I asked where in the Bill it says “exceptional circumstances”. I take it from the noble Earl’s answer that he agrees with me that the statement that the Bill provides for the director-general to be able to direct police forces in England and Wales in exceptional circumstances is not correct. Such wording does not appear in the Bill, although this was implied at Second Reading. In the light of that, I beg leave to withdraw the amendment.
Earl Attlee: My Lords, these are purely drafting amendments to the provisions in Schedule 3 relating to the exchange of information between police forces and the National Crime Agency. Paragraphs 3 and 4 of the schedule apply these provisions to each UK police force and the British Transport Police. However, the British Transport Police is already covered by the definition of a UK police force in Clause 16. Consequently, it does not need to be separately listed. The amendments therefore remove the superfluous paragraphs 3(1)(b) and 4(1)(b). I beg to move.
Baroness Smith of Basildon: My Lords, we can see that this is a drafting amendment. I must admit that when I first saw the clause I wondered what had happened to the Civil Nuclear Constabulary and the Ministry of Defence Police, which also should have been covered if it was necessary to include the British Transport Police. I think that the Minister has been able to give me an assurance for each of those special police forces, which, as the definitions on page 12 indicate, are UK police forces. They would have the same relationship as regards having to be notified and the disclosure of information as all other police forces in the UK. It is a helpful amendment that clarifies the existing position.
the issue that I wanted to raise on Amendment 39; namely, the distinction between the wording in Clause 5 to “perform a task” specified in the direction and the wording in paragraph 8 of Schedule 3 about providing,
“specified assistance to the NCA”.
Baroness Hamwee: I shall speak also to Amendment 41. There are three further amendments in the group in the names of the noble Baroness, Lady Smith, and others, all of which deal with payments. My two amendments concern the paragraph in Schedule 3 which deals with what is the “appropriate amount”. Paragraph 29 of Schedule 3 deals with what is to be paid under paragraphs 26 and 27 by the director-general and the police in the different circumstances. My amendment would extend that to payments under Part 1 of Schedule 1, including paragraph 4, which states:
Amendment 41 suggests that there is a way other than an amount agreed or an amount determined by the Secretary of State; that is, to provide for a scale or a formula in advance to be applied generally. As I understand the arrangements for mutual aid between police forces, there are governing scales and arrangements. It seems to me that it would be much better to have these things sorted out in advance rather than to have any sort of haggling being applied at the time. I certainly do not imagine that it would leave people with anything other than a rather sour taste if the Secretary of State had to step in and determine the amounts. I beg to move.
Baroness Smith of Basildon: My Lords, our amendments on this issue perhaps come from a different direction but they still try to address a similar concern that we have. We are looking at different ways to resolve this. The noble Baroness, Lady Hamwee, is right that if an agreement on payment cannot be reached between two parties, to seek resolution or determination by the Secretary of State does not seem the correct way to behave. Throughout this Bill, we have sought to remove the Secretary of State from day-to-day operational issues and this proposal would bring the Secretary of State back into those kinds of issues.
There is also a conflict of interest or at least a divided responsibility. There is a concern that one thing that will happen with the NCA and the charges and costs involved is that, given that funding may not be adequate to the task, particularly with additional
responsibilities coming in, some extra funding or support may be sought from police authorities, particularly in cases such as this. The Home Secretary has a direct responsibility for the funding of police forces across the country. It seems somewhat difficult, therefore, if there is a disagreement between a local police force and the NCA, that it should be the individual who has responsibility for funding local police forces who should seek a determination on that. The noble Baroness, Lady Hamwee, said something about that creating a bad feeling or some difficulties, and I certainly think that it would in this case.
The noble Baroness and I may not have found exactly the right format here. We are suggesting an advisory body, but I am not wedded to any particular way of doing this. It seems inappropriate for the Secretary of State to be making those decisions. To labour a point made by the noble Baroness, Lady Hamwee, about a protocol in the framework document, that may be what the Minister is considering—but we do not know, because we do not have the framework document. It is clearly inappropriate for the Secretary of State to be the arbiter. We would like to see some other way to resolve difficulties or disputes and we are suggesting an advisory board.
Earl Attlee: My Lords, this group of amendments all relate to the provisions in Schedule 3 regarding payments for tasks, assistance and facilities. Amendment 40, in the name of noble friend Lady Hamwee, seeks in effect to bring the provisions relating to charging in Schedule 1 into line with those in Schedule 3; namely, that they must be agreed by both sides.
I put it to my noble friend that this amendment would conflate two quite separate charging regimes. The charging provisions in paragraph 4 of Schedule 1 enable the National Crime Agency to provide particular services, whether to another law enforcement agency or to any other person. They are not about the provision of assistance or facilities under Schedule 3 or the tasking arrangements in Clause 5. Such services might include, for example, the provision of training, crime operational support or the services provided by the Specialist Operations Centre. Charging for these services, which are provided on request, will normally have to be on a cost-recovery basis in line with the Treasury’s guidance on managing public money. In other words, these services cannot be made under the old pals act; they have to be properly accounted for.
Amendment 41 seeks to provide for a protocol which sets out the appropriate amounts to be paid for tasks, assistance or facilities performed or provided under the provisions of Clause 5 and Schedule 3. I can certainly support the spirit of this amendment. The National Crime Agency will need to agree policies for cross-charging with the police service and other law enforcement partners that are equitable, practical and help to support the co-ordinated effort to tackle serious and organised crime. However, I do not think the amendment is necessary as the existing schedule already allows for the appropriate amount to be agreed through a broader policy or protocol. The key point in Schedule 3 is that payments for tasks, assistance or facilities,
if any, must be agreed between both sides. It does not specify how that agreement must be reached or that it must be done on a case-by-case basis.
Finally, Amendments 42 to 44, in the name of the noble Baroness, Lady Smith, seek to replace the Home Secretary’s role as final arbiter with an independent advisory panel on payments. I would argue that creating another quango is not a good way to provide value for money or to secure the simple and speedy resolution of disputes over charging arrangements. Indeed, I hope that there will be few disputes, and I imagine that both parties would be reluctant to involve the Secretary of State.
In addition, the approach to cross-charging in Schedule 3, including the role of the Secretary of State, broadly mirrors the Serious Organised Crime and Police Act 2005. The previous Administration did not see the need for creating a separate body to decide on appropriate amounts for payments in the absence of agreement, and neither do this Government.
Amendment 43 would remove any role for the devolved Administrations in setting appropriate amounts if agreement cannot be reached. As the budgets for these law enforcement bodies in Scotland and Northern Ireland are devolved, it is right that the devolved Administrations have a role to play in ensuring that payments are fair in situations where either a Scottish or Northern Irish body is involved.
I would hope and expect that the cross-charging arrangements for tasks, assistance and facilities will be agreed amicably between the NCA and its partners. It is right that the Bill includes backstop arrangements for resolving any disputes. The arrangements provided for in the Bill broadly mirror those for SOCA, and there is no good reason why we need to adopt a different approach for the NCA. Accordingly, I would invite my noble friend Lady Hamwee to withdraw the amendment.
Baroness Smith of Basildon: My Lords, I wonder sometimes whether the noble Earl lives in a slightly different and more benign world than I do. Several times during the course of today’s debate, whether it has been on the power of direction and payments, he has said, “We hope that it will be okay, we can’t see ourselves using this power, things should work out okay”. Real life is not like that; disputes occur. This idea of having a backstop and saying that it does not matter if it is not perfect and not okay because it will hardly ever be used is not really good enough. We need to have some kind of process. I do not know whether the noble Earl took on board what I said. I am not wedded necessarily to an advisory board, but I think that we need a process that is not the Secretary of State or, as the noble Earl calls it, a backstop.
There will from time to time be disputes on payments and the power of direction, and we need to have a process that this House is confident can deal with any of those problems that occur—and not just think that it will be okay because it will not happen very often. I think that we will pursue this at a later stage. There may be further discussions in Committee, but at this stage I am happy not to press my amendment.
providing a very clear framework—although I do not want to use that term—and making clear provisions is that they are clear and, if things are not amicable, one knows where to go. It had never occurred to me until an earlier group of amendments that the old pals arrangement might apply to anything under this Bill—but perhaps I am just too cynical.
On Amendment 40, as I understood the noble Earl’s remarks, the NCA will be subject to certain formal Treasury guidelines. He is nodding at that, but I wonder whether he might share those with Members of the Committee after the debate. It may not be appropriate to go into all the detail now, but it would be very helpful to be clearer about this before we return to the matter, as I suspect we will.
On Amendment 41, the noble Earl argued that what is provided in paragraph 29 is not on a case-by-case basis but is an overall principle. I do not read it like that, because paragraph 29 refers to a provision requiring,
“one person (“R”) to pay the appropriate amount to another person (“P”)”.
The only way in which I can construe that paragraph is that we are talking about the particular “R” and the particular “P”, not anyone who might come under “R” or “P” in a range of different situations. Perhaps that is something that we can seek to understand rather better after the Committee stage. I beg leave to withdraw Amendment 40.
(a) the functions of the Lord Advocate under Part 3 of the Proceeds of Crime Act 2002 (“PCA 2002”), or
(b) the functions of the Scottish Ministers under, or in relation to, Part 5 of PCA 2002,
only where the information has been obtained by the NCA in connection with the exercise of a function under PCA 2002 (other than a function under Part 6 of that Act).
(4B) Where information has been obtained by the NCA in connection with the exercise of a function under Part 6 of PCA 2002 (revenue functions), subsection (4) does not authorise an NCA officer to disclose the information.
(a) to the Commissioners for Her Majesty’s Revenue and Customs,
(b) to the Lord Advocate for the purposes of the exercise by the Lord Advocate of the Lord Advocate’s functions under Part 3 of PCA 2002 (confiscation: Scotland),
(c) to any person for purposes relating to civil proceedings (whether or not in the United Kingdom) which relate to a matter in respect of which the NCA has functions, or
(d) to any person for the purposes of compliance with an order of a court or tribunal (whether or not in the United Kingdom).”
Lord Henley: In moving Amendment 45, I wish to speak also to Amendments 59 to 63. I offer a brief apology to the Committee if it appears that I have been moonlighting and leaving too much work for my noble friend to do. However, I can give an assurance that I will be responding to the next half-dozen amendments. I congratulate the Committee on the extraordinary speed with which we are dealing with the Bill. That is refreshing and encouraging.
These amendments make a number of technical changes to the provisions in Clauses 7 and 12 and Schedule 7 which deal with the disclosure of information. I imagine that we will deal with that in greater detail when we get on to the clause stand part debate relating to Clause 7.
Amendments 45 and 61 relate to the disclosure of information obtained under the Proceeds of Crime Act 2002. The amendments address a lacuna in the drafting of paragraph 6 of Schedule 7, which inadvertently prevents the onward disclosure by an NCA officer of information obtained under the Proceeds of Crime Act other than information obtained under Part 6 of that Act, which relates to sensitive personal tax information and is therefore subject to specific restrictions. The default position is that information obtained by an NCA officer should be capable of being further disclosed for a permitted purpose; for example, the prevention and detection of crime.
In the case of information obtained under Part 6 of the Proceeds of Crime Act, Amendment 45 also creates a separate gateway for the onward disclosure of such information, but only to specified persons such as the Commissioners for Revenue and Customs. In substance, the new provision is designed to achieve the same end as paragraph 6 of Schedule 7 which it replaces.
As these provisions in respect of information obtained under the Proceeds of Crime Act primarily seek to authorise the disclosure of information rather than apply restrictions to such disclosure, we have taken the opportunity to move the provisions to Clause 7, as we believe they sit better there.
Amendment 59 to Clause 12 clarifies the relationship between the powers as to the disclosure of information and the restrictions on disclosure set out in Schedule 7. Clause 12 specifically provides that a duty to disclose information has effect subject to Schedule 7. This amendment simply applies the same principle to any power to disclose information.
Amendment 60 is a drafting amendment in respect of the definition of a relevant authority in paragraph 2(3) of Schedule 7. Amendments 62 and 63 clarify the rules governing the onward disclosure of information provided by an NCA officer where such information is in a
public document. Our intention, for obvious reasons, is that there should be no restrictions on the onward disclosure of information contained in a public document issued by the NCA: for example, information contained in the annual plan or report, or in the framework document, or which has otherwise been made available under the duty to publish information provided for in Clause 6. The new paragraph 9A of Schedule 7, as inserted by Amendment 63, sets this out in clearer terms than is the case with paragraph 7(2)(a) which it replaces.
