Crime and Courts Bill [Lords]
(11 years, 1 month ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
15:52 - The House divided: - Ayes: 283 / Noes: 232 - Question accordingly agreed to.
16:24 - The House divided: - Ayes: 19 / Noes: 288 - Question accordingly negatived.
18:46 - The House divided: - Ayes: 216 / Noes: 272 - Question accordingly negatived.
19:01 - The House divided: - Ayes: 210 / Noes: 286 - Question accordingly negatived.
The Minister of State, Home Department (Mr Jeremy Browne)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
New clause 2—National Crime Agency review—
‘A review shall be completed within 12 months of Royal Assent of the functions and operations of the National Crime Agency with particular regard to—
(a) the governance structures as set out in section 1, together with resources, training and inspection; and
(b) operational and governance arrangements between the UK Government, the Department of Justice, Northern Ireland and the Scottish Government with particular reference to asset recovery.’.
Government new schedule 1—‘The NCA: Northern Ireland.
Government amendment 4.
Amendment 3, in clause 7, page 6, line 37, at beginning insert
‘Subject to approval by the Secretary of State for the Home Department,’.
Amendment 95, in page 10, line 15, leave out clause 12.
Amendment 102, page 11, line 1, leave out clause 13.
Government amendments 5 to 9, 76, 72 to 74, 85 and 87.
Mr Browne
I am grateful, Mr Speaker, for the opportunity to speak to the amendments and thus begin our deliberations on Report. The Government amendments in this group deal with two substantive issues: first, whether the Bill should include a mechanism to confer counter-terrorism functions on the National Crime Agency; and secondly, the extent to which the NCA should operate in Northern Ireland. I will deal with each issue in turn.
New clause 3 seeks to restore to the Bill the power to confer counter-terrorism functions on the NCA by means of an order, subject to the super-affirmative procedure. The House will be aware that on Report the other place removed from the Bill what was then clause 2. In explaining why we have brought back this clause, it is worth reiterating the comments of my right hon. Friend the Home Secretary on Second Reading. She said:
“I have been clear that no decision on this issue has been taken and that none will be taken until after the NCA has been established and following a detailed review. However, the creation of a national crime agency with a national remit to combat serious, organised and complex crime invites the question whether it should take on national functions in respect of counter-terrorism policing.”
She continued:
“ I do not come to this question with any preconceived ideas about what the answer should be, but it was prudent, in my view, for the Bill as originally introduced to have included a future-proofing provision.”—[Official Report, 14 January 2013; Vol. 556, c. 635.]
Since then we have reflected further on concerns raised in the other place that this was not an appropriate matter to be left to secondary legislation. This theme was also a feature of the debates in this House, both on Second Reading and in Committee.
Having reflected carefully on the debates on this issue thus far, and on the reports by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee, the Government remain firmly of the view that this is an appropriate matter for secondary legislation and that the super-affirmative procedure provides a sufficient level of parliamentary scrutiny. Indeed, the conditions that are tied to it provide ample opportunity for this House and the other place to scrutinise any such order.
Mr Browne
Let me finish the point first.
There is a duty on the Home Secretary to consult persons affected before laying a draft order. There is then an opportunity for Committees of either House to scrutinise the draft order—I envisage that this task would fall to the Home Affairs Committee—and then the draft order must be approved by both Houses of Parliament. This is not a parliamentary process that we take lightly or that would be taken lightly by either House. For that reason we believe that it would entail the appropriate level of scrutiny to satisfy those who rightly take a close interest in these matters.
Paul Goggins
My question is a simple one. Why did the Minister not table new clause 3 in Committee and allow the Committee to scrutinise in detail and in depth the proposal that he is now making? He will remember the exchanges that he had with various Members in Committee. It is disingenuous to table the new clause on Report and not to have allowed the Committee to have a detailed debate. He has been doing a lot of reflecting. Why did he not reflect on the detail of the debate that we could have had in Committee?
Mr Browne
It seems to me that this is not a very substantive issue; it is a procedural issue. The Government have not taken a view as to whether counter-terrorism should be transferred into the NCA. The NCA is not even up and running yet. It requires the assent of the House before we get to that stage, and we have said that when the NCA is up and running, that is something that the Home Secretary may wish to consider.
If the Government recommend at a future date that counter-terrorism functions should be transferred to the NCA, there is, as I have just explained, a provision for that to be considered in great detail. I will repeat it briefly in case hon. Members did not latch on to the point—that is why I made it before giving way: there is a duty on the Home Secretary to consult persons affected before laying a draft order, then there is an opportunity for Committees of either House to scrutinise the draft order, and I said that I envisage that task falling to the Home Affairs Committee, a cross-party Committee chaired by a distinguished member of the Opposition, and then the draft order must explicitly be approved by both Houses.
When it comes to deliberating on the content of the proposal, as distinct from the parliamentary mechanisms—the merits or otherwise of counter-terrorism being exercised by the National Crime Agency—if that process of deliberation is necessary, because the Government regard that as a wise way to proceed, there will be the opportunity for Members to make their views clearly known. But the question we are considering is whether it is suitable and appropriate for that provision to be made in the Bill, using the super-affirmative procedure. I hope that the House is persuaded by what I have just said about there being ample opportunity to debate the substance of these matters and that it is therefore an appropriate way to proceed.
Mark Reckless (Rochester and Strood) (Con)
The Minister describes a substantive and exhaustive process of parliamentary scrutiny. Is he aware that the Home Affairs Committee has already considered the issue and that we recommended—unanimously, I believe—that the transfer of counter-terrorism powers from the Met to the National Crime Agency should take place once that agency is up and running and when the Government believe it is the right time to do it?
Mr Browne
I am grateful for my hon. Friend’s interest in the matter. I am cautious about getting ahead of ourselves. We envisage the National Crime Agency coming into operation fully on 1 October, but of course that is subject to the House giving its assent to that proposition during the two days of deliberation on Report and Third Reading, and we should not take the wishes of the House for granted. Then Royal Assent is necessary. The NCA will have considerable and wide-ranging powers, and I think everybody would accept that it is sensible for it to bed down and establish itself.
There is a perfectly legitimate debate to be had about where this extremely important function should be exercised. I listened carefully to my hon. Friend. He puts forward a point of view that many people agree with, but there are people who will take a contrary view. There will be a suitable time to deliberate on the matter. I want to assure the House that we believe that the super-affirmative procedure will allow more than adequate time for that debate and for those issues to be properly aired. Any decision to give the NCA a counter-terrorism role will be an important one; we have no wish to diminish, impede or lose those aspects of the current arrangements that work well.
Naomi Long (Belfast East) (Alliance)
The Minister will be aware that there are particular arrangements in Northern Ireland for dealing with counter-terrorism, so it is important not only that that is debated, discussed and consulted on in this place, but that there is the opportunity for the Northern Ireland situation specifically to be considered. Can he give us an assurance today that that will be the case?
Mr Browne
By the time I get to the end of my speech, the hon. Lady will be in no doubt that all Northern Ireland aspects of the Bill and how we deal with serious crime and terrorism will be given a strong airing. If I can make progress, large parts of my speech deal with issues that relate directly to Northern Ireland.
Currently, counter-terrorism policing is a partnership endeavour among all UK police forces. Chief constables, each of whom retains full authority over policing in their force area, maintain a framework of agreements on how the various national counter-terrorism policing functions are distributed between forces, and how those national functions support forces in both proactive and reactive operations. However, with the creation of the National Crime Agency, it is reasonable, as I hope I explained satisfactorily to my hon. Friend the Member for Rochester and Strood (Mark Reckless), that the Government should want to consider afresh how the current counter-terrorism policing arrangements work and review whether the NCA could play a role to enhance our response to the terrorist threat. Those questions can be sensibly considered only after the NCA is up and running, and only then after a full review.
As I said at the outset, and as my right hon. Friend the Home Secretary has made clear, the position remains that the Government have no preconceived notion—others will—as to the outcome of a review of counter-terrorism policing arrangements and any future role of the NCA in them. However, we continue to believe that it is right to build into the Bill the flexibility to implement the outcome of such a review in a timely fashion through secondary legislation, but subject to a high level of parliamentary scrutiny in the form of the super-affirmative procedure, as I hope I have explained, and that we should be able to proceed on that basis. The Government would rightly be criticised if we could not implement the findings of a review for a year or more for want of the necessary primary legislation. We believe that this is the best way to strike the right balance between being able to move quickly in this extremely important area, but without undue haste.
Let us not confuse the point at issue. It is not about whether or not the NCA should exercise counter-terrorism functions; that debate is for the future. The issue today is the mechanism by which such functions could be bestowed on the agency. The Committee tasked with examining such matters in the other place said that
“the idea of adding to a statutory body’s functions by subordinate legislation subject to a Parliamentary procedure is well established”.
Of course, it is for this House to come to its own view on the matter, but I put it to all Members present that this is a perfectly proper way of proceeding and invite them and the House to support the new clause.
On the NCA and Northern Ireland, and particularly new schedule 1, it is with great regret that I must inform the House that I will have to table amendments limiting the role of the NCA in Northern Ireland. As the House will be aware, we have been unable to secure the agreement of the Northern Ireland Executive to take forward a legislative consent motion for either the NCA or the amendments to the Proceeds of Crime Act 2002. To say that that is a disappointing outcome does not do justice to the implications for the effectiveness of the NCA and, more importantly, the protection of the people of Northern Ireland. The Government are being up front about that. It is not the outcome we sought, but we are obviously required to deal with the situation as it is, rather than as we would wish it to be.
Mr Browne
I will give way, but I am delivering a substantive passage of my speech, which will be of great interest to Members from Northern Ireland and elsewhere, so if I give way too often there is a danger that I might end up revealing the details of what I wish to say in a less structured way. Having said that, I know that the right hon. Member for Belfast North (Mr Dodds) wishes to speak.
Mr Dodds
I am grateful to the Minister for allowing me to put on the record at the outset the fact that the Democratic Unionist party shares his disappointment that this has been unable to proceed in the way that was planned. It was certainly not for want of trying on the part of the DUP.
Mr Browne
I am grateful to the right hon. Gentleman and pleased that I gave way, because I share his anguish. I want all people in the United Kingdom, regardless of which part they live in, to be as protected as possible by the agencies of the state from the risks they might be exposed to from serious and organised crime. Clearly, the NCA is being brought into being because we regard it as an important institution for protecting the public from serious and organised crime. Many of its functions will apply in Northern Ireland, but they will not apply there as extensively as they will in England, which is a source of regret.
Sammy Wilson
The Minister is quite right that this is a very serious issue in Northern Ireland. We, too, wish to see the protections he has outlined. Given that Ministers hinted in Committee that if provisions in the Marriage (Same Sex Couples) Bill are not given legislative consent motions by the Northern Ireland Assembly, Ministers might well legislate anyway, will he apply the same rule and approach on the NCA?
Mr Browne
I do not have a speaking note on that point. I, like most Members, have received a number of representations on the merits or otherwise of same-sex marriage, and I do not wish to expand that debate by speaking from the Dispatch Box on the application of same-sex marriage provisions in Northern Ireland and how they might or might not impact on the National Crime Agency. I understand the hon. Gentleman’s point, but I think it will probably be most helpful if I do not take interventions for a short while, because there have been many discussions and negotiations on Northern Ireland and it is important to get on the record where we stand and what provisions will apply there, because clearly some will still apply, although they are less extensive than we would have wished them to be. Therefore, I will get to the detail of where we stand, because the amendments are required to put that into practice.
We will, of course, do our utmost to minimise the operational impact of the Northern Ireland Executive’s decision—that is what new schedule 1 seeks to do—while respecting the Sewel convention. However, the House should be under no illusion: the decision will have implications for the fight against serious and organised crime in Northern Ireland. Yet it was in full knowledge and recognition of those implications that the Executive came to their decision.
Let me be clear that the NCA will continue to operate on a UK-wide basis, including in Northern Ireland, but the Executive’s decision means that the NCA’s activities in Northern Ireland will be curtailed. For example, NCA officers in Northern Ireland can no longer be designated with the powers of a Northern Ireland constable. However, there is still much the NCA can do to tackle serious, organised and complex crime in Northern Ireland, both through its own investigations and by supporting the Police Service of Northern Ireland and other agencies. Importantly, the strong operational relationship that the Serious Organised Crime Agency has built up with the PSNI, both through the SOCA officers based in Northern Ireland and across SOCA as a whole, will continue with the NCA.
Furthermore, NCA officers will still be able to use customs and immigration powers to take action against serious, organised and complex customs and immigration crimes. Operational partners will continue to be able to access the wider national specialist capabilities that will reside in the NCA, such as the new national cybercrime unit and the NCA’s network of international liaison officers.
However, that is not the best outcome for the people of Northern Ireland. The NCA will be able to continue the fight against serious and organised crime and immigration crime, which I am pleased about. I know that Keith Bristow, who will run the NCA, is committed to ensuring that it will make a significant contribution to the overall law enforcement effort in Northern Ireland, but that is not the same as having a fully operational NCA working to support the efforts and important work of the PSNI.
Before getting into the detail of new schedule 1, I want to pay tribute to the tireless efforts of David Ford, the Northern Ireland Justice Minister, and his officials to drive forward the discussions in Northern Ireland, sometimes in the face of considerable difficulty and opposition. Indeed, the negotiations are continuing. His support for the NCA has been unswerving, as has his commitment to ensuring that it would work effectively with, and complement, the important post-devolution police accountability arrangements in Northern Ireland. Since the initial proposals for the National Crime Agency were published, the Government have been clear in their commitment to ensure that the need for an effective UK-wide response to serious and organised crime is balanced against the need to respect the devolution settlement.
The Bill as introduced included a number of new safeguards, above and beyond those provided for in respect of the Serious Organised Crime Agency, to ensure that the NCA reflected the devolution arrangements and the real sensitivities relating to accountability for policing in Northern Ireland. For example, in the initial Bill the directed tasking arrangements were limited to England and Wales, the directed assistance provisions included an additional consultative role for the Northern Ireland Policing Board, and we extended the remit of the Police Ombudsman for Northern Ireland to cover complaints in relation to asset recovery. I maintain, therefore, that the Government were alert from the outset to the specific sensibilities in Northern Ireland. We have not sought to railroad through a rigid uniformity that is blind to those sensitivities.
Even with all those safeguards we were prepared to go further to address the Executive’s concerns and agreed in principle to provide further changes to the Bill provided that a legislative consent motion was forthcoming. However, even with that initial good will and those additional changes, the Executive could not agree. Despite the situation in which we find ourselves, we remain committed to the principle of a fully operational NCA in Northern Ireland. The amendments will provide flexibility so that, should the position in Northern Ireland change, we can make provision for the NCA to have a full operational role there beyond what is currently possible.
Our approach in new schedule 1 is to limit the extent of the “relevant NCA provisions” so that we do not legislate on transferred matters without the consent of the Northern Ireland Assembly. The Sewel convention is an important part of the devolution settlement established by the previous Administration and it is one to which this Government are equally committed.
Mr Browne
Let me proceed a little and then I will give way.
The table in paragraph 9 sets out the “relevant NCA provisions” that do not extend to Northern Ireland. Notable among those provisions that will not apply are the ability to designate NCA officers with the powers of a Northern Ireland constable in schedule 5, the oversight of the Police Ombudsman for Northern Ireland in schedule 6, and, importantly, the duty of the Police Service of Northern Ireland to co-operate with the NCA and other duties in schedule 3. Importantly, the new schedule also provides a series of order-making powers in paragraphs 1 to 5 so that, should the position of the Northern Ireland Executive change, the NCA provisions can be extended to Northern Ireland, subject, of course, to the agreement of the Northern Ireland Assembly.
As I have said, I regret that it has been necessary to table new schedule 1. This does not, however, mark the end of our negotiations on the role that the National Crime Agency should play in Northern Ireland. I fervently hope that the narrowing of the NCA’s remit in Northern Ireland will be a temporary measure. We will continue to strive for an equitable agreement between the parties in Northern Ireland and, once secured, this new schedule will ensure that we have the necessary order-making powers to give effect to such an arrangement. I hope that that has provided clarity on this important issue.
Mark Reckless
Will the Minister clarify whether the two strands of his speech interact? If powers were transferred from the Met to the NCA and the NCA was unable to conduct anti-terrorism work in Northern Ireland, would that provide a contrast with the current situation? If the transfer happened without the changes that the Minister hopes for, would the Met be able to pursue anti-terrorism work in Northern Ireland that the NCA could not?
Mr Browne
Although the Met takes the lead, each individual police force is responsible for its own activities. An important change is the NCA’s ability to task police forces—in other words, their sovereignty would no longer be absolute, because the NCA could, in extremis, require a police force to undertake certain actions. That is not the case with the Metropolitan police. It is conceivable that some in Northern Ireland will be unwilling to be tasked in that way, but a lot of collaborative work takes place in any case. Activities that fund terrorism, rather than terrorism itself, would come under the category of serious and organised crime, which could be dealt with.
Mr Dodds
As the Minister outlined the provisions and voiced regret at having to table new schedule 1, the disservice and disadvantage done to the people of Northern Ireland by Sinn Fein and the Social Democratic and Labour party became more apparent. He also mentioned the Government’s commitment to the Sewel convention on the devolution settlement and my hon. Friend the Member for East Antrim (Sammy Wilson) raised the issue of principle. Will the Minister confirm that, if the Sewel convention is to be respected in this case, it will also be respected in relation to all Government measures?
Mr Browne
I think it would be more proper for the Secretary of State for Northern Ireland to answer that question on behalf of the Government. I was answering the specific question asked by my hon. Friend the Member for Rochester and Strood about the function of the NCA. Were the NCA to be given a counter-terrorism function in the future, it would be able to exercise that function in Northern Ireland only with the prior agreement of the Chief Constable of the Police Service of Northern Ireland. I am afraid that the question of how legislation that is not relevant to the Home Office or the NCA applies to Northern Ireland is not in my remit.
Mark Durkan (Foyle) (SDLP)
I will deal with the questions raised by the right hon. Member for Belfast North (Mr Dodds) about my party’s position if I catch your eye later, Mr Speaker.
The Minister has clarified the situation with regard to those NCA provisions that are precluded for now, but they do not include the criminal intelligence function in clause 1(5). Under that provision, will the NCA run its own informers and direct surveillance or similar in Northern Ireland?
Mr Browne
It would probably be better if I avoided talking about operational matters with regard to the prevention of serious and organised crime in the United Kingdom. I will reflect on whether I can assist the hon. Gentleman—without compromising operations, which none of us would want—before I conclude my speech.
I have been speaking for half an hour. This debate is mainly about the possibility of conferring powers on the NCA to deal with counter-terrorism and the changes we have to make with regard to Northern Ireland, but let me touch briefly on the remaining Government amendments in this group. Amendment 4 to clause 2 will convert the existing power on the Home Secretary to set strategic priorities for the NCA into a duty to do so. The right hon. Member for Delyn (Mr Hanson) tabled a similar amendment in Committee and I undertook to consider it. As I am a collegiate Minister who is always impressed by the power of the right hon. Gentleman’s arguments, even when I do not agree with them, I was keen to accommodate his views. Members of the Committee will be familiar with the arguments for that change.
The Home Secretary’s role in setting the strategic direction of the NCA is obviously of central importance and the Government’s intention has always been that the Home Secretary would set the strategic priorities in accordance with the power granted by clause 2. On that basis, this reasonable amendment reflects what we had envisaged in any case.
The other Government amendments in the group are either consequential on new clause 3 and new schedule 1 or, in the case of amendments 5 to 7 and 9 to schedule 8, are of a technical or drafting nature and make further consequential amendments to other enactments as a result of the establishment of the National Crime Agency.
Mr David Hanson (Delyn) (Lab)
New clause 3 and the other amendments before the House concern important issues that are fundamentally to do with protecting our society from terrorist activity. We must get these matters right. We must consider the concerns of another place and those who are involved in these issues on a day-to-day basis. I continue to have key concerns about the new clause.
The Government have tabled new clause 3 on Report following the removal of the original clause 2 in another place earlier this year. The Home Secretary has said:
“I have been clear that no decision on this issue has been taken and that none will be taken until after the NCA has been established and following a detailed review.”—[Official Report, 14 January 2013; Vol. 556, c. 635.]
I welcome that no decision has been taken and that consideration is being given to whether it is best for terrorism functions to remain with the Metropolitan police as the co-ordinating body, whether they should be transferred to the National Crime Agency or whether there is a third model that the Government could consider.
I am concerned that new clause 3 will give the Government an order-making power to implement a major change. As we have heard from hon. Gentlemen from different parties in Northern Ireland, this change would have great import and ramifications in Northern Ireland, with respect not just to terrorism and policing but to confidence in communities. I cannot support the Government’s proposal of an order-making power that would receive limited debate in this place.
I accept that these are serious issues. I remind the Minister of the concerns that were raised in another place, not just by Labour Members such as my noble friend, Baroness Smith of Basildon, but by Cross-Bench Members, about the original clause 2, which was removed from the Bill and is effectively being reintroduced with new clause 3. I fear that if the Minister proceeds to insert new clause 3 into the Bill, there will be further discussion in another place about the merits of that proposal and the concerns that were expressed when the Bill was last considered will be revisited.
