Lord Rosser
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(12 years, 5 months ago)
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Lord Rosser
“( ) Before making a request under subsection (1) the Director General must consult the Police and Crime Commissioner responsible for the totality of policing in that area.”
Lord Rosser
My Lords, the two paragraphs of Clause 5 to which these amendments relate provide for a chief officer of a UK police force or a UK law enforcement agency to perform a task if the director-general of the National Crime Agency requests, and for the director-general of the National Crime Agency to perform a task if requested to do so by a chief officer of a UK police force or a UK law enforcement agency. In respect of the references in the two paragraphs in question to,
“the chief officer of a UK police force”,
there is no reference to any requirement at all for the elected police and crime commissioner for that police force to be consulted by the person requesting that a task be performed, whether it be the director-general of the National Crime Agency or the chief officer of the commissioner’s own police force. So far there has been no explanation of or justification for this omission despite the fact that under the Police Reform and Social Responsibility Act 2011 a police and crime commissioner for a police area has a statutory duty to secure the maintenance of the police force for their area, ensure that the police force is efficient and effective and 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 functions.
The police and crime commissioner will also be responsible for issuing a police and crime plan, which is a plan that 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. Yet it would appear as though it is 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 on behalf of the director-general, and a task of unspecified magnitude, scope or significance in relation to resources or impact; or, alternatively, for the director-general of the National Crime Agency to perform a task on behalf of the chief officer of a UK police force—once again, of unspecified magnitude, scope or significance—without any apparent duty in either case to consult 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 the 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 to consult 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, or in support, of that police force, there should be a duty on the chief officer to consult the police and crime commissioner, who 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. In this context, it is worth pointing out, for example, that Part 4 of Schedule 3 to the Bill provides for the director-general of the National Crime Agency to make arrangements with the elected police and crime commissioner for the NCA to use facilities made available by that police and crime commissioner’s police force. In addition, the Secretary of State will also be required to consult PCCs in determining the NCA’s strategic priorities, and a similar requirement is placed on the director-general of the NCA in preparing its annual plan. However, there is apparently no requirement for the director-general to notify or consult PCCs on voluntary agreements with chief constables or before using their powers to direct chief constables.
I will obviously await the Minister’s response to all the points that I have made. I suspect he is not going to say that I have drawn attention to gaps in the Bill that the Government now intend to address. However, I wait to see whether the argument will be that responding to requests referred to in Clause 5 is, for some reason, nothing whatever to do with the elected police and crime commissioner, or whether the Minister is going to say either that there are other provisions in the Bill that would require the police and crime commissioner to be consulted—or his or her consent sought—or that there are provisions in the Police Reform and Social Responsibility Act 2011 that would require the commissioner to be consulted, or his or her consent sought, such as in paragraph 7 of Schedule 2 to that Act, which states:
“A chief constable may do anything which is calculated to facilitate, or is conducive or incidental to, the exercise of the functions of chief constable”,
and,
“That includes … entering into contracts and other agreements (whether legally binding or not), but only with the consent of the relevant police and crime commissioner”.
Alternatively, perhaps the Minister is going to say in response that the points I have raised will be covered in the elusive framework document that he has so far been unable to produce. I await his response. I beg to move.
Lord Thomas of Gresford
These amendments concern something I raised at Second Reading—the relationship between the National Crime Agency, the police commissioner and the chief constable of a police force. I still do not understand just how that is to be worked out. We tabled amendments suggesting a protocol, which we dealt with in Committee on Monday, and learnt that a protocol is something to be discussed as an operational matter once the Bill is in force. Does the police commissioner come anywhere within the architecture of the Bill, or is the commissioner in an outhouse? I just do not understand where he is.
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.
Lord Rosser
My Lords, this has certainly been an interesting debate. It seems to have created a certain amount of disagreement and passion. I think I heard the Minister say that my amendments would call into question the operational independence of chief constables. I find that rather odd coming from the government Front Bench since the reason for our opposition to police and crime commissioners in the first place was that that was one of the things that it would cause, so to have it thrown at us that we are putting forward amendments that would put at risk the operational independence of chief constables frankly seems a bit rich.