I seek to clarify whether this is as broad a statement as I think it may be. Does it mean that any person may choose out of sheer devilment to ignore any other requirements to which they may be subject under the Data Protection Act or anything else to disclose information to the NCA because they think that it may be useful for the purposes of the exercise of its work? I am trying to get at who determines whether the disclosure is for the exercise of the NCA’s functions. Could I as a private individual who holds some privileged information decide that I think the NCA ought to be interested in the information because I think it relates to serious crime, and therefore I may decide to ignore the legal obligations on me not to disclose that information and pass it to the NCA? I could understand it if the wording was, “The NCA may require me to disclose the information because it is investigating something and gets the necessary permissions to override it”. I may be completely misinterpreting Clause 7(1) but I would be grateful for clarity on that point.
Lord Henley: I am sorry but I am slightly confused by the procedure that we are adopting. My understanding was that the noble Baroness, Lady Smith, was going to oppose the Question that Clause 7 stand part of the Bill. The noble Lord has intervened at this stage to ask a question about Clause 7. Does he want to wait for the general debate that we are going to have? However, the noble Baroness seems to be implying that there will not be a—
Lord Henley: I am distraught. There I was expecting a major debate and the noble Lord asked me only about Clause 7(1), who the relevant person may be and whether it was any person. I would have thought
the simplest way of dealing with this matter is the way that I was taught many years ago—the noble Lord, Lord Beecham, will remember this from when he first trained as a lawyer—namely, that you look at what the words on the face of the Bill say. We hope that the Bill will become an Act when we have finished dealing with it and it has gone through all its stages. The Bill states:
I would have thought that that is fairly straightforward. That is what the Bill says. My advice suggests that one need not go beyond that. The words “A person” imply that any person can disclose information to the NCA,
“if the disclosure is made for the purposes of the exercise of any NCA function”.
The noble Lord will now come back to me, because he always does, and I enjoy our debates. This statute is relatively simple to interpret. We know that that is not always the case and that great complications can arise in the interpretation of statutes. However, I should have thought that the words we are discussing are as simple as you can get.
Lord Harris of Haringey: My Lords, perhaps I did not make myself as clear as I should have done. If I am a data controller in an organisation and I have certain obligations placed on me not to disclose information, does Clause 7(1) override my normal duties as a data controller under the Data Protection Act and allow me to decide whether certain information looks as though it ought to fall within the remit of the NCA, and therefore enable me to disclose it to that body? That is my simple question and, even though I am trying to behave as though the words on the paper mean what they seem to mean, I am simply trying to understand whether this is as broad a “may” for the persons concerned as I think it is.
Lord Henley: I was probably not as clear as I ought to have been. Obviously, the persons would be subject to any other enactment, which would include, as the noble Lord said, the Data Protection Act. One could also mention the Regulation of Investigatory Powers Act 2000. They would be covered by the provisions of those Acts. The situation is as it states on the package, but subject to other statutory provisions.
Lord Harris of Haringey: I really do not wish to prolong this, unless the noble Baroness, Lady Hamwee, is about to explain what the words mean. What is the purpose of having this provision at all? If all that it is saying is that I, as an individual person, may do something that I am not prohibited from doing, what is the point of even putting it in the legislation in the first place? If the subsection is merely saying, “I have a bit of information that I am not prohibited from passing on, and I may decide to pass it to the NCA”, it seems to be completely unnecessary. It clearly means something, and I think that it means rather more than, “I can provide information without being constrained by, say, the Data Protection Act”. Unless the noble Baroness, Lady Hamwee, is going to provide some insight on this point, it may be something that the noble Lord can write to us about.
Baroness Hamwee: I am not sure that it is insight, but the noble Lord is right to raise the point. I hope that he will at least feel that I can intervene on that basis, even if we are without insight. Schedule 7 states that this part of the Bill does not authorise disclosure in contravention of the Data Protection Act or the Regulation of Investigatory Powers Act. If there are other general statutory provisions that would override the situation that the noble Lord is talking about and would always apply, it needs to be made clear that someone may disclose, subject to other statutory provisions. I do not know whether what I have said takes the matter any further but I, for one, am now convinced that there is an issue.
Lord Henley: I am sure that there is no issue here and that the noble Lord, Lord Harris of Haringey, is not suggesting some conspiracy theory that these words mean something different from what I suggested they mean. That is why I said that one should look at what is there on the packet. However, I suspect that the best thing to do would be for me to write to the noble Lord and make sure that that is copied to his colleagues on the Front Bench and my noble friend Lady Hamwee; and if there is any problem, we can deal with that in due course. I am sure that there is no problem, and that the matter is straightforward and can be quickly resolved. Does the noble and learned Lord agree? Perhaps I can call him the noble and learned Lord, because he is so good at these drafting matters that I will elevate him on this occasion. If he is happy with that, I will leave it to the Committee to accept Clause 7.
Baroness Smith of Basildon: My Lords, I hesitate slightly because I know that as soon as there is an amendment that mentions an NCA board, as the amendment does, the Minister will say, “If we haven’t agreed to a board, I don’t have to answer the question”. As he said earlier, I have been on that side of the Chamber—albeit another Chamber—with the same kind of file as the one he possesses now, but I ask him to put that to one side. Although he might not agree with some parts of the amendment or its architecture, he will understand the substance of what I am proposing and the reasons why this matter has been put forward. I hope that he can address my points.
around the House that it is an enormously successful body that is held in high regard. If we look at some of the figures, we see that between 2006 and 2011 more than 1,000 children were protected or safeguarded as a direct result of CEOP. There were 1,644 suspects arrested and members of 394 high-risk sex offender networks were arrested. CEOP is one of those organisations that we know is making a difference and wants to continue to do so.
CEOP has pioneered a model of multiagency partnership work that has brought together child protection and law enforcement in a way that has led to the organisation being recognised internationally as a centre of excellence for protecting children from sexual abuse, both physical and mental. Many noble Lords will have an idea of what we are talking about when referring to sexual abuse of children; however, I shall expand our thoughts on that slightly. I do not know if noble Lords had the opportunity to see an article—I cannot remember whether it was in this weekend’s Sunday Mirror or Monday’s Daily Mirror—telling a shocking story about access to internet porn by young people. It referred to quite shocking internet porn that would turn the stomachs of most people. It is not physical abuse, but one had only to read what those young people said to know that that was mental abuse, and it was certainly sexual abuse that had an impact on them. Some of the things that they themselves went on to undertake perpetuated that abuse. Sexual abuse of young people comes in many forms and can often lead to further sexual abuse of other young people.
CEOP deals with an area in which the more successful you become, the less possible it is to pull back, because you have to continue with your activity. You cannot reduce it at all. There are two crucial issues—the expertise and specialist knowledge that have been built up, and the partnerships that CEOP has managed to build with other agencies. The range of organisations and individuals that CEOP works with are interesting, and include children and young people. It has worked successfully with law-enforcement agencies. The public have also played a role—certainly in providing information and intelligence. Charities and voluntary and community groups have come on board, as have industry and international partners.
Since it was first mentioned that CEOP could be absorbed into the NCA, concerns have been mentioned at very senior levels. I said at Second Reading that the head of CEOP, Jim Gamble, resigned as a result. I can see possible great advantages in CEOP having a close relationship with the other commands in the NCA, because there are often links between organised crime, and intelligence can help bring together a picture or put in place the missing part of a jigsaw puzzle that helps lead to a prosecution or arrest. However, I am not convinced, and neither are many others, of the necessity to absorb CEOP into the NCA. That is where the concern arises.
I and the various organisations involved, including the NSPCC, as well as individuals, have welcomed the Government’s strong support for CEOP and its work, and the assurances that they have given—and I thank them for those assurances. However, they must clarify
and put on the record—and in statute—the commitments that have been made. That would provide the reassurances that are sought. I appreciate that the noble Lord has sought to do that and has written to noble Lords, and the Home Office has produced another factsheet on the kind of things that CEOP would do within the NCA and how the Government are determined not to see a dilution of its work.
However, perhaps I may raise a couple of points. CEOP must retain its operational independence. On that matter, we seek an assurance that specialist staff will not be pulled off child protection work due to staff shortages or emergencies in other areas. CEOP staff do highly specialised work using the knowledge they build up. If that were to be lost, even for a short time, the gaps in the operation of CEOP within the NCA could be quite damaging.
Another aspect of the amendment is the wish to see authority for its budget clearly delegated—in effect, for its budget to be ring-fenced. One thing at which CEOP has been very successful is raising money from outside sources. I think that it would be very difficult for it to continue doing that if its funding were not ring-fenced, as people contribute money for that particular area of work. If they felt that the money was being diluted across an organisation, they might be less likely to contribute. Therefore, I seek an assurance that the budget will be ring-fenced, together with any money raised by a CEOP organisation within the NCA.
I also ask the noble Lord to address the issue of trafficked children—a matter which has been raised by the NSPCC and which was referred to by the noble Lord, Lord McColl, on Monday. The NSPCC is concerned that under the arrangements within the NCA there might be a split of responsibility between the internal trafficking of children within the UK for sexual exploitation—or indeed for forms of slavery and servitude—and those trafficked into the UK. If there is a difference in the operation of those two areas, that will make CEOP’s work more difficult. It would be helpful if there were one area of responsibility for those separate but very similar issues. The liaison between the different parts of the NCA which deal with that needs to be seamless, but I find it difficult to understand how that could be if the two parts came under different commands.
The only reason that these issues are being raised at all is that there is concern that the effectiveness of this highly successful and highly regarded organisation could be diluted by being absorbed into the NCA. When something is working so well, there will obviously be concerns about any changes. I am convinced that the Government have no intention of diluting CEOP’s work but I think that that needs to be set out clearly in the Bill. If the Minister can give such a reassurance and be very clear about those areas, that will be extremely helpful. I beg to move.
Lord Dear: My Lords, I fully endorse what has been said about the work of CEOP. We have referred to this organisation many times over the past year or so in your Lordships’ House. It is a highly successful
organisation but it is only really beginning to identify the tip of an iceberg. We are just beginning to understand exactly how much crime in that area is committed. It has already been said today that there is a crossover with people trafficking, and in fact child trafficking comes very much within CEOP’s remit. People trafficking in general is a highly organised crime.
It seems to me that the question is: should CEOP come within the remit of the NCA at all? Personally, I think that it should, given the seriousness of what it deals with, the revulsion that all right-minded people feel about this crime and the way in which CEOP’s work interfaces with highly organised crime. The one thing that I am concerned about is the suggestion in the amendment that CEOP should be accountable to the NCA board, accepting that it is part of its remit, but should operate independently of the direction of the board. If that were to appear in the Bill, there would be considerable confusion. It seems to go against logic and against all tenets of management. “One man, one boss” is often used as shorthand for that. If CEOP is one of the four pillars of the NCA—as I believe it should be—not only should the board oversee the operation but it should be responsible for it, and CEOP should not be allowed to operate independently.
I take the point that, in a strange sort of way, CEOP is outside the normal remit of much of mainstream policing because it has a multiagency dimension. I understand that. In fact, I remember back in the 1970s piloting the first multiagency approach that attacked what was then called “baby battering”, then shorthanded as “child abuse”. That approach was highly successful and was rolled out right across the country from Nottinghamshire, where I was then serving. At that time it became the model of how best to approach this sort of problem. Therefore, I understand the particular sensitivities of multiagency approaches. Notwithstanding that, I would be unhappy to see CEOP operate independently of the direction of the board because I think that it would lead to confusion.
Baroness Hamwee: My Lords, the noble Lord, Lord Dear, has expressed very well my concerns about the second paragraph of the amendment. He has also said very clearly exactly what I would want to be said right around the Committee and to be on the record concerning the value of CEOP’s work. Like those of the noble Lord, my comments are in no way directed at criticising CEOP, not valuing its work or not wanting to see it continue as successfully as it has done.
Perhaps I may add a query about the third paragraph of the amendment. First, I am a little unclear about what is meant by the delegation of funds within an organisation, as would be the case if CEOP were part of the NCA. What exactly is meant by delegation? Secondly, for what purpose are the funds reserved? If funds are identified as being needed for CEOP’s operation, are they not for the whole of its operation, or is there something specific that the funds are intended to be reserved for?
