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Lords Chamber

Volume 741: debated on Tuesday 27 November 2012

House of Lords

Tuesday, 27 November 2012.

Prayers—read by the Lord Bishop of Liverpool.

BBC: World Service

Question

Asked by

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

My Lords, the budget for the BBC World Service for the 2011-12 financial year was just over £255 million. It was reduced by £11 million to £244.2 million for the current financial year and will reduce by a further £4 million to £240 million in the financial year 2013-14. From April 2014, the BBC World Service will be funded from the licence fee instead of from FCO grant in aid.

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

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

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

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

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

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

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

There are a number of ways in which the UK can continue to exercise its soft power; the BBC World Service is one of them. I am sure, however, that the House will also agree that extending our embassies and our consulates and having extra staff—extending our diplomatic network—are all part and parcel of ensuring that we continue to play an influential role in the world.

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

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

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

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

My Lords, the decisions that were taken in 2005 about reducing the number of eastern European language broadcasts, largely because there had been a great development in the democratic media in many of those countries, released money for the Farsi language service and for the 24-hour Arab service. I am very familiar with the decisions taken at that time. Would the noble Baroness agree that the cutting of those services, to the extent that they are being cut—and we should be under no delusion: they are being cut back—is going in the opposite direction of identifying where there are problems and addressing them?

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

Welsh Government: Tax-varying Powers

Question

Asked by

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

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

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

The noble Lord will appreciate that, as the report was published only last week, it is very early to make decisions. I can make no firm comments about the outcome of the process that we are going through at the moment. However, on borrowing, it is important to recognise that in October a joint announcement by the Secretary of State at the Wales Office, the Welsh Government and the Chief Secretary to the Treasury acknowledged that in principle the Government agree to borrowing powers for the Welsh Assembly, and we anticipate the potential of the Welsh Assembly having the right to raise and levy taxes in order to offset those borrowing powers.

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

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

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

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

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

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

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

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

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

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

Justice: Legal Advice

Question

Asked by

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

My Lords, it is important to realise that legal aid has been retained for the highest priority social welfare law cases and we will continue to spend approximately £50 million a year in this area. We are also putting in place a new robust referral process to support relevant clients to resolve their problems by signposting them to suitable alternatives.

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

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

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

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

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

I suppose that I can only give those in the voluntary sector the same advice as was given in my own department, which has had to take a 23 per cent cut in services. The reality, which it seems difficult for the Opposition to take in, is that we are all a lot poorer than we thought we were and a lot of organisations are having to reorganise to be effective. As I said, we have set aside £65 million over the next two years—and I have not even mentioned the £25 million to which I used to refer during the course of the LASPO Bill as the £65 million is new money. We appreciate the benefit of Citizens Advice and we want work with it so that it can carry on its useful work.

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

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

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

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

UK Border Agency

Question

Asked by

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

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

“started to tackle the problems”,

and,

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

individuals.

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

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

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

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

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

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

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

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?

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.

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

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

Statutory Instruments

Membership Motion

Moved by

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

Public Service and Demographic Change

Motion to Agree

Moved by

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

In moving this Motion perhaps I can just mention that it would be helpful if noble Lords submitted suggestions for topics for next year’s Select Committees by 18 January.

Motion agreed.

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

Motion to Approve

Moved by

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

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

Motion agreed.

District Electoral Areas Commissioner (Northern Ireland) Order 2012

Motion to Approve

Moved by

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

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

Motion agreed.

Crime and Courts Bill [HL]

Report (1st Day)

Clause 1 : The National Crime Agency

Amendment 1

Moved by

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

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

(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.”

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.

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

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.

This is where the problem lies in not having a corporate governance structure. The absence of any intermediary between the Secretary of State and the director-general means that the line between operational strategic roles is blurred. Without any reference to a board, a director-general must seek sign-off for his operational plan from the Secretary of State. That direct line risks politicisation of the role. Given that the Government have set such store by the way the role of police and crime commissioners will in effect hand power back to the people, it seems odd to have a top-down structure with this particular role of the director-general and the governance of the whole National Crime Agency.

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

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

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

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

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

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

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

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

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

The noble Lord, Lord Blair, referred to the difficulties that he might have faced in respect of cash for honours. At the time of that investigation, there was a Labour chair of the police authority—it was not me; that was after my time, although I was still on the police authority—and I know that that Labour chair came under considerable political pressure from Labour Party colleagues about that investigation. Quite properly, he did not intervene on those matters; indeed, he defended the operational decisions of the police. But even had he been minded not to resist that political pressure, he had around him 22 other members of the police authority calling him to account and saying, “Actually, this must be allowed to run its course, right or wrong”. Here, there will just be the Home Secretary relating to the director-general in private, with no one else around the table able to say, “Is this appropriate or not?”.

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

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

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

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

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

However, I will be even blunter and say that as I read the paragraph in the outline framework document, the word that comes to mind is “cosy”. It might be much less cosy if we knew more from this document about what the governance arrangements would consist of. We are to have a management board, which comes under the heading of “Internal Governance”—it is almost the whole of that paragraph. I do not regard management as being the same as governance. Neither do I regard governance as being the same as administration, although that is the umbrella word used for governance in Schedule 2. It is the term used to introduce the concept of governance.

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

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

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

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

I understand that perhaps Amendment 1 is a step too far because there are matters of national importance that maybe only the Secretary of State in the Home Office can have the chairmanship responsibility for. Yet I hope that the Minister will be able to move some way towards reassuring us that the new arrangements, however they emerge, will improve confidence, transparency and accountability in this important new agency, which I wish the very best. I hope it will succeed.

My Lords, I thank the noble Lord, Lord Condon, for his speech and in particular for the goodwill that he demonstrated towards the success of the NCA.

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

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

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

The amendments of the noble Baroness seek to mirror the arrangements for the Serious Organised Crime Agency, which was blessed with the traditional quango-type structure, led by a non-executive chair and a board. However, as my noble friend Lord Henley pointed out in Committee, SOCA’s arrangements have risked more bureaucracy rather than more accountability. The current SOCA chair and board are excellent individuals who have done a good job, but to be led by a committee was never the right structure for a law enforcement agency. Police forces are led by chief constables directly accountable to a single individual—the elected police and crime commissioner. The National Crime Agency should similarly have an operational director-general at its head who is directly accountable to the Home Secretary.

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

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

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

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

I contrast that picture of non-executive membership with the non-executive posts provided for in Amendment 2. Under the noble Baroness’s proposed model, the NCA board would comprise persons representing the views of police and crime commissioners and chief officers in the different parts of the United Kingdom. The noble Baroness argued that this is needed to ensure that the NCA is sufficiently alive to the interests of those groups. Clearly PCCs and the chiefs of the United Kingdom’s various police forces will be key partners for the NCA. That is why the Bill provides that they will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency through consultation on the NCA’s strategic priorities and the agency’s annual plan. The director-general will also, of course, want to engage personally with chief officers and PCCs across England, Wales, Scotland and Northern Ireland to ensure that the NCA is doing everything it can to help protect their communities from serious and organised crime. He will do that, and is already doing that, through building solid relationships with individual chiefs and PCCs, and through the Association of Chief Police Officers and the new Association of Police and Crime Commissioners. These practical working relationships will ensure that the NCA is alive to the complex needs of communities and of its partners that serve those communities.

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

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

I therefore fear that the creation of another ministerially chaired board runs the risk of adding another layer of bureaucracy to the agency. We are all familiar with such bodies, where one is required to rehearse the same issues as have already been debated in a previous meeting, for the benefit of a slightly different cast but to no additional effect. It would surely be far better to give the director-general and his team more time to get out on the job of fighting crime.

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

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

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.

Amendment 1 withdrawn.

Amendment 2 not moved.

Schedule 1 : The NCA & NCA officers

Amendments 3 and 4 not moved.

Amendment 5

Moved by

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

“( ) A person may not be appointed as Director-general under sub-paragraph (1) unless that person has been approved by the relevant select committee of Parliament.”

My Lords, this amendment would require pre-appointment scrutiny of the director-general by the appropriate parliamentary Select Committee, presumably the Home Affairs Committee.

As we understand it, the Government consider pre-appointment hearings to be best practice for major public appointments. The coalition agreement contains a specific commitment to,

“strengthen the powers of Select Committees to scrutinise major public appointments”,

as part of improving government transparency. Yet the Government have not considered this approach relevant for the office of director-general of the National Crime Agency, a role that is to be much more powerful than the chief executive of the Serious Organised Crime Agency, with the NCA’s increased responsibilities and the absence of any governance structure, as we have just debated.

In Committee, the Government said:

“We accept that there is a place for departmental Select Committees to undertake pre-appointment hearings for certain key public appointments but we do not believe that this is one of them”.—[Official Report, 18/6/12; col. 1597.]

The Government argued that pre-appointment scrutiny by the relevant Select Committee was not justified because the Home Secretary was accountable for public protection and the progress made by the National Crime Agency. Yet the occupant of the post of director-general of the NCA will have considerable powers and, in effect, will be the head of the one national crime-fighting agency in the country dealing with serious, high-profile and organised crimes. In addition, the Government are also considering giving the NCA and its director-general responsibilities for counter- terrorism. The occupant of the post of director-general will also have the power to direct chief officers of other police forces throughout England and Wales to carry out specific tasks.

Under Schedule 1, a person need not be an NCA officer before appointment as the director-general. The only requirement is that a,

“person may not be appointed as Director General unless the Secretary of State is satisfied that the person … is capable of effectively exercising operational powers and … is a suitable person to exercise operational powers”.

That is a somewhat subjective judgment, with nothing specific about proven skills or experience. The reputation and credibility of the NCA is going to be determined to a significant degree by the effectiveness and ability of the director-general, who will have responsibilities directly affecting the safety and security of the people of this country and will have operational independence but without the support or protection of a board, unlike the Serious Organised Crime Agency, between the director-general and the Secretary of State to help to ensure that that is the case.

This post is a new one with responsibility for potentially very sensitive issues, including what could be sensitive issues with political implications. The occupant will need to be strong enough to ensure that operational independence from government is a reality and to withstand any pressures to have too cosy a relationship with his or her political masters. To leave the matter solely in the hands of the Secretary of State without any other parliamentary approval being required would not seem the appropriate step in relation to this post, bearing in mind the nature and responsibilities of it. This must surely be one position for which there is a strong case for pre-appointment scrutiny by the relevant parliamentary Select Committee. I beg to move.

My Lords, I have a difficulty with this amendment because it seems to seek not pre-appointment scrutiny, as the noble Lord has described it, but appointment veto. Pre-appointment scrutiny, questioning a proposed candidate but then leaving it to the appointer to take the final decision in the light of that scrutiny is something which, as the House will know, I have advocated in other contexts. For very senior and important positions I think that that is very desirable. However, I do not go so far as wanting to see Select Committees approving appointments such as this. Although the noble Lord’s speech was very persuasive, what he is seeking the House to agree to is something even more than he was arguing for.

My Lords, I agree with my noble friend that this amendment seeks to make the appointment of the director-general of the NCA subject to the approval of the Home Affairs Select Committee. This is a step up from the amendment tabled by noble Lords in Committee, which provided only for consultation with that committee.

As my noble friend Lord Henley outlined during the Committee stage, the Home Secretary is ultimately accountable for public protection. She will account to Parliament for the progress made by the National Crime Agency. It is right, therefore, that she is responsible for appointing the director-general. Of course, there is a place for departmental Select Committees to approve certain key public appointments, but we do not believe that this is one of them.

In the Government’s June 2012 response to the House of Commons Liaison Committee’s report on public appointments, we indicated that,

“there are some posts where it is appropriate for Parliament to exercise a formal control over appointments”.

However, the response went on to say:

“This is exceptional and where the remit is associated with the functions of Parliament”.

That is not the case with this appointment, as it was not the case with the appointment of the director-general of the Serious Organised Crime Agency. The Home Affairs Select Committee will, of course, have a role in scrutinising the work of the National Crime Agency, in the same way as it has scrutinised the work of SOCA, and I believe it is in this capacity that it can best contribute. Indeed, Keith Bristow gave evidence to the committee as recently as 16 October, and I expect that he will be frequently before that committee to be challenged on how the NCA is performing.

The Government do not agree to Select Committees having an effective veto on a wider range of appointments and for that reason I ask the noble Lord to withdraw his amendment.

I thank the Minister for his response. He said that he does not agree with the Select Committee having what he described as the power of veto over an appointment. I do not exactly have the impression that the Minister is in favour of the Select Committee having any say in, or even being able to express any view on, the appointment to the post of director-general. I do not think the issue with the Minister is over the type of role the Select Committee should play but rather of it having any role in relation to the appointment of the director-general of the National Crime Agency, even to be able to interview the individual and to express a view to the Secretary of State on the appointment that he or she wishes to make. We need to be clear about that. This Government’s opposition is in fact to any involvement of the Select Committee in the appointment process for this post, unless the Minister wishes to stand up and contradict me over that. No, he is not contradicting me, so I think I have got it right. It is not about the wording of this amendment, and what the Minister has described as a power of veto, it is about any Select Committee involvement at all.

