherwise modify this Act or any other enactment”.

It is indeed a wide-ranging power. The Constitution Committee comments on the proposal in respect of the super-affirmative procedure and says:

“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.

The committee says that its approach to Henry VIII clauses,

“is based on the constitutional principle that it is for Parliament to amend or repeal primary legislation. The use of powers allowing amendment or repeal of primary legislation by ministerial order is therefore to be avoided, except in narrowly-defined circumstances. A departure from the constitutional principle should be contemplated only where a full and clear explanation and justification is provided. For assessing a proposal in a bill that new Henry VIII powers be conferred, the Committee has adopted a two-fold test”.

That test is:

“Whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill, and, if so, whether there are adequate procedural safeguards”.

The committee goes on to say:

“We are not persuaded that clause 2 passes the first test. The subject-matter of the proposed order-making powers—the allocation of functions and attendant responsibilities and accountabilities of counter-terrorism policing—is of great importance and public interest. The House will wish to consider whether the constitutionally appropriate vehicle is primary legislation”.

We agree with the views of the Constitution Committee, which was not persuaded that Ministers should have the power to change the statute book for the specific purposes provided for in this Bill in respect of the allocation of functions and attendant responsibilities and of the accountabilities of counterterrorism policy. We are opposed to the question that Clause 2 should stand part of the Bill.

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

My Lords, I hope that I can respond to the noble Lord’s points. I agree with him that this is an important issue, which we need to take very seriously. The noble Lord raised two questions: should counterterrorism move to the agency and, if so, how? They are two distinct questions and we want to consider them in due course. I will consider them in that manner. He also feels that it is a matter on which there should be a full debate in Parliament, relating to the second question: “If so, how?”. I have to say that this is possibly not the best example of such a debate. As the noble Lord made those expressions immediately after dinner, perhaps he felt some embarrassment over what an empty House we have as we discuss what I, like him, consider a very important issue to which I hope we will do justice. We might have to come back to it at a later stage because of its importance.

As the noble Lord knows, the functions of the NCA have been drafted in fairly broad terms to ensure that it is able to tackle all the crimes in which organised crime groups are involved. However, it will also be important for the agency to be able to react quickly to any changes in the threat picture. In particular, careful consideration has been given to how best to future-proof—an expression I do not particularly like, but it is quite useful here—the National Crime Agency for a potential role in counterterrorism. The Government have been clear that there will be no wholesale review of the current counterterrorism policing structures in England and Wales until after the 2012 Olympic and Paralympic Games and the proper establishment of the NCA. It is only then that it will be right to look at how counterterrorism policing is co-ordinated across England and Wales and to decide where it is appropriate for national responsibility to sit. Such a review should sensibly consider whether the National Crime Agency might play a role and, if so, what it might be.

I think that the Home Affairs Select Committee agrees with us. In its September report, New Landscape of Policing, it said:

“We agree with the Government that responsibility for counter-terrorism should remain with the Metropolitan Police until after the Olympics, not least because the National Crime Agency will not be fully functional until the end of December 2013”.

It went on:

“However, we recommend that, after the Olympics, the Home Office consider”—

I am very grateful that it used the word “consider”—

“making counter-terrorism a separate command of the National Crime Agency: there should be full co-operation and interaction between the different commands”.

I give an assurance that any decision that we make will be made after that time and will be considered very carefully. It is not a decision that we need to make at this stage.

I move on to the order-making power, which looks very drastic. It is a Henry VIII clause. I remember being introduced to Henry VIII clauses by my noble kinsman Lord Russell, since deceased, who was the first to spot their increasing use by the previous Government—it was a long time ago—when we were trying to expand the use of these things gradually. They should rightly always be looked at with very great care by all Members of both Houses of Parliament. It is quite right that Parliament should do these things in the proper way.