I am sorry to appear to be taking apart an amendment on this matter. Like others, I feel that what has been said about the importance of CEOP’s work is absolutely undoubted, and my questions about the amendment are genuinely probing.
Lord Mackay of Clashfern: My Lords, can my noble friend deal with the point about funding? At the moment, to what extent does CEOP get outside funding to help it with its work? What safeguard is there? Will CEOP continue to get that money for its work as a result of the Government’s proposals?
Lord Harris of Haringey: My Lords, when my noble friend Lady Smith introduced the amendment, she made it clear that there was not necessarily a desire to stick to the wording before us: rather, that what we are having at this stage is very much a probing discussion. All your Lordships in this Committee support the work done by CEOP and we all want to see it succeed. Given that the Government intend to put CEOP within the National Crime Agency—for which there are some very strong arguments in favour but also some arguments against—the question is how one preserves the integrity of CEOP’s work and makes sure that the work continues and is seen to continue.
The amendment is partly about safeguarding the funding streams, as well as the external funding, and it is partly about ensuring that the existing partnership structures with CEOP, which are reflected in the current board structure of CEOP, are continued. Although the wording of my noble friend’s amendment does not necessarily resolve all these issues, it gives us an opportunity to highlight the concerns.
The principles are clear: we want to see CEOP’s work continue; we want to see it protected; and we want to see the retention of the partnership structure, which involves not only bringing in resources from outside but ensuring that those who provide the resources have confidence that the public contribution is retained and remains transparent. We want to ensure that in the operation of the agency there is a genuine partnership that involves different parties working together to achieve a common end.
We look to the Minister for some account of how the benefits of that separate entity, which is currently CEOP, can be preserved within a new structure. This is not a new concept. The presence on the government Bench reminds me that we had a very similar debate about the creation of Healthwatch within the Care Quality Commission; and there, completely erroneously of course, the Government’s objective was to create something that was independent and that had its own income flow and governance structure that was different from the rest of the Care Quality Commission. Although I do not think that the solution that the Government adopted in that particular model was perfect, it demonstrates that a number of models are available that try to achieve the objective of preserving this continuing area of activity, preserving the partnership structure and preserving the funding and independence of that funding for the future. I hope that the Minister can respond in those terms.
Lord Henley: My Lords, again, I regret that I missed the debates on the Care Quality Commission. I shall spend the summer reading those as well as the other ones. In response to the speech from the noble Lord, Lord Harris, I make it clear that I fully understand that his noble friend’s amendment is probing and seeks reassurances about what CEOP does and how it
works. I shall not dismiss it purely on the grounds of its wording, nor shall I say that it is merely a fantasy amendment because we do not yet have the NCA board that she was looking for, as that was dealt with at an earlier stage. I accept that this as a probing amendment and that there is a need for reassurances from me and the Government about the future of CEOP and what will happen under the new arrangements.
I pay tribute to the work of CEOP, which I saw when I visited it, as I am sure other noble Lords have done. We should all be very grateful that that child protection work will continue through the work of the agency. Since its creation, it has been a significant success story. It is important that I remind noble Lords that it has not previously had a statutory basis that is distinct from that of SOCA, and that has had no detrimental impact on its operational independence. It has worked perfectly well, and the six principles, to which I shall turn later, that underpin CEOP will continue to underpin it on the transition to the NCA.
Before I go through what I want to get on the record as an assurance, perhaps I may respond to my noble and learned friend Lord Mackay on the funding of CEOP and the fact that it can receive funds from outside sources. At the moment its existing funding model allows it to charge, for example, for training services that are provided mainly to the police, teachers and child protection workers and to raise income or support in kind through sponsorship and corporate arrangements. We certainly want those arrangements to continue with the NCA; there will be no change to that.
I assure the Committee that child protection will run throughout the National Crime Agency. CEOP will still exist as a part of that as a separate command within it, but we would not want to see it silo-ised—an inelegant word—within the department. It is important that its work runs throughout the agency. As well as building on CEOP’s existing role as the national centre dedicated to working with others to protect children from sexual exploitation and sexual abuse, the NCA will also be subject to a new statutory duty, which in essence is to safeguard and to promote the welfare of children. That means that the agency will give appropriate priority to children when it comes into contact with them and that it will share early concerns about the safety and welfare of children, ensuring preventive action before a crisis develops.
Those requirements will be part of the training that each and every NCA officer will receive. I emphasise the point that CEOP will be a separate command within the NCA; we do not want to see these matters silo-ised. Contrary to the noble Baroness’s amendment, it is imperative that the responsibility to discharge that duty remains with the whole of the National Crime Agency and not just with CEOP.
As set out in the National Crime Agency plan, which was published in June last year, the NCA will have four commands, one of which will be the Child Exploitation and Online Protection Centre. As I have made clear, we believe that that has been a significant
success and we want it to continue. We also believe that the NCA’s design, including its command structure, should not be a matter for primary legislation. That is to ensure that the agency is able to flex and adapt its structure, operations and priorities to the changing threat of organised crime. I think we dealt with that last Monday when I made the point that obviously there are matters that we would not have thought of as a serious and organised crime risk many years before but that we do now because things have changed. Consequently, I do not think it is appropriate to legislate for the proposed level of operational detail that the amendment suggests.
I have made it clear that we are publicly and clearly committed to six principles for the transition of the Child Exploitation and Online Protection Centre to the NCA. Those were included in the NCA and published last year, and they will certainly be included—I make this clear to the noble Baroness, who is keen to see the framework document—in the draft framework document when it appears. Perhaps I can repeat those six commitments now because I think it would be worth getting them on the record, even though they are already there.
We want CEOP to retain its operational independence in the context of the NCA; we want it to have clear delegated authority for its budget; we want it to continue to include external partners in its governance; we want it to retain its well-known brand and its mixed economy of staff from a variety of disciplines; we want it to continue its innovative partnerships with the public, private and third sectors; and we want it to have the ability, as I have made clear to my noble and learned friend, to raise and to hold funds from donors or from others who are being charged for the services that it provides.
Putting those principles into the framework document will place them on a firmer footing because the director and the Home Secretary will be required to have regard to that document. I believe that that highlights our ongoing commitment to child protection and to ensuring that CEOP’s unique contribution continues within the NCA. With those principles there is an explicit commitment that CEOP will retain its operational independence, which has been presaged in the context of the NCA and will be reflected in the internal governance arrangements that will be put in place for the agency and which are currently being developed.
I note that my noble friend Lady Hamwee put some specific questions to the noble Baroness about the detailed drafting of her amendment. As I believe the noble Baroness’s amendment is probing, and that she is seeking assurances from us, it may not be necessary at this stage to give precise responses to those questions. I hope that she will be happy with the assurances that I had given her. I shall make a commitment as a Minister and a personal commitment that having seen what CEOP can do and how effective it can be, as many other noble Lords may have done on visits of one sort or another, we are committed to CEOP and to it continuing to work as it does and as it has done in the past.
Baroness Smith of Basildon: I am grateful to the noble Lord. That is a very helpful and constructive answer. I think I have now convinced him that it would have been better to have the framework document before the House began to consider the Bill, as I may not have had to raise this issue at all.
On the issue of retaining operational independence, I ask the Minister to look further, because what he has said so far about putting this in the framework document largely addresses the issues. However, operational independence is about maintaining the specialist staff of CEOP within the CEOP command. Could the Minister explore whether that is the case when he looks at the framework document? Operational independence can mean different things to different people, but I am broadly content with what he had to say. I look forward to the framework document and beg leave to withdraw the amendment.
“the liability of the NCA for the conduct of NCA officers”,
Amendment 46C is an amendment to paragraph 4, which is headed: “Application of discrimination legislation to secondees: Northern Ireland”. It is a rather similar amendment to add “including” before the list of the provisions in respect of which an NCA secondee is to be treated as being employed by the NCA. Again, the amendment seeks to understand whether what is listed is exclusive of other provisions. It occurred to me only after tabling the amendment that there might be something specific about Northern Ireland legislation that is required to be set out. I beg to move.
Lord Henley: My Lords, first, I apologise to my noble friend. I think I have the gist of what she was saying about Amendment 46B, but I have to confess that there was a brief conversation between me and my noble friend the Chief Whip, which meant that I might have missed some of the points she made. I hope that I still grasped what she was saying and that the response I am able to give her will be sufficient. If not, I will have to write to her.
On Amendment 46B, as an employer, the National Crime Agency can be held to account for any unlawful conduct by its employees during the course of their employment. That does not therefore need to be set out in the Bill. The NCA will be liable for its specials actions in the same way that it would be liable for the actions of any other NCA officer. Given that the NCA will not operate in isolation and will be tasking and co-ordinating wider law enforcement, having clear lines of accountability for the NCA and its partners is important.
Paragraph 2 of Schedule 4 provides important clarity as to exactly when the NCA will be held to account for the unlawful conduct of a person who is not employed by the agency but is carrying out NCA-related activities. Unless my noble friend wants to come back to me after I sit down, I hope that that deals with her particular points.
I will say a word about Amendment 46C because we want to take that away and have another look at it. National Crime Agency officers will benefit from protection against discrimination in the UK. It is intended that secondees to the NCA will benefit from the same protections. Having looked at that and having looked at my noble friend’s amendment, further consideration is required to ensure that particularly secondees, including police constables, are properly covered by the relevant legislation. I want to come back to my noble friend on that in due course. If there are any other queries, I will write to her in due course.
Baroness Hamwee: My Lords, I think that the penny has just dropped on paragraph 2, so I thank the Minister for that. On Amendment 46C, I am beginning to feel that I am beginning to do myself out of a job. This is the third time the Government have said that they will look at something again. I spoke on one for less than two minutes, on another for less than one minute, and on this one the Minister did not quite hear what I had to say.
This is another set of probing amendments, as I am sure the noble Lord has understood. It follows on from earlier amendments when we talked about a National Crime Agency board. It is about making sure that the Secretary of State has a strategic rather than an operational role. I hope that noble Lords will bear with me as I switch pages.
I am slightly puzzled by this group of clauses. It seems convoluted for the advisory panel to make recommendations to the Secretary of State about the operational powers that the director-general shall have and then the Secretary of State must give effect to those recommendations. It would make more sense for the board responsible for the director-general to make such proposals. But I find myself completely puzzled because the Secretary of State is responsible for operational powers designation, which is in Part 2 of Schedule 5 and in Clause 9.
“whenever there is an appointment of a Director General”,
“when the Secretary of State considers that it is appropriate to do so”.
So it seems that they can appoint an advisory panel at any time. That also implies that it is not a permanent body. Surely such a panel, set up to advise a Secretary of State on the operational powers of a director-general, would want to gain expertise and knowledge, but according to how the schedule is worded, a new panel would be appointed each time a director-general was going to be appointed. That means it would be an ad hoc panel, which seems rather strange.
Paragraph 5 of Schedule 5, which is headed “No advisory panel”, says that a Secretary of State can designate operational powers without any recommendation from an advisory panel. So there is a lack of clarity about Schedule 5 and the role of an advisory panel, and what operational powers the director-general should have. Sub-paragraph (5) of paragraph 4 of Schedule 5 says
that the panel is responsible for what operational powers the director-general should have. It says that the panel’s chair must,
“consider the information given by the expert members … decide the question of the adequacy of the Director General’s training, and … produce a report containing recommendations as to the operational powers which the Director General should have”.
I am confused. I appreciate that any director-general brings different experience and expertise, but surely in setting up the position of director-general of the National Crime Agency, the Government know what operational powers that director-general should have. I would have thought that that would be in the framework document, because surely the operational powers of a director-general are not going to change from one director-general to another. I do not understand why there would be a report from the advisory panel’s chair containing recommendations as to the operational powers the director-general should have, or why the Secretary of State must appoint an advisory panel to advise on those operational powers while another paragraph says that the Secretary of State can give the operational powers to the director-general without an advisory panel. That seems rather confusing and contradictory.
This confusion is not helped by not having a framework document, which might have clarified it. There are a number of issues that require clarification. What is the role of the advisory body? If it is only to advise the Secretary of State on the operational powers of the director-general, why is it not a permanent body and why is there a paragraph saying that the Secretary of State can appoint operational powers without an advisory body? Is it a standing body or an ad hoc body? If it is an ad hoc body, how do the members of that body build up expertise that enables them to know what recommendations they should make as to the operational powers? Why would an ad hoc or a permanent body report on operational powers for the director-general? Surely there should be a job description for such a position.