Lord Blair of Boughton, who is a former Metropolitan Police Commissioner and now sits as a Cross Bencher in another place, said that
“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.”
He went on to say that
“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…Such a decision deserves primary legislation, to allow the suggestion to be scrutinised, debated and amended by both Houses of Parliament.”—[Official Report, House of Lords, 27 November 2012; Vol. 741, c. 114-115.]
The Minister’s proposal in new clause 3 will deny the opportunity for primary legislation to be used to deal with this issue.
I have an open mind about where we should end up on this issue. This debate is not about making the final decision about where terrorism functions should lie. We can have a debate about that. However, it is important not only that the review that the Minister has talked about takes place, but that both Houses of Parliament have an opportunity to reflect on it in a measured and considered way.
The Minister said that we are going to have a busy programme. I remind him that we are likely to have a light legislative programme this year and that swathes of time are available because of changes such as what happened to reform of the House of Lords. The Minister knows that at any time he can negotiate and secure time in this House for speedy legislation on matters of great import. He also knows, without giving any secrets away, that there is bound to be a criminal justice Bill of some form in the forthcoming Gracious Speech, to which new clauses could be added. It is therefore disingenuous of him to say that it is not practical or possible to have primary legislation to effect these changes.
New clause 3 would provide for a limited debate in this House on massive changes and significant issues that relate to the safety of citizens across the United Kingdom, including in Northern Ireland. As the Minister has indicated, and as I will come on to when I speak to new schedule 1, he has not yet secured agreement for the National Crime Agency to operate in Northern Ireland. Given that the National Crime Agency will tackle big issues such as fuel smuggling and people trafficking, which are often linked to the funding of terrorism in Northern Ireland and elsewhere, it is not good enough for the Minister to propose an order-making power, super-affirmative though the procedure may be, to deliberate and agree on these proposals.
If the Minister does not accept what Lord Blair says, perhaps he will accept the view of the former Metropolitan Police Commissioner, Lord Condon, who said:
“This is a hugely important matter that deserves primary legislation rather than an affirmative order… History tells us that more than 80% of terrorist incidents in this country happen in London.”—[Official Report, House of Lords, 27 November 2012; Vol. 741, c. 116.]
Two former Metropolitan Police Commissioners say that this matter should be considered through primary legislation, but the Minister still wants to bring forward a super-affirmative order.
I hope that I am not doing him a disservice if I quote the views of the current Metropolitan Police Commissioner from an article in The Times:
“Bernard Hogan-Howe said he believed that the link between local policing and counter-terrorism police had been essential to the success of the anti-terror strategy in Britain.”
The article goes on:
“‘What is the problem we are trying to remedy here?’ he asked. ‘And if there is to be a change, there will be a cost—at a time of austerity that will have to be considered.’”
I do not believe that that matter can be considered in the time available under the super-affirmative procedure.
We need to support the concerns that were expressed in another place. Unless something miraculous happens, I will not recommend that my right hon. and hon. Friends support new clause 3, because I do not think that it is the appropriate way forward. The other place will consider the matter and we will deliberate on the views expressed there in due course.
Mr Jeremy Browne
As I have said, the Government have an open mind on this matter. We want to achieve the best possible protection for the public. However, the three people whom the right hon. Gentleman has cited as making the case for the Met police to continue to have the lead role on counter-terrorism are the commissioner of the Met police and two ex-commissioners of the Met police. One would expect those people to argue for the central role of the Met police. They are perhaps not such good authorities on the case for one form of parliamentary procedure and scrutiny over another. The Government will make their judgments and recommendations about where counter-terrorism should sit and people will want to contribute to that debate, but those three people have quite partial backgrounds. We will ensure that the House has the adequate opportunity to scrutinise whatever the Government propose.
Mr Hanson
I am grateful to the Minister. Perhaps between now and the super-affirmative order coming forward he will guarantee that he will make the order amendable. It currently would not be amendable; for another place and this House it would be a question of take it or leave it. Primary legislation would allow either House to examine the proposals and amend, refine or challenge them, but a super-affirmative order would not.
I say gently to the Minister that although three Metropolitan Police Commissioners may have an interest in the Metropolitan police, they have been responsible for co-ordinating counter-terrorism activities. If they raise concerns, he has a duty to allow them to be listened to. The concerns are not about the ultimate position but about whether it can be reached via primary legislation so that either House can make tweaks. The Minister is simply saying that the Government will review the matter and decide on it, and then table a take-it-or-leave-it order for both Houses to decide on. That is not an appropriate way forward.
Paul Goggins
My right hon. Friend is doing an excellent job of highlighting the Government’s inconsistency on the issue. Does he recall that earlier in this Parliament the Government insisted that provisions for enhanced terrorism prevention and investigation measures or the extension of pre-charge detention beyond 14 days could be made only through fresh primary legislation? Now they want to give the Home Secretary the power to transfer the lead responsibility for counter-terrorism to the National Crime Agency through secondary legislation. It is completely inconsistent.
Mr Hanson
I am grateful to my right hon. Friend, who knows what he is talking about. He had to take executive decisions on important matters, particularly to do with Northern Ireland and terrorism, at a time when Northern Ireland was not as stable as it is now, even though there are challenges today.
I say gently to the Minister that he should listen to some of the experience that is out there. This is not about the end product, because we can debate that and the review will raise a number of issues about it. It is about how we get consent to that end product, which could be through amendments to legislation. I defy him to say that there is no time for legislation to be brought forward in the next 12 months, either as a new clause to another Bill or as a stand-alone Bill, to make the changes in question. I do not believe that is the case, and I think he is being disingenuous—dare I say that? Perhaps I should say that he is reflecting on the matter in a way that I would not wish him to reflect.
The situation with regard to Northern Ireland is a bit of a shambles. I fully understand why political parties in Northern Ireland have taken the view that they have, and why it is important that the Government do not legislate for Northern Ireland. However, I ask the Minister who is responsible for negotiating with the Northern Ireland Assembly to get some traction on the matter. I have tabled questions to the Northern Ireland Office and the Home Office, and both have said that they are meeting David Ford, the Northern Ireland Justice Minister, on a regular basis. However, who is taking on the challenge of ensuring that the Northern Ireland Policing Board, the four or five political parties represented there and the people who have concerns about the proposal, as well as those from all sides who do not, are heard? What is the process, and how is it being taken forward?
The Bill has been trailed for perhaps 18 months, and it was produced in another place and has been debated in the Commons. The issue has arisen not this week but over many months. The National Crime Agency will not have input into key issues in Northern Ireland, including drug trafficking, fuel laundering, smuggling and a range of serious organised crime. Its relationship with the Police Service of Northern Ireland is still to be defined in a practical way. How has it come to that point?
Sammy Wilson
I appreciate the right hon. Gentleman’s point, but does he accept that although the Government are to be faulted on many things, a lot of the issues that people wanted addressed in negotiations with the Northern Ireland Minister were addressed? However, two parties are still suspicious of any policing arrangements that are UK-wide rather than based purely in Northern Ireland. They will never be convinced, and that is one reason why the Minister’s job is so difficult.
Mr Hanson
I understand that point. As the hon. Gentleman knows, I did two years in Northern Ireland, and I accept and understand the difficulties of that position. My right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) also served in Northern Ireland, and my hon. Friend the Member for Foyle (Mark Durkan) will speak on his party’s views shortly. I always regret that Sinn Fein Members do not give their view to Members of Parliament in this House, but that is a separate issue.
I understand where the hon. Member for East Antrim (Sammy Wilson) is coming from, but the issue is still open to negotiation, because even if we accept new schedule 1 today, the NCA will not operate in Northern Ireland and there will be only an affirmative order to put that arrangement in place at some point in future. There will therefore still have been no resolution of the difference of opinion. The Minister has a duty to tell the House how he intends to bridge that gap strategically.
Naomi Long
When the right hon. Gentleman said that he did two years in Northern Ireland, it sounded more like a sentence than a pleasure. I am sure that was not intentional. Does he agree that the problem is much more significant than simply leaving Northern Ireland at an operational disadvantage, which will clearly happen? There is currently a duty on the PSNI to co-operate with the Serious Organised Crime Agency, but that will go once the Bill comes in. Even the basic duty to co-operate will be removed from the NCA if there is not an agreement otherwise.
Mr Hanson
I reassure the hon. Lady that I loved every minute of my time in Northern Ireland and was sorry to be airlifted out on the day when, fortunately and for good purposes, devolved government was restored and my time there finished.
The hon. Lady will be aware that clause 14 will abolish SOCA, which currently operates with the PSNI to tackle issues such as we have discussed. After Royal Assent, there will be nothing in place. I do not want the Minister simply to say, “Well, we’ll have an affirmative order”. He needs to explain to the House what will happen after Royal Assent, when the NCA is not operating in Northern Ireland.
Mark Durkan
Does the shadow Minister recognise that when the Bill first emerged in draft, some of us pointed out in questions to both Northern Ireland Office and Home Office Ministers that there would be serious implications and sensitivities in Northern Ireland, which would need to be sorted out? However, the Bill was handled in such a way that it was left to privileged negotiations and discussions between Department of Justice officials in Belfast and the Home Office here. The parties in Northern Ireland were only latterly involved. That is why we now have the crazy situation that time has been added on at the end of the discussions on the Bill. There should have been proper discussion and consultation time at the beginning.
Mr Hanson
I am grateful to my hon. Friend, because that is the point that I am making. Where is the Northern Ireland Office in this? Are discussions taking place with the political parties in Northern Ireland to resolve the situation? A number of parties and their representatives have different views, such as the hon. Member for East Antrim, representatives of Sinn Fein and my hon. Friend himself.What discussions are taking place with those parties to resolve that situation? The situation is still in play, and when Royal Assent is achieved, the Serious Organised Crime Agency will not operate in Northern Ireland. That is of regret to the Minister and to me. More importantly, the Justice Minister, David Ford, said that blocking the new crime agency is a “mistake” that could have serious implications for the police. He stated:
“There is a real danger if it does not go ahead there will be very significant costs to the police both in terms of time and finances and that we will have an inferior response to the serious organised crime that we face”.
The police are understood to share the Justice Minister’s concerns, and the Minister needs to reflect on them. I will not oppose the new schedule, but I hope that he listens to what has been said and comes back to the House at an early opportunity to say how he will bring forward negotiations to conclude the matter.
New clause 2, which is in my name and that of my right hon. and hon. Friends, seeks a review, 12 months after Royal Assent, of the functions and operation of the National Crime Agency, particularly in relation to its governance structures. We had a full debate on that in Committee and I will not repeat those points today because of the limited time available. The Minister knows, however, that we think there is an alternative model to governance in which the NCA does not just report directly to the Home Secretary. Will the Minister consider whether in 12 months’ time, following Royal Assent, we could review how his model has operated? If it operates well and has been good and effective, fine; but if not, can we review it? A formal review is the purpose of new clause 2, including the
“operational and governance arrangements between the UK Government, the Department of Justice…and the Scottish Government with particular reference to asset recovery”.
I will not touch on asset recovery now as we will discuss it in a later debate, but there is a big hole in the Bill on that issue and how it fits into a UK structure. A review 12 months after Royal Assent, as demanded by new clause 2, would simply require the matter to be considered in detail.
Amendment 3, which is in my name, concerns giving political oversight to decisions made by the director general of the NCA in response to international requests for assistance, and for consideration of an international response to emergency situations. Under clause 7, the director general can decide to examine the provision of assistance to a country or territory outside the British Isles. Subsection (3) states:
“The Director General may provide assistance to…a government in a country or territory outside the British Islands…if the government, or the body, requests assistance”.
My amendment would simply mean that that should be with the support and agreement of the Home Secretary, and I tabled it for two reasons.
First, there may be countries that request or are looking for support from the National Crime Agency but about which the Government of the day might have concerns. Let us suppose, for example, that the Syrian Government or the Zimbabwean Government asked for help and support from the NCA, . Those are politically difficult issues that Ministers would want to have oversight of because Ministers are ultimately accountable to the House for the operation of the NCA. A system that allows the director of the NCA to agree that help and support can be given on request or by decision, but that ultimately the Minister, Home Secretary or a delegated Minister has oversight of and understands and agrees, would be helpful. When I was a Minister I agreed on many occasions to police forces sending people overseas to help with a range of activities. It is important that Ministers have such oversight, even if they do not ultimately have a veto.
I also tabled amendment 3 because I am concerned that officers may be in danger in certain countries and, again, Ministers are ultimately accountable to this House. In future, the National Crime Agency director may well have NCA officers in Afghanistan, Mali, Nigeria or Iraq—who knows? It could be any country in which the NCA is providing assistance or has been requested to do so on matters of serious organised crime. When officers go into areas of danger, political oversight is important as a Minister will ultimately be accountable in the Chamber if things go wrong.
I welcome amendment 4. I proposed it in Committee and it has been brought back by the Minister in a slightly amended form: the word “will” has been replaced with the word “must”—such is the Government’s wish to grab hold of the Bill and not let anybody amend it word by word, even though the principle is the same. However, I welcome the fact that I did not entirely waste my time in Committee, and that the measure was accepted by the Government.
I understand where my hon. Friend the Member for Hayes and Harlington (John McDonnell) is coming from with his amendments as we had a full debate in Committee. I will not, however, be able to support the amendments to remove clauses 12 and 13, but if he wishes to make his case I am sure the House will listen. I think we need clauses 12 and 13 to ensure that the police and the National Crime Agency police do not have the rights that the removal of those clauses would give them.
Since the Committee stage, I have heard concerns from police officers about the automatic transfer of officers from forces to the National Crime Agency without consultation. I would welcome the Minister considering those concerns in due course and reflecting on them as part of our deliberations.
I am not convinced that new clause 3 is the best way forward, and I ask my right hon. and hon. Friends to reject it. That is not because we do not want the matter resolved; we are not rejecting the review or the idea of examining those issues, but rather the immediate solution given by the Minister for an affirmative order. If the Minister does not withdraw the new clause—I suspect he will not—he may face a vote in the House.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
I am in the rather strange position of wanting to support the amendments tabled by the hon. Member for Hayes and Harlington (John McDonnell), but I will not steal his thunder and will be as brief as possible. In particular, I agree with amendments 95 and 102. As we know, clause 12 would prohibit unions from instigating a strike affecting any officers working for the National Crime Agency who have operational powers. That would include the director general of the NCA, and it would give power to the Home Secretary to take civil action against any person or persons who might call, or incite, such a strike.
The Government seem to regard the serious-minded people who will be working in this field as little less than children who might run off on a whim and call a strike for no reason at all. The quality of those people does not indicate that that is the kind of thing they would do, but I do not think they should be deprived of rights that most workers are accorded. It is only right and proper for the Government to take a respectful approach to those workers and allow them the negotiating rights and further rights that most people have. Clause 12(4) goes as far as allowing the Home Secretary to seek an injunction restraining a threatened strike by National Crime Agency officers holding operational powers. I believe that such provisions are retrograde and hope that hon. Members will support amendment 95 that would delete clause 12 in its entirety.
I am equally opposed to the provisions in clause 13, which would allow the Home Secretary to pass regulations determining the pay, allowances and other terms and conditions of National Crime Agency officers designated with operational powers, including the director general of the NCA. Amendment 102 would delete the clause in its entirety.
Clause 24(2) would allow for the contracting out of all functions of fines officers. The clause also makes provision for the costs of collecting compensation, fines and other financial penalties to be recovered from other offenders. I share the concern of groups such as the Public and Commercial Services Union that the Bill would allow a crucial element of enforcing sentences to be privatised. That would mean private companies being in charge of carrying out quasi-judicial functions, such as making deductions from benefit orders and making attachment of earnings orders. That is a privatisation too far.
John McDonnell (Hayes and Harlington) (Lab)
Let me say to my hon. Friends on the Opposition Front Bench that I am extremely shocked by what has been said—that they are not willing to support my amendments. This is the first time in the history of the labour movement—the first time ever in the history of the Labour party—that this party has supported in Parliament the removal of trade union rights from trade unionists. That is a significant step and marks a historic change in attitude. I urge those on the Front Bench to use these moments in this debate to think about what they are doing.
This is the party that campaigned to redress the disgraceful treatment of GCHQ workers—if people remember—all through the ’80s and ’90s, when a Conservative Government removed their trade union rights. This is the party that gave commitments to the Prison Officers Association that we would address its complaint that a Conservative Government had removed the right to take strike action from prison officers. I urge Labour MPs and others—anyone who is in the Chamber and anyone watching this debate outside—to understand what is happening here today, because this is significant. This is not a minor matter; this is about taking away a basic human right from a group of workers. It has never been done before in the history of our party.
I am grateful to my friend the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) for curtailing his speech—we were slightly out of order, Mr Deputy Speaker.
I chair the PCS parliamentary group. It is a large group—I think we have 70-odd members on a cross-party basis—that represents the workers we are talking about. The PCS represents members in the Home Office and its agencies. It currently has about 2,700 members in the Serious Organised Crime Agency and will have between 3,350 and 3,500 members in the NCA when it is established. The whole discussion up to now has proceeded on the basis that these are civil servants, who respect the right of Government to govern and will therefore do all they can when there is a restructuring of Departments or Government agencies to ensure that they support the Government in that restructuring and implement the policies effectively. However, what the PCS seeks to do as a trade union is to protect its members’ basic rights, wages and working conditions.
The process of negotiation on the restructuring and the new agencies has been going on apace for a number of months. That is what trade unions do: they engage in negotiations. We thought that there would be discussions about negotiation structures and thus the opportunity to reach agreement, which is what has been achieved on a number of issues in these sorts of restructurings right across the civil service. However, we now have proposals, almost out of the blue, to introduce a no-strike provision and remove the right of this group of workers to take industrial action, as my friend the right hon. Member for Dwyfor Meirionnydd said, and, in addition, to install a pay review body appointed by the Government, again without a negotiated agreement.
That is not the way to set up a new agency, lift people’s morale or secure their involvement and engagement in the implementation of policy; it is a rebuttal of all the negotiations that have taken place. It will mean that a large number of people will basically lose the right to take industrial action when they have a grievance. What we are talking about is some people who have the powers of a constable—the powers of arrest. I understand some of the concerns about that, but we are also talking about Revenue and Customs officers and immigration officers, who have been treated no differently in the past from any other civil servants. They have had the same rights of representation and the same trade union rights.
It is interesting that back in November the Joint Committee on Human Rights expressed its concerns about the plans for NCA officials with operational powers to be forbidden to take strike action. The Committee said:
“we question whether the Government has yet demonstrated by reference to actual evidence that there is a pressing need to restrict the right of NCA officers to take strike action, bearing in mind that SOCA has so far operated with no restrictions on its officers’ right to strike. In our view, NCA officers are closer to SOCA officers than police officers. Even if there were evidence of such a need, on the evidence currently available to us we do not consider it to be proportionate to apply the no-strike provision to NCA officers who hold some of the operational powers, including officers who only exercise the operational powers of a customs officer or immigration officer and not those of a constable.”
So this is a human rights issue: the Joint Committee on Human Rights has said so. It has expressed its concern while these discussions have been going on. To be frank, the industrial relations atmosphere has been good. There is no evidence of any demand from management for the new power. Quite the reverse: management have been proceeding in the normal way in the negotiations, to see what structures are required to ensure worker engagement.
Mr Jeremy Browne
Given all the points the hon. Gentleman is making and that he started his speech by saying that this was a historic first for the Labour party, I am curious to know why he thinks those on the Labour Front Bench do not agree with his arguments.
John McDonnell
I understand where the hon. Gentleman is coming from, but I am not playing party politics with this. I do not have a clue why not: this is the first time I knew of it. If this issue was dealt with in Committee and I missed it, I apologise, but I thought that the attitude was to listen and wait for this debate. I thought we would listen to the members themselves who are on the front line—some of them, just like police officers, risk their lives in the work they do—yet who have never caused a problem in industrial relations.
Management have not come forward with these proposals; they have been brought forward by the Government. This is a Government whim. Someone in Government decided it would be worth trying for a no-strike provision on this group of workers. It is the thin end of the wedge, because there are some Conservative Back Benchers who have been seeking to introduce a no-strike provision across whole sectors of industry. I think this is the start. This group of workers is the experiment, to see whether people will acquiesce, and I am amazed that those on the Labour Front Bench have rolled over. That sends a signal to this Government to come forward with proposals for the transport sector and many others, as some have been planning to do for many years. I am absolutely staggered. How can these measures be brought forward unopposed at this stage, when negotiations are continuing? There could have been a negotiated settlement on the new structures and we could have avoided this kind of imposition. I will not spend too long on this, because there is another debate in Westminster Hall on the privatisation of the probation service that I would like to get to. This just goes on and on, but at least my own side is putting up some opposition to those proposals.