One can only say again that that is contrary to what is in the coalition agreement. Of course I can understand why the Minister is not too happy about the coalition agreement, because it provides a specific commitment to,

“strengthen the powers of Select Committees to scrutinise major public appointments”.

I should have thought that this was a major public appointment. There are real dangers over the occupant of this post being under pressure from the Secretary of State. The appointment is going to be made by the Secretary of State apparently without reference elsewhere. This individual will not have the protection of any sort of board between this individual and the Secretary of State. Clearly, everyone will want to be sure that the person appointed to this post is the kind of individual who will be capable of dealing with potentially very sensitive issues, including ones that may have political implications, and will not allow themselves to be in any way influenced by the Secretary of State in the decisions they make in what should be an operational matter. I should have thought that that was something that the Select Committee could at least seek to satisfy itself would be the case before the appointment was finalised. The Minister said that the Select Committee will have a role in scrutinising the work of the National Crime Agency. That will be a bit late when it comes to looking at what the director-general is doing because the director-general by then will have been appointed.

I note the Minister’s response. I cannot say that I am entirely surprised at the response that he has given on behalf of the Government, but I regret that response. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendments 6 to 8 not moved.

Amendment 9

Moved by

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

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

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

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

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

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

On that first day of Committee, my noble friend also had a probing amendment designed to test why the Bill provided for compensating only NCA specials for loss of salary as a result of an injury or death on duty. We agree that it would be helpful not to unnecessarily restrict the scope of the scheme. Amendments 10 to 13 therefore remove the limitation in respect of loss of salary. The scheme through which NCA specials would be eligible for compensation will, of course, be subject to set criteria as with all existing schemes for public servants. In reality, the calculations made under such schemes are frequently linked to loss of remuneration, so I do not want to give the impression that the scheme for NCA specials will necessarily adopt a different approach. Nor do I want to limit the scheme so that NCA specials who do not receive a salary elsewhere cannot be adequately compensated. I should add that these amendments will also make it possible for NCA specials to be covered by either the Civil Service injury benefits scheme or another stand-alone scheme to be established by the NCA, as appropriate.

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

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

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

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

Amendment 56 has been drafted so that it captures a wide range of documents, contracts, authorisations and legal proceedings. For example, it is important that search warrants secured by SOCA under the Police and Criminal Evidence Act or authorisations granted by senior SOCA officers under RIPA continue to have force at the point at which the National Crime Agency takes over from SOCA. Amendment 56 also ensures that three statutory instruments made under Part 1 of the Serious Organised Crime and Police Act 2005 continue in force, with the necessary adaptations, when the relevant order-making powers are repealed and replaced by equivalent powers in Part 1 of this Bill. Both measures will, as I have said, ensure a smooth transition from SOCA to the NCA.

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

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

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.

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.

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

There is also nothing about finances in relation to the transitional position. The Minister will understand my concern—I have raised the issue and asked Parliamentary Questions on it—that the new National Crime Agency will take on not only the responsibilities of the predecessor bodies but new responsibilities, particularly in relation to CEOP. I understand that no additional funding is being provided so can the Minister explain, when he is responding on transition, why there is nothing in the amendments to deal with the increased costs of transition? Is he still satisfied that all the new responsibilities and transition arrangements can be met from the new, reduced budgets?

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

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

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

I turn now to Amendment 58. It may help if I explain the effect of proposed new paragraph 5A(12) of Schedule 8 as inserted by government Amendment 56. Sub-paragraph (12)(a) is concerned with ensuring the continuity of things done by either SOCA or the NPIA once they are abolished and a successor body takes on the corresponding functions. Sub-paragraph (12)(b) is concerned with ensuring the continuity of things done by a third party where some of the functions of that third party are being taken over by the NCA. The language used in the drafting of these two paragraphs is a reflection of the fact that the NCA will take on functions corresponding to those undertaken by SOCA and in part by the NPIA, which are to be abolished. It will also assume some of the functions of the other third party precursor bodies which continue in being. With that explanation, I hope that my noble friend will be content not to press her amendment.

Amendment 9 agreed.

Amendments 10 to 13

Moved by

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

(a) the reimbursement of”

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

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

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

Amendments 10 to 13 agreed.

Clause 2 : Modification of NCA functions

Amendment 14

Moved by

14: Clause 2, leave out Clause 2

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.

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

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

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

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

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

As I said at the beginning, I am not here arguing the case for the status quo, nor for change, but merely because I know—having spoken to them—that senior police officers who have current responsibility for these matters believe that the maximum public scrutiny should occur of the reasons for and against such a change. They are owed no less. The people who do this have a very dangerous and responsible job. They believe with me that, “It ain’t broke, so it doesn’t need fixing”.

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

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

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

Having served in the Metropolitan Police for five years, I, too, recognise the first-class service on counterterrorism that it has given the population, not only of London but of the whole United Kingdom, going all the way back over 100 years to the special Irish branch, which re-named itself the Special Branch; to the 1970s, when the IRA and the Provisional IRA began bombing in London and elsewhere; to the bomb squad, as it was then called; and to the counterterrorist commands that we see today. If there is any logic at all in counterterrorism, it has to be handled nationally—by definition, the National Crime Agency is national.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The functions of the National Crime Agency have been drafted in broad terms to ensure that the agency is able to tackle all the crimes that organised crime groups are involved in. However, it will also be important that the agency is able to react quickly to any changes in the threat picture. The creation of a new agency with a focus on national threats and the co-ordination of the UK-wide response naturally brings with it consideration of counterterrorism. We have always been clear that counterterrorist policing already has as it stands effective structures but that in time it might be right to consider these national arrangements in light of the reforms that have been made to the national policing landscape.

The maintenance of our highly regarded counter- terrorism policing effort is paramount. Any consideration of changes will not be undertaken lightly by any Government, nor is it wise to distract or disrupt the critical structures with unhelpful speculation. But it is also sensible that we give careful consideration to how we can best future proof the National Crime Agency for a potential role in counterterrorism in the future. The Government have been clear that there will be no wholesale review of the current counterterrorism policing structures in England and Wales until after the establishment of the NCA. Only then will it be right to look at how counterterrorism policing is co-ordinated across England and Wales and decide where it is appropriate for national responsibility to sit. Such a review should sensibly consider whether the National Crime Agency might play a role and, if so, what that role might be.

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

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

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

As a number of noble Lords have pointed out, the Joint Committee on Human Rights yesterday published its report on the Bill and, among other things, raised the question of the mechanism for modifying the functions of the agency. Indeed the report, not unlike the debate today, called for the removal of Clause 2. I can appreciate the concerns of the committee in relation to human rights—these will indeed be important matters for the Government to consider. However, the statutory mechanism for modifying the functions does not diminish the obligations on the Government to give consideration to, and provide assurance on, a whole host of possible implications of a potential future decision. Human rights are only one aspect of a number of consequential effects of any change in policy in this area.

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

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

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

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

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

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

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

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

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.

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.

Clause 4 : Operations

Amendment 15

Moved by

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

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

Clause 4, which has the heading “Operations”, tells us that the director-general must have regard to strategic priorities, the annual plan and the framework document—all matters to which your Lordships have referred—and that before the beginning of each financial year the director-general must issue an annual plan setting out how he intends the functions to be exercised during the year. The importance of clarity about strategic priorities and other matters has been raised very clearly at every stage of the Bill by all sides, including by Ministers. The annual plan—a prospective document, if I can put it in that way—will tell us what is planned for the following financial year.

My amendment—it is a small amendment, following a matter which I raised at the previous stage—is intended to ask the Minister to give the House an assurance about how strategic priorities which have changed during the year will be taken into account. The amendment simply proposes that if the Secretary of State determines any variation in the strategic priorities, she will lay a report before Parliament setting out the variation. I beg to move.

My Lords, we have two amendments in this group. They would remove the requirement for the director-general to seek the consent of the Secretary of State and others to the annual plan, as currently provided for in the Bill. Instead, the requirement would be on the director-general to consult so far as concerns the Secretary of State and others. Although we obviously agree that the Secretary of State should retain ultimate strategic oversight of the National Crime Agency and determine the strategic priorities, it is vital to preserve the National Crime Agency’s operational independence from the Government. We understood that that is the Government’s intention, too.

Yet while the director-general is to set the annual plan for the operation of the National Crime Agency’s functions in pursuit of the laid-down strategic priorities, he or she will still be obliged to seek the consent of the Home Secretary before publication of this operational document. Such consent is not currently required, for example, by the Serious Organised Crime Agency. The director-general will be under a statutory obligation to ensure that the annual plan meets the strategic priorities determined by the Secretary of State. Bearing that in mind, why is it necessary for the director-general also to have the consent of the Home Secretary for what is surely an operational document?

That leaves the way open for interference by a Secretary of State in operational matters if their consent has to be obtained before publication of that annual plan, which sets out how the director-general intends to deliver the laid-down strategic priorities. I am speaking to my amendments on the basis of those points. I hope that the Minister will be able to address the specific points that I have made and explain why it is felt necessary that the Secretary of State should have to consent to the annual plan rather than be consulted on it by the director-general.

My Lords, I am grateful to noble Lords for explaining their amendments. Clause 4 already requires that the agency’s annual plan should be published and must include the strategic priorities determined by the Home Secretary. My noble friend’s Amendment 15 proposes that, in addition to the normal publication of the strategic priorities in the annual plan, the Home Secretary should lay a report before Parliament if she should determine any variation in the NCA’s strategic priorities out of sync with the annual plan cycle. I understand that my noble friend is rightly concerned to ensure that Parliament is kept abreast of changes to the strategic priorities. However, in practice, I do not think that there is any need for this amendment. The strategic priorities are not going to be changed every other month. They will be informed by weighty assessment of the threats from serious and organised crime.

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

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

Let me seek to explain why. First, let us consider the consent of the Home Secretary. I do not at all see this as political interference, as the noble Lord has suggested, but as a common-sense approach to guarantee consistency between what the Home Secretary needs the National Crime Agency to deliver, as set out in the strategic priorities, and what the director-general intends to deliver operationally in any given year. How can my right honourable friend be held truly accountable to Parliament for the agency’s performance in the fight against serious and organised crime if she has not publicly agreed the high-level direction set for the agency by the director-general in the annual plan?

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

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

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

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

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

Amendment 15 withdrawn.

Amendments 16 and 17 not moved.

Schedule 2 : The framework document & annual report

Amendment 18

Moved by

18: Schedule 2, page 40, line 33, leave out second “functions” and insert “his response to consultation or to his consent”

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.

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.

What comes over from the outline framework document is that the Government are not really clear about what the framework document will contain. It is more than two years since the Government announced the intention to have a National Crime Agency but the details are patchy and there are more questions than answers. I have already pointed out how important we think the agency is and how much we want it to succeed. It is important for the confidence and credibility of the National Crime Agency that there is no question mark over what it does and how it does it by the time the Bill goes to the other place and through Parliament. In Committee, the Minister said:

“It will obviously be a very important document setting out how the NCA is to operate”.—[Official Report, 20/6/12; col. 1782.]

And yet we still have not got it. I find that disappointing.

Given that the framework document is not yet available there may be an opportunity for wider discussion and consultation at this stage. There are two important omissions from the legislation: the role of police and crime commissioners and the role of chief constables. That is why we have said in our amendments that all strategic partners should be included in the consultation. It is either an error or an omission that the Government have not included those.

It is an unsatisfactory position at the moment. It would be helpful to have parliamentary scrutiny of the framework document, given its importance. The Minister has said how important it is, as does the legislation, but we are clearly not going to get it during Report, which on this part of the Bill will finish today. I hope the Minister will tell his colleagues how disappointing this is and undertake to ensure that there is parliamentary scrutiny and proper consultation with all the strategic partners and not only those named in the Bill at present.

My Lords, I shall come to the amendments proposed by the noble Baroness, Lady Smith, but will start with Amendment 18. When my noble friend Lady Hamwee debated the amendment in Committee with my noble friend Lord Henley she called it a googly and I shall have to make sure that my batting is in order to deal with it.