Even with the inadequacies of this Bill—with so little information and clauses not ready, for example—I would have thought that the Government would have a very clear idea about the job description. They have appointed the director-general, for heaven’s sake, they must know what operational powers they expect that person to have. The advisory panel has not been appointed yet in order to recommend to the Secretary of State what those operational powers should be, so how has somebody been appointed in the first place? Surely there should be a job description in the framework document.
Under what circumstances would the Secretary of State not take advice from the advisory panel, or not appoint an advisory panel to give her advice on what the operational powers should be? I find this whole issue of flexible operational powers for a job as important as a director-general of the National Crime Agency completely bemusing. That should be set in stone; the Government should have a clear idea of what they expect them to do, and I had thought that the only reason we did not have the framework document was because the Government had not crossed the t’s and dotted the i’s. If, as it appears, the Government do not yet know what the operational responsibilities of the
director-general should be, then I think we are in a bit of a pickle. I hope that the noble Lord will be able to give me some assurance, but this is something that we may have to return to, because I just do not understand the reasons for that part of Schedule 5.
Lord Henley: My Lords, Part 2 of Schedule 5 relates to the director-general and designation under Section 9. The first four amendments in this group relate to the NCA board, which I think we dealt with earlier. What I really want to address on this occasion is the principal amendment, Amendment 51, which proposes leaving out paragraph 5 of Schedule 5 on page 54, on the question of there being no advisory panel.
As I think I made clear earlier, the director-general is an operational crime-fighter appointed by and directly accountable to the Home Secretary. A bespoke designation process is required to ensure that he holds the operational police, customs and immigration powers that he needs. The designation process for the director-general provides a clear and independent mechanism for providing him with operational powers. The advisory panel will be a small, focused body of experts established for a specific purpose and then dissolved.
I appreciate that the noble Baroness’s amendment is probing and that she might want to come back to it in due course. The amendment would remove paragraph 5 from Schedule 5. In other words, it would remove the ability of the Home Secretary to set out in regulations the circumstances in which the advisory panel would not need to be convened for the purpose of designating the director-general with operational powers.
The ability to make regulations does not contradict or undermine the important role of the advisory panel. It is simply a recognition that a newly appointed director-general may already have the necessary training to enable him or her to exercise those operational powers. In the absence of that regulation-making power, it would still be necessary to go through the process of appointing an advisory panel—to no good end, if he or she had all the necessary training. That does not sound like an efficient or effective process to me. I would even go so far as to suggest that the removal of the regulation-making power risks turning a clear, independent and streamlined process into a cumbersome and rather bureaucratic one that is not fitting of the type of responsive crime-fighting agency that we are trying to create.
I recognise that this is a significant regulation-making power to the extent that it would disapply the advisory panel process, and that is why we have made the regulations subject to the affirmative resolution procedure. It is right that the circumstances under which the advisory panel would not be required are subject to an appropriate level of scrutiny by both Houses, and we have already provided for that. I hope that that explains matters. Obviously, I want to get this right and, if necessary, I will write to the noble Baroness if she has any further questions on it, but I hope that that deals with Amendment 51.
As I said, I do not think that I particularly need to address Amendments 47 to 50, which relate to the noble Baroness’s board. We discussed that earlier. I think it is a matter that she wishes to come back to, but I do not think it is appropriate to discuss it now.
Lord Mackay of Clashfern: I wonder if my noble friend can help me. I am trying to follow what he is saying about this. Is this advisory panel to be charged with advising in connection with the first arrangements for the new principal officer? And once that is done, has the panel finished, leaving the Secretary of State to do it himself? Is that the idea, or is the advisory panel to continue and be consulted only when the Secretary of State feels that he requires some extra independent and expert advice since he does not feel able to completely decide for himself?
Lord Henley: My Lords, if I can assist my noble and learned friend, the point we were trying to get over is that the actual designation of the director-general is a matter for my right honourable friend the Home Secretary. She will make an assessment of the director-general’s suitability and capability to exercise the operational powers in any given case. It might be that the advisory panel, through its chair, could then assess whether the director-general was adequately trained to exercise those operational powers and if, as experts—as we hope they would be—they were satisfied that the director-general met the requirements for exercising his designated duties. But it might be that the Home Secretary was satisfied about the director-general’s suitability and capability to exercise those powers, in which case there would be no need for the board.
Baroness Smith of Basildon: I appreciate that the noble Lord was trying to be helpful but I am now more puzzled than ever. He has spoken to the confines of my final Amendment 51 and yet the reason for putting forward all these amendments is a broader issue. If it helps the noble and learned Lord, Lord Mackay of Clashfern, the advisory panel would be set up whenever there was to be an appointment of a director-general. That is where this clause is so confusing. The panel’s chair decides the question of the adequacy of the director-general’s training. I can fully appreciate that a new director-general might not have the expertise in all the areas dealt with by the National Crime Agency. I do not have an issue with that part. It then says:
“produce a report containing recommendations as to the operational powers which the Director General should have”.
That implies that the operational powers change depending on who the director-general is. Surely what we expect the director-general of the National Crime Agency to do should be set in stone. You cannot keep changing the operational powers of somebody in this kind of role depending on who applies for the job. There have to be certain criteria for key operational powers that have to be undertaken. I do not understand that part of the clause at all.
On the issue of there being an advisory panel, the reason for taking out paragraph 5 in Part 2 of Schedule 5 is that if paragraph 4 says that the Secretary of State must appoint an advisory panel, clearly there is good reason for doing so. Given that the panel reports on the adequacy of training and the operational powers, why would we then have a paragraph which says that the Secretary of State does not need that? I cannot understand under what circumstances a Secretary of State or an advisory panel would say that a particular
director-general would not have full operational powers or that this one will not have the operational powers undertaken by a previous director-general. If we are saying that the operational powers of a director-general are flexible, we are talking about a very different kind of organisation. My understanding was that the framework document would set out exactly what the National Crime Agency would do, what was expected of it and how it would be run. Now we find we have a degree of flexibility in what the agency does because of a panel of experts advising the Secretary of State on what the director-general does.
The noble Lord is looking through his folder, as I have done on occasion. If he is fully honest with me, I suspect he is thinking, “Give me a note quickly. I seek inspiration”. It may be that inspiration on this one does not come to him quite quickly enough this evening, but I think this is a matter we want to pursue. It is a bit odd because the Government have already appointed the first director-general without the advisory panel so presumably they know what operational powers that director-general will have. However, I find this situation completely unsatisfactory as it stands.
Lord Henley: The noble Baroness is an old hand, as I am. She is a very young old hand but she is long in experience. She need not blush. She has stood at the Dispatch Box in Government on many occasions and she knows the process. This is a wonderful process that we go through with these Bills, as a result of which we hope to make them better. She is quite right to point out in paragraph 4 of Schedule 5 what she thinks is an odd process. This is obviously something that I must reflect on. That is why we go through this process. I will be more than happy to do so and I will write to her. Again, it is one of the joys of the process that we are going through that there is a considerable amount of time between now and Report. We want to get this right. I am not going to try and bluff my way through as I have done on many occasions in the past, and as I am sure the noble Baroness has done. She has caused me some problems with paragraphs 4 and 5 of Schedule 5. All I can say is, I want to get this right and I will try to make sure that she gets a proper answer or that we make the appropriate changes.
Baroness Smith of Basildon: I am grateful to the noble Lord. This is not the first time he has been this helpful. He was similarly helpful just last week. The fact that he is going to reflect on this and come back to me and to the House is very useful. On that basis I am happy to withdraw my amendment.
“( ) to carry out functions in relation to the National Crime Agency which correspond to those conferred on the Commission in relation to police forces by paragraph (2) of this subsection”.”
Lord Rosser: My Lords, these amendments deal with the inspections and inspection scrutiny arrangements for the National Crime Agency. Currently the Bill requires the inspection of the National Crime Agency by HMIC but gives the Secretary of State the discretion to decide whether it should also be subject to scrutiny by the Independent Police Complaints Commission. Amendments 57 and 58 change the word “may” to “must” so as to ensure that the actions of the director-general and all other National Crime Agency officers may be subject to the scrutiny of the IPCC. Amendment 56 adds the National Crime Agency oversight into the general functions of the IPCC.
It is not at the moment clear why the Government have chosen not to give the IPCC automatic scrutiny functions over the actions of National Crime Agency officers, especially considering the fact that the National Crime Agency will be performing many more functions than its predecessor and also because both SOCA and the MPA officers were subject to IPCC scrutiny. Presumably by leaving the decision up to the Secretary of State’s discretion, the Government envisage circumstances in which they do not believe it would be either appropriate or alternatively necessary for the behaviour of NCA officers to be subject to independent scrutiny by the IPCC. If that is the situation, it would be helpful when the Minister responds if he could give an indication as to what those circumstances are and what change the Government believe would be required for the Secretary of State to accept that regulations should be made conferring functions on the IPCC in relation to the exercise of functions by the director-general and other National Crime Agency officers. Alternatively, if the Secretary of State is to decide that the IPCC should not have responsibility for the scrutiny of National Crime Agency officers, then who will? I beg to move.
Baroness Hamwee: My Lords, my noble friend Lady Doocey and I have Amendment 58A in this group. I shall leave it to her to speak to the substance of the regulations referred to. The amendment would simply make the regulations to be introduced under new Section 26C of the Police Reform Act 2002 subject to affirmative resolution.
Baroness Doocey: My Lords, my concern is about the type of investigation that the Independent Police Complaints Commission might carry out in relation to the National Crime Agency. The Government want the NCA to be,
“a transparent and accountable organization open to the public it protects”.
I am concerned particularly about how the IPCC might carry out its functions. The Bill gives the IPCC the power to undertake investigations into complaints about misconduct, serious injury, death or other matters at the discretion of the Secretary of State, the object being to give the IPCC oversight of the NCA in broadly the same way as it oversees the police. However, as the noble Lord, Lord Rosser, said, the NCA will have considerable powers—far greater than any police force—so it requires much more rigorous scrutiny on the part of the IPCC.
The situation now is that, if a complaint or allegation is made to the IPCC, it makes a decision as to what it will do to investigate it. It has four choices. The highest level of investigation is an independent investigation, carried out by IPCC investigators and overseen by an IPCC commissioner. The second level is a managed investigation, carried out by a police force’s professional standards department but under the direction of the IPCC. The third level is a supervised investigation, also carried out by a police professional standards department but under its own direction and control. The IPCC merely sets the terms of reference and receives the investigation report when it is complete. The lowest level is a local investigation which is carried out entirely by police.
Despite there being four different options open to the IPCC, the evidence shows that in the vast majority of cases it opts for a supervised investigation, which in practice means that it leaves the police to investigate themselves. This policy is at best questionable when applied to police forces, but is completely unacceptable when applied to the NCA, given the enormous powers that that body will have. It is essential that all investigations into the NCA are independent, carried out by the IPCC and overseen by an IPCC commissioner.
Everyone accepts that the NCA will be handling sensitive and confidential information, but that just increases the need for independent scrutiny. I would welcome an assurance from the Minister that serious complaints and allegations of misconduct in the NCA will be independently investigated so that the public can have full confidence in the processes and procedures.
friends behind me—I start with the good news. Amendment 57 would alter what is currently a power to make the relevant regulations to a duty to do so. We have every intention of exercising this power for the simple reason that it is only through that mechanism that we can confer the necessary functions on the IPCC. That being the case, the Government would be very happy to accept the noble Lord’s Amendment 57. That is the good news; the Government have agreed to change “may” to “must”. In the past when I have sat where the noble Lord is, I have frequently put forward amendments changing “may” to “must”, because it always provides the Government with an opportunity to explain what they are doing, and sometimes, just occasionally, one gets concessions. The same goes for those amendments that we have all put down demanding that negative resolution be shifted to affirmative. I have given the noble Lord his Amendment 57.
I cannot be quite so accommodating with Amendment 58, which appears to be similar. It states that the regulations made under new Section 26C of the Police Reform Act 2002 “must” apply the provisions of Part 2 of that Act, subject to any necessary modifications, and make provision for the agency to contribute to the costs of the IPCC. On this occasion, it is important to retain flexibility as to the content of the regulations, including, for example, the funding arrangements for meeting the costs of the IPCC’s work in relation to the NCA.