As my noble friend Lord Harris of Haringey said, it is not clear whether the Government’s principal argument is the use of the word “must” in the amendments. The Minister has said that if there had to be consultation with the police and crime commissioner, that would cause delay, and it might be an emergency. However, am I not right in saying that if the director-general approached a chief constable for a voluntary agreement and could not get it, the director-general would then have to go to the Secretary of State to get a direction authorised? Future amendments will tease out whether that is the case, but if it is, that would certainly cause a delay, which is apparently of concern to the Minister.
If there were provision for consultation with the police and crime commissioner, it might help the situation—although I do not think that this has occurred to the Minister—in that the police and crime commissioner might step in if there was any doubt or difficulty over the chief constable coming to a voluntary arrangement with the director-general.
I mentioned that there could be reasons why the police and crime commissioner might want to know, or why there should at least be a requirement for the police and crime commissioner to be consulted, if the chief constable wanted the director-general of the National Crime Agency to perform a task on their behalf, because there could be a difference of view with the police and crime commissioner about whether it was a matter that their own police force should be competent to deal with or whether it was helping to cover up a failing in their own police force. I notice that the Minister declined to address that point.
My noble friend Lord Harris of Haringey pointed out that if the difficulty is the use of “must”, one could produce wording that made it clear that if there were difficulties over time constraints, that requirement would not be there. I got the impression that when my noble friend put that point directly to him, the Minister rather backed off from the argument that there might not be time to consult a police and crime commissioner.
The whole basis of the Government’s approach appears to be as it was during consideration of the 2011 Bill, now an Act: that is, a belief that there is some clear guideline distinguishing what is operational—which in the Government’s view is the responsibility of the chief constable—and the powers of the police and crime commissioner. I am afraid that we did not think during the passage of the Bill, nor do so now, that this clear guideline, which it is obvious the Minister still believes in, exists. There will be grey areas as to whether a matter is solely operational or whether it impinges on the police and crime commissioner’s responsibilities, which are fairly wide-ranging. They include issuing a police and crime plan, which is required by law, to set out a number of matters relating to the policing of the area which the chief officer of police is to provide, and a duty to ensure the effectiveness and efficiency of the chief constable’s arrangements.
I also made the point, picked up on by my noble friend Lord Harris of Haringey, that the tasks that the director-general might require or ask a chief constable to perform are of unspecified magnitude, scope or significance in relation to resources or impact. I note that the Minister did not seek to assure us in his response that these tasks would be minor and would not have an impact on resources. I therefore assume that the point that I made is valid: that these are tasks of unspecified magnitude, scope or significance in relation to resources or impact. To believe that a chief constable could come to an arrangement with the director-general to perform a task that had a significant impact on resources without any consultation with his or her own police and crime commissioner being required in the Bill seems, as my noble friend said, to denigrate the position and authority of a police and crime commissioner.
I have made the points that I wish to make to the Minister. I hope that, despite his response, he will reflect further on our debate and ask himself whether it is really impossible to write into the Bill a provision that there must be—or if he does not agree to “must”, that there will in normal circumstances be—consultation with the police and crime commissioner. If he was prepared to consider that, the Government would save themselves potential difficulties in the relationships between a police and crime commissioner, the director-general of the National Crime Agency and chief constables.
Lord Rosser
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 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.
Lord Rosser
If the Minister believes that there are no circumstances in which the British Transport Police would fail to provide the assistance required, why does he need directions in the Bill at all on the basis that, presumably, any police force would provide the assistance required?
Earl Attlee
As I said, it is to provide a necessary backstop. When two negotiating parties know that one party will win at the end of the day, it is amazing how agreement is reached quite quickly.
Lord Rosser
I think the Minister has answered the point that I made. If he is arguing that about the British Transport Police, he does not need the provision in the Bill for any police force.
I want to clarify that I have understood correctly what has been said. What I have inferred—and I would be grateful if the Minister would confirm that I have understood it correctly—is that if the director-general makes a direction under Clause 5 that would require a chief officer of an England and Wales police force to perform a task, that direction does not require the consent of the Secretary of State, albeit that it would if it was in relation to the British Transport Police. Likewise, Schedule 3 provides that the director-general may,
“direct any of the following”,
including the chief officer of an England and Wales police force and the chief constable of the British Transport Police,
“to provide specified assistance to the NCA”.
While the approval of the Secretary of State would be required for a direction to a chief officer of an England and Wales police force, it would not be required for a direction to the chief constable of the British Transport Police. I simply want the Minister to clarify that I have understood what he said and that that is the distinction between Clause 5 and Schedule 3. I see the noble Lord, Lord Henley, nodding so I take it that what I have just said is a correct understanding of the position that the Minister explained.