Let us be clear what clauses 12 and 13 will do. They will take away from civil servants a fundamental right that they have at the moment: the right to take industrial action. This is the crossing of the Rubicon. The clauses will bring in a ban on industrial action that extends well beyond the police and prison officers, where it already exists, to civil servants, on whom such a ban has never been imposed before. This is an unnecessary and unwelcome political device that is being used by the Government to test the water around their future policies on trade union and employment rights in this country.
As I have said, I think this is the thin end of the wedge. If the clauses are accepted by the House—and certainly if they are accepted by my party—on this occasion, this will be used as an example in other areas. That is why I am urging people to vote against them, and I will seek to divide the House on the matter. If I have to walk through the Lobby on my own, I will do so, because this is a fundamental matter of principle.
The workers involved are dedicated civil servants, but they deserve the right to protection and to basic human and trade union rights if they feel that management or others are imposing something on them that is unacceptable. Most of them never go on strike or take industrial action, but they deserve to have the right to do so if necessary, because that is the only protection they have against oppressive management or employers.
I urge comrades on this side of the House—members of the parliamentary Labour party—to use whatever time we have left in the debate to think again. This is not a trivial matter. It is not a simple “tidying-up exercise” in employee-management relationships in the new body; it will undermine a fundamental human right. This Government have already been criticised for their refusal to give the right to industrial action back to prison officers. They were criticised by the International Labour Organisation for being in contravention of all the international conventions on employment rights, yet there are people here on the Labour Benches today who are rolling over without a whimper of opposition to extending that denial of human rights to this group of workers. That is unacceptable.
With your permission, Mr Deputy Speaker, I hope to call a Division on this matter when I have the opportunity to do so, and I urge Members to vote against the measures. This is a significant matter; it is absolutely critical. It is a matter of conscience, not a matter of administrative convenience for management and the Government. It is a basic human rights issue, and I urge Members to vote for our amendments.
Sammy Wilson
It is with regret that I see the references to Northern Ireland and the role of the National Crime Agency in Northern Ireland being removed from the Bill, and I want to put some questions to the Minister on this point. If any part of the United Kingdom needs the effective operation of a national crime agency, it is Northern Ireland. The Northern Ireland Affairs Committee in this House has already identified the fact that hundreds of millions of pounds every year are lost to the Exchequer and go into the hands of criminal gangs, on many occasions to finance terrorist activities, as a result of fuel laundering alone. There are many other areas in which organised crime plays a big role in Northern Ireland. We need the National Crime Agency.
The role that the criminals play is not confined to Northern Ireland. Their tentacles spread well beyond Northern Ireland and dealing with them involves operational decisions that cannot be taken solely by the Police Service of Northern Ireland. Indeed, the fact that they are now laundering their money across Europe and north America demonstrates the international dimension involved, and the PSNI cannot be expected to deal with them alone.
Naomi Long
Does the hon. Gentleman accept that a false interface is being created between terrorism and criminality, which is an extremely blurred area in Northern Ireland, in that the same people are often involved in both activities? Does he also agree that a false interface exists in the incorrect assumption that there is some kind of border beyond which the tentacles of those criminals cannot reach?
Sammy Wilson
Attempts have been made during the debate to make exactly that distinction, but the hon. Lady is absolutely right to say that there is no such distinction.
It is surprising that the Northern Ireland Executive could not agree on having a legislative consent motion, which would have enabled the Bill to go through complete with its provisions for Northern Ireland. There has been some criticism of the Minister, and questions have been asked about what he has done for Northern Ireland. Extensive discussions have taken place between his Department and the Department of Justice and the Justice Minister in Northern Ireland. I know that the hon. Member for Foyle (Mark Durkan) is probably going to say that he wanted a more direct interface with his party and with Sinn Fein, but of course that is difficult, given that Sinn Fein refuses to take part in any of the activities of this House.
It is significant, however, that all the issues that the nationalist parties have raised in the past in relation to SOCA have been dealt with. Indeed, some of the arrangements went beyond that point when SOCA was being set up. As a former member of the Northern Ireland Policing Board, I can remember the discussions that took place at the time and the safeguards that were put in place as a result of concerns being raised by nationalist representatives.
The deliberations on this Bill went even further, and that makes this outcome even more surprising, given the assurances that were given about a role for the ombudsman, about the need to ensure that the activities of the National Crime Agency did not cross with any PSNI investigations, about the restrictions on the ability of the Justice Minister to direct the police service to co-operate with the NCA in investigations, and about the role of the surveillance commissioner. A range of issues have been dealt with and specifically tailored to the situation in Northern Ireland in response to the concerns expressed mostly by Sinn Fein and those in the nationalist community, yet there is still no agreement in the Executive.
I made a point to the Minister earlier about the chances of reaching such an agreement when the mindset is that any police or security activity that is based in the United Kingdom and not solely in Northern Ireland is unacceptable. It is extremely difficult to reach consensus on this matter. Suggestions have been made today as to what could be done. Perhaps we need more time. Would that provide the opportunity to iron out these issues? That is a reasonable suggestion, and it would be much better than pushing this Bill through the House without taking the opportunity to ensure that it covers the whole of the United Kingdom. I say all this with some reluctance, because I want the House to respect the devolution settlement, but I put it to the Minister that we need an explanation on why a different approach is being taken.
I do not want to go into the details of the Marriage (Same Sex Couples) Bill, but I want to use it to illustrate a principle. In the Committee for that Bill, my hon. Friend the Member for Strangford (Jim Shannon) put it to the Minister of State, Department for Culture, Media and Sport, the right hon. Member for Faversham and Mid Kent (Hugh Robertson), that there were provisions in the Bill relating to Northern Ireland, even though it was accepted that those were devolved issues. The Minister replied:
“I…agree with the hon. Gentleman that marriages and civil partnerships are devolved matters in Scotland and Northern Ireland.”
He then commented, however, about what might happen if the Northern Ireland Assembly did not pass a legislative consent motion. I do not know whether it will—I will not comment on that—but the Minister said:
“The important thing here is that I, as a UK Minister, cannot leave people who undertake a same-sex marriage in this country in legal limbo in the hon. Gentleman’s part of the world.”––[Official Report, Marriage (Same Sex Couples) Public Bill Committee, 7 March 2013; c. 420.]
The implication is that the Government would legislate regardless of the Assembly’s views.
I do not make this point lightly, because I want the lines of demarcation between the devolved Administrations and the Westminster Government made clear, but if those lines can be crossed on that issue, why should they not be crossed in respect of the far more important matter of criminals siphoning off hundreds of millions of pounds from the Exchequer to fund criminal and terrorist organisations and to launder money across the world? Why does the Minister not regard that as equally important? Why have the Government not even contemplated doing that if they cannot reach an agreement in Northern Ireland? This affects not just a few individuals, but the very fabric of communities in Northern Ireland now controlled by these crime barons, especially in border areas.
That would not be my preferred option. I would rather get agreement before the Bill passes, even if that means delaying it, in order to ensure UK coverage for the NCA. I sat in on the discussions, and I can say that the SDLP is nervous about being outflanked by Sinn Fein, and Sinn Fein is worried about being outflanked by the SDLP. For political reasons, there is an unwillingness to come to an agreement and have the UK Government legislate on policing matters in Northern Ireland. I also suspect that some sympathise with the crime barons and so do not want effective policing. The PSNI cannot replicate the NCA’s role. It does not have the resources—even if it had the financial resources, it would not have the personnel expertise—which leaves a huge gap when it comes to fighting organised crime in Northern Ireland.
For all those reasons, I am disappointed that the Government have meekly walked away, rather than saying what could be done to ensure that Northern Ireland is given the same coverage as other parts of the UK.
Mr Dodds
I am grateful to my hon. Friend for making his argument so powerfully. Does he agree that this might be a matter of national security, which of course is not devolved—the Northern Ireland Secretary still has responsibility for it? Given that the Security Service operates in Northern Ireland, would he also agree, in respect of the NCA, that we should have some flexibility regarding the national position, as opposed to considering it purely in terms of the devolved situation?
Sammy Wilson
That is another way of looking at how to get coverage in Northern Ireland. The Minister cannot simply say, “Well, we haven’t got the agreement of the Executive.” I do not know whether we will ever get that agreement. Some reasonable and substantial changes have been made to the Bill as it affects the NCA’s operation in Northern Ireland, as a result of the efforts of Justice Ministers—who, incidentally, acted not in isolation, but as a result of representations from the very parties that have opposed the legislative consent motion.
I accept that, under the Bill, the Home Secretary may, at some future date—presumably after she has got a signal from the parties in Northern Ireland—introduce the necessary changes, but I do not know whether that will ever be possible. That is why the Government should keep open the option of considering whether the demarcation between the devolved authorities and the authority of this House could and should be blurred to take this matter forward. If a Minister can threaten to do such a thing on something like civil partnerships and same-sex marriage, there is an even stronger case for doing it here.
Paul Goggins
It is a pleasure to follow the hon. Member for East Antrim (Sammy Wilson), who spoke with his usual authority and attention to detail. I shall return to some of his points later.
I am deeply unhappy about new clause 3, which would provide the Home Secretary with an order-making power to change the lead responsibility for counter-terrorism by secondary legislation. In an intervention, I said it seemed odd that the Government wanted fresh primary legislation to extend pre-charge detention beyond 14 days—where urgent action would be needed if speed were of the essence—but here, on something that needs to be considered very carefully and at great length, they want to provide for an order-making power. I deeply regret that the Minister has completely ignored the Second Reading debate, when the Home Secretary said that she had not made up her mind. He failed to produce an amendment in Committee. Even though we finished our deliberations in Committee a day early, we had no opportunity to scrutinise this proposal. We can debate whether lead responsibility should be with the Met or the NCA, but it should be decided in fresh primary, not secondary, legislation.
As we heard, an unfortunate side effect of the proposal is that some in Northern Ireland have been able to suggest that it muddies the waters in relation to who is in charge of counter-terrorism operations and investigations. I asked the Secretary of State for Northern Ireland last week whether she would clarify that, and very helpfully she said:
“The primacy of the Chief Constable is retained to ensure consistency with the devolution of policing and justice.”—[Official Report, 6 March 2013; Vol. 559, c. 941.]
The Chief Constable has the lead in counter-terrorism, yet some have been able to suggest that that is confused by the Home Secretary’s proposal. That is a regrettable further side effect of the proposal. If the Government prevail today, I hope that those in another place will once again throw the measure out.
Like virtually everyone in the House—I think an exception might be made in a short while—I am deeply unhappy that the Government have had to table new schedule 1 to deal with the lack of a legislative consent motion in Northern Ireland. I generally accept the argument advanced by the hon. Member for East Antrim that we cannot simply blame the Ministers in this Government, but there has been a clear lack of urgency and clarity from them about who has the lead in these negotiations. Negotiations in the context of Northern Ireland are hard work, but I have not really seen any evidence that they have been taking place. It may be that they have been going on hidden from view, but if they have been going on, they ought to continue apace because it is essential to resolve this issue—the sooner, the better.
Naomi Long
I wonder whether the right hon. Gentleman would agree that there is another important issue here, to which the Government might be able to respond. Where the NCA is operating in the reserved field in Northern Ireland, we will still have an input into the organised crime effort. The Home Secretary, however, has removed the statutory requirement to consult the Department of Justice and the Justice Minister in Northern Ireland on strategic priorities and in respect of the annual plan by the director-general. That leaves another deficit that could be filled if the Government acted now.
Paul Goggins
I compliment my hon. Friend on her ingenuity in seeing two pages ahead in my speaking notes; I will come on to her very important point in a few moments.
I was reflecting on the effectiveness of the Organised Crime Task Force and how SOCA has been able to work with all the other law-enforcement agencies. Last year alone—this is in the annual report—£13 million-worth of drugs were seized, 33 potential victims of human trafficking were rescued, £4.44 million-worth of criminal assets were seized, and the list goes on. That is the result of working together to combat organised crime. That is now being put at risk because of the breakdown in negotiations and the failure to get a legislative consent motion. As reported by the BBC today, a recent massive operation against the illegal fuel trade involved law enforcement north and south of the border, with 300 officers deployed. If we do not get that sort of co-operation continuing at the highest possible level and to the fullest extent, the impact of such operations will be greatly diminished.
I have four specific points to put to the Minister, some involving broader issues. The first has been alluded to by my hon. Friend the Member for Belfast East (Naomi Long). I think it is a mistake to take the Northern Ireland Justice Minister out of the loop of consultation, as suggested by the Minister in new schedule 1. That Northern Ireland Minister will no longer be consulted on strategic priorities, on the annual plan or indeed in respect of the appointment of a director-general. We have an impasse here: taking the Northern Ireland Justice Minister out of the loop of consultation is, I think, the result of a failure to co-operate or to show the right spirit. We want to get this issue dealt with across the line, not to retreat from the line. My hon. Friend the Member for Belfast East made an important point in her intervention. David Ford chairs the Organised Crime Task Force and is in a leading position in the fight against organised crime, so not to consult him on these key issues is a big mistake.
In that context, the Minister has described himself as a “collegiate” Minister—and who am I to argue with that description? I was rather hoping, in that spirit, that he would have come back with an amendment to schedule 6, paragraph 1(2), which deals with inspection. Provision is made there for inspections relating to the NCA in Scotland, but no mention is made—there is still no mention of it anywhere in the Bill—of Criminal Justice Inspection Northern Ireland. It inspects the police there. It should be involved in any inspection of the NCA. In the spirit of trying to move this forward to get a meeting of minds, the Minister could, even at this late stage, make a commitment to involve Criminal Justice Inspection Northern Ireland in the same way that he is involving the Scottish inspectors in Scotland.
Secondly, the Minister has to tell us more about how the negotiations will continue. Who is in the lead? Is he in the lead? Is it the Home Secretary or the Secretary of State for Northern Ireland? Is there a meeting this week? Is there a meeting next week? Are Ministers planning to meet the parties? How is it being done? Is there any real urgency in the negotiations that should be happening? Are Ministers just sitting back and waiting for Northern Ireland politicians to come forward? We really need to know whether something is happening. As I said, negotiation is hard work, but it is important for Ministers to get on with it.
Thirdly, let me deal with operational co-operation. I particularly want the Minister to address the issue of the Child Exploitation and Online Protection Centre. Frankly, many of our constituents think that CEOP, an excellent organisation, operates independently, but it is in fact part of SOCA and will be part of the National Crime Agency. The huge irony is that Jim Gamble, an excellent first chief executive, is from Northern Ireland and was a former officer with the Royal Ulster Constabulary. He did so much to put CEOP in the place it is as a world leader in this field.
What is going to happen in Northern Ireland? Will the Chief Constable have to establish a new team to deal with these issues? What happens if CEOP has intelligence and important information about paedophiles in Northern Ireland? What is going to be done? What are the practical arrangements that Ministers are overseeing and how will they ensure that they are in place to deal with such problems? It is important not just to have reassurance about the operational responsibilities but to ensure that the message goes out to people that, if they know of abuse or if they have been abused, they must come forward to report it. Goodness me, after all we are supposed to have learned from Savile, any message that says “Frankly, CEOP is closed in Northern Ireland” would be a dreadful message to send. It is essential that the Minister provides some reassurance about that.
Naomi Long
I hope I can reassure my right hon. Friend slightly. The Justice Minister is aware of that particular risk and is working to try to put in place mechanisms to ensure that such a gap does not exist and that alternative arrangements are available for co-operation and the trading of information if we fail to get to the desirable point where the whole of the NCA is operating properly in Northern Ireland.
Paul Goggins
I am grateful to my hon. Friend for that assurance. It is timely to pay tribute to David Ford, the Justice Minister in Northern Ireland, who has done a superb job since devolution and who is, even now, looking at and trying to deal with the risks that may occur if consent is not given to these provisions. It does not come as a surprise to me at all to know that he is trying to plug the gaps in these provisions. The Minister, however, is the Minister responsible for the NCA and for CEOP, so that Minister has to offer us some reassurances.
My last point is about the relationship between the NCA and the Northern Ireland Policing Board. The hon. Member for East Antrim made the point that when he was a member of the Policing Board it was important to establish what the relationship was between a UK-wide body and the Northern Ireland Policing Board. I remember going, as the Minister responsible for policing in Northern Ireland, to the Policing Board—I did that once a year—for a formal session on organised crime. I would take with me senior SOCA officers, so that the Policing Board could ask them questions and get to the bottom of certain issues. We were as open as we possibly could be, even though there was no formal requirement for accountability. That was the spirit in which we operated. What will happen now? If the NCA is to have no formal relationship in Northern Ireland, the danger is that such discussions, formal and informal, will cease to happen. Yet the NCA will still have responsibilities for customs and immigration in Northern Ireland. There will be a loss of communication and dialogue about those and other important issues.
There is a huge agenda here. I hope that the Minister will be able to offer us some reassurance about the urgency with which he is dealing with these matters and the negotiations that need to take place, and that he will respond in detail to the points that I, and others, have raised. There are continuing and serious differences of opinion in Northern Ireland, which must be respected and worked through in a democratic way, but surely there should be absolute unanimity when it comes to the need to combat organised crime and the awful evil that it brings. That, at least, should be a matter of absolute consensus between the politicians of Northern Ireland.
Mark Durkan
Let me begin by saying that if the hon. Member for Hayes and Harlington (John McDonnell) presses amendments 95 and 102 to a Division, my colleagues and I will vote for them. My name is also attached to those amendments.
I fully understand and support what the right hon. Member for Delyn (Mr Hanson) said about new clause 3. I have a particular and positive regard for the principle contained in subsection (2), which relates to the Chief Constable of the PSNI, but the wider issues raised by the new clause are also important, and I share the concern that was expressed about them by the right hon. Member for Wythenshawe and Sale East (Paul Goggins) and others.
Like others, I find it regrettable that, in new schedule 1, we have a clumsy legislative provision that precludes functions for the time being, but provides for them to be introduced later by order, subject to other agreements. That proves that time was not used properly to secure those agreements. I do not believe that agreement on such matters is impossible. The discussions have been positive and practical rather than intractable. It is not a question of people trying to play politics, which some people unworthily accused us of doing some time ago. The character of the discussions with the Minister and his officials, and indeed the constructive role of the Minister’s special adviser, has been entirely positive. No one is saying, “Because this is coming from England, we want nothing to do with it.” There is no “green against green” competition. That is certainly not the SDLP’s position.
As I said in an intervention, some of us raised issues in relation to this Bill, and similar but different issues in relation to the Justice and Security Bill. We pointed out that there would be implications and complications when it came to the interface with, and the impact on, Northern Ireland and the Patten architecture. We cannot throw in new fixtures and fittings that are UK-wide, or even Northern Ireland-specific, and say that some of them do not affect the Patten architecture, if their character does affect it, or possibly affects it. When it comes to such matters as legislative consent motions, members of my party—as conscientious legislators both here and in the Assembly—must ask ourselves whether we have fully understood the implications, and assured ourselves that the results of these legislative changes will be positive. Are we persuaded that they will add to the fighting and the reducing of crime, but will not cause any difficulties in relation to the policing ethos, the upholding of the Patten principles and the new start to policing?
That is something we have consistently done. The right hon. Member for Wythenshawe and Sale East and I have had many discussions about the whole issue of national security—about the re-routeing of certain responsibilities and balances of interest, and about the changes that were made in the context of the St Andrews agreement, which took some of the Patten accountability and the Patten complaints process out of some of the purview of national security.
We opposed that. We had worked hard to ensure that the issue of policing would be addressed in the negotiations for the Good Friday agreement when no other party would address it, and we had ensured that an international commission was set up. Having done that, and having helped to drive the Patten reform programme, we were not going to say, “That does not matter. We never really cared about those principles. It was purely ephemeral.” When we saw measures relating to national security that we thought might provide a way of getting around or undermining Patten, we registered our concern about them, and we must ensure that that does not happen in the case of the National Crime Agency.
Sammy Wilson
The hon. Gentleman’s view on policing and the safeguards that are required obviously differs from mine, but all the discussion to which he has referred happened a long time ago, when SOCA was set up. The relationships between the Policing Board and SOCA and between the ombudsman and SOCA, and the safeguards that were to be provided, are still in place, and indeed have been added to. I cannot understand—I am sure it would be useful to the Minister to know this as well—where the gaps which, according to the hon. Member for Foyle (Mark Durkan), still exist can be found. The safeguards that his party agreed were necessary in the past were adequate and have been added to, but there seems still to be a reluctance to accept that the National Crime Agency will be able to operate in the context of the Bill.
Mark Durkan
The reluctance is not a reluctance to see the National Crime Agency operate or make a due contribution to the fighting and the reducing of crime in Northern Ireland, and crime that reaches into or out of Northern Ireland and affects other territories. The hon. Gentleman mentioned SOCA. When SOCA was first proposed, his party and mine had reservations about it, but many of those reservations were concerned with whether it would mean the loss of the valuable work done by the Criminal Assets Bureau. We wondered whether level 1 crime would be dealt with by the PSNI and level 3 would be dealt with by SOCA, and whether criminals knew that if they kept their criminal activity within level 2, there would be no one to deal with it.
