The Home Office has itself acknowledged that some 32% of child victims went missing from care between 2005 and 2009, with many being abducted back by their traffickers. The guardians system, which was the subject of the amendment tabled to the Protection of Freedoms Bill, is advocated by UNICEF and leading children’s charities as a means of ensuring continuity of care and continuous oversight of trafficked children who have been taken into care by the state. At the Report stage of the Protection of Freedoms Bill, as I recollect it, the noble Lord, Lord McColl, did not move his amendment, which would have placed a duty on the Secretary of State to introduce the guardians system for child victims of human trafficking, because of assurances that the noble Lord, Lord Henley, gave that the Government would commission a report by the Children’s Commissioner into ways to improve retention of child victims in care.

As has been said, this is a particularly topical issue as the Children’s Minister has accepted that the system is failing in preventing children in care going missing, as revealed in the report published today by the All-Party Group on Runaway and Missing Children and Adults, to which the noble and learned Baroness, Lady Butler-Sloss, has already referred. Its report stated that vulnerable young people are being systematically let down. The Children’s Minister has, I believe, promised urgent action to address the problems that have been identified. It seems that there are big discrepancies between police and Department for Education figures, as has already been said. The DfE last year said that 930 children went missing, whereas the police estimate that 10,000 children in care went missing. We need accurate and reliable figures, since going missing is regarded as a key indicator that children are open to the risk of abuse. Indeed, one of the main reasons that the all-party group felt led to children running away was that 46% of children in children’s homes were placed away from their home town.

Considering today’s report by the all-party group and statement by the Children’s Minister that children are being “systematically let down” by the care system in failing to prevent them going missing, are the Government going to introduce a system of guardians or legal advocates for child victims of human trafficking, who are among the most vulnerable children in our care? The Government declined to accept the amendment to introduce guardians for child victims of human trafficking at Report on the Protection of Freedoms Bill, which is now of course an Act. Instead, they said that they would commission a report from the Children’s Commissioner to investigate measures to mitigate the number of trafficked children who go missing from care. When will the Children’s Commissioner actually

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report, and what steps are the Government intending to take in the mean time to protect these children and reduce the substantial number who go missing from care?

There is also the question of how this Bill and its provisions will help to address the situation that many of your Lordships have so eloquently identified already in this debate. Under this Bill, the National Crime Agency absorbs the Child Exploitation and Online Protection Centre. Can the Minister spell out how the Government believe that this will improve the situation? How will CEOP retain its own identity and operational independence and what assurances can the Government give that its integration into the National Crime Agency will not adversely affect its ability to protect children or to continue its multiagency approach, which might be put at risk if the National Crime Agency were seen as primarily a policing organisation? Which areas will CEOP continue to lead on in future in relation to trafficked and missing children and will there, as has already been asked, be any split of related functions in this area within the National Crime Agency that might lead to some cases falling between two stools, or rather between two agencies or organisations?

I repeat that we support these amendments and I very much hope that in his reply the Minister will be able to address the many points that have been raised.

Lord Henley: My Lords, I thank my noble friends Lord McColl and Lady Doocey for bringing forward their amendments and for highlighting just what we are dealing with in bringing to the attention of the House the appalling crime of trafficking, particularly the trafficking of children. I underline the points made by my noble friend Lord McColl during the passage of the Protection of Freedoms Act. In saying so, I say to the noble Lord, Lord Rosser, that we are still awaiting the report from the Children’s Commissioner. The timing of that will have to be a matter for the commissioner herself, and I cannot give him any further assurance about timing at this stage.

I also thank the noble and learned Baroness, Lady Butler-Sloss, for her references; I think she was the first contributor to refer to the all-party group. I got rather confused as she referred first of all to a committee and then to something else, and I finally worked out that she meant the report from the all-party group, which came out only today—or was it a bit earlier? In due course there will have to be a response to that, and I very much hope that colleagues in the Department for Education with primary responsibility will lead on that.

I thank all noble Lords who referred to the work of CEOP in this field. I have visited that agency since becoming a Minister in the Home Office, and I am sure that other noble Lords have done so and know just what an effective job it does and how well it can do it. Again, I assure my noble friends and other noble Lords, as my noble friend Lord McNally did when he wound up the Second Reading of the Bill, that we believe that the NCA will have a key role to play in building on the existing arrangements for dealing with trafficking, using its enhanced intelligence capabilities and co-ordination functions to target both organised

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criminal gangs involved in perpetrating these crimes and others, wherever they are.

It is my job today to deal with the specific amendments, beginning with Amendments 3A and 3B moved by my noble friend Lord McColl, that deal with the functions of the National Crime Agency in Clause 1. I am satisfied that the functions set out in Clause 1—we must also refer to Clause 8—are sufficiently broad to encompass human trafficking. The important point that we need to deal with is whether we need a specific reference in the Bill to human trafficking, particularly in the light of what is available in Clause 8. I remind noble Lords that there are specific references in Clause 8(1) and (2) to Sections 11 and 28 of the Children Act, which make clear that the agency has to discharge its functions in a way that has regard to the need to safeguard and promote the welfare of children. We need to discuss whether we need to bring in my noble friend’s amendments or whether we have taken a sufficiently broad approach to the agency’s functions.

The broad nature of the functions is also critical to ensuring that the agency has the flexibility necessary to respond to the changing threat in future. One needs to be wary of taking an overprescriptive approach to the listing of specific crime types, as this amendment starts to do, which might undermine the approach that we have taken to the functions as set out in Clause 1. Amendment 3A then seeks to go further and add to the agency’s functions by placing on it a specific responsibility for ensuring that the UK meets its obligations under the human trafficking directive, to which I think my noble friend and the noble Lord, Lord Neill, referred. As I hope I made clear on earlier occasions—during, I think, the debates on the Protection of Freedoms Act—we are satisfied that we will meet the requirements and be compliant with that directive. Her Majesty’s Government have had discussions with the Commission about that matter.

I do not consider it appropriate for the agency to have the responsibility for ensuring that wider obligations are met. The agency should be combating human trafficking, not checking that other organisations—which there will be, on this occasion—are meeting their obligations. However, my noble friend is right to highlight the important obligations. Once again, although I am not persuaded of the need to add to the agency’s functions in this way, I do not wish to diminish the importance that the Government place on that directive or the obligations that it places on the United Kingdom.

Amendment 3B seeks to ensure that the functions of the United Kingdom Human Trafficking Centre and CEOP are included within the functions of the National Crime Agency. My noble friend set out the important role that these bodies have in tackling human trafficking. I repeat what other noble Lords have said, just as I said at the beginning, in underlining the valuable work that they do in this area. I categorically assure my noble friend that CEOP and the Human Trafficking Centre, both currently part of the Serious Organised Crime Agency, will continue their important work as part of the National Crime Agency in future.

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5.45 pm

Not only are the agency’s functions drafted in broad enough terms to encompass tackling human trafficking, they are also broad enough to encompass the functions of these two important bodies. While I am not persuaded by the need for these amendments, I completely agree with the objectives that they seek to achieve, especially the concerns mentioned by all noble Lords in this debate and particularly the important leadership role that the NCA must take in dealing with this problem.

As my noble friend Lady Doocey explained, Amendment 22 seeks to make combating child trafficking one of the agency’s strategic priorities. Again, as I have indicated, the agency will play a vital role in ensuring that children are better protected from the threat of child trafficking. Building on the excellent work of its predecessor organisations, the agency will be able to ensure a holistic response in order to tackle these matters better, as well as the problem of missing children and children who have been sexually exploited by organised criminal gangs. The agency will be able to draw on its own resources, including CEOP, the Human Trafficking Centre, the National Missing Persons Bureau and the new border policing command, as well as those of external partners such as the Border Force, to help to identify children who are being trafficked into or around the UK and ensure that the appropriate action is taken to protect those children and disrupt the activities of those involved in this trade.

Within the NCA, CEOP will have full access to the entire range of operational tools that will be at the agency’s disposal to prevent harm to children in the UK and abroad, and to disrupt the activities of those who wish to abuse or exploit them. CEOP will also benefit from the relationships that will be developed with partners from the police service and the wider law enforcement community through tasking, co-ordination and mutual assistance. Indeed, we believe that the need to protect children from exploitation, trafficking and abuse will drive many aspects of the NCA’s work, and the whole agency will therefore be brought under the new statutory duty.

Baroness Butler-Sloss: I am extremely grateful to the Minister for giving way. Will there be any reference, in any documentation such as the framework or anything else of significance for the NCA, to human trafficking?

Lord Henley: I refer the noble and learned Baroness, as I did at the beginning, to Clause 8 and its reference to the Children Act, which does not refer to trafficking but makes quite clear that the interests of children should be taken very seriously. That said, I do not believe that it is necessary—this is what I have been trying to explain to the noble and learned Baroness and to the rest of the House—to refer to it specifically in the Bill in the manner she suggests. Further, I take her back to the references that have been made to the EU directive. We believe that we will be compliant with that and it is very important that that is also there.

I see that I must give way again to the noble and learned Baroness.

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Baroness Butler-Sloss: I apologise to the Minister, but it is just possible that he misunderstood me. I was asking whether, if these amendments were not accepted, there would be anything—not in primary or indeed in secondary legislation but at least in either the framework or other instructions to the NCA—to make very clear the importance of dealing with the trafficking of children and adults and the other points that we have made so that it was known in writing rather than being a general admonition.

Lord Henley: I take the noble and learned Baroness’s point and I will certainly consider a specific reference when it comes to the framework documents. I was dealing with what was in the Bill, which I think is very important due to the reason that I set out—the changing nature of crime. For example, 10 or 15 years ago we had never heard of cybercrime. Now we have. Things change and move on and the danger of listing things in primary legislation in the manner that she suggests is that it may confine us unnecessarily and is not the best way of dealing with these matters.

I hope that those assurances are sufficient for my noble friend to feel able to withdraw his amendment. We might want to have further words and noble Lords and noble Baronesses might want to see more in due course, but for the moment I hope that he is satisfied. I await what he has to say with interest.

Baroness Hamwee: Following up the noble and learned Baroness’s point, surely one would expect, among the strategic priorities that the Secretary of State has to address and determine under Clause 3—she will have to report to Parliament—the issues of child and adult trafficking to which she referred and the different purposes of trafficking.

Lord Henley: My Lords, I look forward to my right honourable friends setting out their strategic priorities and to reports in due course. Whether I am the one who has to respond in this House when they appear is another matter. I am sure that the sort of pressure that my right honourable friend will be coming under will be such that she will certainly take on board what the noble and learned Baroness has had to say.

Lord McColl of Dulwich: My Lords, as a Scot I do not like wasting words and paper and so on and I understand that we cannot have lots of things in the Bill, but this is such an important issue. It is even more important than I thought it was until the noble and learned Baroness, Lady Butler-Sloss, brought out the figure of 10,000. When we were talking about 300 children missing, perhaps the Bill would have been big enough to cope, but 10,000 children missing is appalling. This House and the country as a whole do not understand just how terrible the situation is. In answer to the noble Lord, Lord Neill, I must say that these amendments are essential and that we really have to press forward to do something about these appalling facts. Children are being brought over here and made to work on cannabis farms. They are then arrested and taken to court, which they do not understand, and then sent to prison. It is appalling. Something really has to be done.

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I thank the Minister for all his help. We have been to see him on several occasions and we feel that we are moving forward. I thank him for his helpful reply, which we will certainly reflect on. I beg leave to withdraw the amendment.

Amendment 3A withdrawn.

Amendment 3B not moved.

Clause 1 agreed.

Amendment 4 not moved.

Schedule 1 : The NCA and NCA Officers

Amendment 5 not moved.

Amendment 6

Moved by Baroness Smith of Basildon

6: Schedule 1, page 33, line 8, at end insert—

“(1) It is the duty of the Secretary of State to ensure that the NCA is provided with sufficient resources to enable its functions to be discharged effectively and efficiently.”

Baroness Smith of Basildon: My Lords, the reason for this amendment is not dissimilar to the reason for the previous amendment that I spoke to: the contradiction that I find at the heart of this Bill around the role of the Secretary of State and whether it is strategic or operational. We are very firmly of the view that it should be and must be a strategic role. As I indicated in my earlier comments on governance, it is an issue of power and responsibility: who holds power and who takes responsibility. We have seen it in other Bills and on other issues.

We are very clear that funding is a strategic role for which the Secretary of State should have responsibility. By way of example, I remind the Minister of a question I asked him on police and police cuts with reference to my own county, Essex. We now have no 24-hour police stations. A number of police stations are open only part-time or during the day, and we have lost or are due to lose several hundred police officers. When I queried him on the Government’s policy on this, he referred me to the chief constable and said it was his responsibility not the Government’s. Surely, the chief constable takes such decisions only in light of the funding laid down by the Government.

I want to make it quite clear in this amendment that the responsibility for the funding of the National Crime Agency is a very strategic role and one for the Secretary of State to ensure that the agency has the funds to do all the work that it needs to do to be effective.

The national plan states that the National Crime Agency,

“will not exceed the aggregate of the Spending Review settlement for the precursor organisations and the cost of the fully funded functions it is agreed should migrate into the NCA”.

That is helpful in many ways, and the Government have since confirmed that the NCA budget for 2014-15 will be around £400 million.

