Serious Organised Crime and Police Bill

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Mr. Heath: I welcome the tone of the Minister's contribution. I am grateful that she understood my points and the spirit in which I tried to make them. Her understanding bodes well for the rest of our deliberations.

I hear what the Minister says about the SFO, although I do not entirely understand her argument
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about the proposal diluting activities and spreading resources, because the SFO would bring its own resources if it were subsumed into the new organisation; there would be no dilution of resources. If anything, there would be economies of scale, because of the increased capacity for joint working and joint management. Nevertheless, we now have on record the Government's view, which is helpful.

I still do not understand the circumstances set out in clause 2(3) whereby SOCA would seek to act in a serious fraud case without the agreement of the director of the SFO. That is a recipe for disaster.

Caroline Flint: May I elaborate? Investigation of a particular case of serious fraud may be a low priority for the SFO, but it may be important to SOCA in the context of a non-fraud-related organised crime. That relates to my earlier remarks about SOCA's ability to investigate and act against the individual and his activities. The SFO might choose not to pursue that particular crime, but SOCA should be able to do so. The two caveats in clause 2 allow that to happen.

Mr. Heath: I am grateful to the Minister, but that does not explain why it should be desirable to investigate without the agreement of the director of the SFO. In those circumstances, the director of the SFO would probably say, ''Yes, we don't want to investigate this—please, feel free.'' If the director did not say that, he would presumably have a reason—for example, that there would be difficulties with other investigations in which he was engaged. I am afraid that we have still not got to the bottom of why there should be provision for SOCA to investigate something that the SFO does not want to investigate and is not prepared to agree to SOCA investigating, unless a strange set of circumstances apply, which would give cause for much wider concerns about the operation of the SFO than those that I envisage now.

Caroline Flint: Given our discussions and consultation on that issue, the hon. Gentleman makes a valid point. In most circumstances we would expect discussions between the two agencies, especially if the SFO was carrying out its own investigation, or thinking of doing so, which would cut across activities that SOCA was considering. However, there may be occasions on which urgency is important. We want to leave flexibility in the Bill, to allow SOCA to take urgent action where appropriate.

Mr. Heath: If the matter is urgent, the SFO will not have had the opportunity to decline to act. Either the SFO agrees or it declines to act. The provisions do not make sense. However, I know that the Minister will talk with officials about precisely what is intended and why it is not covered in clause 2(3)(a), so I shall not labour the point now.

The Minister might not want to call SOCA a policing agency, but it will fight crime and have police officers in it, so to me it is a policing agency, albeit one that incorporates investigating officers from other disciplines. I have no problem with calling it an agency engaged in policing, because that is what it is
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about. If another term, such as investigatory agency, is better, I have no problem with that either.

I think that the Minister is telling me that clause 5(3) will provide the scope for SOCA to deal with levels of crime that fall outside its primary function and to co-operate effectively with other constabularies, which is my intention. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Schedule 1

The Serious Organised Crime Agency

Mr. Mitchell: I beg to move amendment No. 64, in schedule 1, page 118, line 9, leave out sub-sub-paragraphs (b) and (c) and insert


    (aa) such number of ex-officio members and other members (''ordinary members'') as the Secretary of State may determine.'.

The Chairman: With this it will be convenient to discuss the following amendments: No. 65, in schedule 1, page 118, line 14, leave out sub-sub-paragraphs (a) to (c) and insert—

    '(a) there shall be the same number of ex-officio and ordinary members, and

    (b) the total of the number determined under sub-paragraph 1(aa) must not at any time be less than four.'.

No. 66, in schedule 1, page 118, line 26, at end insert—

    '(4a) The chairman shall have a casting vote only.'.

Mr. Mitchell: The purpose of these amendments is simple: to ensure that the board of SOCA cannot be controlled by the direct appointees of the Secretary of State. Paragraph 1 of schedule 1 sets out the composition of the SOCA board and contemplates a board comprising three categories of member: the chairman, to be appointed by the Secretary of State; ex officio members, who are to include the director general of SOCA and other employees of SOCA appointed by the director general after consultation with the chairman; and so-called ordinary members, who are appointed directly by the Secretary of State. There are no qualifying conditions that ordinary members must meet, so the Secretary of State has an unfettered choice. The Secretary of State also appoints the director general. The board is therefore limited to the Secretary of State's direct appointees—the chairman and the ordinary members—and the appointees of the director general, who is himself an appointee.

A further significant provision, to which the amendments are essentially directed, is in paragraph 1(2)(b), and is that

    ''the number of ordinary members . . . must not at any time be less than the number of ex-officio members''.

