Crime and Courts Bill [HL]
Baroness Smith of Basildon Excerpts(11 years, 5 months ago)
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“(6A) After section 50(2)(c) of the 2006 Act (procedure), insert—
“(2A) In respect of any application or claim in connection with immigration (whether or not under the rules referred to in subsection (1) or any other enactment) the Secretary of State may make provision for the communication of an immigration officer with the applicant before a decision is taken in respect of that application or claim.
(2B) Provisions under subsection (2A) may include communication with the individual so as to obtain additional information relevant to their application or claim.”
(6B) Before the coming into force of this section, the Secretary of State must make provision for communication between an immigration officer and the applicant for the purposes of obtaining further necessary information not included in the original application, as provided for under section 50(2A) and (2B) of the 2006 Act.”
Baroness Smith of Basildon
My Lords, perhaps this is a timely amendment in the context of the debate that we have just had and the comments from the noble Lord, Lord Lester of Herne Hill, about having some sort of common-sense approach so legislation could be easily understood. I have called Amendment 118ZA the common-sense amendment, which I hope encourages noble Lords to support it. As the noble Lord, Lord Lester of Herne Hill, says, there is sometimes precious little common sense in how we look at legislation.
This amendment would require the Secretary of State to set in place a procedure to allow for entry clearance officers to communicate—I know that that is a radical step—with applicants during the application process, particularly if the applicant has not provided all the information needed in applying or if there is a need to clarify what may be a minor technical detail. The amendment was inspired by the details of the many cases of visa applications that have been sent to me by individuals over the past few months following debates we have had in this House, and indeed in Committee, on immigration issues.
Many of those who have contacted or written to me have been exasperated by their experience with the UK Border Agency. Whether or not their case has merit, and whether or not their case has been or will be successful, the bureaucracy that should be in place to create logic and order to the process can have the opposite effect. Ministers have said that one of the reasons for the changes they are proposing to the legislation is that applicants do not provide all the information that they should be aware of. However, the fact is that, for the vast majority of people who make such applications, there is confusion and a lack of clarity around the rules. This means that applicants can be refused on the most minor of technicalities or simply because they have not included a single document.
The Independent Chief Inspector of Borders and Immigration, John Vine, raised this very point in his review last year. His report, Entry Clearance Decision-making, noted that in 16% of the cases won on appeal that he reviewed, applicants had been refused on the basis of failure,
“to provide information which they could not have been aware”,
was required at the time of making their application. Even though Ministers consider that they should have been aware, clearly they were not aware. That is a definite example of the lack of clarity about what is required. For further evidence as to why clarity is required, in 33% of the successful appeals that John Vine reviewed, the entry clearance officer had not properly considered the evidence that had been submitted.
Family members of British citizens who want to come over for a visit—perhaps for a wedding or to visit a sick or ailing relative—are being refused entry because of poor decision-making and a lack of clarity over the application process. The Government’s proposal to scrap the right of appeal leaves applicants without any indication of how they should amend their application the second time around, or even whether the same errors of omission or mistakes will continue to be made. That will do nothing to address the problems that the Government have identified. It is also difficult to see how it will reduce costs.
The Government have also conceded this argument. The former Minister for Immigration, now the Minister for Crime and Policing, the right honourable Damian Green, based the argument for scrapping appeals for family visas on the fact that 63% of appeals,
“are lost entirely because of new evidence introduced at the appeal stage”.
Obviously, if the applicant had been clear in the first place as to what was required, he or she would have submitted that information or evidence the first time round. Applicants do not want their application delayed or the uncertainty increased; they want to provide the accurate information. They have not provided it only because of a lack of clarity about what is required.
This problem has got worse. The success rate of appeals against family visit refusals has risen from 19% in 2004 to 37% in 2010. The latest report from the independent chief inspector about the backlog of 147,000 immigration and asylum claims at the UK Border Agency shows that at one point there were 100,000 items of unopened post, including 14,800 recorded delivery letters. This is a shocking state of affairs. It shows that the information being sent on is not being examined adequately.
I stress that I am not laying the blame on entry clearance or immigration officers. I have enormous sympathy with them; they are under huge strain. The Government have cut 5,000 staff from the UK Border Agency, so the workload of individual officers is increasing. The increasing backlog is putting on additional pressure. However, instead of seeking to deal with the chronic problems in the decision-making process, the Government have chosen to scrap appeals entirely. It could be argued that this is an easy option, rather than an effective one. One of the things that I was most struck by in the letters and e-mails I have received—and there have been a very large number of them—is that so many of those errors could have been sorted out relatively easily and more straightforwardly through better communication between the UK Border Agency and the applicant.
I have permission to give an example from one man who has contacted me. I will call him Mr H. However, I can give the Minister the details—he has had information from this gentleman previously. He is an intelligent and articulate British citizen, married to a lady from overseas. They could not understand why their application had been rejected, because they had passed the many hurdles that had been set for them, including the language test. They are now desperate to be living together as man and wife. It was only after I passed the information to the Minister’s office—for which I am grateful; he passed it on to the Minister for Immigration, and the noble Lord, Lord Avebury, also took up this particular case—that Mr H was told what information he had not included. He has since submitted that. However, the lack of clarity about what exactly was required meant that before he received that clarification—and he sent numerous e-mails to the UKBA asking for clarification of what was required—he scanned and sent hundreds of pages because he was so nervous about not including the correct information. He wanted to ensure that the right information was received but he could get no guidance from the UK Border Agency. He then wrote to me that the border agency had lost the appeal. I am pleased to say that it has now been found and he is hoping for a decision before 22 December, when he is returning home to the UK. He hopes that his wife will be able to return with him. Not only has that whole process involved a great deal of stress and worry for him and his wife, but think of the pressure on the overworked immigration officers who have had to consider his first application, deal with his inquiries about what was required for the appeal, and then consider the appeal, which apparently included hundreds of pages of unnecessary information because no one told him what information was required, and he was anxious so he included far too much. His frustration about the whole process is very clear.
Would it not have been easier and cheaper for all concerned if the entry clearance officer had been in a position to contact Mr H originally to let him know what information was missing and give him a certain number of days in which to supply it? That is why we call this a common-sense amendment—it would save time, money and stress.
Lord Taylor of Holbeach
I do not accept that at all. If someone’s application to visit this country is refused, then I regret to say that it must be because either they have failed to fill in the application correctly or there are substantial reasons why they should not be allowed to make that visit. I cannot accept the premise of my noble friend’s argument.
The Government are not persuaded by the case for my noble friend’s Amendment 118A. To accept it would introduce a right of appeal for people who have, for example, practised criminal or other dishonest behaviour, while those who have acted honestly would not have an appeal. It cannot be right that that type of behaviour is rewarded.
Regardless of whether an application is refused, relying on a general ground of refusal, the applicant is free to re-apply setting out why the previous refusal was unjustified. All refusals on general grounds are authorised or reviewed by entry clearance managers before being served. If refused under general grounds, it is also open for an applicant to make a fresh application by providing new evidence which an entry clearance officer will take into account. A refusal under paragraph 320 of the Immigration Rules may also be challenged by a judicial review. Prior to making decisions, all entry clearance officers have to pass a three-week training course, part of which focuses on making decisions using paragraph 320 of the Immigration Rules. There is also an e-learning package specifically relating to the sub-paragraphs of paragraph 320 that may lead to an applicant’s future applications being automatically banned. This package is completed by entry clearance officers during their induction training on arrival at their decision-making post.
I think I have demonstrated that the process is thorough and that there will be considerable advantage to the efficiency of the system and, indeed, to applicants themselves if the Government’s proposals are approved. I trust that I have been able to satisfy my noble friend.
Baroness Smith of Basildon
My Lords, the Minister has always been generous with his time and courteous in his response, but I am sad that he is also disappointing. He seems to have relied on existing guidance being adequate and user-friendly. I thought that my comments that the genuine mistakes that are made could be more easily rectified than they are under the current process or the process proposed by the Government indicated that it is not quite user-friendly. No matter how many languages are used, if people do not understand what is required of them they cannot provide it. Perhaps the Minister thinks the guidance is adequate. If it were adequate, applicants would submit all the information required. There is no interest for applicants to make a mistake or not to supply something that they should.
It beggars belief and is against natural justice that the appeal process can be scrapped and that the Government are not taking steps to improve the original decision-making when the figures show that 37% of appeals are successful.
Lord Taylor of Holbeach
The allegation that we are not taking steps to improve the original decision-making has been refuted by what I said in my response to the amendments. I do not want to make an argument out of this issue, but the Government are very much focused on trying to ensure that the decision-making process is efficient and fair to applicants, as well as to taxpayers.
Baroness Smith of Basildon
I do not doubt that that is the Minister’s intention, but when we hear that the success rate of appeals against family visit visa refusals has risen from 19% in 2004 to 37% in 2010, that does not sound as if the system is getting more efficient, rather that the system is less efficient.
The point I am making is about removing the appeal process at that time. We heard from Sir John Vine about the huge backlog of cases that are currently in the system. There are 100,000 envelopes unopened, including 14,000 containing recorded delivery information. I think that our amendment is a common-sense approach. Remarkably, even the noble and learned Lord, Lord Lester of Herne Hill, who takes a legal approach to these things, agrees with me on this point. I am seeking to be helpful to the Minister and the Government. He may think there are times when I am not, but on this occasion I am seeking to be helpful.
The Minister spoke of the letter which is sent to applicants on reasons for refusal. That reason for refusal may be one very minor, technical matter that can easily be resolved via a phone call. I am extremely disappointed by the Minister’s response. I hope he will take this away and consider further the points that I have made. I beg leave to withdraw the amendment.
Lord Pannick
My Lords, I support the noble Lord, Lord Avebury. As he said, it is very difficult effectively to pursue an appeal from abroad. As I understand the clause that the noble Lord seeks to amend, the Secretary of State may take advantage of the temporary absence abroad of an individual. He or she may wait for the individual to go abroad, and may act even though the individual may be abroad—as often happens—for compassionate reasons such as the ill health of a child or an aged relative. The clause is very unjust and very arbitrary.
Baroness Smith of Basildon
My Lords, when the noble Lord, Lord Avebury, raised this issue in Committee, I raised with the Minister some questions about the process that the Government were seeking to introduce. Like the noble Lord, Lord Avebury, I was not entirely satisfied with the replies I received. In fact, I did not receive responses to some of the questions that I raised. I hope that in the time that has expired since 4 July this year the Home Office has been able to provide some answers to those questions.
The point was raised about someone’s leave to remain being cancelled while they were out of the country. I am still unclear—because I have not had a satisfactory response—about the criteria for cancelling someone’s leave to remain while they are out of the country. Is it a purely administrative decision because the decision-making time has come up for that person—they were going to be denied leave to remain and they happened to be out of the country—or is it the case, as the noble Lords, Lord Pannick and Lord Avebury, suggested, that the Home Secretary will lie in wait for somebody to leave the country, possibly on compassionate grounds, whereupon their leave to remain will be cancelled? It would be helpful to know what the criteria will be and how the decision will be made.
It would also be useful to have information on what proportion of cancelled leave to remain is cancelled when the subject is outside the country as opposed to when the subject is in the country. I asked that in July in Committee and did not receive an answer. There has been some time since July to get that information; I hope that the noble Lord will have it available.
Another issue is the definition of “public good”. The legislation refers to a decision on removing the right to remain as being taken,
“wholly or partly on the ground that it is no longer conducive to the public good for the person to have leave to … remain”.
Is there a definition of when the public good is no longer there, or when it should be decided that there is no public good and that leave to remain should be withdrawn? The Government need to answer questions on this. I was disappointed not to get responses from the previous Minister—I am not suggesting that the present Minister did not answer me in July—and I hope to get some responses today.
Lord Lester of Herne Hill
My Lords, the noble Baroness described me as “noble and learned”. I should not be described in that way because I am not a former law officer or Law Lord—and I am not sure about being noble. However, it is true that I look at matters as a lawyer. I cannot help that; it is a problem that comes with 40 years of doing it.
I am interested to know what the Minister’s response would be to the remark made by the noble Lord, Lord Pannick, when he described this as “arbitrary”. That seems to be a correct way of describing it. Can the Minister explain why, if the amendment tabled by the noble Lord, Lord Avebury, were rejected, the Government would not be highly vulnerable to a legal challenge in our courts or, I dare say, the European Court of Human Rights?
Baroness Smith of Basildon
My Lords, I shall speak to Amendments 118H, 118K and 118L. I say to the Minister at the outset that we totally support what the Government seek to achieve here. We appreciate that this is not a drugs amendment, it is a road safety measure, but the Minister will have heard from the comments already made that there is support for the Government’s intention but also some concerns about how it would operate in practice against those who are not the legislation’s targets. Drug-driving is a problem that we are all incredibly keen to see addressed. I refer to a case that the Minister will know well, of 14 year-old Lillian Groves, who was run over and killed by a driver who had taken drugs. This illustrates the importance of ensuring that the police have every tool available to tackle those who take illegal drugs and then drive, creating a danger to themselves and others. My concerns are not about the principle of what the Government seek to achieve, but—as the noble Lord, Lord Walton, and the other noble Baronesses have said—its implementation. We need to ensure that the legislation hits the right target and does not affect the innocent on prescribed medication. We have to get it right.
I thank the Minister for the briefings that he has provided and for the opportunity to meet him and his officials. I hope he can say enough today to satisfy us that the drafting of these clauses will not unnecessarily impact on those whom it is not intended to affect. The amendments I have put forward largely replicate those tabled in Committee and seek to strengthen the defence for individuals on prescription drugs who, through a simple error and no fault of their own, have been found above a certain limit. Amendment 118H would delete the existing new Section 5A(3)(b) of the Road Traffic Act, which requires individuals on prescription medication to “show that” they took the prescribed drug in accordance with any and all instructions, both from the doctor and manufacturer. There are serious concerns that requiring positive proof that the individual complied with all advice is pretty onerous. Instead we propose Amendment 118K, which would mean that individuals could not use their prescription as a defence if it was proved that they had taken the dosage knowingly —the point made by the noble Baroness—contrary to any advice given by a doctor or supplier. That additional wording in brackets picks up on the points about manufacturer’s instructions being required to be considered as part of the prescriber’s or supplier’s advice, rather than placing the burden on the patient to read and understand all and any such instructions. The noble Lord, Lord Walton of Detchant, made the same point. We share his concern about how fair it is for patients on long-term pain medication to find themselves in such a situation and having to show that they have complied with absolutely every medical requirement.
We are worried that we risk criminalising individuals on medication on the basis of a technicality, simply for failing to correctly interpret an element of the patient information leaflet. It could be a slight, insignificant deviation from the instructions. The noble Baroness, Lady Hamwee, made the point about the timing of when a medication could be taken. What if the advice from a doctor differs from that on the manufacturer’s small print? Under the proposed new subsection (4)(a), patients would have to have done something positive, contrary to the instructions they had received, rather than have to positively prove that they acted in accordance with advice. It changes the emphasis of the proof.
New subsection (4) also focuses on what is probably the main medical aspect of the period when the body is getting used to the prescribed drug in the system. This has been mentioned by other noble Lords. Deleting new subsection (3)(b) and the use solely of the caveat in new subsection (4) then fits more appropriately with the evidential requirements of new subsection (5). Patients would be able to show that they have a prescription. They could take a copy of it or carry a letter from the prescriber. Evidence could be produced at a police station. However, the evidential burden of new subsection (3)(b) on patients if they had to “show that” they followed any and all instructions would be considerable. Clearly we are not seeking to protect anyone who is unfit to drive, but although the Government intend this new offence to mirror drink-driving limit offences, taking prescription medication that would otherwise be illegal does not automatically make someone unfit to drive; I am thinking specifically about pain medication.
As an example of why I am concerned, and to take what could happen to somebody sequentially, if an individual on medication has perhaps been rear-ended through no fault of their own, the police would arrive and, currently, breathalyse both drivers. Under the new legislation, they would “drugalyse”, or drug test, both drivers. The test might indicate that they are over the limit, but it does not tell the officer undertaking the test how far over the limit they are. So what would happen next to that individual? If they say that they have a prescription for the medication they are taking but do not have the prescription with them, how can they prove that they have taken medication in accordance with medical advice and not taken illegal drugs? Would they be taken to the police station, where obviously at some point they would be able to prove that they have a prescription? That would clearly be an inconvenience and could be particularly distressing. We do not want to reach a situation where individuals are deterred from taking their medication—again I am thinking specifically about long-term pain relief—because some individuals would be more of a hazard without their pain-relief medication than if they were on it.
The Home Office has been developing roadside “drugalyser” tests for the past 10 years. Without these, the individual would have to be taken to a police station for testing. When do the Government expect roadside drug tests to be available to the police? Do the Government intend to implement the new offence before roadside drug tests are available? How often would they expect the test to be used? Considering their high cost, I presume that the police would undertake a breathalyser test first. How often would the Government expect roadside drug tests to be used in the same cases as a breathalyser? Also, looking through the information that has been supplied, any assessment of the proportion of cases in which the Government expect to find individuals below the alcohol limit but above the limit for a certain concentration of controlled substance was missing.
Despite the good intentions—which we support—what concerns me is that the details of how it will work in practice have not been worked through for those on prescription medication. I am grateful to the Minister for sending me the letter from the chair of the drug-driving panel, Dr Kim Wolff, which the noble Baroness, Lady Meacher, has also referred to. However, I am extremely disappointed that the expert panel has not been able to publish its interim report before this stage of the Bill, though I think Ministers indicated we would be able to get it. Clearly, the levels that the panel is likely to recommend—particularly in the case of prescribed drugs—and the rationale behind the recommendations would have been a huge help in our deliberations today. They may have clarified a number of the issues that I and other noble Lords have raised. What is encouraging is Dr Wolff’s assurance in her letter that:
“In considering what limits should be set for common prescription medication, the Panel has looked at normal therapeutic ranges used in prescriptions, compared to those found in addicts misusing medicines”.
In relation to morphine, she said that the panel,
“are considering a limit that is significantly above the average concentrations of morphine in blood found in cancer patients receiving long-term steady-state doses of morphine”.
However, Dr Wolff also states that the panel’s primary consideration is,
“clear scientific evidence of risk of road traffic accidents”,
and that in the case of, for instance, prescribed benzodiazepine drugs:
“risk is especially high during the first four weeks of treatment and is particularly increased when benzodiazepines are consumed in combination with alcohol”.