Paragraph 4 of Schedule 2, which my noble friend seeks to amend—although I sense a little probing in her amendment—sets out the Secretary of State’s duty to consult the director-general on the framework document and obtain his consent to that document before it is published. In drafting the paragraph it occurred to us that there was room for confusion. We have already established in Clause 4 that the director-general must have regard to the annual plan and the framework document. How, then, should he respond if a proposed revision to the framework document should be seen to be in direct conflict with the annual plan? I have the answer to that conundrum: the framework document deals with the ways in which the NCA is to operate—in other words, the how—and the annual plan deals with the what: the NCA’s planned activity for the coming the year. So in considering the framework document it is, admittedly, unlikely that the director-general should think to himself, “Dear me, that point about the NCA’s publication arrangements is not compatible with this year’s plan”. However, if he should happen to have such a thought, he should not let it influence him because it does not make sense to allow the annual plan that is issued for the current year to influence his judgment about whether the framework document arrangements are appropriate when they are meant to apply over the longer term. Hence we indicate in paragraph 4(2) that:

“The Director General’s duty to have regard to the annual plan in exercising functions does not apply in relation to”,

the function he is given in paragraph 1—namely the function of giving or withholding consent to the framework document. My noble friend’s amendment replaces the reference in paragraph 4(2) to the functions under sub-paragraph (1) with a more explicit reference to the director-general’s function of responding to the Home Secretary’s consultation and conferring, or otherwise, his consent. That is exactly the sense in which sub-paragraph (2) is intended to read, and since her amendment does not change the sense of the paragraph, I do not think that it is necessary to make it. However, I hope that I have been able to clarify the necessity of this provision.

Perhaps I may turn to Amendment 19 tabled by the noble Baroness, Lady Smith. It seeks to include the strategic partners among those who must be consulted on the framework document. I have to say to the noble Baroness that we remain unconvinced of the need to expand the list of statutory consultees. As has already been indicated by my noble friend Lord Henley, the framework document is a document that is drawn up by the Home Secretary and the director-general and they are the only two people who are required to have regard to it. Given that the intention is for the National Crime Agency to operate UK-wide, it is obviously right and proper that the devolved Administrations are consulted on the framework document because the NCA will be operating in their jurisdictions, but it appears to me to be wholly unnecessary to provide a statutory duty for the NCA to consult all in law enforcement about how it will arrange its own affairs. The last thing we want is a document that the Home Secretary and the director-general are required to have regard to but which is in effect an unworkable myriad of partners’ expectations laid at the agency’s door.

I turn finally to Amendment 20. This amendment returns to the question of whether the framework document should be subject to parliamentary approval. I apologise to noble Lords if they have not received the letter that my noble friend Lord McNally and I have written. A copy of the letter was sent to the noble Baroness and to the noble Lord, Lord Beecham, and I am sorry if they have not received it. I also sought to make arrangements for the document to be available in the Printed Paper Office today, but I have to say that when I went into the office shortly before I came to answer Questions here in the House, I noted that it was not there. I apologise to noble Lords for that because I take seriously my responsibility to try to inform them on these issues. However, I am pleased that we do at least have the outline framework document to inform our debate today.

This is going to be an important document that deals with the way in which the NCA is to operate. It is also clearly subsidiary to the actual provisions in the Bill. This is evidenced by the outline which I have sought to provide to noble Lords. On that subject, I note the disappointment of the noble Baroness in the document I have supplied, but I put it to noble Lords that it would be premature, at this stage in the legislative process, to produce a full draft of the document. The contents of the document should be informed by the parliamentary debates on the Bill as well as by the detailed work in progress to build the agency. But although it is only an outline of the final document, it does move us forward. It sets out clearly what the Government expect the framework document to cover and what it will not, a matter on which Peers were seeking clarity. It also answers a number of questions put by noble Lords, and in particular it gives an outline of the NCA’s management board arrangements, underlines the fact that the CEOP six principles will be upheld in the NCA, and clarifies that the director-general is expected to notify the Home Secretary and the relevant PCC of any use of directed tasking or directed assistance powers.

By sharing the outline I hope that I have given noble Lords some new information and I will be very interested to hear their comments, which will help to inform our ongoing work on the framework document. However, given that the outline clearly shows that the document will be subsidiary to the legislation and that it will be essentially an agreement between the Home Secretary and the director-general about how they will do their jobs in respect of the NCA, I do not think that it is either necessary or proportionate to require parliamentary approval. I am sure that had the Delegated Powers and Regulatory Reform Committee taken a contrary view, it would have done so, but we can take it from the committee’s report on the Bill that it was evidently content for this document to be laid before Parliament and no more.

In summary, while the framework document will clearly be an important procedural document for the director-general and the NCA, it is wholly secondary to the legislation and directly impacts only on the NCA and the Home Secretary. I therefore do not consider it necessary to require parliamentary approval or to expand the statutory consultation required for the document. I trust also that my noble friend Lady Hamwee is now clear about the relationship between the annual plan and the framework document, and the director-general’s functions in that regard. On the basis of my reassurances on this matter, I hope that my noble friend will be able to withdraw her amendment.

My Lords, I think the frustration over the outline framework document has arisen from the fact that, until discovering by accident only a matter of hours ago that the outline does exist, some of us had assumed that it did not. Not having had the letter, some noble Lords assumed that that was the case. However, these things can of course go wrong from time to time. One understands that. The other frustration is that the framework document, as the Minister has just confirmed, deals with ways in which the NCA is to operate. The outline is still more of a “what” than a “how”. It did make me think that it was worth your Lordships pursuing some of these points. The six principles of CEOP were spoken to with some passion by noble Lords at the previous stage, and they have made their way into this outline. I think the Minister can assume that some of us will be encouraged by that on other issues in the future.

As regards my own amendment, I am grateful for the explanation, which I did follow. It is a matter not only of my inability to bowl googlies—which I have never been able to do, and will never be able to do —but also of my lack of understanding beforehand. I thank my noble friend for the explanation and I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendments 19 and 20 not moved.

Clause 5 : Relationships between NCA and other agencies: tasking etc

Amendment 21

Moved by

21: Clause 5, page 4, line 38, at end insert—

“(c) may be made only if the Director General has first notified the Police and Crime Commissioner responsible for the totality of policing in that area”

My Lords, the purpose of this group of amendments is to place a duty on the director-general of the National Crime Agency to notify police and crime commissioners before making a request to a chief constable to perform a task under Clause 5. Likewise, a similar duty is placed on a chief constable to notify the police and crime commissioner before making a request of the director-general of the National Crime Agency to perform a task. The amendments also place a duty on the director-general to “make every reasonable effort” to notify the appropriate police and crime commissioner before issuing a direction to the chief constable for that police and crime commissioner’s area.

We had a debate on this issue in Committee when an amendment was moved referring to the director-general consulting the police and crime commissioner responsible for the policing of an area. The amendments today refer to notifying the police and crime commissioner. Without wanting to repeat everything that was said in Committee, one has to go over the argument again to some extent. A police and crime commissioner for a police area has a statutory duty to secure the maintenance of the police force for their area, to ensure that the police force is efficient and effective and to hold the chief constable to account for a wide range of duties and responsibilities, including the effectiveness and efficiency of the chief constable’s arrangements for co-operating with other persons in the exercise of the chief constable’s function. The police and crime commissioner will also be responsible for issuing a police and crime plan, which is required by law to set out a number of matters including the policing of the police area which the chief officer of police is to provide. However, it currently appears to be possible, under the terms of the Bill, for the director-general of the National Crime Agency to come to an agreement with the chief officer of a UK police force for that chief officer to perform a task of unspecified magnitude, scope or significance in relation to resources or impact, on behalf of the director-general or, alternatively, for the director-general of the National Crime Agency to perform a task of unspecified magnitude, scope or significance on behalf of the chief officer of a UK police force without any apparent duty in either case even to tell the elected police and crime commissioner, despite the significant statutory responsibilities the police and crime commissioner has in relation to their police force.

If the director-general of the National Crime Agency was requesting the chief officer of a UK police force to carry out a task which could well have an impact on the efficiency and effectiveness of the police force in question or on their ability to deliver or adhere to the police and crime plan, one would have thought that it was a matter on which the director-general of the National Crime Agency should be required at least to notify the police and crime commissioner. Likewise, if the chief officer of a UK police force found it necessary to request the director-general of the National Crime Agency to perform a task on behalf of or in support of that police force, there should be a duty on the chief officer first to notify—that is what the amendment now calls for—the police and crime commissioner who, after all, might want to satisfy himself or herself that this was not a task that their own police force should be competent and capable of performing and that the request to the director-general was not, in reality, seeking to cover up a weakness in the performance of their police force.

When we debated this issue in Committee, the Government’s response was that we were putting forward amendments that would put at risk the operational independence of chief constables. We said at the time that that seemed a bit rich. Bearing in mind that our amendments state “has first notified”, it would be stretching it a bit if the Minister were to tell us again that we are putting at risk operational independence. Clearly, if directions are being issued to a chief constable by the director-general of the National Crime Agency they could well, under the terms of the Bill, be of a magnitude, size and scope that could call into question the ability of that chief constable to adhere to or deliver the plans and strategic objectives of the police and crime commissioner.

It was also said in Committee that if the director-general of the National Crime Agency had to consult the police and crime commissioner that would cause delay and it might be an emergency. We have sought to address that issue, unlikely though it would be to arise, by once again referring in the amendment to the director-general having to make “every reasonable effort” to notify the police and crime commissioner before issuing a direction to the chief constable for their particular area.

I hope that the Minister’s response will be more helpful than the one we received in Committee. In the wording of the Bill there are no parameters laid down which means that, on the key issue of the director-general of the NCA being able to come to either a voluntary arrangement with or, if he feels it necessary, give a direction to a chief constable, this could be of unlimited scope and have a very considerable impact on the ability of that chief constable to deliver the strategic objectives of the police and crime commissioner for the area. That there is no requirement at all for the director-general even first to notify the police and crime commissioner could, indeed, have an effect on the ability to deliver, for a period of time, effective policing in that area. That is the purpose of the amendments. I hope that the Minister will be able to give a more sympathetic response than the one we received in Committee. I beg to move.

My Lords, I have been trying to work out how this Bill was prepared and I can only assume that there was collective amnesia in the part of the Home Office that was preparing it about their other major piece of legislation, which created police and crime commissioners. The mentions of police and crime commissioners in this Bill are few and far between. Had it not been so vigorously resisted by the Minister in Committee, I would have assumed that it was a simple drafting error not to include that the police and crime commissioner should be informed or, better still, consulted—although today’s amendment possibly moves us away from that—about a possible direction or requirement for the use of resources in their area.

Has the Home Office really thought about the practical politics that will arise and the consequences that may flow from failing to put this very simple provision into the Bill? Put yourself into the position of someone who has been elected earlier this month to the position of police and crime commissioner. They sit there with all the majesty of their electoral mandate: many of them have had as much as 4% of the electorate in their areas voting for them, so they know that they have the people behind them. It is clear that they have a substantial, legislative obligation on behalf of the communities they represent, whether it is the 4% or all 100% of them, to hold the chief constable to account for the use of policing resources in that area. That is what the legislation that we spent so many happy hours debating a year or so back was all about. Yet here is a provision in the Bill which enables the director-general of the National Crime Agency to require the use, either by direction or agreement, of police forces in their area.

I can conceive of circumstances in which police and crime commissioners have been elected having said very clearly that their prime focus is going to be on local crime concerns in their particular patch and that they want “zero tolerance”—a number of them did in fact say in their manifestos and websites that they wanted zero tolerance of crime on the streets of their particular area. However, they are suddenly told—or they find out, perhaps because their chief constables tell them, they read it in the newspapers or hear some gossip—that a substantial proportion of the local resources that they thought were going to be devoted to keeping street crime and burglary down in the areas of their mandate is being diverted to some, no doubt very important, serious crime operation. You are likely to then get precisely the sort of row about operational policing that we have said we do not wish to see between police and crime commissioners and chief constables, because police and crime commissioners will suddenly discover that the resources that they thought were being devoted to dealing with crime in their patch are being diverted to another—no doubt very worthy and important—area.

The very simple, practical and political—with a small “p”—way of doing this is to have an obligation on the director-general to at least inform, if not consult, the police and crime commissioner. That might perhaps ensure that, because they hear it first from the National Crime Agency—the people who are making the request—they have an understanding of it. That is much more likely to be acceptable to a police and crime commissioner than their hearing about it from some other source. I wonder why the Home Office, having devoted so much energy, effort and even money into having police and crime commissioners elected, has then excluded them from this part of the Bill. Unless my noble friend’s amendment is passed, you are going to have a situation in which you almost encourage conflict and a reaction from police and crime commissioners saying, “I do not wish the see the resources of my police force area being diverted for those national or other purposes”. You will have created a conflict, because the police and crime commissioner does not have the right to be informed by the National Crime Agency of what is being done.

Maybe the Minister will tell us in a couple of minutes that his expectation is that the chief constable will explain it to the police and crime commissioner. It looks as though that may well be what is in the Minister’s brief. Of course there will be discussion and dialogue, but the common courtesy of the director-general of the National Crime Agency going to the police and crime commissioner to say, “I am about to make this request”, or, “I am asking your chief constable for this”, and, “These are the reasons”, will smooth the passage and make this work better. I cannot understand why, for the sake of a simple telephone call or e-mail, this has been omitted from the legislation. The reality is that it would not delay things, but would make them less liable to create conflict between the police and crime commissioner and the chief constable who has accepted the request from the National Crime Agency director-general, with the police and crime commissioner grandstanding about how he or she is fighting for the people of his or her area and about not having police services diverted to other functions because those services are there for the people of his or her community.