Amendment 56 is unnecessary. Paragraph 9 of Schedule 6 makes the necessary amendment to Section 10(1)(g) of the Police Reform Act 2002—of blessed memory. That amendment, together with the regulations to be made under new Section 26C, will ensure that the IPCC has the same functions in relation to the NCA, with appropriate modifications, as in relation to police forces. For that reason, Amendment 56 is unnecessary.
Amendment 58A was spoken to by my noble friends Lady Hamwee and Lady Doocey. My noble friend Lady Hamwee indicated that her intention was for the power to make the regulations to be subject to the affirmative resolution procedure. In fact, the effect of the amendment would be that regulations could be made without being subject to any parliamentary procedure. That is a drafting point and I shall not dwell on it, but if my noble friend wanted to move to an affirmative procedure, it would have to be addressed in due course. We decided on the negative procedure. My understanding is that that was deemed appropriate by the Delegated Powers Committee.
My noble friend Lady Doocey wanted to ensure that all complaints against NCA officers could be independently investigated, which is the substantive part of her amendment. The form of investigation conducted by the IPCC will be a matter for regulations. Our starting point will be that the arrangements for the agency should be consistent with the arrangements for dealing with complaints against police forces; that is, the regulations will set out which complaints should be referred to the IPCC for a mode of investigation. Where complaints are serious but do not have to be referred, complainants will still have a right of appeal to the IPCC. Where the complaint is less serious, we think that it is appropriate that the appeal is handled
within the National Crime Agency. This is the more proportionate response and will ensure that the IPCC’s resources are used to deal with more serious complaints.
There were four amendments in this group, including three from the noble Lords opposite. I hope they will feel at least reasonably content that they have got one out of their three. Perhaps the noble Lord does not, but I can assure him from my experience that one out of three is pretty good. With that, he might want to withdraw his first amendment, accept the second and in due course not move the third.
Lord Rosser: My Lords, it is in something of a state of shock that I stand here. I thank the Minister for his response and for accepting Amendment 57. He has set out his reasons for not thinking that Amendment 58 is appropriate and, as I understand it, has effectively said that Amendment 56 is actually addressed to other parts of the Bill and the 2002 Act. In the light of the Minister’s response, I take it that I am meant to agree the withdrawal of Amendments 56 and 58 and that Amendment 57 has been accepted.
Baroness Hamwee: My Lords, I beg to move Amendment 58B. Paragraph 5 of Schedule 6 deals with the disclosure of information, and regulations that may cover disclosure. We are told at sub-paragraph (6) that:
“any disclosure, in contravention of any provisions of the Data Protection Act”,
“prohibited by Part 1 of the Regulation of Investigatory Powers Act”,
is not authorised. I hope, and expect to be told by the Minister, that that is what Schedule 6 provides because of the way that it is drafted. However, that was not obvious to me when I read it, and therefore it seemed quite important to clarify the point.
Earl Attlee: My Lords, although I recognise the absolute importance of safeguarding the disclosure of sensitive personal information, I believe that Amendment 58B is unnecessary. The kinds of information that will be required for the purpose of an inspection will be limited in nature to those required for exercising an inspection function. The disclosure of information to a policing inspectorate, and any onward disclosure, will be subject to the safeguards in Schedule 7.
Schedule 6 contains a back-stop power that enables the Home Secretary, by regulations, to make further provision about the disclosure of information by the NCA to policing inspectorates. Although this includes a power to modify Schedule 7, should this be necessary to enable the proper, independent inspection of the NCA, it is not intended to use this power to override important existing statutory safeguards relating to sensitive personal data.
Furthermore, let me reassure my noble friend, it is not paragraph 1 of Schedule 7 that applies the extensive safeguards set out in the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, but those Acts themselves. This paragraph simply puts that beyond doubt. I will be clear that should any regulations be made governing the disclosure of information from the NCA to policing inspectorates and their onward disclosure of such information, those regulations cannot override these safeguards by modifying paragraph 1 of Schedule 7.
I hope that in the light of this explanation, my noble friend is satisfied that there will be adequate arrangements in place to independently inspect the agency that respect important data protection safeguards. I accordingly invite her to withdraw her amendments.
Baroness Hamwee: My Lords, I think I had better read that following today’s debate, because the noble Earl seemed to be saying that those two Acts could be not be overridden; but he started his explanation by saying that it was not intended to use the provision in Schedule 6 to override them. I do not quite understand how those two statements fit together. If they cannot be overridden, the Secretary of State could not intend to override them. However, that was not, as I heard it, the implication of the introduction when he said that it was not intended to use them in that way. Of course, I withdraw the amendment, but will also read what has been said and make sure that I am entirely comfortable with it.
(a) the inclusion of the information in an annual plan, framework document or annual report, or
(b) the publication of the information in accordance with arrangements made under section 6.
(3) In this paragraph “relevant restriction” means any provision of this Part of this Act (however expressed) which prohibits or otherwise restricts the further disclosure of information disclosed by an NCA officer (including a provision which limits the purposes for which such information may be further disclosed or which requires a person’s consent to be obtained before the further disclosure).”
That this House takes note of European Union Document No 5833/12 and Addenda 1 and 2, relating to a draft directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data; and takes note of the Government’s recommendation not to exercise their right to opt out of this draft directive under Protocol 19 of the Treaty on the Functioning of the European Union (The Schengen Protocol).
The Minister of State, Ministry of Justice (Lord McNally): My Lords, the noble Lord, Lord Pearson of Rannoch, who I am glad to see in his place, has put down an amendment that will, I suspect, structure our debate. The noble Lord’s amendment is in two parts. First, he did not want us to exercise our right to opt in to this regulation and secondly, he regrets that this House had no opportunity to debate that decision before the deadline on it of 14 May.
“I apologise to the Committee that the Government did not draw the Committee’s attention to the opt-out sooner. The issue of whether the Directive should be considered as triggering the possibility of a Schengen opt-out or not is a complicated one and I do recognise that the Government reached its conclusion on this matter later than was ideal … I would like to reassure the Committee that lessons have been learned by the Ministry of Justice in relation to the important issue of informing the Parliamentary Scrutiny Committees of opt-in or opt-out decisions and I thank you for your patience and understanding on this occasion”.
“We are grateful for your letter and will look forward to considering the Directive further in the debate which is scheduled to take place in the House on 20 June 2012. We will continue to hold this proposal under scrutiny and will look forward to receiving updates on the progress made in negotiations in due course”.
I hope that that apology to the committee, and now to the House, will be sufficient to deal with the quite legitimate complaint of the noble Lord, Lord Pearson, on this matter. As I said, it was partly because of the timing of Prorogation and the difficulty of deciding the technical issues, but we have learnt lessons and I sincerely hope that it will not happen again.
The debate also gives an opportunity to debate the proposed data protection directive, which the European Commission published on 25 January. That directive will cover the handling of personal data by public authorities for police and criminal justice purposes. It is therefore an important instrument that affects security as well as freedom and it is right that the House is given the opportunity to consider the proposals.
Negotiations on this instrument are at an early stage, so this debate is timely as there is still much to be discussed in the Council of the European Union and in the European Parliament during the months and possibly years ahead. I understand that the European Commission is looking to conclude negotiations on this directive during the Irish presidency of the Council of the European Union in the first half of 2013. However, it remains to be seen how realistic that timescale is. That puts into context the fact that we missed this one issue. It is not that the House will not have time and opportunity to return to these measures during the next months, and perhaps even years.
In the case of the proposed data protection directive, it is the view of the Government that this directive can be classified as a Schengen-building measure and therefore, under Protocol 19 of the Treaty on the Functioning of the European Union, the UK had the option of opting out of the directive. The deadline for notifying the
Council of the European Union of that decision to use the opt-out was, as I said, 14 May. On this occasion, the Government decided that we would not exercise the opt-out. The decision followed a full debate in another place held on 24 April 2012.
I should say that we had also wanted to hold a debate in this House ahead of the decision on whether to opt out, but were regrettably unable to find time, partly because of Prorogation, and partly because of delays in deciding whether to accept that the directive was Schengen-building. However, the critical issue for discussion is our position on the detail and how we go about engaging with our European partners in ensuring that the directive works in the British national interest. On this, there remains ample opportunity for this House to influence the Government’s strategy.
Let me begin, however, by setting out the background to the directive, and the Government’s approach in considering it. Currently there are two pieces of European legislation governing data protection: first, a 1995 directive that relates to the use of data by businesses, public bodies and other organisations; secondly, what is known as the 2008 framework decision on data protection, which governs use of data by police and criminal justice bodies. The Commission is bringing forward a package of measures that replace the directive with a regulation, and the framework decision with a directive.
The Government’s approach on the regulation is a matter for another day—although broadly speaking we recognise a case for updating the law, but have concerns on the detail. On the directive, we have approached it on the basis of a clear position: that the continued ability to share information on crime and justice matters across borders is of fundamental importance. In an increasingly globalised world, crime does not stop at the port or the airport but happens across jurisdictions or involves people of many different nationalities.
The Government support proportionate, clear and coherent data protection rules that keep personal data safe and protect the rights of citizens. We also support the free transfer of data across borders and between organisations where it is necessary to prevent crime, increase security and help to keep our citizens safe. We believe that appropriate data protection rules and security go hand in hand and are not mutually exclusive. Our first priority in considering the directive has been to protect arrangements that allow information to be shared within the EU for the benefit of the public and the protection of their safety and freedom.
The challenge with this measure is that, although parts of it are welcome and will help in the fight against crime, some of its provisions are excessively bureaucratic and unwieldy. As our impact assessment shows, as currently drafted we have concerns about the costs it would impose on UK law enforcement agencies—for example, a requirement to appoint compulsory data protection officers and a bureaucratic requirement on keeping documents and records.
data, the directive has been drafted so as to apply to domestic processing of data. That is, unlamented, it would affect rules on information being shared by police forces within the borders of one country. We think that that is impractical and a matter best left to national governments.
Our approach in thinking about our position on the directive has been to work out what is the best way of securing the benefits of continued data-sharing while minimising the costs of a measure that, in some respects, goes further than we are comfortable with. Our judgment has been that, despite our concerns about the current text, the best approach is engagement to ensure that it works for Britain.
There are a few reasons for that. First, the directive is the opening position in what will be a lengthy and ongoing process of negotiation. The UK is far from the only member state to have concerns about the text. We believe we can secure a much better deal by working with our partners rather than by trying to isolate ourselves. Secondly, the legal base of this measure gives the UK an effective exemption on the issue that we have been most concerned about: domestic processing of data.
The directive is based on Article 16 of the Treaty on the Functioning of the European Union, the new data protection provision included in that treaty by the Lisbon treaty. Under Article 6a of the UK and Ireland’s protocol applying to justice and home affairs—Protocol 21—the UK has what we believe to be firm protection ensuring that the provisions of the proposed directive on internal processing will not apply to us.
Despite the fact that we have that exemption, the Government are none the less keen to try to defend the point of principle and ensure that the directive does not apply to domestic processing for any of the member states, as we consider that there is no justification for extending EU regulation to this area. We will be supporting other member states in pressing this in negotiations.
Before 14 May, it was of course open to us to exercise the opt-out on the directive and I had better say a word about why we decided not to do so. Our judgment was that opting out would be a very bad idea because it would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive. The reason for that was that even if we did opt out, other member states would have continued to be bound by the terms of the new directive, which would have been negotiated in our absence. The status of existing rules governing the sharing of data would have been thrown into disarray, with a high probability that the UK would have had to negotiate new bilateral arrangements with each of the member states.
Other member states would not have wanted to share data with a country that they consider might not protect it to the same extent as the regime they operated. Rather, they would have pressed the UK to adopt similar requirements to the directive so that they would be able to operate within the same regime. All told then, opting out would not have stopped us being subject to the obligations of the directive. More likely,
it would have meant being bound, albeit indirectly, by a measure that we would not have participated in negotiating and shaping. Furthermore, an opt-out would have reduced our ability to negotiate essential data-sharing agreements, such as the passenger name records directive and the EU-third country agreements, and thrown into doubt other, broad Schengen measures. This would be a serious problem for our law enforcement agencies, which benefit from the sharing of criminal data under Schengen.
All told, we have judged that the national interest is best served by participating in this directive so that we are party to the framework governing data-sharing for policing and criminal justice across the EU. The priority now is to build trust across member states for the necessary sharing of data to protect our citizens and make the strongest case possible for this to be done within a framework of appropriate and proportionate rules. Let me be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom and to take steps that imperil those agreements would put us all at risk.
