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House of Lords

Tuesday, 27 November 2012.

2.30 pm

Prayers—read by the Lord Bishop of Liverpool.

BBC: World Service


2.36 pm

Asked by Lord Alton of Liverpool

To ask Her Majesty’s Government by how much the BBC World Service budget has been reduced in the current financial year; and what plans they have for funding the World Service in the future.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the budget for the BBC World Service for the 2011-12 financial year was just over £255 million. It was reduced by £11 million to £244.2 million for the current financial year and will reduce by a further £4 million to £240 million in the financial year 2013-14. From April 2014, the BBC World Service will be funded from the licence fee instead of from FCO grant in aid.

Lord Alton of Liverpool: I am grateful to the Minister for that reply, but at a time of phenomenal uncertainty in the world can it really make sense to cut the BBC World service by 16%, leading to the loss of 32 language services and 650 jobs and an estimated fall in audiences of some 30 million people? In particular, should we not think again before savagely reducing medium-wave transmissions to Syria, Lebanon, Egypt, Jordan and Israel at a moment when the region is in total crisis and the voice of reason is in such short supply? In this 80th anniversary year of the BBC World Service, surely it is a moment to celebrate its extraordinary achievements in upholding human rights, democracy and the rule of law rather than so short-sightedly diminishing this country’s influence right across the globe.

Noble Lords: Hear, hear!

Baroness Warsi: The noble Lord raises a number of important issues. First, I assure him that it was decided to cut only five languages as overall languages in the comprehensive spending review. As regards the specific countries to which the noble Lord referred, I am sure he will be comforted by the fact that additional funding of £2.2 million per annum was put forward specifically to ensure that funding was maintained for the BBC Arabic Service, a language which I am sure the noble Lord will agree is exceedingly important in light of current events.

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Lord West of Spithead: My Lords, has the National Security Council looked at the balance in terms of soft and hard power and the importance of the BBC World Service, bearing in mind that for a minute amount of money this absolute jewel in our soft power crown is being damaged so badly? All of us who have been involved with these issues around the world over many years realise that this is really damaging.

Baroness Warsi: Again, the noble Lord raises an important issue. I am not sure whether it has been discussed at the National Security Council, but I can check that and write to him. I completely agree with him that the BBC World Service is, and remains, an important part of our soft power. Indeed, YouGov has recently said that the UK ranks extremely highly in relation to soft power. We are known as a soft power superpower. However, I am sure that the noble Lord will agree with me that at times priorities have to be assessed and that these changes in priorities have been made at various times. Indeed, under the previous Labour Government in 2005, it was announced that the Bulgarian, Croatian, Czech, Greek, Hungarian, Kazakh, Polish, Slovak, Slovene and Thai language radio services would end.

Baroness Falkner of Margravine: My Lords, will my noble friend accept that, while a balance has to be struck between financial viability and high-quality independent and impartial journalism, the balance must ensure that broadcasting to the most sensitive areas of the world, such as China and autocratic regimes in the Middle East, where the public do not have access to impartial information, must remain a priority? Can she assure the House that after 2014 the Foreign Secretary will retain his role in setting the strategic objectives of the BBC World Service?

Baroness Warsi: Yes, I can assure my noble friend, and indeed the House, that the Foreign Secretary will still have oversight post-2014. He will retain his current role of agreeing objectives, priorities and targets. Specific approval will be required from the Foreign Secretary to open or close a specific language service. I completely agree that it is important to ensure that we continue to use this soft power mechanism, but I am sure that my noble friend will also agree that more and more people are looking to BBC world news and television and looking online to obtain this information.

Baroness Coussins: My Lords—

Lord Soley: Does the Minister accept that China and Russia in particular are rapidly on the rise with international services—Russia is now one of the fastest growing—and that if we do not emphasise the BBC and put the funds into it, particularly in the Middle East area, then frankly we are putting at risk not just our reputation but, more importantly, the dissemination of accurate views about crucially important events world wide?

Baroness Warsi: There are a number of ways in which the UK can continue to exercise its soft power; the BBC World Service is one of them. I am sure,

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however, that the House will also agree that extending our embassies and our consulates and having extra staff—extending our diplomatic network—are all part and parcel of ensuring that we continue to play an influential role in the world.

Baroness Coussins: My Lords—

Lord Glenarthur: My Lords—

The Minister of State, Ministry of Justice (Lord McNally): We will hear from this side and then go to the Cross Benches.

Lord Glenarthur: My Lords, while sharing many of the concerns that the noble Lord, Lord Alton, raised, my noble friend mentioned the internet. Can she say to what extent the internet has provided an increasing advantage of opportunity for people all over the world to listen to the very valuable product of the World Service?

Baroness Warsi: I cannot provide my noble friend with specifics, but he is aware that, certainly in relation to the Arab uprising and the Arab spring, the internet played a vital role, both in relation to accessing traditional services such as radio, but also in relation to the blogosphere in the way in which campaigns were run and the Arab spring came about.

Baroness Bakewell: My Lords—

Baroness Coussins: My Lords—

Lord McNally: We will hear from the Cross Benches first, and then Labour.

Baroness Coussins: My Lords, the Minister said that only five foreign language services had been cut, but I understand that all radio broadcasting in seven languages has been cut as a result of the financial constraints. Is the Minister satisfied that the commercial sponsorship being sought—so that some of this at least can be restored, especially in Arabic and Russian—is on track and that, if it is successful, commercial factors will not compromise the independence and impartiality of the World Service?

Baroness Warsi: Every indication from the BBC Trust shows that this is a service to which the BBC is committed. We are confident that the BBC licence fee will continue to support the BBC World Service, but I will write to the noble Baroness in relation to the specific point on languages.

Baroness Bakewell: My Lords—

Lord Triesman: My Lords, the decisions that were taken in 2005 about reducing the number of eastern European language broadcasts, largely because there had been a great development in the democratic media in many of those countries, released money for the

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Farsi language service and for the 24-hour Arab service. I am very familiar with the decisions taken at that time. Would the noble Baroness agree that the cutting of those services, to the extent that they are being cut—and we should be under no delusion: they are being cut back—is going in the opposite direction of identifying where there are problems and addressing them?

Baroness Warsi: The noble Lord may well be comforted by the fact that, despite these budget reductions in the current financial climate, the FCO has been able to maintain the World Service’s share of the overall FCO budget at, or at about, the level that it was in 2007-08.

Welsh Government: Tax-varying Powers


2.45 pm

Asked by Lord Wigley

To ask Her Majesty’s Government whether they will take steps to enable the Welsh Government to have greater tax-varying and borrowing powers.

The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson): My Lords, the Government established the Silk commission to look at the case for devolving fiscal powers to Wales, and the commission reported its findings last Monday. The Government are very grateful for the expertise and rigour that the commission has brought to this important work. We will now carefully consider its recommendations and assess whether they are right for Wales and for the UK as a whole. The Government will respond to the report in due course.

Lord Wigley: My Lords, I welcome the noble Baroness to the Dispatch Box to answer questions in this way, not least because not so long ago she was asking exactly the same questions as I am asking today. Does she accept that the Welsh Government have no borrowing powers at present other than to cover temporary revenue shortfalls—a power that has never been used—or residual WDA powers, which are offset against the DEL budget and therefore provide no additional benefit? Now that the Silk report has come forward, as the noble Baroness mentioned, unanimously recommending that the Welsh Government should have new powers to borrow to fund capital investment over and above the DEL budget, as well as powers to issue bonds, can she give an undertaking that the Government will quickly move to provide these powers for the Welsh Government?

Baroness Randerson: The noble Lord will appreciate that, as the report was published only last week, it is very early to make decisions. I can make no firm comments about the outcome of the process that we are going through at the moment. However, on borrowing, it is important to recognise that in October a joint announcement by the Secretary of State at the Wales Office, the Welsh Government and the Chief Secretary

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to the Treasury acknowledged that in principle the Government agree to borrowing powers for the Welsh Assembly, and we anticipate the potential of the Welsh Assembly having the right to raise and levy taxes in order to offset those borrowing powers.

Lord Mawhinney: My Lords, in the event that the Government decided to make new powers available to Wales, would this constitute a legal precedent as far as the governance of Northern Ireland is concerned?

Baroness Randerson: It is important to bear in mind that the Government look at each of the devolved Assemblies and Parliaments and balances one against the other. They each have individual circumstances, individual rights and a different devolution settlement from the other devolved nations of the UK.

Lord Morgan: My Lords, the Silk commission admirably proposed a valuable extension of devolution by linking representation and taxation. Nevertheless, is not the Welsh Labour Party correct in saying that we cannot properly resolve these matters until there is fair funding for the Welsh Government, which means the abolition of the Barnett formula?

Baroness Randerson: I draw the noble Lord back to my previous answer which related to the statement in October from the two Governments. That made it clear that in relation to the Barnett formula there was an agreement between the two that, if convergence were to start to occur again, there would be discussions with a view to establishing a mechanism to ensure a fair system for Wales.

Lord Elystan-Morgan: My Lords, I congratulate the Minister on her appointment and indeed, the Government on their enlightened approach to the issue of borrowing by the Cardiff parliament. Is it not the case that it would be indeed strange if a national parliament did not have borrowing powers that are enjoyed by the most menial of local authorities? Does the Minister agree that in light of the fresh and energetic dynamism that has been created for devolution in consequence of the referendum of March last year and now, of course, by the Silk report, it would be absurd if these powers were not to be given to the land and nation of Wales?

Baroness Randerson: My Lords, the agreement in October established the principle that borrowing powers could be given to the Welsh Assembly and that we should move towards those with all possible speed. I acknowledge, as the noble Lord has said, that it is completely out of line with the international situation for a legislature to have no powers of this sort. I am very hopeful that the report will be looked at in detail with all due speed, in a timely manner. It is important for the House to note that the Government have made it clear that we want to set in train issues that follow from Part I of the Silk report before the publication of Part II.

Lord Bilston: My Lords—

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Lord Roberts of Llandudno: My Lords, first, I very much welcome an old friend to her position as Minister for Welsh affairs in this House. With all the changes that we are seeing in relationships within the UK—some constitutional and others possibly economic—is it not time for the Government to establish a working group of all four nations to discuss the problems that might arise and to prepare for them, without having to rush in when the time comes without thinking them through thoroughly?

Baroness Randerson: I thank the noble Lord for his comments. However, now is not the time to take a comprehensive look at devolution in the round for all the nations simply because measures are in place in each of the three nations in terms of the development and progress of devolution. We therefore have to wait for those current developments to settle down before we look at devolution as a whole outcome.

Lord Bilston: My Lords—

Baroness Gale: My Lords, the Minister will know that the Silk commission’s recommendations included changes to taxation that would have implications extending beyond Wales and having consequences for the whole of the United Kingdom. Does she agree that Members from all parts of the United Kingdom in both Houses should be able to debate the report in full? Can she give some idea when the Government will respond to the report? I know she said earlier that it would be in due course.

Baroness Randerson: It is important to bear in mind that there were 33 recommendations in the report. That very complex set of recommendations was presented to us as a package; nevertheless, there is a series of different strands associated with them. Of course, as the noble Baroness rightly points out, they have implications well beyond the borders of Wales. Some of the recommendations could be implemented relatively quickly and without legislation, whereas others would require substantial amendments to the Government of Wales Act or legislation introduced by the Treasury. However, I can say that the Wales Office and the Government are committed to dealing with this with all due speed, but in a timely manner so that we give due and serious consideration to every recommendation.