My Lords, that was an interesting contribution from the noble Lord, Lord Harris of Haringey, on this series of amendments. I am pleased that the noble Lord, Lord Rosser, has drawn these amendments to the attention of the House again—they are in a somewhat changed form but really representing the same point as before—because it draws attention to the tasking responsibilities and the arrangements between the National Crime Agency and UK police forces. It is important to stress—and I think I can reassure the noble Lord, Lord Harris, on this—that chief constables head up the operational arrangements for police forces and that the director-general deals with the operational arrangements within the NCA. I am afraid that I take the view that he thought I would take. I am sure that these are perfectly proper roles. We will come on perhaps to talk about how relationships between PCCs and chief constables might develop. They are not part of the Bill but they are associated with the issues that these amendments cover. I will say that these amendments do not apply to Scotland or Northern Ireland, where they do not have PCCs.

I am not convinced of the need to write requirements into the Bill. Tasking is an operational matter and the provisions for two-way tasking enable the NCA and its partners to draw on each other’s support for operational activities in the fight against serious and organised crime. These arrangements provide the opportunity for chief constables to draw on the NCA’s specialist services—for example, intelligence, overseas and cyber assets, and these sorts of things—and also enable the director-general of the NCA to draw on a partner’s assets.

I expect voluntary tasking between the NCA and partners will take place on a routine, day-by-day basis, based on shared priorities and mutual co-operation. I see no need for police and crime commissioners to be routinely notified, any more than they would necessarily be routinely notified when one police force provides mutual aid to another, which is a common enough occurrence, as the noble Lord will know. However, I accept that directed tasking, and indeed directed assistance, is of a different order. That is why we have included in the outline of the framework document a requirement on the director-general to notify the Home Secretary and the relevant PCC, as soon as feasible—which is rather similar to the wording in the amendment—if he issues a direction to the chief constable of a police force to perform a task or to provide assistance.

In short, I hope that we have paid attention to the points that have been made by the Opposition on this point and to the premise behind these amendments. However, the appropriate place to set out a requirement to notify PCCs of any direction to a police force is in the framework document. I believe that the relationships between PCCs and chief constables will be intimate and regular enough for these matters to be commonly discussed as a matter of information exchange between both parties on a day-to-day working basis. I hope, on that basis, that the noble Lord will feel able to withdraw his amendment.

I thank the Minister for his response and also thank my noble friend Lord Harris of Haringey for his most effective contribution to the short debate. In moving my amendment, I made the assertion that the kind of task that the director-general might be seeking a chief constable to perform on behalf of the director-general could be one of unspecified magnitude, scope or significance in relation to resources or impact. I note that, in the Minister’s response, he did not seek to give any assurance that these tasks would be minor or not have an impact on resources. I therefore assume that the point that I made, that these tasks could be of considerable magnitude and have a significant impact on resources, was a valid one. I am quite sure that if it was not, the Minister would have been very quick to tell me that I had got it wrong.

Bearing in mind his silence, or his lack of response to the claim that I made, if the kind of task that the director-general of the NCA might seek to get an agreement with a chief constable to perform could have a significant impact on resources and their use, it seems a bit of a mystery to say that there would be no requirement to even first notify the police and crime commissioner, when clearly that could have an impact on the objectives that that police and crime commissioner has set. The Minister has not explained in his response why that should not be the case, bearing in mind that he has not contested the point that these arrangements and agreements between the director-general and the chief constable could have an impact on resources and that they would not be merely covering minor issues. The Minister has sought to say that these agreements might be things that do not cover anything of great significance on a day-to-day basis, and to ask why there would therefore be a need to notify the police and crime commissioner. What he has not refuted, however, is that the agreements that the director-general of the NCA might seek to make with a chief constable could have a significant impact on resources. Yet, even so, the Minister resists the amendment, which is only to say that the police and crime commissioner should be first notified.

I appreciate what the Minister said about the framework document, but that does not cover all the issues raised in this amendment. It does not cover all the agreements that might be reached between the director-general and a chief constable: far from it. It does not cover them all and the Minister has not really given a proper explanation as to why that is the case. However, I have to make a decision on whether to pursue these amendments or otherwise. I am disappointed with the responses; I do not think that we have had a complete answer to the legitimate issues that my noble friend Lord Harris of Haringey and I have raised, but there it is. We cannot force a Minister to respond to the arguments that are put forward. In view of that, I beg leave to withdraw my amendment.

Amendment 21 withdrawn.

Amendments 22 and 23 not moved.

Schedule 3 : Relationships between NCA and other agencies

Amendment 24

Moved by

24: Schedule 3, page 43, line 6, leave out “any NCA function” and insert “—

(a) the crime-reduction function,(b) the criminal intelligence function, or(c) functions conferred by the Proceeds of Crime Act 2002.”

My Lords, I am pleased to propose this short series of government amendments. Intelligence will sit at the heart of the National Crime Agency and will drive its crime-fighting activity across its operational commands. The NCA’s intelligence hub will be a vital component of the fight against serious and organised crime. It will gather intelligence to identify targets and threats and will enable the agency to direct operational activity against the most serious threats to the public.

The success of the NCA’s intelligence hub will be based on its ability to access and analyse information. Recent serious crimes have strongly highlighted the need for strengthened information-sharing agreements across government and the law enforcement community. Schedule 3 already contains a duty on UK police forces to keep the NCA informed of any information they hold which appears to be relevant to the exercise of NCA functions and to disclose this information on request.

However, we know that organised crime gangs come into contact with a number of different agencies. They are involved in corruption, using fraudulent passports and in some cases amassing property empires, as well as gun running and drug dealing. We believe that the public can be better protected from the damaging effects of serious and organised crime by improving the intelligence picture across a wide range of organisations. As a result, Amendment 25 will extend the existing duty on the police to the Serious Fraud Office, the UK Border Agency and the UK Border Force, to increase the information flows between the NCA and a wider range of government bodies.

Amendments 31 and 120 complement Amendment 25 by conferring a power to add to the list of bodies subject to the information-sharing duty by order. Any such order would be subject to the affirmative procedure. This is necessary for two reasons. First, it is a reality that the remit and structures of relevant agencies and bodies change over time; for example, in response to the changing nature of a threat. Secondly, if an organisation consistently refused reasonable and appropriate requests for information, to the detriment of collective law enforcement efforts to respond to serious criminal activity, it would be right and proper for the Government to have the means to consider, through secondary legislation, whether that body should be subject to the strengthened duty to share information.

Of course, information sharing needs to be balanced with safeguards to protect personal and other sensitive information. Schedule 7 to the Bill sets out a number of important restrictions which will apply to the onward disclosure of information by the NCA. Amendment 36 is a drafting amendment which makes it clear beyond doubt that those restrictions on onward disclosure apply to the duty to share as well as to the permissive gateway in Clause 7.

Finally, Amendment 24 brings the duty on UK police forces in Schedule 3 into line with the new duty on the Serious Fraud Office, the UK Border Agency and the UK Border Force. This means that the duty on UK police forces is also now restricted to the crime reduction, criminal intelligence and the Proceeds of Crime Act functions conferred on the NCA. I beg to move.

Amendment 24 agreed.

Amendments 25 and 26

Moved by

25: Schedule 3, page 43, line 22, at end insert—

“Duty to keep NCA informed: government bodies4A (1) Each specified body must keep the Director General informed of any information held by that body which—

(a) is held in connection with the exercise of a relevant function of that body, and(b) appears to that body to be relevant to the exercise by the NCA of—(i) the crime-reduction function,(ii) the criminal intelligence function, or(iii) functions conferred by the Proceeds of Crime Act 2002.(2) Where a specified body informs the Director General of such information, that body must disclose to the NCA any of that information which the Director General requests that body to disclose.

(3) This paragraph does not require a specified body to keep the Director General informed of information which appears to that body to be information obtained (whether directly or indirectly) from the NCA.

(4) This paragraph does not require the Director of the Serious Fraud Office to keep the Director General informed of, or to disclose to the NCA, any information obtained under section 2(2) or (3) of the Criminal Justice Act 1987 (information which the Director of the SFO may require a person to produce etc).

Duty to keep government bodies informed4B (1) The Director General must keep each specified body informed of any information obtained by the NCA in the exercise of any NCA function which appears to the Director General to be relevant to the exercise by that specified body of any relevant function for the purposes of carrying out activities to combat crime.

(2) This paragraph does not require the Director General to keep a specified body informed of information which appears to the Director General to be information obtained (whether directly or indirectly) from that body.

Meaning of “specified body” & “relevant function”4C In paragraphs 4A and 4B—

(a) “specified body” means a body specified in the first column of this table;(b) “relevant function”, in relation to such a body, means a function that falls within the functions specified in relation to that body in the second column of this table.

Specified bodies

Relevant functions

The Secretary of State.

Functions relating to immigration, nationality or customs.

The Director of Border Revenue.

All functions.

The Director of the Serious Fraud Office.

Investigatory functions (but not any prosecution functions).”

26: Schedule 3, page 45, line 8, leave out “a police force” and insert “an England and Wales police force or a direction to the Chief Constable of the British Transport Police”

Amendments 25 and 26 agreed.

Amendment 27

Moved by

27: Schedule 3, page 45, line 30, at end insert—

“( ) 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.”

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.

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.

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.

Amendment 27 withdrawn.

I have to inform the House that if Amendment 28 is agreed to, I cannot call Amendment 29 by reason of pre-emption.

Amendment 28

Moved by

28: Schedule 3, page 50, line 14, leave out from “agreement,” to end of line 15 and insert “by determination in accordance with arrangements provided by the framework document”

My Lords, when one hears the Lord Chairman remind the House of the point of pre-emption, one feels one should start the speech with, “I wish”.

This group of amendments deals with payments between the NCA and police forces in the event of tasking, and Amendment 28 is about how the payment is determined. Paragraph 29(1) provides that if the parties cannot agree on the amount to be paid then it is a matter for the Secretary of State to determine. I had a similar amendment at the last stage, and the noble Earl, responding for the Government, explained that determination was not on a case-by-case basis but referred to overall principle. I still have some difficulty in reading the paragraph that way, because it refers to the “amount”. If it referred to the absence of agreement as to the formula or the calculation, I would understand it.

The outline of the framework document deals with the question of tasking. The basis for the determination should be in the framework document. That is what my amendment would provide. Fees and charges are mentioned, but those seem to be a different issue. At the moment, and of course continuing, we will have a position where there is mutual aid between police forces. As I understand it, payment for mutual aid is a matter that is in the public domain—I believe that ACPO deals with it. There should be a similar approach, and the schedule should not allow for case-by-case determination, even if that is not what is envisaged, because as it is drafted it would be allowed for. I beg to move.

My Lords, we have two amendments in this group, and I suspect that the purpose of our amendments is not dissimilar to the intention behind the amendment moved by the noble Baroness, Lady Hamwee.

The Bill appears to provide for the Secretary of State to act as final arbiter over disputes arising between, for example, the National Crime Agency and police forces over compensation for resources provided under voluntary or directed assistance. It is not appropriate for the Secretary of State to have such a role, because it could introduce a potential conflict of interest. The Secretary of State is responsible for the National Crime Agency budget, but police force budgets will be under the control of the police and crime commissioner, so one could argue that the Secretary of State has an interest in the outcome of a decision over who should be paying what in any compensation that is required.

Our amendments provide for an independent advisory panel, rather than the Secretary of State, to arbitrate payments, which is not going down quite the same road as the amendment that has been moved by the noble Baroness, Lady Hamwee. Certainly, the objective behind our amendment—perhaps the Minister will have an alternative solution—is to say that the Secretary of State, having responsibility for the National Crime Agency budget, could be deemed to be an interested party. Therefore, the Secretary of State should not act as final arbiter over disputes, but some other means should be used to make that decision. Some other body, organisation, procedure or process should be used to resolve disputes that arise, rather than it being in the hands of the Secretary of State, for the reasons that I have mentioned.

My Lords, I hope I can persuade my noble friend Lady Hamwee and the noble Lord, Lord Rosser, that these amendments are unnecessary. First, I will emphasise that the National Crime Agency will build on the policy of the Serious Organised Crime Agency, which is not to charge law enforcement partners for tasks, assistance and facilities unless agreed with partners beforehand; for example, in exceptional circumstances.

This means that law enforcement partners will have the opportunity to draw on the National Crime Agency’s specialist services, including investigative, overseas, cyber, forensic and civil recovery assets, free of charge. The National Crime Agency will make intelligence available to partners on a routine basis, which will result in more effective deployment of partner resources. For example, the National Crime Agency’s intelligence functions will ensure that multiple partners do not investigate the same criminals or gangs without being aware of each other’s activities.