Many issues arose in relation to SOCA, not just the issue of whether UK policing would affect Northern Ireland. We were seriously worried, for instance, about SOCA’s role in relation to the role of MI5. The notion of what is classified as national security, and of what a Government treat as national security, seems to be something of a movable feast in terms of the level of crime operations that are deemed to be within MI5’s sphere of influence. We were trying to clarify all those matters, and the same applies here. We need to know about any additional policing element.
The Bill with which we were originally presented provided for constabulary powers to be given to National Crime Agency officers in Northern Ireland, and we needed to know how they would be aligned with the constabulary powers of the PSNI. The Bill also provided for NCA special constables in Northern Ireland. I think that the hon. Gentleman would have been very surprised if, four and a half decades on from all the working and striving to get rid of the B-specials, nationalist parties did not question legislation providing for new special constables. Those are exactly the sort of provisions that people want to address in a sensible way.
Naomi Long
I do not doubt for a minute that the hon. Gentleman’s concerns about wanting the NCA to operate in a way that respects the devolved settlement and secures the progress that has been made in policing are genuine, but he has referred on a number of occasions to the original draft Bill, and considerable changes have been made to it to get to where we are today—leaving aside the fact that we are not going to delete all references to Northern Ireland. Huge progress has been made on constables and their status, answering to the ombudsman and other issues. Therefore, will he outline the remaining concerns that need to be addressed, so we can get over the line?
Mark Durkan
The hon. Lady’s point about the discussions and modifications that have already been made proves that many of us have raised valid concerns. When they are validly accommodated, we accept that, and we will want to raise any further outstanding concerns.
What would have happened if we had not raised our misgivings? For a long time people were saying, “That’s just an SDLP hobby-horse.” For instance, it was certainly said that I was still hung up on all the stuff about MI5 and so forth. It was said that we had too much emotional and intellectual capital invested in the Patten reforms, and that we had a hang-up. Latterly, Sinn Fein seemed to realise some of the issues as well, but it is not a matter of them trying to outflank us, or us trying outflank them. We, as parties, have a duty.
We have made our own contributions and decisions about the new policing dispensation. If we are saying that assurances are in place and policing in Northern Ireland both now and in the future is different from the historical policing dispensation, we have to show that that will continue to be the case, and that it is not being got around by the lateral legislation and policing arrangements being produced by the Government here.
We have the NCA taking over from SOCA. As the hon. Member for East Antrim (Sammy Wilson) said, we agreed with, and came to terms with, some of the SOCA arrangements and the safeguards in relation to it. Then the NCA came along, and it cannot be the case that parties will just say, “Whatever other changes you at Westminster want, and whatever you’re having yourself, we’ll just take it and we won’t look at what difference it makes to us.” We need to be reassured.
Time should have been taken to address this matter. This is not a criticism of the Minister or anyone else; it might be to do with how legislative consent motions are handled, and how we get better joined-up scrutiny between a devolved Assembly in Northern Ireland and Westminster so we are not left in the current clumsy situation, which is not just the case in relation to this Bill. Sometimes, legislative consent motions come before the Assembly long after a Bill has passed through this place. Introducing such motions earlier might give the Assembly more influence on the form of the legislation or the sensitivities that need to be taken into account. There are lessons to be learned at the procedural level for all of us, therefore.
I am not trying to point a finger at the devolved Minister or anybody else. As others have said, however, these issues were raised with Northern Ireland Office Ministers early last year, and they were asked, “What are you doing through conversations with the Home Office and devolved interests to make sure these issues are being well accommodated?” They did not seem to know, or to want to know, what we were talking about.
Paul Goggins
I want to take this opportunity to pay tribute to the hon. Gentleman and his party for all the risks they have taken down the years in relation to policing. They have often been willing to become members of the Policing Board and other bodies, which have put policing at the heart of the community for everybody. The longer I listen to his speech, the more I hear that there is an issue of principle that has to be respected, and I agree with that, but there is also an issue about time, and there has been insufficient time to have the detailed discussions needed. I am amazed the Minister has not leapt to his feet to intervene to offer the hon. Gentleman discussions very soon to resolve this whole matter as quickly as possible.
Mark Durkan
I welcome what the right hon. Gentleman says. We have mentioned some of the discussions that have taken place involving different parties and the Minister and his officials. Some of them have also involved the director of the NCA, and I understand that he came away with a new appreciation about how the Policing Board accountability arrangements worked. He said no police agency at any level could be expected to be involved in accountability in such a way, only to find that senior Police Service of Northern Ireland officers said, “Well, we are, and it works.” A fuller conversation would have been better, therefore, and the relevant Westminster Ministers should have been involved in those discussions earlier, rather than leaving it to everybody else.
Mr Hanson
Does the hon. Gentleman accept that his arguments about this particular matter also relate to the next set of amendments on asset recovery? It is important that we have an opportunity to test the Government on what they are doing to close the loophole in that regard, and I am conscious that we have limited time to do that. I hope he will either reflect on those concerns now or ensure that we can debate them, as the asset recovery issue is particularly important because there is no asset recovery in Northern Ireland, and I know he is concerned about that.
Mark Durkan
I fully accept what the right hon. Gentleman says. Our concern is not to make sure that the NCA has no remit or writ in relation to Northern Ireland. Our concern is to ensure not only that Northern Ireland does not lose out under the new dispensation by injury to the Patten architecture, but that we do not lose out on any equipment we might need to combat serious crime and to be part of combating it on a wider territorial basis. The asset recovery issues he raises point to important issues. It is imperative that we have full and proper discussions on all such matters.
On the criminal intelligence function, I hope we can put great store by what the Minister said in reply to my intervention about some of the functions not being precluded by the measures. He said the criminal intelligence function will still be discharged by the NCA in Northern Ireland, and that it will not be involved in running its own informers and so forth. The House should not have to be reminded that it is only a few months since we all sat here shocked at the revelations in the de Silva report about what happens when people are running agents and informers and some police know about it and others do not. We end up with scandalous situations, which are central to people’s concerns about confidence in policing in Northern Ireland. We have to make sure people know that we can never go back to that situation again, by default, by design or by any other means.
There is no point in us saying “Yes, we’ve sorted out full accountable policing and none of the old things can happen,” only for people to find all sorts of other things going on, and we then say, “Yes, but that was nothing to do with the accountable devolved policing. That was to do with these other policing arrangements we helped to legislate for.” We are then like Clouseau in one of the “Pink Panther” movies where he sees a man with a dog and asks, “Does your dog bite?” The man says, “No.” Clouseau pets the dog and the dog nearly takes his arm off. Clouseau then says, “I thought you told me your dog doesn’t bite,” and the man says, “That’s not my dog.” We cannot say, “We’ve sorted out policing, and we have full accountability and a full and open complaints process, but meanwhile anything goes in relation to how this Parliament here at Westminster legislates for other aspects of policing.” We have to get this right for now and for the future.
The hon. Member for East Antrim raised an issue that was close to being a red herring: what is or might be provided for in relation to Northern Ireland in the Marriage (Same Sex Couples) Bill. As I read it, that Bill basically says that a same-sex marriage conducted in England or Wales will have the status only of a civil partnership in Northern Ireland or in Scotland. In one respect, Ministers could argue that they are respecting the legal position in Scotland and in Northern Ireland, and are saying, “We won’t do anything that does injury to that, interferes with that or introduces any other new language or different standing.” I do not accept the hon. Gentleman’s point about a comparison with that Bill’s provisions, as they stand. The comparison is that there was a danger that the way in which this Bill was providing for Northern Ireland was going to damage carefully developed and agreed procedures in place in Northern Ireland.
Mr Jeremy Browne
Time is short and so, although I will try to give a thorough response, I may be sparing in the number of interventions I take, for reasons that hon. Members will understand.
A lot of points were made about new clause 3 and the changes with regard to Northern Ireland. I will deal with those and then briefly with the amendments. I will not address the Government amendments, even though I have not yet spoken about those. The right hon. Members for Delyn (Mr Hanson) and for Wythenshawe and Sale East (Paul Goggins) made particular points about new clause 3, with the former making the point that a super-affirmative order could not be amended.
It is worth drawing the House’s attention to the fact that the procedure in the Bill requires the Home Secretary to
“have regard to
(a) any representations,
(b) any resolution of either House of Parliament, and
(c) any recommendations of a committee of either House”.
As I said earlier, we envisage that in those circumstances the cross-party Select Committee on Home Affairs would consider proposals brought forward. After the Home Secretary has considered those matters, she may revise the order before inviting each House to agree the amended order. The point I am making is that, although there may not be a provision for the House to amend such an order at the end of the deliberations, there will be multiple opportunities for different bodies of Parliament to inform any recommendations that the Home Secretary may wish to bring to our attention. That detailed scrutiny process may be more comprehensive and may contain more provision for amendment and scrutiny than attaching an item of primary legislation into an overarching so-called Christmas tree Bill at another stage. There is a danger of the House underestimating the degree of scrutiny that will be available to Members, and the Government would certainly wish such a serious measure to be scrutinised effectively.
We had a lot of debate about Northern Ireland, and it is worth stressing that I agree with the central thrust of the points that have been made by nearly every Member who has spoken; the United Kingdom Government wish the NCA’s provisions to reach right across the UK, and in so much as they do not that is a source of regret to us. I therefore think that there is no difference between the Government’s position and that of most Members who have spoken on that point. Obviously, a number of meetings have taken place between officials, Ministers here in London and Ministers in Northern Ireland, but David Ford, the Northern Ireland Justice Minister, has led the main body of discussions. As legislative consent is a devolved process, it was for him to take forward the discussions with his Executive colleagues and the political parties. That is the proper way to proceed.
Mr Browne
There is a lot of desire to discuss proceeds of crime in Northern Ireland, so, ironically, the longer I speak, the less chance Members will have to speak about Northern Ireland matters. I will give way once, but I will not give way again, unless I have said something that offends people’s sensibilities.
Ian Paisley
The Minister certainly has not offended my sensibilities. He accepts that the Bill is deficient and will be deficient in its operation—he accepted that in Committee—and as he cannot obtain consent for the legislation in Northern Ireland, he is left with a choice. He can either ignore that and plough on without that consent or implement the legislation from this place. I think that it will boil down to that choice. The House will have to determine whether it will face down the unjustified opposition to the implementation of the Bill in Northern Ireland.
Mr Browne
I am grateful to the hon. Gentleman for that intervention, if only because it allows me to clarify that it is our intention to abide by the Sewel convention. We are not in the business of facing down, as he puts it, elected representatives in Northern Ireland, as we want to proceed with their approval and consent.
It is worth making it clear to the House that the NCA will still have a role in Northern Ireland, as there is a danger that a casual observer of our deliberations might think otherwise. I can confirm that some types of cross-border crime will fall within the remit of the NCA in Northern Ireland, even in its constrained form. For example, the NCA in Northern Ireland will be able to tackle immigration or customs offences. The NCA and CEOP will continue to be able to co-operate with partners in Northern Ireland and we are seeking to mitigate the operational impact of the situation we find ourselves in.
The NCA and CEOP will continue to operate in Northern Ireland, but it is worth saying that that operation will be curtailed as a result of the absence of legislative consent. In a way, that illustrates the wider point. There will be an NCA function in Northern Ireland and obviously we hope and believe that it will benefit the people of Northern Ireland. It will not be as comprehensive as we would have wished, but there is provision for it to be made more comprehensive in the future, as and when the political will and consensus in Northern Ireland provide for that.
Let me deal briefly with the non-Government amendments. New clause 2, tabled by the right hon. Member for Delyn, seeks to provide for a review of the NCA within 12 months of Royal Assent. I think I said earlier that the NCA would come into effect in October 2013, but for the avoidance of doubt let me clarify the Government’s position. We wish the NCA to come into effect by the end of 2013. Our target date is October, but that will obviously depend on matters that are not necessarily directly within our control, including potential issues to do with Parliament.
The new clause asks for a review during the 12 months after Royal Assent. Obviously, we want to keep a close eye on the effectiveness and accountability of the NCA when it is up and running and that is a core job of Government and Parliament, but the Government do not believe that an additional formal review mechanism is necessary. There are plenty of other means by which Ministers and Parliament can examine the progress made by the NCA and by which Parliament can examine the actions and decisions of Ministers.
Amendment 3 would make the director general’s power to provide assistance to any overseas Government or body subject to the prior approval of the Secretary of State. It is worth noting that there is no equivalent requirement for the Secretary of State to seek consent in statute for SOCA, HMRC or the security and intelligence services. We see no reason why we should create unnecessary statutory barriers to continuing the good work that already happens. Day-to-day assistance between the NCA and its overseas partners will be so routine that it would be completely impractical to require the Secretary of State to give consent in every instance.
On amendments 95 and 102, I must say that it was refreshing to hear the principal argument being made by the hon. Member for Hayes and Harlington (John McDonnell), who made the case for trade unionism. Those points were not given more than a passing and cursory airing in Committee and were not raised by the Labour Front Bench, so we are not minded to agree to the amendments given that, as I understand it, there is consensus among the political parties that the Government are right and the Labour party enthusiastically supports the Government’s position on the trade unions.
Mr Hanson
Would the Minister clarify for me, given what my hon. Friend the Member for Hayes and Harlington (John McDonnell) has said, who he believes will be covered by the provisions of clause 12 in addition to those, such as Keith Bristow, who are accredited police officers?
John McDonnell
It is important that we hear a response to the question asked by my right hon. Friend the Member for Delyn (Mr Hanson), because the people who are covered in the legislation are not just police officers; they are immigration officers, they are customs officers. What has also happened is that, as of three weeks ago, the staff have been notified. Some of those officers from SOCA who will be moving across had no powers; their powers had lapsed. They have been told that by October, investiture day, their powers will be returned to them and they will be included in the cache of people to whom the no-strike provisions apply. That means that, already, 1,500 people—possibly—will be included, as well as potentially another 900 staff. The provision goes beyond police officers to immigration officers and customs officers.
Mr Browne
I am grateful for the hon. Gentleman’s intervention. Let me explain the Government’s position and see whether I can persuade him to take the same view as those on the Labour Front Bench. [Hon. Members: “Answer the question.”] I will; I am coming to it. Calm down. Those on the Labour Front Bench have supported us on this all along, and they have good reason for doing so. I want to try to persuade the hon. Member for Hayes and Harlington that Labour is right to support the Government’s position, so let me explain our position.
Amendments 95 and 102 seek to remove the restriction on the right to strike for NCA officers with operational powers. This is an important measure to ensure that the NCA can protect the public from the threat of serious and organised crime and be operationally effective around the clock, every day of the year. Criminals do not stop when there is strike action. The threat to the British public from serious and organised crime is a constant threat and we do not want NCA operations disrupted or jeopardised by striking NCA officers. In the interests of public safety, it is therefore necessary that we restrict the right to strike of certain NCA officers. That will apply to NCA officers with operational powers. This is not about banning NCA officers from being members of a trade union, should they wish; it is about ensuring that the public remain protected at all times.
My right hon. Friend the Home Secretary has been clear that our strong preference is to put in place a voluntary no-strike agreement with those unions that will be recognised by the NCA. That would, in practice, impose strike restrictions on the vast majority of NCA officers and establish an alternative method for resolving disputes with the organisation. If that is achieved, the Bill gives the Home Secretary a power to suspend the operation of the provisions restricting the right to strike. In essence, therefore, the no-strike provision is designed as a reserve provision.
I return to the central point: I think the public will not be able to understand why, if they are at threat from serious and organised crime, the agencies of the state, which are paid for from our taxes to protect the public from that serious and organised crime, should not be available 24 hours a day to do so. The threat to the public exists 24 hours a day. I would ask the hon. Member for Hayes and Harlington to reflect on that central point, because as I understand it, unless those on the Labour Front Bench have changed their position, it has been accepted by the Labour party that we should be seeking to protect the public around the clock. I invite the hon. Gentleman to accept that point too.
John McDonnell
Of course that is the case; we all accept the need to protect the public. Until now, customs and revenue officers—the immigration officers—have been able to do that without having the right to strike withdrawn. That is what the Labour party thought was happening. The Labour Front-Bench team thought that the provision related to policing powers, but it has gone well beyond that. A briefing was circulated to all MPs on Friday to explain that. Some people are saying that they did not receive it. I have a list of the e-mail addresses that it went to, so I know who got it. That briefing showed, in the explanation from management to staff, that the provision has gone well beyond what Ministers originally proposed, which was just for police officers. It has been extended to immigration officers—customs officers—who have always had the right to strike and yet have always protected our country. This is a massive step beyond anything that was proposed initially in the Bill.
Mr Browne
Let me finish the point. [Interruption.] I will give way; I have already done so, and I will do so again, but there is a serious point to be made. NCA officers with operational powers should, as they are paid to do from our taxes, protect the public 24 hours a day from the threat of serious and organised crime. We want that arrangement to be secured through negotiation, as I have outlined, but the bottom line is that we want the public to be protected by the NCA around the clock, because the threat from serious and organised crime exists around the clock. If Opposition Members do not want NCA officers with operational powers to be available around the clock, they should say so explicitly.
Mr Hanson
It may come as a surprise to the Minister, but part of the purpose of Report is to discuss matters of implementation. My hon. Friend the Member for Hayes and Harlington (John McDonnell) has raised concerns that were circulated late on Friday. I just want clarification from the Minister as to what he means by “some officers”. Will he confirm whether customs officers and immigration officers will be included in the provision under clause 12, as opposed to just police officers, whom we understand to be those who have constable roles, as the Opposition understood in Committee?
Mr Browne
Let me say two things. Nothing in the Government’s position has changed since Committee. There is an idea that this is something that has been circulated at the last moment and which Labour has suddenly discovered, but the Bill is the Bill. If there are agonies in the Labour party about where—[Interruption.] Hon. Members should wait a second; I am trying to answer the right hon. Gentleman’s point. If the Labour party cannot decide where it stands on the matter, that is for it to resolve internally.
I have been given a note that confirms what I have said. For the avoidance of doubt, I said that the measure applies to people with operational powers, and the Bill has always provided that those NCA officers designated with operational powers— police, customs or immigration powers—will be prevented from striking. That is what the measure said from the outset. I feel bad, because the hon. Member for Hayes and Harlington is being told by Labour Whips that they are all on his side and so on. He should have served on the Committee, because Labour Members did not object to the measure there. They have to resolve that between themselves, but our view—the bottom-line view, which is the same as when the matter first came up; nothing changed in Committee or elsewhere—is that the provisions on the NCA should be there to protect the public around the clock from a threat that they face around the clock.
John McDonnell
This is about exactly what my right hon. Friend the Member for Delyn said. This is what we call legislating; this is what we call debate. We discover during the passage of legislation the implications of that legislation. I did not serve on the Bill Committee, so this is my opportunity to discover and debate. We have all discovered that the intention of the Bill is to remove the right to strike, not from police officers but from immigration and customs officers, who are civil servants—they are not police officers. That was never the intention behind any of the debates until now, and on that basis, I urge hon. Members on both sides of the House to vote for the amendment. If the Government need to return with clarification at a later stage in another place, that is fair enough, but we must ensure that we do not introduce legislation in the House that is a fundamental attack on a fundamental human right.
Mr Browne
I will clarify the fact that the intention of this part of the Bill is very straightforward. There is a serious threat to the public of the United Kingdom 24 hours a day from serious and organised crime, and we want the new National Crime Agency to meet and counter that threat from the people who perpetrate it 24 hours a day, 365 days a year. So we want a consensus to be arrived at about the best way that these affairs can be structured, but we do not want people to be threatened by serious and organised crime and for operational officers at the National Crime Agency to be unavailable to counter that threat.
Labour Members appear to have changed their position and we will have a Division in the House of Commons on that. I hope that enough Members of the two parties in the coalition will share my view and the view of the Government that it is not appropriate for the public to be left exposed to the threat from serious and organised crime in the way that is envisaged by the hon. Member for Hayes and Harlington, which appears, in this ever shifting situation, now to be endorsed by the right hon. Member for Delyn as well.
Mr Hanson
I am grateful to the Minister. He should know that one of our concerns is that police officers should not have the right to strike, and we have supported that. I wanted clarification from him, which perhaps we should have sought in Committee when we discussed the detail of the matter, but he appears to be getting notes from his officials about that. Information has come to light with regard to customs officers and immigration officers, and we wanted clarification on that. I cannot support the amendment tabled by my hon. Friend the Member for Hayes and Harlington calling for the removal of the whole clause, but clarification is certainly needed on the matter.
Mr Browne
I received a note because I said to Parliament that the provision applied to NCA employees with operational powers, and Labour MPs who have hitherto been entirely happy to endorse the Government’s position suddenly changed their mind. That gave me cause for concern that I may inadvertently have made a mistake when I said that the provision applied to NCA officers with any operational powers, so I sought clarification from officials that I had been right all along and that Labour had been happy to endorse that position, and they reassured me that I had been right and Labour had been happy to endorse that position.
I commend the hon. Member for Hayes and Harlington on the power that he wields within the Labour party. Labour had been entirely happy to endorse the Government’s position, which is that we believe that people who are potentially victims of serious and organised crime should not have the National Crime Agency unavailable to protect them from that serious and organised crime. Labour now takes a different position so, as I say, when there is a Division on the matter, we will have to see which vision of public protection commands the support of the House. With respect to all the other new clauses and amendments in this group, I hope the House will see fit to support those of the Government and reject those tabled by other Members.
