Lord Rosser
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Crime and Courts Bill [HL]
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Lord Rosser
“( ) A person may not be appointed as Director-general under sub-paragraph (1) unless that person has been approved by the relevant select committee of Parliament.”
Lord Rosser
My Lords, this amendment would require pre-appointment scrutiny of the director-general by the appropriate parliamentary Select Committee, presumably the Home Affairs Committee.
As we understand it, the Government consider pre-appointment hearings to be best practice for major public appointments. The coalition agreement contains a specific commitment to,
“strengthen the powers of Select Committees to scrutinise major public appointments”,
as part of improving government transparency. Yet the Government have not considered this approach relevant for the office of director-general of the National Crime Agency, a role that is to be much more powerful than the chief executive of the Serious Organised Crime Agency, with the NCA’s increased responsibilities and the absence of any governance structure, as we have just debated.
In Committee, the Government said:
“We accept that there is a place for departmental Select Committees to undertake pre-appointment hearings for certain key public appointments but we do not believe that this is one of them”.—[Official Report, 18/6/12; col. 1597.]
The Government argued that pre-appointment scrutiny by the relevant Select Committee was not justified because the Home Secretary was accountable for public protection and the progress made by the National Crime Agency. Yet the occupant of the post of director-general of the NCA will have considerable powers and, in effect, will be the head of the one national crime-fighting agency in the country dealing with serious, high-profile and organised crimes. In addition, the Government are also considering giving the NCA and its director-general responsibilities for counter- terrorism. The occupant of the post of director-general will also have the power to direct chief officers of other police forces throughout England and Wales to carry out specific tasks.
Under Schedule 1, a person need not be an NCA officer before appointment as the director-general. The only requirement is that a,
“person may not be appointed as Director General unless the Secretary of State is satisfied that the person … is capable of effectively exercising operational powers and … is a suitable person to exercise operational powers”.
That is a somewhat subjective judgment, with nothing specific about proven skills or experience. The reputation and credibility of the NCA is going to be determined to a significant degree by the effectiveness and ability of the director-general, who will have responsibilities directly affecting the safety and security of the people of this country and will have operational independence but without the support or protection of a board, unlike the Serious Organised Crime Agency, between the director-general and the Secretary of State to help to ensure that that is the case.
This post is a new one with responsibility for potentially very sensitive issues, including what could be sensitive issues with political implications. The occupant will need to be strong enough to ensure that operational independence from government is a reality and to withstand any pressures to have too cosy a relationship with his or her political masters. To leave the matter solely in the hands of the Secretary of State without any other parliamentary approval being required would not seem the appropriate step in relation to this post, bearing in mind the nature and responsibilities of it. This must surely be one position for which there is a strong case for pre-appointment scrutiny by the relevant parliamentary Select Committee. I beg to move.
Baroness Hamwee
My Lords, I have a difficulty with this amendment because it seems to seek not pre-appointment scrutiny, as the noble Lord has described it, but appointment veto. Pre-appointment scrutiny, questioning a proposed candidate but then leaving it to the appointer to take the final decision in the light of that scrutiny is something which, as the House will know, I have advocated in other contexts. For very senior and important positions I think that that is very desirable. However, I do not go so far as wanting to see Select Committees approving appointments such as this. Although the noble Lord’s speech was very persuasive, what he is seeking the House to agree to is something even more than he was arguing for.
Lord Taylor of Holbeach
My Lords, I agree with my noble friend that this amendment seeks to make the appointment of the director-general of the NCA subject to the approval of the Home Affairs Select Committee. This is a step up from the amendment tabled by noble Lords in Committee, which provided only for consultation with that committee.
As my noble friend Lord Henley outlined during the Committee stage, the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is right, therefore, that she is responsible for appointing the director-general. Of course, there is a place for departmental Select Committees to approve certain key public appointments, but we do not believe that this is one of them.
In the Government’s June 2012 response to the House of Commons Liaison Committee’s report on public appointments, we indicated that,
“there are some posts where it is appropriate for Parliament to exercise a formal control over appointments”.
However, the response went on to say:
“This is exceptional and where the remit is associated with the functions of Parliament”.
That is not the case with this appointment, as it was not the case with the appointment of the director-general of the Serious Organised Crime Agency. The Home Affairs Select Committee will, of course, have a role in scrutinising the work of the National Crime Agency, in the same way as it has scrutinised the work of SOCA, and I believe it is in this capacity that it can best contribute. Indeed, Keith Bristow gave evidence to the committee as recently as 16 October, and I expect that he will be frequently before that committee to be challenged on how the NCA is performing.
The Government do not agree to Select Committees having an effective veto on a wider range of appointments and for that reason I ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for his response. He said that he does not agree with the Select Committee having what he described as the power of veto over an appointment. I do not exactly have the impression that the Minister is in favour of the Select Committee having any say in, or even being able to express any view on, the appointment to the post of director-general. I do not think the issue with the Minister is over the type of role the Select Committee should play but rather of it having any role in relation to the appointment of the director-general of the National Crime Agency, even to be able to interview the individual and to express a view to the Secretary of State on the appointment that he or she wishes to make. We need to be clear about that. This Government’s opposition is in fact to any involvement of the Select Committee in the appointment process for this post, unless the Minister wishes to stand up and contradict me over that. No, he is not contradicting me, so I think I have got it right. It is not about the wording of this amendment, and what the Minister has described as a power of veto, it is about any Select Committee involvement at all.