Where, exceptionally, there is cross-charging between the NCA and other law enforcement agencies, we fully expect that agreement will be reached between the parties as to the level of any charges. However, the provision for the Secretary of State to determine the appropriate amount payable for tasks, assistance or facilities between the director-general of the NCA and partners, is a necessary backstop power in the event that agreement cannot be reached. In this respect, the Bill broadly replicates current arrangements for payments for assistance and facilities that are set out in Part 1 of the Serious Organised Crime and Police Act 2005. It is important to note that agreement has always been reached between the Serious Organised Crime Agency and partners with regard to charging, and so these backstop provisions have never been used. But it is important to have them none the less, because without them, problems are more—not less—likely to arise. It is also a good reason why we do not need to establish an advisory panel, which I will come to in a moment.

I am not persuaded that my noble friend’s amendment takes us much further forward. Her amendment does not specify what alternative arrangements would be provided for in the framework document. We are still left with the conundrum as to what is the most sensible and efficient way to break any deadlock. It is also important to bear in mind that other law enforcement agencies are not a party to the framework document—that is, between my right honourable friend the Secretary of State and the director-general of the NCA. Therefore, they are not required to have regard to the arrangements in the framework document in the same way as the director-general is.

The noble Lord, Lord Rosser, would establish an advisory panel on payments to take the place of the Secretary of State in settling any disputes around payments. I put it to him that such an advisory panel would add an unnecessary layer of bureaucracy to the cross-charging arrangements. The Home Secretary is ultimately responsible for the efficiency and effectiveness of policing in England and Wales, and in these circumstances I see no reason, as with the Serious Organised Crime Agency, why she should not assume responsibility for settling any disputes in this area. These arrangements may well concentrate the parties’ minds.

In short, this provision in paragraph 29 of Schedule 3 offers the most appropriate and streamlined mechanism for settling any disputes in respect of cross-charging. It has not given rise to any difficulties in relation to SOCA, and accordingly I ask my noble friend and the noble Lord, Lord Rosser, to withdraw their amendments.

My Lords, perhaps I can use this moment to ask if—possibly not immediately, but shortly—the Whips could clarify how far we will go on this evening. I was told that we would finish after disposing of Amendment 78, but the Annunciator is talking about Amendment 107A, which may cause some of us a little panic.

I thank the Minister. Perhaps we should calm down, or even, “Calm down, dear”.

I do not suggest, with my amendment, that there should not be a backstop if the parties cannot reach agreement, but it is better to have a formula. My amendment does not specify the detail of the arrangement because I was doing the Government the courtesy of allowing them to put that into the framework document when they come up with it. I have heard what the noble Earl has said and beg leave to withdraw my amendment.

Amendment 28 withdrawn.

Amendments 29 to 30 not moved.

Amendment 31

Moved by

31: Schedule 3, page 51, line 20, at end insert—

“Duty to provide information etc: power to amend specified bodies etc30A (1) The Secretary of State may, by order, amend paragraph 4C of this Schedule by making any of the following kinds of provision—

(a) provision adding a person to the specified bodies in the relevant table;(b) provision specifying in the relevant table one or more relevant functions in relation to—(i) the Secretary of State, or(ii) a person added to the specified bodies by virtue of sub-paragraph (a);(c) provision removing from the relevant table provision made by virtue of sub-paragraph (a) or (b).(2) But the Secretary of State may not add any of the following to the specified bodies—

(a) a person operating only in Scotland;(b) a person operating only in Northern Ireland.(3) Before making provision under this paragraph which adds a person to the specified bodies, the Secretary of State must consult that person.

(4) In this paragraph “relevant table” means the table in paragraph 4C.”

Amendment 31 agreed.

Clause 9 : Director General: customs powers of Commissioners & operational powers

Amendment 31A

Moved by

31A: Clause 9, page 8, line 6, leave out paragraph (b)

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.

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.

The regulations could therefore provide that, as long as a person has received police powers training, or equivalent training in the exercise of immigration or customs powers, that person can, without the need to convene an advisory panel, be designated with the relevant operational powers. As I have indicated, any such regulations would be subject to the affirmative procedure and would have to be debated and approved by both Houses. This is not about circumventing the important safeguards that we have put in place but ensuring that the process for designating the director-general with operational powers is not unnecessarily bureaucratic and is fit for purpose. With the assurance that I will write again to the noble Baroness, I hope that she will be able to withdraw her amendment.

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.

Amendment 31A withdrawn.

Schedule 5 : Police, customs and immigration powers

Amendment 31B not moved.

Amendments 32 to 34

Moved by

32: Schedule 5, page 59, line 4, at end insert “and”

33: Schedule 5, page 63, leave out line 43

34: Schedule 5, page 64, line 27, at end insert—

“(3) In this paragraph “enactment” includes a description of enactments.”

Amendments 32 to 34 agreed.

Clause 11 : Inspections and complaints

Amendment 35

Moved by

35: Clause 11, page 10, line 30, leave out paragraph (d) and insert—

“(d) omit subsection (7).”

Amendment 35 agreed.

Clause 12 : Information: restrictions on disclosure etc

Amendment 36

Moved by

36: Clause 12, page 10, line 38, after “officer” insert “(including the duty of the Director General under paragraph 4 or 4B of Schedule 3 to disclose information by keeping other persons informed of information obtained by the NCA)”

Amendment 36 agreed.

Schedule 7 : Information: restrictions on disclosure

Amendment 37

Moved by

37: Schedule 7, page 70, line 28, leave out “This Part of”

My Lords, I will speak also to Amendment 38. In Committee I sought to understand the relationship between Schedules 6 and 7. Paragraph 1 of Schedule 7 provides that,

“This Part of this Act”—

I will come back to those words in a moment—

“does not authorise or require”,

disclosures which would be prohibited by the Data Protection Act or Part I of the Regulation of Investigatory Powers Act, which are importance provisions. Among other things, I did not then, and still do not quite, understand whether the regulations that may be made under paragraph 5 of Schedule 6 could override primary legislation. These amendments are in response to the noble Earl’s assurances that neither of these Acts is affected. However, we still have a provision in paragraph 5(5) of Schedule 6 that the Secretary of State can make regulations regarding the disclosure of information which, under paragraph 5(6), may,

“modify any provision of Schedule 7 in its application to such a disclosure, or … disapply any such provision from such a disclosure”.

I would be grateful if, in the light of the permissive arrangement under Schedule 6, the Minister could confirm that it does not mean what it seems to when we get to paragraph 1 of Schedule 7.

My second question concerns,

“This Part of this Act”.

Can the Minister confirm that that means Part 1 of the Bill rather than Part 1 of this schedule? I think it is that way round. Given that “This Part” could refer to part of the schedule or the main part of the Bill, it would be helpful to have it confirmed. I would also like to give my thanks to those who have corrected the annunciator. My blood pressure and that of the noble Earl have come down considerably over the past five minutes as a result. We will see how many noble Lords get caught out by how swiftly we are going to move from Amendment 38 to Amendment 78.

My Lords, I thank my noble friend Lady Hamwee for explaining her amendments. I am sure that she would be pleased to know that we both want the same thing, namely that nothing in Part 1 of the Bill enables the National Crime Agency or others to override or modify the application of the Data Protection Act 1998 or the Regulation of Investigatory Powers Act 2000 in relation to the disclosure of information.

The aim of the restrictions on disclosure set out in Schedule 7 is to ensure that any onward disclosures by NCA officers will, among other things, be subject to the existing safeguards in data protection legislation. The current wording does not provide any powers to amend existing primary legislation and therefore inserting “modify” is unnecessary. Without the provision in paragraph 1 of Schedule 7, the information gateways provided for in Clause 7 could be read as being capable of overriding the provisions of the Data Protection Act and RIPA.

There is no need to extend these statutory restrictions to cover the whole Bill as we are dealing here only with the information gateways available to the National Crime Agency and its law enforcement partners, as provided for in Part 1 of the Bill. My noble friend is correct that we are referring to Part 1 of the Bill. I hope my noble friend is reassured that paragraph 1 of Schedule 7 is necessary to prevent any overriding of the important safeguards in data protection legislation and, on that basis, would agree to withdraw her amendments.

My Lords, I thank the noble Earl for that. I still have a feeling that one should issue Hansard as an annexe to the Act when it is published to explain that, but I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendment 38 not moved.

Schedule 8 : Abolition of SOCA and NPIA

Amendments 39 to 55

Moved by

39: Schedule 8, page 76, line 19, leave out sub-paragraph (ii)

40: Schedule 8, page 76, line 25, leave out “(a “designated transferee”)”

41: Schedule 8, page 76, line 26, at end insert—

“(aa) for a designated member of the staff of the NPIA to become employed in the civil service of the state—(i) as an NCA officer, or(ii) in the Home Office;”

42: Schedule 8, page 76, line 30, at end insert “or in the Home Office”

43: Schedule 8, page 76, line 31, after “NCA” insert “or the Secretary of State”

44: Schedule 8, page 76, line 37, after “NCA” insert “or the Secretary of State”

45: Schedule 8, page 76, line 38, leave out “an NCA officer” and insert “employed in the civil service of the state under a staff transfer scheme”

46: Schedule 8, page 76, line 43, leave out “an NCA officer” and insert “employed in the civil service of the state”

47: Schedule 8, page 76, line 43, leave out “such a member of staff” and insert “so employed”

48: Schedule 8, page 77, line 6, leave out “an NCA officer” and insert “employed in the civil service of the state”

49: Schedule 8, page 77, line 12, leave out “as an NCA officer” and insert “in the civil service of the state”

50: Schedule 8, page 77, line 22, leave out paragraph (b)

51: Schedule 8, page 77, line 25, at end insert—

“or for the transfer to the NCA or the Secretary of State of designated property, rights or liabilities from the NPIA.”

52: Schedule 8, page 77, line 32, after “NCA” insert “or the Secretary of State;

(ba) provide for anything done by a transferor which gives rise to criminal liability to be treated as done by the NCA or the Secretary of State and, in such a case, provide that Crown immunity does not affect the criminal liability of the NCA or Secretary of State;”

53: Schedule 8, page 77, line 41, after “document” insert “or other instrument, contract or legal proceedings”

54: Schedule 8, page 77, line 42, after “NCA” insert “or the Secretary of State”

55: Schedule 8, page 78, line 6, at end insert—

““designated transferee” means a person in respect of whom a staff transfer scheme makes provision of the kind referred to in paragraph 2(1)(a) or (aa);“Home Office” means the department of the Secretary of State having responsibility for policing;“instrument” includes a designation, authorisation, warrant, or order of any court;”

Amendments 39 to 55 agreed.

Amendment 56

Moved by

56: Schedule 8, page 78, line 15, at end insert—

“Continuity in relation to functions5A (1) The abolition of SOCA or the NPIA does not affect the validity of anything done before the abolition.

(2) The transfer of a function does not affect the validity of anything done before the transfer.

(3) Sub-paragraphs (4) to (6) apply in relation to the transfer of a function.

(4) Where anything—

(a) relates to the transferred function, and(b) is in the process of being made or done by or in relation to the transferor immediately before the transfer takes effect,it may be continued afterwards by or in relation to the transferee.(5) Where anything—

(a) relates to the transferred function,(b) has been made or done by or in relation to the transferor, and(c) is in effect immediately before the transfer takes effect,it has effect afterwards as if made or done by or in relation to the transferee.(6) The transferee is to be substituted for the transferor in any documents and other instruments, contracts or legal proceedings which—

(a) relate to the transferred function, and(b) are made or commenced before the transfer takes effect.(7) The Secretary of State may, by direction, determine any question under this paragraph as to—

(a) whether there has been a transfer of a particular function, or(b) the person to whom there has been a transfer of a particular function.

(8) The preceding provisions of this paragraph are without prejudice to the powers under section 32 (transitional, transitory or saving provision).

(9) The following provisions of this paragraph apply for the purposes of this paragraph.

(10) A reference to—

(a) the abolition of SOCA includes a reference to the ending of a person’s membership of SOCA or membership of the staff of SOCA;(b) the abolition of the NPIA includes a reference to the ending of a person’s membership of the NPIA or membership of the staff of the NPIA.(11) A reference to the transfer of a function is a reference to—

(a) the transfer of a SOCA function by or under this Act,(b) the transfer of an NPIA function by or under this Act, and(c) the assumption of a third party function by the NCA.(12) For that purpose—

(a) the reference to the transfer of a SOCA function or NPIA function by or under this Act includes a reference to a case where—(i) a SOCA function or NPIA function is abolished, and(ii) a corresponding function is conferred on another person,by or under this Act; (b) the reference to the assumption of a third party function by the NCA is a reference to the case where—

(i) a function (other than a SOCA function or an NPIA function) is exercisable before the changeover by a person (the “third party”),(ii) a corresponding function is included in the NCA functions, and(iii) a person employed by, or otherwise serving, the third party wholly or partly for the purpose of the exercise of the function becomes an NCA officer under a staff transfer scheme;and references to the transferred function, the transferor and the transferee are to be read accordingly.(13) A reference to a thing being, or having been, made or done includes—

(a) a reference to—(i) a document or other instrument being, or having been, made or otherwise produced,(ii) a contract being, or having been, agreed, and(iii) legal proceedings being, or having been, brought; and(b) a reference to a thing being, or having been, made or done under—(i) a document or other instrument,(ii) a contract, or(iii) legal proceedings.(14) A reference to a thing which relates to a transferred function includes a reference to a thing made or done for the purposes of, or otherwise in connection with, a transferred function.