Question put, That the clause be read a Second time.
Section 2 | —subsection (2)(a) so far as it requires consultation with the Department of Justice in Northern Ireland |
Section 3 | —subsection (6)(a) so far as it requires consultation with the Department of Justice in Northern Ireland —subsection (7)(b) —subsection (8)(c) |
Section 10 | —subsection (8) |
Schedule 1 | —paragraph 7(1)(b) —paragraph 8(3)(b) |
Schedule 2 | —paragraph 5(b) —paragraph 6(2)(b)(ii), (4) and (5) —paragraph 8(4) and (5) |
Schedule 3 | —paragraph 1(2) so far as it imposes a duty on: (a) a member of the Police Service of Northern Ireland, or (b) a person operating in Northern Ireland who falls within paragraph 1(3)(f) —paragraph 3 so far as it relates to the Chief Constable of the Police Service of Northern Ireland —paragraph 14 —paragraph 15 —paragraph 25 —paragraph 26(3)(b) |
Schedule 5 | —paragraph 11(1)(c) —paragraph 11(6) to (8) —in paragraph 11(9), the definitions of “Northern Ireland general authorisation” and “Northern Ireland operational authorisation” —paragraph 13 —in paragraph 30, the definition of “powers and privileges of a Northern Ireland constable” |
Schedule 6 | —paragraph 19 |
Schedule 8 | —the provisions of Part 2 and Part 3 so far as they relate to transferred matters |
Mr Peter Bone (Wellingborough) (Con)
On a point of order, Mr Deputy Speaker. You will recall that Wellingborough prison was closed without any notification to me, and that I learned about it through the media. I have just been contacted by my local press and learned that Wellingborough prison has been sold. I have received no notification whatever from the Ministry of Justice, and there is no written statement in the Library. Can you advise me of how I might get some more information about what seems a very unfortunate situation?
Mr Deputy Speaker (Mr Lindsay Hoyle)
What I can tell the hon. Gentleman is that the Chair has not been advised of such a sale, but his point is now on the record, and I am sure that since he has raised it, the Prisons Minister will get in touch with him to say whether it has been sold. I look to the Government Front Bench as I say that I presume that has been taken on board.
New Schedule 2
Proceeds of crime provisions: Northern Ireland
Part 1
Civil recovery provisions
Meaning of “relevant civil recovery provision”
1 For the purposes of this Part of this Schedule, each of the following is a “relevant civil recovery provision”—
(a) section 33(2), (3), (5) and (6);
(b) section 33(7) so far as it relates to amendments made by section 33(2), (3) and (5) and Part 2 of Schedule 17;
(c) each provision in Schedule 17;
(d) each amendment or repeal made by the provisions mentioned in paragraphs (a) and (c).
Relevant civil recovery provisions not to extend to Northern Ireland unless order made
2 (1) The relevant civil recovery provisions do not extend to Northern Ireland.
(2) But that is subject to paragraph 3.
Power to provide for relevant civil recovery provisions to extend to Northern Ireland
3 The Secretary of State may, by order, provide for one or more of the relevant civil recovery provisions to extend to Northern Ireland.
Relevant civil recovery provision extending to Northern Ireland
4 (1) The Secretary of State may, by order, make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, a relevant civil recovery provision extending to Northern Ireland.
(2) An order under this paragraph may, in particular—
(a) provide for section 282A of the Proceeds of Crime Act 2002 to have effect in relation to orders made by the High Court in Northern Ireland;
(b) provide for an enforcement authority in relation to Northern Ireland to make requests for assistance under section 282B of that Act;
(c) provide for a receiver appointed under an order made by the High Court in Northern Ireland to make requests for assistance under section 282C of that Act;
(d) provide for the High Court in Northern Ireland or a receiver appointed by an order made by that court to make requests for assistance under section 282D of that Act;
(e) provide for an enforcement authority or trustee for civil recovery to make a request for assistance under section 282F of that Act where a recovery order has been made by the High Court in Northern Ireland;
(f) provide for section 316(8B) of that Act to have effect in relation to an enforcement authority in relation to Northern Ireland.
Relevant civil recovery provision not extending to Northern Ireland
5 The Secretary of State may, by order, make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, a relevant civil recovery provision not extending to Northern Ireland.
Consent of Northern Ireland Assembly to transferred provision
6 (1) The Secretary of State may not make an order under this Part of this Schedule which makes transferred provision unless the Northern Ireland Assembly consents to the making of that provision.
(2) In this paragraph “transferred provision” means provision which, if it were contained in an Act of the Northern Ireland Assembly—
(a) would be within the legislative competence of the Assembly, and
(b) would deal with a transferred matter without being ancillary to other provision (whether in the Act or previously enacted) which deals with an excepted or reserved matter.
(3) In sub-paragraph (2)—
“ancillary” has the meaning given in section 6(3) of the Northern Ireland Act 1998;
“excepted matter”, “reserved matter” and “transferred matter” have the meanings given by section 4(1) of the Northern Ireland Act 1998.
Orders under this Part of this Schedule: particular provision
7 (1) The provision that may be made by an order under paragraph 3, 4 or 5 (whether by virtue of that paragraph or section 43(12)) includes—
(a) provision conferring, removing or otherwise modifying a function (whether or not exercisable in, or in relation to, Northern Ireland);
(b) provision amending, repealing, revoking or otherwise modifying any enactment (including an enactment contained in, or amended by, this Act).
(2) Such an order may provide for provision amending, repealing or otherwise modifying Chapter 2 or 4 of Part 5 of the Proceeds of Crime Act 2002 to have retrospective effect.
(3) The making of an order under any provision of this Part of this Schedule does not prevent—
(a) a further order from being made under that provision, or
(b) an order from being made under any other provision of this Part of this Schedule.
(4) An order under paragraph 3 or 4 may modify or reverse the effects of an order made under paragraph 5.
(5) Sub-paragraphs (1) to (4) do not limit the powers conferred by paragraphs 3, 4 and 5.
(6) In this paragraph—
“enactment” means any enactment, whenever passed or made, contained in—
(a) an Act of Parliament;
(b) an Act of the Scottish Parliament;
(c) Northern Ireland legislation;
(d) a Measure or Act of the National Assembly for Wales;
(e) an instrument made under any such Act, legislation or Measure;
(f) any other subordinate legislation (within the meaning of the Interpretation Act 1978);
“function” means a function of any description, including a power or duty (whether conferred by an enactment or arising otherwise).
Part 2
Investigation provisions
Meaning of “relevant investigation provision”
8 For the purposes of this Part of this Schedule, each of the following is a “relevant investigation provision”—
(a) each provision in paragraphs 2 to 13, 25 to 27, 29 and 30 of Schedule 18 (including each amendment or repeal made by those provisions), and
(b) section 34 so far as it relates to each of those provisions.
Relevant investigation provisions not to extend to Northern Ireland unless order made
9 (1) The relevant investigation provisions do not extend to Northern Ireland.
(2) But that is subject to paragraph 10.
Power to provide for relevant investigation provisions to extend to Northern Ireland
10 The Secretary of State may, by order, provide for one or more of the relevant investigation provisions to extend to Northern Ireland.
Relevant investigation provision extending to Northern Ireland
11 The Secretary of State may, by order, make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, a relevant investigation provision extending to Northern Ireland.
Relevant investigation provision not extending to Northern Ireland
12 The Secretary of State may, by order, make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, a relevant investigation provision not extending to Northern Ireland.
Consent of Northern Ireland Assembly to transferred provision
13 (1) The Secretary of State may not make an order under this Part of this Schedule which makes transferred provision unless the Northern Ireland Assembly consents to the making of that provision.
(2) In this paragraph “transferred provision” means provision which, if it were contained in an Act of the Northern Ireland Assembly—
(a) would be within the legislative competence of the Assembly, and
(b) would deal with a transferred matter without being ancillary to other provision (whether in the Act or previously enacted) which deals with an excepted matter or a reserved matter.
(3) In sub-paragraph (2)—
“ancillary” has the meaning given in section 6(3) of the Northern Ireland Act 1998;
“excepted matter”, “reserved matter” and “transferred matter” have the meanings given by section 4(1) of the Northern Ireland Act 1998.
Orders under this Part of this Schedule: particular provision
14 (1) The provision that may be made by an order under paragraph 10, 11 or 12 (whether by virtue of that paragraph or section 43(12)) includes—
(a) provision conferring, removing or otherwise modifying a function (whether or not exercisable in, or in relation to, Northern Ireland);
(b) provision amending, repealing, revoking or otherwise modifying any enactment (including an enactment contained in, or amended by, this Act).
(2) The making of an order under any provision of this Part of this Schedule does not prevent—
(a) a further order from being made under that provision, or
(b) an order from being made under any other provision of this Part of this Schedule.
(3) An order under paragraph 10 or 11 may modify or reverse the effects of an order made under paragraph 12.
(4) Sub-paragraphs (1) to (3) do not limit the powers conferred by paragraphs 10, 11 and 12.
(5) In this paragraph—
“enactment” means any enactment, whenever passed or made, contained in—
(a) an Act of Parliament;
(b) an Act of the Scottish Parliament;
(c) Northern Ireland legislation;
(d) a Measure or Act of the National Assembly for Wales;
(e) an instrument made under any such Act, legislation or Measure;
(f) any other subordinate legislation (within the meaning of the Interpretation Act 1978);
“function” means a function of any description, including a power or duty (whether conferred by an enactment or arising otherwise).’.—(Mr Jeremy Browne.)
Brought up, and read the First time.
Mr Speaker
With this it will be convenient to discuss Government amendments 61 to 71, 75, 86 and 88.
Mr Browne
I do not propose to detain the House long on the new schedule and amendments. In essence, they deal with the consequences of the failure to agree a legislative consent motion in Northern Ireland for the proceeds of crime provisions in the Bill, just as similar amendments in the previous group dealt with the consequences of not securing an LCM for the NCA provisions. As I have already explained the context of the amendments and it has been given an extensive airing, I do not propose to cover the same ground again.
The amendments made to the Proceeds of Crime Act 2002 in Committee to remedy the effects of the Perry judgment will operate UK-wide, but as with the NCA provisions, which we have just discussed, in the absence of an LCM it is necessary that we amend those provisions so that they do not extend to Northern Ireland. In new schedule 2, a similar approach is adopted in respect of the proceeds of crime provisions to that taken in new schedule 1 in respect of the NCA. It provides that “relevant civil recovery provisions” and “relevant investigation provisions” do not extend to Northern Ireland.
The primary outcome of the new schedule and the associated amendments to clause 33 and schedule 17 is that the High Court of England and Wales will be able to make a civil recovery order against property located outside the UK where there is, or has been, a connection between the case in question and the relevant part of the UK, and the Court of Session will have similar powers in Scotland, but the High Court of Northern Ireland will not be able to make such an order. If the unlawful conduct occurred in Northern Ireland but the property was located outside Northern Ireland, the High Court of Northern Ireland would have no power to make an order over that property.
Like new schedule 1, however, which we considered in the last group of amendments, new schedule 2 contains a number of order-making powers that will enable the Secretary of State to extend certain civil recovery and investigation provisions to Northern Ireland at a later date. In respect of matters falling within the legislative competence of the Northern Ireland Assembly, the Secretary of State must secure the Assembly’s consent before doing so. As I have indicated, we will continue to work with the Northern Ireland Minister of Justice to secure all-party agreement to the full application of the Bill’s proceeds of crime provisions to Northern Ireland, but for now we must ensure that the Bill respects the Sewel convention.
Mr Hanson
I say again to the Minister that this is a really difficult issue for Northern Ireland. It is a big hole in the Bill. He has just said that because we do not have agreement with the Northern Ireland Assembly, from Royal Assent Northern Ireland will not have asset recovery powers, because of judgments that have been made in relation to the UK as a whole. Because Northern Ireland’s jurisdiction has not agreed to the provisions in the Bill, we will face difficulties.
Sammy Wilson
I thank the right hon. Gentleman for giving way. It is a great pity that the Minister would not give way on this point earlier.
Does the right hon. Gentleman agree that crime barons in Northern Ireland who are reaping hundreds of millions of pounds a year will now be able to invest those proceeds across the border in the Irish Republic with impunity and without any danger of those assets being seized? I know that that is a matter for the Northern Ireland Assembly, but it will create a serious hole in the pursuit of such criminals and will cause great difficulty in recovering assets from them.
Mr Hanson
It does indeed; it creates a tremendous hole in asset recovery provisions. In effect it means—the Minister has accepted this—that a criminal in Taunton could buy a property in the Republic of Ireland and have those assets confiscated by the High Court, but a criminal in Belfast, for example, with a property in the Republic of Ireland, could not. There is also a perverse incentive for people to move to Northern Ireland to pursue their criminal activities. At the moment, unless an order is introduced urgently, the provision will not allow assets abroad to be confiscated from those in the north of Ireland.
Ian Paisley
I am sure the shadow Minister will agree that the situation gives gangsters and criminals in Northern Ireland who are involved in serious and organised crime a free rein in part of the United Kingdom, and that must be addressed. Does the right hon. Gentleman agree that this is a test and that people want to see the rule of law operating against people such as Mr Murphy and Mr Hughes in South Armagh, just as it does against serious and organised criminals in Manchester, Birmingham and other parts of the United Kingdom?
Mr Hanson
This is an extremely serious issue, and I want the Minister to say not just that there is a problem—he has done that—but what the solution is in relation to getting parties around the table to discuss the Executive agreeing to provisions on asset recovery. This is not a hypothetical issue. On 6 March a British newspaper stated:
“Briton hunted as police crack IRA and Mafia fraud scheme…A British man…is being sought by detectives investigating the £390m fraud which was based around a development on the…coast of…Southern Italy.”
Italian authorities arrested people in dawn raids and a warrant has been issued for the arrest of an individual from Belfast whom I shall not name. If that individual is convicted of fraud in Italy, his Italian assets cannot be confiscated because he is resident in Belfast. If he was resident in our constituencies of Delyn, Darlington, Walthamstow, Taunton or Middlesbrough, however, he could be taken to court and his assets taken from him.
There is a massive incentive for criminals to relocate to Northern Ireland, and for those operating criminal activities across the border between Northern Ireland and the Republic of Ireland to continue doing so. I know there are issues in some political parties about the provisions and the legislative consent motion, but I appeal to the Northern Ireland Executive to consider the matter again because it is undermining action against criminal activity in Northern Ireland.
In the few minutes remaining I would welcome the Minister outlining a clear road map and stating how he intends to resolve this problem. It is not simply about bringing an order forward in the future, but about how we can reach an agreement where such an order can be effected to close this appalling loophole.
Mr Jeremy Browne
In a way, points or lines of difference are being drawn between the two Front Benches that do not exist. The right hon. Gentleman described the situation correctly because the status of a criminal from Taunton—that was his example—would be different from that of a criminal from Belfast when it came to the seizure of assets. The Government of the United Kingdom do not want that to be the case and wish the arrangements to apply universally across the United Kingdom. That is partly because measures to rectify the offence of illegally acquired assets and to address that wrong should apply regardless of where in the United Kingdom it took place, but also because, as the right hon. Gentleman said, this situation creates an extremely worrying incentive for people wishing to perpetrate organised crime and acquire financial assets to base themselves in Northern Ireland. That is an extremely worrying development, I would have thought, for any Member who represents a Northern Ireland constituency, but it is also a concern for the United Kingdom Government as a whole, because we do not want such perverse and malign incentives to result from decisions made by politicians.
Mr Browne
One second.
Our position is clear. In a way, this is a strange debate, in that I am explaining the reality as it stands, but it is not the reality as I would like it to be. The British Government would like the NCA to apply in Northern Ireland in the way I have been describing throughout this afternoon. At the same time, we cannot have a system of devolution that applies only when the United Kingdom Government approve of the decisions made by the politicians in the devolved Executive and legislature. For devolution to mean anything, where the politicians in the devolved Executive and legislature—in this case in Northern Ireland—are not willing to endorse the preferred option of the United Kingdom Government, there obviously has to be a sense of discretion among those politicians. I want the politicians in Northern Ireland to arrive at the outcome that the United Kingdom Government seek, because I think it would be in the interests of the people in Northern Ireland.
Ian Paisley
That analysis might come back to bite the Minister under another set of circumstances. All I would say is that the First Minister of Northern Ireland said in evidence to a Select Committee in this House that, because of the disagreement, this sovereign Parliament should rule on it. That is the test for the Minister. Rule on it! He should make the sovereign decision if there has been no agreement. Let us remember that the majority of the Assembly has voted in favour of this proposal and the majority of the Executive is for it, but it is being held to ransom by a tiny, tiny minority.
Mr Browne
The point I am making is that the proposal is not being held to ransom by the UK Government. I agree with the hon. Gentleman; indeed, if I may say so, the tone of his intervention would rather imply to anybody who had not followed our deliberations carefully that he and I are on different sides of the argument. I agree with what he has said: I want people in Northern Ireland to have just as much protection under the NCA as people in my constituency of Taunton Deane, but I also recognise that the constitutional settlement in Northern Ireland is different from that in Somerset. Therefore, different considerations apply.
Sammy Wilson
Does the Minister not accept, however, that on this issue there is a big difference? The inability to seize assets that criminals who operate from Northern Ireland might have outside Northern Ireland is a UK-wide problem, in so far as criminals currently involved in activities here in Great Britain could relocate to Northern Ireland and thereby escape losing their ill-gotten gains. From that point of view, this is not simply a Northern Ireland issue or an issue for the Government of Northern Ireland; rather, it becomes an issue for the Government of the United Kingdom. At least on this issue, he could override the views in Northern Ireland.
Mr Deputy Speaker (Mr Lindsay Hoyle)
I now have to announce the result of today’s deferred Divisions. In the deferred Division on the draft Conditional Fee Agreements Order 2013, the Ayes were 288 and the Noes 225, so the Ayes have it.
In the deferred Division on the draft Non-Domestic Rating (Levy and Safety Net) Regulations 2013, the Ayes were 286, the Noes 223, so the Ayes have it.
In the deferred Division on the draft Tax Credits Up-rating, etc. Regulations 2013, the Ayes were 286, the Noes 228, so the Ayes have it.
In the deferred Division on the draft Renewable Transport Fuel Obligations (Amendment) Order 2013, the Ayes were 289, the Noes were 224, so the Ayes have it.
[The Division lists are published at the end of today’s debates.]
New Clause 18
Sanction for and trial in relation to drink driving
‘Schedule 2 of the Road Traffic Offenders Act 1988 is amended such that the time period stipulated as punishment for an offence under section 5 of the Road Traffic Act 1988 (driving or being in charge of a motor vehicle with alcohol concentration above prescribed limit) is two years and such that the said offence shall be triable either way.’.—(Mr Burrowes.)
Brought up, and read the First time.
Mr David Burrowes (Enfield, Southgate) (Con)
I beg to move, That the clause be read a Second time.
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 120, in clause 41, page 45, line 44, in clause 41, at end insert—
‘(3A) In section 3ZB of the 1988 Act (causing death by driving: unlicensed, disqualified or uninsured drivers), after (c) insert—
“(d) section 5A of this Act (driving or being in charge of a motor vehicle with concentration of specified controlled drug above specified limit).”.’.
Amendment 2, page 46, line 31, in clause 41, at end add—
‘(8) The Secretary of State shall have responsibility to ensure that within 12 months of Royal Assent an assessment has been made by the Home Office on the impact of this section on equipment, training and resources with particular regard to published impact assessments from the Home Office, Department for Transport, Department of Justice and the Crown Prosecution Service.’.
Amendment 89, page 46, line 34, in clause 42, at end insert—
‘(1A) In section 4(1) (“Fear or provocation of violence”) for “abusive or insulting” in the two places where it occurs substitute “or abusive”.
(1B) In section 4A(1) (“Intentional harassment, alarm or distress”) for “abusive or insulting” in the two places where it occurs substitute “or abusive”.’.
Amendment 90, page 46, line 36, in clause 42, at end insert—
‘(6) In section 6(3) (“mental element: miscellaneous”) for “abusive or insulting” in the two places where it occurs substitute “or abusive”.’.
Government amendment 84.
Mr Burrowes
Both new clause 18 and amendment 120 concern sentences for driving over the prescribed limits for drugs and alcohol and both seek to fill a gap in sentencing. There are 220 traffic cases each year in which individuals die on our roads owing to a driver who has been impaired through drink or drugs.
On the subject of filling gaps, I pay tribute to the Government for filling the gap in drug-driving offences. The new offence will not require proof of impairment. Owing to the imminent arrival of roadside drugalysers, it will become an offence that sits alongside drink-driving. It will be possible to rely on proof that someone is over the prescribed limit, whether for alcohol or drugs, rather than relying solely on proof of impairment.