Here, Dr Wolff outlines the inherent difficulties in setting a blanket limit in the case of medicated drugs, because tolerance can change over time and is subject to variation by other factors. I suspect that the Minister will be unable to answer at this stage whether the panel, on the evidence so far, will set a limit for benzodiazepine much lower than the average level for someone on long-term drug use, because of the increased risk in the first four weeks of medication. However, that is an important consideration in the implementation of these clauses.
Much of how this will be implemented will hang on the recommendations that the panel makes, which we do not have available. How will it factor in the effects of mixing drugs with alcohol? Will it feel compelled to set the limit a lot lower than the average dosage because of the risk of increased road safety problems when the drug is mixed with alcohol—even a quantity of alcohol below the legal limit? Someone could be below the legal limit on drugs and below the legal limit of alcohol but still be a danger to themselves and other road users, because the Government’s offence does not provide—understandably, because we have not yet had the report of the panel—for a combined alcohol and drug limit for certain controlled substances.
We all want all drug drivers who are a danger taken off the roads. We totally support the Government’s aims. However, we need to ensure that we are going after the right people. I hope that the Minister can give some assurances that he will look again to reassure himself and this House about the defence in this group of clauses for people on prescription medication, to ensure that it is appropriate and fair; that he will not shut the door on ensuring that the legislation hits the right note; and that he will take away the comments made today.
I hope that the Minister can answer my final question clearly. Can he confirm that the Government would not consider it appropriate for any action to be taken against those on prescribed medication, unless it is clear that their driving is impaired?
Earl Attlee
My Lords, I recognise that the amendments relate to concerns about the Government’s approach to drug-driving and, in particular, how the new offence will affect drivers who take prescription or over-the-counter medicines. I am grateful to the noble Baroness, Lady Smith, for her recognition of the problem. I will try as hard as I can to reassure the House that your Lordships’ fears will not materialise.
First, I emphasise that any passengers would not be screened for drugs following a vehicle being stopped by the police and the driver being tested for drugs. The noble Baroness asked me a number of very good questions, and I will answer them first, before going into detail. She asked, in effect, how much discretion a policeman has to arrest for drug-driving. Whether an officer decides to arrest and continue an investigation, including carrying out an evidential blood test, once someone has proved positive in a drug screening test, will depend on the facts of a particular case. Officers will be aware of the statutory defence of taking a specified controlled drug in accordance with medical advice and prescription.
As for the CPS, in reaching a decision as to which cases to prosecute, Crown prosecutors must take into account the Code for Crown Prosecutors. The code includes a requirement that prosecutors should swiftly stop cases where the public interest clearly does not require prosecution. I will return to that in a moment.
The noble Baroness also asked me about publication of the expert panel report. The expert panel is independent of government. It is important that it takes the time that it needs. Advising on which drugs the new offence should cover and on limits to set for driving purposes are complicated issues which require careful consideration. The expert panel has considered a wide range of drugs and has needed to reconcile the available evidence from the UK and abroad. This means that it has taken longer than we anticipated for the panel to report. The Government intend to publish a copy of the report of the expert panel on drug-driving as soon as we are able after the report is finalised. Of course, we will not proceed further with the secondary legislation until we have the expert panel’s report.
The noble Baroness also asked me about roadside drug tests. The Government expect roadside drug test equipment to be available in 2014, when we anticipate bringing the new offence into force. We would expect breath tests to be conducted first, as they are quicker and easier. We cannot speculate on how many tests would be taken, as that is an operational matter for the police.
Baroness Smith of Basildon
My Lords, I am sorry to intervene but I just want the noble Earl to clarify the point about the instructions. Proposed new Section 5A(3)(b) says that D, the person who has been arrested,
“took the drug in accordance with any directions given by the person by whom the drug was prescribed or supplied, and with any accompanying instructions (so far as consistent with any such directions) given by the manufacturer or distributor of the drug”.
Is the Minister absolutely clear in his comments today that the doctor’s instructions with the drugs would always override any manufacturer’s instructions and that that would be a defence in law?
Earl Attlee
My Lords, as I understand it, the doctor’s instructions will trump the leaflet. If I am wrong on that I will write. Also, the leaflet normally refers to the doctor’s advice so the leaflet would give the trumping authority to the doctor.
The medical defence places what is known as an “evidential” burden on a person accused of committing the offence. This means that the accused person must simply put forward enough evidence to “raise an issue” regarding the defence that is worth consideration by the court, following which it is for the prosecution to prove beyond reasonable doubt that the defence cannot be relied on.
I know that the noble Baroness, Lady Smith, and my noble friend Lady Hamwee are concerned that a patient who inadvertently deviates slightly from the recommended dosage might be unable to rely on the medical defence. I want to reassure the House that the Government and the independent panel will take into account the normal therapeutic ranges for medication when considering what limits should be set for drugs. This will reduce the risk of patients who take medical drugs correctly being affected by this legislation. The panel will be well aware of the risks pointed out by my noble friend Lady Hamwee. I would also like to point out that in the terms of reference, term 6 is:
“To establish the likelihood of whether these concentrations would be exceeded through prescribed or otherwise legally obtained drugs (as distinct from illicit drugs)”.
A small minority of individuals taking long-term medication at elevated concentrations could be in excess of the specified limit for a particular drug, as was so well explained to the House by the noble Lord, Lord Walton of Detchant. In most cases such users would only come to notice if their driving is impaired—when they can be dealt with under the existing offence in Section 4 of the Road Traffic Act 1988—or for some other reason requiring police action. Another point to note is that the Code for Crown Prosecutors specifically states that prosecutors “should swiftly stop cases”, as I have already mentioned.
Furthermore, the Government expect that the courts will take a sensible approach to the operation of the new offence. For example, a defendant seeking to rely on the medical defence may be afforded more or less leeway depending on the facts of a particular case, such as the nature of the medical advice provided, including the wording of any leaflet accompanying the medicine.
Finally, in Amendment 118GA the noble Baroness, Lady Meacher, has also proposed that primary legislation should include requirements for testing to be reliable and for the Government to set limits that are linked to road safety. We do not consider it necessary to set these requirements in legislation. First, the preliminary testing devices currently being developed would undergo a rigorous type approval process before being used for enforcement purposes. This type approval process is so rigorous that it is taking some time to secure approval and I have raised this issue with my right honourable friend the Secretary of State because we need this equipment in operation. However, it is vital to the integrity of our system of justice that the courts can rely on the evidence of the new equipment. Furthermore, evidentially testing using blood or urine specimens is already carried out for the enforcement of the existing drink and drug-driving offences without any express requirement for the testing to be reliable.
Secondly, we are clear that the purpose of the new offence is to improve road safety, as I have already stressed, so careful consideration will be given to the advice received from the expert panel and to the responses to the public consultation before setting any specified limits and regulations. The regulations would then need to be specifically approved by Parliament using the affirmative procedure. The new offence is intended to enable more effective law enforcement and to improve road safety by deterring drug-impaired driving and bringing more drug-impaired drivers to justice. In light of the points I have raised I hope the noble Baroness, Lady Meacher, will agree to withdraw her amendment and that my noble friend Lady Hamwee and the noble Baroness, Lady Smith, will not press their amendments. I have been asked many detailed questions. Where I have not answered them I will write, and no doubt another place will look very carefully at these provisions.
Baroness Hamwee
My Lords, I was hoping that my noble friend Lord Macdonald would be in his place as he was a little earlier. I hope he is not stuck in a lift or something. I want to put on record on his behalf, on my behalf and on behalf a number of people who are becoming quite vocal, my wholehearted support for this amendment, and I speak for a number of colleagues. I put my name to the equivalent amendment at the previous stage and, as I recall it, the noble Lord, Lord Mawhinney, said, “For heaven’s sake, even the Liberal Democrats have this as party policy”. Well, we do; we would have gone further, but we are happy to go as far as is before us tonight.
Baroness Smith of Basildon
My Lords, as we have heard, it is nearly a year since the Government launched their consultation on public order policing and whether the word “insulting” should be removed from Section 5 of the Public Order Act. In the Committee on this Bill—a good five months after the close of the consultation—the Minister said that he hoped that at Report stage, the Government,
“will be able to put forward the Government’s considered view to the House”.—[Official Report, 4/7/2012; col. 781.]
Since then, the Government had a further five months to come to a decision, and yet—unless the Minister is going to make an announcement this evening—even at this stage, we still have not had a public announcement from the Government about their position, or about the findings and evidence from the consultation which your Lordships’ House has asked for.
I say to the Minister that this is typical of this Bill. From the National Crime Agency framework document, the debate we had earlier and the panel report on drug driving, evidence that would have assisted this House in consideration of the Bill and been welcomed by noble Lords for scrutiny has not been available to your Lordships’ House. It does this House, and those proposing the amendment today, a grave disservice that the Government are so tardy bringing forward information that is crucial to this debate. I share the frustration of the proposers at the Government’s failure to provide this information for the debate today. Are the Government finally able to state their considered position now or will we have more evasion and more waiting for a consultation that closed many months ago?
I understand some of the difficulty for Ministers; it lies in the nature of coalition Government. The Liberal Democrats, at their spring conference this year, passed a motion to repeal this part of the legislation. We also know from names on the amendment that a number on the Conservative Benches—as we heard this evening—also support removal. The campaign is led in the other place by David Davis MP. If there is so much interest in this issue, why have the Government not brought forward the results of the consultation in order to have a proper, informed debate on the merits of the issue, rather than leaving it to campaigners?
I am not suggesting for one moment that the law as it stands is perfect in its application; we have heard numerous examples why it is not. I appreciate that there are grave concerns that there are cases where its use by the police and the CPS has been disproportionate and, indeed, ridiculous at times. There is a very strong argument for better guidance on the application of this clause to ensure that its use is always appropriate and effective.
However, we are concerned that the evidence of the need for its removal has not been presented to your Lordships’ House. We do not want to risk removing a useful tool which currently enables the police to address homophobic and religiously offensive issues. There is still a huge grey area when it comes to these issues.
Many of your Lordships have said that they received no correspondence in favour of “insulting” remaining; I did receive such correspondence. I tried to look at it in balance with the other correspondence I had. YouGov polling estimates that over 400,000 lesbian, gay and bisexual people a year experience homophobic insults, abuse and harassment. Furthermore, 77% of victims of homophobic crimes and incidents do not report them to the police because they have no confidence that the police will or can do anything. I question whether it is right to take tools away from the police which they could use properly to address these sorts of hate crimes and what message that will send. We need a proper debate on whether the existing law is the right approach. It has to be done on an evidential basis, which is why I find it totally unacceptable that the Government apparently have evidence which they are not bringing forward.
We have heard examples of disproportionate and ridiculous use of the legislation, but there are also examples of its proportionate use. I have been sent these by Stonewall. I am not normally shy and retiring or very modest in my approach, but I am loath to read out the insults and the behaviour that was hurled at a Mr Braithewaite, when he intervened for a fellow passenger on his train, Heather Williams, who had been accosted by a third passenger—the defendant—for being transsexual. The language that was used and the behaviour towards them led to a prosecution and a successful conviction under Section 5 of the Public Order Act. I do not believe anybody in this House would want to tolerate or allow that kind of behaviour to go unpunished.
If there are to be changes in the law, there should be a full examination of the evidence. We want to ensure that people like that are properly punished for their crimes. The letter today from the Director of Public Prosecutions should be fully considered in the light of what he has to say, and the Government’s response to their consultation.
Baroness Kennedy of The Shaws
Perhaps I may ask my noble friend whether the word “abusive” would deal with that. The law is there to deal with it. The example that my noble friend has just given could be met with the law in the way being proposed by this amendment.
Baroness Smith of Basildon
My Lords, it may well be. The answer is that I do not know. There has to be a proper examination of the evidence. If I was absolutely clear, and if we could be absolutely confident that this poor woman, Miss Williams, who was abused on a train, would be covered without the word “insulting”, I would move forward on this. I think that we could accept that. Until we have evidence from the Government that allows us to be absolutely clear that we are protecting people who are subject to abuse and insult—
Lord Morris of Aberavon
If my noble friend wants evidence, would she not take into account the views of the Director of Public Prosecutions who is in charge of all prosecutions and has reached the view that without this word there are sufficient grounds to prosecute in this kind of instance?
Baroness Smith of Basildon
My Lords, I would absolutely take that view on information from the Director of Public Prosecutions. However, that also has to be seen in line with the consultation that the Government have undertaken. A letter produced today does not give me confidence that we would protect those people. I do not know whether the Director of Public Prosecutions has looked at the case of Mr Braithewaite and Heather Williams, if that is what he has in mind. If the DPP could give an assurance on that case and other successful prosecutions, it would give me a lot of reassurance that we are not removing protection.
Lord Morris of Aberavon
My noble friend must have regard to the fact that the director is the head of the prosecution service. He is in charge of the Crown Prosecution Service. It is the CPS which takes the decision on whether a prosecution should take place. From his long experience at the Bar and in the law, I am sure that he has taken into account the views of all his colleagues in the service. Is that to be disregarded?
Baroness Smith of Basildon
My Lords, I am not disputing that. I am disputing that that should be taken in context with the other information. We have been waiting for almost a year for the Government’s consultation response. It is a disgrace that it has not been made available to the House. It is for the Government to justify that and not me.
Lord Thomas of Gresford
We would not sully our ears with the expressions used in the instance that the noble Baroness has given. Was it not abusive? Was it not threatening? Was it merely insulting?
Baroness Smith of Basildon
My understanding of the case concerning Mr Braithewaite and Miss Williams is that the defendant was charged and convicted of a Section 5 Public Order Act offence for the homophobic insults. There were other offences as well, but homophobic insults were a significant part of that prosecution. It is for the Government to bring forward what they intend to do. I am not against change or further discussion on this but, on the evidence today, I want to see the evidence from the Government in much greater detail and to know exactly what the outcomes and the consequences would be for those who the law currently protects.
Lord Taylor of Holbeach
My Lords, I understand the interest that has been shown in this debate. I thank the noble Baroness, Lady Smith, for at least demonstrating that the issues that the House has to consider are perhaps a little more complicated than some of the speeches have implied. It is important to stress that there was a further sentence to the letter of which the noble Lord, Lord Dear, kindly sent me a copy. After the comments about the ability to prosecute, the letter continued:
“However, I appreciate there are other policy considerations involved”.
He is right that the Government have to consider the full implications of this amendment.
Let us make it clear: the Government are not seeking to change the law. It is this debate and this amendment that are seeking to change the law. The law has existed and has protected free speech, and incidents have been demonstrated. But we need to be properly considerate before we change the law in this area.
Police (Complaints and Conduct) Bill
Baroness Smith of Basildon Excerpts(11 years, 5 months ago)
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Baroness Smith of Basildon
My Lords, I thank the Minister for his comments and for his explanation of the detail in the Bill before us.
On 15 April 1989, across the nation people watched with increasing incredulity and horror the unfolding tragedy of events at Hillsborough. It was hard to comprehend that people were dying in front of our eyes on what should have been an exciting day for the FA Cup semi-final. The loss of life was staggering: 96 innocent men, women and children were killed; 700 people suffered injuries, some serious; and thousands more were traumatised by the events of that day. It remains one of the biggest losses of British life in a single day since the end of the Second World War.
While many of us shared in the shock and horror on the day, those directly affected have been living with the aftermath ever since. That is not just because of the loss of loved ones or the injuries and trauma they suffered, but because, although at the time it seemed that we had witnessed the full extent of the horror, it has become clear that the tragedy of that day has been compounded and magnified by the 23 years of lies and obstructions put in the way of those trying to get to the truth of why and how something so terrible and dreadful could happen.
As we heard from the Minister, totally untrue but appalling and hurtful accusations and allegations were made about Liverpool fans and then reported by some as facts. That such lies were told and took so long to be corrected has created enormous anger and great sadness. Those lies and that lack of justice have made the search for the truth too long and unnecessarily hard and traumatic. Yet, that fight has made those affected only more determined to get to the truth. We in your Lordships’ House agree that they should not have had to have that fight.
The Bill and the welcome announcement by the Attorney-General yesterday that he is seeking to quash the original Hillsborough inquest verdict of accidental death is part of the way forward. As the Minister also said, it is appropriate. I am sure that your Lordships’ House would welcome the opportunity to pay tribute to the families and organisations that have fought for justice, to their supporters and to their legal advisers, including the noble and learned Lord, Lord Falconer of Thoroton, who will be speaking in this debate today, as well as those politicians and community leaders who have fought for truth and justice and who have taken courageous, sometimes unpopular decisions.
We must also pay tribute to the right reverend Prelate the Bishop of Liverpool and I look forward to his contribution to this debate. I have no doubt that the report of the independent panel which he chaired, while deeply distressing, is finally helping the people of Liverpool to move beyond that search for the truth and focus on their quest for justice. It is the shocking findings of that report that have led the Attorney- General to take his decision and also to the IPCC reopening the investigation. This Bill will assist in that quest for justice. There are a number of aspects to that quest and a hugely significant part is the investigation by the IPCC; the Bill seeks to ensure that it has greater powers to conduct that investigation.
There is genuine cross-party support for this Bill and it is cross-party, united action that has brought us to this point. We raised with the Government the issues in this Bill and we put on record our appreciation for the willingness and readiness of Ministers to engage in and listen to the concerns raised by my right honourable friend in the other place, Yvette Cooper, the Shadow Home Secretary, regarding the powers that were available to the IPCC. Without reservation, I thank the Government and the noble Lord for bringing this Bill forward largely to address those concerns.
We agree with the Government that is not the end of the debate or the end of the changes that need to be made. We also agree that what we have before us today is appropriate for fast-track legislation and note unanimous support for the Home Affairs Select Committee in the other place for the content of the Bill and its approach to it, while raising issues that are not covered by the Bill.
If the IPCC is fully to investigate the potential criminal and misconduct issues raised by the independent panel, it needs these greater powers in order to examine the conduct of the police on 15 April 1989 in addressing the culpability of the individuals and organisations involved and the safety standards, planning and operational decisions that led to the disaster. These greater powers are also needed to examine the evidence that suggests a massive cover-up following the disaster that has continued for years. The Minister gave some examples of that cover-up, but to those I can add that 164 statements were taken by the police and it is incredible that the panel found that 116 were altered in some way. This is how the tragedy was compounded and magnified and why my right honourable friend Yvette Cooper called for the inquiry to have greater powers.