Justice: Legal Advice


2.54 pm

Asked by Lord Bach

To ask Her Majesty’s Government what plans they have to enable people to receive legal advice for social welfare law problems once they are not able to receive legal aid for that advice after 1 April 2013.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, it is important to realise that legal aid has been retained for the highest priority social welfare law cases and we will continue to spend

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approximately £50 million a year in this area. We are also putting in place a new robust referral process to support relevant clients to resolve their problems by signposting them to suitable alternatives.

Lord Bach: My Lords, I thank the Minister for his reply. Does he agree that a fundamental test of any legal aid system is whether it gives access to justice to the poor, the disabled and the marginalised? If it does not do that, what is its point? It is agreed by everyone that many hundreds of thousands of our fellow citizens will be deprived of legal help and legal advice from 1 April next year—rightly named All Fools’ Day. Does he further agree that for this to happen at all, let alone in the middle of radical changes to our welfare system, is a disgrace and is certain to lower the reputation of our whole legal system?

Lord McNally: My Lords, I recall some of those points being made during the course of the LASPO Bill. I rejected them then and I reject them now. We are continuing to spend a good deal on legal aid in this area, as I have pointed out, and we will be bringing in new measures to support advice services. Many of the areas covered are for advice rather than legal advice and we believe that if we can put in place proper advice services we can cover many of the fears that the noble Lord has raised.

Lord Marks of Henley-on-Thames: My Lords, given that Citizens Advice has a wealth of experience in the area of social welfare law and, importantly, that it is not limited to giving legal advice but can also advise individuals in areas such as debt management, will the Government keep the funding of Citizens Advice under review to ensure that it can continue to provide its valuable and high-quality service?

Lord McNally: My Lords, I pay tribute to noble Lords on all sides of the House who, during the course of the LASPO Bill, championed the cause of Citizens Advice and other advisory services. The Government are looking at the whole advice sector—the Cabinet Office has taken on that responsibility—and, in the mean time, the Government have put forward an advice service transition fund, worth £65 million over the next two years, to help promote collaboration and best practice in this sector.

Lord Beecham: My Lords in 2011-12 the Newcastle CAB advised on 8,000 benefits problems. It has now lost £150,000 of government funding and three and a half posts, including its specialist welfare rights adviser. Gateshead CAB has lost £500,000. What advice can the Minister give these and other hard-pressed bureaux about how they can beat the rising demand for welfare law and welfare rights advice?

Lord McNally: I suppose that I can only give those in the voluntary sector the same advice as was given in my own department, which has had to take a 23 per cent cut in services. The reality, which it seems difficult for the Opposition to take in, is that we are all a lot poorer than we thought we were and a lot of organisations

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are having to reorganise to be effective. As I said, we have set aside £65 million over the next two years—and I have not even mentioned the £25 million to which I used to refer during the course of the LASPO Bill as the £65 million is new money. We appreciate the benefit of Citizens Advice and we want work with it so that it can carry on its useful work.

Lord Mackay of Clashfern: My Lords, can the Minister say what is the outcome of the discussions that were being held in relation to legal advice centres—not only advice but legal advice centres, of which there is a network—as a valuable way of giving legal advice economically?

Lord McNally: We continue to support the concept of legal advice centres, but they too have had to make some tough decisions in these circumstances. I hope that we can retain a good network, but we have had to make tough decisions in this area.

Lord Elystan-Morgan: The Minister says that we are poorer, but we are not poorer. When legal aid was established immediately after the Second World War, we were absolutely skint. We had to negotiate a crippling American loan. The economic situation we are now in is infinitely better than it was then. Why is legal aid being sacrificed on the altar of economic need?

Lord McNally: Legal aid is not being sacrificed on any altar. I pay tribute to the foundation of legal aid in 1948, but by the time we came into office, the legal aid budget was over £2 billion and the outgoing Government were already planning to cut it. I want to make sure that we maintain a legal aid system that will remain one of the most generous in the world and focus it on the most needy.

UK Border Agency


3 pm

Asked by Lord Avebury

To ask Her Majesty’s Government what is their response to the report by the Independent Chief Inspector of Borders and Immigration on the UK Border Agency’s handling of legacy asylum and migration cases.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, the UK Border Agency’s response to the report of the Independent Chief Inspector of Borders and Immigration was published on its website on 22 November. We accept that there are lessons to be drawn from the UK Border Agency’s handling of these legacy cases. The agency’s response to the report accepts all of the chief inspector’s recommendations. However, as the chief inspector himself states, since April 2012 the agency has,

“started to tackle the problems”,


“a much more robust approach [has] been introduced to locate and trace”,


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Lord Avebury: My Lords, considering the appalling record of irresponsibility, obfuscation and mendacity revealed by this report, does not my noble friend agree that control of immigration and asylum should be returned to the Home Office so that responsibility can rest on the Home Secretary herself, where it properly belongs? Will the Government allow time for a debate on this report and on the Government’s response to it?

Lord Taylor of Holbeach: I cannot pre-empt the usual channels and their negotiations on these matters, but I note my noble friend’s interest in this subject. This Question reminds me somewhat of the situation in which the noble Lord, Lord Rooker, found himself in dealing with the Rural Payments Agency. This agency has had a poor record on delivery but as the new transformation plan has been developed, and as the chief inspector highlights, it has started to tackle the problems.

Lord Tomlinson: Bearing in mind the popularity with Members opposite of the Mayor of London, do the Government share the views expressed by him during his visit to India or do they support the current government policy?

Lord Taylor of Holbeach: I am afraid that I have not been following what the Mayor of London has been saying.

Lord Dholakia: My Lords, does the UKBA await the outcome of court judgments on domestic violence cases before the right to settle in the UK is granted? Is the Home Secretary consulted before the UKBA exercises such authority over judicial decisions?

Lord Taylor of Holbeach: The noble Lord has asked a specific question to which I cannot give a detailed answer, except to say that the rules governing entrance into and settlement in this country are extraordinarily complex. We had an opportunity to debate elements of them yesterday. I will investigate the matter and write to the noble Lord.

Lord Brooke of Alverthorpe: Is it not true that one of the lessons which the Government are increasingly learning is that locating and tracing individuals is one of the biggest problems they face in modern society, especially given how people travel around the world in the way they do? Will the Government reflect on their early decision to abandon ID cards, which provided for locating and tracing, and will they not come to regret having taken the decision to abandon them?

Lord Taylor of Holbeach: The direct answer to that question is no. In terms of the reference that I should make, of course it is important to be able to match identity. Recently I visited the Criminal Records Bureau in Liverpool where much of the job is about matching individuals with the police national computer. It is a similar task here, and fortunately that task is now being undertaken properly.

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Baroness Smith of Basildon: My Lords, it might help if I advise the Minister that the comments by the Mayor of London, Boris Johnson, were about the Government’s policies on students and immigration from India. Perhaps the best advice for the Minister is not to agree with Boris, but he might want to agree with government policy. There is clearly a difference in the Conservative Party on this issue.

On the subject of the report which the noble Lord, Lord Avebury, mentioned, it is not the first time that John Vine has raised very serious concerns about the UK Border Agency. This report is shocking: it actually says that Home Office UK Border Agency officials lied to Parliament. I am pleased to hear the Minister’s comments that the Government are accepting all 10 of John Vine’s recommendations. However, John Vine has previously complained about his recommendations being accepted and then nothing happening. How will the Government ensure that these recommendations are acted on? How will they be monitored? Can the Minister commit now to reporting progress back to Parliament?

Lord Taylor of Holbeach: I am always happy to report back to Parliament on this sort of issue. This issue has a very long history and it did not start with the coalition Government coming into office. The key question is: is the agency now directed in a way that is going to lead to improvement? I think that the answer to that is yes. In respect of the particular comments made by individuals in front of the Home Affairs Select Committee, the individual concerned has written to the committee explaining the reason why he inadvertently misled them.

The Earl of Sandwich: Does the Minister agree that responsibility for students who overstay their welcome in this country lies with the UKBA and not the universities and colleges? Is he aware that the universities and colleges are being harassed in relation to this and many other issues?

Lord Taylor of Holbeach: It is important to see this as a partnership. The universities want students from overseas and I am, fortunately, able to say that the number of students in this country from non-EEA countries has actually increased, despite the review which has been placed on them and the difficulties we have had with London Metropolitan University. Universities and the UK Border Agency need to act in partnership if we are going to have both effective control and the freedom and movement which we all, at bottom, desire.

Statutory Instruments

Membership Motion

3.07 pm

Moved by The Chairman of Committees

That Lord Lyell be appointed a member of the Joint Committee in place of Lord Geddes, resigned.

Motion agreed, and a message was sent to the Commons.

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Public Service and Demographic Change

Motion to Agree

3.08 pm

Moved by The Chairman of Committees

That, notwithstanding the Resolutions of this House of 21 and 29 May, it be an instruction to the Select Committee that it should report by 27 March 2013.

The Chairman of Committees (Lord Sewel): In moving this Motion perhaps I can just mention that it would be helpful if noble Lords submitted suggestions for topics for next year’s Select Committees by 18 January.

Motion agreed.

Legal Services Act 2007 (The Law Society) (Modification of Functions) (Amendment) Order 2012

Motion to Approve

3.08 pm

Moved by Lord McNally

That the draft order laid before the House on 15 October be approved.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 20 November.

Motion agreed.

District Electoral Areas Commissioner (Northern Ireland) Order 2012

Motion to Approve

3.09 pm

Moved by Baroness Randerson

That the draft order laid before the House on 15 October be approved.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 20 November.

Motion agreed.

Crime and Courts Bill [HL]

Report (1st Day)

3.09 pm

Clause 1 : The National Crime Agency

Amendment 1

Moved by Baroness Smith of Basildon

1: Clause 1, page 1, line 5, leave out subsections (1) and (2) and insert—

“(1) There shall be a body corporate to be known as the National Crime Agency (“NCA”).

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(2) The NCA is to be under the strategic direction and control of the NCA Board.

(2A) Schedule (The NCA Board) has effect.

(2B) There shall be a Director General, who is to be one of the NCA officers, and shall be responsible for the exercise of the NCA’s operational and administrative functions.”

Baroness Smith of Basildon: My Lords, Amendment 1 in the first group looks at the governance of the National Crime Agency. The amendments remove responsibility for the direction and control of the National Crime Agency from the director-general. Instead, the NCA will be governed by a board with an independent chair, which will have responsibility for “strategic direction and control” of the agency.

Earl Attlee: My Lords, will noble Lords try to leave the Chamber quietly in order that we can hear the noble Baroness move her amendment?

Baroness Smith of Basildon: I am grateful to the noble Earl, Lord Attlee. The House has hushed immediately, such is his power of control. The point is about the governance arrangements of the National Crime Agency and the move in the direction of control from the director-general to a board. It would have an independent chair, which would have responsibility for “strategic direction and control”, and would be modelled on the existing governance structure of the Serious Organised Crime Agency. Obviously, the director-general has to be responsible for the exercise of the National Crime Agency’s operational and administrative functions. However, the line of accountability would be to the NCA board, which would retain the Secretary of State’s powers to appoint and dismiss the director-general, although that would be subject to a pre-appointment hearing by Parliament. The amendments also provide for police and crime commissioners and chief constables to be represented on the board. That would formalise and facilitate that partnership, which we believe is important, between the NCA and police forces.

Having reread the Minister’s comments in Committee —from a different Minister—after the debate, I found them somewhat unsatisfactory, which is why we have brought forward this amendment today. The Government are scrapping the corporate governance structure that existed for SOCA and are instigating top-down direction from the Secretary of State, despite the fact that the new agency will be designated a non-ministerial department, unlike SOCA, which was a non-departmental government body. As the Minister will be aware, non-ministerial departments—NMDs—are, as a rule, more independent of the Government than non-departmental government bodies. According to the Standard Note in the Library of the other place on the Public Bodies Bill, a body such as an NMD would normally,

“answer directly to Parliament on issues where it has been deemed appropriate to remove executive political interference”.