Here I must declare an interest as a criminal defence solicitor. I must confess that I recall many prosecutions that did not succeed because of ambiguities and complexities relating to proof of impairment. The filling of that gap might not have been welcome to some of my clients of old, but it will be welcome to victims of offences of this kind, and it will be welcome to those who believe that it is in the public interest to ensure that drink and drug-driving offences are prosecuted properly.
However, I am also concerned about another gap. The purpose of new clause 18 and amendment 120 is to draw attention to it, and to ensure that, in one way or another, we fill it. Without the new clause, the maximum custodial sentence for driving after consuming excess alcohol, or indeed drugs over the prescribed limit, will still be six months’ imprisonment. Statute has properly provided that, if carelessness or dangerousness is proved, greater penalties will follow. The last Conservative Government recognised the need to ensure that drivers who caused death while under the influence of drugs or drink should be more heavily penalised. We now have on the statute book the offence of death caused by careless driving while the driver is under the influence of drugs or alcohol, which attracts a maximum sentence of 14 years.
In 2011, the number of drivers tried for causing death by careless driving while under the influence of drink or drugs was 27, and the number of those convicted was zero. Rather than relying on the good work of the last Conservative Government, we need to ensure that it is followed through in practice. When it comes to the sad and tragic cases of people who die as a result of the actions of drivers, particularly drivers who are under the influence of drink or drugs, there must be a penalty that exceeds the fairly minimum penalty of a six-month sentence.
Jim Shannon (Strangford) (DUP)
I believe that in Northern Ireland there are already rules, regulations and laws that address this issue specifically. There has also been a campaign aimed at dealing with drink and drugs. Does the hon. Gentleman think that it might help the Government to contact the Department of Justice in Northern Ireland, where policing and justice are a devolved matter? Might they learn something about how these matters can be handled?
Mr Burrowes
The amendments are intended to enable the Government to conduct a proactive review, which should, indeed, involve looking at what happens on the opposite shore. We all want to tackle the profound consequences of death caused by drivers under the influence, and ensure that they receive the appropriate penalty.
Rehman Chishti (Gillingham and Rainham) (Con)
I, too, must make a declaration. I was a criminal barrister who both prosecuted and defended.
As my hon. Friend says, the maximum custodial sentence for a first offence of drinking and driving is six months. It is the same for a second, third and fourth offence. Does he agree that drink-drivers who pose a threat on our roads should receive longer sentences, and that their cases should be sent to the Crown court where there can be multiple convictions?
Mr Burrowes
I remember briefing my hon. Friend on many occasions. He was a great advocate in courts in Enfield and Haringey, and he continues that advocacy in the House. He has made an important point. There is a parallel between dealing with drink-driving cases and dealing with, for example, cases of criminal damage. Where there is a succession of criminal damage cases, later cases can receive a higher penalty and can be committed to the Crown court; indeed, there are categories of criminal damage that attract a higher penalty and the attention of the Crown court. The Government should look at whether that principle, which is already in statute, should be applied to drink-drive cases that have the most serious consequences.
We have already crossed the Rubicon in terms of culpability and consequences in death by careless driving and dangerous driving. We have recognised that there needs to be a particular way of dealing with penalties that is aligned to the consequences, rather than looking at culpability alone. My amendments seek to take that a stage further.
My hon. Friend the Member for Croydon Central (Gavin Barwell) would be here in the Chamber supporting me if he were not in a Committee. He has fought a valiant and successful campaign as a result of the tragic case of one of his constituents who died as a result of someone driving carelessly. The issue of impairment must be dealt with properly and that will now happen. He and I share the concern that the new offence of drug-driving needs to address the issue of fatalities, which was where the campaign that led to the new offence began. It would therefore be ironic if we were left with a Bill that does not deal with cases where dangerous driving cannot be proved independently but people who are plainly under the influence of drugs or drink have killed someone, and they can—perhaps through the hard work in years gone by of my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) and myself as defence solicitors and barristers—get to the point where there is a lesser plea of drink-drive with a six-month penalty.
Sadly, that has already happened. We have heard that 27 people were tried and nil were convicted on this charge. I am concerned that in those cases there was a plea bargain to the lesser charge of drink-drive.
The explanatory notes to the Bill make another important point. It is stated about schedule 18:
“Paragraph 2 amends section 3A of the 1988 Act so that if the person had a controlled drug in the blood or urine in excess of the specified limit for that drug, the person could be charged with the more serious offence in that section of causing death by careless driving when under the influence of drink or drugs.”
I was proud to serve on the Bill Committee, and I sought clarity from the Minister about this point, which had been raised in correspondence with the Department for Transport and the Ministry of Justice dating back to March 2012 and in the campaign I mentioned earlier that sought a higher penalty in cases where it was not possible to prove careless driving. Unfortunately, now, a year after that correspondence began, we are in the final throes of the passage of the Bill.
This point has been made not just by me; this was not just a hobby-horse of mine—it is not about me wanting to make a point and send out a press release. It was made by Chief Superintendent David Snelling, who was an excellent commander of the Met traffic division, and it also came to the fore as a result of the campaigning efforts of my constituents, the Galli-Atkinson family, who lost their daughter as a result of dangerous driving and who saw a gap involving fatalities in drink and drug cases that are not prosecuted as they should be, so we do not end up with the sentences that the dead victims and their families deserve. They make their point based on the practical reality of cases that actually arise, and that is also the basis of my amendments.
The gap is in hit-and-run cases where a driver who is over the limit on drink or drugs crashes into another car or a pedestrian and kills, and then leaves the scene. In situations where fatalities occur, such cases are not infrequent, as—it will not surprise Members to learn—many people who know they are over the limit will do their best to evade prosecution, so they will leave the scene. They get hunted down and arrested, and when they are found to be over the limit the prosecution begins and the investigation continues. A prosecution for a failure to stop carries a limited penalty that does not reflect the gravity of the situation, and I have previously sought amendments to extend the penalties in that regard.
The prosecutor is left with the option of prosecuting for death by careless driving, but the problem is that there is no witness. In these cases, often the only witness is dead; there is nobody left. The steps are then traced back and the scene is marked out. The marks on the road might allow people to come up with a prosecution that shows that careless driving took place, because there are signs of speed, swerving, braking and so on. But it may well be that none of that is available, as perhaps it was a wet day and very little could be shown. Little corroborative evidence may be available beyond the fact that the person has died because of that vehicle and that driver, and all we have left is the fact that the driver was over the limit.
Sadly, all the prosecutor can perhaps do is prosecute for driving with excess alcohol or driving over the prescribed limit for drugs, which carries a maximum sentence of six months. Clearly that is not acceptable, given the gravity of the situation. Over the years, Parliament has recognised that where a death occurs as a result of driving it needs to be dealt with, and quite properly so. So that sets out the gap I am seeking to fill through my proposals.
The issue is whether there can be independent proof of careless driving and whether that must be sought out. In Committee, I asked the Minister what he thought of the situation and asked him for clarification. I said:
“I want it to be made clear…that it will not be necessary for the prosecutor to independently prove careless driving as the standard of driving, and that the effect is that someone’s being over the prescribed limit for drugs or alcohol will be sufficient for the prosecutor to be able to make the decision to charge them with a serious offence.”
He replied:
“My understanding is that it will not be necessary. I hope that I have clarified the point.”––[Official Report, Crime and Courts Public Bill Committee, 7 February 2013; c. 394-95.]
I would settle for that and move on. Indeed, I would probably have a press release saying, “I welcome the fact that the Minister has recognised that drivers who are over the limit and kill will get a higher penalty, which amounts to a maximum 14 years.” I would rest easy that the campaign has been successful, the victim’s voice has been heard, and the chief superintendent and police on the ground have recognised that gap and say, ”That is good. That has been dealt with.”
However, I then received correspondence from the Under-Secretary of State for Transport, my hon. Friend the Member for Lewes (Norman Baker), in what we might term “Yes Minister” language, saying that there “may be confusion”. That is what has led me to table new clause 18 and amendment 120. It was clear in the Bill Committee that we would have confusion, so today the Minister has an opportunity to be brave and to fill the gaps that I have had a go at filling through a couple of options.
One option, new clause 18, would make drink-driving or driving over the prescribed drug limit an either-way offence—one capable of being committed to the Crown court and then attracting a maximum sentence of two years. The other option is amendment 120, whereby those on licence, disqualified drivers and uninsured drivers who kill in this way will face a heavy penalty of two years. That simply adds to the list in respect of drink-driving.
I have to put my lawyer’s hat on, because I appreciate that people may have concerns about new clause 18 opening up all drink-driving cases to a Crown court trial; I recognise the expense and the vagaries of jury trials, and that that is not wholly satisfactory in itself. I am perhaps being generous in how I am presenting new clause 18 and it perhaps needs to be refined. Perhaps it should be simply specified in relation to fatalities. My hon. Friend the Member for Gillingham and Rainham suggests making specific provision about repeat drink-driving offenders. There is certainly a role for making only those high-end cases liable for a committal to Crown court, in a similar way to what happens in the criminal damages cases I referred to earlier.
Another way around that would be to deal with magistrates’ maximum sentencing powers. Perhaps the Government will respond to the calls from the Magistrates Association to extend their powers to a maximum of two years. Youth courts have a two-year custodial sentence power, so perhaps we should have equity for adult courts. That would be much more cost-effective and would avoid cases all going to the Crown court and we lawyers being paid more up there—although we must appreciate the legal aid restrictions in that regard. The issue could then be dealt with in a magistrates court in a proportionate manner. That option is also open to the Government.
I recognise that there are reservations about amendment 120. As a lawyer, I am not keen on extending strict liability cases too readily and the amendment would certainly effectively extend a strict liability scenario to drink and drug-driving-related cases. Nevertheless, my amendment is clean cut. It does not extend the powers of the Crown court to all drink-driving cases but relates specifically to fatalities. It deals with the issues that have motivated my amendments and merely adds to the list of offences. Members of the public might ask what the difference is: if someone takes the risk of driving while uninsured, disqualified or without a licence, they are pretty careless to do that and should accept the consequences, and the same applies to those who are over the prescribed limits. My amendment would retain the statutory defence for drink-drive cases and would therefore have less of a strict liability nature.
The Government need to fill the gap. I am trying my best to do that and have provided two options. There might be more and I have no doubt that the Minister can tell us about any others. I look forward to seeing how the Government will do it as this is a real problem that should not be ignored. The fact that there were 220 deaths in a year but only 27 people were charged with causing death by dangerous driving while impaired in the same period makes the point very clearly. Large numbers of impaired drivers who kill are, for one reason or another, avoiding prosecution for the more serious offence and are probably ending up being charged with the lesser drink-drive offence.
In conclusion, I spoke to Ministers before tabling the amendments. I welcome the commitment from Transport Ministers that if I can provide evidence that proving carelessness is problematic, the Department will review the case for amending legislation. The statistics I have given are evidence and I put the burden of proof on the Government. I ask them to review the issue and seek to prove the point. We are very much in the end game on this Bill. Some might say we should have done that earlier to avoid getting into such a situation, but I urge the Government to recognise that we have a problem and to fix it. I look forward to hearing from the Minister.
Susan Elan Jones (Clwyd South) (Lab)
It is a great pleasure to contribute, albeit briefly, to the debate. It is also a great pleasure to follow the hon. Member for Enfield, Southgate (Mr Burrowes), who made an extremely powerful case about the complexities of the situation. At the heart of the matter is the fact that, as we all know, people kill other people on the roads yet seem to receive remarkably light sentences. His points about people abusing drugs and alcohol before going on to kill someone were powerful.
There was a case in my constituency that was not drug or alcohol-related but demonstrated an anomaly. Many other people are trying find a solution to this, and I shall introduce a ten-minute rule Bill on the subject later in the spring, but today, in the light of what the hon. Gentleman said, I want to ask the Minister a couple of questions.
Mr David Nuttall (Bury North) (Con)
I thank the hon. Member for Clwyd South (Susan Elan Jones) for her brief but to-the-point contribution on the new clause so ably moved by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes). Many people throughout the country will have sympathy with it, and even if it is not added to the Bill today, they will be listening and watching for future developments.
Amendments 89 and 90 deal with an entirely different matter. As Members are aware, the Bill is wide ranging. Clause 42 was inserted during the Bill’s passage through the other place. Its effect is to remove the word “insulting” from section 5 of the Public Order Act 1986. We could debate that for many days, and I do not propose to rehearse all the arguments, which were well made in the other place, but it is perhaps worth noting that, notwithstanding the Government’s indication that they did not support the amendment in the other place, it was agreed to on a Division by 150 votes to only 54. I think it is fair to say that there was overwhelming support for the removal of the word.
The very minor amendments that I am proposing would bring the wording of the offences set out in sections 4 and 4A of the 1986 Act in line with section 5. Those amendments are in line with the findings of the Joint Committee on Human Rights, which stated in its report issued in October 2011:
“We also support the amendment of the Public Order Act 1986 to remove all reference to offences based on insulting words or behaviour. This would enhance human rights and remove a possible incompatibility with the right to freedom of expression.”
I stress that the report states, “remove all reference” to offences based on the use of insulting words or behaviour, not just the reference in section 5 of the Public Order Act. I entirely accept that most of the publicity and the campaign on the offence of using insulting words or behaviour centred on the need to reform section 5, but if, as the other place has voted, and as the Government have accepted, it is deemed sensible and appropriate to amend section 5, it must follow that the phrase, “insulting words or behaviour”, should be removed from other provisions in the 1986 Act that make an identical reference.
Section 4 of the 1986 Act deals with the fear or provocation of violence and states that someone
“is guilty of an offence if he…uses towards another person threatening, abusive or insulting words or behaviour, or…distributes or displays to another person any writing, sign or other visible representation which is threatening, abusive or insulting, with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked.”
Section 4A, which deals with intentional harassment, alarm or distress, states:
“A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he…uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or…displays any writing, sign or other visible representation which is threatening, abusive or insulting, thereby causing that or another person harassment, alarm or distress.”
If my amendments are accepted, the offences would remain completely unchanged, apart from the fact that the word “insulting” would be removed. If those offences are allowed to remain on the statute book unamended there is a serious danger that people who would have been charged under section 5 will simply be charged under section 4 or section 4A, and all the campaigners who have been celebrating the insertion of clause 42 and the removal of “insulting words or behaviour” from section 5 will be disappointed.
A leading campaigner for the removal of the word “insulting” from section 5 is Mr Peter Tatchell. I suspect that I may disagree with him on other issues, but I hope he will not mind my praying in aid of my argument words of his that appeared on The Huffington Post website in January 2012:
“Section 4A of the Public Order Act is sufficient to cover any exceptional circumstances requiring prosecution, although its criminalisation of mere insults should also be repealed”.
It is obvious that Mr Tatchell has looked at this whole field and recognised that there is a need wider than just amending section 5—that it is necessary to amend other provisions in the Public Order Act.
Our country rightly values and defends the right of individuals to freedom of speech and freedom of expression. It is wholly wrong to retain any reference to the term “insulting” in any criminal offences on our statute book. The people of this country are fed up with political correctness. If the House supports these minor amendments, it would be one small step towards restoring the public’s faith in this House and in our country as a place where the freedom of speech and the freedom of expression are cherished.
Stella Creasy (Walthamstow) (Lab/Co-op)
I speak on behalf of the Opposition on this collection of amendments. The Bill has been called a Christmas tree because of the number of different issues that have been tacked on to it. This selection of amendments feels a little like a series of tinsels and baubles and some fairy lights, but when those are all put together, they create the Crime and Courts Bill.
Before turning to our amendment 2, I shall make a few brief comments on new clause 18 and amendment 120 tabled by the hon. Member for Enfield, Southgate (Mr Burrowes). All of us have sympathy for the concerns that he raises, and we will have seen cases in our own constituencies where people’s lives and families have been devastated by drink-driving. It is disappointing that these amendments were not tabled in Committee. The hon. Gentleman and I spoke at length about various issues, and it would have been good to get some guidance from the Government about the implications of the discussion that he had with them. There are issues that merit further examination, but I am not sure whether Report stage is the right time for that. No doubt we will hear from the Minister about the implications of implementation.
Some issues will need to be taken into account in respect of the powers of magistrates. We all understand and have sympathy with the idea of flexibility in sentencing, but there may be concerns about what that might mean for the sentences handed out. I am not clear what the hon. Member for Enfield, Southgate seeks to achieve with amendment 120. He might inadvertently remove the offence of careless driving and I am sure he would not wish to do that. Somebody who gets behind the wheel and is already over the limit through medication would drive carelessly in any case—
Mr Burrowes
The prosecution may want to push forward a prosecution for careless driving with limited independent evidence of standard driving, but the CPS guidance is clear that being over the limit does not in itself amount to carelessness. Relying on that to prosecute for carelessness is not good enough. That is the reason for my amendment, which expresses a concern that the Government need to hear.
Stella Creasy
I understand the point that the hon. Gentleman makes. That is exactly why we needed to test in Committee the consequences of the changes that his amendment would make. That would have allowed us to hear a fuller explanation from the Government of the consequences. I hope I am proved wrong by the Minister and that he will give us an extensive explanation of the potential impact of the amendments. I would want clarification of the consequences where an individual involved in an accident might be over the limit through medication but would not be at fault for the accident itself. I welcome rather belatedly the bauble that the hon. Gentleman wishes to add to the Bill and I look forward to the Minister’s response to it.
Amendment 2 reflects the Opposition’s concerns about the implications of the Bill for the laws on drug-driving. We welcome the proposals to make driving while under the influence of illegal drugs against the law. I am disappointed not to see in the Chamber the hon. Member for Croydon Central (Gavin Barwell), given the work that he has done on the issue on behalf of his constituent, Lillian Groves. We know that drug-driving will be a substantial offence. We know from the Government’s impact assessment that more than 2,000 people will be affected by the new provision.
As the Minister told the Committee, although it may not be on a scale comparable to drink-driving, it is important that we close the gap that drug-driving has created. However, there is no point in having a power if one cannot put it into practice. Amendment 2 requires the Government to ensure, through an impact assessment, that the clause can be enacted across the country. That will entail looking at the equipment, training and resources that the Home Office, the Department for Transport, the Ministry of Justice and the Crown Prosecution Service have to enable them to implement the law.
Those concerns reflect the debates we had in Committee, when the Government were simply unable to explain what work they had done to ensure that the potential new offence could in fact be prosecuted. We had a number of questions about the logistics of rolling out this policy across the country. With that in mind, I want to ask the Minister a series of questions, which I hope he will answer when he responds.
Mr Jeremy Browne
I will talk mainly about drug-driving because that has been the largest part of our debate, but I will pick up on the points that have been made in relation to other amendments.
On drug-driving, it is important that we consider carefully any extra burdens that we place on the police, the Crown prosecutors and the Courts Service when introducing a new offence. The Government published an impact assessment in May last year that considered those issues. It shows that removing the requirement to prove that a driver is impaired will make it easier to enforce the law against drug-drivers.
In 2010, about 40% of the proceedings in magistrates courts for driving while impaired through drugs were withdrawn or dismissed. The comparable figure for exceeding the drink-drive limit is just 3%. In addition, research for Sir Peter North’s review of drink and drug-driving law found that in one police force, only 35% of positive preliminary impairment tests led to findings of guilt at court in 2008 and 2009. It is clear, therefore, that the existing law on drug-driving is unsatisfactory, resulting in costs being incurred unnecessarily by the police, the CPS and the courts.
The new offence will reduce the wasted time, expense and effort involved when prosecutions under the existing impairment offence fail. It is not surprising, therefore, that the new offence is supported by the Association of Chief Police Officers. ACPO has been fully involved in the development of the proposal and is fully aware of the resource implications for the police.
Depending on the level at which specified limits are set and on the drugs specified for the offence, it is possible that introducing the new offence, which does not require proof of impairment, will increase the number of proceedings against drug-drivers. However, based on the Government’s estimates, those costs will be more than offset by savings from fewer road deaths and serious injuries. Indeed, the impact assessment published in May 2012 records an overall net saving of some £86 million over a 10-year period.
I acknowledge that, as the hon. Member for Walthamstow (Stella Creasy) said, there is still work to be done and that getting the technical details right is difficult and important. Although she said that this work is being done at the last moment, we do not envisage the offence coming into effect until the later part of next year, so there is time to get the details right. The Department for Transport and, where relevant, the Home Office will be concerned to ensure that the details are in place.
The hon. Lady asked about police equipment and training to support the enforcement of the new offence. Equipment was also mentioned by the hon. Member for Clwyd South (Susan Elan Jones). We have already granted type approval for the first station-based drug screening device for use in enforcing the existing impairment offence. We are also committed to type approving roadside devices for use in enforcing the new offence. Work on that will be taken forward once we have determined the drugs to be covered by the new offence and the specified limit for each drug. Our aim is to have approved roadside devices available as soon as practicable after the commencement of the new offence. As hon. Members will know, training on the use of new equipment is an operational matter for chief officers in consultation with roadside drug-testing device manufacturers. I acknowledge the validity of the observation made by the hon. Member for Walthamstow that the Government do not have the answers to every question, but I hope that I can reassure the House that the work is ongoing.