Now I turn to the specific clauses of the Bill and look at Clause 1. At present, the IPCC can require police officers to give evidence if it believes they have committed a crime. However, the IPCC has been clear that in order to gain the fullest picture of events it also needs to be able to obtain evidence from police officers and police staff not themselves suspected of any criminal activity or misconduct but who are witnesses. The IPCC has expressed its concerns about the convoluted current process if an officer chooses not to attend an interview as a witness, which it considers can seriously undermine public confidence in its work. The IPCC, in a report to Peers, has informed us that it does not keep specific records of non-co-operation by the police and police staff but that, in what I assume was a quick exercise, it readily identified at least 25 cases involving over 100 police officers where they have refused to attend for interview as witnesses. Those involved cases such as death, serious injury, police shootings, road traffic incidents and the use of excessive force. Clearly that is a serious problem and one that the Bill seeks to address.
I also want to say something about what the Bill does not do, and invite the Minister to comment. As he explained, the Bill does not compel police officers or staff to answer questions. Although the IPCC is not asking for this power, in the debate in the other place it seemed to me to be clearly the intention of Parliament that, if called for interview, police officers and staff would be expected to co-operate fully with the IPCC. Indeed, we would argue that there is a moral duty to do so. Will the Minister confirm that refusal to co-operate, after being called by the IPCC to give evidence as a witness, would be a misconduct matter? Can that be clarified in regulations? Can he give further information to your Lordships’ House about the sanctions that would be available in these circumstances? It would be helpful if he could inform your Lordships’ House whether any disciplinary action following non-co-operation with the IPCC would be at the discretion of the chief constable of that police force, or if this will be specified in guidelines or in secondary legislation. There needs to be a national standard that provides clarity to police officers and staff about the need to co-operate and the consequences of not doing so. It is unfair on police officers, when called to give evidence, that different police forces have different standards.
I would hope that the majority of police officers will recognise their duty to co-operate—although that does not appear to be the experience of the IPCC to date—and that sanctions will rarely be required. However, clarity is needed for cases of the kind already mentioned where co-operation is not forthcoming.
I also recognise that, as the Minister said, the Bill cannot force retired police officers or staff to attend interviews as witnesses. I understand why that is—a retired person is a private citizen—and why the Government consider that it is not appropriate to deal with the issue in fast-track legislation. However, it is a serious issue and I hope that the Government will consider and seek to remedy it.
I trust that provision can be made to ensure that early retirement cannot be used as a way of avoiding giving evidence to the IPCC. Will an officer or staff member be able to have a retirement application considered after they have been asked to give evidence to the IPCC? I know that Ministers have discussed this issue. The shadow Home Secretary, the shadow Police Minister, the right honourable David Hanson, and other Ministers are aware that this issue needs to be addressed and I would be grateful for any indication that the Minister can give of the action the Government intend to take.
It would also be helpful to have clarification of an answer given by the right honourable Damian Green in the Commons to the right honourable David Hanson, the shadow Police Minister. Damian Green said that even if an officer had retired, the investigation will continue into criminal or misconduct matters. Can the Minister confirm whether that means that a retired officer will still be required to give evidence if he or she is the subject of an investigation; or can he or she only be compelled to do so prior to the date of his or her retirement? I am also unclear about whether the authority of the IPCC to compel witnesses who are police officers or police staff extends to civilian staff and private contractors working for the police.
On Clause 2, as the Minister said, currently the IPCC cannot investigate any matters previously considered by the Police Complaints Authority. If that situation were to continue, it would seriously hamper the work of the IPCC in investigating matters relating to Hillsborough.
The Bill will allow the IPCC to make investigations if it is considered that there are exceptional circumstances. The Minister discussed this in his comments. The IPCC is understandably concerned that, within its resources and other work, it will be unable to take on all cases where it might be considered that the circumstances are exceptional. It wants to be sure that it is able to confine itself to those cases that are exceptional and involve powerful public interest reasons. I know, understand and agree that the Government do not want the IPCC to become a bureau reinvestigating historical cold cases and the Minister’s comments on that were helpful. However, I am concerned that qualifying “exceptional circumstances” by ensuring that powerful public interest reasons are also involved could mean that without a powerful public campaign exceptional reasons would not be considered.
I do not think that is what either the IPCC or the Minister means to happen—there needs to be a balance. The exceptional circumstances have to be about the merits of the case and not the public interest—using the meaning of public interest as public enthusiasm or publicity about a case. The point I am trying to make is that this should not be about those who shout the loudest because there may be exceptional circumstances that the IPCC should look at but that are not the subject of a massive public campaign.
In the other place, David Hanson asked about the concerns raised by the Police Federation and the Police Superintendents’ Association about the lack of consultation. They had issues regarding the Bill that they wished to discuss with Ministers. The Minister said that he had a meeting scheduled with the Police Federation and was happy to meet the Superintendents’ Association. Have those meetings now taken place and is there any information from them that the Minister can share with your Lordships’ House?
We have this Bill before us today—and yesterday we had the welcome announcement from the Attorney-General on the inquest verdicts—because of the tenacity, dedication and faith of the families and the faith of those who supported them that truth will out. That quest for the truth and justice has been hard fought—it is of deep regret that it has been so hard fought. Too many barriers, lies and obstructions have been placed in the way of the truth. We support and welcome the Bill. It is not the end of the process but part of it. As indicated, there are other issues that we will return to. Through the independent panel and the work of families, their lawyers and supporters, we are now at the point where truth is emerging and justice can prevail.
Immigration: Home Office Meetings
Baroness Smith of Basildon Excerpts(11 years, 5 months ago)
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Baroness Smith of Basildon
To ask Her Majesty’s Government when Home Office Ministers last met the Chief Inspector of Borders and Immigration; and how often such meetings are held.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, Home Office Ministers have regular meetings with officials and others as part of the process of policy development and delivery. As was the case under previous Administrations, it is not the Government’s practice to provide details of all such meetings.
Baroness Smith of Basildon
My Lords, I am none the wiser after that Answer than I was before I asked the Question. There was a serious reason for asking, because it is clear that there are serious problems in the UK Border Agency. Even the recent fall in net migration is due to British citizens leaving the country and the fall in student numbers. Time and again, the chief inspector has found problems but, despite commitments to his recommendations to make the system more efficient and fairer, it just does not happen. We now even have the Mayor of London accusing the Government of turning a blind eye to long-term illegal immigrants.
Is part of the problem cuts that have led to 5,000 fewer UK Border Agency staff? Can the Minister give a commitment to your Lordships’ House today that the Government will act, not just promise to act, on the chief inspector’s reports?
Lord Taylor of Holbeach
The chief inspector has published two reports recently, and I thank John Vine, the chief inspector, for them. He will be appearing before the Home Affairs Select Committee tomorrow. I totally accept the view that the UK Border Agency has not performed as strongly as this House would expect, but it is improving, and that is the right direction of travel. The question we have to ask ourselves is: for how long does this go back? I fear that it goes back to 2006, when there was a huge backlog of cases, and that has taken an awful lot of clearing up. The current situation is greatly improved.
UK Border Agency
Baroness Smith of Basildon Excerpts(11 years, 5 months ago)
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Baroness Smith of Basildon
My Lords, it might help if I advise the Minister that the comments by the Mayor of London, Boris Johnson, were about the Government’s policies on students and immigration from India. Perhaps the best advice for the Minister is not to agree with Boris, but he might want to agree with government policy. There is clearly a difference in the Conservative Party on this issue.
On the subject of the report which the noble Lord, Lord Avebury, mentioned, it is not the first time that John Vine has raised very serious concerns about the UK Border Agency. This report is shocking: it actually says that Home Office UK Border Agency officials lied to Parliament. I am pleased to hear the Minister’s comments that the Government are accepting all 10 of John Vine’s recommendations. However, John Vine has previously complained about his recommendations being accepted and then nothing happening. How will the Government ensure that these recommendations are acted on? How will they be monitored? Can the Minister commit now to reporting progress back to Parliament?
Lord Taylor of Holbeach
I am always happy to report back to Parliament on this sort of issue. This issue has a very long history and it did not start with the coalition Government coming into office. The key question is: is the agency now directed in a way that is going to lead to improvement? I think that the answer to that is yes. In respect of the particular comments made by individuals in front of the Home Affairs Select Committee, the individual concerned has written to the committee explaining the reason why he inadvertently misled them.
Crime and Courts Bill [HL]
Baroness Smith of Basildon Excerpts(11 years, 5 months ago)
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“(1) There shall be a body corporate to be known as the National Crime Agency (“NCA”).
(2) The NCA is to be under the strategic direction and control of the NCA Board.
(2A) Schedule (The NCA Board) has effect.
(2B) There shall be a Director General, who is to be one of the NCA officers, and shall be responsible for the exercise of the NCA’s operational and administrative functions.”
Baroness Smith of Basildon
My Lords, Amendment 1 in the first group looks at the governance of the National Crime Agency. The amendments remove responsibility for the direction and control of the National Crime Agency from the director-general. Instead, the NCA will be governed by a board with an independent chair, which will have responsibility for “strategic direction and control” of the agency.
Earl Attlee
My Lords, will noble Lords try to leave the Chamber quietly in order that we can hear the noble Baroness move her amendment?
Baroness Smith of Basildon
I am grateful to the noble Earl, Lord Attlee. The House has hushed immediately, such is his power of control. The point is about the governance arrangements of the National Crime Agency and the move in the direction of control from the director-general to a board. It would have an independent chair, which would have responsibility for “strategic direction and control”, and would be modelled on the existing governance structure of the Serious Organised Crime Agency. Obviously, the director-general has to be responsible for the exercise of the National Crime Agency’s operational and administrative functions. However, the line of accountability would be to the NCA board, which would retain the Secretary of State’s powers to appoint and dismiss the director-general, although that would be subject to a pre-appointment hearing by Parliament. The amendments also provide for police and crime commissioners and chief constables to be represented on the board. That would formalise and facilitate that partnership, which we believe is important, between the NCA and police forces.
Having reread the Minister’s comments in Committee —from a different Minister—after the debate, I found them somewhat unsatisfactory, which is why we have brought forward this amendment today. The Government are scrapping the corporate governance structure that existed for SOCA and are instigating top-down direction from the Secretary of State, despite the fact that the new agency will be designated a non-ministerial department, unlike SOCA, which was a non-departmental government body. As the Minister will be aware, non-ministerial departments—NMDs—are, as a rule, more independent of the Government than non-departmental government bodies. According to the Standard Note in the Library of the other place on the Public Bodies Bill, a body such as an NMD would normally,
“answer directly to Parliament on issues where it has been deemed appropriate to remove executive political interference”.
The note gives the examples of Ofgem and the UK Statistics Authority. The corporate governance structures of SOCA and the NPIA provide for a board headed by an independent chair, as does that of the new Financial Conduct Authority. HMRC, which the Government cite as a model for the NCA’s new designation, has a board whose remit is to develop and approve strategy and final business plans and to advise the chief executive on key appointments. Arguably, many of the problems of the embattled UK Border Agency, which we have just been discussing, could have been avoided had there been a board sitting between the chief executive and the Secretary of State, overseeing the functioning of the organisation.
There seems to be a contrast in that the Government’s vision of the National Crime Agency does not include a similar accountability structure. I understand—and I have to say this carefully—that the director-general will chair a non-statutory board, consisting of, we think, the senior officers, who are most likely to be the heads of the five different pillars of the NCA. I am being careful about saying that we understand that to be the case because we do not have the detail, which is not yet available. I know we will come to this debate later about the framework document and its detail, but it does hamper us somewhat in our discussions about the governance arrangements of the NCA.
The noble Lord, Lord Henley, said in Committee how important good governance is and then said, “We will set that out in the framework document”. That is for another debate, but we were promised a draft of the document and then an outline of the document to flesh out the detail. However, all we have got is a table of contents. If we look at what it says on the NCA management board, the heading is, “The NCA Management Board”, which is followed by bullet points and then sub-bullet points as follows:
“The Director General will establish and chair a Management Board … Description of the role of the Board ... Composition of the Board which will include … Ex officio members … Non-executive members”.
There is not much detail there at all.
A corporate board structure would preserve the agency’s operational independence but would retain the ultimate strategic oversight by, and accountability to, the Government. The NCA will be responsible for a huge range of operations: it has a far wider suite of functions than SOCA has. The role of the DG will be incredibly powerful and important. It seems quite crazy that there should not be an additional layer of scrutiny over the day-to-day operations, which is something that a management board, chaired by the director-general, cannot deliver or provide. The corporate board provides the other role of keeping the Home Secretary clear from direct operational control and oversight, and protects the Home Secretary from any accusation of political interference or control. Under the government model, the NCA will be governed by one all-powerful individual, the director-general, who reports directly to the Home Secretary. The Home Secretary in turn will authorise the director-general’s annual plan, which sets out the operational priorities. The Home Secretary will hire and fire the DG without reference to any other body and determine what operational powers the director-general would have.
Baroness Smith of Basildon
My Lords, when the Minister stood up, he said that he hoped not to disappoint the House with his comments, but I fear that he has indeed done so. It is interesting that not one Member of your Lordships’ House has spoken in support of the Government’s model for what it calls governance of the National Crime Agency. There may not be universal support for the amendment that I have put forward, but the issues raised by the noble Lords, Lord Harris, Lord Blair and Lord Condon, have illustrated their concerns about the governance model that the Government are putting forward.
I believe that the noble Baroness, Lady Hamwee, sought to help the Government by approaching it in a less comprehensive manner than appears in amendments proposed by myself and the noble Lords, Lord Rosser and Lord Blair, but even that seems to have been rejected by the Minister. I fear that a distinction has not been drawn that should be drawn between management and governance. Many of the Minister’s comments made sense in terms of the management of the National Crime Agency. However, the amendments that I put forward deal with governance. There is no attempt to say that the director-general should not, in his words, be in control of the agency, but there should be a governance board. The management board about which he speaks is chaired by the director-general, and, as I said in my comments, it does not do the job.
The Minister said that he was wedded to this model, but I hope that he will reflect on the comments made in your Lordships’ House today. The House is certainly not wedded to this model, although it does not have a universal view about a better model other than that there should be different governance arrangements that involve some kind of board. I hope that he will take the matter away and reflect on it. I do not intend to press my amendment to a vote today, but I hope that the Minister will reflect on the comments that have been made across the board in your Lordships’ House.
Baroness Hamwee
My Lords, my heart sank when I saw the enormous number of government amendments to the Bill. It lifted quite a lot when I realised that the first amendment, on secondment, and the next, on compensation for specials, were in response to points that I made at the previous stage. Then to bookend it, as it were, was the amendment to the Equality Act to which the noble Earl has just referred. I am grateful to the Government for taking those points on board.
I have two amendments to the government amendments, both of which are quite small points. They both refer to Amendment 56. The first would take out proposed new sub-paragraph (7), which provides for determination by the Secretary of State as to the two circumstances set out. I hope that the Minister is aware that my question is on whether the determination should be a matter for the court or the employment tribunal, which is likely to be the relevant tribunal. It occurs to me that the Home Secretary could be a party to the proceedings in question and it seems to deserve a little explanation as to it always being proper for the Secretary of State to determine these questions.
The second amendment is to the provision in proposed new sub-paragraph (12)(b) that deals with,
“the reference to the assumption of a third party function”,
which is limited to the three functions listed. I should be grateful if the Minister can confirm that these are the only cases. My reason for asking is that proposed new sub-paragraph (12)(a) uses the term “includes” and (12)(b) uses the term “is”. Is there no assumption of a function unless there is also a transfer of staff? That is what I read into this, but I may well be wrong.
Baroness Smith of Basildon
My Lords, I confess that when I see a list of almost 50 government amendments that the Minister describes as technical and drafting, I realise that I am becoming quite cynical as I get older. By and large they are technical and drafting amendments, but I have some questions, some of which the noble Earl has sought to address in his comments. However, if I may, I will press him on a couple of points for an explanation.
On government Amendments 10 to 12, compensation of NCA specials is addressed. The amendments take out “NCA” with regard to compensation. The Minister said that that is because they may be compensated from elsewhere. I am not quite clear where the elsewhere would be that would allow for expenses and compensation to NCA specials. Does he envisage a greater role for the private sector to pay them, for example? I do not know, but is he able to elaborate further? That was clearly not envisaged during Committee or when the Bill was first drafted. I am unclear why the Government have felt the need to change it. Who else will compensate or pay the expenses of NCA specials?
I also thank the Government for dealing with the comment made by my noble friend Lord Rosser about clarifying the position on which Secretary of State would apply regarding transport. That was helpful. As regards the transitional provision, I am sorry that this was not in a separate group of amendments because that might have been helpful to your Lordships’ House. We discussed this in some detail during earlier stages of the Bill and I have asked Parliamentary Questions about the transitional costs and how the transition should be arranged. The concept of the transition from the predecessor organisations to the NCA is extremely important.
Baroness Smith of Basildon
My Lords, this is one of the most important and significant amendments that we are putting forward because it addresses one of the most serious clauses in the Bill. In Committee the noble Lord, Lord Alderdice, raised specific concerns relating to Northern Ireland about this clause. The noble Lord was concerned whether the Northern Ireland Executive would agree a legislative consent Motion. I raised similar concerns and said that this matter would have to be resolved. I will not go into the specific detail of those issues today, but it would be extremely unsatisfactory to agree that the Government can take the power to transfer counter-terrorism from the Metropolitan Police to the National Crime Agency without further primary legislation to consider the serious and complex issues affecting Northern Ireland.
When we discussed this in Committee, the response from the then Minister, the noble Lord, Lord Henley, was not encouraging. In fact, it gave me cause for concern—the noble Earl, Lord Attlee, seems surprised at that. The noble Lord, Lord Henley, said:
“I understand that the Justice Minister and the Justice Committee of the Assembly … have agreed in principle to take forwards a legislative consent Motion, and officials in the Department for Justice in Northern Ireland are seeking to secure the agreement of the Executive Committee before proceeding to the next stage. Any legislative consent Motion needs to be adopted by the Assembly before the Bill reaches its last amending stage. Although things have not been proceeding quite as quickly as we might wish them to have done, since we know that the Bill is designed not to proceed as quickly as sometimes Ministers wish Bills to proceed and we will not complete the Committee stage until October, there is a considerable chance that we will get to that stage before the Bill gets on to the statute book”.—[Official Report, 18/6/12; col. 1609.]
There are no guarantees of that, and saying that we think it might get there is not good enough.
As well as concerns about the complexities of Northern Ireland, there are serious constitutional concerns over why this clause should be deleted from the Bill. Clause 2 allows for modifications to the National Crime Agency specifically to allow the NCA to take on the counter- terrorism functions through the super-affirmative procedure. Clearly the Government recognise the sensitivity of the issue, and that is why they have chosen the super-affirmative procedure over the affirmative or, alarmingly, even the negative procedure, but the primary responsibility of any Government is to keep their citizens safe. Counterterrorism is a hugely significant part of ensuring citizens’ safety. It is currently undertaken by the Metropolitan Police who, over time, have built up considerable expertise and skills. If the Government wish to remove that responsibility and function from the Met, they would need to have a very strong case to do so. That case should be properly and fully examined by Parliament. There may even be a role for a Select Committee to look at the issue again. It should, at least, be a matter for primary legislation.