(15) These expressions have the meanings given—

“instrument” includes a designation, authorisation, warrant, or order of any court;“NPIA functions” means functions of—(a) the NPIA,(b) a member of the NPIA, or(c) a member of the staff of the NPIA;“SOCA functions” means functions of—(a) SOCA,(b) a member of SOCA, or(c) a member of the staff of SOCA.Continuity in relation to subordinate legislation5B (1) After the changeover, the subordinate legislation specified in an entry in the first column of the following table—

(a) continues to have effect (subject to any subsequent amendment or revocation) as if made under the powers conferred by the provision of this Act specified in the corresponding entry in the second column; and(b) may be amended or revoked by (in particular) the exercise of the powers conferred by that provision.

Subordinate legislation

Provision of this Act

The Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order 2006 (S.I. 2006/987)

Paragraphs 27 to 29 of Schedule 5

The International Joint Investigation Teams (International Agreement) Order 2009 (S.I. 2009/3269), insofar as it is made under powers conferred by the Serious Organised Crime and Police Act 2005

Paragraph 5(1)(c) of Schedule 4

The Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2010 (S.I. 2010/1955)

Paragraph (p) of the definition of “permitted purpose” in section 16(1)

(2) Insofar as subordinate legislation continues to have effect by virtue of sub-paragraph (1), it does so subject to the following modifications.

The Serious Organised Crime and Police Act 2005 (Application and Modification of Certain Enactments to Designated Staff of SOCA) Order 2006 (S.I. 2006/987)

Articles 2 and 4(4) and paragraph 21 of Schedule 1

The reference to section 43(1)(a) of the Serious Organised Crime and Police Act has effect as a reference to section 9 or 10 of this Act

Articles 3(b) and 4(1)(b)

The reference to Chapter 2 of Part 1 of the Serious Organised Crime and Police Act 2005 has effect as a reference to Part 1 of this Act

Article 4(3)

The reference to section 46 of the Serious Organised Crime and Police Act 2005 has effect as a reference to Part 4 of Schedule 5 to this Act

Article 5 and Paragraph 6 of Schedule 2

The reference to section 43(1)(c) of the Serious Organised Crime and Police Act 2005 has effect as a reference to section 9 or 10 of this Act

Articles 6(b) and 7(1)(b)

The reference to Chapter 2 of Part 1 of the Serious Organised Crime and Police Act 2005 has effect as a reference to Part 1 of this Act

Schedule 1

Each reference to a SOCA office has effect as a reference to a place for the time being occupied by the National Crime Agency

The International Joint Investigation Teams (International Agreement) Order 2009 (S.I. 2009/3269

Article 2(d)

The reference to sections 30(5)(c) and 57(6)(c) of the Serious Organised Crime and Police Act 2005 has effect as a reference to paragraph 5(1)(c) of Schedule 4 to this Act

The Serious Organised Crime and Police Act 2005 (Disclosure of Information by SOCA) Order 2010 (S.I. 2010/1955)

Article 2

The reference to section 33 of the Serious Organised Crime and Police Act 2005 has effect as a reference to the definition of “permitted purpose” in section 16(1) of this Act

(3) The modifications applicable to any subordinate legislation by virtue to sub-paragraph (2) are in addition to any other modifications applicable to that subordinate legislation (whether by virtue of Part 4 of Schedule 8 or otherwise).

(4) The preceding provisions of this paragraph are without prejudice to sections 31 (consequential amendments) and 32 (transitional, transitory or saving provision).”

Amendments 57 and 58 (to Amendment 56) not moved.

Amendment 56 agreed.

Amendments 59 to 70

Moved by

59: Schedule 8, page 82, line 2, leave out paragraph 17

60: Schedule 8, page 84, line 2, leave out “this Schedule” insert “Schedule 8 to the Crime and Courts Act 2013”

61: Schedule 8, page 84, line 10, leave out “this Schedule” insert “Schedule 8 to the Crime and Courts Act 2013”

62: Schedule 8, page 84, line 14, after “25(2)(k)” insert “or 26(2)(g)”

63: Schedule 8, page 84, line 25, at end insert—

“(2) In section 27B of that Act (actions for recovery of property for purposes of an external order), in subsection (8), for paragraph (a) substitute—

“(a) the National Crime Agency,”. Road Traffic Regulation Act 1984 (c. 27)27A (1) Section 87 of the Road Traffic Regulation Act 1984 (exemptions from speed limits) is amended in accordance with this paragraph.

(2) In that section (before its amendment by the Road Safety Act 2006), in subsection (2)(a) and (b), for “Serious Organised Crime Agency” substitute “National Crime Agency”.

(3) In that section (after its amendment by the Road Safety Act 2006), in subsection (1)(a), for “Serious Organised Crime Agency” substitute “National Crime Agency”.”

64: Schedule 8, page 84, line 44, at end insert—

“Ministry of Defence Police Act 1987 (c. 4)28A (1) Section 2C of the Ministry of Defence Police Act 1987 (constables serving with SOCA) is amended in accordance with this paragraph.

(2) In the title, for “Serious Organised Crime Agency” substitute “National Crime Agency”.

(3) In subsection (1)—

(a) for “Serious Organised Crime Agency” (in the first place) substitute “National Crime Agency”;(b) in paragraph (b), for “Serious Organised Crime Agency” substitute “Director General of the National Crime Agency”.(4) In subsection (2)(a), for “Serious Organised Crime Agency” substitute “Director General of the National Crime Agency”.

Road Traffic Act 1988 (c. 52)28B (1) In section 124 of the Road Traffic Act 1988, subsection (1A) is amended in accordance with this paragraph.

(2) In the first sentence—

(a) for “SOCA instructor” substitute “NCA instructor”;(b) for “Serious Organised Crime Agency” substitute “National Crime Agency”.(3) In the second sentence—

(a) for “SOCA” substitute “NCA”;(b) for “a member of staff of the Serious Organised Crime Agency” substitute “an NCA officer”;(c) for “members of the Agency’s staff” substitute “NCA officers”.”

65: Schedule 8, page 85, line 12, leave out from “(1)(e),” to end of line 13 and insert “for “of the Serious Organised Crime Agency” substitute “an NCA special (within the meaning of Part 1 of the Crime and Courts Act 2013)”.”

66: Schedule 8, page 86, line 2, leave out from beginning to second “in” and insert—

“(1) Section 97 (police officers engaged on service outside their force) is amended in accordance with this paragraph.

(2) ”

67: Schedule 8, page 86, line 10, at end insert—

“(3) In subsection (6)(a)—

(a) omit “(cf), (cg)”;(b) after “(ci)” insert “, (cj)”.(4) In subsection (8), omit “(cf), (cg)”.

(5) After subsection (8) insert—

“(8A) A person who is member of a police force engaged on relevant service within paragraph (cj) of subsection (1) shall be treated for the purposes of sections 59, 60 or 64 as if the person were a member of that police force.”.

Employment Rights Act 1996 (c. 18)44A The Employment Rights Act 1996 is amended as follows.

44B In section 43KA (application of this Part and related provisions to police), in subsection (2)(b), for “Serious Organised Crime Agency to serve as a member of its staff” substitute “National Crime Agency to serve as a National Crime Agency officer”.

44C In section 134A (application to police), in subsection (3), for “Serious Organised Crime Agency” substitute “National Crime Agency”.”

68: Schedule 8, page 87, line 4, at end insert—

“Immigration and Asylum Act 199953A The Immigration and Asylum Act 1999 is amended as follows.

53B In section 20 (supply of information to Secretary of State), in subsection (1)(b), for “Serious Organised Crime Agency” substitute “National Crime Agency”.

53C (1) Section 21 (supply of information by Secretary of State) is amended in accordance with this paragraph.

(2) In subsection (2), for paragraph (b) substitute—

“(b) the National Crime Agency, for use in connection with the discharge of any function of that Agency;”.(3) Omit subsection (4).”

69: Schedule 8, page 88, line 3, leave out from “(2),” to end of line 5 and insert “omit paragraph (c).”

70: Schedule 8, page 90, line 9, leave out from “(7),” to end of line 11 and insert “omit paragraph (b).”

Amendments 59 to 70 agreed.

Amendment 71

Moved by

71: Schedule 8, page 90, line 39, after “Agency” insert “but only to the extent of information relating directly to the crime-reduction function or to the criminal intelligence function as defined in section 1”

My Lords, I shall speak also to Amendment 72. These amendments take us back to freedom of information. At the previous stage, I sought to include the National Crime Agency in the freedom of information regime, fully acknowledging that the exemptions under the Freedom of Information Act 2000 would quite often have to be called into play. At that time, the Minister acknowledged that exemptions would apply, but reminded me—or reminded the House, as I was aware of it—that SOCA and CEOP are not within the FOI arrangements. The NCA is about more than the constituent bodies. It is more than the sum of its parts, one might say. Police forces are within the freedom of information scheme, and it seems to me that the NCA will need to consider many of the issues considered by police forces, such as recruitment policies and budgets. Those issues can very often be dealt with in public and be subject to freedom of information requests, with answers being given without jeopardising national security.

The Minister was concerned that the operational effectiveness of the NCA would be endangered and said that the confidence of the NCA’s partners would be threatened if the NCA were subject to freedom of information. I thought that that latter argument was weak. The NCA’s partners should be confident that the NCA will use the exemptions available to it. Freedom of information arrangements are important. I am well aware that in practice it is not always comfortable when one is on the receiving end of freedom of information requests. That does not mean that the regime should be chipped away at by organisations not being subject to it. The Minister also said that organised criminals are very sophisticated. Is it a counsel of despair to think that they are more sophisticated than the NCA and our law enforcement agencies? That amounts to a failure to acknowledge the proper balance in an advanced and open democracy.

My amendments take a slightly different approach to dealing with the exemption by describing it as,

“only to the extent of information relating directly to the crime-reduction function or to the criminal intelligence function”.

Both those terms are defined earlier in the Bill. This is a matter of some principle, and I look forward to the Minister’s defence of the Bill’s position. I beg to move.

My Lords, I will be brief since we do not have an amendment down on this subject, albeit that we had one down in Committee when we sought to qualify the National Crime Agency exemption to cover only those functions subject to exemption prior to 1 April 2012. The noble Baroness, Lady Hamwee, has gone through some of the responses that we had from the government Dispatch Box during that debate, in which she also moved an amendment.

Looking at Hansard, I see that for my troubles in moving the amendment, the response from the government Dispatch Box was that what I was suggesting was “illogical or worse”. I am not quite sure what worse was meant to cover, but it sounds fairly serious. There appears to have been some support for my proposing something that was illogical or worse from the Joint Committee on Human Rights. It has done a report in which it stated:

“We are not convinced by the Government’s justification for reducing the coverage of freedom of information legislation by including within the NCA exemption functions which were previously covered by that legislation”,

which was the point that my amendment sought to address. It went on to state:

“We are concerned that reducing the coverage of this legislation in this way could create a dangerous precedent. It is not uncommon for this legislation to apply to certain of an organisation’s functions but not others, and we need a good deal more evidence from the Government to persuade us why the NCA should be any different”.

That last point is particularly interesting since I intervened in the then Minister’s response to my amendment to ask,

“is it the Government’s case that all other agencies or bodies are either completely covered by or completely exempt from the Freedom of Information Act, and that one does not find in any other organisation or agency that some of the activities are covered by the Act and some are exempt?”.

The response I got from the then Minister was:

“Without notice, I do not think that I can answer that question, but I will certainly look at it”.—[Official Report, 18/6/12; col. 1642.]

It subsequently appears that it is something that the Joint Committee on Human Rights has looked into. It made it clear that it is not uncommon for this legislation to apply to certain of an organisation’s functions, but not others. I await with interest what the Minister is going to say in response to the amendment moved by the noble Baroness, Lady Hamwee, but I hope that one argument he will not use is that somehow it is illogical or inconsistent to have part of an organisation’s functions exempt from the Act and part covered, since that one seems to have been knocked on the head by the Joint Committee on Human Rights.

