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House of Lords

Monday, 25 March 2013.

2.30 pm

Prayers—read by the Lord Bishop of Coventry.

Infrastructure: Expenditure


2.37 pm

Asked By Lord Hollick

To ask Her Majesty’s Government how much has been spent on infrastructure projects in the current financial year, and how that figure compares with that in the previous financial year.

The Commercial Secretary to the Treasury (Lord Deighton): My Lords, we are spending more on infrastructure projects this year. Capital spending by the departments responsible for economic infrastructure—DfT, DECC and Defra—is increasing. The transport budget, for example, rises from £7.7 billion last year to £8 billion this year, then £8.7 billion next year and £8.9 billion in 2014-15, which is more than at any point under the last Government. This has been possible because the Government increased infrastructure spending by £10 billion over the past two Autumn Statements, increases which the Budget committed to making permanent, with a further £3 billion a year from 2015-16.

Lord Hollick: I thank the Minister for that Answer. However, the Office for Budget Responsibility reported a rather different situation last week, when it announced that public sector net investment would fall by 34%, from £38.7 billion in 2010-11 to an estimated £25.5 billion in the current year, 2012-13. The OBR also forecast that, taking into account all the measures so far announced, including those announced in the Budget last week, there would be zero growth in infrastructure spend between now and 2017-18. Will the Minister please explain why these measures have failed, and continue to fail, to boost overall infrastructure investment, and which additional measures he plans to introduce to improve the dire forecast for the next five years?

Lord Deighton: My Lords, first, it is necessary to clear up the numbers. There is a significant difference between public investment numbers and investment in infrastructure. Public investment includes huge investments in health and in defence, so there is a significant difference there. Also, if you look at the national infrastructure plan, you see that approximately 80% of the investment that we expect over the next 15 years in fact comes from the private markets and not from public capital expenditure.

Lord Flight: My Lords, the national infrastructure plan has identified some £200 billion of energy infrastructure investment and £200 billion of communication and transport infrastructure investment. What proportion

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of that total does the Minister estimate might be under way by the end of five years, and to what extent are any delays caused not by the absence of finance—where sovereign funds and others are willing to put up the money—but by planning and environmental legal constraints in this country?

Lord Deighton: I thank my noble friend for that question, which focuses us on the issues to do with accelerating the delivery of this very important programme. With respect to the proportion that will be under way within this Parliament, this Government have focused activity on the top 40 programmes and projects, which accounts for about £200 billion of the £400 billion my noble friend refers to. Approximately 20% of those projects are currently in construction, and we would expect that proportion, by 2015-16 and the end of this Parliament, to be approximately 50%. There is no question but that the gate that most constrains our ability to accelerate the stream of projects is to do with the variety of planning regulations that surround any major public infrastructure investment.

Lord Soley: Do I take it from the Minister’s enthusiasm for private sector investment in infrastructure, with which I wholly agree, that he supports the expansion of Heathrow Airport?

Lord Deighton: If I may say, my Lords, those are two quite separate questions. I am very enthusiastic about private sector investment. Infrastructure investments lend themselves to financing in the private markets because they generate a cash flow that can repay those investments. The question about Heathrow Airport is an entirely separate one, although I accept that airports are a particularly attractive investment proposition for the private markets.

Lord Barnett: My Lords, is not the difference between the figures that he quoted and those quoted by my noble friend Lord Hollick that the previous figures were allocated but not actually spent?

Lord Deighton: I bow to the noble Lord’s extensive experience in managing public expenditure. There is absolutely a distinction between what is allocated and what is spent. There is a small additional amount this year that is underspent, but it is in the region of £2 billion, which is consistent with previous years. I agree that that is part of the difference.

Lord Adonis: My Lords, the Budget document says that the Government will create an enhanced cadre of commercial specialists in Infrastructure UK to promote infrastructure delivery. How many such specialists are there now, how many will be in the enhanced cadre and when will these specialists be appointed?

Lord Deighton: I thank the noble Lord for drawing attention to an important part of our intervention to improve the public sector’s delivery of these crucial projects. On the question of the amount of resources required, we are not simply discussing the resources in Infrastructure UK here; we are discussing the

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resources right across government, particularly in the government departments that are charged with delivering infrastructure: the DfT and DECC being the two primary examples. Between now and June, we will work precisely to define their requirements, based on the project load that they are managing, and what they ought to be staffed with in order to make that happen. That gap is thus being defined, and we have to assess what is in the departments as well as what is in Infrastructure UK in order to determine how to fill in that difference.

Lord Forsyth of Drumlean: My Lords, will my noble friend confirm that had he continued with Alistair Darling’s plans for capital expenditure, capital expenditure would have been severely reduced?

Lord Deighton: My noble friend is precisely right that the restoration to capital expenditure which this Government have made through the 2010 spending round, the two Autumn Statements and the recent Budget, has restored capital expenditure levels to considerably above the previous Government’s plan.

Lord Berkeley: My Lords, can the Minister clarify how much of the amount he quoted in his original Answer is in respect of Network Rail and how much is capital expenditure, whether it is considered to be in the private or public sector, and whether or not it was financed by government guarantee?

Lord Deighton: The plan for Network Rail is included under the high-level output specification, which is a £9 billion plan from 2014 to 2019. Of that £9.4 billion, approximately £4.2 billion has been added during the tenure of this Government.

Lord West of Spithead: My Lords, the Minister mentioned defence infrastructure. Does he not agree that it would be better over the next eight years to spend money on building warships in our warship yards rather than spending money in those yards not to build warships, which is what the plan appears to be?

Lord Deighton: I congratulate the noble Lord on being able to take the Question into the sphere of defence expenditure, which is not my expertise or my brief. One thing that I am working on in all our infrastructure investments is to make sure that they are highly productive. Spending the money that we are allocating well is probably the most effective thing we can do over the next three years.

Prisons: Suicide


2.46 pm

Asked By Lord Sheldon

To ask Her Majesty’s Government how many people have committed suicide in prisons since January 2000.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the figures we hold on suicide are classified within the data on self-inflicted deaths.

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There were 960 self-inflicted deaths in prison custody between January 2000 and September 2012. Annual numbers have reduced from 92 per year in 2007 to 57 in 2011.

Lord Sheldon: My Lords, by last week there had been 982 suicides since 2000, including 15 children under the age of 18. Staff in prisons try to reduce those deaths but suicides continue.

Lord McNally: My Lords, inevitably it is true that suicides continue. But there has also been a concerted effort by the prison authorities and those with responsibility for the youth estate to try to avoid as far as possible these dreadful circumstances—dreadful for the prison staff who have to deal with them and dreadful for the families who have lost loved ones. The noble Lord makes the point that suicides continue. I would say that that is against a background of great efforts by the authorities to try to continue the welcome reduction of recent years.

Baroness Linklater of Butterstone: My Lords, any suicide in custody is terrible and a cause for real concern, but when children commit suicide it is an absolute tragedy. Three children have died in the past 18 months or so, as recently reported by the Prisons and Probation Ombudsman in Wetherby, Hindley and Cookham Wood YOIs. Can my noble friend the Minister please tell the House what action the Government are now going to take to ensure that these exceptionally vulnerable children—as these were—are not held in young offender institutions but in facilities that are better suited to meet their very particular and challenging needs?

Lord McNally: My Lords, my noble friend is right. There have been three recent deaths—the first in youth custody for more than five years, so it is important to keep these numbers in perspective. The Youth Justice Board—YJB—which is responsible for the placement of young people in custody, is working closely with the Department of Health in the development of the comprehensive health assessment tool to screen and assess the needs of young people aged under 18 on reception. The Department of Health has developed a youth justice health and well-being needs assessment toolkit, which is now available to help with the planning and commissioning of health services for young people across the justice system. I should also add that the three recent deaths have been investigated by the Prisons and Probation Ombudsman.

Baroness Finlay of Llandaff: Since the instance of two or more mental disorders among the prison population is estimated to be 15 times that of the rest of the population and up to 35-fold higher in female prisoners, despite the assessment that the Minister referred to and despite the fall in suicides, there remains a major treatment problem for prisoners with mental health disorders, particularly when they move around and do not have stable placements. How is this going to be addressed by the Ministry of Justice and how will the changes to the NHS affect the provision of mental health services in prisons?

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Lord McNally: The noble Baroness is correct. One of the abiding problems of our Prison Service is the need of so many prisoners in the criminal justice system for mental health support. We are talking with the Department of Health to make sure that we can assess prisoners and that those who are in need of mental health support are given it. Since 2007 all establishments operate an individually focused care planning system for prisoners identified as being at risk, the key benefits of which include an initial assessment and faster first response, the provision of flexible individual accountable care, better sharing of information and a multidisciplinary approach. I do not underestimate the fact—

A noble Lord: Too long.

Lord McNally: I know it is too long but it is worth getting on the record that the problems of mental health within the prison population remain and we need a more holistic approach to solving them.

Lord Elton: My Lords, my noble friend referred to prisoners identified as being at risk of suicide. Can he tell us how many of those there are currently, how many are identified as having mental health problems of any sort, and how many staff there are who are qualified to deal with their mental health illnesses while they are in prison?

Lord McNally: On the latter issue I will have to write to the noble Lord. On any one day in the Prison Service it is estimated that there are about 1,500 prisoners who are under care and supervision out of concern for the danger of self-harm or worse. I will have to write to the noble Lord about the actual number with mental health issues.

Lord Roberts of Llandudno: My Lords—

Lord Harris of Haringey: It must be this side’s turn eventually. I declare an interest as chair of the Independent Advisory Panel on Deaths in Custody. Given the importance of properly investigating the deaths, particularly of young people but of anyone who dies unexpectedly in prison, is the Minister satisfied with the level of resources available to the Prisons and Probation Ombudsman to carry out their function and, secondly, does he not agree that it is time that the Prisons and Probation Ombudsman was made statutorily independent of the Ministry of Justice and the Prison Service?

Lord McNally: On that latter point I will have to take advice. I pay tribute to the noble Lord for his appointment to the independent advisory panel. It was set up in 2008 and its shared purpose is to bring about a reduction in the number and rate of deaths in all forms of state custody and to share the lessons that can be learnt from these deaths. The ministerial board incorporates senior decision-makers, experts and practitioners in the field. This extended cross-section approach to deaths in custody allows for better learning and sharing of lessons across the sector.

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House of Lords: Debates


2.54 pm

Asked By Baroness Miller of Chilthorne Domer

To ask the Leader of the House whether he will bring forward proposals to encourage greater interactivity of debate, and to allow time for interventions, in time-limited debates in the House and Grand Committee.

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford): My Lords, our existing procedures allow for a degree of spontaneity. Interventions are permitted in moderation and we allow speakers in the gap. Most importantly, the Companion discourages Members from reading their speeches. Indeed, your Lordships have resolved that it is alien to the custom of this House. Not reading speeches would certainly encourage greater interactivity of debate.

Baroness Miller of Chilthorne Domer: My Lords, I warmly thank my noble friend for his positive Answer. I am sure that he will have heard, as I have, concerns from many Members of your Lordships’ House that debate is in fact not living up to its name, partly for the reasons that he has outlined. Given that the quality of contributions remains extremely high, so the problem is not quality but rather interactivity, will he consider reconvening the Leader’s Group on Working Practices to look at this issue in depth before we get much further down the road of more introductions?

Lord Hill of Oareford: As I have said, there are a number of ways in which we can all try to make it easier for debates to be more spontaneous. If people are not stuck to a script, they are more likely to listen to the debate that is going on and respond to the points that are raised in it. It is open to any Member to take suggestions forward to the Procedure Committee—for example, as to how one might make improvements in this area—and I know that all noble Lords are concerned to ensure that the quality of our debates is as high as it possibly can be.

Lord Hughes of Woodside: My Lords, is it not the number of speakers in particular debates that causes the problem? Indeed, in some debates the time allocated is three minutes, an unrealistic time in which to expect someone to give way in a debate. Will the Leader of the House look at the possibility of limiting the number of speakers so that the minimum amount of time available was between seven and 10 minutes?

Lord Hill of Oareford: It would of course be open to the House, if it put proposals to the Procedure Committee, to decide that one way of addressing the problem that the noble Lord raises would be a limit on the number of speakers. As with so many things in this House, there is another side to the argument: if one had a fixed limit and the first noble Lords who put their names down to take part all had the same view, we would not have much of a debate. As often, then,

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this issue is not straightforward, but that is the kind of thing that one could look at. It is also true that there are a number of debates where we are short on speakers, so we have the problem of undersubscription as well as oversubscription.

Lord Jenkin of Roding: My Lords, I hope this will not be regarded as a breach of our convention that we do not criticise the other place, but I express the hope that we do not try to go down the road that they have increasingly followed in recent years where a debate turns into little more than a conversation between the Minister who is trying to make a speech and Back-Benchers who are incessantly interrupting.

Noble Lords: Hear, hear.

Lord Jenkin of Roding: That has seriously reduced the quality of debate at the other end of the Palace.

Lord Hill of Oareford: Perhaps that sound is someone ringing from another place with a view on the quality of our debates. The response that the House gave to the comments made by my noble friend Lord Jenkin reminds us that we do not want slavishly to follow examples in another place.