The note gives the examples of Ofgem and the UK Statistics Authority. The corporate governance structures of SOCA and the NPIA provide for a board headed by an independent chair, as does that of the new Financial Conduct Authority. HMRC, which the Government cite as a model for the NCA’s new

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designation, has a board whose remit is to develop and approve strategy and final business plans and to advise the chief executive on key appointments. Arguably, many of the problems of the embattled UK Border Agency, which we have just been discussing, could have been avoided had there been a board sitting between the chief executive and the Secretary of State, overseeing the functioning of the organisation.

There seems to be a contrast in that the Government’s vision of the National Crime Agency does not include a similar accountability structure. I understand—and I have to say this carefully—that the director-general will chair a non-statutory board, consisting of, we think, the senior officers, who are most likely to be the heads of the five different pillars of the NCA. I am being careful about saying that we understand that to be the case because we do not have the detail, which is not yet available. I know we will come to this debate later about the framework document and its detail, but it does hamper us somewhat in our discussions about the governance arrangements of the NCA.

The noble Lord, Lord Henley, said in Committee how important good governance is and then said, “We will set that out in the framework document”. That is for another debate, but we were promised a draft of the document and then an outline of the document to flesh out the detail. However, all we have got is a table of contents. If we look at what it says on the NCA management board, the heading is, “The NCA Management Board”, which is followed by bullet points and then sub-bullet points as follows:

“The Director General will establish and chair a Management Board … Description of the role of the Board ... Composition of the Board which will include … Ex officio members … Non-executive members”.

There is not much detail there at all.

A corporate board structure would preserve the agency’s operational independence but would retain the ultimate strategic oversight by, and accountability to, the Government. The NCA will be responsible for a huge range of operations: it has a far wider suite of functions than SOCA has. The role of the DG will be incredibly powerful and important. It seems quite crazy that there should not be an additional layer of scrutiny over the day-to-day operations, which is something that a management board, chaired by the director-general, cannot deliver or provide. The corporate board provides the other role of keeping the Home Secretary clear from direct operational control and oversight, and protects the Home Secretary from any accusation of political interference or control. Under the government model, the NCA will be governed by one all-powerful individual, the director-general, who reports directly to the Home Secretary. The Home Secretary in turn will authorise the director-general’s annual plan, which sets out the operational priorities. The Home Secretary will hire and fire the DG without reference to any other body and determine what operational powers the director-general would have.

3.15 pm

This is where the problem lies in not having a corporate governance structure. The absence of any intermediary between the Secretary of State and the director-general means that the line between operational strategic roles is blurred. Without any reference to a

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board, a director-general must seek sign-off for his operational plan from the Secretary of State. That direct line risks politicisation of the role. Given that the Government have set such store by the way the role of police and crime commissioners will in effect hand power back to the people, it seems odd to have a top-down structure with this particular role of the director-general and the governance of the whole National Crime Agency.

We support a clear line of accountability, therefore, between the director-general and the Secretary of State. We do not believe that the Secretary of State should have the sole power to hire, fire and influence the director-general without reference to any other body. Our amendments would provide for the director-general’s employment by the board, but the terms and conditions of employment would rightly remain determined by the Secretary of State. That would preserve the ultimate accountability to the Home Secretary while avoiding the direct oversight by the Home Secretary that is envisaged in this legislation. However, we would require, very reasonably, the Home Secretary to consult the NCA board on the appointment and also before calling for the director-general’s resignation. The Home Secretary would need to take into account, as well, any representations the board wants to make on the director-general’s behalf.

The Minister is frowning at me, but I was hoping that he might at least see his way to considering these amendments further. It seems a sensible way forward to have a more appropriate governance structure for such an important role. I beg to move.

Lord Blair of Boughton: My Lords, I shall support this amendment simply by reflecting on my own experience. I will be very brief. I served at a senior level, although not as commissioner, in the Metropolitan Police when there was no police authority. I also served when there was a police authority. With respect to the noble Lords who served on that police authority, some of whom are present, I did not always agree with them. However, in terms of strategic principle, to have a senior police officer—as the director-general will be—running a large, complex and controversial law enforcement organisation with no statutory advice from any outside body around him or her is dangerous in the modern age. As the noble Baroness has just said, it is not just dangerous for the director-general; it is dangerous for the Secretary of State.

Let us assume for a moment that the investigation which came to be known as “cash for honours” had occurred at a time when no police authority existed in London. As commissioner, while my service was investigating what had or had not happened inside No. 10 Downing Street—presided over by a Labour Prime Minister—I would have been reporting direct to a Labour Home Secretary, rather than to a more variegated body. The difficulties, temptations, pressures and politics of what that would, or could, have been like are pretty obvious and unpleasant to contemplate. What this amendment is suggesting is not a police authority. I am not at all precious about the detail of some of the appointments laid out in the different clauses; I just believe there is no need to mirror the PCC arrangement so recently announced in this kind of central body.

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This amendment is less vital to me than Amendment 14, about counterterrorism functions, to which we will come shortly, but my experience suggests that a board of this sort would be an advantageous addition to the NCA, the director-general and the Secretary of State, and I commend the amendment to the House.

Lord Harris of Haringey: My Lords, I, too, support this amendment. Having been a member of the police authority to which the noble Lord, Lord Blair of Boughton, reported, I confirm that we did not always agree with the views that he put to us or the proposals that he made—but that was a healthy tension; there was a healthy process of governance. When I was chair of that authority, on three separate occasions a proposal was brought to the police authority by the noble Lord, Lord Blair, in his previous incarnation, which was rejected each time, and in the end a modified proposal emerged, which I think was better for London.

That was a relationship of dialogue and openness. What the Government are proposing in the Bill will be very different. There will simply be the director-general, who will report to the Home Secretary, and the Home Secretary will have the powers to set the strategic direction, the general way in which the organisation operates and, of course, have the power to hire and fire. There will be no scrutiny of that, no external validation and no one else sitting round the table—it will be a one-to-one relationship.

One of the fundamental principles of British policing, ever since Sir Robert Peel started the whole process, is that there should not be direct political control of the police service. What we have here is the creation of a potentially incredibly powerful national policing body that will report to a single politician, with no other people sitting around the table when directions and advice are given.

The advantages of my noble friend’s amendment are that it puts a layer between the Home Secretary and the director-general—a governance board—but also that the governance board has several people and interests represented. That does not absolutely prevent political interference because I am sure that the Home Secretary may on occasion phone the director-general and there will be direct dialogue, but it provides a governance structure that is a safeguard against the distortion of operational priorities for political purposes.

The noble Lord, Lord Blair, referred to the difficulties that he might have faced in respect of cash for honours. At the time of that investigation, there was a Labour chair of the police authority—it was not me; that was after my time, although I was still on the police authority—and I know that that Labour chair came under considerable political pressure from Labour Party colleagues about that investigation. Quite properly, he did not intervene on those matters; indeed, he defended the operational decisions of the police. But even had he been minded not to resist that political pressure, he had around him 22 other members of the police authority calling him to account and saying, “Actually, this must be allowed to run its course, right or wrong”. Here, there will just be the Home Secretary

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relating to the director-general in private, with no one else around the table able to say, “Is this appropriate or not?”.

It is a profoundly dangerous structure. I am sure it is being done for the best of all possible reasons and we will be told how efficient it is. But I have yet to hear anyone say that the SOCA board has been a waste of time, that it has not added value or that it has not improved the governance of the Serious Organised Crime Agency—none of those points has been put.

Instead, we are offered this direct-line relationship between the director-general and the Home Secretary. It is extremely dangerous. Even if the current Home Secretary and her successors have no intention of ever crossing that line and trying to intervene in the operational decision-making of the director-general, they will be open to the allegation that that is precisely what they have done. That weakens the position both of the director-general and of Ministers. For that reason I believe that the Bill’s proposals are profoundly dangerous, and I support my noble friend’s amendments.

Baroness Hamwee: My Lords, my noble friend Lord Marks of Henley-on-Thames and I have Amendment 3 in this group. I am not sure whether the noble Lord, Lord Blair, was looking at me—I believe he was—when he referred to some people in this Chamber having been members of a police authority at the relevant time. I was not a member, but I questioned him in public, carrying out a role that is not unrelated to the subject of this amendment, which is getting information into the public domain—a hugely important role that someone needs to carry out. I am not sure who that someone might be in this structure.

I am aware that the Government have designed an arrangement under which the director-general is accountable to the Secretary of State, who is in turn accountable to Parliament. The Minister, the noble Lord, Lord Henley, in response to my amendment at the previous stage, told me that a supervisory board, which was how I described it, would muddy the waters. I had taken that proposal for a supervisory board from the arrangements that the Department for Communities and Local Government had in place, as I was easily able to access its arrangements. I said then that I was not seeking to change the architecture of the Bill.

I do not propose a governing board, and I do not go as far as the noble Baroness. However, because of the concern not to change the architecture, I have amended my own amendment to include the words, “Subject to Part 1”. That deals with the respective roles of the Secretary of State and the director-general. I tabled my amendment before seeing the outline framework document, which we are told will cover internal governance. Reading Hansard following Committee, I thought that perhaps “supervision” was regarded at any rate as an indelicate term for the relationship, although I felt at the time that the Government were a little oversensitive to my amendment.

However, I will be even blunter and say that as I read the paragraph in the outline framework document, the word that comes to mind is “cosy”. It might be much less cosy if we knew more from this document

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about what the governance arrangements would consist of. We are to have a management board, which comes under the heading of “Internal Governance”—it is almost the whole of that paragraph. I do not regard management as being the same as governance. Neither do I regard governance as being the same as administration, although that is the umbrella word used for governance in Schedule 2. It is the term used to introduce the concept of governance.

I have used terms including “strategic and corporate leadership” and “advice” in my amendment. If the management board that we are to expect is not to provide strategic and corporate leadership and advice, what is it going to do? Perhaps the Minister can help us today by fleshing this out a little more.

The framework does not tell us what it will do, and that is clearly important. It says only that there will be a description of the role of the board. Although, as I said, my amendment does not go as far as Amendment 1, the points made hitherto raised extremely important issues about governance in the public and political sector. I ask one further question. I do not want to pre-empt the noble Lord, Lord Condon, because it was his question at the previous stage, but will the board include stakeholders? We know that there are to be some ex-officio members and non-executive members. Again, the House would be interested to know who it is anticipated will fulfil those roles.

3.30 pm

Lord Condon: My Lords, I declare my registered interests in policing. I find myself supporting the spirit of Amendment 1 and Amendment 3, the first in the name of the noble Baroness, Lady Smith, and the latter in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks. If the Government resist all these amendments and the spirit behind them, they will miss an important opportunity to improve transparency, accountability, confidence and governance in the new NCA.

At Second Reading and in Committee, I raised the spectre of a disjointed patchwork of policing through the new arrangements. My fear was of a parochial, local network of policing run by the newly elected police and crime commissioners, and an all-powerful National Crime Agency with no supervisory or governance board, with very little in between and no lines connecting them. The Government will miss a vital opportunity here if they hide behind the notion that the NCA deals with important, national issues which only a relationship between the Home Secretary of the day and the director-general can embrace and satisfy. Whatever emerges through a supervisory or advisory board, or some consultative mechanism, we need to have confidence that it will embrace at least one or more of the new police and crime commissioners, representatives of chief constables and perhaps those elsewhere in policing, and the many other stakeholders who are legitimately concerned about how this new policing architecture will work.