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While we understand that the Government are saying that the budgets will migrate with the organisations, which we certainly welcome, in reality we have to look at the cuts that those organisations have already sustained and the loss in their budgets and the savings they have found, in many cases to their credit. The National Policing Improvement Agency has found, I understand, around a £100 million reduction in its budget. Its headcount has gone from 2,200 to 1,400 and it is facing further deep reductions to its budget over the remainder of the financial review period. Clearly, if the NCA is to operate in the same spending envelope as its predecessors, it is unclear how it can manage what it does now and be the co-ordinating body for the organisations that have been moved under its control.

I raise this issue because we want to see the NCA succeed and to be able to do the work that it is going to do, but I wonder whether it would have been cheaper and more cost-effective just to have the organisations working more closely together and to mandate closer working between existing agencies.

6 pm

The Government want the NCA to do more, and they are right to do so. The NCA is to undertake completely new functions such as the Economic Crime Command, the Border Policing Command and the new National Cyber Crime Unit, although we still do not have the framework document so it is difficult to make an assessment of what that will look like. It is still quite vague. The implication is that the NCA budget comprises solely of the existing constituent budgets and that any new functions it performs, such as those I have outlined, must be funded out of the budgets of those existing agencies, even if there are further cuts to come to them. In the debate we have just had about child trafficking, the Minister was clear that the wording in the Bill is adequate to deal with these extra tasks, yet it will be an extra task, and no funding will follow it.

I was interested in the letter that the Minister sent to the noble Baroness, Lady Hamwee, regarding the National Crime Agency and her comments at Second Reading, particularly in relation to CEOP. He wrote:

“As well as building on CEOP’s existing role as the national centre dedicated to working with others to protect children from sexual exploitation and sexual abuse, the NCA will also be subject to a new statutory duty, which in essence is to safeguard and promote the welfare of children, across all of its functions and activities”.

That is very welcome, but it is an additional responsibility. At the moment, I cannot see how that can be funded from the existing budget. In essence, what the Minister seems to be saying is that the NCA will be able to do more with less money. I cannot quite see how it can fulfil the functions that it has now and undertake additional functions with less money.

I have a number of questions for the Minister to try to tease out two issues. The first is about the Secretary of State’s strategic responsibility and the second is about exactly what it will mean financially for the NCA and the consequential issues around that if funding is tight. How will it be able to do more with less? If we had not had the spending review and the

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cuts that have been made already, we could all identify efficiencies and ask organisations to do so, but when we are seeing cuts—the NPIA has pulled £100 million out of its budget already—it is difficult to know where additional savings, cuts or efficiencies, depending on what term you want to use, can be made. Will there be any additional funding for the new functions that will be placed on the National Crime Agency?

One of my worries about restructuring, jobs being lost and organisations such as CEOP and SOCA becoming part of the NCA concerns the expertise and professionalism within those organisations. There is a worry, particularly with regard to CEOP, that there is a danger of losing experience and expertise as that expertise will presumably be available to the whole of the organisation, not just part of it. The role of individuals will change. We have already seen the chief executive of CEOP resign when the merger—or whatever the Minister would term it—was announced. On top of the savings, the redundancies and the reduction in head count that have already been announced, how many redundancies are anticipated as a result of the change of the existing organisations into the National Crime Agency?

There will be later amendments about payments and exchange, but one of our worries is that if the National Crime Agency finds its budget rather tight and the Home Secretary is in charge of its budget, there is a danger that the costs of, for example, sharing services or using police facilities could be pushed on to individual police authorities and police forces that have already taken quite a hit financially with 20% cuts in their budgets. In essence, I am asking the Minister for an assurance that the budget will be adequate for the work that the Government want the agency to do. It should be very clear that the Secretary of State has a duty to ensure that the funding is adequate for the task that the NCA will have to undertake. I beg to move.

Lord Condon: My Lords, at Second Reading I raised concerns about the resourcing of the NCA, not in the sense of special pleading for the police service in general or for the NCA in particular, but having now been around policing for just over 45 years, I have never encountered a time when individual police forces were under such rigorous challenge as regards their resources and their budgets. I totally accept that, as part of the wider challenge that we face economically as a country, there is no element of special pleading in what I am saying, and I am most grateful to the Minister, who very kindly agreed to a meeting last week, at which the new director-general of the NCA and officials were also present. I was reassured, as I knew I would be, by the energy, intelligence and commitment of all those present to give the NCA the best possible start, but having spent over 35 years in and around policing as a serving officer and then over the past 10 or more years as a very interested spectator, I am still left with concerns that the remit for the NCA is going to be tough to deliver against its budget.

Although the Minister may not feel able to concede much on this amendment or be able to put anything similar in the Bill, there is a pragmatic challenge about how the new NCA, with all its co-ordinating tasks, new tasks and the demands put on it, will be able to

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deliver against the background of its budget. It will work smarter and do more for less, but my experience in both the public and the private sectors is that sometimes you have to spend to save, to get economies of scale, to get new, smarter ways of working and to get synergies. There are start-up costs, and I would like to think that there will be some flexibility around the budget, even if this amendment is not accepted. Like others in this House, I want the NCA to get off to a very good start, and I would not want anxiety around some, relatively speaking, small resource issues to undermine the potential for it to be such a force for good.

Lord Henley:My Lords, I quite understand the concerns expressed by the noble Lord, Lord Condon, and we understand that very difficult decisions have been made by different police forces up and down the country about where they are going to rein in expenditure, just as all agencies of the Government of one form or another are having to make very difficult decisions, but we believe that the cuts that they face are manageable. We also believe, and I think this is something to get over, that merely throwing money at a problem does not necessarily, as we discovered before 2010, solve problems, and increasing budgets does not always bring improvements in the service that the public have a right to expect from all services that the Government and taxpayers provide in one form or another.

It will, no doubt, be difficult for the NCA, which, like SOCA, will have to live within its budget and the review settlement. The NCA’s budget will be based on the budgets of the precursor organisations. It will have to deliver that wider remit through enhanced intelligence, tasking and co-ordination arrangements that I hope will make more effective use of its resources—its own assets and those of others. Creating the agency will also provide opportunities to rationalise some functions, remove duplication in others and generate efficiencies.

Turning to the amendment of the noble Baroness, Lady Smith, and her question, in effect, about the responsibility of the Home Secretary, the important point is that the Home Secretary is ultimately accountable to Parliament for public protection. She has a vested interest in ensuring that the National Crime Agency has sufficient resources to deliver the priorities set for it. The Home Secretary will want to make sure that sufficient resources are therefore provided for the important work of the NCA when she negotiates with colleagues in the Treasury. The noble Baroness knows exactly what this is like and I look at other Ministers who have negotiated these things in the past. Sometimes those negotiations can be difficult, but it is something that the Home Secretary will have to address after the next spending review.

Importantly, she will remain responsible and answerable to Parliament after those decisions have been taken for making and setting the strategic priorities for the NCA. Again, the Home Secretary will consult others, whether it is the director-general of the NCA or whomsoever. The director-general will be able to provide that operational understanding of the resources required to deliver in this area. He will also need to ensure that the resources are allocated in the most effective and efficient manner. The important work of the NCA will need to be delivered within the budgets of its precursor

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bodies in those first years of operation. The budget constraints for the remainder of this Parliament will obviously continue to remain challenging. That means that the NCA, like many other bodies, will look closely at identifying duplication of effort and maximising opportunities for savings. I believe it will be able to ensure greater efficiencies by more effective prioritisation and smarter use of its own assets and those of others.

It is in the interests of the Home Secretary to work with the director-general to ensure that there are adequate resources for the National Crime Agency. The fact that my right honourable friend is answerable to Parliament means that the amendment is unnecessary and I hope that the noble Baroness will feel able on this occasion to withdraw it.

Baroness Smith of Basildon: I am grateful to the Minister, but I wonder whether saying that the Home Secretary is accountable to Parliament is adequate. He will recall that I asked him a question about Essex police. Obviously he is accountable to Parliament, but he told me that it was the responsibility of the chief constable. If the Home Secretary is questioned about funding not being available or adequate to the task, will she merely say, “That is an operational matter for the director-general”? Allocating funding within the organisation would be a matter for the director-general, but it is the overall envelope of funding that puts pressure on him. I am encouraged by the comments of the noble Lord, Lord Condon, which I share, that he is reassured by the intelligence and commitment of those who will be involved in running the NCA. However, the Minister has said that it is going to be difficult. Hearts must sink when people go into a new organisation, really wanting it to succeed, but they are told that it will be difficult to make it work within the budget.

I am also disappointed by the Minister’s comments that we cannot just throw money at a problem. I do not think that anyone has suggested that money be thrown at a problem, but there could well be a problem if the resources for the NCA are not adequate for the task that it has to undertake. If the NCA starts by struggling for funds and not being able to fulfil its obligations, it will lose credibility. I understand the point that he makes and I do not think that he is going to concede as regards looking at the funding or funding additional responsibilities that the NCA will take on. I wonder whether there is a case for reviewing the expenditure and operation after one year. Perhaps a Select Committee could undertake that role and we might return to it. For now, I take on board what he has said and I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

6.15 pm

Amendment 7

Moved by Lord Rosser

7: Schedule 1, page 33, line 26, leave out sub-paragraph (1)

Lord Rosser: My Lords, this is a probing amendment. It deletes paragraph 5(1) of Schedule 1 which states:

“For the purposes of the discharge of NCA functions which relate to organised crime or serious crime, an NCA officer may, in particular, carry on activities in relation to any kind of crime (whether or not serious or organised)”.

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These words are similar, but not the same, as those relating to SOCA in the Serious Organised Crime and Police Act 2005. Could the Minister explain the significance of the changed wording? On the face of it, the power in paragraph 5(1) of Schedule 1 could be very wide ranging, particularly in the changed world of the new and more powerful National Crime Agency, with the director-general able to direct chief officers of other forces to perform tasks, and in the world of elected PCCs. It would be helpful if the Minister could put on the record how the Government intend that power to be used by the new agency, and in what sort of circumstances and on what kind of occasions.

The functions of the National Crime Agency are set out in Clause 1 of the Bill and refer to combating organised crime and serious crime. Equally, there are references in that clause to combating,

“any other kind of crime”,

and combating,

“crime (or a particular kind of crime, such as organised crime or serious crime)”.

This indicates that the role of the more powerful and influential NCA could be wider than just organised and serious crime. Paragraph 5(1) of Schedule 1 suggests that the power of the NCA and its officers in relation to any kind of crime relates only to occasions when they come across such other crimes when they are involved in dealing with organised and serious crime. If that is the case, no doubt that will be the thrust of what the Minister will say when he responds. However, this clearly could be something of a grey area which presumably could mean National Crime Agency officers becoming involved in dealing with the kind of crime that might be a matter for other police forces rather than the National Crime Agency.

Who, then, will make the decision on whether a National Crime Agency officer should carry on activities in relation to another kind of crime when it is neither serious nor organised? Will it be for individual NCA officers on the spot to decide or the director-general of the NCA? Will the director-general decide but require the consent of the Secretary of State, or will it be a matter that can be undertaken only by NCA officers when there is prior agreement between the chief officer of the police force that would normally deal with such a crime and the director-general of the National Crime Agency?

There is a possibility that this particular provision in Schedule 1, allied to the provisions of Clause 1, could be used by the director-general of the new, more powerful and influential National Crime Agency to seek to extend his or her wings and influence. The director-general could take the view that a range of other crimes could,

“relate to organised crime or serious crime”,

and be addressed by the National Crime Agency and thus could and should involve National Crime Agency officers. It might well be that the Minister may say that this will not happen, but what is to stop it happening under this Bill? Bear in mind that the director-general of the new National Crime Agency has wider powers and responsibilities, including stronger powers of direction than have previously applied in relation to chief constables of other forces.

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There is potential for friction between the National Crime Agency and police forces in England and Wales, particularly with elected police and crime commissioners on the scene, unless some very clear guidelines are provided on the kind of circumstances in which the powers of the National Crime Agency to become involved in dealing with any kind of crime, in addition to organised crime and serious crime, can and should be used. I hope that the Minister will be able to set out how the Government see this power in paragraph 5(1) of Schedule 1 being exercised by the new, more powerful and influential National Crime Agency and its officers under the terms of this Bill. I beg to move.

Lord Henley: My Lords, I am grateful to the noble Lord for explaining what lay behind his probing amendment. I hope that I will be able to set out what paragraph 5(1) of Schedule 1 is about. It makes it clear that the National Crime Agency can undertake the widest possible operational activity to maximise its impact on serious and organised crime. Clause 1 sets out clear expectations for the range of operational activity that it will be necessary for the agency to be able to undertake. Paragraph 5 goes further, making it clear that the agency can undertake operational activity,

“in relation to any kind of crime (whether or not serious or organised)”,

if it will ultimately deliver its crime reduction function. This includes disruption activity.

We are clear that the agency needs to be focused on national crime threats. That is why the crime reduction function has been drafted in the way that it has. This is not about interfering in local policing or taking over the work of individual police forces. Rather, the National Crime Agency will work with and support the work of local policing and police forces nationally to tackle crime that warrants a response beyond the boundaries of a local police force. It is also not about broadening the remit of the agency, but strengthening the ability of the police to respond to the serious and organised crime threats that face every community in the United Kingdom every day.