Lord Howarth of Newport: My Lords, if there were to be a minimum ration of, say, five minutes for each speech, surely it would not matter very much if from time to time debates ran on a little longer. That would facilitate the kind of more spontaneous and lively debating that the noble Baroness, Lady Miller, rightly calls for while ending what is, frankly, the demeaning practice of limiting the time for noble Lords’ speeches sometimes to three minutes, and sometimes to two minutes or even one.

Lord Hill of Oareford: The whole House has taken a view about time-limited debates. The advantage of them is that noble Lords know how long they have to speak, when the debate is going to take place and so on. The ingenious suggestion from the noble Lord, Lord Howarth, about allowing things to run on would effectively take time from someone else, and they would have an equally strong view the other way. These are not straightforward issues. One point worth making generally is that the amount of time in the previous Session set aside for debates was actually greater than that in the previous three Sessions. The noble Lord will probably know that I have brought forward proposals to the Procedure Committee to try to increase opportunities for debate and, importantly, for topical debates in particular because I know that there is widespread demand for that opportunity.

Lord Cormack: My Lords, although I strongly agree with what my noble friend Lord Jenkin of Roding said, perhaps there is a case for allowing some “injury time” so that interventions can be taken during time-limited speeches. We could profitably adopt that proposal, and I hope that my noble friend will be prepared to consider it.

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Lord Hill of Oareford: It all comes back to the view the House has taken about the length of time it wants to set aside for particular kinds of debate. The only way of doing that formally, as my noble friend is suggesting, would be to have a cap of the sort that the noble Lord, Lord Hughes, suggested.

UK: Poverty


3 pm

Asked By Baroness Seccombe

To ask Her Majesty’s Government what is their definition of poverty in the United Kingdom.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, the Government keep track of their progress on reducing poverty using a range of measures in their annual publication Households Below Average Income. They include the below 60% of median income measure, which is used internationally. However, a purely income-based measure of poverty is too narrow and does not capture progress on solving the underlying causes of poverty, such as family breakdown or benefit dependency. The previous Government spent £170 billion on tax credits yet missed their target to halve child poverty.

Baroness Seccombe: My Lords, I am sure that if each of us were asked “What is poverty?” we would have a variety of definitions, so I am grateful to my noble friend for answering the Question as he did. More importantly, can he tell us what measures the Government have taken to help working families and those who through ill health and disability are unable to sustain themselves?

Lord Freud: My Lords, we provide very significant support to families in need. Working-age benefits stood at £96 billion in 2010 and have been moving up faster than average earnings. Disability payments now stand at 2.4% of GDP, which is much higher than the norm in the EU where the average is 1.4%. We are designing universal credit to target our support efficiently on the poorest families.

Lord McKenzie of Luton: My Lords, would the Minister include in his definition of poverty circumstances where families have routinely to resort to food banks to survive?

Lord Freud: My Lords, we have a benefits system that is designed to provide the basic needs of people who are poor. Clearly, there is increasing local provision of food banks. Actually, it expanded very dramatically under the previous Government. Interestingly, the really big expansion has been since September 2011 when jobcentre advisers were allowed for the first time to direct people towards them.

Lord German: My Lords, relative measures of poverty sometimes have bizarre consequences. An example has happened recently. As the economy contracted, hundreds of thousands of children were notionally lifted out of

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poverty. What credence does the Minister give to a better and wider form of measurement of poverty that looks at interventions and at ways of removing barriers for children, such as that proposed by Save the Children, which would allow things such as the pupil premium to be included in the measure so that we fully understand the impact that these things have on child poverty?

Lord Freud: My noble friend makes an important point. I should make it clear that I believe in the relative poverty measure, which is a way of measuring what happens over the medium-term period, although there have been some rather perverse impacts in the past couple of years in the current recession. What is really important is that we drive our attention to the underlying causes of poverty. That is what the current consultation is about. We will be reporting on how to tackle it in the spring/summer.

Baroness Farrington of Ribbleton: My Lords, the Minister has repeated an assertion that I have heard him make before. My experience, from talking to people in the clergy and social services, is that there has been a large increase in the use and availability of food banks. The Minister asserts that there has not. What is his evidence?

Lord Freud: Well, my Lords, I actually said the exact opposite. I said that there has been an increase in the use of food banks and that, indeed, there had been a large increase under the previous Government. We have since September 2011 been advising people of this local resource and other resources. We are transferring elements to the Social Fund so that local areas can create local welfare support for people who are in crisis. It is important that we have that kind of provision, either through local authorities or, indeed, through third-sector parties.

Baroness O'Cathain: My Lords, is not the use of the term “food banks” confusing to many people? They are actually temporary measures for people who are suddenly put out of work and do not have enough cash to feed children and so on. Normally, the food banks under the Trussell Trust give families food for three days while it puts them in touch with social services, charities and other organisations. If there is time, would it not be a good idea to have a full-scale debate on food banks, what they mean, how they are operated and how they should be supported?

Lord Freud: My Lords, I thank my noble friend for that. The essential point is that we are moving to local authority support for people who are in trouble as that is the best place for them to get that support. Food banks may well be part of that. One thing that local authorities are looking at is providing support in kind to people who would otherwise have taken cash. It is a more effective way of doing it. Food banks are another aspect of that.

Lord Tomlinson: Does the Minister agree that the subject about which we hear so little these days, the big society, was supposed to have helped to eradicate the problems of poverty?

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Lord Freud: I am pleased to tell the noble Lord that, on the most recent figures that we have, for 2010-11, relative poverty is at its lowest level since 1986.

Guardian’s Allowance Up-rating Order 2013

Guardian’s Allowance Up-rating (Northern Ireland) Order 2013

Tax Credits Up-rating, etc. Regulations 2013

Loss of Tax Credits Regulations 2013

Motions to Approve

3.07 pm

Moved By Lord Freud

That the draft orders and regulations laid before the House on 4 and 7 February be approved.

Relevant documents: 19th and 20th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 18 March.

Motions agreed.

Official Statistics Order 2013

Electoral Registration (Disclosure of Electoral Registers) Regulations 2013

Electoral Registration (Postponement of 2013 Annual Canvass) Order 2013

Motions to Approve

3.08 pm

Moved By Lord Wallace of Saltaire

That the draft orders and regulations laid before the House on 14 and 25 February be approved.

Relevant document: 21st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 19 March.

Motions agreed.

Welfare Benefits Up-rating Bill

Third Reading

3.09 pm


Moved by Lord Kirkwood of Kirkhope

After Clause 2, insert the following new Clause—

“Annual report to Parliament—

(1) Within a year of the passing of this Act, and annually thereafter, the Secretary of State shall publish and lay before both Houses of Parliament a report on the costs to the Exchequer arising from the provisions of this Act.

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(2) A report under this section shall include a comparison of the costs to the Exchequer arising from the provisions of this Act against the costs that would have arisen had each of the individual relevant sums and relevant amounts, as defined in the Schedule to this Act, been increased by a sum equivalent to the change in the general level of prices, measured by the Consumer Price Index.

(3) A comparison shall include an analysis of the effect of the provisions in this Act on each of the relevant sums and relevant amounts in the Schedule.”

Lord Kirkwood of Kirkhope: My Lords, it is a pleasure to move the amendment on the Order Paper to insert a new clause after Clause 2, entitled “Annual report to Parliament”. It will give my noble friends on the Front Bench some comfort, perhaps, if I tell them that this is a probing amendment. This is a case of once bitten, twice shy.

However, it is important to spend some time reviewing the context in which the Third Reading of this important Bill takes place, particularly against the background of our not having had the advantage of having the Budget Statement available to us when we were on Report. We are now better informed in terms of the updated projections that have been done by the Office for Budget Responsibility, which inform this debate directly. I cannot resist the temptation to say to my noble friend that we are also better informed on CPI in that, as we were speaking on Report last week, the BBC was reporting that the February monthly figure for inflation had ticked up by 0.1% from 2.7% to 2.8%. Admittedly, that is two points away from the magic 3% that I was using in an amendment—as it happens, unsuccessfully—to try to get some inflation protection for people on benefits.

I mention that merely in passing. I will not go back to discussing what we did on Report because I would be out of order to do so, but it illustrates the point that inflation can be capricious. It is a difficult thing to forecast. Some commentators who know more about it than I do were saying that, for example, the recent weakness of sterling, which has dropped by 7% in recent days, increases the risk of inflation, and so does the new monetary policy framework that Mark Carney, the Governor-designate of the Bank of England, is going to work with. We therefore need to look at the Bill carefully.

This amendment is a rather clichéd parliamentary device, as an annual report to Parliament is the last thing I could get the clerks to accept as being in order. However, it gives us time to reflect on the full-blown consequences of this Bill as we launch it on to the statute book. I still have some deep concerns, which are not merely around the question of the reduced household budgets of low-income working-age families. As I said in Committee, the Bill sets a very dangerous precedent for future Governments. If you believe, as I do, in the value of social protection then implicit in that is your understanding that temporary or maybe even long-term benefit recipients are also entitled, over the longer term, to have a share in the national wealth of the country. We all know that that national wealth is stagnating and we are in difficult times; I understand that perfectly well. However, since 1992—and

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I stress that date, which is a long time ago—we have had the absolutely implicit foundation of an understanding across party divides: an acceptance that the uprating formula would be sacrosanct.

These are exceptional times. Certainly, if the Government had said, “For the forthcoming 12-month period, 1% is all we can afford”, as they did, I am perfectly willing to consider that. I am sure that other noble Lords are, too. On the savings in this Bill, colleagues may have an advantage over me because I am just off a train from the Siberian north and I have not had a chance to look at the new impact assessment—I assume that one exists—on the new costs of the Bill. Obviously the OBR’s estimates for inflation have changed from 2.6% and 2.2% to 2.8% and 2.4%. Again, there is an inflation uplift, which will adjust, in the Treasury’s favour, the savings that the Bill will make. The Bill covers two years of uprating but not this immediate year’s uprating, so an extra £500 million will be saved in the coming year. Of course, housing allowance, which is a different category of benefit, is not covered in the Bill so the totality of the savings is not reflected in the impact assessment, and last week’s impact assessment has been adjusted because of the OBR’s more recent and accurate estimates of inflation.

3.15 pm

My first reason for suggesting an annual report to Parliament is that this Bill is different. It interrupts a well established tradition of how we deal with uprating benefits. If we start to consider this as a conventional way of doing things, it will be very tempting for future Treasury and DWP Ministers to look in this direction for savings. Again in passing, we learnt from the Budget last week that the Treasury—lo and behold—is beginning to look at annually managed expenditure, which is the demand-led part of the benefit system. How you put an envelope around a demand-led service is a complete mystery to me. Between now and the July comprehensive spending review announcements, we will look to the Government Front Bench—either the Treasury or the DWP, or both in concert—to assuage the fears that some of us have about the announcement that we had the advantage of hearing in the Budget last week.

We need to be very careful about the Bill and to study its effects. Subsection (3) of the proposed new clause suggests studying the effects individually, benefit by benefit. It will otherwise be difficult to be confident that we know what the consequences really are. Again, I say in passing that I regret that there is no inflation protection in the Bill. The amendment seeks merely to monitor the impact of the Bill. What I am looking for from the ministerial Front Bench is, at the very least, some rock-hard assurances that this will be very carefully studied. I understand that everything is kept under review all the time, but this falls between two stools. I would have a lot more confidence if somebody took responsibility for the short-term and long-term monitoring of the Bill. Should it be a Treasury Minister, a DWP Minister or a joint Cabinet committee? Who or what will have the responsibility for getting up in the morning to check the consequences of the Bill carefully, month in and month out over the rest of the Parliament and the CSR period, and all the way through to 2020?

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If you alter the baseline for an uprating system, as we have done in the Bill, you do it in perpetuity. There is no way in which the money can be won back, because the baseline is reduced and all the arithmetic is then calculated from a lower starting level. Over the next 10, 15, 20 and 50 years, the effects of this uprating will be felt. That is something about which we should be very careful.

The first period that I am concerned about is between now and the comprehensive spending review Statement that will be made in June or July. I think that we have a date for it. I hope that between now and then we will be able to think carefully about the consequences of the Bill. These things are difficult to see when you are up close and they are happening in front of you in real time. It is clear to me that, over this Parliament, one of the biggest differences that there will be between the previous Administration and this one by the time we get to 2015 is in the incidence of cuts on the working-age part of the benefit caseload. The previous Government invested quite a lot of money—some might say too much—on tax credits in order to try and make work pay. One can argue about that. However, what one cannot argue about is that by the time we get to 2015, one of the biggest changes that I anticipate seeing to the profile of public expenditure will be the relative reduction in the money that we are devoting to supporting working-age families. I have looked carefully at some of the Office for Budget Responsibility figures.

There is, of course, the very welcome policy of taking people out of tax. I agree with and can see the force of that. However, that does not help the lower two deciles of the household income distribution; people who are not getting into taxation levels with their annual household income or, indeed, people who are getting cycled into the threshold of income tax levels. If their household income increases and they get housing benefit, the income tax savings that they make for the household increases their income and they get penalised in their housing benefit. That will change when universal credit comes in. However, I do not think universal credit will start carrying the weight that some of us hoped it would as soon as we expected. I think that will be in 2017-18, which is a long time coming for those in the bottom two deciles of the household income distribution. Therefore, I am concerned about people in poverty—the people who are cycling in and out of part-time agency and temporary jobs. They are doing the best they can. The Work Programme is not picking them up yet. There is a potential problem that we need to monitor very carefully, as the amendment tries to do.