I understand that perhaps Amendment 1 is a step too far because there are matters of national importance that maybe only the Secretary of State in the Home Office can have the chairmanship responsibility for. Yet I hope that the Minister will be able to move some

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way towards reassuring us that the new arrangements, however they emerge, will improve confidence, transparency and accountability in this important new agency, which I wish the very best. I hope it will succeed.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, I thank the noble Lord, Lord Condon, for his speech and in particular for the goodwill that he demonstrated towards the success of the NCA.

I hope that I do not disappoint noble Lords when I say that I will resist these amendments, but I will address the issue in some detail and fullness. Some of the elements will come up in later debates, but I recognise the importance to noble Lords of this particular group of amendments none the less. They go to the heart of the Government’s arrangements for the NCA. The noble Baroness, Lady Smith, reiterated the position that she outlined in Committee, that the NCA should be led by a statutory board headed by a non-executive chair.

I will come to my noble friend Lady Hamwee’s amendment later, because she talked about a slightly different form of governance. I start by addressing the amendment tabled by the noble Baroness, Lady Smith, and whether it is somehow necessary for the National Crime Agency to have a statutory board. We can establish quite quickly that it is not. The NCA is being established as a Crown body without incorporation. A Crown body without incorporation does not have a separate legal identity from the Crown, so incorporation and a statutory board are not, strictly speaking, required. The functions of the agency are conferred directly on the agency itself, not on a board. This is a tried and tested model for a non-ministerial department and works well for other similar agencies with which noble Lords will be very familiar, such as the Crown Prosecution Service and the Serious Fraud Office.

Not only is no statutory board required, but to create one would be detrimental to the effective governance of the NCA. The noble Lord, Lord Harris, spoke vigorously about the fact that he felt a governance board would be very effective for the NCA. However, we have designed the agency so that the Home Secretary —the elected Government’s representative who is accountable, not to nobody as the noble Baroness, Lady Smith, implied, but to Parliament—has clear strategic oversight, while the director-general, who would be an experienced crime fighter, provides the day-to-day operational leadership. Furthermore, we have designed the agency’s governance arrangements so that the director-general will be directly accountable to the Home Secretary, not beholden to a committee. In this way we will ensure that the accountability structures are clear, practical and non-bureaucratic.

The amendments of the noble Baroness seek to mirror the arrangements for the Serious Organised Crime Agency, which was blessed with the traditional quango-type structure, led by a non-executive chair and a board. However, as my noble friend Lord Henley pointed out in Committee, SOCA’s arrangements have risked more bureaucracy rather than more accountability. The current SOCA chair and board are excellent individuals who have done a good job, but to be led by

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a committee was never the right structure for a law enforcement agency. Police forces are led by chief constables directly accountable to a single individual—the elected police and crime commissioner. The National Crime Agency should similarly have an operational director-general at its head who is directly accountable to the Home Secretary.

The noble Baroness argues that the statutory board will help preserve the director-general’s operational independence. She is perhaps concerned that his operational independence might be dented by too frequent contact with the Home Secretary without the protection of a committee. My noble friend used the word “cosy”. I cannot reconcile that idea with reality. The director-general will be an experienced crime fighter and a strong leader in his or her own right, not a shrinking violet, and that is certainly not how anybody who knows Keith Bristow, nor any noble Lord with direct experience of governance in policing, would describe him.

To put it another way, the relationship between the director-general and the Home Secretary, just like that between chief constables and the police and crime commissioners, will be a robust, professional partnership where both parties have their own roles to play which are set out clearly in the legislation. In particular, Clause 4 establishes the operational decisions test which rests with the director-general. If the legislation is not enough protection, I do not see what a non-executive chair or committee is going to add, other than a further layer of bureaucracy through which the director-general’s discussions with the Home Secretary will have to filter.

Of course, we can all absolutely agree on the importance of good governance for the NCA. While the director-general is rightly ultimately charged with leading the organisation, in doing so he will obviously need and want the advice and challenge of other experienced voices from inside and outside the NCA. Here I can perhaps help noble Lords because the NCA, like other non-ministerial departments without statutory boards, will still need to have a management board to advise the director-general on the strategic direction of the organisation, ensure that there are proper audit and risk arrangements in place and so forth.

The outline framework document has been referred to and we will be discussing it later. I hope noble Lords have been able to see it, and I will try to make sure that copies are available in the Printed Paper Office, if they are not there already. It provides for the board to be established under the chairmanship of the director-general, which my noble friend Lady Hamwee referred to, and it will include non-executive members. The role of those non-executive members, just like non-executive board members anywhere else in government—or outside government, for that matter—will be to advise and challenge the executive on the basis of their outside experience and skills in order to help the organisation do better.

I contrast that picture of non-executive membership with the non-executive posts provided for in Amendment 2. Under the noble Baroness’s proposed model, the NCA board would comprise persons representing the views of police and crime commissioners

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and chief officers in the different parts of the United Kingdom. The noble Baroness argued that this is needed to ensure that the NCA is sufficiently alive to the interests of those groups. Clearly PCCs and the chiefs of the United Kingdom’s various police forces will be key partners for the NCA. That is why the Bill provides that they will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency through consultation on the NCA’s strategic priorities and the agency’s annual plan. The director-general will also, of course, want to engage personally with chief officers and PCCs across England, Wales, Scotland and Northern Ireland to ensure that the NCA is doing everything it can to help protect their communities from serious and organised crime. He will do that, and is already doing that, through building solid relationships with individual chiefs and PCCs, and through the Association of Chief Police Officers and the new Association of Police and Crime Commissioners. These practical working relationships will ensure that the NCA is alive to the complex needs of communities and of its partners that serve those communities.

Four individuals attending the NCA board could hardly do the same. In seating these individual representatives at the table of the NCA board, the noble Baroness has turned it from a board—in other words, a body which one might expect to focus on using its diverse experience to get the best possible performance from the NCA—into something more like a stakeholder forum for the NCA’s partners to air their views. I believe that the Government’s model is a better one and gives better direct access to the director-general.

My noble friend’s amendment would also create a statutory board for the National Crime Agency, in this case chaired by the Home Secretary with a further ministerial member and a number of non-executive members in addition to the NCA’s executive leadership. This is a similar structure to that adopted by ministerial departments, albeit that has never been set out in statute and nor, as far as I am aware, has anyone called for it to be so set out. I am not persuaded of the case for such a board. I appreciate that my noble friend’s amendment tries to leave the director-general in control of the agency and directly accountable to the Home Secretary by underlining that the board will function subject to the provisions set out in Part 1, but let us be pragmatic here. It will hardly help establish the director-general’s clear operational leadership of the agency if its key leadership body is chaired by the Secretary of State. Furthermore, many corporate management decisions that properly fall to a board—for example, on the people strategy—would not be for the Home Secretary, and she would not see it as her role to chair those sorts of deliberations, since to do so would cut across the director-general’s leadership and direction of the agency. So the director-general would still need to establish and chair an NCA management board to deal with those issues.

3.45 pm

I therefore fear that the creation of another ministerially chaired board runs the risk of adding another layer of bureaucracy to the agency. We are all familiar with

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such bodies, where one is required to rehearse the same issues as have already been debated in a previous meeting, for the benefit of a slightly different cast but to no additional effect. It would surely be far better to give the director-general and his team more time to get out on the job of fighting crime.

The noble Baroness, Lady Smith, asked whether the arrangements for appointing and, if necessary, dismissing the director-general were in conflict with the director-general’s operational independence. I can assure her that the NCA and its director-general will be operationally independent of government. This is hugely important and the Government are committed to protecting that independence. The legislation includes explicit provisions for the DG to be in complete control of whatever operation he or she chooses to run and how it is run; Clause 4 backs that up and lays it out.

In summary, these two approaches, while motivated by a genuine desire on the part of both the noble Baronesses to ensure that the NCA has good corporate governance, instead have the effects of undermining the clarity of the governance arrangements provided for in the Bill and introducing an unnecessary layer of bureaucracy into those arrangements. My noble friend has said in the past that she is not wedded to any one model. I welcome her open-mindedness and I commend to her and to the noble Baroness, Lady Smith, the clear and direct governance model that is set out here in the Bill, which we have chosen after careful consideration and to which we are wedded. I hope in the light of these remarks that the noble Baroness will consider withdrawing her amendment

Baroness Smith of Basildon: My Lords, when the Minister stood up, he said that he hoped not to disappoint the House with his comments, but I fear that he has indeed done so. It is interesting that not one Member of your Lordships’ House has spoken in support of the Government’s model for what it calls governance of the National Crime Agency. There may not be universal support for the amendment that I have put forward, but the issues raised by the noble Lords, Lord Harris, Lord Blair and Lord Condon, have illustrated their concerns about the governance model that the Government are putting forward.

I believe that the noble Baroness, Lady Hamwee, sought to help the Government by approaching it in a less comprehensive manner than appears in amendments proposed by myself and the noble Lords, Lord Rosser and Lord Blair, but even that seems to have been rejected by the Minister. I fear that a distinction has not been drawn that should be drawn between management and governance. Many of the Minister’s comments made sense in terms of the management of the National Crime Agency. However, the amendments that I put forward deal with governance. There is no attempt to say that the director-general should not, in his words, be in control of the agency, but there should be a governance board. The management board about which he speaks is chaired by the director-general, and, as I said in my comments, it does not do the job.

The Minister said that he was wedded to this model, but I hope that he will reflect on the comments made in your Lordships’ House today. The House is certainly

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not wedded to this model, although it does not have a universal view about a better model other than that there should be different governance arrangements that involve some kind of board. I hope that he will take the matter away and reflect on it. I do not intend to press my amendment to a vote today, but I hope that the Minister will reflect on the comments that have been made across the board in your Lordships’ House.

Amendment 1 withdrawn.

Amendment 2 not moved.

Schedule 1 : The NCA & NCA officers

Amendments 3 and 4 not moved.

Amendment 5

Moved by Lord Rosser

5: Schedule 1, page 36, line 23, at end insert—

“( ) 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.

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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.

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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

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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.

Amendment 5 withdrawn.

Amendments 6 to 8 not moved.

4 pm

Amendment 9

Moved by Earl Attlee

9: Schedule 1, page 38, line 29, at end insert—

“( ) Paragraph 12(1) does not apply to a member of a special police force who is an NCA officer by virtue of a secondment.

Secondments by NCA

(1) The Director General may make arrangements for NCA officers to be seconded to a UK police force.

(2) An NCA officer who is seconded to a UK police force is, whilst on secondment, under the direction and control of the chief officer of the police force (but is not a member of the police force).”

Earl Attlee: My Lords, I am conscious that there are a large number of amendments in this group, but they are all essentially technical and drafting in nature. In a few cases, they respond to points raised in Committee and I will deal with these first.

On the first day of Committee on 18 June, I undertook to consider an amendment tabled by my noble friend Lady Hamwee, which sought to provide for secondments from the NCA into police forces. As your Lordships will be aware, the Bill already contains provision for secondments in the other direction, so that police officers can be seconded to the NCA. On reflection, we agree that this was an omission. Amendment 9 makes the necessary change to ensure a two-way exchange of NCA and police officers.

On that first day of Committee, my noble friend also had a probing amendment designed to test why the Bill provided for compensating only NCA specials for loss of salary as a result of an injury or death on duty. We agree that it would be helpful not to unnecessarily restrict the scope of the scheme. Amendments 10 to 13 therefore remove the limitation in respect of loss of salary. The scheme through which NCA specials would be eligible for compensation will, of course, be subject to set criteria as with all existing schemes for public servants. In reality, the calculations made under such schemes are frequently linked to loss of remuneration, so I do not want to give the impression that the scheme

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for NCA specials will necessarily adopt a different approach. Nor do I want to limit the scheme so that NCA specials who do not receive a salary elsewhere cannot be adequately compensated. I should add that these amendments will also make it possible for NCA specials to be covered by either the Civil Service injury benefits scheme or another stand-alone scheme to be established by the NCA, as appropriate.