One can only say again that that is contrary to what is in the coalition agreement. Of course I can understand why the Minister is not too happy about the coalition agreement, because it provides a specific commitment to,
“strengthen the powers of Select Committees to scrutinise major public appointments”.
I should have thought that this was a major public appointment. There are real dangers over the occupant of this post being under pressure from the Secretary of State. The appointment is going to be made by the Secretary of State apparently without reference elsewhere. This individual will not have the protection of any sort of board between this individual and the Secretary of State. Clearly, everyone will want to be sure that the person appointed to this post is the kind of individual who will be capable of dealing with potentially very sensitive issues, including ones that may have political implications, and will not allow themselves to be in any way influenced by the Secretary of State in the decisions they make in what should be an operational matter. I should have thought that that was something that the Select Committee could at least seek to satisfy itself would be the case before the appointment was finalised. The Minister said that the Select Committee will have a role in scrutinising the work of the National Crime Agency. That will be a bit late when it comes to looking at what the director-general is doing because the director-general by then will have been appointed.
I note the Minister’s response. I cannot say that I am entirely surprised at the response that he has given on behalf of the Government, but I regret that response. I beg leave to withdraw the amendment.
Baroness Hamwee
Clause 4, which has the heading “Operations”, tells us that the director-general must have regard to strategic priorities, the annual plan and the framework document—all matters to which your Lordships have referred—and that before the beginning of each financial year the director-general must issue an annual plan setting out how he intends the functions to be exercised during the year. The importance of clarity about strategic priorities and other matters has been raised very clearly at every stage of the Bill by all sides, including by Ministers. The annual plan—a prospective document, if I can put it in that way—will tell us what is planned for the following financial year.
My amendment—it is a small amendment, following a matter which I raised at the previous stage—is intended to ask the Minister to give the House an assurance about how strategic priorities which have changed during the year will be taken into account. The amendment simply proposes that if the Secretary of State determines any variation in the strategic priorities, she will lay a report before Parliament setting out the variation. I beg to move.
Lord Rosser
My Lords, we have two amendments in this group. They would remove the requirement for the director-general to seek the consent of the Secretary of State and others to the annual plan, as currently provided for in the Bill. Instead, the requirement would be on the director-general to consult so far as concerns the Secretary of State and others. Although we obviously agree that the Secretary of State should retain ultimate strategic oversight of the National Crime Agency and determine the strategic priorities, it is vital to preserve the National Crime Agency’s operational independence from the Government. We understood that that is the Government’s intention, too.
Yet while the director-general is to set the annual plan for the operation of the National Crime Agency’s functions in pursuit of the laid-down strategic priorities, he or she will still be obliged to seek the consent of the Home Secretary before publication of this operational document. Such consent is not currently required, for example, by the Serious Organised Crime Agency. The director-general will be under a statutory obligation to ensure that the annual plan meets the strategic priorities determined by the Secretary of State. Bearing that in mind, why is it necessary for the director-general also to have the consent of the Home Secretary for what is surely an operational document?
That leaves the way open for interference by a Secretary of State in operational matters if their consent has to be obtained before publication of that annual plan, which sets out how the director-general intends to deliver the laid-down strategic priorities. I am speaking to my amendments on the basis of those points. I hope that the Minister will be able to address the specific points that I have made and explain why it is felt necessary that the Secretary of State should have to consent to the annual plan rather than be consulted on it by the director-general.
Lord Rosser
“(c) may be made only if the Director General has first notified the Police and Crime Commissioner responsible for the totality of policing in that area”
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.
Lord Rosser
I thank the Minister for his response and also thank my noble friend Lord Harris of Haringey for his most effective contribution to the short debate. In moving my amendment, I made the assertion that the kind of task that the director-general might be seeking a chief constable to perform on behalf of the director-general could be one of unspecified magnitude, scope or significance in relation to resources or impact. I note that, in the Minister’s response, he did not seek to give any assurance that these tasks would be minor or not have an impact on resources. I therefore assume that the point that I made, that these tasks could be of considerable magnitude and have a significant impact on resources, was a valid one. I am quite sure that if it was not, the Minister would have been very quick to tell me that I had got it wrong.
Bearing in mind his silence, or his lack of response to the claim that I made, if the kind of task that the director-general of the NCA might seek to get an agreement with a chief constable to perform could have a significant impact on resources and their use, it seems a bit of a mystery to say that there would be no requirement to even first notify the police and crime commissioner, when clearly that could have an impact on the objectives that that police and crime commissioner has set. The Minister has not explained in his response why that should not be the case, bearing in mind that he has not contested the point that these arrangements and agreements between the director-general and the chief constable could have an impact on resources and that they would not be merely covering minor issues. The Minister has sought to say that these agreements might be things that do not cover anything of great significance on a day-to-day basis, and to ask why there would therefore be a need to notify the police and crime commissioner. What he has not refuted, however, is that the agreements that the director-general of the NCA might seek to make with a chief constable could have a significant impact on resources. Yet, even so, the Minister resists the amendment, which is only to say that the police and crime commissioner should be first notified.