In Committee, the noble Lord, Lord Henley, relied on the response of the Home Affairs Select Committee to the new landscape of policing when it said that the Government “should consider” such a transfer of responsibilities after the Olympics. Consideration is one thing, because that consideration would allow the Government to make their case and would allow Parliament to exercise its judgment. However, the committee did not say that the Government should take the power to do so by way of a Henry VIII clause. In effect, we have here an enabling power for the Government for one of the most serious and crucial roles that a Government can fulfil and although it would have to be passed by super-affirmative order, that really is not the same as full parliamentary scrutiny through primary legislation. The Constitution Committee raised its concerns and described it as,
“an order-making power of the ‘Henry VIII’ type”.
Also raised in Committee was this comment from the Constitution Committee:
“The fact remains that the ordinary legislative processes of amendment and debate, and with it much of the substance of the role of the House of Lords as a revising chamber, would be circumvented. Clause 2 raises the fundamental constitutional issue of the proper relationship between parliamentary and executive lawmaking”.
The Constitution Committee looked at the issue around Clause 2 and what the test was to say if it should be undertaken by an order, albeit super-affirmative, or primary legislation. It said:
“The subject-matter of the proposed order-making powers—the allocation of functions and attendant responsibilities and accountabilities of counter-terrorism policing—is of great importance and public interest. The House will wish to consider whether the constitutionally appropriate vehicle is primary legislation”.
By ensuring that such changes could only be made by primary legislation, the Government would have the opportunity to make a clear, defined and first-rate case for the transfer of these functions. I am not convinced that they have yet done this, though that is the subject for a separate debate. The Joint Committee on Human Rights says on page 10, paragraph 15, of its recently published Legislative Scrutiny: Crime and Courts Bill:
“We are concerned about the lack of clarity that the wide order-making power introduces into the Bill. It is not clear, for example, which particular ‘counter-terrorism functions’ the clause contemplates. We do not see the necessity for including such a provision before the intended review of the current counter-terrorism policing structures in England and Wales has been carried out. In our view, the potential human rights implications of a decision to confer counter-terrorism functions on the NCA are sufficiently significant to warrant primary rather than secondary legislation, to ensure that Parliament has the fullest opportunity to scrutinise the possible implications. We recommend that clause 2 be deleted from the Bill”.
If the Government wish to have the power to move counter-terrorism to the National Crime Agency and to do so without primary legislation, they have to have strong arguments and reasons why. Your Lordships’ House is not unreasonable, it would listen to those arguments—but the National Crime Agency is in its infancy. It is a new body and the full details of how it will operate, its governance arrangements and its interrelation with other organisations have not yet been tested or even fully worked out. We do not even have the framework document, just a list of items that will go into it.
Despite my worries about funding, I have great expectations and confidence in the National Crime Agency. However, as legislators, Parliament should have the opportunity to access that before giving the power to transfer responsibilities that the Government are asking for today. There would be a question as to whether we were abdicating our responsibility if we did not take the opportunity to have full primary-legislation scrutiny of such an important and serious measure. Great care has to be taken when dealing with national security and the security of citizens, with full examination of all the facts and all the relevant issues. I do not consider that the Government have made their case sufficiently well to allow this House to give them such a wide-ranging power that they can, without full primary-legislation scrutiny but merely by super-affirmative order, transfer counterterrorism from the Metropolitan Police to the National Crime Agency, which is not yet even a fully functioning body and where there is still work to be done. That case has not yet been made. I beg to move.
Lord Taylor of Holbeach
The effect of the order-making power would be to make new arrangements for counterterrorism policing in the United Kingdom, if that was the decision that was made. I cannot state the matter more clearly. No decision has been made. I am arguing neither for nor against the change. I speak neither for the status quo nor for the future. I am seeking to provide through the Bill a mechanism by which future government decisions can be reflected after a due process of consultation with all bodies involved and after the parliamentary process.
We expect police and other partners to be fully involved in the review when the time is right. Any decisions should be evidence-based and preserve those features of the current arrangements that work well. No one is going to upset an arrangement that is fully satisfactory unless they can be certain that the alternative arrangement will be an improvement.
We all recognise that counterterrorism policing structures work effectively. It is right and proper that we do not rush decisions in relation to counterterrorism now. Equally we do not want to rule out the possibility of some change in the future. I therefore urge the noble Baroness to withdraw her amendment.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for explaining some of the reasoning behind the Government’s position. At the very beginning of his comments, he said something with which I entirely agree. If my handwriting was fast enough to catch his comments, he said, “In time it might be right to consider these national arrangements with changes to the national policing landscape”. I entirely agree with him on that point. It may well be the right thing to do, but the issue is the consideration that your Lordships’ House is able to give to those proposals. The Minister referred to a review on this issue. My understanding is that there is a Home Office review, but it seems a bit premature to make decisions at this stage to give a power to the Government to transfer the counterterrorism function from the Metropolitan Police to the new National Crime Agency without the full consideration in Parliament that a primary legislation route would allow. This is an extremely serious issue. As I said in my original comments, nothing is a more serious function of government than ensuring the safety and security of citizens.
I am not an expert on counterterrorism. I defer to the noble Lords, Lord Blair and Lord Condon, in the role that they have had. They expressed serious reservations about the transfer. They said that that is not the issue at stake today and made the case that it should be undertaken only after full scrutiny. The noble Lord, Lord Condon, said that he did not want to see a turf war between the Metropolitan Police and the National Crime Agency. The noble Lord is absolutely right in that. I do not think that there will be a turf war. My experience of those involved in counterterrorism responsibilities and security is that they want what is best. I think that they would have an enormous contribution to make if this House were discussing the issues and we had legislation before your Lordships’ House and the other place on the role of the security agencies and the role of those involved in counterterrorism in the Met. They would make presentations to your Lordships’ House and to committees—perhaps to a Select Committee—and that would be extremely valuable in considering this issue.
The noble Lord, Lord Dear, said that he felt that the NCA could, in time, be a proper receptacle for counterterrorism. It may well be, but I do not think that is the issue today. The issue is whether it is appropriate at this stage to give the Government the power to transfer counterterrorism from the Met to the National Crime Agency by a super-affirmative order. I personally think that the super-affirmative order is a clumsy legislative mechanism. Noble Lords who have read Schedule 18 might not be reassured by that. However, the route of primary legislation gives this House an opportunity to exercise its responsibilities in this regard.
To give the Government the power to transfer counterterrorism from the Metropolitan Police to the new National Crime Agency without full parliamentary scrutiny would be a serious step. The Constitution Committee has voiced concerns about it. The Joint Committee on Human Rights has said that this clause should be deleted from the Bill. The role of Parliament is properly to scrutinise legislation and properly scrutinise such serious matters. This clause will severely restrict the right of Parliament to scrutinise such a transfer of some of the most important responsibilities that the state holds. The Minister has sought to reassure us on this issue, but he has not been able to do so. I beg leave to test the will of the House.
Baroness Hamwee
My Lords, Amendment 18 brings us to the issue of the framework document in Schedule 2. I am afraid that I am still having difficulty in following paragraph 4 of that schedule. Paragraph 4(1) tells us that the Secretary of State must consult the director-general in preparing a framework document and obtain his consent before issuing it. Paragraph 4(2) then states that the director-general’s duty to have regard to the annual plan does not apply in relation to the two functions I have just spelled out. My amendment refers to the functions of responding to the consultation and giving consent, the ones in question, and I ask the Minister whether it spells out what is provided—I am sure that he will tell me that it is not necessary—or whether the paragraph means something else. Perhaps the Minister will say also whether the annual plan or the framework document takes precedence in this context. I beg to move.
Baroness Smith of Basildon
My Lords, I shall speak to Amendments 19 and 20. I did not wish to raise this issue again—I apologise to the Minister for doing so—but I had hoped that the Government would have come forward with something a little more substantial than they have done to date. I am slightly confused and disappointed that not all noble Lords had been able to get access to the outline framework document earlier in the debate. I know the Minister intended that they should have access and it was disappointing that the document was not available.
Schedule 2 to the Bill stresses the importance of the framework document and outlines what it does and how it does it. The framework document explains almost everything about the National Crime Agency. It is a far-reaching document, is hugely significant and includes provisions for NCA finance and governance. The goalposts have been moved on more than one occasion since we first discussed this issue. We understood originally that we would have the document by this stage, but then it became only the outline. We are now at Report and all we have is the outline, which is inadequate for scrutiny. The fact that we have so little information about it may have had an impact on the previous decision in this House not to include counterterrorism within the National Crime Agency.
I looked through the document to see how much of an outline it really is. I have already referred to the issues around the NCA management board. The outline framework document basically lists what provisions will be in the framework document, including: that the director-general will establish and chair a management board; a description of the board; the composition of the board; and that further committees may be established by the board which must include audit and risk and nominations and governance. As for working in partnership, the document contains only a bullet point about the NCA’s use of immigration or customs facilities. As for scrutiny, transparency and information, there are three bullet points: the first is on scrutiny; the second on the duty to publish information in accordance with publication arrangements, which will be set out in an annexe and which we also have not seen; and the third is on public information handling and complaints.
“( ) Before giving such a direction, the Department of Justice must consult—
(a) the Northern Ireland Policing Board; and(b) any other persons the Department considers it appropriate to consult.”
Baroness Smith of Basildon
My Lords, in Committee I raised concerns, with other noble Lords, about the application of this legislation to Northern Ireland, with specific reference to counterterrorism. Your Lordships have now voted to remove that particular clause to the Bill and so those issues around counterterrorism no longer arise. However, there are other issues and I discussed this matter with my honourable friend Vernon Coaker, the Shadow Secretary of State for Northern Ireland, in the other place. He was equally perplexed by this particular clause. It would be helpful if the Minister could offer some guidance.
In Schedule 3 to the Bill, paragraph 11 is about directed assistance by the National Crime Agency to Northern Ireland; paragraph 12 is about directed assistance to the NCA from Northern Ireland. I am unclear why the qualifications for direction differ between the two. If assistance is to be given to Northern Ireland, the direction can be given only if,
“it appears to the Department of Justice that it is appropriate for the Police Service to receive directed assistance from the Director General”,
And,
“if the Secretary of State consents”.
I assume that that is the Secretary of State from the Home Office agreeing to directed assistance going in. Perhaps the Minister can answer when he responds. However, for directed assistance to the National Crime Agency from Northern Ireland, there is a consultation process: it would consult the Department of Justice, which consults the Northern Ireland Policing Board and,
“any other persons the Department considers it appropriate to consult”.
However, if Northern Ireland is to receive such directed assistance, there is no consultation with the Policing Board or any other persons. It would be helpful to understand why the Minister thinks it is appropriate to have these different arrangements for each in place.
I beg to move.
Lord Taylor of Holbeach
I thank the noble Baroness for raising these issues. Of course, it is important that we consider the impact of this legislation on Northern Ireland, which the noble Baroness and I have discussed.
It is critical that the National Crime Agency has a UK-wide presence, reflecting the reach and threat of organised crime. In providing a UK-wide presence it is equally important that the arrangements for the National Crime Agency respect the devolution of policing and justice in Scotland and Northern Ireland. As the activities of the National Crime Agency touch on a mix of transferred, reserved and excepted matters in Northern Ireland, the provisions require the consent of the Northern Ireland Assembly, in so far as they cover transferred matters.
As the House is aware, securing legislative consent is a devolved process. The Home Office and the Northern Ireland Office are supporting the Department of Justice in Northern Ireland to take forward these discussions. I am pleased to say that David Ford and his department are engaged in constructive discussions with the parties in Northern Ireland with a view to securing a collective discussion in the Northern Ireland Executive Committee and thereafter in the Assembly.
I recognise that progress has not been as quick as we might have liked. I also know that the interests of the noble Baroness, Lady Smith—like those of the Government—are firmly focused on ensuring that the National Crime Agency will have a UK-wide presence but that the arrangements work for Northern Ireland. I share the House’s disappointment with the slow progress, but it is critically important that the Northern Ireland Executive and the Assembly are reassured that, through proper scrutiny, the proposals will work in Northern Ireland.
I also appreciate that the Bill is nearing the completion of its passage through the House and that there is some concern that the House is being asked to endorse the NCA provisions before the Northern Ireland Assembly has had an opportunity to debate the legislative consent Motion. However, we have until the last amending stage—Report—in the other place to secure legislative consent. Should amendments be made in the other place, this House will of course have an opportunity to consider them in the spring.
I know that the House might have liked more details of how the negotiations are going, but I hope that noble Lords will understand that we should give David Ford the necessary space to continue his discussions. I am sure that he will wish to take note of what the noble Baroness has said in this debate. I can undertake to update her on progress in due course, but for now I ask her to withdraw her amendment.
I will turn briefly to the amendment at hand, which concerns paragraph 11 of Schedule 3 and seeks to provide additional consultation requirements to the Department of Justice in Northern Ireland before directing the director-general of the National Crime Agency to provide assistance to the Police Service of Northern Ireland, subject to the consent of the Home Secretary. This is not unlike the additional consultation arrangements provided for under paragraph 12, whereby the Department of Justice in Northern Ireland must consult the Northern Ireland Policing Board and others before issuing a direction to the Police Service of Northern Ireland to assist the National Crime Agency. This is an important protection to the backstop arrangements for directed assistance from a devolved body—in this case, the Police Service of Northern Ireland—to the National Crime Agency.
Among its other responsibilities, the Northern Ireland Policing Board sets the Policing Plan for the Police Service of Northern Ireland and as such has an interest in how devolved policing resources are being deployed, particularly if diverting resources meant that the objectives of the Policing Plan would not be achieved. It is with a view to that relationship and the interests of the Policing Board that additional consultation has been provided where the direction impacts on the provision of assistance by a devolved body. However, this will not be the case when assistance is provided by the National Crime Agency to the benefit of the Police Service of Northern Ireland.
I am sure that this amendment is seeking to provide an additional safeguard to Northern Ireland, but these further consultation requirements will only add further bureaucracy and delay to the National Crime Agency providing assistance to the Police Service of Northern Ireland in the unusual event that a direction is used. Furthermore, as I have indicated, discussions on the arrangements for the National Crime Agency are ongoing in Northern Ireland and it will be for the Northern Ireland Executive and Assembly to consider whether the arrangements are appropriate and what changes may be needed, if any. Only at that point will it be right for the Government to consider if changes are needed to the Bill—rather than for Westminster to decide what is in the best interests of Northern Ireland.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for talking about the wider context as well as the specific amendments. Although some of the contentious issues will have been removed with the deletion of Clause 2, he is quite right that some will remain and a legislative consent Motion will still be required.
I am grateful for the Minister’s offer to start to update me on the progress of negotiations. He will be aware that I have been asking for such information and my noble friend Lord Rosser tabled a parliamentary Question regarding the implications of this Bill for Northern Ireland. There has not been much information from the Government, which is frustrating because this matter has to be resolved.
I am not clear what the implications are for the Bill as a whole if a legislative consent Motion cannot be obtained. Perhaps the noble Lord could look into this and give us some advice on that. I am happy for him to write to me on that point. This underscores how important it is to reach this agreement with David Ford, the Minister of Justice, and with the Northern Ireland Executive as a whole.
I am grateful for the Minister’s explanation of why he is resisting my amendment—I am used to his explanations of why he is resisting my amendments. He will be pleased to hear that I do not intend to press this matter to a vote, but I would like to read his comments in Hansard and share them with my honourable friend Vernon Coaker in the other place. I beg leave to withdraw the amendment.
Baroness Smith of Basildon
My Lords, I raised this issue in Committee with the then Minister, the noble Lord, Lord Henley. The debate got into a pickle and he was not able to answer all my questions. He kindly wrote to me, which was helpful up to a point but did not allay my concerns over this particular clause. My Amendment 31B seeks to delete paragraph 5 of Schedule 5, which is about the advisory panel. I admit that even after the debate in Committee and the letter from the noble Lord, Lord Henley, I remain really puzzled by the purpose of both that paragraph and the clause.
The Bill before us allows for an advisory committee to be set up to advise the Secretary of State once the director-general has been appointed as to the operational responsibilities that the director-general should have. I fully understand that not all candidates and not necessarily every director-general who will be appointed for however long it is will have all the skills and expertise in the wide-ranging areas of responsibility that the National Crime Agency will have. But the advisory panel, if it is the panel of experts that I am told it will be, is not to be set up prior to interview and so will not be able to ascertain with the Secretary of State what additional support a potential director-general would need. Instead, the Secretary of State can appoint an advisory committee after somebody has been appointed—although she or he does not have to set up such a panel—to give advice on the operational responsibilities.
When the then Minister responded previously, he said that the Secretary of State for the Home Office,
“will make an assessment of the director-general’s suitability and capability to exercise the operational powers in any given case. It might be that the advisory panel, through its chair, could then assess whether the director-general was adequately trained to exercise those operational powers”.—[Official Report, 20/6/12; col. 1824.]
So the Secretary of State, presumably prior to appointment, decides that the director-general is capable and suitable to have these operational powers. Then, having made a decision, she—one day we might have a he again—may ask an advisory panel to advise on what training is required. That is where this starts to break down. If this role is so important as to give the Secretary of State that advice, why is it an ad hoc body?
The reason given in the letter to me from the noble Lord, Lord Henley, was basically, as I have pointed out, about what a wide-ranging group of responsibilities there are and that it would be unusual and unlikely to find somebody who had the capacity and ability in all the areas they would need to have. But before the agency is set up, the Secretary of State has appointed a director: Keith Bristow. Clearly she is entirely confident that he has all these capabilities—although we are not clear what some of those capabilities could be because we have not yet seen a framework document—because she has not set up an advisory panel.
I can understand why it would be helpful prior to interview for the Home Secretary to have a committee of experts which would decide the operational powers required. I would have thought that those should be given in the job description for a director-general. The committee would say, “This particular candidate does not have this or that, but there is training”, and then look at what support was required so that the candidate chosen would have all of it. That is not what is here today.
I then find it strange that the Secretary of State can do away with the committee anyway and not have it there. If it is needed, it should be there permanently; if it is not needed, it should not be there at all. This is confusing and has not really been very well thought out. As I said, the previous response from the Minister did not give me the answer I sought. I am not likely to press this to a Division but I need to understand why the Government think this is an appropriate way forward; what skills they would expect the panel to have; and why, if it is so important that the Secretary of State has that advice, she can choose, basically on a whim, not to have it.