One point I make in passing concerns the reconsideration of measures of baseline poverty. I want to make a case for the Government to encourage in any way they can the continuation of the concept of minimum income standards, which are very important for two reasons. They are not levels of benefit that Governments can expect to pay to low-income households. They do two things. First, they measure the difference between what people take into their households by way of income, month in and month out, as against what the general public believe households of that composition need to live on a modest but adequate income. That tests public opinion about what people

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need to live on much more accurately than some opinion poll questions about whether people are strivers or skivers, or any of the other emotional language that is used. Having minimum income standards is an important concept. Even if it is only through the academic work that has been valuably done by Jonathan Bradshaw and his colleagues in the past, I hope that minimum income standards will be part of the background to the annual report which the amendment seeks to introduce.

We need to look at and use some of the other evidence that we will get about households below average income, which will be published in June or July. I hope that that evidence will inform the discussion that will happen on the comprehensive spending review to make sure that we are making sensible arrangements and decisions for the following CSR period from 2015 to 2018. In addition, we should use an annual report to Parliament to work with our local authority colleagues, as this amendment suggests, to learn what they are doing by way of services for working-age families in their areas. My intelligence from local authorities is that they are already struggling to provide services in that department, and we need to rely on them, particularly in relation to changes in community tax benefit and the abolition of discretionary grants under the Social Fund, which was abolished, as noble Lords know—

The Countess of Mar: We are at Third Reading, and the noble Lord has spoken for 16 minutes. He might believe that we have actually got the point. Is he going to be very much longer?

Lord Kirkwood of Kirkhope: No. I have two remaining points to make before I sit down. First, we have learnt over the past few days that Mr Alan Milburn, the chairman of the Social Mobility and Child Poverty Commission, has made it clear that he thinks that income is important for low-income families when trying to deal with child poverty. Finally, we need to invite the Social Security Advisory Committee to look at all this between now and July.

A lot of work needs to be done, and an annual report would help to inform that work. It is not safe to allow this Bill to continue into its later stages until we are sure that we have some way in which to track its progress and can ensure that those at the bottom of the low-income scales do not get hurt as a result of its provisions. I beg to move.

Lord King of Bridgwater: I shall intervene very briefly, supporting the point made by the noble Countess, Lady Mar. My noble friend Lord Kirkwood and I had an exchange last time on this matter, and he has made it clear once again that he does not like this Bill. I do not like it either. I do not think that any Member of this House would like to have this Bill at all, were things more normal and better than we actually find.

Since we have debated the Bill we have had a Budget and we have had Cyprus. If anyone wants to think that the situation is improving, the most significant thing in the Budget was the absolutely frank admission by the Chancellor of the very serious debt situation

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that we face. We now realise that it will be extremely tough to turn the ship round. Since then, we have had the comments from the rating agencies, and my noble friend may recall an intervention that he allowed me to make in his previous speech that we had better watch out for the rating agencies.

We have already heard that we are on negative watch by the other rating agencies, and that is even in our present situation. If we ally to that some recognition that this Government are not going to be able to stick even to the programme that they have proposed, if we faced a further downgrade from the rating agencies we might start to move into territory where the Government have to borrow to meet our debt at interest rates that are significantly higher. It will not then be a question of benefits being uprated by only 1%; there could be, as in other countries, significant cuts. If we get higher interest rates as well, with the impact on a huge raft of people who depend on their mortgages and who are finding it an extremely tough battle to maintain them, and with the risk of a significant increase in repossessions around the country, we will be in a very tough situation indeed.

To summarise, the purpose of my noble friend’s amendment is simply that at the end of the year we should discover how much we have saved and what the impact has been. If the Treasury is not going to do that anyway, I do not think that we need to spend a lot more time on this amendment, writing complicated additional amendments into a Bill on a matter that will surely be part of the normal purpose of government.

3.30 pm

Lord McKenzie of Luton: My Lords, like the noble Lord, Lord Kirkwood, we have deep concerns about the Bill, certainly that it may be a precedent. We have made clear our opposition to it throughout its various stages. We believe that it is unnecessary and that it hits the poor, both those in and out of work, and will certainly increase child poverty. Sadly, the amendment before us will do nothing to help that. We could have a repeat of the debate that we have had at earlier stages, but I simply say to the noble Lord, Lord King, that one of the problems is that some of the austerity measures the Government are introducing are making debt worse, not better. To pray in aid Cyprus when talking about our situation seems extremely far-fetched.

The noble Lord, Lord Kirkwood, said that introducing such an amendment at Third Reading is a clichéd device. However, an annual review gives the Government of the day, and indeed the Opposition, a chance to take stock of how measures are working. In this case, the problem is that a 1% cut has been locked in without knowing what the effect will be. The noble Lord is right: inflation is ticking up. Therefore, even if we knew the amount that the Government will spend as a result of this measure, the locking-in will mean that it makes no difference. That is why the proposed review differs from a review, annual or otherwise, that we would normally have. We have debated this matter extensively and I have made our position very clear. However, I recognise that the House has spoken on this matter.

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Lord Newby: My Lords, this amendment would require the Government to produce revised costings of this policy annually. I fully understand the inflation risk about which the noble Lord, Lord Kirkwood, is concerned. However, as I said last week, while I share his concerns about measuring the impact of government policies, I believe that additional reports on the Bill are simply not necessary. As I said last week, the Government already have comprehensive arrangements in place to report on the impacts of government policy. We publish impact assessments of every Bill, including the Exchequer impacts. These are based on the OBR forecasts available at the time.

At Budget, we publish an updated account of the Exchequer impact of any government policy that has changed due to modelling or forecast changes and has not yet been implemented. The DWP publishes benefit rates and expenditure tables of all its benefits, and we produce analysis of the cumulative impact of government policies on changes to households across the income distribution at every major fiscal event. This analysis will use updated inflation projections and will look at the cumulative impacts of all changes, rather than artificially isolating just one policy. These mechanisms go further than any Government have gone before in increasing transparency and enabling the effective scrutiny of policy-making.

Since we previously debated this matter, we have had a Budget. As the noble Lord, Lord Kirkwood, said, at Budget last week the OBR revised its forecasts for inflation slightly upwards. The forecasts increased by 0.3 percentage points for the purpose of uprating in 2014-15, and by 0.1 percentage points in 2015-16. As I said last week, it was always a possibility that the forecasts would change. Similarly, they can change again at the Autumn Statement, and again at Budget 2014. These forecasts could go up as well as down. However, Governments must make decisions based on the best forecasts available at the time. The OBR’s forecast at the Autumn Statement showed that while inflation is forecast to be above 2% in the near term, it is then forecast to fall back towards the target in the medium term. This has not changed. As I set out last week, the OBR is not alone in taking this view. The IMF, the OECD and the Bank of England all show inflation falling back to target in the medium term. Nor has the inflation target changed: it remains at 2%.

One thing that has changed since we were last in this House is the Budget announcement on public sector pay. The Budget announced that public sector pay awards will be limited to an average of up to 1% in 2015-16. This will be on top of four years of pay being either frozen or capped at 1%, which included the period when inflation was at 5.2%, far above the forecasts for the periods covered in the Bill. This is not a justification for the Bill, but it is a reminder that people face inflation risk in everyday life. The decision that the public sector should continue to face a further year of pay restraint was a difficult, but necessary, decision to support fiscal consolidation.

It is against this background that I repeat what I have said many times on the Bill: that this Government do not take decisions to find savings from welfare lightly. However, this Bill is necessary to make vital

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savings from welfare, to help reduce the deficit and to restore economic recovery. The Government have set out their plans for spending in advance to give confidence to the markets that we are taking the necessary tough decisions. We can do that only by using the best forecasts available at the time. These forecasts have changed, but they continue to show inflation falling back to target in the medium term. I hope I have reassured the noble Lord that the amendment is simply not necessary, and I beg him to withdraw it.

Lord Kirkwood of Kirkhope: My Lords, the House has a busy schedule for the rest of the day and, as I said earlier, I am happy to withdraw the amendment. I am grateful to colleagues who have contributed. We are all of the same mind that we need to be very careful and monitor the consequences of these Bills. The noble Lord, Lord King, is correct that the Treasury does that annually, but I will make it my own business to make sure that working-age, low-income families do not suffer more than the Government feel they will in the course of the next five years as a result of this Bill. I beg leave to withdraw the amendment.

Amendment withdrawn.

Bill passed.

Crime and Courts Bill [HL]

Commons Amendments

3.36 pm


Moved by Lord Taylor of Holbeach

That the Commons amendments be now considered.

Lord Lloyd of Berwick: My Lords, with the leave of the House, I would like to suggest that consideration of Commons Amendments 24 and 136 be postponed to another day. I hope that anything which had that effect would meet with the approval of the House and, not least, of the Minister because, as we all know, we are very pressed for time.

The purpose of these amendments is to introduce what is known as a forum bar in extradition proceedings. A forum bar, which is an additional ground on which extradition could be refused, was introduced in 2006 but it was never brought into force. The reason, as given at the time by the noble and learned Baroness, Lady Scotland—and I wish she was in her seat—was that it would have put us in breach of our bilateral treaty obligations with all our extradition partners. She was, surely, right about that. On 8 September 2010, the Home Secretary announced a review of our extradition arrangements. Sir Scott Baker, a recently retired Lord Justice, was appointed, with two colleagues, to consider the question of our extradition arrangements generally and the forum bar in particular. They produced a massive report which I have beside me here and they came down firmly against a forum bar for all the reasons set out in Part 6 of their report, which I will not repeat. They thought it was much better that, where there is a contested forum, the forum should be

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agreed between the prosecuting authorities in the two competing jurisdictions, not by the court in one or other of them. Sir Scott Baker’s report was published on 20 September 2011 and nothing happened until October 2012 when the Home Secretary accepted most of its recommendations.

The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, I hesitate to interrupt the noble and learned Lord. I have moved the question that we now consider Commons amendments, which I hope the House would wish to get on with. The noble and learned Lord’s handwritten amendments have been scheduled for debate at a particular point. At that time, he can move the amendments he is speaking to or, indeed, the adjournment of the House if that is what he would wish to do. I do not believe that he reflects the sentiment of the House, which is that we have a lot of business to get through today. This is clearly an important piece of legislation and we should consider it in the order in which the amendments have been scheduled to be debated. I ask the noble and learned Lord to conclude his impromptu speech and save his more detailed views until the point at which we are scheduled to debate them.

Lord Lloyd of Berwick: My Lords, I hope that what I am about to suggest will find favour with the noble Lord and the rest of the House. I remind noble Lords that we have 20 pages of amendments before us to consider at some time tonight. They were never considered at all on the Floor of the House of Commons and have never been considered by us at all, until now. They could have been brought before us last year. They were not. They have been brought before us at the last moment, and it is almost disgraceful for us to be asked to amend the law in an important respect that will undoubtedly affect our foreign relations without the matter having been properly considered in this House and the other place. I am sorry that the noble Lord does not immediately rise to that debate, but I seriously suggest to him—and I hope that there will be support for this—that instead of debating these 20 pages of amendments, the whole part that deals with extradition should be considered in the next Session of Parliament. It could easily be dealt with as a new Bill brought before either this House or the other place at the beginning of the next Session. That would be the proper way to deal with a matter of this importance.

Lord Dubs: I support the noble and learned Lord in what he said. It seems rather curious that the Government have introduced amendments in the Commons at the last minute that, by definition, we cannot debate fully because we are dealing with Commons amendments. We cannot have the proper debate that we would be likely to have in Committee and on Report. We are being treated rather badly by the Government. This is an important issue. A couple of years ago, when I was a member, the Joint Committee on Human Rights spent a lot of time considering extradition—it is an important issue. In terms of parliamentary democracy, the Commons did not consider these amendments at all, and we are being asked to do so in a truncated

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form late this evening when we will not have a chance for a proper debate. Surely the noble and learned Lord has a good case.

Lord Phillips of Sudbury: My Lords, I understand my noble friend Lord Taylor’s point, but I also understand fully the point made by the noble and learned Lord, Lord Lloyd of Berwick. We bring our Chamber into disrepute if we try to deal with 80 pages of amendments in the course of this afternoon and evening, including, as has been said, 20 pages of not just brand new but highly complex legislation on which we ought to consult outside this Chamber. The issues concerned could not be of greater importance.

Lord Beecham: My Lords, I endorse what has been said by noble Lords, particularly the noble and learned Lord, Lord Lloyd. We have here a situation that is uncomfortably analogous to that which applies to the Jobseekers (Back to Work Schemes) Bill, whereby these Commons amendments are, in effect, being treated as if they were emergency legislation. Admittedly, they do not have retrospective effect, which I suppose is welcome, but the timetabling aspect is extremely unsatisfactory. This House does not have an opportunity to consider the amendments fully. There are a great many matters that your Lordships will wish to discuss, not least around Leveson, which itself has come late in the day—although one understands the reasons for that. There is no particular reason why the measures to which the noble and learned Lord referred must be dealt with today. I hope that the Minister will acknowledge that it is asking too much of your Lordships’ House to deal with this matter sensibly, fully and thoroughly—as it needs to be—at such short notice, particularly when considering everything else that we have to discuss today.