Clause 2 provides an order-making power so that the Secretary of State can confer, remove or otherwise modify the functions of the NCA in relation to counterterrorism. The order-making power is limited to changing the functions of the NCA. The noble Lord again got very worried about Clause 2(4), which states:

“An order under this section may amend or otherwise modify this Act or any other enactment”.

Most simple lawyers, such as me or, possibly, the noble Lord, Lord Beecham, would immediately assume that that meant anything in the world, that we could do what we wanted and that this was a wonderful thing. I am advised by those who are much greater than me and are not just simple lawyers that, if you read the clause in full, subsection (4) does not give that power. Because this has to be taken as a whole, the power is confined to counterterrorism functions and it is only on those that the Secretary of State could act. Having said all that, I accept that it is important to address these issues.

--- Later in debate ---

[Baroness Hamwee]

I wonder whether we have fallen into the trap of seeing this matter through the lens of parliamentary procedures. However, there is another way of looking at it—namely, looking at how the NCA actually operates. If we are undertaking legislation setting up a new agency, which is not designed from the start to deal with counterterrorism—we must assume that that is the case, and I do not expect the Minister to respond to this as I am putting it rather rhetorically—should we not let it be formed, see how it operates and consider the addition of a very serious function when we know something more about how it is functioning? As I say, we are inevitably looking at this in terms of the way we operate, but we have left out that rather serious consideration.

[Lord Rosser]

My Lords, I thank all noble Lords who have taken part in this debate and thank the Minister for his response. It is clear that the Government are seriously thinking about making this change although I accept that the Minister has said that no final decision has been made. However, it is clear that the Government are seriously contemplating this change; otherwise, they would not have included this clause in the Bill. If the Government have reached the stage of seriously contemplating the change, although I accept that no final decision has been made, as I said, the odds are probably on the Government making that change; otherwise, they would not have gone so far as to put this clause in the Bill.

However, as I said, this is not just about adding to functions, which is how the Delegated Powers and Regulatory Reform Committee looked at this matter; it is also about taking those functions away from a body that has had them for some time and has expertise in that field. The Government may be able to make out a strong case for doing so, and I would not want my comments to be taken as meaning that I have decided that they cannot make out a strong case for making the change. Perhaps they can; we will have to wait and see. However, the issue concerns what is the appropriate way in which the matter should be dealt with. Should it be dealt with on the basis of a super-affirmative order, which restricts the amount of debate and discussion which takes place, or should it be dealt with on the basis of primary legislation? If no final decision has been made—and I accept what the Minister says—then clearly this matter could be left and be dealt with in further primary legislation once a decision is made to change the present arrangements.

The Minister addressed that point in part. I may have written down incorrectly what he said and, if I have, I apologise. I wrote that he said that primary legislation is a lengthy process and quite difficult. However, in a parliamentary democracy that does not seem to be a very good argument for not making a change of this magnitude through primary legislation. Saying that primary legislation is a lengthy process and quite difficult sounds like a plea that all Governments of whatever colour have probably made over the years. However, as I said, that is not an argument for dealing in this way with an issue of this magnitude and importance.

The Minister referred to Clause 2(4), which states:

“An order under this section may amend or otherwise modify this Act or any other enactment”.

I had not assumed that it extended beyond counterterrorism but, even though it relates purely to counterterrorism, the fact that:

“An order under this section may amend or otherwise modify this Act or any other enactment”,

is still a fairly extensive power.

I sincerely hope that the Government, through the Minister, will rethink this issue, although at the moment the Government clearly take the view that the super-affirmative procedure is appropriate. At this stage, I conclude my comments by again referring to the Constitution Committee, which said:

“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.

I hope that the Minister and the Government will reflect on that. In the mean time, I do not intend to pursue my opposition to Clause 2 standing part of the Bill.

Clause 2 agreed.

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[Baroness Hamwee]

I have also tabled Amendment 65 in this group, which is essentially consequential on Amendment 26. Amendment 26 would make the NCA subject to the Freedom of Information Act. I know that this is a matter that Ministers have considered very carefully, and they have taken the view that so much information would be exempt under the Act that it is more straightforward not to bring the NCA within the scope of the Act.