Criminal gangs have networks that can span from street-corner drug-dealing to the international importation of drugs and firearms. Therefore, it is important that the agency is able to take action against such gangs and other serious criminals along the whole spectrum of crime across which they can operate, from that very local level up to national and international levels. This amendment would therefore significantly curtail the effectiveness of the operational activity that the agency could undertake. It is right that the agency’s efforts should be concentrated on serious and organised crime, but the Committee will recognise that sometimes the most effective way of disrupting a crime network is to tackle the lower-level, seemingly less serious crime to have the greatest impact and stop the crime group operating. For example, an agency officer may want to use their powers to arrest a suspect for a possession-of-drugs offence to disrupt a much larger operation that involves a number of people in the supply of illicit drugs.

In all cases, the activity of the agency should be directed towards its core role of protecting the public from serious and organised crime. That is already

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written into paragraph 5. Where an agency officer is tackling crime that is not serious or organised, it must be to deliver the agency’s function of tackling serious and organised crime.

Finally, I point out to the noble Lord that there is a very similar provision in Section 5(3) of the Serious Organised Crime and Police Act 2005. The previous Administration accepted the need for such a provision. I appreciate that this is a probing amendment but I hope that the noble Lord will see that it is unnecessary and, in effect, a replication of what was there before. With those assurances and that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Rosser: My Lords, I thank the Minister for his response, which has clarified the Government’s intentions behind the wording “any kind of crime”. I referred to the fact that there is similar wording relating to SOCA in the Serious Organised Crime and Police Act 2005. I commented that it was not the same wording as appears in the Bill and asked the noble Lord to explain the significance of the change, which he has not done. Maybe the wording has been changed for a good reason but at the moment I am not clear as to what that is.

I am not entirely surprised by the Minister’s response. I understand his point that, in addressing serious and organised crime, there may come a need or a necessity to address other kinds of crime in the course of those investigations. In moving the amendment and asking those questions, I was simply pointing out that it depends on the extent to which this power is used and how it is used. Although I posed the question, I am still not clear as to what the Government’s intentions are in respect of who will decide whether the powers in paragraph 5(1) of Schedule 1 should be used. I asked whether it would be the NCA officer on the ground, the director-general or the director-general with the clearance of the Secretary of State, or whether it would be a matter for agreement between the director-general and the chief constable of another force. I have not had a specific response to that point either. Does the Minister wish to intervene?

Lord Henley: I will intervene if the noble Lord will give way. On his point about the comparison between the 2005 Act and the Bill, I will look carefully at what he said. I do not have the wording of the 2005 Act in front of me and it does not stick firmly in my head. However, I am sure that there are very wise words in the Act. Our intention was to replicate what was there. If there are differences in the wording, there is no intention to do anything different. The intention was to achieve the same object. It might be worth my looking again at the precise wording of the 2005 Act and what we have here and writing to the noble Lord, just to make it clear that our intention and that of the draftsman—remember that over seven years the style of drafting will change—was to achieve the same things. Is the noble Lord happy to accept a letter from me on that matter?

Lord Rosser: Yes, I would certainly accept a letter. I do not wish to imply that there are major differences in the wording but it is not precisely the same. However,

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if the intention is that it should mean the same, that is fine. If the Minister could write to me, saying that, it would clear up the matter. In the light of the Minister’s reply, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendment 8

Moved by Baroness Smith of Basildon

8: Schedule 1, page 34, line 21, at end insert—

“( ) the relevant Departmental Select Committee of Parliament,”

Baroness Smith of Basildon: My Lords, we return to the recurring themes of governance and operational independence, this time in relation to the provisions of Schedule 1 on director-general appointments and resignations. I entirely agree with the Government that the NCA should preserve strict operational independence. That is why the director-general should not have such a close relationship with the Home Secretary as the one proposed in this legislation, including in Schedule 1.

Looking at Amendment 10 first, it would mean that the director-general would be employed by the National Crime Agency board. The terms and conditions of employment would remain determined by the Secretary of State, which would preserve the ultimate accountability to the Secretary of State but avoid the direct oversight that is currently envisaged in the legislation. Amendment 8 would require pre-appointment scrutiny of the director-general by the Home Affairs Select Committee. In these amendments, I have tried not to be just my normal, moderate, reasonable self but also to look at bringing the wording broadly into line with the Government’s thinking as well as in line with the direction that they have indicated they wish to travel. The Government have indicated that scrutiny of appointment by Select Committee is appropriate and could be best practice. In this case, allowing the Home Affairs Select Committee to do pre-appointment scrutiny would offer an opportunity to consider issues such as skills. Later in the debate, we will look at a schedule on designation and the designations that will be given to the director-general by the Home Secretary. It would be helpful for a body such as the Select Committee to look at issues prior to appointment rather than the Home Secretary making that decision post-appointment.

6.30 pm

Amendment 9 is in a similar vein to Amendment 8. It would require the Home Secretary to consult the NCA board on the appointment. Amendments 11, 12 and 13 would require the Home Secretary to consult the proposed board—an issue to which we will no doubt return—before calling for the director-general’s resignation, as well as taking into account any representations made by the board on the director-general’s behalf. As it now stands, the proposed legislation states that if the Secretary of State calls on the director-general to resign or retire in the interests of efficiency, effectiveness or misconduct, he would have to consult Scottish Ministers and the Department of Justice. We think that it would be appropriate also to consult the NCA board, which is another body to which the

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director-general would be responsible. In addition, the chairman of that board should have the opportunity to make representations to the Home Secretary prior to the Home Secretary making a decision. Any response to those representations should be made to the board as well as to the director-general.

In no way are we suggesting that the ultimate responsibility does not lie with the Home Secretary. However, in the areas of appointment and calling for resignations, when someone is to be appointed or sacked, there is always a possibility that actions can be taken on political grounds. I know that the Minister does not seek such a situation but unless there is another body or some kind of oversight by parliamentary scrutiny in this process then that accusation could be levelled at any Home Secretary or any director-general.

The Minister has already mentioned several times in today’s debate that the watchword in the Home Office is “balance”, and that it is concerned with the need to achieve the right balance. In trying to retain operational independence while at the same time ensuring that the Home Secretary has the ultimate accountability and responsibility the Government can strike the right balance by establishing oversight through the parliamentary scrutiny of a Select Committee and providing a role for an NCA board. It would make it a fairer, more transparent and, I think, more defensible process which could easily establish credibility. I fear that there could be question marks over the credibility and appropriateness of appointments if there is not another form of scrutiny or oversight as part of the balance. I beg to move.

Lord Henley: My Lords, I hope that I can deal relatively briefly with the amendments in the name of the noble Baroness. I can assure her that in moving the amendment she was, as always, her usual moderate self, for which I am very grateful. Perhaps I may deal first with Amendments 9 to 13 and then deal with Amendment 8 in more detail. Since Amendments 9 to 13 deal with discussing these matters with the chairman of an NCA board and so on, and since we have already dealt with an amendment on which I made it clear that we are not minded to have an NCA board—the noble Baroness will no doubt want to come back to that on Report—it seems somewhat artificial to discuss this issue at this stage. In the absence of a board and the absence of our desire to have a board, discussing such matters is possibly, dare I say, a waste of time.

As regards Amendment 8, I repeat again that 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 therefore right that she should be responsible for appointing and, if necessary—although I hope that it will not happen—dismissing the director-general. She will make any appointment on merit following a fair and open competition and will consult, as the Bill makes clear, her counterparts in the devolved Administrations, reflecting the fact that the NCA will be a UK-wide agency. Under Amendment 8 the noble Baroness seeks to ensure that the selection and appointment of the director-general is subject to scrutiny by the relevant Select Committee, which in this case would be the Home Affairs Select Committee.

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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. I should remind the noble Baroness that the Liaison Committee considered this issue in its July 2011 report on public appointments. It argued for a role for Select Committees where the post exercised one or more of three types of function, including,

“scrutiny of government over matters of propriety, ethics and standards in public life … uphold and defend the rights and interests of citizens; and/or … stand in the shoes of Parliament by exercising direct scrutiny or control over the activities of Ministers”.

None of those criteria apply to the NCA. Perhaps I may add that, for example, the director-general of the Serious Organised Crime Agency was not on the Liaison Committee’s list of appointments to be subject to Select Committee scrutiny.

The Home Affairs Select Committee obviously will have a role in scrutinising the work of the agency in the same way as it has scrutinised the work of SOCA. I believe that it is in that capacity that they can best contribute. But in line with the advice of the Liaison Committee, we do not believe that it is necessary for the Home Affairs Select Committee to have a role in the appointment of the director-general. That is a matter for the Home Secretary. I repeat, and I will probably have to repeat it again, that the Home Secretary is responsible to Parliament and it is right that she should be. Therefore, I hope that the noble Baroness will feel able to withdraw Amendment 8.

Baroness Smith of Basildon: My Lords, I am grateful to the noble Lord for his explanation. When we put forward Amendments 9 to 13 it did not occur to me that he would not accept our amendment for an NCA board with open arms. We thought that it would be a welcome suggestion and that we were being very helpful to him. We may return to those particular issues as I am disappointed with his response.

There seems to be ambiguity in Schedule 5 regarding the skills and abilities required of the director-general and those requirements can change. Given the provisions of Schedule 5, to which we will come later, some oversight by a Select Committee would be helpful to a Home Secretary in making appointments. I take on board what the noble Lord has said at this stage. Perhaps we may return to it when we discuss Schedule 5. I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendments 9 to 13 not moved.


Amendment 14

Moved by Earl Attlee

14: Schedule 1, page 36, line 23, at end insert “or constable in the Police Service of Northern Ireland Reserve”

Earl Attlee: My Lords, in moving government Amendment 14, I shall speak also to Amendments 18, 19, 52 and 53. I can be brief with these technical amendments. The Bill already makes provision in relation to people who volunteer as police special constables

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who become NCA officers or NCA specials. These amendments will extend those same arrangements to members of the Police Service of Northern Ireland Reserve. That includes ring-fencing the powers of an NCA officer or NCA special, so that where a person is both an NCA officer or NCA special and a member of the Police Service of Northern Ireland Reserve, any powers conferred on him or her in the former NCA capacity cannot be exercised when the person is acting in the latter—the PSNI Reserve—capacity. I beg to move.

Baroness Smith of Basildon: My Lords, I am grateful to the noble Earl for his explanation. I ask him to clarify a couple of points. Have these amendments had the approval of the Northern Ireland Executive and the Justice Minister, or the appropriate Minister, in Northern Ireland? The only point I can make generally about this Bill on the relationship between the NCA and the PSNI is that there can never be a situation where a police officer or special in Northern Ireland is subject to direction and control from London without the same accountability as officers in Northern Ireland, whether they are part of the National Crime Agency or not. That would also apply to the specials that the noble Earl is talking about. I seek some guidance from him that this has been discussed with the Northern Ireland Executive and that Northern Ireland Ministers are content with this amendment.

Earl Attlee: My Lords, I cannot answer that point for certain, but it is inconceivable that the Government would table such an amendment without the agreement of the Northern Ireland Executive. If I am wrong, of course I will write to the noble Baroness.

Amendment 14 agreed.

Amendment 15

Moved by Baroness Hamwee

15: Schedule 1, page 36, line 26, at end insert “and for National Crime Agency officers to be seconded to a UK police force”

Baroness Hamwee: My Lords, I can be extremely brief on this. Paragraph 13 of Schedule 1 provides for secondment to the NCA. My amendment would allow for secondments both ways. I felt that it was an issue worth raising because I think that secondment can often be extremely helpful to both organisations involved. It may be that the Minister will tell me that it is not necessary to provide for NCA officers to be seconded to a UK police force because that would be covered by some other existing police legislation. If it is covered, that is well and good; if it is not, why not? I beg to move.

Lord Rosser: My Lords, as the noble Baroness, Lady Hamwee, said, this amendment makes provision for National Crime Agency officers to be seconded to a UK police force, as well as for persons to be seconded to serve as National Crime Agency officers. I would like to raise two points on this paragraph in Schedule 1. It refers to “persons” being seconded to the National Crime Agency to serve as National Crime Agency officers. There is no qualification before the word

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“persons”. Could it literally be anybody and still be within the terms of the statutory provisions of the Bill? I ask that because paragraph 7(2) of Schedule 1 says:

“A person may not be appointed as Director General unless the Secretary of State is satisfied that the person—

(a) is capable of effectively exercising operational powers; and

(b) is a suitable person to exercise operational powers”.

In other words, if the Secretary of State makes an appointment that stretches credibility, and the Secretary of State could have satisfied himself or herself on the points referred to, presumably the appointment could be challenged under the provisions of the Bill. There is, however, no apparent requirement on the part of the director-general to satisfy himself or herself on any point in relation to “persons” seconded under the Bill as it stands, or indeed to National Crime Agency officers seconded under the terms of the amendment, although one could take the view that if they were existing National Crime Agency officers there ought not to be a problem.

Can the Minister say why there is no requirement in the sub-paragraph that we are discussing for the director-general to have to satisfy himself or herself that any person seconded to the National Crime Agency has to be, for example, appropriately qualified, bearing in mind that the Bill lays down requirements on the Secretary of State over the appointment of the director-general?

Finally, can the Minister say what the definition is of a National Crime Agency officer? Is it anyone employed by or working for the National Crime Agency, or does it refer only to certain kinds of posts or activities being undertaken within the National Crime Agency?