Lord Cormack: My Lords, I underline the importance of what has been said because we have been given an extra week’s recess, which none of us particularly wanted because many of us have many engagements in London that week. It is quite wrong to steam-roller something through. This is the Executive treating this House with something approaching contempt. That is something up with which we should not put.

Lord Taylor of Holbeach: My Lords, the business for today has been scheduled and there is a sequence for considering the debates. We can consider the amendment of the noble and learned Lord, Lord Lloyd of Berwick, at the point where it is scheduled to be debated. Meanwhile, I beg to move that the Commons amendments be now considered.

Motion agreed.

3.45 pm

Motion on Amendment 1

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendment 1.

1: Insert the following new Clause—

“Modification of NCA functions

(1) The Secretary of State may, by order, make—

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(a) provision about NCA counter-terrorism functions (and, in particular, may make provision conferring, removing, or otherwise modifying such functions); and

(b) other provision which the Secretary of State considers necessary in consequence of provision made under paragraph (a) (and, in particular, may make provision about the functions of any person other than the NCA, including provision conferring or otherwise modifying, but not removing, such functions).

(2) If an order under this section confers an NCA counter-terrorism function, an NCA officer may only carry out activities in Northern Ireland for the purpose of the discharge of the function if the NCA officer does so with the agreement of the Chief Constable of the Police Service of Northern Ireland.

(3) That includes cases where an order under this section confers an NCA counter-terrorism function by the modification of a function.

(4) An order under this section may amend or otherwise modify this Act or any other enactment.

(5) An order under this section is subject to the super-affirmative procedure (see section 39 and Schedule 19).

(6) In this section “NCA counter-terrorism function” means an NCA function relating to terrorism (and for this purpose “terrorism” has the same meaning as in the Terrorism Act 2000 — see section 1 of that Act).”

Lord Taylor of Holbeach: My Lords, I beg to move that this House agree with Commons Amendments 1, 26 and 137.

These amendments restore to the Bill the power to confer counterterrorism functions on the National Crime Agency by means of an order, subject to the super-affirmative procedure. Noble Lords will recall that this House removed what was then Clause 2 of the Bill at our Report stage.

We have reflected carefully on the concerns raised in this House about the level of scrutiny afforded by the super-affirmative process. We remain firmly of the view that this is an appropriate matter for secondary legislation and that the super-affirmative procedure provides substantial opportunity for parliamentary scrutiny and for Members of both Houses to influence the shape of the legislation. This question was debated at length in the House of Commons and although there were Members who shared the concerns of some in this House, ultimately the position of the Government prevailed when the matter was put to a vote.

In seeking to restore this clause to the Bill, your Lordships’ House will note that we have retained the important safeguards for the chief constable of the Police Service of Northern Ireland, in recognition of the sensitivity of the arrangements for countering terrorism in Northern Ireland. Primacy for the operational response to counterterrorism in Northern Ireland rests with the chief constable of the PSNI. The order-making power respects that; it cannot change that; and, indeed, it ensures that there is clarity as to the relationship between the PSNI and the NCA should counterterrorism functions be conferred on the agency in the future. What is important is that, should a future review of counterterrorism policing arrangements conclude that the NCA should have a counterterrorism role, that role, whatever it may be, must dovetail with the distinct counterterrorism arrangements in Northern Ireland.

We recognise that any decision to give the National Crime Agency a counterterrorism role will be an important one. We have no wish to diminish, impede or lose those aspects of the current arrangements that work

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well. However, with the creation of a National Crime Agency, it is reasonable that the Government consider afresh how the current counterterrorism policing arrangements work and to review whether there might be a role that the agency could play to enhance our response to the terrorist threat. These are questions that can sensibly be considered only after the NCA is up and running and then only after a full review. If a decision is made in the future that there is a counterterrorism role for the National Crime Agency, then the super-affirmative process, and the conditions that are tied to it, provide ample opportunity for this House and the other place to scrutinise the draft order to the degree that it deserves.

Under the super-affirmative procedure, the Home Secretary must first consult with persons affected by the proposed order. Thereafter, she must publish the draft order and a document which explains it. There is then scope for a committee of either House to report on the draft order which the Home Secretary must consider along with any other representations before the original order, or a revised version of it following such reports and representations, is placed before both Houses for approval. It will then be for both Houses to debate and agree the order before it is made. This is not a process that should be taken lightly.

Let me be clear: the power contained in this provision may not be used to remove any function from any body, including police forces. What this Bill proposes is the creation of a National Crime Agency charged with the responsibility to lead the fight against serious, organised and complex crime. Commons Amendment 1 is concerned with enabling the Home Secretary to give effect to the outcome of a review which, by definition, had concluded that the existing arrangements in respect of counterterrorism would be enhanced by conferring relevant responsibilities in this area on the NCA.

I again pray in aid the conclusions of the Delegated Powers and Regulatory Reform Committee. In its report on the Bill the committee agreed with the Government that such a provision was not unprecedented, and indeed the notion that additional functions could be conferred on a statutory body by secondary legislation was well established. We have been clear throughout this process that the position remains that we have no preconceived notion as to the outcome of a review of counterterrorism policing arrangements and the future role of the NCA, if any, in those arrangements.

As some noble Lords will know, and indeed will have experience of, counterterrorism policing today is a partnership endeavour among all police forces. Chief constables each retain their full operational responsibility for policing in their force area, but they have put in place through ACPO a framework of agreements which underpin the present national counterterrorism policing arrangements. These consist of a range of national lead responsibilities and support roles distributed among several forces and undertaken by those forces on behalf of all forces.

It is right that in the future we should be giving consideration to how the NCA might be able to enhance those arrangements. We continue to believe that it is also right that we should build into the Bill the flexibility to implement the outcome of such a review in a timely

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fashion through secondary legislation, but subject to a high level of parliamentary scrutiny in the form of the super-affirmative procedure. The Government would rightly be criticised if they could not implement the findings of a review for a year or more for want of the necessary primary legislation. This is not about whether the NCA should or should not exercise counterterrorism functions. That debate is for the future. Rather, the issue today is about the mechanism by which such functions could be bestowed on the agency. The mechanism provided for in Commons Amendment 1 is therefore a perfectly proper one. I would urge the House to agree the amendment and to reject Amendment 1A in the name of the noble Baroness, Lady Smith.

Amendment 1A (to the Motion)

Moved by Baroness Smith of Basildon

Leave out “agree” and insert “disagree”.

Baroness Smith of Basildon: My Lords, as we have heard from the Minister, at the Report stage of the Bill in November, your Lordships supported the deletion of the clause that provided the Secretary of State with the power to transfer by super-affirmative order counterterrorism functions from the Metropolitan Police to the National Crime Agency. The amendment was in my name and those of the noble Lord, Lord Blair, and my noble friend Lord Rosser. The reason for the amendment was not the transfer of functions, which may well be appropriate at some point in the future, but because such an important and crucial decision should benefit from the appropriate scrutiny of Parliament, which cannot be provided for without primary legislation. As the Minister said, government Amendment 1 would bring back that clause. My amendment, to disagree with that amendment, would delete that provision and retain the status quo.

The reasons for bringing this amendment back to your Lordships’ House are perhaps three-fold. First, the priority of any Government and any Parliament is the security of their citizens, and counterterrorism is, as the noble Lord would readily confess, a key issue in that security. I repeat and emphasise that we are not passing judgment on whether it may, in future, be desirable for the NCA to have responsibility for counterterrorism; only that such a decision must be evidence-led and appropriately consulted on and scrutinised. The Metropolitan Police have built up considerable expertise and skills in relation to counterterrorism and if the Government wish to remove that responsibility and function from the Met—the noble Lord referred to a review—they would need to have a very strong case to do so. I am sure that if it becomes the right course of action in time, that case will be made, and considered appropriately. However, we do not believe that this decision deserves anything other than full and proper scrutiny, which can only be provided by primary legislation. That view was fully endorsed last year by the Joint Committee on Human Rights in its report on the Bill, which stated:

“In our view, the potential human rights implications of a decision to confer counter-terrorism functions on the NCA are sufficiently significant to warrant primary rather than secondary

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legislation, to ensure that Parliament has the fullest opportunity to scrutinise the possible implications. We recommend that clause 2 be deleted from the Bill”.

Your Lordships’ House agreed with that conclusion and removed Clause 2 before sending the Bill to the other place.

In terms of effective scrutiny, which the noble Lord referred to in his comments, it is disappointing that the Government did not reintroduce this clause at the Committee stage in the other place but waited until Report. Similar comments were made by the noble and learned Lord, Lord Lloyd. I find it difficult to accept that this was a last-minute decision by the Government to bring this clause back. Why did they not bring it forward earlier, to allow the other place to have the opportunity to debate it in Committee and have a fuller discussion? The Minister said that it had full and, I think, considerable discussion in the other place. In fact, it had two and a half hours on Report and I am not convinced that that was long enough for the Commons fully to consider the matter. This is a big decision and a major issue. Whatever decision is taken in time by the Home Secretary and the Government about removing counterterrorism to the NCA, if that is what they so decide, I want the Home Secretary and the Government to have the full confidence of Parliament and the full confidence of all those involved in counterterrorism that the right decision has been made.

My second point is that, although the noble Lord is right in that the super-affirmative procedure allows for greater scrutiny than an affirmative resolution, it does not provide the level of scrutiny that gives that confidence for the Government or the Home Secretary that I spoke about. The Minister helpfully wrote to me about the super-affirmative order, for which I am grateful, and sent copies of the letter to other noble Lords, repeating the process that was originally in the Bill. He is right when he says that it provides the highest degree of parliamentary scrutiny other than primary legislation. That in itself recognises how important it is that this measure has appropriate scrutiny. However, the briefing note states:

“Whilst the process makes express provision for a role of Committee of either House (it is expected that this would fall to the Home Affairs Select Committee in the House of Commons) this does not preclude a role for those Standing Committees with interests in secondary legislation”.

The note continues to say that the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee will continue to discharge their duties under this procedure. I did not know it had ever been suggested that they would not. Of course they would. That is not a reassurance but merely a statement of existing procedures for all orders that come before your Lordships’ House.

At the Report stage, we were assured that a super-affirmative order is, in effect, amendable. To an extent, that is right, but, crucially, it can be amended only at the draft stage that the noble Lord spoke of by permission of the Secretary of State and by the Home Secretary. The Secretary of State and the Home Secretary in the super-affirmative order must have regard to any representation made. Parliament does not have the power to amend; only the Secretary of State has that power.

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4 pm

Finally, this clause has taken on a far greater significance on an issue that the Minister did not refer to in his speech, but is important. As a result of the failure to gain agreement on a legislative consent Motion from the Northern Ireland Assembly so that the National Crime Agency can be genuinely national and not the nearly National Crime Agency that we have now, we have an amendment in the next group to disapply the provisions of the NCA to Northern Ireland. We will have an opportunity to discuss that in more detail in the next group. However, it is extremely serious that the Government have got into a position where they have scrapped our existing national organisation for serious and organised crime, SOCA, before reaching agreement with the Assembly about its replacement. We now have no nationally reaching equivalent.

I think I heard the noble Lord mutter, “Is that relevant?”. It is entirely relevant to the discussion before us today on the issue of scrutiny. We understand that some Members of the Assembly have significant concerns over the provisions relating to the operations of the NCA in Northern Ireland, particularly in the potential future responsibility for counterterror operations within Northern Ireland. Clearly, the history of counterterrorism and the link between paramilitary organisations and serious and organised crime in Northern Ireland mean that special consideration will need to be given to how the NCA might operate in relation to counterterrorism in Northern Ireland. That is not a job for secondary legislation. We have serious concerns that the re-introduction of Clause 2 by the Government will make any agreement with Northern Ireland regarding the NCA even more difficult than is now the case.

Why are the Government insisting on a clause that might put any agreement on the NCA’s operations in Northern Ireland permanently out of reach? It is a clause that has been heavily criticised by the Joint Committee on Human Rights, and by distinguished ex-commissioners, as we heard previously in the debate, and resoundingly rejected by your Lordships’ House. The Minister of State, Jeremy Browne, said in the other place:

“The Government have not taken a view as to whether counter-terrorism should be transferred into the NCA. The NCA is not even up and running yet. It requires the assent of the House before we get to that stage, and we have said that when the NCA is up and running, that is something that the Home Secretary may wish to consider”.

That is perfectly logical and sensible. I agree entirely with those comments. It would be premature to make a decision before then so the Minister has got it right.

However, I profoundly disagree with his previous comment:

“It seems to me that this is not a very substantive issue; it is a procedural issue”.—[Official Report, Commons, 13/3/13; col. 328.]

That is a serious underestimation of the issues involved. It is not just a procedural issue; it is a serious issue that deserves thorough scrutiny. Parliament and your Lordships’ House also have responsibility to support the Government to ensure they get it right through adequate scrutiny.

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Proper parliamentary scrutiny on an issue of this magnitude should not be reviewed by the Government as an attempt to thwart or delay; it is too important for that. Proper parliamentary scrutiny is to support this Government, or any Government, in getting it right. We know that in your Lordships’ House and outside, there is a wealth of expertise, experience and knowledge that would want to be of assistance to the Government and the nation on this issue.