Stella Creasy
Will the Minister respond to the question that I asked him about the expert panel, which has set out a series of substances that should be tested for? Will the Government accept its recommendations in full and ensure that every police force can test for all the substances that it has outlined?
Mr Browne
No final decision has been made on the precise list of what will be tested for. We are grateful for the contributions and representations that have been made, and when we are in a position to provide the details we will do so. We obviously want to ensure that a wide range of drugs whose consumption could lead to increased risk on our roads are covered, but the line will need to be drawn somewhere and there will be practical considerations to take into account. We will obviously want to ensure that we inform everybody once the deliberations have run their course.
On new clause 18 and amendment 120, my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) has explained that he is concerned about the penalty regimes for drink and drug-driving. That is the issue that has exercised people the most, so I think it will be helpful if I dwell on it for a while. The new drug-driving offence created in clause 41 will be subject to the same penalty regime as the existing drink-driving offence of driving or being in charge of a motor vehicle with an alcohol concentration above the prescribed limit. The penalties available are mandatory disqualification from driving for at least a year, and a fine of up to £5,000, and/or imprisonment for up to six months. In addition, there is the offence in section 3A of the Road Traffic Act 1988 of causing death by careless driving while under the influence of drink or drugs, which carries a penalty of up to 14 years’ imprisonment. It is necessary for the prosecution to show that a person’s driving was careless to secure a conviction for that offence.
Section 3ZB of the 1988 Act makes it a criminal offence to cause death by driving while unlicensed, disqualified or uninsured. The maximum penalty is two years’ imprisonment, or a fine, or both. Amendment 120 would amend that section to include people who were driving with a specified controlled drug in their body in excess of a specified limit. Importantly for my hon. Friend, carelessness does not have to be proved to secure a conviction under that section. I know that he is concerned that requiring the prosecution to prove carelessness puts too great a burden on it, but the Government are not aware of any recent cases in which that has proved problematic. The hon. Member for Walthamstow made that point.
The test for carelessness is broad, and CPS guidance suggests that a wide variety of circumstances should be considered as carelessness. Indeed, in the case of Lillian Groves, which has been raised by the hon. Member for Croydon Central (Gavin Barwell)—although he is in another debate now, he has been extremely vigilant in pursuing the case on behalf of his constituents—the driver was convicted of causing death by careless driving. It therefore seems likely that if the new offence had been in force when the tragedy took place, the defendant would have been tried under the section 3A offence, provided that the prosecution could also show that he had a specified controlled drug in his body in excess of the specified limit.
However, if my hon. Friend the Member for Enfield, Southgate or interested groups can provide evidence that prosecutors are failing to prosecute drivers for the section 3A offence because they cannot show that the driver was careless, the Department for Transport has undertaken to review the case for amending legislation. The changes in the Bill will make a difference, but the carelessness provision already stands and we have no reason to believe that it will prevent prosecutions, as the hon. Member for Walthamstow suggested. However, if evidence of that is brought to our attention we will of course consider it properly.
My hon. Friend the Member for Enfield, Southgate also proposed new clause 18 that would increase the maximum sentence for the prescribed limit drink-driving offence to two years’ imprisonment. The United Kingdom already has the toughest drink-driving penalties in Europe. Sir Peter North’s 2010 review of drink and drug-driving law examined the penalty regime and did not identify any evidence that would support that increase in the maximum sentence. The Government are not aware of any new evidence that has come to light since the North report was published.
The Government consider that the existing offence framework is sufficient and appropriate, and ensures that those who ought not to be on the roads are removed from them. Where more serious offences are committed—such as where others are hurt or killed—other relevant offences could be pursued. I do not want to suggest in any way that the Government are complacent about or insufficiently vigilant in the face of such matters. We want to make our roads as safe as possible, but it is worth noting that Britain has some of the safest roads anywhere in Europe and the western world. That is due to responsible social attitudes but also the fact that the legal framework in place has been shown to be effective. I understand, however, why people involved in each individual case and each individual tragedy would feel strongly about these matters.
Amendments 89 and 90 in the name of my hon. Friend the Member for Bury North (Mr Nuttall) bring me to the subject of public order offences. I suggest that the amendments would limit the police’s ability to deal with those who can be shown to be intentionally provoking violence, causing others to fear violence, or causing harassment, alarm or distress to others. They would do that by removing the word “insulting” from the offences under sections 4 and 4A of the Public Order Act 1986.
My hon. Friend may see the amendments as a helpful intervention to bring those sections of the 1986 Act into line with the amendment to section 5 of that Act set out in clause 42, but that would be a mistake as it would ignore the thorough consideration, consultation and debate undertaken by the Government, both here and in the other place, before agreeing to reform section 5. It would also ignore the significant differences between the section 5 offence and the more serious offences described in sections 4 and 4A. This is not just a tidying-up exercise; sections 4 and 4A are materially different from section 5. Offences under sections 4 and 4A require proof of intent to cause harm to another person, and proof that harassment, alarm or distress was both intended and actually caused to another person. The intent and harm caused are the differentiating features of those offences, rather than the likely effect of the words used or behaviour involved.
Using insulting words that cause someone to fear violence against them, or that have the deliberate intention of causing harassment, alarm or distress, is a far more serious matter than the section 5 offence in which the perpetrator might not intend to cause harassment, alarm or distress, and indeed none might have been caused. In the Government’s view, using insulting words or behaviour in the context of sections 4 or 4A oversteps the line between freedom of speech and the freedom of someone to live in peace and safety. The line must be drawn somewhere, and the Government believe it right to draw it between sections 4A and 5.
Furthermore, during the long-running campaign that culminated in clause 42, one key argument put forward by those seeking to remove “insulting” from section 5 of the 1986 Act was that removal would not have a negative impact on minority groups. The reasoning behind that was that the police have more appropriate powers available to deal with such unacceptable behaviour under sections 4 and 4A of the 1986 Act. Having accepted that argument as part of the reasoning behind the removal of “insulting” from section 5, it seems perverse to remove the protections for minorities provided by the “insulting” limb in sections 4 and 4A.
In summary, for reasons that I hope I have explained to the satisfaction of the House, the Government are not persuaded of the case for making the same change to section 4 and 4A offences that clause 42 makes to the section 5 offence.
Finally, I ought to speak briefly to the single Government amendment in this group, amendment 84, which provides for the enhanced householder defence provisions in clause 30 to come into force on Royal Assent. Clause 30 is designed to give householders greater latitude to protect themselves in those terrifying circumstances when they are confronted by intruders in their homes. We recognise that it is unusual, although not unprecedented, to commence provisions of this nature on Royal Assent. We would usually allow a gap of at least two months between Royal Assent and commencement, to allow the enforcement agencies time to prepare. However, in this case we are anxious to avoid any unnecessary delay in delivering a coalition commitment and, more important, a tangible enhancement of the protection that householders have to defend themselves. The Government have discussed the amendment with the police and the Crown Prosecution Service, which are content with clause 30 being commenced on Royal Assent. We think the public would find it difficult to understand why commencement had been delayed beyond Royal Assent, particularly if a householder was attacked by an intruder in the intervening period while acting to protect themselves or family members, but could not rely on the heightened householder defence.
For all the reasons I have set out, I would invite Opposition Members and my hon. Friends the Members for Enfield, Southgate and for Bury North not to press their amendments. I recognise that I cannot provide the House with all the practical details of the methods that police forces will use to test for drug-driving, but we are at the broad legislative phase, not the practical implementation phase. I can assure the House that we will no doubt discuss such practical considerations in due course, but they are not necessary to approve the proposed legislation before us.
Stella Creasy
Given the Minister’s open, earnest and welcome admission that he cannot answer the questions raised today and that the spirit of our amendment 2 is precisely to get at that information, will he tell the House when we will have that information about the implementation of the offence and the ability of our police forces and courts to deal with it? After all, our amendment calls for information one year after the introduction of the offence, which seems a reasonable amount of time to expect police forces to deal with it, so can he explicitly set out for the House when he expects to report back on these issues?
Mr Browne
The Government will publish a revised impact assessment alongside our consultation on the drugs to be covered by the new offence and the limit for each, and we will revise it again, if required, before the draft regulations are laid before Parliament. As the regulations are subject to the affirmative procedure, they will need to be debated and approved by each House before they can be made and come into force. Given the requirement to consult on the draft regulations and then to have them approved, we are working on the basis that the new offence will come into force in the latter half of 2014, as I said a few moments ago.
On that basis, I would suggest that requiring a full evaluation of the impact of the new offence just 12 months after Royal Assent would be premature. However, I can assure the House that the Government will commission research to evaluate the effectiveness of the new offence once it is in operation. The research will take account of the impact of the new offence on the police, prosecutors and the courts. The results of such research will be published on the Department for Transport’s website. A lot of the responsibility sits with the Department for Transport rather than the Home Office, but I am not in a position to give the hon. Lady a definitive date when these matters can be considered in detail. All I can give is an assurance that this work is being undertaken and that opportunities will exist to consider such matters. I say this entirely in a spirit of openness, but I see no reason why we would not wish to give Members in all parts of the House an opportunity to consider the progress the Government have made when we are in a position to bring forward proposals that will stimulate a debate and consideration of that type.
With that, I hope that Members will see fit not to press their amendments, and I commend Government amendment 84 to the House.
Mr Burrowes
I welcome the debate on new clause 18. The hon. Member for Walthamstow (Stella Creasy) referred to the proposals as a “bauble”, but this is a serious matter and I am not sure that the victims, the police and the road safety charities behind the new clause would appreciate it being referred to as a bauble. However, I appreciate that her comments were being made in the general context of the Bill.
The Solicitor-General (Oliver Heald)
I beg to move amendment 22, page 17, line 21, at end insert—
‘Part 4A amends the selection procedure for certain senior judicial appointments until Part 4 of the Schedule is in force,’.
Mr Deputy Speaker (Mr Nigel Evans)
With this it will be convenient to discuss the following:
Government amendments 10 to 21.
Amendment 100, page 224, line 42, schedule 13, at end insert—
‘Each of the Lord Chancellor and the Lord Chief Justice must at all times engage in a programme of action which is designed—
(a) to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in England and Wales;
(b) to require the Lord Chancellor and the Lord Chief Justice of England and Wales, so far as it is reasonably practicable to do so, to secure that a range of persons reflective of the community in England and Wales is available for consideration by the Judicial Appointments Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office.’.
Government amendments 23 to 59.
New clause 7—Enforcement services
‘(1) The Legal Services Act 2007 is amended as follows.
(2) After section 125 insert—
125A (1) For the purposes of this Part (and sections 1, 21 and 27 as they apply in relation to this Part)—
(a) the Bailiffs and Enforcement Agents Council is to be treated as an approved regulator;
(b) enforcement services are to be treated as a reserved legal activity;
(c) a person authorised under sections 63 and 64 of the Tribunals Courts and Enforcement Act services is to be treated as an authorised person in relation to that activity;
(d) the Bailiffs and Enforcement Agents Council is to be treated as a relevant authorising body in relation to such a person, and
(e) regulations under the Tribunals Courts and Enforcement Act 2007 and the National Standards for Enforcement Agents are to be treated as regulatory arrangements of the Bailiffs and Enforcement Agents Council as an approved regulator.
(2) For the purposes of sections 112 and 145 (as extended by this section), a person authorised under sections 63 and 64 of the Tribunals Courts and Enforcement Act, is to be treated as a “relevant authorised person” in relation to the Regulator.”.’.
New clause 17—Protection of vulnerable debtors
‘(1) At any time after a notice required under paragraph 7, Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 is served on a debtor, the debtor may apply to the court to stay or suspend the notice on terms on either of the following grounds—
(a) the enforcement action being taken is disproportionate to the debt and circumstances involved; and
(b) the debtor’s goods may be insufficient in value to satisfy the debt involved.
(2) The court may, in its discretion and if satisfied with the above grounds, suspend or stay any judgment or order given or made in prior proceedings for such time and on such terms as the court thinks fit.
(3) Enforcement proceedings under Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 are proceedings for the purposes of section 71(2) and section 88 of the County Court Act 1984.
(4) Subject to the regulations under section 64 of the Tribunals, Courts and Enforcement Act 2007 complaints against holders of certificates shall be considered by a designated judge and may include both complaints regarding compliance with the terms of certification as well as the exercise of legal powers under the Tribunals, Courts and Enforcement Act 2007. Further to which—
(a) the designated judge may, on consideration of a complaint, exercise powers under section 64 to suspend or cancel a holder’s certificate; and
(b) the designated judge shall publish an annual report.
(5) The Lord Chancellor shall periodically review data concerning complaints against holders of certificates, update guidance where evidence of bad practice arises and respond to any recommendations set out in a report under subsection 2 within six months.’.
Government new clause 5—Supreme Court chief executive, officers and staff.
Government new clause 6—Making and use of recordings of Supreme Court proceedings.
Government amendments 60, 77 to 80, 82 and 83.
The Solicitor-General
I shall start by speaking to the Government amendments, but I should also like to hear the comments of the right hon. Member for Blackburn (Mr Straw), the hon. Member for Darlington (Jenny Chapman) and my hon. Friend the Member for South Swindon (Mr Buckland), if he arrives. I shall start with amendments 22, 57 and 58.
As hon. Members will be aware, the Government are making a number of changes to the judicial appointments process, including to the selection process for the Lord Chief Justice and the heads of division. As part of the changes, the details of the selection process that are currently in the Constitutional Reform Act 2005 will move into secondary legislation. There are many reasons for doing that, and many improvements are being made. There is an urgency to this, however, because the Lord Chief Justice is about to retire and we hope that it will be possible to deal with the new appointment and any consequential appointment of a head of division under the new system rather than the old. The amendments aim to achieve that by briefly inserting the new selection process into the 2005 Act, so that it applies to the appointment of Lord Judge’s successor. I must stress that it will be a transitory measure and will cease to have effect after the appointment of the next Lord Chief Justice and any consequent head of division. It is then intended that the secondary legislation will follow.
Amendments 25 to 55 deal with the technical aspects of the change to the Lord Chancellor’s role in the judicial appointments process, including the transfer to the Lord Chief Justice or the Senior President of Tribunals, as appropriate, of the power to decide upon selections made by the Judicial Appointments Commission for certain judicial offices below the High Court. The Government intend to retain the Lord Chancellor’s role in all other aspects of these appointments, particularly terms and conditions for fixed-term judicial appointments where a fee is paid. However, the Bill currently transfers the power to renew, or to refuse to renew, fixed-term judicial appointments to the Lord Chief Justice and Senior President of Tribunals. Amendments 25 to 55 therefore amend schedule 13 so that that power is retained with the Lord Chancellor. They ensure that, in exercising that role, the Lord Chancellor must, as now, if deciding not to renew a fixed-term appointment, comply with any requirement to secure the consent of the Lord Chief Justice or Senior President of Tribunals.
Amendments 23 and 24 also deal with the selection process for judicial appointments and the move from primary to secondary legislation. As part of these changes, the original idea was to move the requirement for there to be on the commission a commissioner with special knowledge of Wales into secondary legislation, but on further consideration, the Government decided that it was important to retain an appropriate level of input by a lay member of the commission with a special knowledge of Wales and that that requirement should remain in primary legislation. The amendments therefore reinstate the requirement in the 2005 Act that those selecting persons for appointment as commissioners should ensure, as far as practicable, that there is at least one lay commissioner with special knowledge of Wales.
Amendment 59 relates to the judicial deployment provisions in schedule 14. The objective is to give the Lord Chief Justice more flexibility in deploying judges to different courts and tribunals. That supports an important objective for the Government because it means that judges can be used efficiently. Individual judges will also benefit, if they have a wider breadth of experience and can develop their judicial careers as a result. The policy was brought forward in partnership with the judiciary and the aim has always been to move forward collectively in the delivery of our shared aims and objectives. After further consultation with the judiciary and further thought, it has been decided that the particular skills and experience needed in the Crown court mean that it should be removed from the flexible deployment provisions. Those matters should be dealt with by Crown court judges, as happens now.
Amendments 10 to 21 are technical and minor amendments dealing with the single family court provisions. I can be brief, because there is only one point of substance. At the moment, magistrates courts can vary maintenance orders registered with them, but because in future the family courts will be able to issue those orders, it is necessary to provide that magistrates will no longer have that variation power, which will lie with the family courts—a victory for the Committee, the other place and, of course, the Government.
New clause 5 relates to the appointment of the chief executive of the UK Supreme Court. I am confident it will be welcomed. A new clause along similar lines was tabled in the other place and again here in Committee. The Minister for Policing and Criminal Justice said at the time that we were going to discuss the matter with the powers that be. The appointments process for the chief executive of the UK Supreme Court has been discussed with the president of the Court, and I am pleased to report that those discussions have been successfully concluded, and the Government have therefore tabled the new clause with the Court’s agreement. Thus the president of the UK Supreme Court, not the Lord Chancellor, is responsible for the appointment of the chief executive. It is no longer necessary for the chief executive to agree the staffing structure with the Lord Chancellor, and the provision also clarifies that the Court’s officers and staff will be civil servants—something that needed to be done.
New clause 6 deals with broadcasting in the Supreme Court. To clarify matters, clause 28 expressly disapplies section 9 of the Contempt of Court Act 1981, which prohibits sound recordings in court, to facilitate court broadcasting below the UK Supreme Court. It looks odd not to confirm at the same time that the Supreme Court is able to be exempt, so new clause 6 achieves that. Let me be clear that this is about clarifying the matter; there is no question that this has caused any problem in the past.
Amendments 60, 77, 78 and 82 make consequential amendments. I now reach the point where I can say that I am looking forward to hearing the right hon. Member for Blackburn and other colleagues presenting their new clauses and amendments.
Jenny Chapman (Darlington) (Lab)
I shall address my remarks to the Government amendments, but also to new clause 7, which deals with bailiffs, and amendment 100 on judicial diversity.
Let me start with a positive. We are pleased that the Government have seen fit to include new clause 5. These provisions were debated favourably in the other place and were introduced by the Opposition in Committee. The creation of the Supreme Court was, I think, an excellent achievement of the previous Government and it is right that Ministers have accepted the argument put to them by the Opposition and many in the profession for a further transfer of powers to strengthen the Court’s independence. We welcome the Government’s agreement with the recommendations and their decision to include in the Bill these important changes.
Continuing on a positive note, we completely accept the other Government new clauses and I am sure that you, Mr Deputy Speaker, will be pleased that a member of the Judicial Appointments Commission will have special knowledge of Wales in the future.
Amendment 100 was tabled by my right hon. Friend the Member for Blackburn (Mr Straw). I have not heard what he is about to say, but I feel confident that I should agree with it. The Opposition are strongly in favour of that amendment. My noble Friend Baroness Hale gave a lecture a few weeks ago, in which she stated she was going to
“start by taking it for granted that judicial diversity is a good thing.”
For the purposes of this debate, I shall use a few more words to echo the arguments that will be put by my right hon. Friend the Member for Blackburn, but I think the House will agree that my noble Friend also speaks with considerable expertise on this issue.
The Government have recognised in the Bill that diversity in our judiciary is desirable, and unless we hold with the idea that talent is innately concentrated in one social group, we must acknowledge that for every exceptional judge we have, we are losing out on able candidates because we do not do enough to find them. Measures to support diversity seek not to give credit where it is not due, but to encourage ability wherever it may be found. We have seen many instances where it has been argued that merit and diversity are mutually exclusive, but we have argued that a diverse judiciary is not artificial or missing out on talent—it is quite the other way round. Diversity matters in both principle and practice. A judiciary that incorporates a range of voices, backgrounds and experiences brings more to the table. The differences, as Baroness Hale put it,
“add variety and depth to all decision-making.”
The Solicitor-General
Under the Legal Services Act 2007, the legal ombudsman only investigates cases about the service provided to the customer; it deals only with legal services that have been badly provided. If we were to say, “Oh well, let’s include bailiff services”, that would be very nice for the creditor, who would be able to report to the legal services ombudsman, but it would not help the debtors. They are the people for whom the hon. Lady is speaking, but they would not be able to complain to the legal services ombudsman because a service is not being provided to them.
Jenny Chapman
It was not me who made that suggestion; it came from the legal services ombudsman. So clearly there is a way around this matter and the Minister may wish to explore that a bit further. His intervention shows that the Government are not going to do this, but we would like them to commit to a robust complaints procedure to sort out the problems that our constituents face. They deserve access to a robust complaints procedure when things go wrong, as they too often do, so we hope that hon. Members on both sides of the House will support our proposal.
Mr Robert Buckland (South Swindon) (Con)
I shall speak briefly in support of a probing proposal, my new clause 17. I listened carefully to the speech made by the hon. Member for Darlington (Jenny Chapman), and I entirely share and sympathise with the thrust of her argument: we do need to make sure that the regulation of the behaviour of bailiffs is not just about certification; and the continuing behaviour of individual bailiffs does need to be monitored, tracked and adequately assessed, so that regulations are adjusted to keep pace with changing practices in debt collection.