6.45 pm

Earl Attlee: My Lords, I am grateful to my noble friend for moving this amendment. I appreciate that she is keen to encourage the exchange of staff both to and from the National Crime Agency. Indeed, interchange in both directions will be key to ensuring that the NCA benefits from the collective experience of policing as well as sharing its knowledge and specialist skills with UK forces.

SOCA officers regularly operate alongside operational colleagues in the police service, and it is vital that NCA officers are able to do the same. It is for this reason that the Bill provides for police officers to be seconded to the NCA and to be designated with the powers of an NCA officer during the period of their secondment. Two-way assistance provisions in Schedule 3 allow for NCA officers to operate under the direction and control of the chief officer of a UK police force and vice versa. However, there may be some merit in providing separately for more formal arrangements whereby NCA officers could be seconded to a UK police force for a sustained period of time. This might allow forces to benefit from the experience of NCA officers on a longer-term attachment.

If my noble friend will agree to withdraw her amendment, I can undertake to consider the matter further in advance of Report. At this stage I cannot commit to bringing forward a government amendment,

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but I agree that we should explore this issue in more detail. I will, of course, write to her once we have reached a conclusion.

The noble Lord, Lord Rosser, asked me a few technical questions. I suspect that I will have to reply to some of them in writing. He asked whether any person can be seconded to the NCA. The answer is yes. There is no reason why any person could not be seconded. However, there must be clear arrangements for the use of powers. It is worth pointing out that a person can be an NCA officer, but various powers can be designated for that person. Of course, it is important that powers are designated only where the person is properly qualified to exercise those powers.

Baroness Hamwee: My Lords, the less I speak, the more concessions we get, and I am very grateful to the Minister for that. Of course I will seek to withdraw the amendment. When the noble Lord, Lord Rosser, was raising some perfectly valid questions, it seemed to me that the terminology of paragraph 13—that the director-general “may make arrangements”—was likely to cover qualifications and scope. “Make arrangements” is a pretty broad provision.

Earl Attlee: My Lords, on the need for qualifications, the director-general will want to be advised of the suitability of potential secondees. They will be treated as NCA officers and will need to satisfy the usual criteria in order to be designated with powers.

Baroness Hamwee: My Lords, I look forward to talking to the Minister further about secondment and I am grateful for his offer. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

The Deputy Chairman of Committees (Baroness Pitkeathley): Before I call Amendment 16, I must tell your Lordships that if it is agreed to, I cannot call Amendments 17 to 19 for reasons of pre-emption.

Amendment 16

Moved by Baroness Smith of Basildon

16: Schedule 1, page 36, line 30, leave out paragraph 14

Baroness Smith of Basildon: My Lords, this is a probing amendment to clarify and understand the role of specials in the NCA and what they will do. When I read this clause, I thought I understood the role of specials. I went to my favourite police force—Essex—and looked at its website and at the government factsheet on specials in the NCA to try to tie the two together.

The government factsheet says that volunteers will be,

“similar to the police Special Constabulary”,

with,

“some or all of the policing powers available to”,

the NCA. It describes specials as,

“civic-minded volunteers in … public protection work … who may have particular specialist skills … in the fight against serious, organised or complex crime”.

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Yet in all the information that I can find regarding the recruiting of special constables in the police force, not one mentions specialist skills or experience. In fact, it talks about special constables being unpaid volunteers and says that they are,

“a manifest sign of partnership between the public and the police”,

with key responsibilities of, for example, performing,

“police duties at public events eg. airshows, concerts and county shows to complement the regular police provision”,

and in emergencies performing,

“additional police duties to assist regular officers”.

It talks about how they have a range of skills, but mainly it is about having more visible policing on the streets.

I would like an explanation of how this translates into specials with the National Crime Agency. Will the agency seek to recruit only specialists—and, if so, what kind of specialist, and how would it seek to recruit them? Surely the work of the NCA is very different to that of a local police force. It is investigative and is to do with serious organised crime, with very complex issues. Police specials have to do a minimum of four hours a week; it is quite difficult to understand how a special in the NCA could fulfil any meaningful function in that time. The Bill refers to part-time specials, but then paragraph (14)(3) says that they can be “otherwise than … part-time”—and the only definition that I know of that is full time. I am not clear why someone would be regarded as a special if they were seconded or taken on a full-time role.

I am happy to be reassured and am looking for reassurance, but I am slightly uneasy as to how this would look across a range of functions and different commands within the NCA—with border control, for example, or CEOP. Did any of the constituent bodies previously use volunteers or specials in this way? Did CEOP do so, for example? Those who wish to abuse children are sometimes very cunning and intelligent in many cases in trying to get to the place where they can get information. Have volunteers been used in the past—and if an NCA special volunteer worked in one area, would that volunteer be allowed to undertake work across the range of NCA functions and responsibilities? What will they do exactly? Also, given the relationship with the PSNI, has there been a discussion with the Northern Ireland Executive on this part of the NCA’s work there? I am a bit puzzled as to how this would work in practice, and any information that the Minister can give would be greatly appreciated.

Lord Henley: My Lords, the noble Baroness pays tribute to her favourite police force in Essex, so I will say a word or two in relation to specials in Cumbria. I mention them in the other end of the country purely to make a point. Two Saturdays ago, I went with them to Appleby for the horse fair, where a very large number of the travelling community descend on a very small town and there are quite serious public order issues. It is the biggest issue in the Cumbrian police force’s annual list of events; from a very small police force it has to provide something like 200 officers over the course of that week on duty to make sure that

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things remain under control. As a result, I am very proud to say, they make enormous use of their specials in Cumbria, as I am sure that Essex would do in its events. We should all pay tribute to those who give their efforts unpaid and voluntarily as special constables for the work they do and how effective they can be. The role of the NCA specials will be somewhat different than for ordinary specials—if you can call them ordinary—in Essex or Cumbria or wherever.

It may be useful if I set out in some detail how we see the specials developing and the NCA recruiting its own cadre of NCA specials. Enabling the recruitment of NCA specials will build on the approach that has worked effectively for many years in the Police Service. Like ordinary police specials, NCA specials will be unpaid and part time. But we expect many to be recruited on the basis of particular specialist or technical skills that they can offer, such as an understanding of complex financial products to aid the NCA’s counterfraud efforts or expertise in information technology and the internet to help tackle cybercrime. This is not that different from how reservists are often used in the Armed Forces. The noble Baroness will know that there are many specialities that it would be impractical for the Armed Forces to keep in large numbers, in full employment the whole time. But it is worth while having reservists that they can bring in to act as doctors, as they do in Afghanistan.

Like other NCA officers, NCA specials would be able to be designated with operational powers to play a full role in the agency’s work to tackle serious, organised or complex crime. Again, like other NCA officers, NCA specials would be required to be suitable, capable and adequately trained before being designated with the appropriate powers, which, for NCA specials, will be limited to the powers and privileges of a constable, in England and Wales only. NCA specials will not have operational powers in Scotland or Northern Ireland. So there is a distinction there.

The terms and conditions of NCA specials will be for the director-general to determine, but the Bill sets out some core principles. Although NCA specials are NCA officers, they will not be covered by every provision applying to other NCA officers. It will not be possible for the director-general to delegate his or her functions to an NCA special, and they will not form part of any group of NCA officers provided by way of assistance to another law enforcement body. That means that NCA specials will always operate under the direction and control of the NCA director-general. An NCA special will also not be able to form part of the advisory panel designating the director-general with his or her powers.

As unpaid volunteers, NCA specials will not be provided with a wage, a pension or allowances, and will not be covered by the no-strike provisions, which no doubt we will deal with later, for paid NCA officers. They will not form part of the Civil Service. But they will be reimbursed for expenses, and provided with the necessary subsistence, accommodation and training needed to perform their role. They will be able to receive payment to compensate for loss of salary in the event of injury or death resulting from the performance of their duties.

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Finally, we have provided for the powers of an NCA special to be ring-fenced so that when a person is both an NCA special and a special constable or Northern Ireland reservist, any powers conferred on him or her as an NCA special cannot be exercised when acting in the latter roles.

We believe that these measures on NCA specials will represent an attractive opportunity for individuals who want to volunteer and to contribute to protecting the public, as well as bolstering the expertise of the National Crime Agency across its remit. The idea behind it is to bring in expertise that might not otherwise be available. They will form an important part of the agency’s stronger co-operation with the private sector, harnessing skills that exist, and are constantly refreshed, in the private sector.

I hope that that explanation is sufficient for the noble Baroness and that we will in due course see them performing as valuable a role as specials in the rest of the police force, although obviously that will be rather a different role bearing in mind their expertise and the nature of the NCA.

7 pm

Baroness Smith of Basildon: I am grateful to the noble Lord for that explanation, which is certainly helpful, although I do not think that it necessarily answers all my questions. From what he said, I assume that the unpaid people employed,

“otherwise than on a part-time basis”

could be on secondment. If they are to be full time, as he said, this could involve a partnership with the private sector to bring in expertise that is useful to the NCA.

I am slightly puzzled to note that paragraph 14(4) refers to reimbursing the expenses of specials and providing for their subsistence and accommodation. However, if they have left a job to give some of their expertise and time to the NCA, I would expect their salary to be reimbursed unless there is an arrangement with their employer to continue paying their salary as if they were on secondment. However, paragraph 14(4)(c) provides that they can be compensated for loss of salary only if they die or are injured in the course of their work for the NCA. Therefore, unless the Government have an arrangement with the employer of the person who is on secondment to compensate the relevant person for loss of salary in such circumstances, that person will not receive compensation. I partly understand the provision but perhaps not all the details have yet been worked out because, given the pressures on the private sector at the moment, I cannot see how private sector employers would release staff with skills that would be useful to the NCA unless there is an arrangement in place, including a financial arrangement—perhaps it will be exclusively financial in some cases—to encourage them to release these staff.

I think that we are talking only about specialist staff and not volunteers coming to help in the office or with investigations, if I have understood the noble Lord correctly. However, there is still doubt about how those specialist staff will be attracted to work for the NCA. Therefore, I am partly reassured but still slightly puzzled.

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Lord Henley: As I said, they will be unpaid in exactly the same way as existing specials are. We hope that we will find volunteers but the NCA is looking to find people with the relevant expertise. Until I came to this job I was not aware that specials were unpaid. I presumed that they were in exactly the same position as my noble friend Lord Attlee, who has had long and distinguished service in the Territorial Army, where he would have been paid for the days that he served and the weeks and months of service when he was on Operation Telic and other such matters. However, the specials have always been treated differently; they are unpaid. We are leaving them in the same position. Just as the ordinary police—I should not say “ordinary”—can manage to get specials who will do this work unpaid, for which we are very grateful, we believe that the same will be true of the NCA. The NCA will be looking for the specialist expertise that it needs which some people—for example, those who are experts in IT—might feel that they can offer in their spare time. That is much the same process as happens with specials at the moment except that they are not offering that expertise.

Baroness Smith of Basildon: I still have some doubts that this process will work although I hope that I am wrong. It might be helpful if the director-general includes in the annual report something about the role of specials. I hope that the noble Lord will write to me on the following question, which he did not answer: namely, whether any of the organisations such as SOCA or CEOP have had specials working in this way. I understand that specials are unpaid, a bit like shadow Ministers in your Lordships’ House. Incidentally, I am happy for him to write to me on the other point as well.

Lord Henley: I can give the noble Baroness a partial answer. There is no comparable scheme within the Serious Organised Crime Agency. However, I understand that some police forces have made use of specialists as specials; for example, the City of London police do so for some fraud inquiries. I think that the same is true of the Metropolitan Police e-Crime Unit, which makes some use of specials in this way: that is, in bringing in expertise. However, as I said, within the precursor organisations, SOCA certainly has not had the ability to do that. I do not know about CEOP and others but I will find out and write to the noble Baroness.

Baroness Smith of Basildon: I appreciate that. CEOP is the body about which I have the most concerns and queries. However, given the Minister’s explanations and his offer to write to me, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17

Moved by Baroness Hamwee

17: Schedule 1, page 37, line 2, leave out “of salary”

Baroness Hamwee: This amendment concerns the same paragraph of the Bill with regard to specials, whom I am beginning to think of as the National Crime Agency’s equivalent of interns.

18 Jun 2012 : Column 1605

Paragraph 14(4)(c) provides that the NCA is not prevented from,

“providing for the payment of sums to, or in respect of, current or former NCA specials to compensate for loss of salary attributable to injury or death resulting from the performance of duties as NCA specials”.

This is a probing amendment, the aim of which is to seek a better understanding of the provision. I assume that we are talking here about salary from their normal job, as it were, given that they are not being paid for being specials.

I was prompted to table the amendment by the thought that any claim that is made following injury or death in the course of a special’s employment is likely to be for far more than his salary. I am not sure that it is possible to exclude a claim for the normal areas of compensation that would arise in the event of injury. It certainly seems to me that it is not proper to do so. Why is this provision required? Is it as narrow as I have understood it to be? If it needs to be stated because the powers of the NCA would not be adequate if it were not, should it not be stated in full in the way that I have indicated? I beg to move.