As the Minister was coming to the end of his comments, he spoke of the review that has been undertaken and said that it would not be understood if parliamentary time could not be found for legislation after the review. It is the Government who are in charge of parliamentary time, and I find it hard to conceive of circumstances where the transfer of responsibilities on counterterrorism from the Met to the National Crime Agency would be an urgent or emergency issue. However, I say to the Minister that he knows, and the Government know, that in such cases or circumstances, negotiations can take place to ensure speedy legislation without compromising essential security.

The Minister said that he and the Government reflected on this when bringing the amendment back so that there could not be primary legislation on this matter in the future. I have to say to the Minister that he has not come back with any new or compelling arguments as to why this House and the other place should not have the opportunity to scrutinise by primary legislation such a major move. I beg to move.

Lord Condon: My Lords, I support Amendment 1A, moved by the noble Baroness, Lady Smith, for the reasons that she has set out. I find myself agreeing with much of what the Minister said, apart from the mechanism that he advocates should be used in deciding this issue.

As the noble Baroness, Lady Smith, has said, this issue is so important to the national interest that the only mechanism that should be used to transfer responsibility for the lead on terrorism from the Metropolitan Police to the NCA or related agencies is primary legislation. Like the noble Baroness, I cannot imagine any urgent situation where primary legislation would impede the notion of national security and a super-affirmative order would be the better mechanism to use.

Lest I should be out of date in my feelings about this issue, I consulted the current Commissioner of the Metropolitan Police last Friday to see if my views and his were on the same wavelength. He is content for me to relay to your Lordships’ House that he shares my concerns that if there should be change—I am not against the notion of change—primary legislation is the vehicle that will best take care of the public interest on this issue.

I have said before in your Lordships’ House that I am not implacably opposed to any transfer. In saying that, I remind the House of my recorded interests in policing and that for seven years as commissioner this was a role that I discharged in leading the force that had this co-ordinating and leading responsibility. I believe that a super-affirmative order is the wrong way to take care of all the arguments and to preserve the public interest.

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Important issues that will have to be considered if there is to be a change include the fact that more than 80% of terrorist offences on the mainland are played out, sadly, in London, and that in fighting terrorism hearts and minds and prevention are as important as detection. Therefore, an integrated approach, which the Metropolitan Police has built up over decades with school visits, visits to mosques and neighbourhood policing, is as important in the fight against terrorism as the drama of executing warrants early in the morning and dramatic seizures of explosives. This is an integrated effort that has been built up over decades.

In the 12 months to September 2012, arrests for terrorism increased over the previous 12 months from 153 to 245, an increase of 60%. The current arrangements are working very well in preserving the national interest on this issue. I am not aware of any arguing or lobbying by the security services for this change to take place. Perhaps I am out of date on that issue, but to my knowledge the Metropolitan Police Service and the other agencies involved in the fight against terrorism are not advocating these changes.

My fear is that the creation of the NCA—this fledgling, embryonic new body, which is not even fully functioning, which is already struggling with border issues and which I fear will be underresourced—has led to the administrative tidiness of considering the transfer of terrorism from the Metropolitan Police to the NCA. That may be the right thing to do in time. It is unlikely to demand an emergency overnight or within-a-few-weeks change that would lead to the notion of a super-affirmative order. I believe the national interest demands that only primary legislation should be used in this case and I urge your Lordships’ House to support Amendment 1A.

Lord Harris of Haringey: My Lords, a few minutes ago the noble and learned Lord, Lord Lloyd of Berwick, raised the question of the quality of scrutiny of legislation by your Lordships’ House. This amendment raises exactly the same set of questions about the quality of scrutiny that is possible for executive decisions. The Minister said that no decisions have been taken and that whether this is something the Government will want to do is an open question. He said that we need to see how the National Crime Agency develops and that only then will it be necessary to review and perhaps bring forward proposals. If that is the case, why do we need to legislate in this Bill for this process to happen in this particular way? If the Minister was saying that for the next 10 years the Home Office will not be presenting any Bills to Parliament and therefore this is the only legislative opportunity that exists, then maybe there would be a case for it. However, I do not recall a year when the Home Office has managed with no Bills. Sometimes it has had as many as four Bills before the Houses of Parliament. Therefore, it is likely that there will not be a suitable legislative opportunity at whatever time in the future it is considered appropriate to carry out this review.

Such a review having been carried out, the assumption that any transfer would be a simple matter which could be considered through even the elevated super-affirmative process is naïve. The integration, as the noble Lord, Lord Condon, stated, of counterterrorist

25 Mar 2013 : Column 815

work with mainstream policing is extremely important. I have probably said this in your Lordships’ House before but I live close to the Finsbury Park mosque. On the occasion that the Finsbury Park mosque was raided, as I arrived at the Underground station Metropolitan police officers were distributing leaflets explaining to the local community what had happened, why it had happened and what safeguards had been taken to protect the religious parts of that mosque. That was because counterterrorism is integrated into mainstream policing and there was a recognition that the Metropolitan Police would have to continue to police those streets after such a raid. That is why the integration of and arrangements with the counterterrorist units within the various forces around the country are so important. Shifting some or all of that to the National Crime Agency is complicated. These are not straightforward issues and they certainly ought to be debated properly in Parliament. That is what we are likely to miss.

I have another concern. We all now need the National Crime Agency to be a success and I believe it probably will be but it is going to take a while. Every reorganisation takes time. Every time you throw all the pieces up in the air and wait for them to settle, there is a period when the organisations have to come together. This is saying to an organisation which is not yet formally established, as this legislation is not yet through, that there may be some massive change to its remit just around the corner. I do not believe that is good for the current functions of the National Crime Agency; nor do I think it is necessarily good for counterterrorism if that change is to be made at some point in the future.

The Government have never answered the question of what is the problem that they are trying to fix. They say, “There might be a problem. We might have a review at some point in the future and if we do have a review, we want to be able to push this through by super-affirmative resolution”. That is simply not good enough. These are important questions. There must be proper parliamentary scrutiny in the future when these matters are considered.

4.15 pm

Lord Soley: My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I confirm that the Minister is right that we said that the super-affirmative procedure had been used before in similar cases and, in principle, could be used. However, that is not a key question. The key question has already been put and I do not wish to elaborate on it too much. Is it appropriate to use that procedure or would it in fact be better for quality-of-legislation purposes to have new legislation in the situation described in the proposed new clause? I tend to the view that if you are going to make a decision of that type, then new legislation would be better.

I asked myself whether it might become urgent to do that and whether we would then need urgent legislation, given that it deals with terrorism. I find it difficult to see the circumstances in which that might happen, but if it did then both Houses are quite capable of urgent legislation. However, that does not seem to be on the agenda. The real question is whether we would get the legislation right. In those circumstances, particularly

25 Mar 2013 : Column 816

given the nature of the cross-party consensus that one is usually able to build when you are looking for ways of dealing with terrorism, I would be surprised if it were not possible for a new Bill to be dealt with relatively expeditiously. The scrutiny given in both Houses, particularly this one, might be better than using the super-affirmative procedure, which I agree is an accepted practice, as we discussed at some length in the Delegated Powers and Regulatory Reform Committee, but whether it is best practice is a different question.

Lord Reid of Cardowan: My Lords, I approached this issue with an open mind and attempted to ask myself what benefits might be gained from doing this particular thing in this particular fashion. I do not think that I have ever been accused of being soft on terrorism. I genuinely believe that the first obligation of a Government is to protect their citizens. I therefore sought to discover, in asking myself and in listening to others, what might be the huge advantage and efficacy, first, of transferring from the Metropolitan Police to the NCA and, secondly, of doing it in this fashion. I am afraid that I failed to persuade myself that there is such a case.

Unlike my noble friend Lord Harris and the noble Lord, Lord Condon, I have no particular interest in the Metropolitan Police, although obviously I have an interest as a former Home Secretary. However, the points that they made about the nature of the fight against terrorism were very well made. This is not just a mechanistic operational question. It covers far more than investigations and intelligence. It covers community relations, counter-radicalisation, relationships in the community, and so on. I fully accept that there is a degree of resistance, sometimes unspoken, from police services throughout the country as the Met has the lead on this. However, I think that it has discharged that responsibility very well indeed. In the absence of any problem to be solved, we have to ask why a solution of this nature has been proffered.

My second point concerns the emerging nature of the National Crime Agency. Every time I read about the NCA, which has not yet been formally established, as my noble friend Lord Harris pointed out, it seems to have inflated its own powers and scope. I am not quite sure who now controls the fight against illegal immigration as the UK Border Agency has been split off into a different agency and there is a second agency that comes under the Home Office. I understand that there are thoughts about the NCA having responsibility for controlling our borders as well and now counterterrorism is being envisaged. My third point is that we cannot start this from scratch. The fight against terrorism relies on a reservoir of experience, a culture, an operational expertise, knowledge within the system and so on.

My final point is about the nature of doing this. If it was absolutely essential to transfer such powers immediately, in a very short period or without obstacle or difficulty, I could see the Government’s case, but I have not yet been able to envisage such circumstances. Indeed, if I envisage sudden emergencies arising, I would have thought that that was precisely the time you do not want to change the agency handling them. You would want to carry out such a profound change

25 Mar 2013 : Column 817

in such an important area over a period of time with a great deal of thought being given to the transition. If that is the case, why are we looking for some immediate expedient to transfer it with the minimum of parliamentary scrutiny?

Having approached this with an open mind, I have found what I have heard so far entirely unpersuasive. I have listened to everything that has been said but I do not think that adding parliamentary scrutiny to a questionable transfer would in any way impede the fight against terrorism. In fact, it would assist it.

Lord Blair of Boughton: My Lords, I am sorry that the House is going to hear a series of commissioners being referred to and speaking. I have cut my speech right down because there was nothing that I disagreed with in the speeches that followed the Minister’s speech.

I shall emphasise one thing and ask one question. I gather that in the other place it was said that this is a procedural matter. It is not a procedural matter, but a matter of national security. The deputy national co-ordinator of counterterrorism, a Metropolitan Police officer acting under the command of the Metropolitan Police Commissioner, said in public this week that the terrorist threat is rising. As my noble friend Lord Condon said, and I can vouch for it from my time as commissioner, there has not been a single plot that did not arise in, pass through or aim at London. When the bombs go off, whether in London or Glasgow, only the Metropolitan Police can put thousands of officers on the road or fly people in Chinook helicopters to Scotland. That is because the Metropolitan Police is the size it is. The NCA will never be that size. That is one other aspect of why the Met is the right beast to do this job of enormous national importance.

I echo the points being made to the Minister. Has there been any evidence of failures in counterterrorism by the Metropolitan Police? There is no evidence that anybody seems to be aware of. Is there any evidence that having counterterrorism policing in a separate agency from territorial police forces is a good idea? No, there is not, and there is exactly the opposite if you look across the Atlantic with the divisions between the Department of Homeland Security, the FBI, the CIA, the New York Police Department, and so on. The person who first began to mention the idea that counterterrorism should be taken from the Metropolitan Police is one Boris Johnson. He made that point in 2008 at the Conservative Party conference. I would like reassurance from the Minister that the sectional interests of London Conservatives are not being put in front of national security because the reason that Boris gives for this is that it would allow the Mayor of London alone to choose the Metropolitan Police Commissioner without the influence of the Home Secretary. That is a very poor argument for imperilling national security.

Baroness Hamwee: What we are being asked to do this afternoon is to consider the procedure around a substantial issue, but it is the procedure. It seems quite logical that counterterrorism should be dealt with alongside and as part of dealing with serious crime

25 Mar 2013 : Column 818

and organised crime. They are often inseparable activities that fund terrorism, and I suspect they largely come within the remit of the NCA, or will do when it is in operation. The NCA will be able to task police forces. Can the Minister confirm that it will not have a lot of bodies on the ground, but will be able to task existing forces—including, presumably, the Met? Is this the way it is to operate?

I appreciate the problems about Northern Ireland, and I do not suggest that they are not important. I also take the point that it is vital not to disrupt effective working relationships, to which the noble Lord, Lord Reid, referred. Again, perhaps that is answered in part by the point about tasking.

We must at some point address overall how this House and the Commons deal with secondary legislation, but that is not a matter for now. The super-affirmative procedure seems to go as far as it can in allowing for consultation with an iterative-process response to comments on the part of the Government.

I did not think that I would ever hear myself say this, but this issue probably comes as close as anything to lending itself to a yes or no answer for this reason: whether there is a super-affirmative order or primary legislation, there will be regulations dealing with transitional arrangements and all the detail. Whichever procedure we have, it will not avoid those. The regulations will go through their habitual course.

Finally, can the Minister explain how, in legislative terms, counterterrorism is to be moved away from the Met, if it is? I am unclear whether any legislation is required for that part of the process. As I read it, counterterrorism is with the Met under a direction—not an order—from the Secretary of State. If that is so, then the Government’s proposals would mean far more involvement by Parliament than has hitherto been the case on this issue; I may have read this completely wrong and the Minister will put me right when he responds.

Lord Kerr of Kinlochard: My Lords, I find today’s business difficult. Two categories of difficulty arise. This provision is much less difficult. I find the case made by the noble Baroness speaking for the Opposition persuasive and familiar. I have heard it before. I agreed with it when I heard it in earlier stages of consideration. My difficulty when the Commons reject our proposals is that I always feel cautious about disagreeing with the Commons. However, in this case, they have not heard our reasons for removing this provision. I am inclined to go with the noble Baroness who spoke for the Opposition, and say again what we think, at least to ensure that the Commons hear and listen to it.