Amendment 26 addresses an issue raised by the noble Lord, Lord Rosser, in Committee. The noble Lord will recall that he drew attention to the fact that there was no requirement for the Secretary of State to consent to a direction by the director-general to the chief constable of the British Transport Police to provide assistance to the National Crime Agency. It was our intention to include this consent requirement—it already applies where a direction is made to one of the 43 territorial forces—and I am grateful to the noble Lord for highlighting this gap in the Bill.

Amendment 35 closes a gap in the independent oversight arrangements. It extends the remit of the Police Ombudsman for Northern Ireland to include complaints and conduct matters arising from the exercise of asset recovery functions by NCA officers in Northern Ireland. The Bill already provides for the remit of the Independent Police Complaints Commission to extend to such matters in England and Wales.

Amendments 39 to 55 extend the power to make schemes for the transfer of staff, property, rights and liabilities. As noble Lords will be aware, the National Policing Improvement Agency is currently being wound down as a prelude to its abolition following the enactment of this Bill. Most of its staff and property will have been transferred to the successor bodies by December of this year, but there may be some residual staff, property, rights and liabilities that fall to be transferred on formal abolition of the NPIA. Schedule 8 already enables schemes to be made to make transfers from the NPIA to the National Crime Agency but, as a precaution, these amendments also enable transfers from the NPIA to the Home Office.

Amendments 52 and 56 make transitional provisions in consequence of the abolition of the Serious Organised Crime Agency and the NPIA. Amendment 52 ensures that corporate liability for any criminal acts—for example, health and safety breaches—committed by SOCA or the NPIA passes to the successor body. It is also critical that in creating the National Crime Agency we do not undermine the operational integrity of things done by SOCA or other precursor bodies. In particular, we need to ensure that operations and investigations started by SOCA can and will continue to be investigated and taken through to conclusion by the National Crime Agency.

Amendment 56 has been drafted so that it captures a wide range of documents, contracts, authorisations and legal proceedings. For example, it is important that search warrants secured by SOCA under the Police and Criminal Evidence Act or authorisations granted by senior SOCA officers under RIPA continue to have force at the point at which the National Crime Agency takes over from SOCA. Amendment 56 also ensures that three statutory instruments made under Part 1 of the Serious Organised Crime and Police

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Act 2005 continue in force, with the necessary adaptations, when the relevant order-making powers are repealed and replaced by equivalent powers in Part 1 of this Bill. Both measures will, as I have said, ensure a smooth transition from SOCA to the NCA.

The other amendments to Schedule 8 in this group make further consequential amendments to various enactments and subordinate legislation to repeal or replace various statutory references to SOCA. I draw the particular attention of my noble friend Lady Hamwee to Amendment 76, which makes consequential amendments to the Equality Act 2010. My noble friend asked in Committee on 20 June why paragraph 4 of Schedule 4 to the Bill made particular provision for the application of discrimination legislation in Northern Ireland but seemingly not in other parts of the United Kingdom. These amendments to the Equality Act ensure that all NCA officers are protected by the relevant discrimination legislation in each part of the United Kingdom.

Finally, I draw the House’s attention to Amendment 62, which builds on the existing provision in the Bill enabling police officers to retain, in certain prescribed circumstances, their police pension when appointed to posts within the NCA. This amendment extends that provision to include reservists in the Police Service of Northern Ireland so that they are on an equal footing. As I indicated at the start, these amendments cover a lot of ground but I trust that your Lordships will agree that they are necessary changes to refine and build on the provisions of the Bill and to ensure a smooth transition from SOCA to the National Crime Agency. I beg to move.

Baroness Hamwee: My Lords, my heart sank when I saw the enormous number of government amendments to the Bill. It lifted quite a lot when I realised that the first amendment, on secondment, and the next, on compensation for specials, were in response to points that I made at the previous stage. Then to bookend it, as it were, was the amendment to the Equality Act to which the noble Earl has just referred. I am grateful to the Government for taking those points on board.

I have two amendments to the government amendments, both of which are quite small points. They both refer to Amendment 56. The first would take out proposed new sub-paragraph (7), which provides for determination by the Secretary of State as to the two circumstances set out. I hope that the Minister is aware that my question is on whether the determination should be a matter for the court or the employment tribunal, which is likely to be the relevant tribunal. It occurs to me that the Home Secretary could be a party to the proceedings in question and it seems to deserve a little explanation as to it always being proper for the Secretary of State to determine these questions.

The second amendment is to the provision in proposed new sub-paragraph (12)(b) that deals with,

“the reference to the assumption of a third party function”,

which is limited to the three functions listed. I should be grateful if the Minister can confirm that these are the only cases. My reason for asking is that proposed new sub-paragraph (12)(a) uses the term “includes”

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and (12)(b) uses the term “is”. Is there no assumption of a function unless there is also a transfer of staff? That is what I read into this, but I may well be wrong.

Baroness Smith of Basildon: My Lords, I confess that when I see a list of almost 50 government amendments that the Minister describes as technical and drafting, I realise that I am becoming quite cynical as I get older. By and large they are technical and drafting amendments, but I have some questions, some of which the noble Earl has sought to address in his comments. However, if I may, I will press him on a couple of points for an explanation.

On government Amendments 10 to 12, compensation of NCA specials is addressed. The amendments take out “NCA” with regard to compensation. The Minister said that that is because they may be compensated from elsewhere. I am not quite clear where the elsewhere would be that would allow for expenses and compensation to NCA specials. Does he envisage a greater role for the private sector to pay them, for example? I do not know, but is he able to elaborate further? That was clearly not envisaged during Committee or when the Bill was first drafted. I am unclear why the Government have felt the need to change it. Who else will compensate or pay the expenses of NCA specials?

I also thank the Government for dealing with the comment made by my noble friend Lord Rosser about clarifying the position on which Secretary of State would apply regarding transport. That was helpful. As regards the transitional provision, I am sorry that this was not in a separate group of amendments because that might have been helpful to your Lordships’ House. We discussed this in some detail during earlier stages of the Bill and I have asked Parliamentary Questions about the transitional costs and how the transition should be arranged. The concept of the transition from the predecessor organisations to the NCA is extremely important.

4.15 pm

One of the issues the Minister sought to address in his comments was the new proposals in the government amendments—which he described as a precaution—in regard to staff from the NPIA being transferred to the Home Office, presumably on their way to the NCA. I am unclear about how many staff we are talking about. The Government say that it is a precaution but, surely, not being able to make the transition of staff in time should have been envisaged when the Bill was first drafted and these issues were discussed. Have issues arisen so that the Government are not in a position to transfer staff and so on in the timescale first envisaged? It would be helpful to know what progress is being made because there is nothing helpful regarding this in the outline of the framework document.

There is also nothing about finances in relation to the transitional position. The Minister will understand my concern—I have raised the issue and asked Parliamentary Questions on it—that the new National Crime Agency will take on not only the responsibilities of the predecessor bodies but new responsibilities, particularly in relation to CEOP. I understand that no additional funding is being provided so can the Minister

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explain, when he is responding on transition, why there is nothing in the amendments to deal with the increased costs of transition? Is he still satisfied that all the new responsibilities and transition arrangements can be met from the new, reduced budgets?

Earl Attlee: The noble Baroness, Lady Smith, asked who else would compensate. I referred in my speech to a number of possible schemes but I think that it would be helpful if I wrote to the noble Baroness in full detail. Some inspiration has arrived: it will be for the National Crime Agency to determine the most appropriate way of ensuring that NCA specials are covered if they were to be injured or killed on duty. That may be through the Civil Service injury benefit scheme or—if the existing rules of that scheme do not allow adequate provision for individuals who may spend the majority of their time working for another employer—through a separate, tailor-made scheme. The Civil Service scheme, of course, is managed by the Cabinet Office. If I have any further details to add I will write to the noble Baroness.

The noble Baroness also asked how many staff are involved in these provisions. I would imagine that the numbers are fairly low. However, the provisions are precautionary in ensuring that we have sufficient flexibility to deal with any unexpected problems. Again, I will write with the details. The noble Baroness also teased me slightly about the transitional provisions and the funding thereof, but I am sure that she will accept that these are legal provisions to move from SOCA and CEOP to the new NCA.

I am grateful to my noble friend Lady Hamwee for explaining her two amendments, Amendments 57 and 58, to government Amendment 56. Amendment 57 relates to the Secretary of State’s power to determine any questions as to whether a particular function of a precursor body has been transferred and to whom it has been transferred. My noble friend questions whether this should be a role for Ministers or for the courts or, as she explained, for an employment tribunal. Schedule 8 already provides for transfer schemes to be made by the Secretary of State and the Bill provides for the abolition of SOCA and the NPIA. Therefore, in circumstances where there is any doubt, we consider it an administrative task to determine whether a particular function has been transferred from one body to another. This is not an area where we need to involve the courts. I would add that the Police Reform and Social Responsibility Act 2011 adopted a similar approach in relation to the continuity of functions exercised by police authorities when such functions transferred to police and crime commissioners.

I turn now to Amendment 58. It may help if I explain the effect of proposed new paragraph 5A(12) of Schedule 8 as inserted by government Amendment 56. Sub-paragraph (12)(a) is concerned with ensuring the continuity of things done by either SOCA or the NPIA once they are abolished and a successor body takes on the corresponding functions. Sub-paragraph (12)(b) is concerned with ensuring the continuity of things done by a third party where some of the functions of that third party are being taken over by the NCA. The language used in the drafting of these two paragraphs is a reflection of the fact that the NCA will take on

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functions corresponding to those undertaken by SOCA and in part by the NPIA, which are to be abolished. It will also assume some of the functions of the other third party precursor bodies which continue in being. With that explanation, I hope that my noble friend will be content not to press her amendment.

Amendment 9 agreed.

Amendments 10 to 13

Moved by Earl Attlee

10: Schedule 1, page 38, line 39, leave out from “prevent” to “the” in line 40 and insert “provision being made for—

(a) the reimbursement of”

11: Schedule 1, page 39, line 1, leave out “providing for”

12: Schedule 1, page 39, line 3, leave out “providing for”

13: Schedule 1, page 39, line 4, leave out “of salary”

Amendments 10 to 13 agreed.

Clause 2 : Modification of NCA functions

Amendment 14

Moved by Baroness Smith of Basildon

14: Clause 2, leave out Clause 2

Baroness Smith of Basildon: My Lords, this is one of the most important and significant amendments that we are putting forward because it addresses one of the most serious clauses in the Bill. In Committee the noble Lord, Lord Alderdice, raised specific concerns relating to Northern Ireland about this clause. The noble Lord was concerned whether the Northern Ireland Executive would agree a legislative consent Motion. I raised similar concerns and said that this matter would have to be resolved. I will not go into the specific detail of those issues today, but it would be extremely unsatisfactory to agree that the Government can take the power to transfer counter-terrorism from the Metropolitan Police to the National Crime Agency without further primary legislation to consider the serious and complex issues affecting Northern Ireland.

When we discussed this in Committee, the response from the then Minister, the noble Lord, Lord Henley, was not encouraging. In fact, it gave me cause for concern—the noble Earl, Lord Attlee, seems surprised at that. The noble Lord, Lord Henley, said:

“I understand that the Justice Minister and the Justice Committee of the Assembly … have agreed in principle to take forwards a legislative consent Motion, and officials in the Department for Justice in Northern Ireland are seeking to secure the agreement of the Executive Committee before proceeding to the next stage. Any legislative consent Motion needs to be adopted by the Assembly before the Bill reaches its last amending stage. Although things have not been proceeding quite as quickly as we might wish them to have done, since we know that the Bill is designed not to proceed as quickly as sometimes Ministers wish Bills to proceed and we will not complete the Committee stage until October, there is a considerable chance that we will get to that stage before the Bill gets on to the statute book”.—[Official Report, 18/6/12; col. 1609.]