I do not intend to say a great deal at this stage, because it is really for the Minister to justify the exclusion of the NCA rather than for me to justify its inclusion. I appreciate that there are important provisions in the Bill requiring the director-general to publish information and material, including the annual report and the Secretary of State’s laying of the annual report before Parliament, but we will not know what the director-general and the Secretary of State have chosen to omit. If one makes a freedom of information request, the very fact of the recipient relying on an exemption sometimes gives some sort of clue, and the override regime provides for the application for a decision by the Information Commissioner and an appeal to the tribunal.

However many reports the director-general and the Secretary of State are required to publish, the public can only react to them. They cannot ask questions. Members of Parliament can ask questions and instigate debate, but in some cases that may be unnecessarily cumbersome and a bit less incisive. The freedom of information regime gives a proactive tool to the citizen. I remain to be convinced—I look forward to being convinced—that it is appropriate that that tool should not be available to the citizen in the case of the National Crime Agency. I beg to move.

[Lord Rosser]

Our Amendment 66 qualifies the National Crime Agency exemption to cover only those functions subject to exemption prior to 1 April 2012, which I believe was the date on which the NPIA functions were transferred to SOCA. Schedule 8 provides that the NCA will be exempt from freedom of information legislation. However, the functions of the NPIA and the UK Border Agency, which the Bill proposes to be covered by the NCA, were not previously exempt from the Freedom of Information Act. As yet, we have had no real explanation or justification for that exemption, especially as an extensive exemption regime already exists under the Freedom of Information Act.

SOCA, of course, is exempt from the operation of the Freedom of Information Act, but, as I said, as the National Crime Agency’s functions extend beyond those undertaken by SOCA, so the extended exemption provided for in the Bill is significant and needs justification. Police, immigration services and customs are not exempt and the National Crime Agency will effectively be covering the work of these agencies, so there must be an argument for not exempting from the operation of the Freedom of Information Act additional functions taken on by the NCA from the NPIA and the UKBA that were not previously exempt from the Act.

--- Later in debate ---

[Lord Henley]

My Lords, I am grateful to my noble friends and to the noble Lord, Lord Rosser, for explaining what was behind their amendments—Amendments 26 and 65 from my noble friends and Amendment 66 form the noble Lord, Lord Rosser. Obviously, each is approaching this in a slightly different manner. The noble Lord’s party exempted SOCA when it was in government and brought it in. It wants to continue that exemption but do not want exemption for the other bodies that are coming in. I will deal with that in due course but—as always, using that word “balance”—it is a situation where we have to get these things right, and we have considered it very carefully.

I also want to make it quite clear to the noble Lord that we have a commitment—and the commitment is clear on the face of the Bill—that, as with SOCA, the NCA’s strategic priorities, annual plan and annual report will be published and will even go beyond that. We provide in Clause 6 that the director-general must,

“make arrangements for publishing information about the exercise of NCA functions and other matters relating to the NCA”.

We want to make it clear that we want to be open.

We considered very carefully whether the agency should also be subject to the Freedom of Information Act. As I have just made clear, we are all aware that SOCA is exempt from that and was exempt from it when it was created back in 2005. We concluded that it was right to maintain the status quo. To apply the Freedom of Information Act, as these amendments from my noble friends set out to do, would jeopardise the NCA’s operational effectiveness and ultimately result in lower levels of protection for the public. Like SOCA, the NCA will handle large volumes of operationally sensitive information, including intelligence material, which could have a detrimental impact on national security if released. Naturally, the Freedom of Information Act exemptions would apply to much of this material so that it could be protected from release, even if the agency were subject to FOI, but two key risks would remain.