My Lords, the Government take their own view on issues, although we, of course, respect the Joint Committee and all its works. I am very grateful to my noble friend for raising this issue. She cares greatly about the responsibility of government to provide transparency and the Freedom of Information Act is just one thing that can be used to provide transparency.

As the noble Lord, Lord Rosser, said, my noble friend Lord Henley dealt with this at the Committee stage. We are committed to ensuring that the National Crime Agency will be open and transparent to the public which it has been created to protect. That commitment is clearly set out in Clause 6. The intention is that this organisation will be fundamentally more public-facing than its predecessor organisations and open in its relationships with the public, partners, the media and, of course, Parliament. Indeed, in the framework document, under the second bullet point in item 10, noble Lords will note a duty to publish information in accordance with publication arrangements that will be set out in a future annexe. It is really designed to indicate in the framework document itself the importance that the Government attach to this. We want the public to be able to access as wide a range of information about the NCA as possible provided it does not compromise in any way the NCA’s effectiveness in fighting crime. We expect that this will include information on what the NCA is doing to tackle serious and organised crime, what it is spending and how well it is doing—so performance indicators as well.

I want to reassure noble Lords that the decision to exempt the NCA from the FOI Act was not taken lightly. We considered this carefully, having particular regard to the fact that some of the precursor functions transferring from the NCA have been undertaken by bodies that are currently subject to the FOI Act. That has been pointed out by both noble Lords. The agency’s largest precursor, the Serious Organised Crime Agency, including CEOP, has not been subject to the FOI Act since its inception. However, we have analysed the FOI requests made to other precursor bodies, such as the NPIA, and we are confident that the agency can balance being FOI-exempt with proactive publication to ensure that there is no loss of public transparency as a result of the approach being taken in the Bill.

I recognise the efforts made in this amendment to apply a partial application of the FOI Act. However, we remain of the view that a blanket exemption is the most appropriate arrangement, not for administrative convenience but to ensure full effectiveness and as a critical operational safeguard. We are talking about a fully integrated, crime-fighting, operational agency that will be charged with spearheading the fight against some of the most dangerous and pernicious criminals and crime groups that impact our communities. Some information about the discharge of those functions will be fit for release into the public domain; some will not. The distinction does not come from an arbitrary line drawn in legislation that seeks to differentiate some of the NCA’s functions from others; it comes from a deep understanding of the types of information that no one would want to fall into the wrong hands. I firmly believe that the National Crime Agency will be able to make this distinction.

I recognise the argument that the scope of the exemptions provided for in the FOI Act could potentially apply to much of the material that the National Crime Agency is seeking to protect. However, as my noble friend Lord Henley said, this is not the only consideration. First, the National Crime Agency will depend on the absolute confidence of its partners to provide the backbone of the agency’s superior national intelligence picture. If those partners believe that sensitive information held by the agency could be subject to public release, they are likely to be more inhibited about sharing that information with the NCA in the first place. Chief among these concerned partners are those in the private sector and overseas—partners who are perhaps not as familiar with FOI as we are.

Secondly, intelligence shows that organised criminals are increasingly sophisticated in their methods and seek to exploit any avenues possible to further their criminal activities. The FOI Act offers them an opportunity to acquire information about the NCA’s operational tactics, to disrupt its operations and to evade detection. While the exemptions might apply to some of this information, the risk is that it might not always be the case.

In short, we remain resolute in our decision to maintain the NCA’s exemption from the FOI Act. To do otherwise would jeopardise the NCA’s operational effectiveness and ultimately result in lower levels of protection for the public. While partial application of the FOI Act might, at face value, look attractive, it is simply not a viable option for an integrated crime-fighting agency. In the mean time, the whole purpose of the duty to publish will be to provide the public with as much information about the organisation’s activities as possible. For these reasons, I urge my noble friend to withdraw her amendment.

My Lords, I opened the debate on these amendments by saying that some of our colleagues might be surprised by how quickly the next amendments are dealt with. I could, of course, deal with that, giving them warning by dividing the House, but that may not be possible and I think I see signs that the Whips have the matter in hand. I would say to the noble Lord, Lord Rosser, that what is worse than being illogical—to my mind and, I suspect, to his as well—is to betray one’s values.

I anticipated most of the Minister’s arguments, not surprisingly because they largely repeated, and were consistent with, what we were told at the previous stage. Noble Lords have been directed to the duties under Clause 6, but the problem with reports such as this that are in the hands of the organisation which is the subject of one’s concern, is that that organisation itself determines the content and the depth of information and the level of detail. The use of freedom of information requests puts the impetus in the hands of the person making the request. There is quite a different balance in this. The provisions in the Bill are to be subject to whatever is in the framework document and what the annexe to the framework document has to say will be extremely important. I look forward to seeing what that may be.

I remain disappointed, but the Minister probably anticipated that. He will not be surprised by my last remark, which is that the freedom of information regime should not be optional. Having made that point, I beg leave to withdraw the amendment.

Amendment 71 withdrawn.

Amendment 72 not moved.

Amendments 73 to 77

Moved by

73: Schedule 8, page 93, line 37, at end insert—

“117A In section 333A (tipping off: regulated sector), in subsection (2)(d), for “member of staff of the Serious Organised Crime Agency” substitute “National Crime Agency officer”.”

74: Schedule 8, page 96, line 6, leave out “omit paragraph (b).” and insert “for paragraphs (b) and (c) substitute—

“(b) the Director General of the National Crime Agency.”Energy Act 2004 (c. 20)138A (1) Section 59A of the Energy Act 2004 (constables serving with SOCA) is amended in accordance with this paragraph.

(2) In the title, for “Serious Organised Crime Agency” substitute “National Crime Agency”.

(3) In subsection (1)—

(a) for “Serious Organised Crime Agency” (in the first place) substitute “National Crime Agency”;(b) in paragraph (a), for “Serious Organised Crime Agency” substitute “Director General of the National Crime Agency”.(4) In subsection (2), for “Serious Organised Crime Agency” substitute “Director General of the National Crime Agency”.”

75: Schedule 8, page 97, line 21, leave out paragraphs 155 and 156

76: Schedule 8, page 99, line 10, at end insert—

“Equality Act 2010 (c. 15)167A The Equality Act 2010 is amended as follows.

167B In section 42 (identity of employer), in subsections (4) and (5), for “SOCA” substitute “NCA”.

167C In section 43 (interpretation), for subsection (5) substitute—

“(5) “NCA” means the National Crime Agency; and a reference to a constable at NCA is a reference to a constable seconded to it to serve as an NCA officer.”.

167D In Schedule 19 (public authorities), in Part 1 (general), omit “The Serious Organised Crime Agency.””

77: Schedule 8, page 99, line 14, at end insert—

“Protection of Freedoms Act 2012169 In section 95 of the Protection of Freedoms Act 2012 (effect on police and other records of disregard of conviction or caution), in subsection (5), in the definition of the names database, for “National Policing Improvement Agency” substitute “Secretary of State”.

Part 3Further consequential amendments and repealsReferences to SOCA170 In the following enactments, for “Serious Organised Crime Agency” substitute “National Crime Agency” (and, where that expression appears in more than one place in such an enactment, that substitution is made in each such place)—

Aviation Security Act 1982

Section 24AE(4)(f) (aerodrome security plans)

Section 24AG(2)(e) (security executive groups)

Section 24AI(2)(c) (objections to proposals by security executive groups)

Police and Criminal Evidence Act 1984

Section 63A(1A)(b) (fingerprints and samples: supplementary provision)

Dartford-Thurrock Crossing Act 1988

Section 19(a)(ia) (exemption from tolls)

Criminal Appeal Act 1995

Section 22(4)(aa) (meaning of public body etc)

Domestic Violence, Crime and Victims Act 2004

In Schedule 9 (authorities within Commissioner’s remit), paragraph 13

Commissioners for Revenue and Customs Act 2005

Section 40(2)(ca)(ii) (confidentiality)

Immigration, Asylum and Nationality Act 2006

Section 39(2)(b) (disclosure to law enforcement agencies)

Counter-Terrorism Act 2008

In section 18E, paragraph (b) of the definition of “law enforcement authority” (sections 18 to 18E: supplementary provisions)

Coroners and Justice Act 2009

Section 75(2)(c) (qualifying criminal investigations)

Section 161(2)(a)(i) (applications for exploitation proceeds order)

Section 166(9A) (exploitation proceeds orders) effect of conviction being quashed etc

Terrorism Prevention and Investigation Measures Act 2011

In section 10 (criminal investigations into terrorism-related activity), paragraph (d) of the definition of “police force”

References to the Director General of SOCA171 In the following enactments, for “Director General of the Serious Organised Crime Agency” substitute “Director General of the National Crime Agency”—

Data Protection Act 1998

Section 56 (prohibition of requirement as to production of certain records), entry 1(d) in the table

Criminal Justice Act 2003

Section 29(5)(cb) (new method of instituting proceedings)

Commissioners for Revenue and Customs Act 2005

Section 41(2)(e) (disclosure of information to Director of Revenue confidentiality)

Legal Services Act 2007

Section 169(5)(d) (disclosure of information to the Legal Services Board)

Coroners and Justice Act 2009

Section 81(3) (delegation of functions)

References to SOCA and its Director General172 In the following enactments—

(a) for “Serious Organised Crime Agency” substitute “National Crime Agency”; and(b) for “Director General of the Serious Organised Crime Agency” or “Director General of that Agency” substitute “Director General of the National Crime Agency”—

Counter-Terrorism Act 2008

Section 18(3G)(f) (material not subject to existing statutory restrictions)

Coroners and Justice Act 2009

Section 77(1)(c) (applications for investigation anonymity orders)

Terrorism Prevention and Investigation Measures Act 2011

In section 10 (criminal investigations into terrorism-related activity), paragraph (d) of the definition of “chief officer”

Repeals173 The following enactments are repealed to the extent specified—

Courts Act 2003

Section 41(6)(c) (disqualification of lay justices who are members of SOCA etc)

Coroners and Justice Act 2009

Section 170 (amendments of Part 1 of the Serious Organised Crime and Police Act 2005)

Part 4Subordinate legislationReferences to SOCA etc174 (1) In any relevant subordinate legislation—

(a) a reference (however expressed) of a kind specified in an entry in the first column of the following table is to be read as being, or including, a reference of the kind specified in the corresponding entry in the second column of the table; and(b) related expressions are to be read accordingly.

A reference to...

...is or includes a reference to...

the Serious Organised Crime Agency

the National Crime Agency

the Director General of the Serious Organised Crime Agency

the Director General of the National Crime Agency

the staff of the Serious Organised Crime Agency

National Crime Agency officers

a member of staff of the Serious Organised Crime Agency

a National Crime Agency officer

(2) The preceding provision of this paragraph is without prejudice to section 31 (consequential amendments).

(3) In this paragraph “relevant subordinate legislation” means Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made before the end of the Session of Parliament in which this Act is passed under—

(a) an Act of Parliament,(b) an Act of the Scottish Parliament,(c) an Act of the Northern Ireland Assembly, or(d) a Measure or Act of the National Assembly for Wales.”

Amendments 73 to 77 agreed.

Clause 16 : Interpretation of Part 1

Amendment 78

Moved by

78: Clause 16, page 12, line 13, leave out “Authority”

Amendment 78 agreed.

Consideration on Report adjourned.

Small Charitable Donations Bill

First Reading

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

Arrangement of Business

Announcement

My Lords, as the Question for Short Debate proposed by the noble Baroness will now be taken as last business, the time limit for the debate becomes 90 minutes rather than 60 minutes. Speeches should therefore be limited to nine minutes, except for the speeches of the noble Baroness, Lady Greengross, and the Minister, which remain limited to 10 and 12 minutes respectively.

Small Pension Funds

Question for Short Debate

Asked by

To ask Her Majesty’s Government what action they are taking to ensure access to good advice for people with small pension funds, and to maximise such people’s retirement income.

My Lords, I start by declaring an interest. I head up the ILC-UK and the International Longevity Centre Global Alliance, which look at the impact of demographic change on all our services as we plan the future. I am really pleased that we have an opportunity to discuss what I want to look at—people with small pension pots—and the impact of the Financial Services Authority’s retail distribution review, which will be implemented on 1 January 2013. I support the principles underpinning the RDR; they are excellent. But there is at least one unintended consequence that might well follow, which really results from the fact that advisers will no longer be paid by commission but will charge a fee for the work that they do. I and others think that people on modest incomes will either be priced out of or excluded from the advice market. I have a deep concern that lots of people will not get the advice that they need. There will be an advice gap, with a detrimental effect on their incomes that will continue throughout their retirement, which as we know is likely to last much longer than they think it will last. These tend to be the people who have the least knowledge about what is going to happen to them regarding their pension when they retire.