Lord Thomas of Gresford: I speak in support of this amendment. When I looked at it, I thought that I would not advise anybody to become a special in the National Crime Agency as not only do you not get paid but even if you are injured or killed in the course of your employment as a special, you get nothing other than compensation for salary. Therefore, if you are not a salaried person—for example, if you are self-employed—you get nothing. You get nothing for the injury itself. Presumably, the Government have in mind that you would sue somebody, whether it is themselves or the criminal concerned who caused the injury or death. Do they have in mind that a person should go to the Criminal Injuries Compensation Board to recover compensation? Putting in compensation for salary is so limiting that there must be some purpose behind that wording. I look forward to hearing it.

Earl Attlee: My Lords, I am grateful to my noble friend for moving her amendment. It is, of course, important that the National Crime Agency is able adequately to provide for the rare and very sad occasions when an NCA special is injured or killed in the line of duty. I would like to point out that when I joined the TA I did not know that I was going to be paid. I suddenly started receiving giro cheques when I was at school which were double the recommended term’s pocket money. I spent about 18 years in the TA as a junior NCO. If, sadly, I had been injured, I would have expected that a war pension would be paid on the basis of my rank, which stayed very junior for the first 18 years. Given the different status of NCA specials within the agency, the Bill expressly provides for the NCA to be able to pay sums by way of compensation for loss of salary in such an event. The details of that scheme will need to be drawn up over the coming months.

I suspect my noble friend will find that the inverse speaking time law applies to this amendment as well. She questioned whether the compensation should be limited to loss of salary alone. That is a fair question.

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An NCA special injured in the line of duty could, I accept, suffer other financial loss. If my noble friend would agree to withdraw her amendment, I should be happy to consider this point in more detail over the summer. At this stage, I cannot commit to bringing forward a government amendment on Report but I can certainly assure her that we will carefully consider the points she has raised and let her know the outcome of that consideration in advance of the next stage.

Baroness Hamwee: My Lords, the Government need have no fear that their schedule for getting through this Bill in Committee is in any danger, because I think that we will speak for briefer and briefer periods. I am grateful to the Minister and look forward to seeing how this goes. I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Amendments 18 and 19

Moved by Lord Henley

18: Schedule 1, page 37, line 32, at end insert “or a member of the Police Service of Northern Ireland Reserve”

19: Schedule 1, page 37, line 35, at end insert “or as a member of the Police Service of Northern Ireland Reserve”

Amendments 18 and 19 agreed.

Schedule 1, as amended, agreed.

Clause 2 : Modification of NCA functions

Amendment 20

Moved by Lord Alderdice

20: Clause 2, page 3, line 3, at end insert—

“(1A) If the order proposed by the Secretary of State would confer an NCA counter-terrorism function which applies to Northern Ireland, the Secretary of State must, before laying the order, consult and have due regard to the views of the First and Deputy First Ministers of Northern Ireland and the Minister for Justice of Northern Ireland.

(1B) Subsection (1A) does not limit Schedule 16.”

Lord Alderdice: My Lords, at Second Reading I raised a number of questions: for example, how it was possible in the context of Northern Ireland to deal with serious organised crime without having some counterterrorist function, given the involvement of so many paramilitary organisations in serious organised crime, and given the failure of SOCA to demonstrate a real advance with the Assets Recovery Agency and other predecessor functions; whether the NCA would be a real advance in dealing with serious and organised crime in Northern Ireland; and whether, given the Border Policing Command function, there had been direct consultations with the Department of Justice and Equality in the Republic of Ireland, with which we have our only land frontier within the United Kingdom. I was not hugely reassured by the responses that I had from my noble friends at that time, but the purpose of this probing amendment is to press on a different issue.

Its purpose is to clarify whether Her Majesty’s Government are content that they have the support of the Northern Ireland Executive for a legislative consent Motion, which will be necessary if the component of

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the Bill that refers to Northern Ireland is passed. My understanding is that at this stage the Executive have not even considered the question. There have been substantial discussions with the Minister for Justice. As I said at Second Reading, the Secretary of State, the right honourable Owen Paterson MP, has worked extremely hard with the Home Office and with Justice Minister David Ford to seek improvements to the Bill, and I think we have already seen evidence in government amendments that improvements have been made. However, the question is not simply whether Minister Ford is entirely satisfied but whether the First Minister and Deputy First Minister and their parties are satisfied, because, frankly, without their support a legislative consent Motion will not be forthcoming. The reason for my probing amendment is to press on this issue.

Frankly, I doubt whether Committee stage will be completed before the autumn, given the current timetable for the Executive, other things that happen at this time of year in Northern Ireland, the process of the Bill, and recesses and so on. However, we are proceeding with this Bill and its applications to Northern Ireland but we have not yet received clarification that there will be an upcoming legislative consent Motion. Given the sensitivities of the intelligence agencies and their involvement in Northern Ireland in dealing with serious organised crime and, even more particularly, with terrorist organisations in the past, I suspect that reassurances will be sought, perhaps in addition to those that have already been sought by Minister David Ford. Although my amendment is a modest one that refers simply to the consent of the Minister for Justice, the First Minister and Deputy First Minister, I should not be surprised if some reassurance of that kind were required before the Assembly passed a legislative consent Motion. I suspect that my noble friend the Minister will, with the advice of draftsmen, point out that I have indulged in a belt and braces exercise by asking for consultation and having due regard, because consultation is often considered in legislation as meaning “having due regard”. However, I think that more reassurance may be needed in Northern Ireland that the consultation means having due regard to the views of the First Minister and Deputy First Minister of Northern Ireland and the Minister for Justice.

As I said, this is a probing amendment because I want to hear from my noble friend whether the consultations have extended beyond the Minister for Justice and how far he has been assured that the Assembly will come forward with the necessary legislative consent Motion. I beg to move.

7.15 pm

Baroness Hamwee: My Lords, I have Amendment 21 in this group and it concerns a more general point. I do not know whether—how did my noble friend Lord Attlee coin it?—the law of inverse speaking time will apply here but I think that it should.

Clause 2(4) provides that:

“An order under this section may amend or otherwise modify this Act or any other enactment”.

My amendment, which may not be perfect in its drafting but is, I think, clear enough in its intention, would add,

“for the purposes of counter-terrorism functions”.

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My noble friend Lady Thomas of Winchester is here for the next debate and I had not warned her about this, but I will set her, as chair of the Delegated Powers Committee, on to the Minister if the Government do not acknowledge that there is something in this.

Baroness Smith of Basildon: My Lords, I listened to the noble Lord, Lord Alderdice, with some care. As noble Lords know, I have maintained an interest in Northern Ireland issues, having spent a number of years as a Minister there. I find it very difficult to understand how the Government can proceed with issues that affect Northern Ireland, particularly in this area, if there is not agreement from the First Minister and Deputy First Minister or discussions have not been held with David Ford, the Minister for Justice.

This is a sensitive area and I appreciate that, as the noble Lord, Lord Alderdice, said, these things can take some time to resolve when the Executive in Northern Ireland meets. Decisions by the Executive may not always be speedy, but the passage of the Bill will not be speedy either in that the Committee stage will continue after the Summer Recess. I hope that the Minister will take on board the comments of the noble Lord, Lord Alderdice, which we support. We think that the First Minister and Deputy First Minister should have an opportunity to comment on this and I hope that some agreement can be reached prior to moving forward with these clauses.

Lord Henley: My Lords, there are possibly two issues here. The first is the wider one on the order-making power in Clause 2, to which we will come later when we deal with whether the clause should stand part of the Bill. I trust that that will happen after we have broken for dinner, which may be convenient because I suspect that, in the light of the Constitution Committee’s report published today, it is a debate on which a number of noble Lords will want to speak and one on which we may want to take a reasonable amount of time.

The duty of the Home Secretary to consult Northern Ireland Ministers before laying before Parliament a draft order on counterterrorism functions is important. I hope that I can give some reassurance about the consultation that we are undertaking, who we have discussed these matters with and where we are at the moment. I am sure that my noble friend knows as much as I do about where this is with the Executive at the moment.

I recognise that the amendment seeks clarity on the relationship between the NCA and arrangements in Northern Ireland if a decision is made in the future—I stress if such a decision is made in the future—that the agency should have that counterterrorism function. That has been at the forefront of our consideration of these arrangements, not just for the order-making power but in relation to the agency as a whole, balancing the need for an effective United Kingdom response while respecting the important accountability arrangements for policing in Northern Ireland.

We recognise the particular sensitivities of the arrangements in Northern Ireland which is why in this clause we have already provided specific arrangements that recognise the responsibilities of the chief constable

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of the Police Service of Northern Ireland, who has operational responsibility for the police response to terrorism in Northern Ireland. It is absolutely vital that we are clear about the relationship between the NCA and the Police Service of Northern Ireland in the event that the agency were to take on the counterterrorism function. That is why Clause 2(2) provides such clarity by stipulating that the agency may carry out counterterrorism activities in Northern Ireland only,

“with the agreement of the Chief Constable of the Police Service of Northern Ireland”.

Furthermore, any draft order will be subject to the super affirmative process, which includes a requirement for the Home Secretary to consult those persons whom she considers will be affected by the draft order. Again, we will discuss that in somewhat greater detail when we get to Clause 2 stand part, which it would be appropriate to leave until after dinner, if everyone is happy with that suggestion.

Seeking clarity on the consultation requirement in relation to Northern Ireland is understandable and the broad nature of the consultation requirement in Schedule 16 could, of course, include the devolved Administrations—that applies to Scotland as much as it does to Northern Ireland—as well as operational partners, government departments and others. I do not think that we have a gap there.

As the House will be aware, under the terms of the Northern Ireland Act 1998, national security is an excepted matter and the National Crime Agency will be a reserved matter. A duty to consult on excepted and reserved matters therefore sits uncomfortably with the devolution settlement as it relates to counterterrorism matters. I recognise that counterterrorism policing in Northern Ireland cannot be divorced from the generality of policing which is, of course, a transferred matter. Indeed, the National Crime Agency itself will undertake a mix of reserved and devolved activity in relation to its serious and organised crime remit. That is why the provisions in Part 1 of the Bill will require the Northern Ireland Assembly to adopt a legislative consent Motion. That is also why there are provisions throughout the Bill which provide for the necessary checks and balances to reflect devolution at certain points. Obviously, there needs to be consultation with the Department of Justice in Northern Ireland.

I understand that the Justice Minister and the Justice Committee of the Assembly—I am sure that my noble friend knows as much as I do—have agreed in principle to take forward 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.

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I hope that my noble friend Lord Alderdice will accept that we are making progress. We will continue to do more and continue to discuss this with my right honourable friend the Secretary of State for Northern Ireland and others. We will carefully reflect on my noble friend’s points between now and Report, which will not happen until some time in late October or thereabouts.

I will quickly say a few words about Amendment 21. It seeks to limit the extent to which an order under Clause 2 may be amended or otherwise modified by the Crime and Courts Act and other enactments. I can give an assurance that Clause 2 is already limited purely to counterterrorism functions. While that is not restated expressly in subsection (4), the effect of that subsection when read with the clause as a whole is to limit the power to make amendments to primary legislation to those that are consequential on conferring counterterrorism functions on the National Crime Agency. Again, I suspect that that is a matter that we will discuss in greater detail when we come to the Clause 2 stand part debate. It was considered by the Delegated Powers and Regulatory Reform Committee. The committee made no recommendation in respect of that power in its report. In fact it went so far as to state that the idea of adding to a statutory body’s functions by subordinate legislation subject to parliamentary procedure is well established. I hope that my noble friend will feel that her Amendment 21 is therefore not necessary.

Going back to the original amendment of my noble friend Lord Alderdice, I hope that what I have said gives him the appropriate reassurance. We fully understand the sensitivities in this area and I hope that he will therefore feel able to withdraw his amendment on this occasion.

Lord Alderdice: My Lords, I am grateful to my noble friend. He said—I think I have the words correctly—that given that some of these powers were excepted matters, it sat uncomfortably to require the Home Secretary to consult a devolved institution. I understand that from a London perspective, but with regard to these very matters, the Good Friday agreement and the Anglo-Irish agreement require a sovereign Government to consult another sovereign Government about precisely these matters. That is something that sat uncomfortably with many people. I rather think on many issues that some people in Whitehall have not quite worked their way through to understanding what this really means. To me, the way things were presented not by my noble friend tonight but in the initial proposal for the Bill suggest a failure to understand the sensitivities and requirements under international treaty now to engage.

However, this is a probing amendment. I will read my noble friend's words carefully, but I think that he has spoken with considerable openness, candour and straightforwardness about the difficulties of finding our way through this issue. I am happy to withdraw the amendment at this point. I may find it necessary to come back to this question, not to create difficulties but for wholly the other reason of trying to assist the Government by pointing out issues that will be a problem down the road if they are not fully addressed.

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I have tried to give some kind of indication as to where they need to be addressed. I hope that I will not need to come back to this at a later stage and that the Government are successful in the difficult discussions to which my noble friend referred. At this point, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Amendment 21 not moved.

House resumed. Committee to begin again not before 8.29 pm.

Mental Health: Access to Work Support Service

Question for Short Debate

7.30 pm

Asked By Baroness Thomas of Winchester

To ask Her Majesty’s Government what steps they will take to promote the Access to Work mental health support service.

Baroness Thomas of Winchester: My Lords, in this Shakespeare celebratory year, I have been reflecting on the mental health of some of his most colourful characters, and in particular the mental state of perhaps his most villainous king—Richard Ill. Here is part of what he says about his own appearance:

“I, that am curtail’d of this fair proportion,Cheated of feature by dissembling nature,Deformed, unfinish’d, sent before my timeInto this breathing world, scarce half made up,And that so lamely and unfashionableThat dogs bark at me as I halt by them”.

