2 The National Crime Agency
The NCA and counter-terrorism
8. The Bill empowers the Secretary of State to
confer counter-terrorism functions on the National Crime Agency.[8]
Under current arrangements, counter-terrorism is the responsibility
of the Metropolitan Police and the national counterterrorist network
of local police, working alongside MI5.
9. Conferring counter-terrorism functions on
a powerful agency such as the NCA, which is under the direction
of the Secretary of State, would have significant human rights
implications. The Government acknowledges that any decision to
confer counterterrorism functions on the NCA should be subject
to particularly careful consultation and scrutiny, but considers
it to be "sensible that we build in flexibility to confer
on the NCA counterterrorism functions if, in the future, there
is a compelling case for doing so."[9]
10. As the Government points out, the Delegated
Powers and Regulatory Reform Committee has considered the Government's
approach in clause 2 of the Bill and has no issue with it, noting
that "the idea of adding to a statutory body's functions
by subordinate legislation subject to a parliamentary procedure
is well established."[10]
11. The House of Lords Constitution Committee,
however, has expressed its concern about the excessive use of
enabling powers in the name of "flexibility", and questioned
the Government's justification for the power to confer counter-terrorism
powers on the NCA.[11]
It has invited the House of Lords to consider whether, in view
of the subject matter of the proposed order-making power ("the
allocation of functions and attendant responsibilities and accountabilities
for counter-terrorism policing"), the constitutionally appropriate
vehicle is primary rather than secondary legislation.
12. We sought to ascertain what evidence exists
to demonstrate that conferring counter-terrorism functions on
the National Crime Agency will assist in the fight against terrorism,
and how it will do so. We also asked why, given the potentially
significant human rights implications of conferring counter-terrorism
functions on the NCA, the Government considers it appropriate
to grant the power to do so by order of the Secretary of State,
rather than to bring forward primary legislation to be scrutinised
at the appropriate time.
13. The Government in response says that no assessment
has yet been made of the evidence whether to support, or otherwise,
a decision to confer counter-terrorism functions on the NCA. It
says that such a decision will be evidence-based and will not
take place until a wholesale review of the current counter-terrorism
policing structures in England and Wales has been carried out.
If such a decision were to be made in future, the Government points
out that the Director General of the NCA and other NCA officers
would be subject to the same legal and procedural safeguards as
the police are currently subject to when carrying out a counter-terrorism
function, and NCA officers "would also be expected to adhere
to long established legal principles including fundamental human
rights".
14. The order-making power in clause 2 of the
Bill is said to be required to enable the Government to give prompt
effect to any future decision should it include a role for the
NCA in relation to counter-terrorism. The Government recognises
the potential significance of such a future decision, which is
why the order has been made subject to the 'super-affirmative
procedure' and statutory consultation duties.[12]
It believes that the order-making power balances the flexibility
to implement promptly any decision to confer counter-terrorism
functions on the NCA, should a decision be made, with the necessary
parliamentary scrutiny of that decision.
15. We are concerned about the lack of clarity
that the wide order-making power introduces into the Bill. It
is not clear, for example, which particular "counter-terrorism
functions" the clause contemplates. We do not see the necessity
for including such a provision before the intended review of the
current counter-terrorism policing structures in England and Wales
has been carried out. In our view, the potential human rights
implications of a decision to confer counter-terrorism functions
on the NCA are sufficiently significant to warrant primary rather
than secondary legislation, to ensure that Parliament has the
fullest opportunity to scrutinise the possible implications. We
recommend that clause 2 be deleted from the Bill.
The NCA and human trafficking
16. In view of our predecessor Committee's sustained
interest in the practical effectiveness of the machinery set up
to counter human trafficking, and in particular the trafficking
of children, we asked the Government what consideration has been
given to how the reorganisation will affect the UK's capacity
to fulfil its obligations under the Council of Europe Convention
on Action against Trafficking in Human Beings, and what impact
the Bill would have on the effectiveness of (i) the UK Human Trafficking
Centre ("UKHTC") and (ii) the Child Exploitation and
Online Protection Centre ("CEOP").
17. The Government's response says that both
CEOP and UKHTC will be moving into the NCA, which "will have
a key role in building on the existing arrangements for tackling
human trafficking, by using its enhanced intelligence capabilities
and co-ordination functions to target the criminal gangs involved
in perpetrating this crime."
18. We did not find the Government's response
to our questions about the effect of the proposed reorganisation
on the ability of the UK to fulfil its obligations under international
agreements in relation to human trafficking to be satisfactory.
We urge the Government to provide more details about how, under
the new arrangements, the UK will be able to fulfil the international
obligations it has recently assumed under various international
agreements. We intend to continue our consideration of this question
in our inquiry into unaccompanied migrant children.
The NCA and freedom of information
19. The Bill provides for the NCA to be exempt
from freedom of information ("FOI") legislation. The
NCA's predecessor, the Serious Organised Crime Agency ("SOCA")
was similarly exempt from the FOI Act, but the functions which
the NCA will take on from the UK Border Agency and the National
Policing Improvement Agency were not previously exempt.