We want to see a system that allows police and criminal authorities to continue to protect and serve the public effectively, and which also allows individuals to be confident that their privacy, safety and freedom will be safeguarded. The Government believe that these two objectives are not contradictory but can be achieved in tandem by creating a data protection framework founded on the principles of necessity and proportionality. We would, naturally, already expect robust data protection governance as a matter of course in public authorities. However, we would question the necessity of having the European Union telling us how to create, organise and run these arrangements. The more prescriptive and burdensome aspects of the directive are opposed by the Government and we will seek to remove or mitigate them during the negotiations in the Council of the European Union.
I repeat: this is the beginning of a lengthy process of negotiating. The UK will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objective, which is to end up with an effective but proportionate framework. We expect that other member states will share the same outlook. We believe that an opt-out decision was a possibility for the Government but would have been the wrong choice. It is not possible to have data-sharing without data protection. We want to be part of a European data protection framework that protects both security and freedoms and we believe that the limited application of the directive means that we should be content to be part of it. While there are areas of the proposal that the Government will seek to alter so that they provide an appropriate level of flexibility for law enforcement bodies, we are clear that UK participation in this data protection directive is in the UK’s best national interests. I beg to move.
Lord Pearson of Rannoch: My Lords, I am grateful to the noble Lord, Lord McNally, for his apology to the Select Committee and to the House for the way that this draft directive has been handled but it might
still be helpful if I put on the record the story so far. I trust it will be in order if I start by addressing the second or procedural part of my Motion and then deal with the draft directive itself and the question of our opt-outs.
Noble Lords will be aware that, under the European treaties, the British Government have a block opt-out in the field of justice and home affairs. Until the end of May 2014, the Government can opt out of all EU legislation affecting police and judicial co-operation in criminal matters. They have to opt out of all of it but would then be free to opt back in to any individual directives, et cetera, by which they wished us to be bound. However, if in the mean time they had agreed to amend any of them or had said that they will not opt out, they lose their right to opt out in those cases and will have opted in to them.
Lord Spicer: I am most grateful to the noble Lord for giving way. I wish that I could call him my noble friend because he is a close friend. I wish that he was still in the Conservative Party and hope that he comes back soon. Is he aware that, to my recollection at least, three Prime Ministers in the past 10 years have given a firm assurance that we would not tangle with corpus juris, which is one way of defining the European criminal legal system? As I am sure he is going on to say, is the true context in which this matter should be discussed not on a narrow issue of data protection?
Lord Pearson of Rannoch: My Lords, I agree with my noble friend, if I may refer to him as such. Of course, corpus juris is just one of the many important examples of how the octopus in Brussels slowly puts its tentacles around our sovereignty and democracy. I remember it first being raised at an academic conference, I think in Spain, in about 1990 and someone who was there got very excited about it and said that this corpus juris—the Roman words for the body of Roman law—was going to come into the EU and that we were going to do it. We were of course told by the then Conservative Government that that was complete nonsense and that it was only an academic idea. We went through all the usual stages of the advance of the octopus. Then we were told that it was in fact a sort of proposal but that no one else agreed with it: “Don’t worry, the British Government are going to see this one off”. Then of course we move further on and what we are looking at is certainly an example of the advance towards corpus juris.
The Government have promised that any decisions to opt in to any of this legislation will be debated and subject to a vote in both Houses of Parliament. A deadline for the Government’s opt-out on this draft directive had been set for 14 May this year. As the noble Lord, Lord McNally, mentioned, the House of Commons debated and voted on it on 24 April, with the Minister confirming that the Government were thus fulfilling their promise to Parliament—that we should debate and vote on each of these opt-ins. Yet even in the Commons there was considerable dissatisfaction with the way that the Government handled the matter. The Motion was tabled on the day of the debate, without the Commons EU Select Committee being given an opportunity of scrutiny. The chairman of that committee,
Mr Bill Cash, described it as a “disgrace” and the whole debate is a powerful indictment of the directive and of the Government's behaviour. I recommend the debate to your Lordships.
However, when we come to your Lordships’ House the Government’s behaviour is, alas, even less excusable. The Government were aware of the deadline for their opt-out of 14 May many months ago. Indeed, the Home Secretary wrote on 21 December 2011 to the noble Lord, Lord Roper, who was then the chairman of our EU Select Committee, revealing the 133 measures that were still subject to our opt-out. I will come back to their substance later. I am not aware of what our Select Committee did then but I understand that the noble Lord, Lord Hannay, may be going to enlighten us. The Government failed to table their proposed Motion for debate here until 21 May, a week after the deadline for their opt-out on this measure, so that we were already signed up to the thing by the time we came to debate it—let alone to vote on it. The noble Lord, Lord McNally, mentioned Prorogation, but I remind him that we took a week’s extra holiday before that, and I cannot help feeling that this Motion could have been squeezed in.
Your Lordships might think it worse that the Government tabled their Motion in the Moses Room, where we cannot vote, so they broke their promise to give your Lordships a vote on this directive and pretended that we were not entitled to one by putting the Motion into the Moses Room.
The only thing one can say in favour of the Government’s Motion on 21 May is that it was slightly more honest than the one in front of us this evening. It asked your Lordships to take note of the Government’s decision not to exercise their right to opt out, which at least confirmed that they had already taken the decision not to opt out because the 14 May deadline had passed. Tonight, we are asked to approve the Government’s recommendation that they should not exercise their right to opt out. Will the Minister explain? Are the Government recommending for our approval that they opt in or will he confirm, as I think he has, that we have already opted in? If so, what is the point of the word “recommendation”?
I was so annoyed by the Government’s behaviour that I tabled a Motion of Regret in the Moses Room, on which I said I would vote, so the Government had to move their Motion to your Lordships’ main Chamber, which is why we are here now. I hope that at least I have raised the profile of our 2014 opt-out and the way the Government are handling it. There is widespread suspicion that the Government intend to opt in to the measures in question one by one, preferably when we are not looking too closely, so there will not be much left to opt out of in 2014. If this is wrong, will the noble Lord, Lord McNally, tell us this evening what the Government’s intentions are? It may help if I remind him that I asked him this as an Oral Question on 8 February 2011 at col. 121. He answered with, I have to say, unusual coyness that it was all very difficult and the Government had not made up their mind. Have they done so now? The noble Lord, Lord Henley, indicated at Oral Questions today that the Government are still in a muddle. Can the noble Lord elucidate?
I look forward to his reply because the Written Answer from the noble Lord, Lord Henley, on 28 May, col. WA 102, was less than helpful. I asked what measures were still subject to the UK’s opt-out, which we had already agreed, which the Government did not intend to opt in to and so what would be the position on 1 June 2014. The Minister replied that the list of all measures subject to the 2014 decision had been annexed. I referred earlier to the letter from the Home Secretary to the noble Lord, Lord Roper, on 21 December 2011 that the Minister said he would put in the Library of your Lordships’ House. The Written Answer also gave me a link to the letter and the enclosure. I suppose it is hardly worth mentioning that the letter and enclosure were not put in the Library and that the link did not work. However, the Library was good enough to extract the documents for me from the Home Office on Monday, so they are now in the Library of your Lordships’ House. They reveal that last December there were 133 measures that were subject to our opt-out. I say that the Minister’s Written Answer of 28 May was unhelpful because he concluded:
“Given that the Government cannot say with certainty what proposals the Commission will bring forward, it is not possible to say what the position will be in 2014”.—[Official Report, 28/5/12; col. WA 103.]
The Home Secretary listed all 133 measures as at 21 December last, and it was revealed on 28 May that we have already opted in to eight, including the one before us tonight. Why can the Government not tell us what they are doing about the remaining 102? Surely they must already know their position on them? Or are they telling us that Brussels has a whole lot more up its sleeve that have not yet been revealed, even reluctantly? For instance, the Home Secretary said in her letter of 21 December that the Government are aware that the Commission is planning proposals for next year involving revisions to Europol, CEPOL—the European police college—Eurojust, the framework for co-operation on confiscation of assets and criminal measures to tackle counterfeiting the euro, all of which are on the current list. The noble Lord, Lord Spicer, has a point; we are moving towards corpus juris. Is the Minister aware of any more?
I now move to the substance of the directive which we have already opted in to and related matters. A number of technical objections to it were raised in the Commons, which I will not waste time by repeating now. They include the Ministry of Justice’s impact assessment, which apparently found that the overall impact is likely to be substantially negative. I think the noble Lord, Lord McNally, has already commented that the Government will try to reduce its cost.
The Government’s Motion before us states that the data processing will be conducted by competent authorities. Can the Minister tell us exactly who these competent authorities will be? He will forgive me if I say that I am not aware of any authority in the European Union that is vaguely competent, but I look forward to the answer. The Government’s Motion refers to,
“the protection of the individuals with regard to the … free movement of”,
The noble Lord, Lord McNally, told us of the Government’s present position, but I cannot agree with the decision to opt in to this directive, if only for the fact that this and all our opt-ins remove yet more of the sovereignty of our Parliament and courts to the jurisdiction of the European Commission and the Luxembourg court. The Government’s action should have been obvious. They should already have exercised their block opt-out so they would now be free to opt in to any measures that they felt were useful, subject, of course, to a vote in both Houses. Interestingly, the Prime Minister agreed with this on 4 November 2009 when he said:
“We must be sure that the measures included in the Lisbon treaty will not bring creeping control over our criminal justice system by EU judges. We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it. That will mean limiting the European Court of Justice’s jurisdiction over criminal law”.
I have one other question for the Minister which comes from a debate in the Commons. Mr George Eustice told us that Denmark has opted in to some of these measures, but has managed to do so excluding the jurisdiction of the Luxembourg court. I do not know whether the Government feel like imitating that.
The sad fact is that the Prime Minister’s Government have already opted in to eight of the more significant measures according to their Written Answer on 28 May, as I have mentioned. They include the one before us and directives on the European investigation order, combating sexual abuse, the exploitation of children and child pornography, attacks on information systems and minimum standards for the rights, support and protection of victims of crime.
Whatever noble and Europhile Lords may say about the desirability of these initiatives and the need for action at a European level, those should not outweigh the protection of what is left of our national sovereignty. Where we want to collaborate with foreign Governments, we can do so. We do not need the incompetent and well known judicial activism of Brussels and Luxembourg to take over. Of course, we Eurosceptics know that we would be better off out of the whole thing anyway, but we object strongly to such initiatives as Europol, CEPOL, Eurojust, the European investigation order and, perhaps above all, the European arrest warrant. It is heartening that a growing majority of the British people agree with us.
I have one final question for the Minister. Will he tell us why the directive before us, the seven others that we have already opted into and the 125 that await their turn do not amount to a substantial transfer of sovereignty to the European Union and therefore trigger a referendum? I will be most interested in the noble Lord’s reply. I beg to move.
Lord Wills: My Lords, I find myself in the happy position of agreeing with much of what the two previous speakers said—even with much of what the noble Lord, Lord Pearson, said in the first 10 minutes of his speech. I welcome this debate, whatever its genesis. It shows that the Government are adopting an open approach to what may be a technical measure, and which may excite little attention in the media, despite, I am sure, the best endeavours of the noble Lord, Lord Pearson. Nevertheless, it will have significant consequences for the people of this country. The Commission’s proposals have complex ramifications, as the noble Lord, Lord McNally, has already said. At this point, I want to make only a few general points.
Unusually, I agree with at least the part of the Motion in the name of the noble Lord, Lord Pearson, that deals with process. He is surely right to say that the complex process of deciding whether to opt into or out of this crucial area of public policy must be as transparent as possible. However, the apology of the noble Lord, Lord McNally, was handsome and should conclude this matter. As I remember only too well, these things happen in government and I am sure that the appropriate lessons will have been learnt by the Government in this case.
Turning to the substantive issues, the proposal for the directive alongside the data protection regulation seems to owe more to an administrative prism in Brussels than to common sense, which suggests a single instrument. Requiring the police and other organisations such as local authorities to follow one set of rules for the law enforcement data that they hold and another for all other data is surely a recipe for confusion and breach. Individuals will be unclear about what rights they have and in what circumstances they might apply.