First, the National Crime Agency will depend on the absolute confidence of its partners so that they share all the information they can with the agency. That is what will give the agency its superior natural intelligence picture, which in turn will enable it to pursue and catch the criminals who are the threat. If those partners believe that sensitive information held by the agency could be subject to public release, they are likely to be more reluctant to share that information with the NCA in the first place.

Secondly, intelligence shows that organised criminals are increasingly sophisticated in their methods and seek to exploit any avenues possible to further their criminal activity. There is the danger that they would be likely to use the Freedom of Information Act to acquire information about the NCA’s operational tactics, disrupt its operations and evade detection. While the exemptions might again apply to some of this information, that might not always be the case. This is obviously also a concern for the private sector. Organised criminal gangs could identify and then target vulnerabilities in private sector companies working with the NCA.

In short, the National Crime Agency’s operational effectiveness could, we believe, be materially weakened by application of the Freedom of Information Act, and it would be quite wrong to apply such a handicap to the new agency. I have to make that quite clear—and I suspect that the Opposition, in their attitude to SOCA and the Act that created it back in 2005, are in agreement on a large part of it. As I said, it would be wrong to place such a handicap on it. We are committed to ensuring that there is no loss of public transparency as a result of this decision, but we expect the agency to publish more information than its predecessors because of the open, proactive publication that it aims to adopt.

The noble Lord, Lord Rosser, seeks in his Amendment 66 to preserve the status quo by applying this exemption only to the functions of the agency that are being transferred from SOCA. There will clearly be precursor units joining the National Crime Agency, as I think he made clear, from the National Policing Improvement Agency and the Metropolitan Police, which are currently subject to the Freedom of Information Act. This amendment would provide that, in respect of those functions, FOI continued to apply.

I recognise the motivation behind the noble Lord’s amendment, and I am sure that he is sincere in it—I hope that he is just probing on these matters—but I am afraid that applying the Freedom of Information Act to some parts of the agency but not to others would simply not be a workable option. I do not want to make remarks about curate’s eggs, but this is one of those occasions when the curate’s egg principle really would work. You cannot have an egg that is only partially edible, and I have a sneaking feeling that what the noble Lord seeks on this occasion is the same.

The NCA is being designed as an integrated whole to ensure a free flow of information and intelligence between the central intelligence hub and all parts of the agency. This is essential so that it can effectively map, analyse and task action against serious, organised and complex crime. It would defeat the purpose of this integrated approach and seriously weaken the agency’s effectiveness—

[Lord Rosser]

My Lords—

[Lord Henley]

Can I just complete the sentence before I give way to the noble Lord? It would weaken the agency’s effectiveness if we had to cordon off individual parts of the agency that were subject to the Freedom of Information Act.

[Lord Rosser]

In the light of what the Minister has said, is it the Government’s case that all other agencies or bodies are either completely covered by or completely exempt from the Freedom of Information Act, and that one does not find in any other organisation or agency that some of the activities are covered by the Act and some are exempt?

[Lord Henley]

Without notice, I do not think that I can answer that question, but I will certainly look at it. The point that I was trying to make is that the noble Lord is trying to make something rather peculiar here: SOCA is completely exempt and is coming into the NCA, but other bodies that are not exempt are also coming in and they are then all one whole. In effect, he has created something that, when I mentioned the curate’s egg, I probably got exactly right. You cannot do it in a curate’s egg way because the whole egg will be bad once one part of it is bad. That is why we want to do it our way.

Obviously some bodies could be exempt, but on this occasion we think that it is right to create the new agency, as I am sure noble Lords opposite would have done if they were creating a new national crime agency to build on SOCA, just as they did with SOCA itself. It is for those reasons that we would like to preserve the exemption for SOCA for the new agency, and we think that what the noble Lord is suggesting is illogical or worse, and certainly not the right way to go about it. I hope that my noble friend will feel able to withdraw her amendment and that the noble Lord will consider carefully what I have said, particularly in the light of, as my noble friend and others might remember, the debates on the Bill that created SOCA back in 2005.