The DWP estimates that by 2050 there will be 4.7 million pension pots of £2,000 or less, with many more than today expected to reach retirement with these small pots. The National Association of Pension Funds has said that there are currently 1.1 million retained DC pension funds with less than £5,000 in them; collectively these hold £2.3 billion of pension assets. A recent survey by KPMG of more than 3,000 customers found that only 31% would be prepared to pay for financial advice; 54% would pay no more than £50 for an hour’s advice; and only 1% would pay more than £200. There is a big risk here. These are exactly the sort of people who will receive no advice at all. Deloitte has recently found that more than 5 million clients may be left without advice as a result of RDR, as costs are made transparent and independent financial advisers focus, inevitably, on higher-net-worth customers.

Partnership Assurance has given us figures that tell us that 78% of annuities sold in the UK in 2011 were for fund sizes of under £40,000. For people with impaired health or lifestyle conditions, the difference between the best and worst rates can be up to 40%. At the same time, very few people exercise or even understand the benefits of exercising the open market option. Figures from the Association of British Insurers report that while joint annuities accounted for 42% in 2011, up from 29% in 2008, only 46% of annuities were bought via the open market option in 2011, up from 35% in 2008. But more people with larger pension funds choose this route than those with smaller pots—the people that I am really concerned about.

Ways of improving the situation might be to narrow the advice gap so that those with very small incomes have access to advice and do not miss the retirement income that they could have, and avoiding an information overload for people who just do not understand what all this is about anyway. Much more needs to be done to ensure that customer information is developed—and it must be from a consumer, rather than compliance, perspective, because people are just not interested, do not understand and then suffer later on. Urgent steps need to be taken to halt the continued erosion of the culture of saving that we used to have in this country. Inevitably, at the moment, we have lost a huge amount of trust in the industry, which is very sad and adds to this inevitable problem. The Government could also perhaps provide a much clearer distinction between the provision of information and the giving of advice, making it much clearer to what extent providers are able to guide customers without it being deemed advice, and joining up the public policy agenda on financial advice, which would enable saving.

In terms of the industry, I very much welcome the ABI’s recent consultation to increase transparency in the annuity market by publishing annuity rates, as part of its code of conduct on retirement choices. I also welcome the fact that PICA, the Pensions Income Choice Association, is working with other industry participants to build a directory of advisers and shopping around brokers who can help investors, particularly people with small pots, to shop around when they retire. This will help customers to understand the decisions they need to make, the products that are available, and how they can shop around. We know that there are several annuity “interface portals” for people who have sufficient IT skills, but our real worry are those who are excluded from all this, because they just do not have the knowledge that is necessary.

The mechanics of the pensions industry have made it very difficult for retirees to get good annuity rates, as we know. Annuity advisers and providers should explore greater uses for technology in delivering advised and non-advised services to help people understand their options at retirement and help them to make the right decisions.

I will end by sharing a real concern I have that lack of cohesion and policy fragmentation created by silos between the Financial Services Authority, leading on RDR, HM Treasury, with the policy lead on financial advice, and the DWP, leading on retirement outcomes for pensioners, will result in the poorest and least well-off people receiving sub-optimal retirement outcomes. Perhaps something can be done to raise awareness of the challenges and responsibilities that individuals have, particularly those over 50, who need to focus on a multitude of retirement decisions and have far fewer pensions and savings assets at their disposal than they actually need. Nobody really believes that they are going to live for as long as they will, and nobody really calculates what they are going to need over all these years, with the need for care, and so on. Explicit government support and signposting would help to ensure that these people—the small pension pot holders—have as easy a time as possible in getting help with their shopping around. Will the Minister consider creating some kind of forum so that the industry, the regulator, the DWP and HM Treasury can get together to meet and discuss how better to work together to improve customer outcomes?

My Lords, the noble Baroness said that there are 1.1 million people with a pension fund of £5,000 or less. That is 1.1 million very admirable people. I greatly admire those who from small incomes, little bequests and savings over the years have decided to save for a pension. That is an admirable and a good thing. Compare and contrast them with others who may have exactly the same, albeit small, resources from income, bequests and savings, who choose to spend it and rely entirely on the state. The 1.1 million people to whom the noble Baroness referred are the deserving savers, which is why I share her hope that the Government may find ways in which to help deserving savers to get a better deal from those who give advice and those who invest.

It must be very lonely for someone who is of pensionable age, has that small sum of money and does not know which way to turn. However, if there were ways of grossing together all those people, imagine the purchasing power and the purchasing strength that 1.1 million people with £5,000 or less in their pensions would have in negotiating good advice or, indeed, negotiating a better deal when they invest.

The noble Baroness suggested that there should be a round table to deal with this as one way of looking at helping these people. Despite the rather austere framework that we are in at the moment, there may be market-driven opportunities here because I understand that those 1.1 million people have more than £2 billion to invest between them. It may be possible for those in the market to think of setting up a vehicle which would help, by pooling resources, to get a better deal for pensioners, strictly regulated though it should be. Therefore, I would like to put before your Lordships and, indeed, before my noble friend the Minister, an idea which I hope the Government will not stand in the way of: someone trying to set up such a body whereby the purchasing power of small pension holders could be pooled and used to their advantage. I have no interest to declare in this matter, by the way.

Let us look at each of the two areas referred to in the noble Baroness’s excellent Motion: “access to good advice” and maximising people’s retirement incomes. Access to good advice is critical. In the past, the world of the independent financial adviser and others has been a very peculiar one, suggesting to people, who often had small sums of money, that they should invest in this or that because there was a trail commission going back to someone. Under those circumstances it is natural, I guess, that people very often have said, “Go to this fund. Go to that fund—this bond fund, that equity fund”, because a commission is involved. That has all been stopped, which is a thoroughly good thing because I think that it was as close to being corrupt as you could get. But at the same time the unintended consequence is that people are now being told they will have to pay for the advice that they thought they were getting for free but was actually coming from commissions trailing back to suppliers.

It should be possible to think of ways in which individuals with small pensions, banded and grossed up together, could have much more purchasing power, first, to get better advice but, secondly, to get better investment returns. Let us take not £5,000 a year but £10,000 a year—forgive me, I can do that arithmetic. At present rates of about 3.5% returns, you get £350 a year to add on, which is a lot of money to people on small incomes. The trouble is that you go to a fund which promises 3.5% and very often that fund—say one called East European Opportunities Fund, to make up a name—then itself invests in other funds investing in funds of funds, and each of those has their layer of charges. Before you know where you are, a combination of slowly growing inflation and a multiplicity of charges has abolished any possibility of real growth in that pensioner’s income. People often talk about the magic of compound interest but the tyranny of high hidden charges directly on pension funds is very destructive of wealth.

Who does someone living alone turn to? They cannot afford advice so they look at what a Sunday newspaper says—“Invest here, invest there”—and what happens after that is very often a diminution of those people’s wealth, not an addition to it, which they have notably saved for, which I think is to the common good, rather than their just relying on the state. Therefore, I urge the Government to keep an open mind on new market entrants who would be strictly regulated by the great panoply of regulators that we have at the moment that regulate absolutely everything in the City after the events of 2000 and 2008. If private sector people are willing to invest on behalf of such pensioners, and they can see that they can make a reasonable amount from doing so, I urge the Government to make it possible for them to do that.

I do not think that the state should provide funds to do this. My noble friend will be relieved to hear that I make no request for extra government money, as I think that would be wrong. The new normal, we are told, is bumping along the bottom until 2017-18. Everyone is suddenly austerity-aware, and people who used to think that there were free lunches and free dinners now know that we live in a pretty austere world. I do not expect my noble friend to reply to the suggestions that I am about to make but I ask her to undertake in her wind-up that she will pass them on to the Treasury and to the right honourable gentleman the Chancellor of the Exchequer, whose policies I greatly admire. A time of maximum austerity is the time to get rid of a lot of perks for well-off pensioners which they do not deserve and do not need. The better sort of better-off pensioner makes a point of not claiming them. All those TV licences, all the cheap travel, all those winter fuel arrangements—

I am making my speech. The noble Baroness barracks splendidly but I am picking on the three things which go to pensioners from government expenditure. I do think that now is the time for my right honourable friend to get rid of these things. There will be no political backlash at all. People think that it is bonkers and barmy to provide these benefits. I certainly do. I think that it is wrong and we should not be in that position. The Chancellor, half way through the Parliament, way ahead of a general election, with the full and stalwart support of my noble friends the Liberal Democrats in every Division on every single occasion in your Lordships’ House, should seize this opportunity and all will be well.

My Lords, who are we on these Benches to contest such a magnificent final flourish? I wish only that we could have persuaded the noble Lord to extend his shopping list of things to be remedied from higher rate tax relief to some of the other perks that presently go to incentivise the rich to save, as opposed to those who most need help—that is, those who are worse off.

I come back to the topic of the Motion of the noble Baroness, Lady Greengross. A key aspect of small pension funds is stranded pots. It is that which I want to talk a little about tonight. A Norwich hairdresser coming up to retirement has £20,000 in one pension pot and two other pots, one eight years old and one perhaps 12 years old, with £2,000 in each—total savings of £24,000. That hairdresser can annuitise her £20,000. She cannot access her two pots of £2,000. She cannot commute them into cash because she is over the trivial commutation limit and she is too late for the 2009 changes on triviality. She cannot annuitise those two small pots because they are too small. At the moment she cannot transfer them into her main pot because the companies do not want her business. They are orphan assets. So this woman, with her £24,000 of pension savings, cannot touch, and has actually lost, £4,000 of her £24,000 savings. It is a scandal, and with the help of the Pensions Advisory Service, TPAS, of which I declare I am a board member, we have been tabling amendments on this subject for the past five years wherever possible, which is why we are especially grateful that tonight the noble Baroness, Lady Greengross, has introduced her Motion.

As I am sure colleagues know, TPAS provides free independent information and guidance from technical specialists and a national network of 400 voluntary pension professional members to those who, for the most part, cannot afford or cannot access private information and guidance in their own right. Our website receives about 2.5 million hits every year, some 12,000 written inquiries a year and some 40,000 helpline inquiries a year for individual guidance.

A high proportion of that is fielded by volunteers. We have satisfaction ratings in the upper 90th percentile. TPAS is therefore especially aware of what pension issues are coming up in the lift as it offers information guidance day in, day out, hour in, hour out. About a third of our inquiries are about state pension and pension credit issues and the interlocking of benefits with small occupational pensions, which we hope very much will be addressed by a forthcoming Bill on the new state pension. Another third are on occupational pensions, including a growing number of inquiries on auto-enrolment—inquiries which I am sure will expand as the small and medium-sized enterprises coming later into the system are embraced. Thirteen per cent of our inquiries are on personal pensions, including SIPPs. Relevant to this debate, about 10% of our queries and problems are associated with small pots—how to trace them, how to access them and how to commute them.

Steve Webb, an admirable Pensions Minister, has told us that without action there will be 60 million small pots floating around by 2050—small pots orphaned out there, and for many people inaccessible. Why has this become a growing scandal? Pensions do not work for the main holders of those small pots, who are women. Pensions conventionally assumed a man in a 40-year job with a 40-hour working week, backed by a DB scheme and a dependent wife. If he held on to his job and she held on to him, his and her pensions were secure in retirement.

Now men have nine job changes and women have something like 11 job changes in their working life. If they have a pension—two-thirds of those in the private sector now do not—it will be DC. These DC pots have lower contributions from employers, who promptly halve their contributions when they go from a DB to a DC scheme with lower costs, passing both high charges and high risk on to those least able to cope—the employees. Those pots also receive lower contributions from the lower-paid and increasingly female part-time workers, as they continue to care for children and elderly parents alike.

This problem of small pots is compounded by what is happening in the pension industry overall, by what is happening to the labour market and by the problems that women have in caring not just for children but increasingly for older relatives and members of their family. The problem of small pots will be greatly magnified by auto-enrolment.

As my noble friend will know, I tried hard when NEST was introduced to allow small pots to be transferred into it. This was batted away because of the self-interested howls from the industry, which feared it would lose money under management, in much the same way as it has batted away early access to a slice of pension savings, which would also help transform the savings culture for women, and poorer women in particular. The industry was wrong—disastrously wrong in my view—on both counts, as it is now perhaps slowly beginning to realise, but much damage has already been done.

Pensions reflect the labour market. They were constructed decades ago by pale males with dependent wives for other pale males with dependent wives. They have never worked for women. Now, with people living longer and needing to save harder, with flexible labour markets, with auto-enrolment into low-contribution DC schemes, with half of all older women aged between 45 and 64 by 2020 to 2030 being unmarried and therefore needing a pension of their own, those low-paid part-time women especially, as they are in and out of the labour market, will collect a portfolio of small pots—hard-earned savings—some of which will be inaccessible to them at retirement as the situation now stands. Those pots will go AWOL and be inaccessible—frankly stolen from them by the structure of the pensions industry that we, all together, have constructed and inherited.

It is a problem that is simple to rectify. We expect two pensions Bills next year—one for public sector pensions and one