20. We asked the Government for its justification
for excluding from the scope of the FOI legislation functions
which were formerly within the scope of that legislation. The
Government's response is that the functions transferring into
the NCA which were formerly within the scope of FOI legislation
are expected to make up only a small part of the Agency (about
8% of staff and 5% of budget), and it is not considered possible
to ring-fence the functions of the precursor agencies for the
purposes of the application of FOI legislation. This, the Government
explains, is because the NCA is being designed as an integrated
whole—to ensure a free flow of information between the central
intelligence hub and all parts of the Agency, and it would defeat
the purpose of such an approach if individual parts had to be
cordoned off as subject to the FOI Act. Precursor units are also
considered to be unlikely to be clearly identifiable as distinct
entities within the new NCA.
21. The Government also states that it is committed
to ensuring that the NCA will be transparent, notwithstanding
that FOI legislation will not apply to it. The Director General
will be under a statutory duty to make arrangements for publishing
information about the exercise of NCA functions, and the sorts
of information that will be published will be set out in the NCA's
Framework Document, which will itself be published and laid before
Parliament. The Government expects that as a result the NCA will
in fact publish more information than its predecessors.
22. 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. 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.
The "no-strike" provision
23. The Bill prohibits NCA officers with operational
powers from taking strike action.[13]
As the ECHR Memorandum points out, the right to strike is recognised
to be an element of the right to freedom of association under
Article 11 ECHR, but can be subject to justifiable restrictions
if they can be shown to be necessary for the prevention of crime,
in the interests of national security or public safety and/or
for the protection of the rights and freedoms of others, including
victims of serious and organised crime.
24. SOCA employees with operational powers currently
have no restrictions on their right to strike, nor do civil servants
with the powers of a customs or immigration officer. Police officers,
however, have no right to strike. The Government's justification
for applying the same restriction to NCA officers is that the
focus of the NCA's work will be on serious and organised criminal
activity, and that work could only succeed if the NCA has all
of its required tools available all the time.
25. We asked the Government what evidence there
is of the necessity to restrict the right of NCA officers to take
strike action, and in particular whether there is evidence of
public harm having been caused by SOCA employees with operational
powers exercising their right to strike. The Government's response
is that NCA officers will be operational crime-fighters, closely
akin to the police who are also prevented from taking strike action,
and that the no-strike provision is justified by the need to provide
continuous protection of the public from serious and organised
crime. The Government accepts that SOCA has, in the past, conducted
operations in a manner which has enabled strike action taken by
staff to be managed, but it argues that the NCA will be quite
different from SOCA, with a much wider and joined-up remit. The
Government does not consider that in such an organisation a policy
of managing strike action provides the necessary guarantee that
the public will be protected from the harm caused by serious and
organised crime.
26. The restriction on the right to strike will
apply not only to those NCA officers who hold the powers of a
constable, but to all NCA officers who hold some or all of the
operational powers. We asked the Government whether the application
of the no-strike provision to NCA officers who hold "some"
of the operational powers is a proportionate restriction on the
right to strike. The Government believes that the restriction
is proportionate because it is limited to those officers with
an operational role designated with some or all of the operational
powers: that is, those of a constable, customs officer or immigration
officer. In practice, the Government expects that the overwhelming
majority of NCA officers with operational powers will be designated
with all of the operational powers. The Government also considers
it proportionate to include those NCA officers designated with
powers other than those of a constable, because the immigration
and customs crime on which the NCA will be focusing will be at
the level of serious and/or organised crime.
27. The Government intends to negotiate a voluntary
"no strike" agreement with the recognised trade unions
representing NCA officers, and the Bill gives the Secretary of
State a power to suspend the operation of the no-strike provisions
in the event that such an agreement is reached. We asked the Government
whether the restriction can be shown to be "necessary"
before negotiations with the trade unions over a voluntary strike
agreement have concluded. The Government's response is that it
remains its strong preference to negotiate a voluntary no-strike
agreement with unions, but it considers it appropriate to legislate
for the introduction of statutory restrictions at the same time
as legislating for the establishment of the NCA itself—because
this will ensure that the restrictions that the Government judges
to be necessary will be in place at the point when the NCA comes
into being.
28. We are concerned about whether the restriction
on the right to strike in the Bill can be considered to have been
shown by the Government to be necessary when negotiations with
the trade unions for a voluntary no-strike agreement have not
yet concluded. Expressing a final view on the need for and proportionality
of the no strike provision is in this sense premature. Provisionally,
however, we question whether the Government has yet demonstrated
by reference to actual evidence that there is a pressing need
to restrict the right of NCA officers to take strike action, bearing
in mind that SOCA has so far operated with no restrictions on
its officers' right to strike. In our view, NCA officers are
closer to SOCA officers than police officers. Even if there were
evidence of such a need, on the evidence currently available to
us we do not consider it to be proportionate to apply the no-strike
provision to NCA officers who hold some of the operational powers,
including officers who only exercise the operational powers of
a customs officer or immigration officer and not those of a constable.
8 Cl. 2(1). Back
9
Lord Henley on Second Reading, HL Deb 28 May 2012 col. 974. Back
10
House of Lords Delegated Powers and Regulatory Reform Committee,
Second Report of Session 2012-13, Crime and Courts Bill,
HL Paper 12. Back
11
House of Lords Constitution Committee, Second Report of 2012-13,
Crime and Courts Bill, paras 6-7. Back
12
Clause 30(2).The super-affirmative procedure is set out in Schedule
18 to the Bill. Back
13
Cl. 13. Back
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