I have much greater difficulty with the provisions that we are going to look at today which we have never seen before. The point made by the noble and learned Lord, Lloyd of Berwick, and supported by the noble Lord, Lord Cormack, is very important. For us to have to look under this procedure at language and provisions which are entirely new and were not in the Bill that was worked on here, in a rushed debate, without time to take advice from outside, conflicts with the concept of the House of Lords as a serious revising Chamber. I hope that the Minister will think carefully about that.

25 Mar 2013 : Column 819

4.30 pm

Lord Taylor of Holbeach: My Lords, this has been a good and useful debate. I thank noble Lords for presenting their arguments, in particular the noble Baroness, Lady Smith. Perhaps I can reassure her that this is not about the Metropolitan Police any more than it is about any other of the territorial police forces in this country. This is about a procedure whereby we can use or consider using the National Crime Agency as a co-ordinating body within any future counterterrorism measures. That decision has not been made; it is subject to review. Many noble Lords have made speeches that are quite valid and contain valid points regarding that review. I listened to noble Lords in that regard.

I referred to our disappointment at our inability to gain a legislative consent Motion from the Northern Ireland Executive. It is a matter of disappointment but it does not remove the opportunity, as we will find when we discuss the next series of amendments, for the National Crime Agency to operate in Northern Ireland. That is not the point at issue. It has always been recognised that in counterterrorism matters the Police Service of Northern Ireland has a particular role of its own, and this legislation respects that role. We are not making a decision about the future of counterterrorism. We are putting in place an opportunity for Parliament —my noble friend Lady Hamwee is quite right about this—to put the conclusion of a future review in place without undue delay so that there is an opportunity, perhaps for the first time, to consider fully the implications of how counterterrorism is co-ordinated on a national base. It would not be understood by people outside this place if, having conducted a review, and that review having been announced to Parliament, we had to wait as long as a year for a suitable legislative vehicle to hitch primary legislation to. We all know that secondary legislation is a more efficient way of presenting issues to Parliament; it is not a method by which Parliament is bypassed.

The noble Baroness, Lady Smith, asked about the timing of the Commons amendments. At Second Reading my right honourable friend the Home Secretary announced to the House that she was proposing to extend the commitment to reinstate this clause. At that point we were considering the debate in the House itself, and were also in discussion about seeking legislative consent in Northern Ireland. It was only at the conclusion of those elements that we were in a position to present it on Report in the Commons where, as the noble Baroness herself said, two and a half hours were devoted on the Floor of the House to considering this issue.

The noble Lord, Lord Condon, doubted whether it was proper for a change of this type to be considered in anything other than primary legislation. Much of what the noble Lord said covered the sorts of issues that will be relevant to a future review, of the type that we have not had before, into the way in which we co-ordinate CT and might involve the National Crime Agency. I hope that such a review would consider the very points that the noble Lord made.

The noble Lord, Lord Harris of Haringey, mentioned the complexity of the issue. Of course it is complex. This is about trying to find a mechanism for making a

25 Mar 2013 : Column 820

decision. In effect, all chief constables are responsible for ensuring appropriate and effective counterterrorism in their force areas. All force areas maintain a Special Branch, for example. There is already considerable activity at every force level. This enables the review to consider whether there is a role for the National Crime Agency in co-ordinating the activity at national level. It does not question the fact that the role of the Metropolitan Police, for reasons that have been stated in the debate, will be very important before, during and after the review.

I think that it was the noble Lord, Lord Harris, who asked me what problem I was trying to fix. It is clear that we already have in place very effective structures for counterterrorism policing. This is about reviewing those structures in the context of the National Crime Agency. We do not have a National Crime Agency at present but we will have one in place. We are considering what if any role the National Crime Agency should have in further enhancing our response to terrorism. To seek continuous improvement does not suggest that there is a problem. Until there is a review, we cannot say whether there should be a role for the National Crime Agency to play.

The noble Lord, Lord Reid, emphasised that the fight against terrorism is complex. I hope that nothing I said suggested that I believed otherwise. I hope also that I did not say anything with which he fundamentally disagrees about the nature of terrorism and the resources that need to be devoted to countering it. It is right that Parliament should have in place a review mechanism for considering how it implements these things.

The noble Lord, Lord Soley, took the view that there should be primary legislation. I disagree with him. One thing that we have all learnt is that much of the decision-making on an issue such as this will be quite detailed. It is almost bound to be dealt with in secondary legislation, because if there is to be a transfer of resources, funds or whatever, it will be based on a secondary legislation-type activity.

The noble Lord, Lord Blair, asked a very pointed question about whether there was party-political consideration in this, and whether it was a measure to appease the Mayor of London and gain some party advantage. I admire the noble Lord and I think that the question was unworthy of him. That is not what we are considering here. We are considering a proper mechanism whereby a national force designed to co-ordinate the fight against crime might also at some future date be asked by Parliament to have a role in counterterrorism. That is what we are considering today, and the question is about the procedure that we offer.

There are two legitimate points of view. It can be said that this is such an important thing that primary legislation is the only way to bring it about. I would say the most effective way of bringing it about is through the super-affirmative process following a review, which is precisely why I am arguing the Government’s case here.

My noble friend Lady Hamwee perhaps summed it up as well as anyone: no decision has yet been made or will be made until after review, and there will be no review until the NCA is up and running. This is about

25 Mar 2013 : Column 821

future-proofing national policing through the NCA, about a future role for the NCA with the additional flexibility made through the order-making power, and about what the NCA might be able to bring to enhance the counterterrorism response in the future if such a decision is made.

Lord Reid of Cardowan: I am very grateful to the Minister. Indeed, he is right that there is almost nothing I disagree with in what he said, with one exception: his lack of explanation as to why one could not have legislation following a review. It is quite possible to have consultation in a review and then parliamentary scrutiny. He is presenting it as if one can only have a review and consultation if one is going to the affirmative procedure. What he has not explained is the need for that mechanism and the avoidance of further parliamentary scrutiny, not in the detail but on the major issue, should it arise, of the transfer of the lead on counterterrorism. That is a substantial issue.

Lord Taylor of Holbeach: I am certain it is the nature of these things that following the review, Parliament would have an opportunity to debate the issue before the super-affirmative proposal is laid. I made the point earlier that any party affected by this secondary legislation has the right to be consulted. Parliament itself is likely to express a view when that decision of a review is made, before a super-affirmative procedure is even tabled. I cannot imagine an issue of this importance passing noble Lords’ attention and not being brought to the attention of the Minister in this House to account for what was being proposed. I cannot see that being a realistic scenario. I would expect to have to answer to this House for a decision of that nature. Indeed, the super-affirmative procedure provides for an opportunity for full consideration of the detail, as the noble Lord has said, of what is going to be required in the transfer of these powers.

My noble friend Lady Hamwee asked about tasking powers in the NCA because they apply to police forces in England and Wales and they would apply to the functions of the NCA. For the moment, that is limited to serious and organised crime, but in future it could include counterterrorism if such functions were confirmed through secondary legislation, or the super-affirmative procedure, in the future.

This has been a useful debate. I do not waver from my conviction that the House has a role to play in debating the issues, but I think that the provisions of the Bill, as amended by the Commons, provide the right mechanism for doing so.

Baroness Smith of Basildon: My Lords, I have listened with great care to the Minister, and I think he has done his best to reassure the House on the level of scrutiny that he proposes. However, I think he falls into the same mistake that his colleague Jeremy Browne made in the other place as seeing this as a procedural issue. He will have heard from noble Lords tonight with enormous experience—far more experience than either he or I have in these matters—that it is not regarded as a procedural issue but a very serious issue.

I said in my opening remarks, and the noble Lord, Lord Reid, made the same point, that the greatest responsibility that a Government and, I think, a

25 Mar 2013 : Column 822

Parliament have to their citizens is to ensure their safety and security. The noble Lord, Lord McNally, indicated his assent on that as well. As the noble Lord, Lord Reid, said, adding scrutiny to what he regards as a questionable transfer—although others would see it differently—but to something that raises concern, can only help rather than hinder any Government. Our Cross-Bench Peers with enormous experience in this, such as the noble Lords, Lord Condon and Lord Blair, with their vast experience of policing, raised real concerns about how such a transfer could be effective.

The Minister talks about a review and places great store by that review and the ability of noble Lords to contribute to it, but a review is not primary legislation. He says that a Government would seek to hitch to another Bill such a proposal to transfer counterterrorism from the Met to the new National Crime Agency. I would not expect Her Majesty’s Government to hitch something to another Bill, and I do not know what the Minister is gesticulating about, because this is a serious issue. It is hard to conceive, as other noble Lords have said, of a time when this would be in emergency legislation; it would be the wrong time, but noble Lords across your Lordships’ House would do their best to ensure proper and effective scrutiny in the interests of good legislation, for no other reason than to make sure that we get something so serious absolutely right.

The Minister will have heard that there are doubts as to whether such a transfer would be appropriate. It is because some doubts have been raised that there should be a proper process and procedure for parliamentary scrutiny to ensure that, if such a step is taken, at some point in future, after review and after the Government are satisfied that the NCA is operating correctly, those doubts should be raised in primary legislation. It is absolutely crucial; if the Home Secretary wants to take this step, she needs to ensure that she has the confidence not just of Parliament but of all those involved in counterterrorism. That is what proper and effective scrutiny through primary legislation would seek to achieve.

The Minister has tried, but he has failed to convince me that a super-affirmative order that is unamendable, even if the Home Secretary wants it to be amended, and which does not have the degree of scrutiny of primary legislation, is an appropriate way in which to move forward on something so serious and important to the nation. I therefore ask to test the opinion of the House.

4.47 pm

Division on Motion 1A

Contents 199; Not-Contents 230.

Motion 1A disagreed.

Division No.  1


Allenby of Megiddo, V.

Alli, L.

Anderson of Swansea, L.

Andrews, B.

Bach, L.

Bakewell, B.

Barnett, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Bhattacharyya, L.

25 Mar 2013 : Column 823

Bilston, L.

Birt, L.

Blair of Boughton, L.

Blood, B.

Borrie, L.

Bradley, L.

Bragg, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brooks of Tremorfa, L.

Browne of Belmont, L.

Butler-Sloss, B.

Carter of Coles, L.

Chandos, V.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Cobbold, L.

Collins of Highbury, L.

Condon, L.

Corston, B.

Crawley, B.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Donaghy, B.

Donoughue, L.

Dubs, L.

Eatwell, L.

Elder, L.

Elystan-Morgan, L.

Erroll, E.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Golding, B.

Goldsmith, L.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Grenfell, L.

Griffiths of Burry Port, L.

Grocott, L.

Hanworth, V.

Harries of Pentregarth, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Hastings of Scarisbrick, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollick, L.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

Jones of Whitchurch, B.

Jones, L.

Jordan, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

King of Bow, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Knight of Weymouth, L.

Laming, L.

Lea of Crondall, L.

Leitch, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Lloyd of Berwick, L.

Low of Dalston, L.

McAvoy, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maginnis of Drumglass, L.

Mallalieu, B.

Mandelson, L.

Mar, C.

Martin of Springburn, L.

Masham of Ilton, B.

Maxton, L.

Meacher, B.

Mogg, L.

Montgomery of Alamein, V.

Moonie, L.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Noon, L.

Nye, B.

O'Neill of Bengarve, B.

Palmer, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prashar, B.

Prosser, B.

Radice, L.

Ramsay of Cartvale, B.

Ramsbotham, L.

Reid of Cardowan, L.

Richard, L.

Richardson of Calow, B.

Rogan, L.

Rogers of Riverside, L.

Rooker, L.

Rosser, L.

Rowlands, L.

Royall of Blaisdon, B.

Sawyer, L.

Scotland of Asthal, B.

Sheldon, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Stern, B.

25 Mar 2013 : Column 824

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Sutherland of Houndwood, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Temple-Morris, L.

Tenby, V.

Thornton, B.

Tomlinson, L.

Touhig, L.

Triesman, L.

Tunnicliffe, L. [Teller]

Turnbull, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Elvel, L.

Wills, L.

Wilson of Tillyorn, L.

Woolf, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.


Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Ashdown of Norton-sub-Hamdon, L.

Astor of Hever, L.

Astor, V.

Attlee, E.

Avebury, L.

Bates, L.

Berridge, B.

Bew, L.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Bottomley of Nettlestone, B.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Bridgeman, V.

Brinton, B.

Brittan of Spennithorne, L.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Byford, B.

Caithness, E.

Cathcart, E.

Chadlington, L.

Chalker of Wallasey, B.

Chidgey, L.

Clement-Jones, L.

Colville of Culross, V.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Cox, B.

Craigavon, V.

Crickhowell, L.

Crisp, L.

Cumberlege, B.

De Mauley, L.

Deben, L.

Deech, B.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dykes, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Elton, L.

Empey, L.

Faulks, L.

Fearn, L.

Fellowes of West Stafford, L.

Fellowes, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Fraser of Carmyllie, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Glentoran, L.

Goodhart, L.

Goodlad, L.

Grade of Yarmouth, L.

Green of Hurstpierpoint, L.

Greenway, L.