Richard clearly could have done with the help of Access to Work mental health services in view of his very singular and ruthless method of accessing his particular vocation.

The House will be glad to know that that brings me to the purpose of this short debate on how the Government can promote this most laudable service, which seeks to help those with mental health conditions to remain in work, including self-employment, take up a job offer or start a work trial. But before leaving Richard Ill entirely, there is one more point which is relevant. The passage is, of course, from Richard’s opening soliloquy. Richard does not voice his self-loathing when others are present so no one knows about his deep distress. In keeping those destructive thoughts to himself, he has much in common with the vast majority of people with mental health problems today.

The Mental Health Foundation points out that Access to Work will really only succeed when the culture within organisations—whether office, factory, hospital, shop, school et cetera—is more open about, and less stigmatising of, people with mental health problems. This is backed up by a survey of 2,000 people across the UK by the Chartered Institute of Personnel and Development. About half of respondents said that they would not feel confident disclosing unmanageable stress or mental health problems to their employer or manager, and less than half were

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satisfied at the way in which their employer supported employees with mental health problems.

The Access to Work scheme in general is not well enough known, although things have certainly improved in the past few years. It is run by the DWP through Jobcentre Plus, and provides practical advice and support—mainly at present to disabled people and their employers to help them overcome work-related obstacles. Although help for employees with mental health problems has been available for a few years now, it was only in January of this year that the Government awarded seven contracts to run this particular intervention throughout the country to Remploy Employment Services.

We know that mental health problems account for more non-manual workers being absent from work than any other cause, and the figure is even higher when those with a secondary mental health diagnosis are included. This is well covered in the booklet Models of Sickness and Disability, written by Waddell and Aylward, which looks at the whole picture of common health problems experienced by the working-age population. They say that if current trends continue, within a few years mental health problems will be the main cause of all long-term sickness absence, incapacity for work and ill-health retirement, and will cost the UK even more than the estimated £40 billion to £48 billion per annum that it already costs. We are not talking here about severe conditions such as schizophrenia, but mild to moderate conditions such as anxiety-related or depressive disorders and stress. The authors’ conclusions are stark. They say:

“There is therefore an urgent need to improve vocational rehabilitation interventions for mental health problems. Promising approaches include healthcare that incorporates a focus on return to work, workplaces that are accommodating and non-discriminating, and early intervention to support workers to stay in work and so prevent long-term sickness”.

That is exactly what Remploy’s vocational rehabilitation consultants—VRCs—are trained to do. The key question is: who knows about this service and how do they find out about it? It is entirely a self-referral service for employees, although employers can seek advice. The sort of interventions VRCs might suggest are time management, organisation, planning or communication. Perhaps an employee needs help in making an employer aware of an existing mental health condition and would welcome the intervention of a VRC to help with the disclosure conversation. If the employee consents, then the VRC might talk to the employer about how the condition could be managed without the employee having to take time off. We all know that the longer a person is off work, the harder it is for them ever to return. The sort of changes and workplace adjustments that might be suggested include a change to working hours, flexible working, changes to the work environment, the introduction of a workplace mentor or buddy, or even additional training.

So, are there any downsides to the whole programme? The Mental Health Foundation does not think that the scheme is nearly ambitious enough. The three-year contract will cost £4.8 million and is estimated to help up to 1,600 individuals per year. Mind also believes that the service has the potential to be so valuable that funding should increase and the scheme be much more

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widely promoted. It also takes the view, and is not alone in this, that assessments and agreement of funding should take place before someone secures a job, so that people can go to an interview with the Access to Work offer in place, and for packages of support to be portable.

I have been conducting my own extremely unscientific survey for a few months now and have discovered that some large firms with HR departments know about and appreciate the scheme, but many smaller employers, even if they have vaguely heard about the original Access to Work scheme, do not know about its application to mental health problems. This comment from a retailer in the north of England with 30 staff bears this view out. He says:

“We are aware of the scheme generally, but would never have considered using it to help someone with mental health problems”.

Another comment, from a firm of accountants with seven employees, was that:

“I would have thought we were too small to use the scheme”.

Here is another comment, from a builder with fewer than 10 employees:

“Wouldn’t a person’s doctor recommend it? Surely an employee would have to be diagnosed with a mental health problem to qualify for help”.

The answer, of course, is no. Here is another comment on a similar theme from a fleet hire company:

“If we did have someone diagnosed medically, I would expect the GP to advise the correct solution”.

That shows a touching faith in the medical profession, which is interesting in view of the report out only today from the LSE, fronted by the noble Lord, Lord Layard, which found that three-quarters of those with depression or anxiety conditions get no treatment. Another employer, with about 40 staff, said that he had never heard of Access to Work at all, and usually got his information about employment matters from ACAS. He wondered whether the scheme would have helped with an employee with an alcohol problem. Yes, it could have helped there.

Finally, I accept that there is a much wider debate to be had about the whole question of health at work, and another about services for those with mental health problems. I hope that the Access to Work scheme will become much better known and prove so successful that it will be able to expand with a much bigger budget in the years ahead. I look forward to the rest of the debate and to my noble friend’s reply.

7.40 pm

Baroness Bottomley of Nettlestone: My Lords, I congratulate the noble Baroness on securing time to raise such an extraordinarily important and practical topic. During almost 30 years in this and another place, I have never ceased to take up opportunities to identify the critical importance of mental health. How excellent it is that so many in this House take this topic seriously.

In their strategy document entitled No Health without Mental Health, the Government made a strong statement on the importance of mainstreaming mental health. We all know the traditional stigma whereby if you had schizophrenia you would say that you had depression

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and that if you had depression you would say that you had flu, but you would do anything to avoid declaring openly that you were suffering from any form of mental health difficulty. How warmly I congratulate those many Members of Parliament who, in a recent debate in another place on the Mental Health (Discrimination) Bill, were able to discuss the mental health problems that they had faced. Such a debate would have been quite inconceivable when I first became a Member of Parliament. I congratulate them, as I do the many celebrities who use their celebrity status to talk about their own mental health problems, because the first challenge is to get people to talk about this issue which will face perhaps one in four people in their lifetime.

That brings me to the topic of today. I have a very high regard for our Minister. The merits or otherwise of bringing people out of the real world—I am not sure whether banking is the real world—into government are often discussed. What I have noticed about the Minister for Welfare Reform is that he has a forensic, tenacious approach to topics and brings his form of thinking not only to analysing the problem but to finding practical solutions. Ever since his independent report of 2007, Reducing Dependency, Increasing Opportunity, on the welfare-to-work system, he has seized the issues where a practical step can be made. People facing mental health problems lack confidence, lose their skills and feel isolated and stigmatised. Only today, in a reception given in another place for the campaign to fight hate crime, Mencap spoke of people with learning disabilities who are ridiculed, humiliated and made ever more isolated.

I have campaigned over many years on issues such as discrimination against women in the workplace, racism—we still do not have enough of our top managers from ethnic-minority backgrounds—and disabilities of all sorts. In some of the early meetings that I had with many people with mental health problems, I tried to suggest that one of the dilemmas for mental health is that employers do not understand it, particularly when there is a condition that may fluctuate. If you have a broken leg, a cancer or many other conditions, the employee’s behaviour can be predicted and the employer knows how to respond. The dilemma for mental health so often is that, with the best will in the world, the employer simply does not know how they should respond—“Is this going to get better? Is it going to get worse? Should I be sympathetic? Should I be more bracing and challenging? Should I be encouraging? Should I be empathetic?”. What is this all about for somebody who, because of the nature of society, does not understand how to assist for the best?

Here is a practical scheme. I join the noble Baroness in saying how delighted I am that Remploy is responsible for it, because it, of all organisations, has an excellent track record. Again I say that I so admire the way in which the Government set up an initiative and outsource it to an appropriate provider who can take forward practical schemes.

It is quite amusing, when we look at the figures produced so far for the number of people helped by the Access to Work scheme, to note that 580 people had mental health conditions, but that some 4,500 had

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difficulties in hearing or seeing and that 3,000 people had back or neck problems. The noble Baroness is of course absolutely right that we should do all that we can to ensure that as many people as possible understand this excellent scheme.

How much I commend the other organisations which are beginning to take a part. The noble Baroness mentioned the Chartered Institute of Personnel and Development, but the CBI—another great leader in the employment field—in its Healthy Returns? Absence and Workplace Health Survey 2011,stated:

“Mental health conditions emerge as the single most widespread cause of long-term absence amongst both manual and non-manual workers. When respondents were asked for the five main causes of long-term absence in their organisations … non-work related stress, anxiety or depression emerged as the most widespread health problem”.

Interestingly, that was the case among very many more of the non-manual employees than the manual employees.

There is no excuse for us now not to give priority to this issue. The biggest single reason for claims for incapacity benefit, now employment and support allowance, is mental and behavioural disorders. There are nearly 1 million recipients in that category, accounting for some 40% of total incapacity benefits.

Like the noble Baroness, I hope that more can be done to promote the scheme, particularly among small employers. It is easy for large businesses with global brands, stakeholder relationships and great concern for corporate social responsibility to set up excellent initiatives, but smaller employers often simply do not have the resource and the ability to deliver in practice.

I look forward to hearing the comments of the noble Baroness, Lady Meacher, on her husband’s excellent report for the mental health policy group at the LSE’s Centre for Economic Performance.

7.47 pm

Lord German: My Lords, I, too, congratulate my noble friend on giving us an opportunity to air this topic in such an interesting but also practical and informative debate in your Lordships’ House today. I shall take a practical approach to my questioning of the Minister and to some of the issues which have been raised.

The gateway to the mental health support service, now run by Remploy, is the Access to Work scheme, so it is essential that that gateway is not only open but welcoming. The focus must be on achieving a greater number of people passing through that gateway and a much greater understanding of what that portal means.

Looking at the literature around this whole area, I have found that some people will conflate—though they may treat them separately—learning disability and mental health issues. Will the Minister make it absolutely clear whether this mental health support service is for mental health issues or includes people with certain forms of learning disability?

The ONS figures with which we have been provided show us that only some 500 people were helped by the scheme in the first nine months of the past financial year. We are told, again by ONS, that the number of people who have mental health conditions could be in the region of one in six of our people. You would

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expect the number of people helped to approach that one-in-six figure, but 580 is just 0.2% of the total, so there has not been a huge impetus in the programme as it stood at the beginning of the year to get more people with mental health conditions into the programme.

The 2009 evaluation of the Access to Work programme states:

“AtW does not appear to be widely marketed and awareness of the programme seems to be fairly low”.

Liz Sayce, in her report entitled Disability Employment Support Fit for the Future, puts it more succinctly, saying:

“Access to Work should be transformed from being the best kept secret in Government to being a recognised passport to successful employment, doubling the number of people helped”.

My final question to the Minister, which I shall put to him again at the end but say it early enough to give him time to think about an answer is: if I were to ask this question in 12 months’ time, what would my noble friend view as being a measure of success? Would it be doubling the number of people who are helped? Would that be sufficient or would my noble friend wish to go beyond that aspiration? To achieve that, we need to raise awareness of the programme.

I need to say just a word or two about the other part of Remploy’s work, which is of course the Remploy factories, which have also been the subject of discussion and debate. It was interesting that only 6% of the employees of the Remploy factories have mental health conditions, compared to a quarter of the people to whom Remploy employment services are giving assistance, so we are looking at a different range of people here. Can my noble friend tell us—assuming that some of the 6% will not need to be in the programme because co-operatives, mutuals or employee buyouts may mean that some of those factories will continue—what special measures have been put in place for them? Are they being transferred automatically and directly to the Access to Work programme, and are they being given additional support beyond that which we now see within the programme?

The second issue relates not to the factories but to the broader workforce, and has already been mentioned: promotion and development of the Access to Work programme with employers and the broader workforce. It is all about perception, is it not? The National Health Service produced a figure that about one-half of people with mental health conditions would feel uncomfortable about discussing them with their employers. That is a slight improvement over the past decade, but the improvement has been very slow.

What can the Access to Work programme do to help employers and the workforce in general to understand mental health conditions and how they should be treated as an illness like any other? How can increased promotion to both employers and the workforce in general take place? In the notion of having the portal—the gate—open and accessible, it is crucial that awareness is raised.

Finally, I ask my noble friend: apart from numbers as a measure of success, is there anything that he

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would like to see in 12 months time about the manner in which the whole Access to Work mental health support service has been carried out?

7.53 pm

Baroness Meacher: My Lords, I, too, applaud my noble friend Lady Thomas for tabling this important debate and for her rather pertinent quote from Shakespeare.

The Department for Work and Pensions indeed has an enormous challenge if it is to condense the vast numbers of claimants of employment support allowance. The objective at one stage was to reduce those numbers by 1 million over 10 years; I do not know whether that remains true today. Perhaps the Minister will correct me if that is not right these days. We know that nearly one half of all claimants have some form of mental health problem. If the department is to achieve any sort of target, it clearly has to make a major impact on the number of people who are not in work because of mental health difficulties.