We all know that debt collection is a sad fact of life that affects a large number of our constituents. We have all, in our case loads, doubtless come across worrying stories about abuses of power. It is right to acknowledge that the Government are moving, with their transformative agenda, to address large parts of the concerns that Members rightly have. Using the existing legislation to create new regulations is a good step forward. Importantly, the strengthening of the certification process, in the form of training and the like, is a valuable way forward, as is the creation of the new fixed-fee system. As I have already said, that deals only with the point of certification and not with practice. We must be realistic and we must acknowledge that taking a snapshot of the behaviour of individual bailiffs will not deal with many of the problems that beset people who are in debt but still deserve to be treated with respect.
Mr Jack Straw (Blackburn) (Lab)
I am grateful to my hon. Friend the Member for Darlington (Jenny Chapman) for her remarks in support of amendment 100, which we have tabled along with other hon. Friends, and to the Solicitor-General for what he had to say in anticipation of my remarks. I look forward to his acceptance of my amendment and to the other changes, which I broadly endorse, to the 2005 arrangements for judicial appointments.
The Supreme Court of the United Kingdom has 12 justices. Just one has been a woman—Baroness Hale. Towards the end of last year, three vacancies on the Supreme Court bench arose. A special panel, as provided by the Constitutional Reform Act 2005, was established to fill those vacancies. I am quite sure that the panel applied itself to the highest standards for the selection process. The candidates who were successful are all jurists of the highest quality. Their names were announced last month. All three are men. So this country’s highest court will, for the foreseeable future, continue to be composed of 11 men and one woman. Therein lies the problem.
As the President of the Supreme Court, Lord Neuberger, said last year in evidence to the House of Lords Constitution Committee,
“if…women are not less good judges than men, why are 80% or 90% of judges male? It suggests, purely on a statistical basis, that we do not have the best people because there must be some women out there who are better than the less good men who are judges.”
The figures are stark: the further up the judicial ladder you go, the fewer and fewer women there are to be found.
My hon. Friend the Member for Darlington referred to the important lecture that Baroness Hale gave recently. Baroness Hale set out the figures:
“22.5% of the judges in the ordinary courts…are women and 4.2% are British minority ethnic…Only 26.6% of the upper tribunal judiciary are women, though 11% are BME.”
When we get to the High Court, just 15% are women and 4.5% BME; 10% of Court of Appeal judges are women; none is black or Asian. She said that
“none of the five heads of division is a woman or BME; and in the Supreme Court there is still only me and the only ethnic minorities we have are the Scots and the Irish…The average”—
for judiciaries—
“across the countries in the Council of Europe is 52% men and 48% women. At 23% England and Wales is fourth from the bottom, followed only by Azerbaijan, Scotland and Armenia.”
These days everyone—more or less—agrees with Lord Neuberger’s sentiment that women are just as qualified to do any job, including the top jobs, as are men. The problem is that, for the judiciary, the system is simply not delivering the equality of outcome that we all seek. It was supposed to do so. When the current statutory system of judicial appointments was established in 2005, one of the arguments advanced for the new, independent Judicial Appointments Commission was that it would be able to advance the diversity of the judiciary in terms both of gender and of ethnicity.
Initially, progress with that commission was frustratingly slow, as both I, as Lord Chancellor, and my permanent secretary, Sir Suma Chakrabarti, repeatedly made clear to its then chair. I happily concede that there have been some more recent improvements, and I know of the personal commitment of the new chair, Chris Stephens, to see the commission do better, and of the steps he is taking. Those steps are necessary but, with respect to Mr Stephens, they are not in my view sufficient.
Part of the problem has been the wording of the 2005 Act, which requires the Judicial Appointments Commission to select solely “on merit”. I will come back to that loaded concept in a moment. The Bill seeks to qualify “on merit” by a provision in part 2 of schedule 13 which essentially allows the commission, where it judges that there are
“two persons of equal merit”,
to choose the woman, or the black or Asian candidate.
I am not cavilling, and that provision may help a little, but some of this country’s much better legal brains than me tell me that it can only help a little, since “merit” is likely to be narrowly defined for these purposes. Indeed, one of Lady Hale’s colleagues on the Supreme Court, Lord Sumption, has challenged the whole idea of equal merit. He was formerly a member of the Judicial Appointments Commission, and he said that at the
“upper end of the ability range there is usually clear water between every candidate once one looks at them in detail.”
He went on:
“If you dilute the principle of selecting only the most talented candidates by introducing criteria other than individual merit, you will by definition end up with a bench on which there are fewer outstanding people. But there is a more serious problem even than that. It is the impact that the change would have on applications.”
Happily, Lord Sumption’s view is not shared by Lady Hale, as her recent lecture made clear, nor, it would seem, by the president of the Supreme Court, Lord Neuberger, who, I believe, is on the side of light and whose frustration with the present outcomes shone through in a recent interview he gave to The Guardian in which he dissected the concept of merit—that is my gloss, not his words—and discussed how loaded it could be in practice. He said of the appointment process:
“I’m not saying there is a subconscious bias…what worries me is that we may all be suffering from a subconscious bias which by definition may be difficult to show or to prove.”
It might, he suggested, be a subconscious expectation of
“having an image of a judge with…male-type qualities and a male appearance. I’m not saying we do have that but there’s a risk that we do and it’s difficult to know how to cater for it.”
I agree entirely.
When I joined the House 34 years ago, just 19 Members—less than 3%—were women. Today, there are 143 women MPs, or 22% of the 650—seven times the proportion when I became an MP. The Labour party has managed to increase its proportion of women MPs to over a third; the Conservatives are now up to 15%. The proportion of black and Asian MPs is now up to 4.2%. For the first time in my parliamentary career, the House of Commons is beginning to look more like the society it represents, but the numbers are still not good enough.
We know two things. First, progress could not have been achieved without the special measures for women’s selection pioneered by my party, and commendably adopted in modified form by the Conservative party. Secondly, there is absolutely no evidence that the quality of women MPs, or of black and Asian MPs, is any less than that of white men. I do not at this stage suggest that we adopt similar measures of explicit positive discrimination for the judiciary, although it may come to that if we continue to trail badly in the league tables. Canada adopted positive discrimination measures, which made a big difference to representation on the bench, and it has certainly not affected the quality of the Canadian judiciary.
Instead, the amendments that I have tabled with my hon. Friends would put on the statute book provisions that have been law in part of the United Kingdom for nine years, and which are plainly working, as my hon. Friend the Member for Darlington set out. Amendment 100 is a direct lift from provisions of the Justice (Northern Ireland) Act 2004. The Minister may say in his reply that the Government are doing quite a lot, and urge us to look, for example, at paragraph 11 of schedule 13 on page 224 of the Bill. The problem—although that measure is better than other provisions—is that it requires the Lord Chancellor and the Lord Chief Justice to
“take such steps as that office-holder considers appropriate for the purpose of encouraging judicial diversity.”
In other words, the test is entirely subjective, whereas as my hon. Friend said, our proposed provisions, which are already law, have been operated successfully by successive Governments, both Conservative and Labour, in Northern Ireland. As Lord Chancellor for Northern Ireland until the transfer of judicial functions in 2009, I operated those provisions, and they caused no difficulty at all. Instead of a subjective test, under the amendment the duties on the Lord Chancellor and the Lord Chief Justice
“would secure, so far as it is reasonably practicable…that appointments to listed judicial offices are…reflective of the community in England and Wales”.
They would also ensure that a range of persons who are reflective of that community can come forward for those positions.
Kate Hoey (Vauxhall) (Lab)
On a point of order, Mr Speaker. Have you had any message from the Minister for Europe that he would like to come along and make a statement to Parliament on the decision of the European Parliament today not to support the budget—to throw out the budget that we in this Parliament asked to be cut?
Mr Speaker
I have received no such indication from a Minister. The hon. Member for Vauxhall (Kate Hoey) is a ready source of information. She has now enlightened the House. I had not heard that news, but I imagine that it will now be well known to the Treasury Bench and her remarks will very soon find their way to Ministers, so my advice to her is that she should remain alert for any developments that might arise. I thank her for what she said.
The Solicitor-General
May I start where the right hon. Member for Blackburn (Mr Straw) left off? I entirely accept that what has happened since 2005 has been very disappointing indeed. We had high hopes. I was involved in the debates at that time and we expected that we would see far more women at the very top of the judiciary than we have done. He mentioned one out of 12 in the Supreme Court. I believe it is four out of 38 in the Court of Appeal. It is not acceptable and there is no question but that more needs to be done.
As the right hon. Gentleman conceded to some extent, we have done much in the Bill to try to achieve that, starting with flexible working, which could make a difference, and the tipping-point provisions where two people are of an equal standard. There has been a long debate in the legal profession and among judges about exactly what merit means in this context. Lord Bingham and Lord Phillips previously said that it was the judicial qualities, plus what the needs of the Court were, which had to be put together to establish what the commission should be looking for. One of the needs of the Court is to have the wisdom of highly intelligent women who have sat as judges for many years and who come to the role with the experience of women, which is, admittedly, different in all parts of the House. We are very keen to see the position improved.
There are one or two encouraging signs. For example, those entering the legal profession are now balanced and there is some progress, as the right hon. Gentleman said, at the lower levels. There is no question but that more needs to be done. The Bill makes a start with the flexible working and the tipping point. There was a great deal of discussion in the other place about how to try to make matters go forward faster, and it was accepted there that one way would be a statutory duty underpinning the leadership role of the Lord Chancellor and the Lord Chief Justice. That is why, as the right hon. Gentleman said, paragraph 11 of schedule 13 provides that both office holders must take such steps as they consider appropriate for the purposes of encouraging diversity.
Of course, the right hon. Gentleman is correct that that is not the application of an objective standard. We are putting trust in the Lord Chief Justice and the Lord Chancellor to take this matter seriously and come up with a plan for the steps they consider appropriate for the purposes of encouraging diversity. For my part, given that we have not done that previously, and given that I trust those office holders to take it seriously and pursue it vigorously, I am prepared to give them the chance without making it an objective standard. We are putting trust in them, under paragraph 11 of schedule 13, to do the job. I believe that the current Lord Chief Justice takes that very seriously—I have discussed it with him and he certainly gives that impression—as does the Lord Chancellor.
Mr Straw
I have the highest regard for the Lord Chief Justice and, as it happens, for the Lord Chancellor, so that is not the issue. Will the hon. Gentleman explain something for me? Exactly the same arguments could have been used with regard to the Northern Ireland judiciary, because we were trusting the same Lord Chancellor—the same person—until 2009, and the Lord Chief Justice of Northern Ireland is a man of the highest quality. Therefore, if these measures have not only been needed in Northern Ireland but have worked, why is the hon. Gentleman moving on to say—I think he is about to do so—that they are not needed in England and Wales?
The Solicitor-General
What I am saying is that the new provision was accepted in the other place, with wide acclaim—the Opposition thought that it was a major move forward—and an agreement about the way forward was established, so it is perhaps wrong for this House simply to say, “Oh well. Let’s nudge it another inch.” If Parliament is prepared to say that there will be a legal duty on those officer holders to take those steps, that seems to me to be a step forward. I do not believe that the right hon. Gentleman, when he was in that great role, would have taken it lightly if Parliament had told him that he must take such steps as he considered appropriate for the purposes of encouraging diversity.
Yasmin Qureshi (Bolton South East) (Lab)
I do not want to sound repetitious, because I know that this point has been made, but why is what is good for Northern Ireland not also good for the United Kingdom?
The Solicitor-General
Of course, there are unique circumstances in Northern Ireland, as we know, and indeed as we have discussed today in other contexts. The point I am making is that an agreement was reached in the other place on the way forward and I think that we should give it a chance. I agree with the right hon. Member for Blackburn that there has been a disappointing performance since 2005, and I am happy to make it clear from the Dispatch Box that I share his concerns about that. We have tried to do a good deal about it in the Bill. The other point I will make—I do not know how far I can take this—is that we are about to see appointments to the Court of Appeal and to very high positions in the judiciary, and there are some very good candidates who are women, but we will have to see what the outcome will be.
Turning to bailiff regulation, new clause 7 echoes an amendment that was agreed in the other place but later removed from the Bill in Committee. New clause 17 proposes a role for the court in relation to every warrant and provides for the judiciary to compile an annual report on bailiff complaints for the Lord Chancellor to consider. My hon. Friend the Member for South Swindon (Mr Buckland) made a compelling argument on the need for a firm response to the misbehaviour of rogue bailiffs and suggested that one way of doing so would be through the court and its procedures. The Government’s approach, which I will come to shortly, is set out in the response to the “Transforming Bailiff Action” consultation, which was published on 25 January. It sets out the reforms that will tackle what we consider to be the root problems of the complaints about bailiffs. It introduces safeguards for debtors and, equally, allows creditors to collect money they are owed, which I think all parties agree is necessary.
It remains our belief that the package of reforms offers the most effective and proportionate response to the problem of aggressive bailiffs and that it will render unnecessary some of the cost and bureaucracy inherent in the proposals of the hon. Member for Darlington (Jenny Chapman) and the Opposition. It will be a new world, if I may put it that way.
The Government’s reforms centre on part 3 of the Tribunals, Courts and Enforcement Act 2007—the background is one of all-party consensus—and they do six things. They remove antiquated, confusing laws and clarify what the powers of bailiffs are, so those powers will be known. Regulations that we will publish this summer and aim to implement in April 2014 will set out what goods can and cannot be seized. There will also be a clear and fair charging regime. It is iniquitous for a bailiff to turn up at a door to collect three debts and then demand three fees when he has made only one visit.
Jenny Chapman
In the interests of moving the debate along, I have made it clear that we do not disagree with the Government on any of those things. Our point relates to when things go wrong. If the Solicitor-General could respond to that, perhaps we could make some progress.
The Solicitor-General
The point is that these things have not been happening, but they will happen under the Government’s reforms. They will change the landscape. That is why the word “transforming” is in the title of the consultation—they will transform things. The enhanced certification and mandatory training will make a difference and we all agree that that is a good thing. The county court certificate to practise, which a judge can withdraw on complaint, and the offence of not having a certificate when attempting enforcement are powerful new remedies that did not exist before.
The hon. Lady mentioned the legal ombudsman. It is difficult to see how the system would work effectively under her proposal. Eighty per cent. of the cases are local council cases, so the local government ombudsman will be available for complaint. That is a remedy, but the hon. Lady is complicating things by suggesting that there should be another remedy on top of it. A certification complaint is one possible route of complaint and strong remedy, as are court procedures, which my hon. Friend the Member for South Swindon has mentioned, and the local government ombudsman. The hon. Lady also mentioned a whole host of internal complaint schemes and she wants to put another scheme on top of them, but her proposal will not work legally. She is trying to patch her proposed scheme on to the Legal Services Act 2007, but the legal ombudsman looks only into complaints about the service provided to the customer, and in these circumstances the customer is the creditor. It would be nice for the creditor to have an avenue of complaint, but that would not help the debtor.
Jenny Chapman
The Solicitor-General will forgive me for saying that he is repeating himself. My point is that we want a simpler ombudsman service, under which there would be one ombudsman for complaints about bailiffs. That would be far simpler and I do not know why the Solicitor-General feels the need to repeat his earlier comments, which have already been dealt with.
The Solicitor-General
The hon. Lady’s case is compelling in the sense that there are a lot of problems with bailiffs and their misbehaviour and that that needs to change. There is cross-party support for six changes that will change the landscape, but she is saying, “Oh, we want one more thing,” but that one more thing happens to be half-baked legally and would not do the job, so I have to make that point. Of course, it is wrong to repeat things over and over again, but I am trying to get the hon. Lady to agree that hers is not a sensible proposal.
The Solicitor-General
I have failed to persuade the hon. Lady, but I will certainly not make a concession. I hope she will forgive me in due course. I am sure she will.
Although we believe that the underlying causes of most, if not all, complaints will be dealt with by our reforms, officials are working with the advice sector to consider once more the types of complaints received. They will work with them to ensure that they are adequately addressed in the regulations, which are due in the summer.
The reforms are a significant step forward and it is worth giving them a chance. I know that the hon. Member for Darlington knows that in her heart of hearts. We are confident that our reforms will have a positive effect on bailiff action. It is time for action and something is now being done. The Bill responds to the concerns that inspired new clause 7. My hon. Friend the Member for South Swindon has pointed to some useful powers that can be held in reserve. It may be that in due course we will have to go that step further in court. We have given a commitment to review the reforms. That will happen one, three and, if necessary, five years after their introduction. We are working with stakeholders to ensure that there is a robust framework.
The Government are being reasonable and pro-active, so I ask the House to support the reforms. I urge the hon. Member for Darlington not to press new clause 7. My hon. Friend the Member for South Swindon said that new clause 17 was a probing amendment so I hope that he will not press it. I say to the right hon. Member for Blackburn that we are disappointed, but we are doing a lot in the Bill. Is it not right to trust the Lord Chancellor and the Lord Chief Justice, when they are given a statutory duty such as the one in the Bill, to come up with a plan that works?
Amendment 22 agreed to.
Schedule 10
The Family Court
Amendments made: 10, page 166, line 12, after ‘court’ insert ‘and to be varied by that court’.
Amendment 11, page 167, line 15, leave out paragraph 8 and insert—
‘8 (1) Section 4 (variation etc of orders registered in a magistrates’ court) is amended as follows.
(2) In subsection (1) (orders in relation to which section 4 applies) for “orders registered in magistrates’ courts” substitute “High Court orders registered in the family court”.
(3) In subsection (2)(a) (court of registration may vary rate of payments specified by order)—
(a) for “court of registration” substitute “family court”, and
(b) for “original court” substitute “High Court”.
(4) In subsection (2)(b) (general rule that variation of rate of payments specified by registered order is to be by court of registration) for the words from “court of registration” to the end substitute “family court.”
(5) Omit subsections (2A) to (2C), (5A), (5B) and (7).
(6) In subsection (4) (power of court of registration to remit application for variation of rate of payments to original court)—
(a) omit “it appears to the court to which”,
(b) after “registered order” insert “and it appears to the family court”,
(c) for “original court”, in both places, substitute “High Court”, and
(d) for “first-mentioned court” substitute “family court”.
(7) In subsection (5) (other circumstances in which original court has jurisdiction to vary rate of payments) for “original court” substitute “High Court”.
(8) In subsection (6A) (with the exception of power to make provision as to means of payment, magistrates’ courts in England and Wales have no power to vary certain orders made by Court of Session or by High Court in Northern Ireland)—
(a) for the words before “variation” substitute “Although such an order as is mentioned in this subsection may be varied under section 1 of the Maintenance Enforcement Act 1991 as applied by section 4A(2) of this Act, no application for any other”,
(b) for “any court” substitute “the family court”,
(c) for “that court” substitute “the family court”, and
(d) for “section 1(2)” substitute “sections 1(2) and 2(6A)”
(9) In subsection (6B) (no application to be made to a magistrates’ court for variation of certain orders) for “any court” substitute “the family court”.’.
Amendment 12, page 167, line 36, leave out ‘or an officer of that court’.
Amendment 13, page 167, line 39, leave out ‘or an officer of that court’.
Amendment 14, page 177, line 37, leave out ‘or an officer of the court’.
Amendment 15, page 177, line 40, leave out ‘, or an officer of the court,’.
Amendment 16, page 181, leave out lines 21 and 22.
Amendment 17, page 181, line 23, leave out ‘paragraphs 3 and’ and insert ‘paragraph’.
Amendment 18, page 182, line 10, leave out ‘paragraphs 4 and 5’ and insert ‘paragraph 4’.
Amendment 19, page 183, line 7, leave out ‘22,’ and insert ‘22(2),’.—(Oliver Heald.)
Schedule 11
Transfer of jurisdiction to family court
Amendments made: 20, page 188, line 14, leave out sub-paragraphs (3) to (7) and insert—
‘( ) For subsections (1A) to (1E) (powers of magistrates’ courts in England and Wales to vary registered orders) substitute—
“(1A) The family court may exercise the same powers in relation to an order registered in the family court under this Part of this Act as are exercisable by the family court under section 1 of the Maintenance Enforcement Act 1991 in relation to a qualifying periodical maintenance order (within the meaning of that section) which has been made by the family court, including the power under subsection (7) of that section to revoke, suspend, revive or vary any means of payment order (within the meaning of that subsection) made by virtue of this subsection.”’.
Amendment 21, page 216, line 37, column2, at end insert—
‘In Schedule 2, paragraph 3(3).’.—(Oliver Heald.)
Schedule 13
Judicial appointments
Amendment proposed: 100, page 224, line 42, at end insert
‘Each of the Lord Chancellor and the Lord Chief Justice must at all times engage in a programme of action which is designed—
(a) to secure, so far as it is reasonably practicable to do so, that appointments to listed judicial offices are such that those holding such offices are reflective of the community in England and Wales;
(b) to require the Lord Chancellor and the Lord Chief Justice of England and Wales, so far as it is reasonably practicable to do so, to secure that a range of persons reflective of the community in England and Wales is available for consideration by the Judicial Appointments Commission whenever it is required to select a person to be appointed, or recommended for appointment, to a listed judicial office.’.—(Mr Straw.)
Question put, That the amendment be made.