There are no guarantees of that, and saying that we think it might get there is not good enough.

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As well as concerns about the complexities of Northern Ireland, there are serious constitutional concerns over why this clause should be deleted from the Bill. Clause 2 allows for modifications to the National Crime Agency specifically to allow the NCA to take on the counter- terrorism functions through the super-affirmative procedure. Clearly the Government recognise the sensitivity of the issue, and that is why they have chosen the super-affirmative procedure over the affirmative or, alarmingly, even the negative procedure, but the primary responsibility of any Government is to keep their citizens safe. Counterterrorism is a hugely significant part of ensuring citizens’ safety. It is currently undertaken by the Metropolitan Police who, over time, have built up considerable expertise and skills. If the Government wish to remove that responsibility and function from the Met, they would need to have a very strong case to do so. That case should be properly and fully examined by Parliament. There may even be a role for a Select Committee to look at the issue again. It should, at least, be a matter for primary legislation.

In Committee, the noble Lord, Lord Henley, relied on the response of the Home Affairs Select Committee to the new landscape of policing when it said that the Government “should consider” such a transfer of responsibilities after the Olympics. Consideration is one thing, because that consideration would allow the Government to make their case and would allow Parliament to exercise its judgment. However, the committee did not say that the Government should take the power to do so by way of a Henry VIII clause. In effect, we have here an enabling power for the Government for one of the most serious and crucial roles that a Government can fulfil and although it would have to be passed by super-affirmative order, that really is not the same as full parliamentary scrutiny through primary legislation. The Constitution Committee raised its concerns and described it as,

“an order-making power of the ‘Henry VIII’ type”.

Also raised in Committee was this comment from the Constitution Committee:

“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 Constitution Committee looked at the issue around Clause 2 and what the test was to say if it should be undertaken by an order, albeit super-affirmative, or primary legislation. It said:

“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”.

By ensuring that such changes could only be made by primary legislation, the Government would have the opportunity to make a clear, defined and first-rate case for the transfer of these functions. I am not convinced that they have yet done this, though that is the subject for a separate debate. The Joint Committee on Human Rights says on page 10, paragraph 15, of its recently published Legislative Scrutiny: Crime and Courts Bill:

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“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”.

If the Government wish to have the power to move counter-terrorism to the National Crime Agency and to do so without primary legislation, they have to have strong arguments and reasons why. Your Lordships’ House is not unreasonable, it would listen to those arguments—but the National Crime Agency is in its infancy. It is a new body and the full details of how it will operate, its governance arrangements and its interrelation with other organisations have not yet been tested or even fully worked out. We do not even have the framework document, just a list of items that will go into it.

Despite my worries about funding, I have great expectations and confidence in the National Crime Agency. However, as legislators, Parliament should have the opportunity to access that before giving the power to transfer responsibilities that the Government are asking for today. There would be a question as to whether we were abdicating our responsibility if we did not take the opportunity to have full primary-legislation scrutiny of such an important and serious measure. Great care has to be taken when dealing with national security and the security of citizens, with full examination of all the facts and all the relevant issues. I do not consider that the Government have made their case sufficiently well to allow this House to give them such a wide-ranging power that they can, without full primary-legislation scrutiny but merely by super-affirmative order, transfer counterterrorism from the Metropolitan Police to the National Crime Agency, which is not yet even a fully functioning body and where there is still work to be done. That case has not yet been made. I beg to move.

4.30 pm

Lord Blair of Boughton: My Lords, I declare my registered interest in policing. Last week, during the debates on the Justice and Security Bill, a number of noble Lords expressed the sentiment that national security is the first duty of government. I agree with that point of view. I put my name to this amendment because I believe that Clause 2 directly affects national security and so, in my view, is more important than any other clause in this section of the Bill.

The Metropolitan Police currently has—and has had for many years—primacy for counterterrorist law enforcement in all parts of the United Kingdom, including Scotland and Wales, although not Northern Ireland. The roles of the commissioner, the Assistant Commissioner for Specialist Operations—who, by agreement, is the ex-officio chair of the ACPO Terrorism and Allied Matters Committee—and of the National Coordinator of Terrorist Investigations, who are all Metropolitan Police officers, are understood and accepted

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by chief officers of police throughout the land, and by our colleagues in the security services and the Special Forces.

A whole regime of counterterrorist units outside London and national procedures has been developed, including the ceding to the Metropolitan Police of ultimate responsibility for CT executive operations. This is an effective and tried and trusted regime that allows for the transmission of intelligence and decisions about surveillance, interception and arrests to flow from the very local to the global, and vice versa, without crossing organisational boundaries—the curse of arrangements in so many countries, including the United States.

However, along with the noble Baroness, that is not the case that I make today. The decision as to arrangements for counterterrorist policing, including whether they should be passed from the Met to the NCA, is not a matter for the police or even for ex-commissioners of the police, but for Parliament. However, I suggest it should not be done this way. I understand the super-affirmative procedure laid out in Schedule 18, and it has many checks and balances, but it is essentially passive. It does not require debate in depth. The kernel of my argument for deleting this clause is that nothing is more important than national security, and in my lifetime no change more significant than this in the policing arrangements to protect our nation has ever been contemplated. A change in the NCA’s responsibility may be right, but it may not be. Lives—lots of lives—may depend on this piece of legislation. Such a decision deserves primary legislation, to allow the suggestion to be scrutinised, debated and amended by both Houses of Parliament.

Moreover, I am suspicious of the motivation behind such a change even being contemplated. He has been mentioned already in your Lordships’ House today, but from the very moment he entered office in 2008, the Mayor of London, Boris Johnson, began to speak to me, as commissioner, and to others, about the anomaly of the police of London having responsibilities outside London; not only for counterterrorism but for investigations in UK overseas dependent territories and the protection of prominent persons, including the Royal Family, wherever that might be. He and his senior advisers wanted those duties removed. The reason for that was not economy, or the security of London, but so that he and his successors had the untrammelled ability to select and dismiss the Commissioner of the Metropolitan Police without reference to the Home Secretary, who currently recommends the person to be appointed to that post to Her Majesty the Queen. I do not know where this idea has come from. I do not know whether the current idea is in some sense about tidying up—a conviction on the part of the Government. However, if it has entered government thinking in order to satisfy a mayoral ambition, that would be wrong both in practice and in principle. I would be grateful to be assured by the Minister that such ambition has no place in this legislation.

As I said at the beginning, I am not here arguing the case for the status quo, nor for change, but merely because I know—having spoken to them—that senior police officers who have current responsibility for

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these matters believe that the maximum public scrutiny should occur of the reasons for and against such a change. They are owed no less. The people who do this have a very dangerous and responsible job. They believe with me that, “It ain’t broke, so it doesn’t need fixing”.

Lord Condon: My Lords, I support this amendment. However, I must say at the outset that I am not interested in turf wars between the Metropolitan Police and the new NCA; I am not interested in protecting the status quo or over-arguing that it should remain with the Metropolitan Police. But I am passionately engaged in the constitutional issues which have been set out by the noble Baroness, Lady Smith, in moving the amendment. This is a hugely important matter that deserves primary legislation rather than an affirmative order, however comprehensive that seeks to be. I had the role for seven years of worrying about terrorism nationally. I worked very closely with all the agencies involved here and abroad. History tells us that more than 80% of terrorist incidents in this country happen in London. The fight against terrorism is as much about hearts and minds as it is about laser-like operations to combat terrorism. That hearts and minds approach involves great co-operation with local communities; in the London context, that has involved working with the Islamic community, with the mosques, the schools and the integration of neighbourhood policing in that preventive role. In London, therefore, there is a very inter-connected prevention and detection response to terrorism which has been built up over many years and in response to terrorism which has emerged from all around the world.

As I say, I am not interested in a turf war or in arguing for the status quo. However, this is hugely important for this country. The Constitution Committee has isolated why this is so important and why primary legislation is more desirable than the super-affirmative process. I support the amendment passionately.

Lord Dear: My Lords, I, too, declare a registered interest from my experience in policing. I would add in this context that I know quite a lot about terrorism, having suffered two determined attempts on my life at the hands of terrorism, once in this country and once in India. We are talking about the National Crime Agency. I have already spoken in your Lordships’ House on 1 November, giving some examples of the gravity of the issues with which the NCA is likely to be confronted once it gets under way. Its role in the whole architecture of policing will be not only important but critical. One should reflect on the fact that it will be responsible for international dimensions, so far as they interface with and affect the United Kingdom, certainly England and Wales: national, cross-border, inter-force and cross-boundary dimensions of crime. That is what we are talking about: whether the NCA is a proper receptacle for this additional responsibility.

Having served in the Metropolitan Police for five years, I, too, recognise the first-class service on counterterrorism that it has given the population, not only of London but of the whole United Kingdom, going all the way back over 100 years to the special Irish branch, which re-named itself the Special Branch;

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to the 1970s, when the IRA and the Provisional IRA began bombing in London and elsewhere; to the bomb squad, as it was then called; and to the counterterrorist commands that we see today. If there is any logic at all in counterterrorism, it has to be handled nationally—by definition, the National Crime Agency is national.

At some stage, an argument could well be advanced to move counterterrorism into the ambit and responsibility of the newly formed National Crime Agency, but clearly not yet; the National Crime Agency is not yet born. In its gestation period and infancy, I suspect that it would not be able to pick up and run with the complexities and importance of counterterrorism. But there might come a time in the future when that case can be made—I do not say that it necessarily will be made, but it might be. It seems both sensible and proper that we should be able to legislate to move counterterrorism from the Metropolitan Police to the National Crime Agency if that case is proved.

Like the noble Lord, Lord Condon, I, too, hope that we are not going to get into turf wars over this. The Metropolitan Police has proved itself, as I have already said, and it is right to put on record the high degree of skill that it has demonstrated over many years and indeed the enormous personal bravery of some of its officers on occasions, to whom we owe a great debt. However, I do not think that we should stand in the way of a properly proven logical rearrangement.

The nub of the issue is set out in the Joint Committee on Human Rights paper published on 20 November, which has already been alluded to. I take no position on this, other than to say that on balance—I suppose that I am taking a position; it is a very fine balance—I am prepared to go against the amendment and with the Government. However, I would need reassurance that were such a move to take place—not now but in the months, perhaps even years, to come—there will be a proper consideration of the reasons for such a move, so that one can be satisfied that the decision is being taken in the open, so far as the diktats of confidentiality and so on are concerned. If one follows that line of reasoning, there can be no objection to the clause as it stands.

I do not want to get into a turf war; that would be totally improper. Recognising the severity and the importance of the issues concerned, I simply make the point that a logical rearrangement in the future, if it is so proved, would be the way to go.

Lord Lloyd of Berwick: My Lords, my only excuse for intervening is that I was the author of the report on which the Terrorism Act 2000 was based. I was also the first Interception Commissioner and therefore had direct experience of the counterterrorism activities of both the Security Service and the Metropolitan Police.

I have not always agreed with everything that the noble Lord, Lord Blair, has said, but on this occasion I find myself in substantial agreement with him and also with what the noble Lord, Lord Condon, said on the constitutional issues involved. It may be that at some stage it would make very good sense for counter- terrorism functions to be transferred to the new agency, but not now and certainly not by order. I am not as

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comfortable on these matters as the noble Lord, Lord Dear. If the matter were put to a vote, I would vote with the amendment.