The noble Baroness, Lady Bottomley, referred to my excellent husband. Perhaps I am allowed to refer to the excellent LSE report issued today, entitled, How Mental Illness Loses out in the NHS. It underlines the challenge for Access to Work as regards mental health. For example, the report points out that among under 65s, nearly as much ill-health is mental illness as all physical illness put together. That is a striking fact. We think of one single physical illness, but mental illness equals pretty much the whole of physical illness, and mental illnesses are, in general, more debilitating than long-term, chronic physical disabilities. I do not think that people fully appreciate that.

As others have mentioned, only one quarter of people with mental illness are in treatment, while pretty much everyone with any kind of serious physical problem is in treatment. It is a completely different landscape. To prepare those sick and untreated benefit claimants requires the DWP to work closely with the providers of improved access to psychological therapy services, because those services are evidence-based. At last, we have evidence-based mental health services; we have never before had effective evaluations. The commission has been given £400 million to roll out increased access to psychological therapy and, by next year, 900,000 people should be receiving those services.

In my view, DWP clients should be at the front of the queue for those services if the Government are to achieve what they hope to. May I be so bold as to challenge the Minister to contact his colleagues in the Department of Health to persuade them of the importance of ensuring that that £400 million is in fact devoted to increase access to psychological therapies and is not diverted to other parts of the system, because the money is not ring-fenced? If the DWP is to succeed, it must have that money spent where it is supposed to be. Otherwise Access to Work as regards mental health will have to pick up the pieces.

Of course, effective treatment is only the beginning for many such clients. The people we deal with need volunteering opportunities, help to improve skills, skilled employment support and all sorts of things which, in

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the secondary sector, we provide, but there are people not in the secondary sector mental health services who will need some of those services—probably not all of them. Many with mental health problems, unlike physical health problems, will need help once they have gone into a job. That is crucial, and employers and bosses will need some help as well as they do not understand these things. The need for special Access to Work as regards mental health is clear. That certainly came out of the Institute for Employment Studies’ evaluation of the main Access to Work programme. I have to say that its results are dismal. Others have mentioned the figure of 580 people receiving help through the Access to Work programme, compared to 27,000 altogether. One of our colleagues referred to 0.2%, I calculated it as 2%; but anyway it is a very small percentage compared with nearly 50% of all people who suffer from mental health problems.

Access to Work as regards mental health is therefore, as I said, so important, but we have only three offices for the entire country—one office for the whole of south-east London, I read in a document circulated by the Library. The only way to get these services is by a postal system so you have to write. Oh dear. As another colleague mentioned, it is the best kept secret. I talked to some employment specialists in east London who work with these issues all the time. They had never heard of Access to Work mental health. They had just about heard of the main programme, but, as they said, it does not deal with our people; they do not understand our clients at all.

So we have a long way to go. Clearly, the three offices will not touch the problem, if that is still the case today and that was the only briefing that we were given. I put one plea to the Minister. If the DWP really wants to achieve something, it needs one really good mental health specialist in each DWP office and a budget that they can allocate specifically to the personal needs of each individual with mental health problems. Many years ago when I went to Stockholm, Sweden had the lowest unemployment levels of any western European country and they had that budget. That was the key, alongside the skills of the individual.

I know the Minister well understands these issues and I respect his ability to come up with practical solutions, so I hope that he will respond positively to the practical proposal that I have just offered.

8 pm

Baroness Browning: My Lords, I too would like to thank my noble friend Lady Thomas for bringing this debate to the Chamber tonight. I know that she feels passionately about this subject. She is ever diligent in making sure that we all keep up to speed with what is happening and she knows when to prod the Government if she feels that more needs to be done.

I have been quite encouraged lately by some of the television advertising that has taken place. It has depicted a situation where people have been away from an employment environment because of mental illness and has shown the way in which they and their colleagues deal with the subject. To have that kind of public information being broadcast on the subject of mental health is a breakthrough and I hope that my noble

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friend will agree that we need to keep up the momentum with that type of information as it goes to the heart of what we are debating tonight. There is still a stigma attached to mental health, not least in the workplace, and it is important that we ensure that employers and those who work with people who are known, or perhaps just suspected, to have had absences due to mental health problems, learn to understand the condition.

I was rather concerned, as others have been, about the statistics that have been provided for this debate. People have mentioned the Access to Work statistics of only 580 people with a mental health condition. I want to draw the Minister’s attention to the very bottom of that column on page 9 of the statistics, where it says “Other: 3,380”. Perhaps I am being imaginative, but I wonder whether among that 3,380 are people who have mental health problems but perhaps also have another diagnosis as well. Often these very complex, dual or sometimes triple-diagnosed conditions make it more difficult for people to obtain help.

My noble friend will not be surprised to hear me mention, along with mental health conditions, the condition of autism. Although autism is not a mental health condition or a learning disability, it is quite common for people with autism, particularly for the more able people on the autistic spectrum, to have mental health problems and to be under the care of the mental health services. In reply, could my noble friend say whether such people with multiple diagnoses are eligible not only for the Access to Work programme, but also for the very important service that Remploy offers? Remploy’s contract has not been in place long enough for us to evaluate properly just how much of a difference it has made. Could my noble friend share with us tonight what discussions were held around the issuing of that contract regarding expected outcomes, not just numerically but in terms of those people who have not only a mental health diagnosis but other diagnoses as well?

I am sure my noble friend is familiar with the work of companies such as BT. I remember going to a presentation by BT at least three to four years ago, when the work that they had done to create a proactive policy of deliberately recruiting people with a mental health diagnosis was outlined to Members of Parliament. They wanted to make it mainstream throughout the company. It is a big company, but one where the HR department and other employees were trained in how to work with and support people with mental health problems in the workplace.

It seemed to me that it was an exemplar that would warrant some encouragement from the top to take it more widely around other companies and, as we have also heard tonight, the public sector. The public sector is a huge employer of people and if you can do it in BT, I should think you can do it in every government department and agency around the country. If you did that you would cover quite a wide percentage of the population.

We are talking about two areas here: one is getting people into work and the other is maintaining people in work who perhaps have had an absence. A range of conditions come under the umbrella of mental health, but the biggest thing that goes when someone has had

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a mental illness is confidence. That often happens with due cause because such illnesses can recur. Having had one incident, there is a fear that it will happen again, and that causes people to lose confidence as individuals. The service that Remploy can offer to that group is particularly important.

8.06 pm

Lord Kirkwood of Kirkhope: My Lords, I am very pleased to follow my noble friend Lady Browning. She is an expert in these things, and I agree with what the noble Baroness, Lady Bottomley, said earlier about the expertise available to us in this House.

I do not consider myself to be a great expert in this subject, but I want to say in passing to my noble friend Lady Thomas that I do not know how many sessions of cognitive behavioural therapy Richard III would have needed, but it would certainly have spoilt the plot. She should stop going to literary book festivals, because this is all above my literary pay grade.

Reading up for this debate, the subject really took me back. Some of these statistics are quite startling. I did not realise that the trends had been so dramatic. I think, therefore, that it is something that we as a House and as legislators need to keep a careful eye on, which is why I am so pleased to take part in the debate this evening, brief as it is.

I agree very strongly with Liz Sayce’s report. Liz Sayce is an excellent person. She did an excellent piece of work for the Government, and we are all in her debt, but the bit of the report that captured my imagination and which picks up on what my noble friend Lady Browning has just said is the bit that says that what we really need is confident, well-informed disabled people with confident well-informed employers and an enabling state. That was the essence of where Liz Sayce started from, and I agree with that. Confidence is a very important element in all this.

I perfectly understand that we have come a very long way since the mid-1990s on the role of work, the support that is necessary and the active labour markets. Provision and support for people with disabilities going into work is much more accommodating than it used to be. Of course, there is still a huge amount to do. I just want to point out in passing that we have to be doubly careful about mental illness because we are putting greater pressure on people to go into work. I say that neutrally. We have to be careful because we get into conditionality and there are some real problems with that, because if we do not acknowledge and deal with mental illness we can suddenly find we are penalising people in ways that are contrary to natural justice. There is a real necessity to get this right.

One other point that I would like to put on the table is that I am still not confident we have enough capacity—broadly defined as occupational health experts, the medical profession, specialist services and employment support services—to deal with the explosion of need that we may face if some of these assessments are right. We must think very carefully about that.

I also agree with the point about co-ordinating commissioning services. The noble Baroness, Lady Meacher, rightly said that £400 million is being spent in the health service. The health service people need to

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talk to the skills people, to employers and to Jobcentre Plus—to all of them. If we do not do that, people will fall through the gaps.

I was interested in what my noble friend Lady Browning said about the public service. The Minister will put me right about this but I do not think that Access to Work is capable of being deployed in the public service. I may be completely wrong about that. If I am right, however, I do not begin to understand why that is not the case if it is true. People in the Civil Service may, the argument runs, have enough employment support and capacity in their own departments to be able to provide an equivalent service anyway, but the Minister would help me enormously if he could clear that up. I may have misunderstood, but if I have not I join my noble friend Lady Browning in saying that public service absence rates are far higher than they should be. We really need to address them as soon as we can.

I will make two final points in the two minutes left available to me. Everyone has said this, but I hope that the Minister takes this message back to the department: raising awareness is key and has to happen. If we are short of budgets, as we always are on these things—no one finds it easy to find money in these straitened financial times—I do not understand why the professionals in Jobcentre Plus and indeed in Remploy, or any others who are actively engaged in this important area of public policy, do not engage employers and deploy the business case for supporting mental illness and reducing absence rates. I have talked to employers in my time who think that absence rates are nothing to do with them. They said that it is for doctors to sort out, which is so old-fashioned as to be positively dangerous. There is a business case, which again the Sayce report clearly makes, that if we get this properly done, well-being can be increased and the public purse can be better off.

My test for the improvement suggested by my noble friend Lord German was whether more Jobcentre Plus people were engaged with more business people—particularly managers, if I can mention them. If you really capture the imagination of managers in their workplace, not only do you deal with the individual case in front of them but the whole workplace can become transformed and it is much better value for money.

Finally, in the weeks and months as we go on, I would like to continue to explore how regional variations pan out, because I deduce from the fact that there are quite big variations in some of these policy roll-outs that best practice is not being shared. That is another thing that Jobcentre Plus could do. This is a very important subject. I confess that I had not realised just how important it was until I started looking at some of these stats. I am sure that the Minister is on the case and very much look forward, as other noble Lords are, to hearing his response to this important debate.

8.12 pm

Lord McKenzie of Luton: My Lords, I add my thanks to the noble Baroness, Lady Thomas, for securing this debate, which is especially timely given the report

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released today by the Centre for Economic Performance’s mental health policy group, to which I think every noble Lord has referred. It very much sets the context for our debate by pointing out the massive inequality in the NHS in the way in which mental illness, as compared with physical illness, is treated. It also stresses, as the noble Baroness, Lady Meacher, said, the importance of completing the national roll-out of the Improving Access to Psychological Therapies programme.

We know that the costs of poor mental health are huge: costs to individual businesses in absenteeism and presenteeism and costs nationally in lost output and tax revenues and increased benefits, but costs to individuals in the aspirations blunted, the careers interrupted, the income lost and the social interactions diminished. We know that around 10 million people in the UK are affected by a mental health condition at any time. The Centre for Mental Health suggests that only about a quarter receive any treatment and that only about 19% of people with a mental health condition are in employment. In response to Dame Carol Black’s review of the health of Britain’s working-age population, the previous Government acknowledged the need to create a new perspective on health and work, that being in work is in general good for health, and that worklessness leads to poorer health. This is as much the case for mental health as for physical health and is, I believe, an agenda that is shared with the coalition Government.

We know that poor mental health is the main cause of absence from work and that with the right support individuals can be productive and fulfilled employees. This strand of thinking led to the piloting of the placing of employment advisers as a core component of the IAPT programme. Perhaps the Minister could give us an update on this. Before this evening, someone—I cannot recall who—referred to Access to Work as one of the previous Government’s best kept secrets, and we did not have many. The opportunity to shine some light on it, especially the newly commissioned service, is therefore to be welcomed. I think the noble Lord, Lord German, referred to the 2009 DWP evaluation of the programme as it was then organised, before the business model for delivery was changed. As he said, the evaluation concluded that awareness of the programme was patchy among Jobcentre Plus staff and that there was no evidence to suggest that customers found out about the programme in any systematic way, so the question posed by this debate is very relevant.

We know that this is currently a very difficult labour market and that this will continue for some time to come. Addressing the challenge that this presents for those with a mental health condition has been and will continue to be a recurring theme of our deliberations around welfare reform: the descriptors for the WCA; the fit for work, WRAG and support group determinations; the Harrington changes; the application of universal credit; and the Work Programme. In all this, the application of Access to Work for people with mental health conditions is of course to be welcomed. By definition, it applies to those who are in or close to the labour market. To get support, an individual must be in paid employment or have a confirmed start date, and the support must be needed when starting a new employment to reduce absence from work or to stay in

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work. The support is further available for the self-employed and for those about to start a work trial. As we have heard, the service has been contracted to be delivered by the vocational rehabilitation arm of Remploy.

If I may, I have a few questions for the Minister’s forensic approach. According to the specification, the indicative numbers for the service over the three-year contract period are between 0 and 1,615. Contrast this with the data for Access to Work as a whole, which identify 35,000 people having been helped in 2010-11 alone, of whom over 13,000 were new customers. Contrast it also with plans to make 1,500 people compulsorily redundant from the closure of the first wave of Remploy factories. If the numbers for the mental health service are realistic, that suggests just a scratching of the surface. Where will the funding come from if the take-up is to be higher?