I listened—frankly, I will wish to read it in Hansard—to the distinction between performing a task, which is referred to in Clause 5, and the director-general directing,
“any of the following to provide specified assistance to the NCA”.
Bear in mind that from the director-general’s point of view, if he can satisfy himself—or herself—that he requires a task to be performed by the chief officer of an England and Wales police force, he does not need the consent of the Secretary of State. Therefore, it might be quite tempting for a director-general to try to make sure that any direction that he gives comes under the heading of “performing a task”, rather than “providing specified assistance”. That is also what I have inferred from the Minister’s answer.
Earl Attlee
My Lords, I hope the noble Lord is not suggesting that the director-general would base an operational decision on bureaucratic convenience.
Lord Rosser
I am sure it would not be based on bureaucratic convenience. If he could satisfy himself that he was asking for a task to be performed, there would be less bureaucracy as he would not have to get the consent of the Secretary of State. Once again, I fear that there may be a view that there is a very clear divide between what could be defined as performing a task and what might be deemed to be providing specified assistance. I suspect that there will be grey areas over that in at least some cases.
I pointed out to the Minister that it was 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”.—[Official Report, 28/5/12; col. 974.]
I asked where in the Bill it says “exceptional circumstances”. I take it from the noble Earl’s answer that he agrees with me that the statement that the Bill provides for the director-general to be able to direct police forces in England and Wales in exceptional circumstances is not correct. Such wording does not appear in the Bill, although this was implied at Second Reading. In the light of that, I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
In relation to a previous amendment, I mentioned that we had put down Amendment 39 and that the discussion on Amendment 36 might clarify the issue that I wanted to raise on Amendment 39; namely, the distinction between the wording in Clause 5 to “perform a task” specified in the direction and the wording in paragraph 8 of Schedule 3 about providing,
“specified assistance to the NCA”.
I asked the Minister if my interpretation of what he had said was correct and he indicated that it was.
Lord Rosser
“( ) In the Police Reform Act 2002, leave out section 10(1)(g) and insert—
“( ) to carry out functions in relation to the National Crime Agency which correspond to those conferred on the Commission in relation to police forces by paragraph (2) of this subsection”.”
Lord Rosser
My Lords, these amendments deal with the inspections and inspection scrutiny arrangements for the National Crime Agency. Currently the Bill requires the inspection of the National Crime Agency by HMIC but gives the Secretary of State the discretion to decide whether it should also be subject to scrutiny by the Independent Police Complaints Commission. Amendments 57 and 58 change the word “may” to “must” so as to ensure that the actions of the director-general and all other National Crime Agency officers may be subject to the scrutiny of the IPCC. Amendment 56 adds the National Crime Agency oversight into the general functions of the IPCC.
It is not at the moment clear why the Government have chosen not to give the IPCC automatic scrutiny functions over the actions of National Crime Agency officers, especially considering the fact that the National Crime Agency will be performing many more functions than its predecessor and also because both SOCA and the MPA officers were subject to IPCC scrutiny. Presumably by leaving the decision up to the Secretary of State’s discretion, the Government envisage circumstances in which they do not believe it would be either appropriate or alternatively necessary for the behaviour of NCA officers to be subject to independent scrutiny by the IPCC. If that is the situation, it would be helpful when the Minister responds if he could give an indication as to what those circumstances are and what change the Government believe would be required for the Secretary of State to accept that regulations should be made conferring functions on the IPCC in relation to the exercise of functions by the director-general and other National Crime Agency officers. Alternatively, if the Secretary of State is to decide that the IPCC should not have responsibility for the scrutiny of National Crime Agency officers, then who will? I beg to move.
Lord Rosser
My Lords, it is in something of a state of shock that I stand here. I thank the Minister for his response and for accepting Amendment 57. He has set out his reasons for not thinking that Amendment 58 is appropriate and, as I understand it, has effectively said that Amendment 56 is actually addressed to other parts of the Bill and the 2002 Act. In the light of the Minister’s response, I take it that I am meant to agree the withdrawal of Amendments 56 and 58 and that Amendment 57 has been accepted.
Lord Henley
The noble Lord withdraws Amendment 56 and then moves Amendment 57.
Lord Rosser