The directive also appears to be weaker than the regulation in certain key aspects for no apparent reason. For example, why does the directive not include provision for privacy impact assessments, as the regulation does? I understand that British police forces already carry them out, so why can this not be included in the directive? However, as the noble Lord, Lord McNally, said at some length, the fact that there is clearly room for improvement in the directive surely cannot mean that the UK should have opted out. On the contrary, as the noble Lord, Lord McNally, has again said—I want only to support what he said—this would only damage British law enforcement. Other European states are going to proceed anyway, whatever we do. If the UK had opted out, that would surely have led to different regimes, and if elements of British data protection were seen to be weaker than the EU regime, it would inhibit data transfers and law enforcement co-operation.
I am not as sanguine as the noble Lord, Lord Pearson, about our ability to negotiate agreement effortlessly with other states on this. A whole succession of bilateral agreements would be complex, protracted and add layers of bureaucracy to law enforcement processes that often, by their very nature, have to be conducted speedily across many borders, as the noble
Lord, Lord McNally, has said. Negotiating such a set of bilateral treaties would surely complicate and damage law enforcement.
Finally, I will briefly take the opportunity to nudge the Minister on another data protection issue—the introduction of the sentencing option of custodial terms for breaches of Section 55 of the Data Protection Act. This has been a long time coming. It was a long time coming under the previous Government and there has still been no real progress. However, surely it is now time to do what the Information Commissioner urged the previous Government and this one to do. This does not depend on the outcome of the Leveson inquiry; its main relevance is to breaches by those other than the media. Fines simply do not deter breaches of Section 55. For example, I understand that the going rate for a Section 55 offence in magistrates’ courts is £130, whereas a claims management company will pay £500 for a lead. Therefore, I hope that, amid all the other questions that he has to deal with in responding to this debate, the Minister might be able to give some words of comfort about the Government’s commitment in this area.
Lord Lester of Herne Hill: My Lords, the Minister has made a handsome apology and I agree with the noble Lord, Lord Wills, that that should be an end to this. My noble friend does not suggest that the process has been well conducted or that it will happen again. It is not helpful for noble Lords to accuse the Government of bad faith or dishonesty, as the noble Lord, Lord Pearson, has. That is unworthy of him and of this debate.
To complete the chronology of what happened, as we know, the Commission published its proposals on 25 January. Very quickly, on 7 February, the Ministry of Justice called for evidence by 6 March. On 14 March, a report was published by the House of Commons European Scrutiny Committee, which analyses this matter in depth on pages 42 to 63. There was then a debate on 24 April, which was referred to by the noble Lord, Lord Pearson. What he did not say is that in the vote on whether to take note, those who agreed with him were defeated by 267 to 24. No one can say that what happened in the other place was in any sense an absence of parliamentary scrutiny. I have had the privilege of serving on the EU Sub-Committee on Justice and Institutions three or four times during my time in this House. I take great pride in the fact that scrutiny is conducted better in our Parliament than in any other throughout the European Union.
I have listened very carefully to the Minister and read—as has the noble Lord, Lord Pearson, apparently—the Government’s explanation in the other place of why they took the course that they did. In his speech, the noble Lord, Lord Pearson, did not reply at all to any of the arguments that were put forward in the other place and here on the Government’s course of conduct. In the other place, the Minister, Mr Blunt, said that there were three main reasons for deciding not to opt out. The first was that,
“the directive is at a very early stage of negotiation”.
“the legal base of the measure gives the UK an effective exemption on the issue about which we are most concerned: internal processing of data”.
“Thirdly, and most important, exercising the opt-out would endanger our continued ability to share information across borders without necessarily freeing us from the bureaucratic and unwelcome obligations potentially created by the new directive”.
“could be significantly undermined”.—[
, Commons, 24/4/12; cols. 886-87.]
“Let us be clear about what is at stake here. Rules enabling the sharing of data have made a tangible difference to the United Kingdom, and we take steps that imperil them at our risk and at risk to our citizens. Let me give an example, which concerned a 32-year-old Romanian national who was arrested in the United Kingdom on suspicion of raping two women within the Metropolitan area. A request for conviction data identified that the suspect had a previous conviction for rape in Romania. Just prior to the trial, the individual disputed the Romanian conviction, but through close liaison with the central authority and the police liaison officer at the Romanian embassy in London, a set of fingerprints relating to the Romanian rape conviction was obtained and proved the conviction beyond doubt when they matched against the suspect.
An application to use the previous conviction as bad character evidence was made by the prosecuting counsel and was granted by the judge, allowing the Romanian rape conviction to be put before the jury. The defendant was convicted of four counts of rape and other offences … in July 2010. The defendant was given an indeterminate prison sentence, with a recommendation that he serve at least 11 years in jail”.—[Official Report, Commons, 24/4/12; col. 888.]
What the Minister explained in the other place was that the information was obtained exactly under the regime which the noble Lord, Lord Pearson of Rannoch, regards as an encroachment on our criminal law and our domestic legal system. To the contrary, the ability across frontiers to share data of this kind is entirely in the interests of protecting our citizens against crime and their public safety.
Lord Pearson of Rannoch: The noble Lord of course is right that I think what he has just said. But far superior to that is the continuing cession of our sovereignty and the supremacy of our courts to the European courts and the Commission. That is the overriding objection that I have. I have read the debate in the Commons and I cannot believe that the Romanian could not have been convicted under similar arrangements without the continuing cession of our sovereignty.
Lord Lester of Herne Hill: I do not think that your Lordships would need a full debate on the value of the two European courts in protecting the rights and freedoms of our citizens. But, as I was about to say, the other rights and interests at stake are those of personal privacy, freedom of expression, protecting the security of the state, protecting us against crime
and, in one aspect of what we have before us, ethnic profiling data-taking being prohibitive but with a necessary exception for equality where it becomes necessary in the interests of equality to do so. All those rights and freedoms, which are also part of our domestic law, are protected not only by our own courts but by both European courts. If a European bureaucracy or a European piece of legislation violates our basic rights and freedoms, the Luxembourg Court and the Strasbourg Court have the capacity, and they exercise it, to protect us against the abuse of power by European institutions. That is why the dislike of the noble Lord, Lord Pearson, of supranational or European jurisdictions is entirely misconceived. We need cross-border legislation and measures but we also need safeguards, which we get from those two European courts.
Lord Pearson of Rannoch: Will the noble Lord tell us whether these protections which we enjoy from the European Union apply to British subjects extradited under the European arrest warrant? Is he happy with the way in which that initiative has developed?
Lord Lester of Herne Hill: The Joint Committee on Human Rights on which I serve has expressed some concerns, as has one of our members, Dominic Raab QC MP. I share some of those concerns but I do not think that this is an occasion for us to debate whether we think all European measures might be improved.
Lord Hannay of Chiswick: My Lords, I am participating in this debate in my capacity as chair of the European Union Committee’s Sub-Committee on Home Affairs, Health and Education, which has scrutinised the measure now before your Lordships. As to the substance covered by the draft EU directive in question, the committee supports the Government’s decision not to opt out for reasons with which I will not weary the House because the noble Lord, Lord Lester of Herne Hill, has just most eloquently described them.
The directive covers the processing of personal data for the purposes of police and judicial co-operation in criminal matters and forms part of a package, together with a data protection regulation covering the general and commercial processing of personal data by public and private bodies. The directive is intended to replace the 2008 framework decision, which was adopted under the old third pillar procedures established under the Maastricht treaty before these were superseded by the treaty of Lisbon. In plain language, that is to say that the UK had agreed to that earlier decision, which required unanimity to agree to it in order to be adopted, and is covered by it whether or not we opt out of the new directive.
When adopted, the new directive will apply significantly stricter rules on data protection, which we welcomed in my committee, in contrast to the relatively weak provisions in the framework decision. There is, of course, a down-side risk about which the Minister
spoke. This enhanced protection could place an additional burden on businesses and public authorities. Therefore, like the Government we attach importance to an appropriate balance being struck in this matter. With that in mind, we would urge the Government to focus on, and to play an active role in, achieving that balance during the negotiations which are now to take place.
We have noted that in addition to this package a variety of different EU measures remain in force under Title V of the treaty, which contain distinct and separate data protection provisions. Perhaps the noble Lord would agree that to enact the directive in its current form, which would not bring these existing measures within its scope, would be to miss an opportunity of achieving a more coherent, overall approach. Perhaps he could say a word about that. That sort of opportunity might not recur for many years. It would be interesting to know whether the Government will be addressing this matter in the negotiations.
The directive is currently in the form proposed by the Commission and is likely to be the subject of prolonged negotiations in the Council, which was confirmed by the noble Lord in his introductory remarks. Those negotiations are already under way. We endorse the Government’s view that the best way for the UK to shape and improve the directive is by playing a full part in the negotiations, which the decision not to opt out allows us to do. The committee I chair is keeping the directive under scrutiny and we expect to receive updates of the negotiations from the Government in due course. When appropriate, we will intervene with our views on those updates.
Having addressed the substance of the directive, I would now like to turn to the procedural concerns that have been raised regarding the handling of the directive by the Government in this House. I agree with the noble Lord, Lord Pearson, about the handling and welcome what the noble Lord, Lord McNally, said about it himself. It has not been ideal, as the Minister frankly conceded in his letter of 28 May to the chair of the EU Select Committee in response to our warning that the Ashton and Lidington undertakings were not in this case being properly implemented. It is a bit more serious than the noble Lord, Lord McNally, suggested in his opening remarks, because it was an absolutely integral part of the votes in this House to ratify the Lisbon treaty, so it is a fairly important point. But I welcome the fact that the Minister has recognised that mistakes were made on this occasion.
The Motion refers to the Schengen protocol, the effect of which is that the UK is deemed to be participating in any measures which build on those parts of the Schengen acquis in which it already takes part unless, within three months of the measure’s publication, it notifies the Council that it wishes to opt out. If it does not do so then, it becomes automatically bound by the measure, if adopted, and will participate in its negotiations.
During debates in this House on the ratification on the Lisbon treaty, the noble Baroness, Lady Ashton of Upholland, gave an undertaking to take the views of this House into account on reaching a final decision on whether the United Kingdom should opt in to justice and home affairs measures. On behalf of the
coalition Government, David Lidington, the Minister for Europe, reaffirmed the undertaking and extended it to cover opt-out decisions under the Schengen protocol, which is the one that we are talking about tonight. Since then, the latter circumstance has not arisen until now and the Motion before your Lordships' House is thus the first of its kind.
While we have already welcomed the Government’s intention to participate in the directive, given their view that the potential for an opt-out applied, it was regrettable that they did not raise the issue in the Explanatory Memorandum of 13 February. Indeed, we have yet to receive an satisfactory explanation as to why they actually considered that the Schengen opt-out applied in this instance at all, but that is a fairly abstruse legal point and I do not wish to labour it now, because the Government have decided that it applies and have gone through the decision-making process in the way described.
It was also regrettable that time was not found to debate the draft directive before prorogation, as it was in the Commons on 24 April. As a result, the Ashton and Lidington undertakings have not been fully respected since the three-month period for an opt-out decision expired on 14 May. I understand that discussions are under way between the Government and both Houses to ensure that circumstances such as this do not arise again. In those circumstances, my committee would consider that the Motion to Regret tabled by the noble Lord, Lord Pearson, is disproportionate and we would frankly not support it.
As your Lordships will already be aware, following the response of the noble Lord, Lord Henley, to the noble Lord, Lord Vinson, who asked an Oral Question this afternoon, before June 2014 the House will need to return to this complex area in a significant way when the question arises of whether the UK should exercise its right to opt out of approximately 130 measures relating to police and judicial co-operation in criminal matters under Protocol 36 of the Lisbon treaty. I would be delighted to respond to the interest shown by the noble Lord, Lord Pearson, in the activities of the EU Select Committee, about which he is not always that polite. On this occasion, he seems to be interested in how we do our work. I can enlighten him, although it is all on the EU Select Committee’s website, including the Home Secretary’s reply on the list of 133 measures. It is all there and, if the noble Lord wishes to look on the website, he will find it.
The list of those measures that will be covered by Protocol 36 was provided as a result of an initiative taken by the noble Lord, Lord Bowness, who chairs the twin committee to the one that I chair, which deals with justice. He raised the issue through the noble Lord, Lord Roper, and we got the answer with the list, which was helpful. When the noble Lord, Lord Vinson, asked his Question this afternoon, we got a little further, because we got a useful Answer from the noble Lord, Lord Henley, as well as a confirmation of the complex arrangements for consulting the European scrutiny committees and various other committees of both Houses before the Government came to any conclusion about the block opt-in or opt-out of 2014.