What will the funding be for Access to Work for the current spending review? What additional resources are being made available for the new mental health service? There is seemingly a switch of funding amounting to some £15 million from the Remploy closures, but it is not clear how this is to be allocated. Under the specification, the support to be provided is limited to a maximum period of six months for any individual referral. Clearly we recognise the need to deploy limited resources in a targeted way, but given what we know, particularly about fluctuating conditions, will the Minister explain why this precise cut-off is used? How does this sit alongside the Work Programme? Is there a route for those on the Work Programme to be referred for support under this programme or indeed the existing Access to Work arrangements? If so, who bears the cost?

The contract with Remploy has been running for just six months, so these are therefore early days, but if there are any data on take-up and outcomes so far it would be helpful to know them, including the extent to which, under the right to control, customers have availed themselves of providers other than Remploy.

We welcome and support the new service, which will help some to access and some to retain mainstream employment. It is a small but important step.

8.18 pm

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, I thank my noble friend Lady Thomas, as has everyone else, for raising this important issue. I am grateful for the important and thoughtful contributions from other noble Lords today. I have listened very closely, and I shall take the opportunity to outline how the Government are supporting disabled people into work, especially those with mental health conditions, and in particular how we are promoting the Access to Work service.

I assure noble Lords that I feel very strongly about this issue. Over the years there has been a huge change in how we think about mental health and work. Evidence shows that being in good work generally leads to improved outcomes for people with both mental and physical conditions. Returning to work often has a therapeutic effect. The workplace offers an important opportunity for people to build resilience and to develop

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social networks and their own mental capital. The Government aim to improve employment outcomes for people with poor mental health by supporting them to gain and sustain employment and to remain in suitable employment, and to ensure that they are treated equably in the operation of the reformed welfare benefits system.

We know that we need to do more. The employment rate for disabled people is just over 46%, compared with an employment rate for non-disabled people of around 76%. For people with mental health conditions, the employment rate is much worse at around 15%. This is a great loss, not least for employers. For example, people with autism—I accept that people with mental health conditions have something else, but this is related—can have exceptional talents and prove a tremendous asset to business. That is why we asked Liz Sayce to carry out a review of specialist employment support, and why we consulted on her recommendations that were published in June 2011. The responses to the consultation strongly supported the idea that money to support disabled people into employment should follow individuals, not institutions, and that government-funded segregated employment is not the way forward for disabled people.

Liz Sayce’s report recommended that Access to Work be expanded so that it can support more people. She suggested measures such as opening it up to internships and making it easier through, for example, an internet portal. On 7 March we published our response, in which we repeated our commitment to protecting the £320 million budget for specialist employment support but to spending it more effectively so that it could support thousands more disabled people into work. In answer to the question from the noble Lord, Lord McKenzie, there is a £15 million increase in Access to Work to help an additional 8,000 people, along with other efficiencies.

We announced in our response that we would accept all the recommendations on Access to Work and that we would work with disabled people to get these right. In particular, we announced the extra £15 million, and we will also recycle money freed from Remploy into Access to Work and other programmes to enable more disabled people to meet their aspirations and remain in work.

My noble friend Lord German asked what I would consider an additional measure of success in 12 months. It basically comes down to an increase in the number of people with mental health issues using the service. As we have sorted out, slightly under the carpet, 2%, even if that is more than 0.2%, is simply not enough.

Over the next 12 months, we will deliver a rolling campaign to build up a strong profile internally and externally with the aim of increasing the take-up from underrepresented groups. In particular we will build operational awareness of the Mental Health Support service. This service was established to allow Access to Work to meet the longer-term objectives of increasing the numbers of customers with mental health issues who gain assistance from the programme. The contract began in December 2011 and is due to run for three years. It offers additional support for individuals with a mental health condition.

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In answer to the question from my noble friend Lord German on how it supports individuals, work-focused mental health support will be tailored to the individual. The other types of support that it offers include assessment of an individual’s needs to identify coping strategies; a personalised support plan detailing the steps needed to enter, remain in or return to work; suggestions for reasonable adjustments in the workplace or in working practices; advice and guidance to enable employers to understand mental ill health fully and how to support employees with mental health conditions; and signposting to other external support services and networks.

My noble friend Lady Browning asked about multiple diagnoses. Yes, that is part of this service as long as mental health is a factor in the need for support.

My noble friend Lord German asked whether the focus is on mental health or people with learning difficulties. It is on mental health.

Alongside this we will look at how we can inject more expertise in mental health into the employment support offered by the department. On the Work Programme, which is our biggest welfare-to-work programme, all providers have pledged to develop their expertise to support people with mental-health conditions to find, enter and remain in employment.

In response to the question from the noble Baroness, Lady Meacher, each Jobcentre Plus district has a mental health and well-being partnership manager. We are also looking carefully at how best to bolster the knowledge and confidence that Jobcentre Plus staff have about mental health, including close working with primary care trust mental health counsellors to enable the fast-tracking of customers for counselling.

The Government are considering their response to the health at work review—an independent review of sickness absence—which makes recommendations to help people who can work stay attached to the labour market through periods of ill health, while ensuring those too sick to work receive support quickly.

The review recognises that mental health in the workplace is poorly understood by employers and the public and that much needs to be done to eliminate the stigma. It makes a number of recommendations, including the establishment of a state-funded independent assessment service. The Government are considering their response to the report and will make an announcement in November. My own ambition for this response is that we take advantage of it as a key vehicle to expand medical capacity, particularly in the area of mental health, where capacity is scarce, and to provide support for people who work for smaller companies. I do not think that they will ever get the kind of support that a company such as BT offers, because BT is an extraordinary exemplar in this area. However, we can pull them a long way from the complete lack of support that happens to too many people in that area.

To close, I shall answer one of the questions asked by the noble Lord, Lord McKenzie of Luton, but I shall have to write about the others as there were too

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many for me to deal with in such a short time. The IAPT programme is being rolled out across England by March 2015.

I again thank the noble Baroness for raising this issue. It is critical because roughly 40% of people who end up in that state or who are on sickness absence have a mental health issue. To get our strategies right for people, we need to get our mental health strategies right.

Crime and Courts Bill [HL]

2nd Report from the Delegated Powers Committee

Committee (1st Day) (Continued)

8.30 pm

Clause 2: Modification of NCA functions

Debate on whether Clause 2 should stand part of the Bill.

Lord Rosser: My Lords, Clause 2 modifies National Crime Agency functions. It enables the Secretary of State by order to make provision about National Crime Agency counterterrorism functions and, in particular, to make provision conferring, removing or otherwise modifying such functions. It also provides for such changes to be subject to the super-affirmative procedure, which is referred to in Schedule 16. This is an important issue about who should be responsible for counterterrorism activity, which the Metropolitan Police is currently involved in. That organisation has considerable expertise in this field. There would have to be a strong case to move such responsibilities away from the Metropolitan Police or, indeed, to move them away from the National Crime Agency if such responsibilities rested with that body.

The Government clearly recognise that this is a sensitive issue because, having decided to make changes to National Crime Agency counterterrorism functions by order, they have proposed that the super-affirmative procedure should apply. The super-affirmative procedure is a less comprehensive procedure than primary legislation. Changes in the responsibility for counterterrorism and changes to the structure for meeting that threat should not be easily or quickly made without the full and proper consideration that can be given by Parliament through primary legislation. Primary legislation enables a change in the law to be considered in detail and amended through consideration in Committee and on Report. The Government cannot stop that happening under current practice and procedures but, under the super-affirmative procedure, that will not be the case, as even the more limited procedure for considering government proposals in paragraph 4 of Schedule 16 will not apply if the Government are able to use their effective majority in each House to approve their draft order without even going through the procedure in that paragraph.

We are talking about an issue of substance and concern: where responsibility for counterterrorism should lie. It should not be dealt with by the Government by order, super-affirmative or otherwise; it should be open to the normal and full parliamentary procedure for approving, amending and making changes in statutory arrangements—namely, through primary legislation after full debate, with the Government being compelled to accept the Bill if and as amended by Parliament.

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This matter has been considered by two committees. I imagine that until today the Minister was probably not unhappy with the situation, since the committee report that we then had in front of us was that of the Delegated Powers and Regulatory Reform Committee. Its view was:

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

However, this is not just about adding to a statutory body’s function; it is also potentially about taking it away from another body, in this case the Metropolitan Police. Nor is this any function; it is the counterterrorism function, on which the lives and security of the people of this nation depend.

We have now seen the report of the Constitution Committee, which has taken a rather different line. It refers to the fact that Clause 2 concerns the possible future extension of the National Crime Agency’s remit into counterterrorism and points out that currently the counterterrorism command of the Metropolitan Police has the lead national role in counterterrorism policing. The committee goes on to point out that Clause 2 would give the Secretary of State an enabling power,

“to ‘make provision conferring, removing, or otherwise modifying’ NCA counter-terrorism functions”.

If that was applied,

“the Home Office would be in a position to have the option of assigning or transferring relevant functions to the new agency”.

The Constitution Committee has described the enabling power in Clause 2 as,

“an order-making power of the ‘Henry VIII’ type, so empowering the minister to ‘amend or otherwise modify this Act or any other enactment’”.

Those words are found in Clause 2(4), where the Bill states:

“An order under this section may amend or otherwise modify this Act or any other enactment”.

It is indeed a wide-ranging power. The Constitution Committee comments on the proposal in respect of the super-affirmative procedure and says:

“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 committee says that its approach to Henry VIII clauses,

“is based on the constitutional principle that it is for Parliament to amend or repeal primary legislation. The use of powers allowing amendment or repeal of primary legislation by ministerial order is therefore to be avoided, except in narrowly-defined circumstances. A departure from the constitutional principle should be contemplated only where a full and clear explanation and justification is provided. For assessing a proposal in a bill that new Henry VIII powers be conferred, the Committee has adopted a two-fold test”.

That test is:

“Whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill, and, if so, whether there are adequate procedural safeguards”.

The committee goes on to say:

“We are not persuaded that clause 2 passes the first test. 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”.

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We agree with the views of the Constitution Committee, which was not persuaded that Ministers should have the power to change the statute book for the specific purposes provided for in this Bill in respect of the allocation of functions and attendant responsibilities and of the accountabilities of counterterrorism policy. We are opposed to the question that Clause 2 should stand part of the Bill.

The Minister of State, Home Office (Lord Henley): My Lords, I hope that I can respond to the noble Lord’s points. I agree with him that this is an important issue, which we need to take very seriously. The noble Lord raised two questions: should counterterrorism move to the agency and, if so, how? They are two distinct questions and we want to consider them in due course. I will consider them in that manner. He also feels that it is a matter on which there should be a full debate in Parliament, relating to the second question: “If so, how?”. I have to say that this is possibly not the best example of such a debate. As the noble Lord made those expressions immediately after dinner, perhaps he felt some embarrassment over what an empty House we have as we discuss what I, like him, consider a very important issue to which I hope we will do justice. We might have to come back to it at a later stage because of its importance.

As the noble Lord knows, the functions of the NCA have been drafted in fairly broad terms to ensure that it is able to tackle all the crimes in which organised crime groups are involved. However, it will also be important for the agency to be able to react quickly to any changes in the threat picture. In particular, careful consideration has been given to how best to future-proof—an expression I do not particularly like, but it is quite useful here—the National Crime Agency for a potential role in counterterrorism. 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 2012 Olympic and Paralympic Games and the proper establishment of the NCA. It is only then that it will be right to look at how counterterrorism policing is co-ordinated across England and Wales and to 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 it might be.

I think that the Home Affairs Select Committee agrees with us. In its September report, New Landscape of Policing, it said:

“We agree with the Government that responsibility for counter-terrorism should remain with the Metropolitan Police until after the Olympics, not least because the National Crime Agency will not be fully functional until the end of December 2013”.

It went on:

“However, we recommend that, after the Olympics, the Home Office consider”—

I am very grateful that it used the word “consider”—

“making counter-terrorism a separate command of the National Crime Agency: there should be full co-operation and interaction between the different commands”.

I give an assurance that any decision that we make will be made after that time and will be considered very carefully. It is not a decision that we need to make at this stage.

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I move on to the order-making power, which looks very drastic. It is a Henry VIII clause. I remember being introduced to Henry VIII clauses by my noble kinsman Lord Russell, since deceased, who was the first to spot their increasing use by the previous Government—it was a long time ago—when we were trying to expand the use of these things gradually. They should rightly always be looked at with very great care by all Members of both Houses of Parliament. It is quite right that Parliament should do these things in the proper way.

Clause 2 provides an order-making power so that the Secretary of State can confer, remove or otherwise modify the functions of the NCA in relation to counterterrorism. The order-making power is limited to changing the functions of the NCA. The noble Lord again got very worried about Clause 2(4), which states:

“An order under this section may amend or otherwise modify this Act or any other enactment”.

Most simple lawyers, such as me or, possibly, the noble Lord, Lord Beecham, would immediately assume that that meant anything in the world, that we could do what we wanted and that this was a wonderful thing. I am advised by those who are much greater than me and are not just simple lawyers that, if you read the clause in full, subsection (4) does not give that power. Because this has to be taken as a whole, the power is confined to counterterrorism functions and it is only on those that the Secretary of State could act. Having said all that, I accept that it is important to address these issues.

8.45 pm