Lord Harris of Haringey: My Lords, the noble Lord, Lord Blair, concluded his remarks by advising the Government with the old adage, “If it ain’t broke, don’t fix it”. Of course, that is not quite what the Government are talking about here. The Government’s approach on a number of other issues is, “If it ain’t broke, take it to pieces anyway and see what happens”. However, the problem is that this clause, which my noble friend’s amendment will delete, is saying that if the Government decide that they want to change this, it will go through by the super-affirmative procedure without the full, detailed scrutiny of all the issues involved. That is why the Constitution Committee has highlighted the constitutional issue, and why so many noble Lords are concerned about it. If the Government were to propose this, it would be a very major issue with all sorts of ramifications. It is not something that would lend itself to a one-hour debate at 7.30 pm in your Lordships’ House.

4.45 pm

There are a whole number of issues. The first is about the value or otherwise of the integration of counterterrorism policing with mainstream policing. There are arguments about that in terms of the importance of being totally linked in to intelligence gathering, which may happen at the lowest level when neighbourhood police officers pick up indications that something is happening in an area. However, it is also about the importance of linking it to mainstream policing because of the consequences that some counterterrorist operations have for community relations.

I live quite close to the Finsbury Park Mosque. I recall, as I am sure the noble Lord, Lord Blair, does, the occasion when the Metropolitan Police felt that it was necessary to raid that mosque. It was highly contentious, in terms of potential local community reaction. However, because the Metropolitan Police knew that they would be policing the area in the months and years that followed, police officers stood outside the police and railway stations and all around the area and leafleted people. They explained the context of the raid, what had been done and what safeguards had been put in place to protect the sensibilities of those who worshipped at that mosque.

I question how easy it would be to maintain all of that—the intelligence gathering and the sensitivity to community reaction—if you separate it out. A debate is to be had as to whether or not that is possible. Then there is a whole series of debates that have to happen about what would be the model if you were to transfer some or all of these functions to the National Crime Agency. There are all sorts of levels; it could simply be the national co-ordination function, or the counter- terrorism units that are spread all around the country, or all sorts of other things that are embedded in local police services. These are major debates, with major implications, both in terms of the structure of police forces and in terms of the effectiveness of the services concerned.

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I know that we have just despatched the issue of the governance of the National Crime Agency, but there still remains a significant question. We may need to revisit the questions of the governance of the National Crime Agency in the context where it was engaged in issues that have enormous ramifications for community and security. We might feel that a different governance model would be necessary. That is not possible with the clause as originally proposed in this Bill.

Finally, the noble Lord, Lord Dear, and others, have referred to the question of whether this is the right moment to consider this. The National Crime Agency is yet to be established; as we know, the legislation is not yet through. I suspect that the National Crime Agency will have a considerable task to establish itself and carry out its main functions. Potentially, if you were to move counterterrorism into the National Crime Agency, you would completely distort the agency. The number of police officers engaged in counterterrorism exceeds the numbers that are talked about in terms of the National Crime Agency by a significant factor. You would, therefore, distort the way in which the proposed new agency operates. The question is: will you move something that works comparatively well at the moment to something that has as yet to exist, in a way that may destabilise and distort the functioning and direction of the National Crime Agency?

All of these are major debates, and I suspect that Parliament might wish to spend a considerable time debating and considering each one. However, we are told that this should be agreed, essentially today, so that the Home Secretary has the provision in the future, at some unspecified time when he or she feels that it is necessary, to propose that an affirmative order be laid before Parliament to make this happen.

Why is it necessary to have this clause in the Bill today that allows this to happen at some unspecified time in the future, before the Home Office has even considered these issues or there has been a debate, both within the police service and outside, about whether it is a sensible thing to do? Why is it necessary to have an arrangement for a super-affirmative order in the Bill for us to agree today when no one is clear when this might happen or when the National Crime Agency might be available to receive it? That seems an extraordinary procedure to follow and an extraordinary way to go forward, particularly when you have the Constitution Committee of this House saying that there are grave doubts about the way in which this is being proposed.

As I have said, there are four or five major issues which would need to be considered and debated. Those debates have not taken place. Why have a clause that allows those debates to be pre-empted?

Lord Taylor of Holbeach: My Lords, I have a job to steady the House on this issue. It is an important issue and I understand the commitment that noble Lords have shown in addressing it.

The functions of the National Crime Agency have been drafted in broad terms to ensure that the agency is able to tackle all the crimes that organised crime groups are involved in. However, it will also be important that the agency is able to react quickly to any changes

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in the threat picture. The creation of a new agency with a focus on national threats and the co-ordination of the UK-wide response naturally brings with it consideration of counterterrorism. We have always been clear that counterterrorist policing already has as it stands effective structures but that in time it might be right to consider these national arrangements in light of the reforms that have been made to the national policing landscape.

The maintenance of our highly regarded counter- terrorism policing effort is paramount. Any consideration of changes will not be undertaken lightly by any Government, nor is it wise to distract or disrupt the critical structures with unhelpful speculation. But it is also sensible that we give careful consideration to how we can best future proof the National Crime Agency for a potential role in counterterrorism in the future. 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 establishment of the NCA. Only then will it be right to look at how counterterrorism policing is co-ordinated across England and Wales and 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 that role might be.

Lord Lloyd of Berwick: I am not sure I entirely understand this and it may be important. Is there to be a further review after the creation of the new agency and before these powers are exercised? If there was to be a further review, I might be satisfied.

Lord Taylor of Holbeach: Absolutely: I assure the noble and learned Lord that that is exactly the process that we are talking about. It may help noble Lords in this regard if I explain how government policy would be determined by a consultative process before any decision was taken. I thank the noble and learned Lord, Lord Lloyd of Berwick, for making that point.

Clause 2 provides for an order-making power so that the Secretary of State can modify the NCA in relation to counterterrorism functions, including by conferring or removing functions. The order-making power is limited to changing the functions of the National Crime Agency. It does not provide the power to change the functions of other organisations unrelated to the National Crime Agency or to close down organisations. Given the importance of such a decision in the future, before an order can be made the Home Secretary will be required to consult any bodies that she considers will be affected by the order. The order itself will also be subject to the super-affirmative procedure, which is an extended programme of scrutiny by both Houses and indeed the committees of the House.

As a number of noble Lords have pointed out, the Joint Committee on Human Rights yesterday published its report on the Bill and, among other things, raised the question of the mechanism for modifying the functions of the agency. Indeed the report, not unlike the debate today, called for the removal of Clause 2. I can appreciate the concerns of the committee in relation to human rights—these will indeed be important matters

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for the Government to consider. However, the statutory mechanism for modifying the functions does not diminish the obligations on the Government to give consideration to, and provide assurance on, a whole host of possible implications of a potential future decision. Human rights are only one aspect of a number of consequential effects of any change in policy in this area.

In addition to the Government’s considerations on any future changes, it is important that Parliament can give due time and consideration to any future decisions to modify the agency’s counterterrorism functions. The super-affirmative procedure set out in Schedule 18 will provide Parliament with the appropriate level of scrutiny should an order be made in the future. The House has been reminded of the view of the Constitution Committee on this matter. I will take the opportunity to remind the House of the conclusions of the Delegated Powers and Regulatory Reform Committee. In its report on the Bill it made no recommendation in respect of this power but did comment:

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

There is nothing new in this process that offends the traditions of Parliament.

Lord Harris of Haringey: Is there another example of where powers have been added to an existing body that completely distort the functions of that body and increase its activities by 50% or 100%? When the noble Lord answers that point perhaps he can also tell the House why the Government are so desperate to be able to do this by an order-making power rather than by coming back to the House with perhaps a small piece of legislation that has already had the very full consideration that he describes and which could be debated in the normal way.

Lord Taylor of Holbeach: A number of noble Lords will remember that in a previous role in this Government I took through the House the Public Bodies Bill where issues such as this occurred. I should emphasise that any bodies affected by any change will be consulted and the whole matter will be a matter of public debate. It is not going to be sprung as a surprise on an unwitting Parliament.

The noble Baroness, Lady Smith, mentioned Northern Ireland and I was grateful for the sensitivity with which she raised this issue. It is complex and I think noble Lords will appreciate that. We will have an opportunity on the ninth group of amendments to discuss it more fully. The order-making power recognises the important and different arrangements in respect of counterterrorism policing in Northern Ireland and the clause is drafted to respect those arrangements. Should an order be made to confer counterterrorism functions on the National Crime Agency in the future then the agency will require the prior agreement of the Chief Constable of the Police Service of Northern Ireland before it can undertake activities in Northern Ireland in relation to the prevention and detection of terrorism. This arrangement reflects and preserves how the operational relationships work at the moment in relation to counterterrorism policing in Northern Ireland.

27 Nov 2012 : Column 122

It is critical that in creating the National Crime Agency, we do not limit its ability to respond to the changing threat picture of the future. For this reason, the statutory remit of the agency is broad, yet it provides a clear mandate for the agency. However, the clear remit conferred on the agency by Clause 1 and the flexibility of these arrangements go only so far and would not provide sufficient scope for the agency to take on a counterterrorism role in future. This order-making power affords the necessary flexibility to extend the agency’s functions to encompass counter- terrorism.

5 pm

Lord Harris of Haringey: I am grateful to the noble Lord for giving way a second time. Would the order-making power enable the Government to change the Police Act 1996 which confers counterterrorism responsibilities on the Metropolitan Police?

Lord Taylor of Holbeach: The effect of the order-making power would be to make new arrangements for counterterrorism policing in the United Kingdom, if that was the decision that was made. I cannot state the matter more clearly. No decision has been made. I am arguing neither for nor against the change. I speak neither for the status quo nor for the future. I am seeking to provide through the Bill a mechanism by which future government decisions can be reflected after a due process of consultation with all bodies involved and after the parliamentary process.

We expect police and other partners to be fully involved in the review when the time is right. Any decisions should be evidence-based and preserve those features of the current arrangements that work well. No one is going to upset an arrangement that is fully satisfactory unless they can be certain that the alternative arrangement will be an improvement.

We all recognise that counterterrorism policing structures work effectively. It is right and proper that we do not rush decisions in relation to counterterrorism now. Equally we do not want to rule out the possibility of some change in the future. I therefore urge the noble Baroness to withdraw her amendment.

Baroness Smith of Basildon: My Lords, I am grateful to the Minister for explaining some of the reasoning behind the Government’s position. At the very beginning of his comments, he said something with which I entirely agree. If my handwriting was fast enough to catch his comments, he said, “In time it might be right to consider these national arrangements with changes to the national policing landscape”. I entirely agree with him on that point. It may well be the right thing to do, but the issue is the consideration that your Lordships’ House is able to give to those proposals. The Minister referred to a review on this issue. My understanding is that there is a Home Office review, but it seems a bit premature to make decisions at this stage to give a power to the Government to transfer the counterterrorism function from the Metropolitan Police to the new National Crime Agency without the full consideration in Parliament that a primary legislation route would allow. This is an extremely serious issue.

27 Nov 2012 : Column 123

As I said in my original comments, nothing is a more serious function of government than ensuring the safety and security of citizens.

I am not an expert on counterterrorism. I defer to the noble Lords, Lord Blair and Lord Condon, in the role that they have had. They expressed serious reservations about the transfer. They said that that is not the issue at stake today and made the case that it should be undertaken only after full scrutiny. The noble Lord, Lord Condon, said that he did not want to see a turf war between the Metropolitan Police and the National Crime Agency. The noble Lord is absolutely right in that. I do not think that there will be a turf war. My experience of those involved in counterterrorism responsibilities and security is that they want what is best. I think that they would have an enormous contribution to make if this House were discussing the issues and we had legislation before your Lordships’ House and the other place on the role of the security agencies and the role of those involved in counterterrorism in the Met. They would make presentations to your Lordships’ House and to committees—perhaps to a Select Committee—and that would be extremely valuable in considering this issue.