Lord Taylor of Holbeach
I shared with the noble Baroness an initial uncertainty over what this is about but it is to ensure that an appointee to the post of director-general has the proper skill base to exercise the operational functions that go with that job. We have an exceptional appointment in Keith Bristow because he has exercised the office of chief constable. There is no anxiety in that respect. Of course, any future appointment—we hope these will not be made that frequently—will need to have a process to make sure that we get the right person and then to ensure that there is a methodology in terms of operational authority, skills and competence.
I am very happy to make a second attempt at writing to the noble Baroness on this because I understand the complication and the somewhat complicated process of an ad hoc advisory committee to deal with these matters within the regulation. I am assured that it is the most effective way to ensure that no shortcuts are taken in this process and that we end up with a director-general of the NCA who has these powers. Having given an ad lib answer, I will, if noble Lords will allow me, go through what I have written here, too, because it is useful to reiterate the background.
First, the Bill is explicit on the powers that can be designated, those being police, customs and immigration powers. Secondly, the director-general will be subject to the same tests of suitability, capability and training as other NCA officers. That is an important part of consistency and a critical point of assurance given the range of powers we are talking about. There is a broad range of powers. Thirdly, through the advisory panel the Bill provides independent assurance on the training to the Home Secretary before a designation can be made. Fourthly, any setting aside of the part played by an advisory committee is subject to regulations that have to be made under an affirmative procedure. This regulation-making power does not undermine the arrangements for the advisory panel; rather, the two provisions will work together.
Police, customs and immigration powers provide an extensive suite of operational powers. It is right that the DG, as an NCA officer, has to go through the same checks of adequate training as other NCA officers—as well as suitability and capability on appointment—to be designated with those operational powers. That is what the advisory panel is for: to provide an independent check on the adequacy of the training so that the Home Secretary can designate the director-general with operational powers. The regulation-making power is necessary for circumstances where a prospective director-general has already undertaken the training necessary to enable him or her to exercise particular operational powers. In those circumstances it is sensible that the advisory panel is not required to consider whether the prospective appointee has the necessary training. Keith Bristow is a case in point. As a police officer he has been extensively trained in police powers throughout his career and is a highly experienced investigator. There can be little question that he has the necessary training to exercise the powers of a constable.
Baroness Smith of Basildon
My Lords, I am grateful to the noble Lord and also very grateful that he has offered to write to me again. On some parts he has satisfied me. He said that part of the role of an ad hoc advisory panel would be to be an independent check on the adequacy of training if a new director-general had been deemed—presumably by the Secretary of State—to need training in areas where they did not already have operational capabilities. However, he then said—I will read Hansard to check what it says—that this can be designated without reference to the advisory panel. If the advisory panel is supposed to be a check on the adequacy of training, I am not sure how the operational powers could be designated without reference to it. I will look at what he says and perhaps he could include that in this letter to me.
My point of concern regarded protection for the Secretary of State and a potential director-general. The Secretary of State appoints a director-general without reference to a board. If there is a board advising on operational capabilities and any training needs, it would be helpful to a Secretary of State to have that information prior to appointment. The last thing anybody wants to see is a director-general whose capabilities are questioned by the wider police family or by those working in the criminal justice system. If an advisory panel could assess the director-general’s operational capability and any training needs it would provide protection for both the Secretary of State and the director-general. It would be helpful if, perhaps in the letter, he could explain why it is after appointment by an individual Secretary of State, not before, that such advice and information was given. The Minister has been very helpful on this point and I am happy to withdraw my amendment.
Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012
Baroness Smith of Basildon Excerpts(11 years, 5 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Walmsley
My Lords, I thank my noble friend the Minister for explaining this statutory instrument. I have no reason to object to the streamlining of these organisations. It makes sense to bring together the collection and dissemination of criminal records information and barring decisions and to maintain those lists. However, I turned to the Explanatory Memorandum to have a look at what it says about consultation and I noted that it says that the changes are consequential on the Government’s remodelling review, on which there was consultation. Many of us who were part of that consultation were most grateful to my noble friend the Minister’s predecessor, the noble Lord, Lord Henley, at the Home Office, who was kind enough to spend quite a lot of his time consulting us. The problems identified by those who were concerned about the original legislation have been recently compounded. Employers in the further education colleges sector and the amateur sports organisations sector were particularly concerned about the reduction in the number of people who were going to be subjected to revelations about their background.
Perhaps I could summarise my remarks by asking my noble friend the Minister to tell the Committee how he feels that these new arrangements will help to prevent recent situations such as the Jimmy Savile situation and the terrible stories that came out of the Bryn Estyn school in North Wales some years ago. Those situations related to people who had never committed a crime and therefore they did not have a criminal record. So I would like to know how this streamlined arrangement will help to protect children in those circumstances.
Baroness Smith of Basildon
My Lords, I thank the Minister for his explanation and the information he gave in speaking to this order. I appreciate that orders of this kind often necessitate a long list of amendments. There is always the hope that the Explanatory Notes will make them clearer ... but they rarely do. I liked the comment in the Explanatory Note on page 20:
“Chapter 2 makes amendments to the principal enactments which are consequential on this transfer of functions and Chapter 3 makes amendments to other enactments which are consequential on this transfer of functions. Chapter 4 makes supplemental provision”.
It then goes on. It is quite a minefield for anyone to negotiate exactly what the order does. I know that the Government say in the Explanatory Notes that a consolidation order is not necessary but I wonder whether there should be a rethink on that. Just on page 2 of the order, there are six different pieces of legislation; there are also a number of orders and other secondary legislation—rules, procedures and regulation—referred to, which all concern amendments.
Those who need to consult this legislation should be able to do so as easily as possible and with the utmost clarity. Many people have a professional responsibility to enact this legislation and, presumably, need to be aware of it all and any other changes made to it since 1997. I wonder how much legislation somebody will have to have to hand to work their way through the minefield of amendments in this order and in other provisions. I do not know whether the legislation referred to on page 2 has previously been amended. If so, it seems quite a complex task for anyone and I am interested in the guidance that is being issued to professionals alongside this order. When and how will that be made available and can it be made available to those attending today’s Committee? It is crucial, particularly given the change of name and the merger of the two organisations, that there is some professional and public understanding and awareness of all the different changes being made. It would be helpful if the Minister could say something about publicity or any other measures being taken to alert the public and professionals to the changes being made.
The Minister explained the broad outline of the order, which is basically that the Disclosure and Barring Service—not a particularly catchy name; I hope people understand what that is going to mean—will take over the powers that were previously the responsibility of the Secretary of State under Part 5 of the Police Act 1997, the Safeguarding Vulnerable Groups Act 2006 and the safeguarding vulnerable groups order of 2007. It was helpful that the Minister gave some description of the functions that will transfer, and those that will not, because there is concern that functions are being transferred from the Secretary of State to the newly merged organisation—the DBS. As originally intended in the legislation, such responsibilities are those of the Secretary of State, with the holder of that office being accountable to Parliament. Given the number of issues that have been raised about failures in the system to fully protect vulnerable children and vulnerable adults, it is clearly advisable that parliamentarians should not lose an opportunity to ask questions or seek Statements from the Secretary of State or a government Minister on these issues, if they so wished.
I have a question about accountability issues. Will that accountability and scrutiny role still be available to parliamentarians? In particular, if Members of either House are asking parliamentary questions of Ministers, will they in future merely be referred to the head of the DBS and not be answered by Ministers? Clearly, the original intention of Parliament was that there should be a direct responsibility to Parliament for those functions. The issue is whether it is appropriate for those powers to be handed to a new, separate body, unaccountable in parliamentary terms, through secondary legislation. That is my point about questions and Statements. Can the Minister also say anything about the scrutiny arrangements that will be put in place to oversee the performance of those functions?
The SI lays out the legislative steps required to merge the two bodies. The Minister spoke to that but can he update us on the practical steps being taken? He said something about it, but the DBS will inherit powers from the ISA and it would be helpful to know what practical, step-by-step arrangements are taking place. It was helpful that the Minister referred to both sites. Will the two sites operate as they do now or will there be a movement and integration of staff and functions across them? Is the new management structure now in place? He referred to the chief executive and chair, but does that go further down the organisation? How much progress has been made on the new IT system? We all know that there are always issues with new IT systems. Is it possible to update the Committee at this stage on the costs related to it and when it is expected to be fully operational?
Lord Taylor of Holbeach
The noble Baroness has been true to form in providing the Minister with lots of questions—quite rightly—to challenge his knowledge of the subject. I have taken quite an interest in this particular area, because, as Minister for Criminal Information, my Home Office responsibilities include the current CRB and ISA and will include the DBS. So I hope that I can reassure the noble Baroness.
Baroness Smith of Basildon
Perhaps I could correct something that the Minister said—that I am asking questions to challenge his knowledge of the subject. That is really not why I am asking them; I never doubt his knowledge of the subject. It is just because there are issues, when I am reading through an order like this, which occur to me and to which I would like answers. There is nothing more sinister to it than that.
Lord Taylor of Holbeach
I do not attribute any base motive to the noble Baroness. However, it sets me on key, because these are legitimate questions, as she rightly points out, to which everyone has the right to know the answer. It has been helpful to be able to explain the main purpose of the transfer of functions order, to put it in the context of the change of management that will flow from it. As we are making a substantial change, in the sense that the two bodies are being merged into one, it is important that I have the opportunity to explain it to the Committee. We are trying to bring about reform. We have tried to avoid unnecessary bureaucracy to encourage volunteering and employers and other organisations rightly to share responsibility for the adequate safeguarding of children and other vulnerable groups.
We need to move away from a tick-box mentality. Employers think that a criminal records inquiry is all that they need to check on the desirability of employing someone. That leads in quite well to the comments made by my noble friend Lady Walmsley, who has been assiduous in dealing with these matters. I am pleased that she paid tribute to the engagement of my predecessor, the noble Lord, Lord Henley, in this issue. This change is not designed, of course, to weaken checks. The noble Baroness mentioned this in the context of various current investigations and, in truth, these matters should have been promptly reported to the police. She also mentioned the absence of criminal records of particular individuals. This shows that effective management and supervision of volunteers and professionals within the group is key: the checks go only so far. Effective management and supervision of all volunteers is one of the reasons why we can have an updating service and a capacity for people to volunteer more easily. However, the people who are responsible for managing volunteers have an enhanced responsibility to make sure that they perform their tasks in a proper way and do not exploit them for more sinister purposes.
The noble Baroness, Lady Smith of Basildon, asked about guidance. She made a little fun of the complexity of the order. It is complex—it is the kind of document that drives me mad—and, as I am a simple country chap, I find this stuff largely beyond me. However, the law needs to be regularised and this statutory instrument is there to regularise the legal framework. The key is how the public see these matters. They do not see them through a statutory instrument but through what we tell them about the service. Promoting the CRB update service will be important as a part of this.
We have highlighted these changes through road shows and both organisations have been communicating regularly with stakeholders about the changes. So people who regularly use the facilities have been kept in the picture. I have been impressed by the way in which both organisations see themselves as supporting the employers and managers of the people who are part of the information service they provide.
It is important to mention—I alluded to this earlier—the role of the Home Secretary in connection with a non-departmental government organisation. The Home Office will continue to answer questions about the new body and its accountability from Members of Parliament in another place and Members of this House. We will monitor the progress of this merger and I hope, in a year’s time or so when the system has settled down, we might be able to persuade the usual channels to hold a debate on how the service is functioning. I hope I have been able to reassure noble Lords on that.
As for staff moving from Liverpool and Darlington, obviously this would be a cause for concern but it is not part of the current plan. The chief executive-designate and the chair-designate have confirmed that they do not anticipate doing anything about changing the two site locations in the first two years. This position has been shared with staff and the TUC. They will continue to seek some flexibility from staff over travelling between the two work locations to attend meetings so that they can establish an effective organisation, but that is going on already and people have been working well together. I have gathered that there is a sense of ambition about the new service from both the CRB and the ISA.
Will there be efficiency savings? There will be some efficiency savings but, more to the point, it provides a single focus for a complementary service that will be found within the CRB and the ISA. We are not looking to make any particular changes to the structures other than those that have already been consulted on. As the noble Baroness would expect, TUPE provisions will apply in these circumstances but there are no redundancies, so it has been a matter just of consultation and having regular briefings on how the future organisation might work to provide an integrated service.
The noble Baroness asked about numbers and whether there had been an increase in referrals to the ISA. I was not aware of that. Although I was shown some figures, I did not bring them with me today. I know that there was a slight rise in CRB figures over the summer but it was a modest percentage, which may have been because of the increased activity around the Olympics. I know we have figures from CRB up to September. If I may, I will write to the noble Baroness and give her the full set of figures on that.
Meanwhile, I hope noble Lords are content to commend the order to the House by approving this draft order.
Statement of Changes in Immigration Rules (Cm 8423)
Baroness Smith of Basildon Excerpts(11 years, 5 months ago)
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Baroness Smith of Basildon
That the Grand Committee takes note of the Statement of Changes in Immigration Rules (Cm 8423). 9th Report from the Secondary Legislation Scrutiny Committee
Baroness Smith of Basildon
My Lords, I have put forward this Motion to take note of the statement of changes in the Immigration Rules to make sure that the Government give your Lordships’ House an opportunity to debate a very serious matter. You just have to look at the Explanatory Memorandum to see the range of criteria covered by these changes to the Immigration Rules. The changes were brought in by negative resolution, so this is the first opportunity that your Lordships’ House has had to discuss the matter, despite the legal judgment that led to these changes being given on 18 July this year and the fact that the rules have already come into effect. It would have been helpful to your Lordships’ House had there been an opportunity for an earlier debate and an explanation of why the matter had to be dealt with in this way. I do not intend to go into the individual areas of guidance but I have a number of questions for the Minister. It would be helpful, first, to hear about the circumstances that led to the statement of changes being laid.
I think it is appropriate to say how grateful we should be to the Secondary Legislation Scrutiny Committee, whose work on this matter has been extremely helpful. Perhaps the summary at the beginning of its report is the best place to start. To give some background, on 18 July the Government lost a major immigration case in the Supreme Court. In the case involving Alvi v Secretary of State for the Home Department, the Supreme Court maintained that substantive changes affecting immigration applications must be laid before Parliament. Mr Alvi had been refused leave to remain under tier 2 of the points-based system because his level of skills and salary did not meet the criteria. However, the Supreme Court quashed that ruling as the criterion used to make the decision was not part of the rules as laid before Parliament under Section 3(2) of the Immigration Act 1971 but had been published only in the guidance, which had not been subject to parliamentary scrutiny procedure and, therefore, approval.
The last compete revision of the Immigration Rules was laid before Parliament in 2008, but since then considerable guidance from the previous Government and this Government have been added. The question raised by this and previous cases was whether this was really guidance or a substantive change in the rules.
As we can see from this weighty document, Cm 8423, there are 290 pages of what had been issued as guidance but on 19 July, the day following the Supreme Court judgment, the Government laid the document before Parliament to take immediate effect on 20 July, even though the House of Commons was not then sitting— of course, your Lordships’ House was and a Written Statement was made by the Minister at that time. Does the ruling of 18 July 2012 mean that all immigration cases decided on the basis of guidance issued since 2008 have been decided on without a legal basis for that decision?
Paragraph 4.3 of the Explanatory Memorandum states that the changes apply to all applications on and after 20 July, when the statement to change the rules was laid, but what about the decisions taken before? What is the status of the decisions taken before Cm 8423 was laid? Have there been any further appeals against refusal since 18 July on the basis of the court’s judgment? It would be helpful if the Minister could say whether all the guidance issued is included in the statement. If it is, I am not 100% clear why all the guidance is imported into the rules—the Secondary Legislation Scrutiny Committee referred to that as well. Was any work undertaken to see what should legitimately remain in guidance or whether it should all be imported into the rules?
It strikes me that within the rules—that is, what was in guidance—are lists and lists over pages and pages referring to banking organisations where the financial information will be accepted by the Government. That was previously in guidance but is now in the rules, so does that mean that any deletions or additions to the list can be made only by rules and in future not be changed in the guidance? Because of the volume of the material, the Secondary Legislation Scrutiny Committee was unable to verify the Government’s statement that the new statement of changes includes all and only that previously issued in the guidance. It would be helpful if the Minister could confirm that there is nothing in the rules other than what was previously in guidance.
The basis of the Supreme Court decision was that the guidance was not subject to any parliamentary procedure. Now that the Government have brought in this statement of changes by negative resolution, are they satisfied that they have done enough to ensure that this has the full force of law? One of my concerns relates to the negative procedure, which I shall mention again in a moment. If we had not requested this debate today, there would have been no debate in your Lordships’ House on this issue. We will not be asking for a vote on this, as the Minister is aware.
As the Secondary Legislation Scrutiny Committee said, the statement of changes provides a short-term solution, but I know that from previous debates the Minister is aware of concerns that have been raised about the interaction between the Immigration Rules and the ECHR. The committee also raised further concerns about this on that occasion, as it had done previously. Is the Minister able to make any comment about that? I noted that paragraph 6 of the Explanatory Memorandum states that no statement is needed on the ECHR as the order is subject to the negative resolution procedure. However, unless I have misunderstood, that is not the view taken by the Secondary Legislation Scrutiny Committee.
We all understand that from time to time Governments have to bring forward emergency legislation or react immediately to events such as court judgments. Can the Minister confirm that that was the Government’s reason for laying the statement of changes by negative resolution on the day following the judgment in the case of Mr Alvi? If it was, I am then unclear about why the Government waited until then, because they had been aware of this problem for two years. It was pointed out to the Government by the then Merits of Statutory Instruments Committee, following a previous statement of changes—HC96—in 2010 that was also laid urgently following two other court judgments.
Having read through the judgments, it seems that in 2010 the situation could not have been clearer. In July 2010, the challenge made in the case taken by an education charity, English UK, was that the decisions were taken ultra vires. It said it was challenging the change made to the Immigration Rules because it,
“ought to have been introduced by a change to the Immigration Rules and was not capable of being introduced by a change in the UKBA’s Guidance”.
In his judgment on that case, Mr Justice Foskett said that,
“the revised criterion could not be put in place by virtue of a process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive criterion for eligibility for admission or leave to remain must be the subject of a process that involves a true Parliamentary scrutiny”.
He made other comments on that in his judgment, such as that:
“It would follow from this that, if a change to current practice (even if reflecting the requirement of a rule) did not involve any alteration of a substantive criterion for admission or for leave to remain, there would be no objection to the change being effected in some form of extrinsic guidance”.