Guthrie of Craigiebank, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Peckham, L.

Harris of Richmond, B.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Home, E.

Howe of Aberavon, L.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Jay of Ewelme, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

King of Bridgwater, L.

25 Mar 2013 : Column 825

Kirkham, L.

Kirkwood of Kirkhope, L.

Knight of Collingtree, B.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lee of Trafford, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Loomba, L.

Lothian, M.

Lucas, L.

Luce, L.

Luke, L.

McColl of Dulwich, L.

Macdonald of River Glaven, L.

Mackay of Clashfern, L.

Maclennan of Rogart, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Mar and Kellie, E.

Marks of Henley-on-Thames, L.

Marlesford, L.

Mawson, L.

Miller of Chilthorne Domer, B.

Montagu of Beaulieu, L.

Montrose, D.

Moore of Lower Marsh, L.

Morris of Bolton, B.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Nicholson of Winterbourne, B.

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Palumbo, L.

Parminter, B.

Patel, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Renfrew of Kaimsthorn, L.

Ribeiro, L.

Ridley, V.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Roper, L.

Ryder of Wensum, L.

St John of Bletso, L.

Sanderson of Bowden, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Shutt of Greetland, L.

Skelmersdale, L.

Slim, V.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Sterling of Plaistow, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strasburger, L.

Strathclyde, L.

Swinfen, L.

Taverne, L.

Taylor of Goss Moor, L.

Taylor of Holbeach, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tonge, B.

Tope, L.

Tordoff, L.

Trefgarne, L.

Trimble, L.

Trumpington, B.

Tugendhat, L.

Tyler, L.

Ullswater, V.

Vallance of Tummel, L.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Walpole, L.

Warsi, B.

Watson of Richmond, L.

Wheatcroft, B.

Wilcox, B.

Williamson of Horton, L.

Younger of Leckie, V.

Motion agreed.

5 pm

Motion on Amendment 2

Moved by Lord Taylor of Holbeach

That this House do agree with the Commons in their Amendment 2.

2: Page 2, line 40, leave out “may” and insert “must”

Lord Taylor of Holbeach: My Lords, I shall speak also to Amendments 28, 29, 44, 47, 52 to 60 and 138.

25 Mar 2013 : Column 826

Perhaps I may focus on the most noteworthy amendments in this group. They are Amendments 28, 29, 44, 47 and 138, which, as I alluded to in the previous debate, relate to the National Crime Agency’s role in Northern Ireland. These amendments are a regrettable but necessary response to the Northern Ireland Executive’s decision not to take forward legislative consent for the National Crime Agency. To say that this is a disappointing outcome does not do justice to the implications that this will have for the effectiveness of the National Crime Agency, the integrity of the collective operational response to serious and organised crime and, most importantly, the protection of the people of Northern Ireland.

However, let me make it clear that the National Crime Agency will continue to operate in Northern Ireland, albeit that its activity will be limited to reserved and excepted matters such as immigration offences and drug trafficking. The amendments and the new schedule that are necessary to ensure that the Bill does not break the Sewel convention give effect to that limitation.

The new schedule introduced by Amendment 138 sets out those provisions that will not extend to Northern Ireland. As a result, for example, NCA officers will no longer be able to be designated with the powers of a constable in Northern Ireland, the Police Ombudsman for Northern Ireland will no longer have oversight of the NCA in Northern Ireland, and the PSNI has been removed from the duties to co-operate and share information. These are important operational losses, but as transferred matters they are areas on which we in this House cannot legislate without consent.

However and importantly, the new schedule also provides a series of order-making powers whereby should the position of the Northern Ireland Executive change in the future, the NCA provisions can be extended to Northern Ireland, subject to the agreement of the Northern Ireland Assembly. We will, of course, do our utmost to minimise the operational impact of the Executive’s decision, but the limitations on the agency’s activity in Northern Ireland will have implications for the fight against serious and organised crime in Northern Ireland. I must not mislead the House on that point.

As I have indicated, the NCA will continue to operate on a UK-wide basis, including in Northern Ireland. Even with the restrictions in the new schedule, there is still much that the NCA can do to tackle serious, organised and complex crime in Northern Ireland, both through its own investigations and by supporting the Police Service of Northern Ireland and other agencies. The strong operational relationship that the Serious Organised Crime Agency has built up with the Police Service of Northern Ireland will continue with the National Crime Agency. NCA officers will still be able to be designated with customs and immigration powers and will therefore be able to take action against serious, organised and complex customs and immigration cases.

The NCA will still be able to focus on asset recovery work, whether through the excepted tax assessments under Part 6 of the Proceeds of Crime Act or through taking forward civil recovery cases against property in

25 Mar 2013 : Column 827

Northern Ireland in respect of reserved or excepted offences such as immigration offences, fuel duty evasion and drug trafficking. More importantly, operational partners will continue to be able to access the wider specialist capabilities that will reside in the National Crime Agency, such as the new National Cyber Crime Unit, the NCA’s network of international liaison officers and the Child Exploitation and Online Protection Centre.

I assure noble Lords that my right honourable friend the Home Secretary is continuing to work with the Secretary of State for Northern Ireland and the Northern Ireland Minister of Justice, David Ford, to secure agreement. These amendments do not in any sense denote an end to our negotiations. It remains our objective to ensure that the NCA can operate in Northern Ireland in the same way that it can in the rest of the United Kingdom. Until that time, these amendments are but a necessary stop-gap so that we respect the Sewel convention. We will continue to strive for an equitable agreement between the parties in Northern Ireland and, once secured, these amendments will ensure that we have the necessary order-making powers to give effect to such an agreement.

I hope that I can deal briefly with the other amendments in this group. Commons Amendment 2 to Clause 2 converts the existing power on the Home Secretary to set strategic priorities for the NCA into a duty to do so. The Home Secretary’s role in setting the strategic direction for the agency is obviously of central importance. The Government’s intention has always been that the Home Secretary would set the strategic priorities, in accordance with the power granted by Clause 2. By placing such a duty on the Home Secretary, we will ensure that the agency will always have clear strategic direction from the Government of the day.

The other amendments, namely Commons Amendments 52 to 60 to Schedule 8, are essentially technical and drafting in nature. I can provide further details if any noble Lord has a particular question about them. However, to keep our proceedings concise, at this point I beg to move.

Lord Empey: My Lords, the Minister’s proposals are, as he said, a matter of deep regret with regard to Northern Ireland. For those noble Lords who perhaps have not followed the case, the Northern Ireland Executive refused to allow the powers of a constable to be conferred on an NCA official. This means that, in practice, Sinn Fein vetoed the establishment of the National Crime Agency in respect of reserved matters.

This can be handled in different ways. We can hope, as the Minister says, that there will be a change of heart. There will not. My fear is that this will inadvertently result in Northern Ireland being used as a back door whereby people who are focused on crime could use the absence of the NCA to carry out their activities unmolested, unless the Police Service of Northern Ireland undertakes some of the roles that would otherwise have been carried out by the NCA in Northern Ireland. That will incur a cost that I doubt very much there are currently resources to meet. It also means that the national expertise that the National Crime Agency could bring to bear on these criminals will not be

25 Mar 2013 : Column 828

brought to bear. Common sense dictates that where you have a vacuum, people will fill it. While I accept the regrettable need for these amendments, I do not share the Minister’s current optimism that these matters will be resolved by negotiation. I just do not believe that they will be resolved.

I was always concerned about the devolution of policing and justice to Northern Ireland in the absence of a full agreement between the parties on how things would be done. There was no such agreement. It was a political necessity that was politically driven in the same manner as the euro was. The working out of the downstream consequences had not been done. It is therefore a matter of deep regret. Can the Minister tell the House what steps the Government will take if evidence emerges that there are elements of activity in Northern Ireland that are not dealt with by the PSNI, thus creating a vacuum in which people can indulge in criminal activities which could spread to the mainland? While I understand the conventions, I have to say to the Minister that devolution means precisely what it says. Power is devolved, but what is devolved can be undevolved. If there is therefore a national threat, I would like an assurance that the Government will meet it.

Lord Browne of Belmont: My Lords, I, too, regret that the role of the National Crime Agency in Northern Ireland has had to be limited due to the intransigence of Sinn Fein and the SDLP in blocking agreement to the legislative consent Motion for the NCA. Every year in Northern Ireland, hundreds of millions of pounds are lost to the Exchequer only to pass into the hands of criminal gangs, often to finance terrorist activities. To date, as a result of the joint work between SOCA and the Police Service of Northern Ireland, some 11 million drugs have been seized, 33 potential victims of human trafficking have been rescued, 23 million counterfeit and smuggled cigarettes have been intercepted, and £4 million of criminal assets seized. How will this work continue, when the National Crime Agency will have very little input into key issues in Northern Ireland as Clause 14 will abolish SOCA, which currently operates with the PSNI? After Royal Assent, that will not happen. I trust that the Government will continue to negotiate with the Northern Ireland Assembly in order to redress this balance.

Lord Cormack: My Lords, I intervene briefly because for five years I had the privilege of chairing the Northern Ireland Affairs Committee in another place. The first major inquiry we conducted was into organised crime. The report was received with concern, but also with considerable approval across Northern Ireland. I am deeply concerned to hear that the National Crime Agency is not going to be able fully and effectively to function.

Devolution was worked for very hard, but when it came to the devolution of policing and justice, many of us had considerable concerns and misgivings. Even so, we were glad that further progress was being made in what had been the most troubled part of our kingdom. However, the noble Lord, Lord Empey, was right in what he said in his concluding words. We have not dissolved the United Kingdom. Supreme authority rests with this Parliament. If those to whom we have

25 Mar 2013 : Column 829

devolved behave in such a way that not only do they endanger Northern Ireland, but by implication the rest of the United Kingdom, this Parliament cannot sit idly by. Although this should not be taken, any more than the words of the noble Lord, Lord Empey, as any sort of threat, it is a statement of the reality of the situation. Devolution does not mean independence. Devolution means responsibility, and if responsibility is not exercised responsibly, those who have devolved have a duty to regard that fact.

5.15 pm

Baroness Smith of Basildon: My Lords, when the Crime and Courts Bill first came to your Lordships’ House, I questioned the Minister as to whether it was—I think I used the term—“oven ready”, as there seemed to be so much left to do in the Bill. Given that what was then a 41-clause Bill now has 18 new clauses, it was right to ask that question. The extradition issues, as we have heard from noble and learned Lord, Lord Lloyd, have been tagged on to the Bill. Indeed, the framework document which outlines everything the National Crime Agency should do and how it should do it is still not available, despite promises made at almost every stage of the Bill in your Lordships’ House and the other place.

One thing that emphasises that point is that no agreement was reached with the Northern Ireland political parties or the Assembly around what kind of architecture would work for Northern Ireland to ensure that, as we started the process, there would be a legislative consent Motion. To scrap SOCA, which has worked effectively with the PSNI in Northern Ireland, before the National Crime Agency is properly in place across the whole of the UK is an absolutely shocking state of affairs. It does a disservice to Northern Ireland and is hugely unfair to it.

I understand that having discussions and negotiations with all those involved to ensure that agreement can be reached can be difficult and very time-consuming. The Government were right to have discussions and negotiations with David Ford, the Justice Minister, and I would accept and agree that he has worked extremely hard to find a way through this to ensure that the National Crime Agency could fully operate in Northern Ireland. However, I say to the Minister that the responsibility has to be that of government. I realise that in their negotiations with David Ford the Government have worked hard, but what I am puzzled about, and where I have a question mark over the Government’s actions, is that those who have been involved more closely in Northern Ireland know that in order to reach agreement on this issue—I am sure that the noble Lord, Lord Cormack, is very aware of this—you have to start early discussions with all the political parties, the elected representatives and all those who have a role to play. The comments made by Mark Durkan in the other place last week indicate to me that the discussions did not take place early enough.

I asked two Parliamentary Questions, one to the Minister and one to the Northern Ireland Office, about what discussions had taken place ahead of there being no legislative consent Motion before today’s debate. The Answer I had from the Northern Ireland Office was that:

25 Mar 2013 : Column 830

“The Secretary of State for Northern Ireland has spoken regularly to the Northern Ireland Justice Minister about the National Crime Agency. He”—

the Justice Minister—

“has been leading discussions with Northern Ireland Executive colleagues about the National Crime Agency. The Secretary of State has not discussed the matter in detail with other Ministers in the Northern Ireland Executive. The Government remain committed to delivering a UK-wide crime-fighting agency focused on tackling serious, organised and complex crime”.—[

Official Report

, 28/2/13; col.




If the Government are so focused, why were discussions not taking place with other Ministers in the Executive, who have a role in accepting a legislative consent Motion, and the representatives of political parties?

I have to say to the noble Lord that the response from the Home Office was dire. It said:

“Home Office Ministers and officials have meetings with a wide variety of international partners, as well as organisations and individuals in the public and private sectors, as part of the process of policy development and delivery. Details of these meetings are published on the Cabinet Office website on a quarterly basis”.—[Official Report, 27/2/13; cols. WA 333-34]

I was asking specifically whether Ministers had met and spoken to, and how often, the Northern Ireland Justice Minister and other Ministers in the Executive to try to get this moving. The response I get is that Ministers and officials have met “a wide variety of international partners”. Northern Ireland is part of the United Kingdom. Discussions were needed not with international partners but with the political parties and representatives of the Northern Ireland Assembly. That may mean that the Government, or the Home Office, have been talking to the Irish Government, which is a fair way forward, but not to be having those discussions that I think were necessary has led us to the point where, like the noble Lord, Lord Empey, I do not know, and do not share the Minister’s confidence, that this can be resolved in the way that we would like to ensure there is a fully functioning National Crime Agency across the whole of the UK.