The noble Lord, Lord Dear, said that he felt that the NCA could, in time, be a proper receptacle for counterterrorism. It may well be, but I do not think that is the issue today. The issue is whether it is appropriate at this stage to give the Government the power to transfer counterterrorism from the Met to the National Crime Agency by a super-affirmative order. I personally think that the super-affirmative order is a clumsy legislative mechanism. Noble Lords who have read Schedule 18 might not be reassured by that. However, the route of primary legislation gives this House an opportunity to exercise its responsibilities in this regard.

To give the Government the power to transfer counterterrorism from the Metropolitan Police to the new National Crime Agency without full parliamentary scrutiny would be a serious step. The Constitution Committee has voiced concerns about it. The Joint Committee on Human Rights has said that this clause should be deleted from the Bill. The role of Parliament is properly to scrutinise legislation and properly scrutinise such serious matters. This clause will severely restrict the right of Parliament to scrutinise such a transfer of some of the most important responsibilities that the state holds. The Minister has sought to reassure us on this issue, but he has not been able to do so. I beg leave to test the will of the House.

5.07 pm

Division on Amendment 14

Contents 222; Not-Contents 201.

Amendment 14 agreed.

Division No.  1


Aberdare, L.

Ahmed, L.

Alli, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

27 Nov 2012 : Column 124

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Best, L.

Bhattacharyya, L.

Bichard, L.

Bilimoria, L.

Billingham, B.

Bilston, L.

Birt, L.

Blackstone, B.

Blair of Boughton, L.

Blood, B.

Boateng, L.

Boothroyd, B.

Borrie, L.

Bradley, L.

Brooke of Alverthorpe, L.

Brooks of Tremorfa, L.

Browne of Belmont, L.

Browne of Ladyton, L.

Butler-Sloss, B.

Cameron of Dillington, L.

Campbell of Surbiton, B.

Campbell-Savours, L.

Carter of Coles, L.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clinton-Davis, L.

Cobbold, L.

Collins of Highbury, L.

Condon, L.

Corston, B.

Coussins, B.

Crawley, B.

Curry of Kirkharle, L.

Dannatt, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Dear, L.

Donaghy, B.

Dubs, L.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Emerton, B.

Erroll, E.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Evans of Watford, L.

Exeter, Bp.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Freyberg, L.

Gale, B.

Gibson of Market Rasen, B.

Golding, B.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Greengross, B.

Grenfell, L.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Janner of Braunstone, L.

Jay of Paddington, B.

Jones, L.

Jones of Whitchurch, B.

Judd, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kilclooney, L.

King of Bow, B.

King of West Bromwich, L.

Kirkhill, L.

Knight of Weymouth, L.

Laird, L.

Laming, L.

Lea of Crondall, L.

Leitch, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Listowel, E.

Lloyd of Berwick, L.

Low of Dalston, L.

Lytton, E.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maginnis of Drumglass, L.

Mallalieu, B.

Masham of Ilton, B.

Maxton, L.

Meacher, B.

Mitchell, L.

Monks, L.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morrow, L.

Nye, B.

O'Loan, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Palmer, L.

Pannick, L.

Parekh, L.

Patel, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

27 Nov 2012 : Column 125

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prashar, B.

Prescott, L.

Prosser, B.

Puttnam, L.

Radice, L.

Rea, L.

Rendell of Babergh, B.

Richard, L.

Richardson of Calow, B.

Rogan, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stevenson of Balmacara, L.

Stirrup, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Tenby, V.

Thornton, B.

Tomlinson, L.

Touhig, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Uddin, B.

Walker of Aldringham, L.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Elvel, L.

Williamson of Horton, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Wright of Richmond, L.

Young of Hornsey, B.

Young of Norwood Green, L.


Addington, L.

Ahmad of Wimbledon, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor, V.

Astor of Hever, L.

Attlee, E. [Teller]

Baker of Dorking, L.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Bew, L.

Black of Brentwood, L.

Bonham-Carter of Yarnbury, B.

Bottomley of Nettlestone, B.

Brabazon of Tara, L.

Bradshaw, L.

Brinton, B.

Brittan of Spennithorne, L.

Browning, B.

Burnett, L.

Caithness, E.

Carlile of Berriew, L.

Cathcart, E.

Chadlington, L.

Chalker of Wallasey, B.

Chidgey, L.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Crickhowell, L.

Cumberlege, B.

De Mauley, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Eden of Winton, L.

Edmiston, L.

Elton, L.

Falkner of Margravine, B.

Faulks, L.

Fearn, L.

Fellowes, L.

Fink, L.

Fookes, B.

Fowler, L.

Framlingham, L.

Fraser of Carmyllie, L.

Freeman, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Goodlad, L.

Greaves, L.

Greenway, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Howard of Lympne, L.

Howe, E.

Howe of Aberavon, L.

Hunt of Wirral, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

27 Nov 2012 : Column 126

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

King of Bridgwater, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lawson of Blaby, L.

Lee of Trafford, L.

Levene of Portsoken, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Loomba, L.

Lucas, L.

Luce, L.

McColl of Dulwich, L.

Macfarlane of Bearsden, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Mancroft, L.

Mar and Kellie, E.

Marks of Henley-on-Thames, L.

Marland, L.

Marlesford, L.

Mawhinney, L.

Mayhew of Twysden, L.

Miller of Chilthorne Domer, B.

Miller of Hendon, B.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Moynihan, L.

Newlove, B.

Nicholson of Winterbourne, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Patten, L.

Phillips of Sudbury, L.

Plumb, L.

Popat, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Renfrew of Kaimsthorn, L.

Rennard, L.

Renton of Mount Harry, L.

Risby, L.

Roberts of Conwy, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Roper, L.

Ryder of Wensum, L.

St John of Bletso, L.

Sanderson of Bowden, L.

Sassoon, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Slim, V.

Soulsby of Swaffham Prior, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strasburger, L.

Strathclyde, L.

Sutherland of Houndwood, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Teverson, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trimble, L.

True, L.

Tugendhat, L.

Tyler, L.

Tyler of Enfield, B.

Ullswater, V.

Verma, B.

Vinson, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Willis of Knaresborough, L.

Woolf, L.

Younger of Leckie, V.

5.27 pm

Clause 4 : Operations

Amendment 15

Moved by Baroness Hamwee

15: Clause 4, page 3, line 39, at end insert—

“(3A) In the event that the Secretary of State determines any variation in strategic priorities for the NCA to take effect before the start of the next financial year, she shall lay a report before Parliament setting them out.”

27 Nov 2012 : Column 127

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.

5.30 pm

Earl Attlee: My Lords, I am grateful to noble Lords for explaining their amendments. Clause 4 already requires that the agency’s annual plan should be published

27 Nov 2012 : Column 128

and must include the strategic priorities determined by the Home Secretary. My noble friend’s Amendment 15 proposes that, in addition to the normal publication of the strategic priorities in the annual plan, the Home Secretary should lay a report before Parliament if she should determine any variation in the NCA’s strategic priorities out of sync with the annual plan cycle. I understand that my noble friend is rightly concerned to ensure that Parliament is kept abreast of changes to the strategic priorities. However, in practice, I do not think that there is any need for this amendment. The strategic priorities are not going to be changed every other month. They will be informed by weighty assessment of the threats from serious and organised crime.

The timetable for that assessment process will be in sync with the development of the annual plan, which will itself inform the agency’s annual financial planning cycle determining how it allocates resources. The annual plan really is the right place for the strategic priorities to sit. Indeed, it is highly likely that in some years, as has been the case for SOCA, the strategic priorities will remain the same because the strategic threat picture remains consistent. The only reason for changing the priorities mid-year would be if there was a seismic shift in the organised crime landscape, such as the emergence of a totally new threat. If that were to happen, Parliament would undoubtedly already be well aware of it, and in any case the Home Secretary would, of course, notify Parliament, whether through an Oral or Written Statement or by some other established mechanism. The Bill also provides for the agency’s annual report to be laid before Parliament and for such reports to include an assessment of the extent to which the annual plan for the year has been carried out. Parliament will be well informed about the strategic priorities and how the agency is delivering against them.

I turn now to Amendments 16 and 17, spoken to by the noble Lord, Lord Rosser. I understand the concerns expressed in Committee by the noble Baroness, Lady Smith, that the provision requiring consent to the annual plan before issuing it invites potential political interference in the operational independence of the agency. Let me first be clear on the purpose of the annual plan. It is intended as the means by which the director-general sets out how he intends to deliver the NCA’s objectives for the coming year, chief among which will be the Home Secretary’s strategic priorities. Using his operational expertise and an informed picture of the threat, he crafts a high-level plan for the National Crime Agency’s operational response to serious and organised crime over the coming year. He still, of course, has independent operational responsibility for decisions throughout the year about which individual operations to mount and how they should be conducted, as is clearly set out in Clause 4. Equally, it is crucial that he gains agreement to the annual plan from those to whom he is ultimately accountable at the national level for delivery against the strategic priorities.

Let me seek to explain why. First, let us consider the consent of the Home Secretary. I do not at all see this as political interference, as the noble Lord has suggested, but as a common-sense approach to guarantee consistency between what the Home Secretary needs the National Crime Agency to deliver, as set out in the strategic priorities, and what the director-general intends to

27 Nov 2012 : Column 129

deliver operationally in any given year. How can my right honourable friend be held truly accountable to Parliament for the agency’s performance in the fight against serious and organised crime if she has not publicly agreed the high-level direction set for the agency by the director-general in the annual plan?

Secondly, but no less importantly, let us consider the consent of the devolved Administrations. They will play an important role in shaping the fight against organised crime through consultation on the strategic priorities, ensuring that the priorities of the devolved Administrations in Scotland and Northern Ireland feed into the overall strategic priorities that the Home Secretary will set. Given their accountability for the fight against organised crime in Scotland and Northern Ireland, it therefore follows that the devolved Administrations should rightly have a role in agreeing those aspects of the annual plan which affect Scotland and Northern Ireland, not least to ensure that the agency’s operational priorities set out in the annual plan are consistent with the serious and organised crime priorities there.

I would go so far as to say that I am a little surprised that the noble Lord would want to water down this clear and important safeguard for the devolved Administrations. We will come to discuss Northern Ireland later, but I fully expect that the Northern Ireland Department of Justice will be stressing the important safeguards that we have included in the Bill to respect the devolution settlement in discussions in Northern Ireland, with this provision being a case in point. I know how strongly the noble Lord feels about securing arrangements in Northern Ireland that meet the needs of Northern Ireland but it rather seems that this amendment undermines that end.

In summary, given the clear mechanisms already in the Bill to ensure that the strategic priorities are published regularly, I am not persuaded that it is necessary to have a further procedure for laying the strategic priorities before Parliament “in-year”. Similarly, I am clear that the requirement of consent is an important level of assurance—for the Home Secretary, for the devolved Administrations, for Parliament and for the public—that the agency is heading in the right direction to spearhead the national response to serious and organised crime. I hope, therefore, that noble Lords will not press their amendments at the appropriate point.

Baroness Hamwee: My Lords, the Minister assures us that the activities will be in sync. Circumstances indeed might change. We all know about events—sometimes with a capital E. He takes the view that there would need to be a change only if there were a seismic shift in the security threat. I appreciate that, if that were the case, everyone would know that there had been a seismic shift. However, we are talking here about priorities. Prioritising means putting things in the order in which you have regard to them, or spend money on them, or whatever, and there could be a change in priorities in much less dramatic circumstances than my noble friend describes.

I shall not pursue the issue now. I hope, of course, that we never see a seismic shift. I beg leave to withdraw the amendment.