Basically, if it is a substantive change to the rule, it cannot be in guidance but has to be via legislation. He also said:
“I do not doubt that the changed approach in the new guidance does operate to change materially the substantive criteria for entry for foreign students”,
and that that,
“cannot be achieved by a change in guidance—it must be achieved through the medium of a rule change”.
That was in July 2010.
He recognised the complexity of the issues and said that the difficulty,
“arises when something is done by means of a change in existing guidance which arguably constitutes a change in the practice adopted by the Secretary of State in the administration of the rules regulating the entry into the UK of non-nationals”.
He said that the,
“word ‘guidance’ itself would ordinarily connote something less prescriptive than a rule”.
He said that it was a very complex area. He then went on to say that, if that is correct, simply,
“extrinsic guidance cannot be used in the manner in which it was sought to be used in this case to make a material or substantive change in existing immigration policy without the negative resolution procedure set out in section 3(2) of the Immigration Act being implemented”.
There was a similar case in June 2010 in the Court of Appeal, where it was said that,
“immigration rules are today different from and more than policy”.
The Government also lost that case a month earlier.
I know that I have already asked the noble Lord a couple of questions but I struggle to understand this and perhaps he can help. Why did the Government not act earlier when the judgment in those two cases seems very clear? In both cases, the judge said that guidance was different from rules and substantive change could not be made by guidance. Were there any further challenges between those two dates, from June and July 2010 through to July 2012? Clearly, changes were not made in 2010 that should have been made. By bringing this order forward now, the Government recognise that perhaps changes should have been earlier. It would be helpful if the Minister could tell the Committee what changes there will be in practice from now on to ensure that the Government do not find themselves in this position again.
The other point concerns scrutiny. In his final comments, Mr Justice Foskett referred to the negative resolution procedure, but earlier in his judgment he said that there had to be true parliamentary scrutiny. It would be helpful to the Committee to be given an assurance that the negative procedure now being adopted satisfies the courts and the parliamentary process that this matter has been subject to parliamentary scrutiny.
This is a complex area. The bit that I struggle with most is that the measure was introduced as an emergency process to deal with the 2010 judgments. Anything that the noble Lord can say to enlighten me on that position will be very helpful.
Lord Avebury
My Lords, a month ago we debated the first of the post-Alvi statements of changes in Immigration Rules, on a Motion to Regret tabled by the noble Baroness, Lady Smith, not so much because she disagreed with the Government’s objectives but on the narrow ground that the minimum annual income requirement for a person wanting to bring in a spouse from a non-EEA country was not the most effective way of protecting the taxpayer and delivering fairness for the would-be sponsors and their partners. We wanted to highlight the far more questionable government objective of reducing the number of net immigrants below 100,000 by fair means or foul, picking on easy targets wherever they can find them.
As the noble Baroness has explained, the purpose of this statement, which is 295 pages long, including its Explanatory Memorandum, is to transfer requirements that were previously embodied in guidance into the Immigration Rules, satisfying the Supreme Court judgment in the Alvi case that only rules approved by Parliament could have the force of law. It is a weighty document and I cannot help feeling that it is a good thing the Almighty did not have anything to say about the Immigration Rules or Moses would have had a hard time carrying this lot down from the summit.
The Secondary Legislation Scrutiny Committee suggests that we should ask the Government to clarify the status of cases decided on the basis of the guidance since 2008, when the last complete revision of the Immigration Rules was laid, and I will come back to that point. The committee goes on to observe that, in the light of its previous reports and a number of unresolved questions about the interaction between the rules and the European Convention, changes to the primary legislation might be necessary to put its application beyond question. I hope that we shall hear something from the Government on both those matters.
There is a further detailed point about the salary threshold for IT workers. These thresholds are now subject to parliamentary scrutiny, and we are prompted to ask the Government to set out the methodology for calculating them. The statement contains 74 pages specifying the salaries for particular occupations. How often is it intended to revise the figures, with presumably a statement requiring parliamentary approval every time? The problem with this approach is that every minute requirement that has to be satisfied by an applicant for leave to enter or remain in the UK now has to be set out in the rules without any element of discretion whatever being provided to the decision-makers. If a rule leads to an outcome that is unreasonable, it can be rectified only by a further statement of changes, and if there is a minor error in the documentation that has to be submitted in connection with an application, the decision-maker has no option but to reject it. The applicant has to submit a fresh application with all the delay and expense that that involves.
I give an example of the rigidity of the system. Mr AD is self-employed, and in connection with an application to bring his partner in from a non-EEA country he has to prove that his earnings exceed £18,600. For every other purpose “certified” accounts are acceptable, but on page 280 of this statement, the rules demand a full audit, at an additional cost which may exceed £1,000. In response to a letter from Mr AD’s MP, Stephen Lloyd, the Minister for Immigration, Mark Harper MP, says that the Home Office is currently considering whether it needs to insist on audited accounts—a requirement that must have already imposed an unnecessary burden on dozens of sponsors. That is clearly inconsistent with the Government’s declared policy of reducing the load of bureaucracy on small businesses and I would like the Minister to say this afternoon that it will be removed, presumably by a further statement of changes in the rules.
Baroness Smith of Basildon
I am grateful to the noble Lord. He has attempted to answer a number of the questions that have been raised. I am not a lawyer but I struggle when two judgments from the Court of Appeal say there is a problem with guidance and something not being in the rules, and then no action is taken so there is a further Supreme Court judgment. Common sense must tell us that we should be prepared for this or at least take action to ensure that in future we are careful what goes into guidance and what goes into rules. Perhaps the noble Lord could write to me. I do not want to press the point today but I asked if there were any cases between 2010 and 2012 because of there having been a change from guidance to rules. If he can let me know on that, that would be helpful. He said that a review would be undertaken around this issue. That would also be helpful and anything that he can share with your Lordships’ House on that would be welcome.
One point he did not raise is the issue of parliamentary scrutiny. Perhaps the review could look at that. I asked about negative resolutions, what was said in the Court of Appeal judgment about the process of scrutiny and whether negative resolutions were acceptable because they do not—as the noble Lord, Lord Avebury, pointed out—give Parliament the opportunity to discuss the content in the same way. Of course, they are unamendable. They are brought for discussion only if a Member of your Lordships’ House decides to do so. The noble Lord did not raise that point, presumably because he is satisfied on the negative resolution order. It would be helpful if the review could look at the issue of parliamentary scrutiny of what are significant rule changes.
As our last debate showed, these rule changes have an enormous impact on people’s lives. I seem to have become the noble Baroness for immigration cases since our previous debate. Many of the e-mails and letters I have received and passed on to the Minister are heartbreaking. I do not think that the rule changes achieved the Government’s objectives. I do not know what objectives they achieve other than keeping families apart. It is very sad to read of people who can support themselves in this country being kept apart as a couple because that is the impact of the Government’s rule changes. The opportunity to debate the content at times would be one that your Lordships’ House would welcome. I beg to move that the Motion be agreed to.
Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2012
Baroness Smith of Basildon Excerpts(11 years, 6 months ago)
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Lord Patten
My Lords, I strongly support my noble friend in what he said about the proposed proscription of this organisation. Acting swiftly and early is one of the best ways of attempting to prevent terrorist activity, and I wish that we had done more of that in earlier decades. The swift action that my noble friend proposes is excellent.
I also welcomed what the Minister said when he stressed again the view that proscription is not aimed at any particular religious faith, calling or group. That is something that we have to shout from the political and ministerial rooftops, because there is always the suspicion that, as news of an action mutates and develops around the world, people will think this is anti-Islamic, anti-Catholic or whatever. I applaud what my noble friend said and I hope that government Ministers such as him will never miss the opportunity of saying that we are blind to religion but eagle-eyed in the prevention of terrorism.
Baroness Smith of Basildon
My Lords, I thank the Minister for his presentation on the SI today and for ensuring that a copy of the Home Secretary’s letter was sent to me prior to the debate. As I made clear when we had a similar order previously, of course we support the Government on issues of national security and we work on the basis of cross-party co-operation. I am grateful to him for his explanation of how decisions are reached, which is helpful for the House. I appreciate that the process of obtaining evidence on which action can be taken is often complicated. This week, and during the Committee stage of the Justice and Security Bill, we have discussed how the Intelligence and Security Committee operates. One of the things that became clear is that evidence is obtained from a number of different sources and it is often only by putting it together like a form of jigsaw that the true picture can be obtained. That is a complex matter to address. The Home Secretary has to be satisfied on the basis of the accuracy of that information in deciding what action can be taken—and taken as quickly as possible, as the noble Lord, Lord Patten, pointed out.
As the Minister said, a group can be proscribed under Section 3 of the Terrorism Act 2000 if it,
“commits or participates … prepares for terrorism … promotes or encourages terrorism, or … is otherwise concerned”.
That illustrates why it is so important that information is accurate and up to date. My understanding, which was confirmed by the Minister’s comments, is that the Government are acting today against a group that was only indentified as a separate, independent entity earlier this year, in January 2012. I also commend the Government on their speedy action, given the processes that have to be gone through to reach this stage.
Obviously the Opposition do not have access to the same information or intelligence data as the Government, but we have seen some of the publicly available information and we are satisfied that the Home Secretary is justified in her judgment that Ansaru meets the criteria required under the Act and we support the Government in the Motion to proscribe this group. We are particularly concerned about the links, which the Minister confirmed, between Ansaru and the kidnap and murders of Christopher McManus and his Italian colleague Franco Lamolinara. The treatment of these two men was barbaric and despicable. It is quite right that the UK Government take action against any group which is prepared to commit such acts of terror against UK citizens.
From reports, it would appear that Ansaru is linked to, or is a breakaway group from, the long-established Boko Haram sect. That sect is not proscribed. I appreciate and understand that the Minister cannot always provide detailed information to your Lordships’ House, but will he ensure that the status of Boko Haram is kept under review? I appreciate that, so far, the actions of this group have been mainly confined to Nigeria. I hope that the Government will not hesitate to take action to proscribe Boko Haram if links to the UK, or any credible threats to UK citizens at home or aboard, were to emerge.
Finally, as I mentioned in similar debates, when the Prime Minister, David Cameron, was in opposition he repeatedly attacked the then Labour Government for not proscribing Hizb ut-Tahrir. The Minister has been very clear on this today—that any action to proscribe a group has to be taken on the evidence available. I know how complex and difficult it can be to get all that evidence and present it in an appropriate manner. The party opposite has now been in power for two and a half years and Hizb ut-Tahrir has still not been proscribed. I am not going to make the same points as were raised against us when we were in government. I thought at the time those comments were inappropriate and irresponsible, and it would be inappropriate and irresponsible of me to make similar ones now. All I ask for is an assurance that the Government are keeping the activities of Hizb ut-Tahrir under observation and review and that should there be evidence that this group should be proscribed, that matter will be presented to your Lordships’ House.
Lord Taylor of Holbeach
I thank the noble Baroness for her positive support of this measure. She will understand totally that the Government do not talk about other groups that they may be looking at. The Government keep a range of options open and have a global view of the terrorism threat. I hope that the noble Baroness will therefore understand why I do not go into any detail about any of the groups that she has specifically mentioned. However, I think that she can see by the way that the Government are acting in this case that we are undertaking our responsibility to try and maintain the security of our nation, of our citizens overseas and others as best as we can.
We are concerned about Hizb ut-Tahrir, and we will continue to monitor its activities very closely. Such groups are not free to spread hatred and incite violence as they please. The police have in any case comprehensive powers to take action under criminal law to deal with people who incite hatred, and will do so.
I welcome the contribution of my noble friend Lord Patten, who made a very important point. This is directed against terrorism, not against faith or beliefs. It is about the way in which people dispense with their humanity in the pursuit of objectives which we cannot tolerate. I hope that noble Lords will support this measure and I commend it to the House.
Justice and Security Bill [HL]
Baroness Smith of Basildon Excerpts(11 years, 6 months ago)
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Baroness Smith of Basildon
My Lords, this has been an extremely interesting debate, as was the debate we had in Committee. I am at something of a disadvantage—or perhaps it is an advantage—as the Minister and I are the only speakers in this debate who have not been members or indeed esteemed chairs of the ISC. I think I heard the noble Lord, Lord King of Bridgwater, say, “Good”—I hope it is.
I support the amendments tabled by my noble friend Lord Campbell-Savours, and I will explain the reasons why. I join the noble Lord, Lord King of Bridgwater, in paying tribute to my noble friend Lord Campbell-Savours because the way that he has brought forward this argument today does the House a great service.
In Committee, many Members of your Lordships’ House, who have had a lifetime’s experience of these matters, proposed a number of different ideas for reform of the Intelligence and Security Committee, ranging from the designation of parliamentary privilege through to issues such as public hearings. What was striking in that debate—and is again today—was that there was an overwhelming consensus on all sides of the House that the Bill could be significantly bolder. It has been evident throughout the debate that there is some dissatisfaction with the Government’s approach. Your Lordships’ House does not feel that what is before it today adequately addresses some of the concerns raised in Committee.
We fully support the Government’s stated aim, which is, as the noble and learned Lord, Lord Wallace of Tankerness, said at Second Reading,
“improved parliamentary and independent oversight of the security and intelligence agencies”.—[Official Report, 19/6/12; col. 1661.]
What we have in Part 1 of the Bill, as illustrated by this and the next group of amendments, is a missed opportunity. In Committee, we discussed a range of different options for strengthening the independence of the ISC beyond what is proposed in the Bill. What emerged were two different blueprints for achieving pretty much the same aims and objectives. First, the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, two distinguished members of the committee, proposed an arrangement along the lines of existing parliamentary committees established by statute, such as the Ecclesiastical Committee, the Public Accounts Committee, the Speaker’s Committee for the Independent Parliamentary Standards Authority, and the House of Commons Commission. The committee as envisaged would have the independence and powers afforded by being a creature of Parliament rather than the Executive, but would retain the security of checks and balances provided for in statute. The second way forward, proposed by my noble friend Lord Campbell-Savours, seeks to establish the Intelligence and Security Committee as a fully fledged Select Committee of Parliament, having all the privileges attached to that arrangement, but with safeguards or restrictions provided through resolutions of Parliament rather than statute. I think my noble friend Lord Campbell-Savours used the phrase “hermetically sealed”.
However, both these blueprints are seeking to achieve the same end point. They are both seeking a concept of the ISC as a creature of Parliament rather than the Executive; independence that is recognised by the public but still guarantees the absolute security of sensitive information disclosed to the committee; and maintaining the good relations and trust that have been established with the agencies. It seems that the choice between the two concepts is one less of principle and more of practicality: which proposal will best achieve this end? My noble friend Lord Campbell-Savours and the noble Lord, Lord Butler of Brockwell, have both confirmed that they are seeking to achieve the same ends.
As my noble friend Lord Campbell-Savours has already stated, chief among the advantages gained by being a parliamentary Select Committee is parliamentary privilege. This would grant the ISC, among other things, protection of members and witnesses by parliamentary privilege, which encourages free disclosure within the secure confines of the committee; the power to take evidence under oath; and the power to hold witnesses in contempt for deliberately misleading the committee.
I have listened carefully to my noble friend’s arguments about the designation of parliamentary privilege, and in Committee we debated and supported amendments moved by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, to grant the ISC parliamentary privilege by amending the Bill of Rights. Indeed, I have attached my name to similar amendments in the next group, because I fully support the ISC obtaining parliamentary privilege. However, if, as my noble friend Lord Campbell-Savours, has compellingly argued today, there are serious problems with seeking to designate privilege in this way, it would appear that a Select Committee arrangement is the only option that would satisfactorily guarantee the committee these powers. The notion that privilege, if gained in the way that has been proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, may be struck down by the courts, which I am absolutely clear is not what they are seeking, is hugely concerning. If witnesses and members of the committee had given evidence to that committee under the assumption that they had immunity, only later to have that immunity revoked, it would have huge implications for the work of the committee. The absolute and total guarantee of parliamentary privilege is therefore a compelling reason to support the ISC’s move to full Select Committee status.
The question then rests on whether a Select Committee arrangement could be relied on to act in a way that absolutely guaranteed, without qualification, the protection of our national security. The Opposition would support the establishment of the ISC as a Select Committee only where such a guarantee could be satisfied. Under no circumstances should any change in the structure of the ISC result in sensitive information being disclosed that could put at risk our national security or the safety of intelligence sources or operations. Restrictions or safeguards on the committee’s powers could include a number of areas—we have heard of some of them today—and others that may be agreed by Parliament. For example, the Prime Minister could veto the publication of material by the committee for reasons of national security; proceedings of the committee could be closed to the public unless agreed by the Executive and/or provided for under its own terms of reference, such as annual public hearings of the heads of the agencies; there could be an executive prerogative to instruct the Leader of the House to dissolve the committee or to remove one of its members by a resolution of Parliament; or there could be a veto or agreement of a nomination to the committee. I use those just as examples— there will be others that I am sure will occur to your Lordships, particularly those who have been members of the ISC—but providing for such safeguards in legislation, as in the Bill before us, is perhaps the clearest way of ensuring that they are met.
In Committee, the noble Marquess, Lord Lothian, argued against a Select Committee structure on the basis that it would necessitate public evidence sessions. He rightly said that,
“there are many occasions when to attempt to take evidence in public would create an even less high regard for the committee that it maybe has at the moment, because questions would be answered by the agency heads with the words, ‘We cannot answer that question’”.—[Official Report, 9/7/12; col. 923.]
I completely agree with the noble Marquess on that point. In the majority of cases, the committee must sit in private. To do otherwise would not only damage the reputation of the committee, as I have said, but, most seriously, undermine its core function of effective oversight over the intelligence services. However, as has been argued by my noble friend, the mechanism by which Select Committee powers and terms of reference are constituted are sufficiently flexible conceivably to provide for any one of those concerns.
I understand from my noble friend Lord Campbell-Savours that he has it on the authority of clerks of both this House and the other place that Parliament may, either through the committee’s order of reference or by instruction, specify the terms under which the committee may sit, may take evidence and report, including requiring the consent of another body including the Government. Indeed, there are already known precedents for such restrictions. The Defence Select Committee already holds evidence sessions in private in order to hear classified and national security-sensitive information. For its recent report on maritime surveillance, published in September this year, it held part of its first evidence session in private. As my noble friend has indicated, there have been instances in the past where the House has resolved that a committee report to the Prime Minister and it may even be precluded from publishing certain material on the grounds of national security. Given those assurances, a Select Committee arrangement would both guarantee the ISC parliamentary privilege and ensure the necessary safeguards for our national security.