I appreciate what the Minister said about the framework document, but that does not cover all the issues raised in this amendment. It does not cover all the agreements that might be reached between the director-general and a chief constable: far from it. It does not cover them all and the Minister has not really given a proper explanation as to why that is the case. However, I have to make a decision on whether to pursue these amendments or otherwise. I am disappointed with the responses; I do not think that we have had a complete answer to the legitimate issues that my noble friend Lord Harris of Haringey and I have raised, but there it is. We cannot force a Minister to respond to the arguments that are put forward. In view of that, I beg leave to withdraw my amendment.
Baroness Hamwee
My Lords, when one hears the Lord Chairman remind the House of the point of pre-emption, one feels one should start the speech with, “I wish”.
This group of amendments deals with payments between the NCA and police forces in the event of tasking, and Amendment 28 is about how the payment is determined. Paragraph 29(1) provides that if the parties cannot agree on the amount to be paid then it is a matter for the Secretary of State to determine. I had a similar amendment at the last stage, and the noble Earl, responding for the Government, explained that determination was not on a case-by-case basis but referred to overall principle. I still have some difficulty in reading the paragraph that way, because it refers to the “amount”. If it referred to the absence of agreement as to the formula or the calculation, I would understand it.
The outline of the framework document deals with the question of tasking. The basis for the determination should be in the framework document. That is what my amendment would provide. Fees and charges are mentioned, but those seem to be a different issue. At the moment, and of course continuing, we will have a position where there is mutual aid between police forces. As I understand it, payment for mutual aid is a matter that is in the public domain—I believe that ACPO deals with it. There should be a similar approach, and the schedule should not allow for case-by-case determination, even if that is not what is envisaged, because as it is drafted it would be allowed for. I beg to move.
Lord Rosser
My Lords, we have two amendments in this group, and I suspect that the purpose of our amendments is not dissimilar to the intention behind the amendment moved by the noble Baroness, Lady Hamwee.
The Bill appears to provide for the Secretary of State to act as final arbiter over disputes arising between, for example, the National Crime Agency and police forces over compensation for resources provided under voluntary or directed assistance. It is not appropriate for the Secretary of State to have such a role, because it could introduce a potential conflict of interest. The Secretary of State is responsible for the National Crime Agency budget, but police force budgets will be under the control of the police and crime commissioner, so one could argue that the Secretary of State has an interest in the outcome of a decision over who should be paying what in any compensation that is required.
Our amendments provide for an independent advisory panel, rather than the Secretary of State, to arbitrate payments, which is not going down quite the same road as the amendment that has been moved by the noble Baroness, Lady Hamwee. Certainly, the objective behind our amendment—perhaps the Minister will have an alternative solution—is to say that the Secretary of State, having responsibility for the National Crime Agency budget, could be deemed to be an interested party. Therefore, the Secretary of State should not act as final arbiter over disputes, but some other means should be used to make that decision. Some other body, organisation, procedure or process should be used to resolve disputes that arise, rather than it being in the hands of the Secretary of State, for the reasons that I have mentioned.
Lord Rosser
My Lords, I will be brief since we do not have an amendment down on this subject, albeit that we had one down in Committee when we sought to qualify the National Crime Agency exemption to cover only those functions subject to exemption prior to 1 April 2012. The noble Baroness, Lady Hamwee, has gone through some of the responses that we had from the government Dispatch Box during that debate, in which she also moved an amendment.
Looking at Hansard, I see that for my troubles in moving the amendment, the response from the government Dispatch Box was that what I was suggesting was “illogical or worse”. I am not quite sure what worse was meant to cover, but it sounds fairly serious. There appears to have been some support for my proposing something that was illogical or worse from the Joint Committee on Human Rights. It has done a report in which it stated:
“We are not convinced by the Government’s justification for reducing the coverage of freedom of information legislation by including within the NCA exemption functions which were previously covered by that legislation”,
which was the point that my amendment sought to address. It went on to state:
“We are concerned that reducing the coverage of this legislation in this way could create a dangerous precedent. It is not uncommon for this legislation to apply to certain of an organisation’s functions but not others, and we need a good deal more evidence from the Government to persuade us why the NCA should be any different”.
That last point is particularly interesting since I intervened in the then Minister’s response to my amendment to ask,
“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?”.
The response I got from the then Minister was:
“Without notice, I do not think that I can answer that question, but I will certainly look at it”.—[Official Report, 18/6/12; col. 1642.]
It subsequently appears that it is something that the Joint Committee on Human Rights has looked into. It made it clear that it is not uncommon for this legislation to apply to certain of an organisation’s functions, but not others. I await with interest what the Minister is going to say in response to the amendment moved by the noble Baroness, Lady Hamwee, but I hope that one argument he will not use is that somehow it is illogical or inconsistent to have part of an organisation’s functions exempt from the Act and part covered, since that one seems to have been knocked on the head by the Joint Committee on Human Rights.