That was extremely helpful, and I welcome the fact that that enlightenment has been given. I add only that we are still not very far down the road to understanding how procedures will work. These are completely unprecedented procedures, with votes in both Houses and the consultation of the various committees, and I hope that the Minister and his colleague the noble Lord, Lord Henley, will at some stage—although we are not very close to that yet—throw some light on how that process will be covered.
I add, for the noble Lord, Lord Pearson, that as soon as we got the letter from the Home Secretary with the 133 measures, the noble Lord, Lord Bowness, and I put our heads together with the then chairman of the EU Select Committee, the noble Lord, Lord Roper, and concluded that it would be necessary for the committee to write a report to the House before the block opt-out came before the House. That has been decided; it is on our forward programme, and I think that we will start taking evidence on it early in 2013 after we have concluded, in my committee, the report that we are doing at the moment on migration and mobility. That should give us plenty of time, and I hope that we will get the report out before the end of this Session—that is, mid-2013. That should give us plenty of time to provide the House with the kind of evidentiary basis that it ought to have before it has to take a decision on this matter. It will of course include the Government’s views on the matter, but they will give evidence in that inquiry.
I hope that that is useful to the noble Lord, Lord Pearson. It may even convince him that the EU Select Committee occasionally serves a useful purpose. Anyway, I do not want to go on any longer. It is late as it is and I have gone on rather too long. I hope very much that the noble Lord will not persist in his Motion of Regret. For my part, on behalf of my committee, I support the Government’s decision in substance.
Lord Beecham: My Lords, having yesterday disavowed the Minister’s generous description of me as a distinguished lawyer, it will come as no surprise to him to hear me say that I lay absolutely no claim to any expertise in matters of information technology, data protection or the work of the European Union and, indeed, European law. However, it is 50 years since I achieved some sort of qualification in Latin, when I managed a B grade in my A-levels. Having had reference to a corpus juris tonight in the debate, it is perhaps appropriate to congratulate the Minister on his ministerial mea culpa for the not uncharacteristic failure—not on his part but that of the Government’s business managers generally—to see that the proper procedures were followed. I have, to that extent, some sympathy with the critique of the noble Lord, Lord Pearson, which was echoed in part by the noble Lord, Lord Hannay. It is unfortunate that those matters occur.
As regards the report of the European Scrutiny Committee, will the Minister confirm that the Government have complied with the committee’s request to be kept informed of progress in negotiations on the points of concern for government, as outlined in the Explanatory Memorandum? Little progress may well have been
made but it would be good to have that assurance on the record tonight. Will the Minister indicate whether, as requested by the scrutiny committee, the Government will in due course share with the committee the response to the call for evidence, and explain whether the responses change their approach to negotiations? That is a straightforward request which I would expect the Government to honour. I do not know whether the Justice Committee has yet given its opinion on the draft directive. Perhaps the Minister can enlighten me on that. That, of course, is not a matter for the Government but I assume that they would wish to take that issue into account.
The Opposition are broadly supportive of the Government although we share some of the reservations around the potential cost and bureaucracy, to which the Minister referred. However, on reading the debate on this matter in the House of Commons, it struck me that the event was rather like a works outing for Eurosceptics and concentrated on process rather than on substance.
The noble Lord, Lord Lester, has forcefully and clearly outlined the important issues which the directive addresses. I draw the House’s attention to elements of the scrutiny committee’s report, which make it very clear that many of the key changes which the directive introduces are supportive of the rights of individuals. That is as it should be. I wish to refer to some of them, such as,
“new rights of access and information for data subjects, such as the identity of the data controller, the purpose of the data processing and the period for which the data will be stored; an obligation for data controllers to implement ‘appropriate technical and organisational measures’ to ensure an appropriate level of security; a right for data subjects to directly demand”—
“the erasure of their personal data by the data controller; an obligation on data controllers to inform supervisory authorities and data subjects of data breaches, informing the former within 24 hours of discovery and the latter ‘without undue delay’”.
These are significant protections for the citizen and we should welcome them. I hope that they can be implemented. Frankly, it seems to me that that is more important than the perennial debate about where our sovereignty lies because, as the noble Lord, Lord Lester, indicated, and as the Minister made clear, we are dealing here with matters of considerable importance: namely, the safety and security of British citizens and the protection of citizens from criminal depredation. In these days of international crime, not least through the auspices of modern technology, it is essential that we co-operate fully with law enforcement agencies among our European allies and partners.
In these circumstances, I think that the Government are on the right lines. I very much hope that the procedural hiccups that we have seen in this case will not be repeated. We look forward to the Government negotiating successfully and, more importantly perhaps, reinforcing the rights of citizens which this directive will promote.
Lord Callaghan—that a lie was half way round the world before truth could put its boots on. These days, it is more than a lie that can get half way round the world before the police can put their bicycle clips on. We have to approach these issues with the benefits of modern technology but balance that with some of the threats that modern technology brings to individual privacy and such matters. It is that which we have been debating.
I am grateful to the noble Lord, Lord Beecham, for his support from the opposition Front Bench. We will keep committees informed on the matter. I am not quite sure whether the Justice Select Committee has asked for a formal meeting, but I will write. A large number of questions were asked. If I miss any out in my reply, I will make sure that I cover them in a written response to noble Lords who have taken part in the debate. As the noble Lord, Lord Beecham, reminded us, these are important issues in terms of individual rights as well as in terms of security, crime detection and related matters.
The noble Lord, Lord Hannay, implied that I had taken matters lightly in our application of, or approach to, the Ashton-Lidington promises. That is not true. I take them very seriously indeed, and that is why I have been forthcoming in my apology. I know the noble Lord, Lord Pearson, well enough—indeed, I have a certain affection for him—but if you offer him an olive branch on matters European, he is most likely to grab it and hit you over the head with it. Nevertheless, the apologies were sincerely given. Accidents happen. It is cock-up, not conspiracy. As I said in my opening remarks, we are trying to learn the lessons and, as the noble Lord, Lord Hannay, said, this is one of the first times that we have discussed Schengen under these proposals. If there are lessons to be learnt, we will learn them.
To get things into proportion, we are in June 2012. The Lisbon treaty specifically gave us until June 2014 to make up our minds on these issues. Therefore, to imply that we do not have every answer to every matter two years before that deadline suggests that we have a liking for conspiracy that simply is not there. At Question Time today, my noble friend Lord Henley gave absolutely crystal-clear assurances on how the Government will approach this. The idea that somehow we were going surreptitiously to slip through, one by one, the 133 measures covered in this area of the Lisbon treaty is laughable. Of course the world has not come to a dead stop and things come through. When measures are brought forward, as they necessarily will be, what happens—although it did not happen perfectly in this case—is that we bring them to Parliament, which has the opportunity to debate and approve them. The fact that this House did not get that opportunity in this case is regretted, but the other place, as my noble friend Lord Lester pointed out, approved the measure by 267 votes to 24.
I would say only one other thing about the points raised by the noble Lord, Lord Pearson. I will come to his questions, but he read out a list of, I think, six measures that had gone through. I would be happy if he read them out again because, as an ordinary citizen, I am much reassured that we have that measure of
European co-operation on those kinds of issues, although I know that we come from a different philosophical point on this. However, if the noble Lord is trying to convince the British people of his point of view, I am glad that he reminds them of the really positive measures concerning co-operation on criminal justice matters, as I think that that strengthens my approach rather than his.
I thank the noble Lords, Lord Hannay and Lord Lester, for their contributions. Concerning the point made by the noble Lord, Lord Hannay, about taking the opportunity for a coherent approach in these negotiations, I can give him an absolute assurance that we will look to his committee and other committees in both Houses. We will provide them with updates and look to them for comments and commentary on the progress of these negotiations. There will be no attempt by the Government to do anything other than that.
As I said, I shall not be able to cover all the issues that have been raised in the House today. However, the 133 measures—a nice, frighteningly large number—need analysis. I welcome the fact that there will be an opportunity for the committee to look at them. Some of them are dead or dying. It is not the case that the Beelzebub that the noble Lord, Lord Pearson, spends his nights afeared of is thinking up 133 new measures. This is a matter of taking stock in a calm, rational manner and then, one hopes, having a rational discussion based on analysis about what is in our national interest and allowing Parliament to take a decision following such a debate. There is certainly no attempt to pre-empt matters. The Government continue to approach each opt-in decision on a case-by-case basis, taking decisions based on the UK’s national interests. They will not be making any premature decisions on this, as my noble friend Lord Henley assured the House earlier today.
I am told that the reference to competent authorities is from Article 3 of the proposed directive. A competent authority is any public authority which is competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. Therefore, a competent authority is not some branch of the Commission; we are referring here to the police.
Our impact assessment was also mentioned. It is true that we considered that there were both bureaucratic and cost implications, but we also said that being positioned outside the directive could involve costs too. Again, as we look at these matters and as the negotiations unfold, these things can be fully examined.
Oh dear! It looks as though we may have another apology to make in that the noble Lord, Lord Pearson, said that the Motion before the House is a recommendation and not a decision. This was not an attempt to mislead the House. Of course, by now it has become a decision and I am sorry for that drafting error.
I was asked why the title of the directive mentions free movement of data. The purpose of the directive is twofold: ensuring that personal data are protected and ensuring that they can be exchanged for the purposes of the prevention, investigation, detection or prosecution of criminal offences. I think that that covers the question asked by the noble Lord, Lord Wills, about why we had this twin-track approach. From the beginning,
there has been legislation covering the broad area of data exchange and the very specific needs of the police and criminal detection authorities.
The noble Lord, Lord Wills, cunningly and quite outside the remit of this debate, asked me about Section 55. I am very willing to write to him. We have continued to be reluctant to put penal sanctions on Section 55, but we keep it under review and we continue to discuss the matter with the Information Commissioner.
I will shuffle through my notes and look at them very carefully because I think it will be easier to answer some of the specific questions in writing. I will write to noble Lords with a considered response to the specific questions and put copies in the Library of the House so that these matters are on the record.
I hope that the noble Lord, Lord Pearson, will agree to withdraw his amendment. This debate has been useful. Basically, he seems to argue from a very fundamentalist position, which I understand but do not agree with, about whether or not we should participate in these kinds of processes. Speaking for the Government, I take the position, as I stated at the beginning, that some of the things that the data protection issues cover are, by their very nature, matters that need international co-operation. We have been very frank in saying that we think that the approach of the Commission has been overprescriptive. There are burdens and costs that we do not like, but we are convinced that it is in Britain’s interest to opt in, to negotiate hard, to keep Parliament fully informed and to make decisions at the appropriate level and at the appropriate time on these matters.
Tonight’s debate has been chastening for my department but I give the assurance: “Please, Sir, we won’t do it again”. However, we will continue to engage positively on these matters because, in our view, that approach is in our national interest. I sincerely hope that the noble Lord will agree to withdraw his Motion so that the House can approve my Motion.
Lord Pearson of Rannoch: Before the noble Lord sits down and before I respond on my Motion, perhaps I could press him on two questions, as I did not quite understand his answers. First, is he saying that we are likely to have a number of individual opt-ins for debate and vote before the end of May 2014? I think he implied that that could well happen. Secondly, the most important question I put to him to which I would like an answer is this: as these opt-ins clearly amount to a transfer of sovereignty, or whatever you want to call it, from this Parliament and our courts to the Commission and to the Luxembourg Court of Justice, why are we not having a referendum? I understood that that was the point of the referendum Bill. If the Minister would be good enough to answer those two questions, I will reply briefly to my Motion.
Lord McNally: Gladly so. I said that—and I do not know because I am not a clairvoyant on these matters—we will try to get notice from the Commission to see if things are coming down the track. As I said, things are not frozen, so we may well get another one like this. I do not know. But if we do, perhaps with better handling, we will do what we have done with this which is to bring it before both Houses for approval.
On the question of a referendum on these measures, this was clearly laid out in Lisbon. The process was clearly laid out. The Government have made their approach one of full consultation with the relevant committees of both Houses and the opportunity for both Houses of Parliament to take a decision. I do not think that the Government could have been any clearer tonight. That is the Government’s position.
I am told that the noble Lord’s Motion is not an amendment. It is a freestanding Motion. The House must decide on my Motion and then separately on that of the noble Lord, Lord Pearson. I am grateful to the Clerk for that guidance. I hope that that is a clear enough explanation of the noble Lord’s two questions. I beg to move.