My understanding is that, if the House were today to pass my noble friend’s amendment and the Government accepted the will of your Lordships’ House, the Government could seek to withdraw Clauses 1 to 4 of the Bill in the Commons and then issue a statement that they would seek agreement through a resolution of the House to establish the ISC as a Select Committee of Parliament. If the Government and the Opposition were unable to reach agreement over the terms of such a resolution—including all the necessary safeguards that I have referred to and others—then presumably the ISC would continue under its present arrangements.
We have heard a compelling argument from my noble friend Lord Campbell-Savours that it is not possible to designate a body of parliamentary privilege such as the ISC simply by amending the Bill of Rights or by other statutory means. If this is indeed correct, it is undeniably a compelling reason for pursuing the Select Committee route rather than the statutory one. However, even if it were possible to do so, there is a further reason why we believe that the Select Committee should be the model that we aim for. That reason was expressed by the noble Lord, Lord Deben. I am sorry that he is not here today as his contribution in Committee was valuable. In Committee, the noble Lord, Lord Deben, was supported by the noble Lord, Lord King, and the noble Baroness, Lady Manningham-Buller, when he asked:
“Is it not better to use the strength of the Select Committee process and procedure and, above all, of public understanding rather than to try to create something special”?—[Official Report, 9/7/12; col. 926.]
This is more than just a cosmetic change. The parliamentary Select Committee structure is one widely recognised as being capable of serious and robust scrutiny. It is a concept that is familiar to the public and one that they understand as being independent. While I agree with the noble Lord, Lord King of Bridgwater, about public confidence in the committee I do not think that most of the public know of the existence of the ISC, whereas they are aware of the structure and work of Select Committees. Even if it were possible to guarantee the committee watertight parliamentary privilege, as I now seriously doubt, it would still ultimately be a hybrid committee. A halfway house would undeniably be better than what we have in the Bill but it would still be a peculiar body. If we are to go to all the effort of dressing up the ISC to look and sound like a parliamentary Select Committee, although with question marks over parliamentary privilege, why not simply have a Select Committee to do the job fully?
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, I thank the noble Lord, Lord Campbell-Savours, for presenting his amendments in such a typically articulate way. He draws to our attention the challenge that faces us in achieving confidence—the word that was used by many noble Lords and spoken of by my noble friend Lord King of Bridgwater. In a nutshell, this is about the scrutiny of Parliament and the responsibility of government, and how those two can be reconciled. Although the noble Baroness, Lady Smith of Basildon, talked about not wishing to create a special committee, this is a special committee because it deals with matters that are self-evidently outside normal public scrutiny.
This group of amendments, which I thank the noble Lord, Lord Campbell-Savours, and others for bringing to the House, concern the status of the ISC and, although we have not talked about it much, the remit of the Intelligence Services Commissioner. As my noble friend Lord Henley previously noted, the Bill proposes a number of important changes to the ISC’s status. Members of the ISC would be appointed by Parliament, rather than as at present by the Prime Minister, and those members would be free to choose their own chair. The ISC is created by statute to ensure that there are safeguards in place to protect against the disclosure of sensitive information and therefore the Government do not consider it appropriate for the ISC to be a full Joint Committee established under the Standing Orders of each House, as other Joint Committees are. I hope that noble Lords will find it useful for me to expand on this reasoning.
It is essential that the ISC operates within a framework that protects the highly sensitive material to which it has access. In particular, the Government must be able to prevent the publication of sensitive material by the ISC. They must be able to withhold the most sensitive material from the committee—albeit that those powers are rarely used currently and can be expected to be rarely used in future—and must have some role in the appointment of members of the ISC. Without guarantees in those three areas, the risk of disclosure of information that might damage national security would be increased. That might, in turn, lead to a situation where agency heads found it hard to reconcile their statutory duties to protect information with their duty to facilitate oversight. That could therefore lead to the sharing of less sensitive information and a corresponding reduction in the effectiveness and credibility of oversight.
The Bill provides the necessary guarantees in each of those three areas. The Prime Minister would be able to require matters be excluded from the ISC’s reports if the matter would be prejudicial to the discharge of the functions of the agencies or the wider intelligence community. Ministers would be able to withhold information from the ISC in the limited circumstances provided for in paragraphs 3 and 4 of Schedule 1. A Member of this House or of another place would not be eligible to become a member of the ISC unless they had first been nominated for membership by the Prime Minister.
Although it may be possible to replicate those safeguards in Standing Orders of this House and another place, Standing Orders can be amended at any time, as noble Lords will know, and can be suspended for a specific period, or dispensed with for a specific purpose, by a Motion in the relevant House. Standing Orders do not therefore have the same permanence, or provide the same level of protection to sensitive information, as statutory provisions to the same effect.
It seems to me that we can divide the noble Lord’s amendments into two sets. Both are concerned with the same aim—that the new ISC should be a Select Committee—but they get there by different routes and with different consequences. It is not absolutely clear what the effect of the noble Lord’s first two amendments would be. If we were to accept them and the amendment that he proposes to Schedule 2, the ISC would still be created by statute in the Bill and safeguards would still exist to protect national security in the three areas that I have listed. My noble friend Lord King of Bridgwater drew attention to the inconsistency of the amendments, but we accept the noble Lord’s wish to draw the issue to the attention of the House in the way that he has by tabling Amendment 1.
The noble Lord’s amendment would not create a full Joint Committee, because that can be done only by the Standing Orders of each House. It would create an entirely novel body—a Select Committee established by statute. To what extent would such a body share the characteristics of other Select Committees? The Bill makes clear, even were it amended in other respects according to the noble Lord’s wishes, that the ISC is quite different from other Select Committees in fundamental respects—for instance, in relation to appointments and reporting. That being so, it is unclear whether or to what extent changing the ISC in this way would give it the other characteristics of a Select Committee. Indeed, the risk is that describing the ISC as a Select Committee when it has characteristics that are not shared by such committees could mislead as to the ISC’s true character. For these reasons, I hope that the noble Lord will see fit to withdraw his amendment and that the noble Baroness, Lady Smith of Basildon, will reconsider her position on it.
The noble Lord’s next four amendments would, together, remove the first four clauses, which deal with the ISC. It is to be assumed that the noble Lord’s intention with those amendments is that a new ISC should be created solely by the Standing Orders of each House. Indeed, the noble Lord said so in his speech introducing his amendment. I have already listed the vital safeguards relating to appointments, reporting and provision of information contained in the Bill. Without these safeguards, we will increase the risk of unauthorised disclosure of the sensitive information to which the committee has access. As I have already said, Standing Orders cannot adequately replicate the safeguards against disclosure of information that might damage national security contained in the Bill. It is only by enshrining these safeguards in statute that we can ensure that they are sufficiently robust and enduring.
Baroness Smith of Basildon
My Lords, much of the debate regarding this amendment was covered in the debate on the previous group of amendments. I will therefore keep my comments brief. We put our names to the amendments proposed by the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian. We considered that the arrangements that they are proposing for the ISC, which is a variation of a statutory parliamentary committee, to be the next best option were the Select Committee option to fail.
In the previous debates, I referred to a committee being strengthened in its independence by the privileges and status afforded by being a creature of Parliament rather than a creature of the Executive, while retaining robust safeguards over the constitution and the work of the committee in the interests of national security. The idea of a security committee that is covered by parliamentary privilege and also bound by safeguards established by statute is of course attractive, as it would give the absolute guarantee needed on issues such as the disclosure of sensitive information and the appointment of members. However, my concerns lie—the noble Lord, Lord Butler, also acknowledged these deficiencies—with the argument raised by my noble friend Lord Campbell-Savours that parliamentary privilege conferred in this way would be suspect and potentially challengeable in the courts. That makes me nervous and I am sure that it makes other Members of the House nervous. If my noble friend is right that the present statutory committees of Parliament are not covered by privilege, it is difficult to see how statute can provide for it in this case, for the fundamental reason that the committee will not be a fully fledged body of Parliament.
In Committee, the noble Lord, Lord Henley, said that discussions would take place. The noble Lord, Lord Butler, referred to that. I am very concerned that, if I understand correctly, the noble Lord, Lord Butler, said that no discussions on the issue have taken place with the Government. There is an overwhelming desire on all sides of the House to get the issue right.
Lord Butler of Brockwell
Perhaps I may do justice to the Government. There have been discussions. My complaint is that they do not seem to have reached a conclusion.
Baroness Smith of Basildon
I do not know whether that is better or worse. It is disappointing that the Government have not been able to reach a conclusion, given the overwhelming desire on all sides of the House to get this right and to ensure that the committee has the privilege that it will need to do its job properly. I remain concerned about the process that is being used. I wait with interest to hear what the noble Lord will say about the consequences of pursuing parliamentary privilege in this way. Without assurances that the committee will have full privilege, I will have serious reservations about the viability of the proposed amendments, despite the fact that I fully support the aims behind them.
Lord Taylor of Holbeach
My Lords, I was tempted to make a relatively short summary for this debate, but the amendments tabled by the noble Lord, Lord Butler, give me the chance to elaborate on certain matters to which other noble Lords alluded. As we know, the proposal of the Government in the Bill is to change the ISC’s status. It will be appointed by Parliament and will report to Parliament as well as to the Prime Minister. The two amendments in this group concern the status of the ISC. The first would change the name of the Intelligence and Security Committee to the Intelligence and Security Committee of Parliament. The Government’s intention is that the ISC will be a committee of Parliament created by statute. It will not be a classic Select Committee that covers departmental bodies, but a statutory committee of Parliament.
The Government are in principle supportive of the amendments tabled by the noble Lord, Lord Butler, to change the name of the committee to the Intelligence and Security Committee of Parliament. While we are not in a position to support the amendment at this stage, we will be in a position to do so later. I hope that in what I say I will give the House reassurance that the time since July has not been totally wasted, and that the Government are quite a long way down the road of sorting out the particular issues to which noble Lords quite rightly drew the attention of the House. If the ISC becomes a committee of Parliament, it may even be necessary to make some consequential amendments. The amendment may bring the ISC within the ambit of the Freedom of Information Act 2000 by making it a part of the House of Commons and the House of Lords for the purposes of the Act, which was alluded to by the noble Lord, Lord Campbell-Savours. It may change the ISC’s status under the Data Protection Act 1998, as Section 63A of that Act may become relevant, making the corporate officers of the House of Commons and the House of Lords the relevant data controllers for the ISC’s data-processing activities.
Lord King of Bridgwater
My Lords, I support what the noble Lord, Lord Campbell-Savours, has just said—in the knowledge that there is no back pay in this world. It does seem very weird to be considering this. I am not sufficiently familiar with the remit of IPSA, but although we have been arguing about the extent to which this committee is or is not part of Parliament, in the area of pay and rations it appears to have been put right inside it.
Baroness Smith of Basildon
My Lords, my name and that of my noble friend Lord Rosser have been added to this amendment, as was the case in Committee. We argued then, and argue again now on Report, for the establishment of the ISC along lines similar to that of a Select Committee, and indeed preferably the same lines. It would therefore be inconsistent not to argue that the chair of this committee should be remunerated in much the same way as the chair of a Select Committee. The work that is undertaken is enormously serious and therefore the role should be recognised and fairly compensated on par with that of a chair of a Select Committee.
We have just heard comments about whether IPSA is the appropriate body for this role, and in Committee it was the Minister who said that it was. I have been involved in politics both in your Lordships’ House and in the other place for a good many years and I still enjoy irony, which is much underused in politics, so I find the argument of the Government rather ironic given the debate over Select Committee status which has underscored the difference between this committee and a committee of Parliament. Perhaps the Minister can change the Government’s position and we will accept the amendment.
The details of the committee’s arrangements are to be established in statute, but when it comes to discussing remuneration, it will be for IPSA to decide. It really does not seem appropriate for that body to do so, and the Government cannot have it both ways. If the ISC is to remain a body provided for in statute and ultimately accountable to the Executive, which is the case in this Bill, then regardless of any closer ties to Parliament it remains a creature of the Executive. It therefore seems completely illogical for IPSA to be the body which decides on the remuneration of the committee’s chair. I support the amendment. If the Government think that IPSA is the way forward, they have got it wrong, and I hope that the Minister will be able to accept the amendment.
Lord Taylor of Holbeach
My Lords, we turn now to the remuneration of the ISC chairmanship. I have to say that the loyalty which members of that committee have shown to the chairmen and the work they undertake reflects the commitment that those who have held that office have demonstrated to the security services. I note the widespread view that this position should be properly remunerated in some way or another, and the Government support that view. There is no real consistency in the way that Select Committees are treated and no absolute rule that all Select Committee chairmen will be paid. In the Commons at present, not all Select Committee chairman receive a salary for those functions. In the Lords, there is only one such salaried chair, the chairman of the EU Select Committee, who is paid a salary—not by virtue of holding that position but by virtue of also being the Principal Deputy Chairman of Committees.
Lord Gilbert
My Lords, the situation is considerably more complex than your Lordships have heard this afternoon. One has the impression from the debate that the only intelligence-gathering agencies are MI5, MI6 and GCHQ, and that is far from the case. We have the Defence Intelligence Agency and the intelligence work of the individual services, and a lot of other people in this country handle high-security intelligence by acquiring, analysing and distributing it. If we think that we have covered the waterfront just by approving the heads of MI5, MI6 and GCHQ, we are deluding ourselves.
Baroness Smith of Basildon
My Lords, we have had an interesting debate, and Amendments 9 and 11, in my name and that of my noble friend Lord Rosser, seem to have gained a significant degree of support from around your Lordships’ House. In response to the concern of the noble Lord, Lord King, about the televising of proceedings, I suspect that if this debate were being televised at 4.30 am it would not get a great deal of viewership. Having said that, we will probably now receive letters from those who watch TV at 4.30 am.
Amendment 9 would provide the committee with a remit to hold pre-appointment hearings for the heads of agencies. The noble Baroness, Lady Hamwee, spotted my tabling of her amendment from Committee, when she convinced me that having a permissive amendment was a good way forward. She has now tabled a further amendment that would make the proposed hearings compulsory, but I do not think that that has found favour with your Lordships. We are very much in favour of pre-appointment hearings by Select Committees; indeed, the Labour Government in 2007 pioneered them. This Government have suggested that they are equally keen on pre-appointment hearings. The coalition agreement contains a specific plan to strengthen the powers of Select Committees to scrutinise major public appointments as part of improving government transparency. This seems to be one of those areas that would benefit from such hearings.
I take on board the wisdom, as usual, of the noble Lord, Lord Reid, on these matters and the concerns he raised. However, as to what he said about there being a veto on information, the committee would use its customary wisdom in passing on advice or information to the Prime Minister as it saw fit.
As regards Amendment 11 on annual public hearings, I must admit that I had not envisaged many separate hearings but perhaps one or two hearings a year at which heads of agencies could be questioned. There is an issue of public confidence, and the noble Baroness, Lady Manningham-Buller did a huge amount during her time as head of MI6 to open up the so-called secret services and increase public understanding of and trust in what the agency and other agencies do. She, more than anyone, understood how important it was that the public needs to have confidence in those at the head of organisations that have to, by necessity, operate outside the public view.
I also do not disagree with those who said in Committee or in this debate that the credibility of the ISC would be undermined by farcical staged hearings, as we have seen on TV elsewhere when the only answer to questions has been, “I’m sorry I can’t answer that or provide that information”. Obviously, we would want any hearings to be genuine, give confidence to the public and not have a block that would provide a lack of confidence.
As has been pointed out in Committee, the ISC already has the power to sit in public if it so chooses. Amendment 12, which proposes that there be a presumption that the ISC would meet in public unless it were to meet in private, could create the kind of difficulties that have already been outlined. A presumption that the ISC would meet in public would be difficult for that committee to manage, but hearings taking place in public from time to time are useful and have a large part to play. We have to recognise the sensitive nature of the committee’s work and information that cannot be made public.
When considering the amendments and the support for them, I hope that the Minister will accept Amendment 9. He has heard that it has significant support from around the House. If he is unable to accept that amendment, I will consider testing the view of the House.
Lord Taylor of Holbeach
My Lords, we have an opportunity to consider this group of five amendments. Although Amendments 9 and 10 are similar, the noble Baroness has pointed out the difference between them. Under Amendment 9, the ISC “may” consider the proposed appointment of individuals to the posts of director-general of the Security Service, the chief of the Secret Intelligence Service, the director of GCHQ and other such persons as the Prime Minister may direct. The committee would do this by questioning the prospective appointee at one of its meetings. Under Amendment 10, the ISC “must” consider the proposed appointments.
Pre-appointment hearings are a relatively new phenomenon in the United Kingdom. Since 2008, Select Committees have conducted pre-appointment hearings for a list of posts. There is guidance published by the Cabinet Office on the process followed for such pre-appointment hearings, which includes the list of posts. In general, this process has been a welcome development and gives departmental Select Committees a role in questioning proposed appointees. However, the important thing to note about the list of pre-appointment posts is that the posts concern public bodies—for example, the chairs of Ofcom and the Social Security Advisory Committee. The pre-appointments process has never been used concerning the appointment of civil servants. The heads of the intelligence and security agencies are civil servants at Permanent-Secretary level, and the recruitment process is therefore expected to follow the process for the appointment of civil servants of such seniority.
Noble Lords may find it helpful if I provide some detail on the present process for appointing the agency heads and their status. The agencies are excluded from the provisions of Part 1 of the Constitutional Reform and Governance Act 2010, as my noble friend Lady Hamwee mentioned. That legislation places the management of most of the Civil Service of the state on a statutory footing. Exclusion from the provisions of that Act merely reflects the specific nature of the agencies’ operations. The agencies’ staff, including their heads, are and always have been part of the Civil Service of the state. This is clear from the Act. If it were not so, the specific exemption for the agencies in Section 1(2) of that Act would not be necessary. Staff of the agencies are not, however, part of what is generally referred to as “the Civil Service”, with a capital C and a capital S—that is, the Home Civil Service—nor are they part of Her Majesty’s Diplomatic Service. They form a separate category of civil servants, but civil servants they are. They are also “Crown servants”, but that is a wider term, covering, for example, members of Her Majesty’s Armed Forces and non-civilians in the service of the Crown.
While the agencies are not bound by the Civil Service recruitment principles, I can reassure noble Lords that they do, in practice, follow the spirit of the principles, and the Civil Service Commission is expected to be involved in the process. Pre-appointment scrutiny by Parliament is not appropriate given that these roles are Permanent-Secretary level roles, and in practice those who fill them will be recruited by a process involving a Civil Service commissioner to ensure that the appointment is made on merit. In particular, I see no reason why agency heads should be treated differently from any other Permanent Secretary appointment.