That stipulation is clearly designed to prevent the ordinary members from regularly being outvoted by the ex officio members, for which there can be no justification. We hope that the board will not regularly be split between the ex officio members and the ordinary members appointed directly by the Secretary
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of State, but we agree that it is a prudent step to ensure that the ex-officio members do not have a controlling majority.

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In other words, there should be a built-in balance. We agree with the Bill insofar as it attempts to build in a balance. However, what is sauce for the goose should also be sauce for the gander. The problem is that while the Bill very properly prevents the balance from being tipped in favour of the ex officio members appointed by the Secretary of State, it does not prevent the balance from being tipped the other way. We believe that there should be a built-in symmetry between ex officio and ordinary members.

The Minister will have noted that our amendments are both modest and simple, but they achieve the proper balance. First, they would allow the Secretary of State to determine the total number of board members. Secondly, they would allow the Secretary of State to appoint the ordinary members. Thirdly, they would continue to allow the director general to appoint the ex officio members. Fourthly, there would still be a minimum board size of four members as well as a chairman. Fifthly, and most importantly, they would ensure that the number of ex officio and ordinary members was equal. Our final amendment proposes that the chairman should have a casting vote, and the chairman would of course be expected to act impartially, free from any political pressure.

The amendments should be accepted for a number of reasons. First, it is important to remember that this Bill will effect a profound change in the way that crime is policed in this country. Independence of the police force from central Government has always been regarded as an important part of the delicate constitutional balance between the Executive and law enforcement agencies. Politicians are not policemen, or any other type of law enforcement officer, and policemen, policewomen and other law enforcement officers are not politicians. The situation should stay that way. The importance of the status of police officers as officers of the Crown is a theme to which I will return, but a general point will be sufficient for the purposes of the amendments. There is an important distinction between political accountability and political control. Political accountability is vital but political control profoundly undesirable.

We hope that the Secretary of State has no intention of using his power to make direct appointments to the SOCA board to outnumber the ex officio appointments made by the director general. If that is the case, we expect the Government to accept the amendments, for they will merely enshrine in legislation what the Secretary of State intends to do. Only if the Secretary of State does intend to make direct appointments to the board of SOCA, so as to outnumber the ex officio members, will the Government decline to accept the amendments. That would be a regrettable and wholly undesirable course for the Government to take, particularly given this Government's record on public appointments. As we know, in the Office of the Commission for Public Appointments, Dame Rennie Fritchie, monitors the
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Government's appointments to public bodies. OCPA's ninth report, for 2003–04, makes very interesting reading. The commissioner's foreword makes it plain that she has continuing concerns about the way in which the Government makes appointments. On ministerial involvement in public appointments she said:

    ''I was concerned to discover in the course of last year that four Departments were routinely showing shortlists privately to ministers during the appointments process. Ministers are given a choice of candidates at the end of the process and can if they wish be involved throughout the process.''

The commissioner went on to say that she was particularly concerned that the unrecorded involvement of a Minister at such a late stage in the appointments process could be interpreted as political interference or personal preference. I could go on quoting from her report, but I want to spare the Minister embarrassment. In the report itself one can find results of OCPA's monitoring of the declared political activity of appointees. For appointments or reappointments in 2003–2004, some 439 appointees declared political activity. Of those, 266 declared activity undertaken for the Labour party—that is, 60 per cent.—and the comparative figures for the Conservatives and Liberal Democrats are 19 per cent. and 12 per cent. respectively. SOCA will be an executive non-departmental public body. For appointments made to such bodies in 2003–2004, the proportion of politically active appointees with Labour affiliations is similar: 91 appointees declared political activity, of which, 49—or 54 per cent.—were active for the Labour party, and six were chairs of executive non-departmental public bodies.

This is not the time to embark on an investigation of the way in which the Government makes public appointments. For present purposes, it is sufficient to note that there are continuing concerns, independently expressed, about the processes used and the results produced in terms of political affiliation. Against that background, it would clearly be sensible to ensure that the potential for politicisation of the SOCA board is properly limited.

Our amendments are modest. By giving the chairman—a direct appointee of the Secretary of State—a casting vote, and by ensuring that the rest of the board is equally balanced between ordinary members—also direct appointees of the Secretary of State—and ex officio members, there is no realistic prospect of the SOCA board somehow going off the rails. In our proposals, the board would be balanced and would, in particular, achieve the right balance between the desirability of political accountability and the undesirability of political control.

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Prepared 11 January 2005