I ask the Minister, in the absence of answers to my Written Questions—if he has to write to me I will accept that but if he is able to answer today that would be helpful—when did Ministers first raise the issue of the National Crime Agency, with or without the counterterrorism functions, with the Northern Ireland Ministers and political parties? Who has led the discussion? Has it been the NIO or has it been the Home Office, and who did they meet? However, the crucial question has to be: what happens now? What next? The Motion before us today from the Government that removes application provisions from the Bill is, under the circumstances, perhaps the only way forward at this stage. However, I hope we are going to see a step-up and continuation of the process in the interest of fighting serious and organised crime effectively in Northern Ireland and that there is not going to be a step back by removing Northern Ireland from today’s legislation.

Lord Taylor of Holbeach: My Lords, I understand the distress and disappointment, and if I may use the phrase used by the noble Lord, Lord Empey, the pessimism that he feels about these issues is clearly reflected in other contributions that have been made

25 Mar 2013 : Column 831

by other noble Lords. On the other hand, I am optimistic because, despite the criticism made by the noble Baroness, Lady Smith, we have sought to address these issues properly. If we had been overassertive in the requirements of the United Kingdom in this regard, we would have alienated a legitimate discussion process that was correctly placed with David Ford, the Justice Minister in the Northern Ireland Executive, and in the key position of securing these agreements. We were keen not to put him in the situation where we were seeking to second-guess where he was taking these discussions.

I will answer the noble Baroness, Lady Smith, in writing because she asked particularly about dates and so on. I do not have that information. Ministers and officials have had a number of meetings with David Ford throughout this process. The noble Baroness will know that I have talked to her about this on occasions outside this Chamber when she has asked me how things were going on this. I remember saying that it is a difficult and delicate matter. All noble Lords with experience of Northern Ireland will understand exactly why that is so. The Government were right that while we were prepared to compromise on a number of challenging areas, the negotiations had not been held on the basis of securing consent at all costs. I think noble Lords will be pleased that that is the case. That must be the right position for the Government of the United Kingdom to take on this issue.

For noble Lords who think that the Government should have intervened directly, I should say that this is devolution, a devolved process. It is absolutely right that the Justice Minister in Northern Ireland, David Ford, led these discussions. He has admirably served the interests of Northern Ireland in this regard with remarkable resilience, driving the discussions and negotiations at each turn, even in the face of some clear opposition. I have confidence in him, which is why I am ultimately optimistic that the people of Northern Ireland, through their elected representatives, will see the importance of having a combined national involvement with the National Crime Agency because of the capacity that it will bring to policing in Northern Ireland.

We are not in the business of creating gaps. The NCA was intended to close gaps in the current arrangements. That was in the Bill that we planned to create, but the Executive could not agree, which is why these amendments are before the House. We remain open to discussion and we have provided the necessary order-making powers to fully extend the NCA provisions to Northern Ireland should the position of the Executive change. Assuming the Executive stick to their decision, it is up to them to decide how to develop alternative capabilities for Northern Ireland to replace the work currently done by SOCA. As I have said, we are committed to providing as much operational capacity and capability as possible for the NCA operating in Northern Ireland. But, as I made clear, in the absence of legislative consent there are some things that the NCA will no longer be able to do, such as using Northern Ireland police powers to investigate serious and organised crime. This is to be regretted.

25 Mar 2013 : Column 832

Lord Empey: Before the Minister sits down, perhaps he can address the question that I raised. In circumstances where agreement is not reached, where the Executive do not make alternative arrangements to pursue crime as was intended by the NCA, and where evidence emerges that crime is developing in Northern Ireland and is being spread to the mainland, what steps will the Government take?

Lord Taylor of Holbeach: I imagine that the noble Lord will be able to guess my answer, which is that any Government of the United Kingdom will respond in a responsible manner.

Motion agreed.

Motion on Amendment 3

Moved by Lord Ahmad of Wimbledon

That this House do agree with the Commons in their Amendment 3.

3: Insert the following new Clause—

“Varying designations of authorities responsible for remanded young persons

(1) Section 102 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (where child remanded to youth detention accommodation, court must designate local authority to look after child and meet costs) is amended as follows.

(2) In subsection (7)(a) (authority that already looks after child to be designated) after “being looked after by a local authority” insert “otherwise than by virtue of section 104(1)”.

(3) In subsection (7)(b) (in other cases, court must designate authority for area where child habitually resides or offence committed) for “, the local authority” substitute “but subject to subsection (7B), a local authority”.

(4) After subsection (7) insert—

“(7A) In a case to which subsection (7)(b) applies, the court is to designate a local authority in whose area it appears to the court that the child habitually resides (a “home authority”) except where the court—

(a) considers as respects the home authority, or each home authority, that it is inappropriate to designate that authority, or

(b) is unable to identify any place in England and Wales where the child habitually resides.

(7B) If in a case to which subsection (7)(b) applies—

(a) the court is not required by subsection (7A) to designate a home authority, but

(b) it appears to the court that the offence was not, or none of the offences was, committed in England and Wales,

the court is to designate a local authority which it considers appropriate in the circumstances of the case.”

(5) After subsection (7B) insert—

“(7C) Where a child has been remanded to youth detention accommodation, the court—

(a) which remanded the child, or

(b) to which the child was remanded,

may designate a local authority (“B”) as the designated authority for the child in substitution for the authority previously designated (whether that previous designation was made when the child was remanded or under this subsection).

(7D) Where a child has at any one time been subject to two or more remands to youth detention accommodation, a court which has jurisdiction to make a replacement designation under subsection (7C) in connection with one or some of the remands also has jurisdiction to make such a replacement designation in connection with each of the other remands.

25 Mar 2013 : Column 833

(7E) Where a replacement designation is made under subsection (7C) after the end of the period of remand concerned, the substitution of B for the previously-designated authority has effect only for the purposes of regulations under section 103.

(7F) Where a replacement designation is made under subsection (7C) during the period of remand concerned, the substitution of B for the previously-designated authority—

(a) has effect, as respects the part of that period ending with the making of the replacement designation, only for the purposes of regulations under section 103, and

(b) has effect, as respects the remainder of that period, for all of the purposes listed in subsection (6).

(7G) A court may make a replacement designation under subsection (7C) only if it considers that, had everything it knows been known by the court which made the previous designation, that court would have designated B instead.

(7H) Where a replacement designation is made under subsection (7C) in relation to a remand, the previously-designated authority is to be repaid any sums it paid in respect of the remand pursuant to regulations under section 103.

(7J) A court which has jurisdiction to make a replacement direction under subsection (7C) may exercise that jurisdiction on an application by a local authority or of its own motion.”

(6) A replacement designation under the new section 102(7C) may be made in respect of a remand ordered before this section comes into force, and the amendments made by this section have effect for the purpose of making a replacement designation in any such case; but, in such a case, the substitution of B for the previously-designated authority (and any entitlement to repayment under new section 102(7H)) does not have effect as respects any time before this section comes into force.

(7) Except as provided by subsection (6), the amendments made by this section have effect only in relation to remands ordered after this section comes into force.”

Lord Ahmad of Wimbledon: My Lords, in moving that this House do agree with Commons Amendment 3, I shall speak also to Commons Amendments 4, 7 to 10, 32 to 37, 42, 43, 51, 61 to 92, 93 to 130 and 132. This group of amendments covers a range of issues in respect of provisions in Part 2 of the Bill, as well as adding some new provisions to that part, but I believe that they will generally be welcomed. I propose to focus my remarks on the most significant of these amendments.

Commons Amendment 3 makes a specific and technical amendment to the youth secure remand provisions in Section 102 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Under those provisions, local authorities are liable to pay the Youth Justice Board the accommodation costs of children subject to secure remand. As of 3 December 2012, courts ordering a secure remand must designate a local authority as the designated authority for the child. Full financial responsibility for the accommodation costs of securely remanded children will fall to the designated local authorities as of 1 April.

This amendment addresses a gap in the current law. When remanding a child, the court will tend to designate the local authority where the child lives. However, this is not always clear at the early stages of the case, so the court may designate a different local authority. By the next hearing, more information is generally available, so the court can change the designation to the local authority where the child lives. But under Section 102 of the 2012 Act, the liability to pay the secure accommodation costs for the period before the change is made still rests with the original local authority. This creates an unfair burden on a local

25 Mar 2013 : Column 834

authority where the child does not live, and puts at risk the effective recovery of costs by the Youth Justice Board. Therefore, Commons Amendment 3 gives the court powers to make a replacement designation, so all the accommodation costs can be recovered from the local authority that has subsequently been identified.

In addition, the amendment introduces the assumption that the court should designate the local authority where the child lives rather than the authority where the offence took place. The Government believe that in most cases it is right to designate the local authority where the child lives in accordance with the habitual residence test from which the duty for a local authority to provide accommodation and support flows. Of course, the court will retain overall discretion over deciding which local authority to designate.

5.30 pm

On the amendments on judicial appointments, the House will recall that as part of the changes the Government are making to the judicial appointments process, the details of the selection process for certain judicial offices, including for the office of the Lord Chief Justice and heads of division, will be removed from the Constitutional Reform Act 2005 and instead be set out in secondary legislation. As the current Lord Chief Justice is soon to retire, the Government want a new selection process for the Lord Chief Justice to be applied to the selection of his successor. If the appointment process is to be completed in good time for the start of the new judicial year, we cannot wait until the required secondary legislation is made once the Bill is enacted. Commons Amendment 4 therefore adds the new selection process to the Constitutional Reform Act 2005 and provides for the process to come into force on Royal Assent. This is a transitory measure and will cease to have effect when the subsequent regulations are made.

Commons Amendment 93 applies the tipping-point provision to UK Supreme Court appointments, similar to the one being applied to other judicial appointments by Part 2 of Schedule 13 to the Bill. The Government’s position has always been that the tipping point should apply to Supreme Court appointments. We believe that Section 159 of the Equality Act 2010 could already be applied to Supreme Court appointments, but on Third Reading my noble friend Lord Marks expressed some doubt as to whether this was the case. After considering the points raised by my noble friend, the Government brought forward Commons Amendment 93, which removes any uncertainty that a tipping point can apply to Supreme Court appointments. Commons Amendment 130 relates to the judicial deployment provisions in Schedule 14 to the Bill, which aim to provide greater flexibility in deploying judges to different courts and tribunals. After further consultation with the judiciary about the extent of these flexible deployment provisions, and given the particular skills and experience needed in Crown Court cases, we have concluded that the Crown Court should be removed from the deployment provisions.

On the UK Supreme Court, I am sure the House will wholeheartedly welcome Commons Amendment 7. Both on Report and at Third Reading in this House,

25 Mar 2013 : Column 835

the Government indicated that we were discussing the appointments process for the chief executive of the UK Supreme Court with the president of the court with a view to arriving at an agreed way forward. I am pleased to report that these discussions were successfully concluded, and as a result Commons Amendment 7 amends the Constitutional Reform Act 2005 so that the president of the UK Supreme Court, rather than the Lord Chancellor, is made responsible for the appointment of the chief executive, and it is no longer necessary for the chief executive to agree the staffing structure of the court with the Lord Chancellor.

On broadcasting, as the House is aware, Clause 28 confers on the Lord Chancellor the power to make an order, with the agreement of the Lord Chief Justice, setting out circumstances in which the current legislative ban on broadcasting court proceedings below the Supreme Court level may be disapplied. When we debated these provisions previously, I believe all were agreed that while it is important for justice to be seen to be done, this must not be at the expense of the proper administration of justice. I remember talking to this particular amendment at the time. Let me just reiterate some of the reassurances that were given. Any order made under Clause 28 will be subject to a triple lock requiring: first, the agreement of the Lord Chancellor; secondly, the agreement of the Lord Chief Justice; and, thirdly, scrutiny by Parliament under the affirmative procedure. In addition to this, there is a fourth lock, which will give judges the discretion to stop filming or to refuse to allow broadcast of recorded footage in a particular case.

Clause 28(3) sets out the judicial tests that a judge must apply when considering whether to stop or prohibit filming in order to protect the interests of victims, witnesses and other parties. As currently drafted, only individuals who are party to proceedings are protected. We strongly believe that the court should be allowed to consider the impact on individuals who are not party to proceedings—for example, the families of victims and offenders—when considering whether to use the judicial veto. As such, Commons Amendment 9 would modify these tests to give the judge a wider discretion to stop the filming or broadcasting of court proceedings.

The requirement for the court to consider “the fairness of any proceedings” would be replaced with a wider requirement to consider the interests of justice, while the requirement for the court to consider whether “any person involved in the proceedings is not unduly prejudiced” would be replaced with a broader requirement for the court to consider whether any person will be unduly prejudiced, irrespective of whether they are a party to the proceedings. Commons Amendments 8, 10, 33 and 37 put beyond doubt the fact that the UK Supreme Court may record and broadcast its proceedings. They are essentially amendments that clarify this position.