Certainly, the roles that the agency heads play are very important and the appointments must be the right ones, but all Permanent Secretaries in the UK Government play very important roles. There is thus no reason for singling out this particular group for special treatment. The fact that all these posts are posts within the Civil Service of the state, serving successive Administrations, means that the pre-appointment process is not appropriate.
I hope I have given the noble Lord and the noble Baroness reassurance that the process which presently exists—
“Pre-appointment hearings( ) The ISC may consider the proposed appointment of the following, including by questioning the prospective appointee at a meeting of the ISC—
(a) the Head of the Security Service;(b) the Head of the Secret Intelligence Service; (c) the Head of the Government Communication Headquarters; and(d) such other persons as the Prime Minister may direct.”
Baroness Smith of Basildon
My Lords, I had hoped that the Minister would at least consider taking this away for reflection. However, the mood of the House is clear. I beg to move.
Baroness Smith of Basildon
My Lords, I wish to test the opinion of the House on Amendment 9.
Lord Taylor of Holbeach
My Lords, it may be useful if I start by explaining why paragraph 3(3)(b) of Schedule 1 is necessary. There are a number of long-standing conventions that have developed in the relationship between Parliament—in the form of its Select Committees—and successive Governments. These conventions recognise that there are categories of information that in certain circumstances may be withheld from Select Committees on grounds of public policy. Noble Lords may know a good deal about this. Examples of this type of information are given in the Cabinet Office guide, Departmental Evidence and Response to Select Committees. Some noble Lords will know this by another name: the Osmotherly rules. The categories of information set out in the guide include information about matters that are sub judice, information that could be supplied only after carrying out substantial research or research that would incur excessive costs, and papers of a previous Administration.
The provision in the Bill is necessary to safeguard the long-standing conventions that are reflected in the Osmotherly rules in the context of the relationship between government and the ISC. It provides a basis for withholding from the ISC the sorts of categories of information described in the rules. As I explained, we intend the ISC created by the Bill to be a committee of Parliament and not simply a committee of parliamentarians, so there is all the more reason for the ISC that the Bill would create to be subject to these conventions.
The provision gives only a Minister of the Crown the discretion to withhold material. In exercising that discretion, the Minister would of course have regard to the provision that the ISC has for keeping material confidential. The Osmotherley rules state:
“If the problem lies with disclosing information in open evidence sessions or in memoranda submitted for publication, Departments will wish to consider whether the information requested could be provided on a confidential basis”.
For this reason, we would expect these powers to be used sparingly and only in exceptional circumstances. As I said, the powers to withhold information from the ISC have been used only sparingly in the past, and we expect this to continue. However, it is important that the safeguards are retained.
In Committee, the debate focused in particular on the word “proper”. The noble Lord, Lord Thomas of Gresford, who is not in his place, queried the use and meaning of the word. In addition, the noble Baroness, Lady Smith of Basildon, was concerned that paragraph 3(3)(b) lowered the threshold for information being withheld from the committee compared with that which currently applies under the Intelligence Services Act. I assure the noble Baroness that that is not the case. The Intelligence Services Act contains a provision equivalent to paragraph 3(3)(b). In fact, the categories of information that can be withheld from the ISC, and the thresholds for withholding information, will be the same under the Bill’s provisions as they are currently under the 1994 Act.
The noble Lord withdrew his amendment. I hope that Amendment 14 clarifies the situation and addresses his anxieties in this respect. I beg to move.
Baroness Smith of Basildon
My Lords, I am grateful to the Minister for seeking to clarify the matter. As he said, I raised my concern on this in Committee. Perhaps I may ask one question. If he is unable to answer today, perhaps he would write to me. I am not 100% convinced that Amendment 14 is sufficient to prevent paragraph 3(3)(b) being used as a justification, as the Minister claimed. Amendment 14 stipulates merely that the Minister “must have regard to” the Osmotherly guidance, as set out in sub-paragraph (3)(b). Will the Minister tell us whether, after considering the guidance he referred to, the Government could still use the conditions set out in sub-paragraph (3)(b) to refuse disclosure of information to the ISC even if the guidance was not relevant to the material in question?
Lord Taylor of Holbeach
I am not in a position to answer that directly, but if the noble Baroness permits, I will write to her and place a copy of the letter in the Library of the House.
“(a) the Secretary of State for that Department, or(b) in the case of a Department without a Secretary of State, a Minister of the equivalent level, identified in a memorandum of understanding.”
Baroness Smith of Basildon
My Lords, the amendment concerns the power to withhold information from the ISC and at what level the decision should be taken. The Bill states that the decision should be taken by a “Minister of the Crown”. The amendment proposes that it should be at the level of Secretary of State in the relevant department and not just a Minister of the Crown. The response I was given in Committee was that the Cabinet Office does not have a Secretary of State and therefore it would be the Minister of State. As somebody who was the Minister of State at the Cabinet Office, that did not seem appropriate. Every department has a Minister who sits in the Cabinet. The reason for putting the amendment before the House today is to propose that, as a minimum, it should be a Minister who is at the equivalent level of Secretary of State. That would be justified because the explanation given by the Minister in Committee for lowering the threshold was not adequate given such a change in power.
We have sought to tighten up the drafting to make it clear in the Bill that in all but exceptional circumstances the power to withhold information from the ISC should be exercised only by a Secretary of State unless there is no Secretary of State in that department. In that case, it should be exercised by a Minister of comparable rank such as the current Paymaster-General who is a member of the Cabinet as well as the most senior member in the Cabinet Office. The amendment is simply to specify that a reference to a Minister of the Crown should be interpreted as a Secretary of State for that department except where there is no Secretary of State where it should be someone of the equivalent rank.
I hope that that is clear and I hope that the Minister can accept or at least reflect on this because it would be a significant change if it was not the Secretary of State seeking to withhold information. I beg to move.
Baroness Stowell of Beeston
My Lords, I hope in responding to the noble Baroness, Lady Smith of Basildon, that I can give her some assurance so that she feels able to withdraw her amendment.
The Bill provides that Ministers may decide that information should be withheld from the ISC on two grounds. First, the Minister may consider that it is “sensitive information” as defined in the Bill, which in the interests of national security should not be disclosed to the ISC, and secondly for the reasons that we just discussed.
Currently, under the provisions of the Intelligence Services Act 1994, information can be withheld from the ISC on the same grounds, but the decisions to withhold are taken, in part, by agency heads rather than Ministers. These powers to withhold information from the ISC have been used very rarely in the past, and we would expect the equivalent powers in the Bill to continue to be used sparingly, only in exceptional circumstances; however it is important that these safeguards are retained as there will continue to be material the nature of which is so sensitive that access to it must be very narrowly restricted in the interests of national security.
Where agencies’ material is concerned, the Bill provides that decisions to withhold information from the ISC must be taken by the Secretary of State. However, where the ISC requests information from another government department, a decision to withhold is taken by the,
“relevant Minister of the Crown”.
That means, for these purposes, such a Minister as is identified in the memorandum of understanding between the Prime Minister and the ISC or, where no Minister is so identified, any Minister of the Crown.
The effect of the noble Baroness’s amendment would be that in circumstances where the Bill enables a Minister of the Crown to withhold information from the ISC, that power would rest with the Secretary of State for the department whose information is to be withheld, or for departments without a Secretary of State, a Minister of the equivalent level, identified in the memorandum of understanding.
The reason that we have included provision for the exercise of the power by a Minister of the Crown rather than a Secretary of State in respect of material held by government departments is that there may be some departments where there is no Secretary of State. The noble Baroness referred to this. For example, the post of Minister for the Cabinet Office is a Minister of State position rather than a Secretary of State position.
The current ISC has, over its history, taken evidence on, and made recommendations relating to, the Joint Intelligence Organisation and the central intelligence functions of the Cabinet Office. The Bill formalises the ISC’s oversight role for bodies such as the Joint Intelligence Organisation so the Cabinet Office can expect more requests from the ISC for disclosure of information in future. It is therefore important that a Minister of the Crown should be able to make decisions about when and what information should be withheld from the ISC. This may not just be about the Cabinet Office. It may be that, in the future, other government departments involved in security and intelligence functions will not have a Secretary of State. This provision would also cover those circumstances.
I appreciate the intention of the amendment, which is to ensure that the Minister of the Crown making the decision to withhold information from the ISC is of appropriate seniority. I hope that I can reassure the noble Baroness that that is also the Government’s intention. We hope to publish, before Third Reading, a document which sets out the areas that the Government expect the memorandum of understanding to cover, premised on the assumption that the ISC-related provisions in the Bill are enacted, substantially, in their current form.
In that document, we will state that it is the Government’s intention that the Minister making such decisions should be of appropriate seniority and should have sufficient knowledge of the work of the department in question. The document will state that it is the Government’s intention that, for the Home Office, the Minister making such decisions should be the Home Secretary, for the Foreign Office the Foreign Secretary, for the Ministry of Defence the Defence Secretary and for the Cabinet Office a Minister of State. As I said, I hope that that gives the noble Baroness enough assurance for her to withdraw the amendment.
Baroness Stowell of Beeston
I am grateful to the noble Lord for his assistance. That is absolutely right. If the committee requests the information, because the MoU will make it clear which Minister within a department is responsible for responding or deciding whether or not the department should provide that information, obviously the Minister has an obligation to respond to that request.
Baroness Smith of Basildon
My Lords, I am not sure that the noble Baroness has understood the central point that I am making and if she has, she has not answered it to my satisfaction. The query that I have with this amendment is the level of the Minister who can exercise a veto. I entirely agree that it is an exceptional measure that will be used only in exceptional circumstances. It takes the power from the agency’s head so that it rests with the elected representatives of the Government who are ultimately accountable to Parliament. But I have not heard from the noble Baroness an adequate justification from the Government as to why they have chosen to downgrade the level at which the veto is held from a Secretary of State to a Minister of State.
I mentioned the Cabinet Office because that was the department mentioned by the Minister previously. The noble Baroness responded and said that it could be another department that does not have a Secretary of State. The point being made is the level of Minister who can withhold information and exercise a veto against the ISC. It is entirely reasonable that it should be the Secretary of State or a Minister at the same level, not downgraded to a Minister of State level.
Lord King of Bridgwater
The answer my noble friend gave was extremely encouraging and recognised the importance of the seniority of the person. The only thing I do not understand is whether paragraph 3(5)(b) of Schedule 1, which reads,
“if no Minister of the Crown is so identified, any Minister of the Crown”,
will survive.
The noble Baroness appeared to be saying that if a particular Secretary of State is for some reason not available—which is perfectly possible, particularly if you are dealing with the Foreign Office—any other Secretary of State will do. Would it not be much better to have a Minister of State in the same department who is familiar with the matter to deal with it, rather than some other Secretary of State? Have I got the noble Baroness wrong?
Baroness Smith of Basildon
No. The noble Lord is absolutely right. At the moment it is a Secretary of State but the Bill proposes to downgrade that to any Minister of the Crown. I know the noble Baroness says that there will be a MoU that will identify certain Ministers of the Crown but these decisions should be taken at Cabinet level.
Lord King of Bridgwater
I understand what the noble Baroness is saying but if the information concerns the Foreign Secretary, who is responsible for SIS and GCHQ, or the Home Secretary, who is responsible for the Security Service, or, in certain circumstances, the Secretary of State for Defence, who is responsible for the DIS and so on, and if by chance that Secretary of State is not available to deal with an urgent matter on which a reply is requested, it would be much better that the Minister of State in that department deals with it and that we do not have the Secretary of State from Defra or from some other department shifted in merely because he is of equal seniority and that meets the requirement.
Lord Reid of Cardowan
Perhaps I may help. This is not a new problem—it happens with intercepts. The only people allowed to authorise an intercept are Secretaries of State and, if the Secretary of State is not available or is not in London, his officials will get it to him—and these are far more urgent than anything envisaged here. The point that is being made is that the refusal to supply information to the ISC is such an important decision, given the confidence we are placing in the ISC, that the level at which that decision should be taken is Secretary of State level or equivalent. The Government are envisaging extending not only to a Minister inside the Home Office when the Secretary of State is not available but to any Minister of the Crown, on any refusal, the power so to refuse. My noble friend is saying that this is such an important decision that it ought to be taken only at the level of Secretary of State or equivalent. That is an entirely reasonable suggestion and is looser than the intercept provision which applies to only four Secretaries of State.
Baroness Smith of Basildon
My Lords, as ever, my noble friend Lord Reid has summed up the point I was making. The Minister did not refer to an emergency situation but to departments that would not have a Secretary of State and therefore it would be downgraded. It is entirely appropriate to ask that a decision as serious as to withhold information from the ISC should be taken only at the highest levels in government, and that means the level of Secretary of State.
Lord Butler of Brockwell
My Lords, I also support the amendment. It is no answer to say that if the information is held by the Cabinet Office, where there is not a Secretary of State, it should be at some other level. Any intelligence information held by the Cabinet Office will belong either to the Home Office, the Foreign Office or some other department where a Secretary of State is responsible. It is not the case that provision ought to be made for an exception where the Cabinet Office is involved. I support the amendment moved by the Opposition.
North Wales Abuse Allegations
Baroness Smith of Basildon Excerpts(11 years, 6 months ago)
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Baroness Smith of Basildon
My Lords, I am grateful to the Minister for repeating the Statement today because for the past few weeks we have reacted with increasing horror as new details of historic allegations of sexual abuse of children and young people have emerged. Your Lordships’ House will emphatically agree with the noble Lord that these are deeply disturbing allegations. It is not only that the crime itself is so despicable and that many young people’s lives have been deeply affected and in some cases destroyed. It is not just that the very adults who have abused children and young people seem to have enjoyed the protection offered by positions of trust and fame. The most evil and despicable aspect is that these children and young people have been failed by the very institutions charged with protecting them, including the criminal justice system. The noble Lord is right. It is clear that Parliament must act to ensure that justice is done and that the perpetrators are held to account. The Government are right to act and I welcome their swift response and the announcement today.
But I remain to be convinced that this is the most appropriate way forward given what could be the scale of the problem. The whole House will welcome the Government’s Statement that all allegations must be treated with the utmost seriousness. As the noble Lord said, child abuse is a hateful, abhorrent and disgusting crime. We would concur that anyone who has information must go to the police.
As my right honourable friend Yvette Cooper, the shadow Home Secretary, has said, we need to have a full criminal investigation and we also need to examine what further changes are needed in the way in which we protect children and investigate abuse. But we also need to know whether there has been institutional failure to deal with historic allegations, whether by turning a blind eye, by covering up, or by simply failing to get to the bottom of what has happened.
For any child or young person to report physical or sexual abuse takes an enormous degree of courage. Any and every abused child or young person has the right to expect that the authorities will take them seriously, believe them and take action to protect them and deal with the abuser. That is why we must examine whether there is a further, deeper problem, whether in north Wales, in the cases involving Jimmy Savile and the BBC, or in those of grooming and sexual abuse in Rochdale and Rotherham. If children and young people who have been physically and sexually abused have reported their abuse and the authorities have failed to believe them, or even worse have believed them but then failed to act, that is truly shocking. Those who have failed to investigate or have sought to protect abusers or cover up abuse are equally guilty.
Given the scale of this issue, it has become evident that we cannot look at the allegations in north Wales in isolation. I hope that the noble Lord will understand when I express concern that the Government’s response will not address the wider concerns and seek assurances from the Minister.
I welcome the new criminal investigation into the allegations in north Wales. In particular, I very much welcome the involvement of the Child Exploitation and Online Protection Centre, which has considerable expertise. But can the Minister confirm that the inquiry can go wherever the evidence takes it and will not be confined to north Wales?
Also, the Minister may be aware from our debate on the Crime and Courts Bill with his predecessor and the Parliamentary Questions that I have asked on this issue that I remain concerned that the transition to the new National Crime Agency may leave the organisation underfunded. I have raised this now on several occasions. Will the Minister confirm that these investigations will not in any way be hampered by a lack of funding?
On the second point about historic reviews, it is right to look again at the Waterhouse inquiry, but can the Minister explain what is meant by,
“whether the Waterhouse inquiry was properly constituted and did its job”?
Are the Government now questioning the terms of reference or the operation of the inquiry? Can the Minister be more specific about that point?
Does the Minister understand the widespread concerns about there being so many inquiries? I am aware that these have grown rather than being planned in this way, but in addition to the police investigations there are three BBC inquiries into Savile, a Department of Health investigation into Savile’s Broadmoor appointment and several individual hospital inquiries. There is the CPS inquiry into why Savile was not prosecuted; there is the new north Wales inquiry; there is the HMIC inquiry into other forces that may have received information about Jimmy Savile; and there are others.
The Minister will be aware that we have already called for all the Savile inquiries to be held together. Is there not a strong case for a single, overarching, robust inquiry, not just about the abuse itself but also about whether individuals or groups used positions of influence—either their own or that of friends—to evade criminal prosecution? Of course we need to get to the bottom of what happened in each and every case but we also need to see if there are common themes and problems to prevent them happening again. There is a genuine concern that too many individual and specific inquiries is not the proper way to learn the right lessons for effectively and properly safeguarding children and young people. Time and again, evidence of serious institutional failures is presented; a single overarching inquiry into whether these allegations were ignored, or if there was a cover-up to protect abusers from public exposure and prosecution, is now essential.
The Waterhouse report led to, I believe, 72 recommendations and significant changes in child protection. The Children’s Commissioner was introduced, there is the Care Standards Act and the child protection Act, and we saw a strengthening of the law in introducing new measures and policies on safeguarding children and young people in schools and in social services. We saw the creation of the Child Exploitation Online Protection Centre, but yet again we are now presented with evidence that children and young people who came forward to report abuse were not taken seriously. We know that abuse was ignored for far too long against girls and young women in Rochdale and that concerns raised in Rotherham were not acted upon.
The Minister may be aware of previous debates we had with his predecessor about our concerns on the weakening of the vetting and barring system, our concerns about the changes to CEOP as it was merged into the new National Crime Agency, and our concerns about the funding of the new National Crime Agency. PCTs have warned that child safeguarding has been jeopardised by confusion and transitional arrangements in NHS reforms. Is the Minister confident that the fragmented inquiries announced today will give a clear picture of the action that is needed to really protect children from abuse in the future?
It demands enormous courage for a child or young person to speak out and report sexual or physical abuse; if they are not believed or if their reports are not acted on, it only compounds that abuse. I believe the Minister and your Lordships’ House are united in the objective of wanting the most effective and robust inquiry possible for lessons to be learned and for actions that will really make a difference, because only then can we truly provide justice to those who have suffered.