Clause 2 - Strategic priorities

Crime and Courts Bill [Lords] – in a Public Bill Committee am 11:30 am ar 24 Ionawr 2013.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of David Hanson David Hanson Shadow Minister (Home Affairs) 11:30, 24 Ionawr 2013

I beg to move amendment 22, in clause 2, page 2, line 40, leave out ‘may’ and insert ‘will’.

The amendment is simple and easy to understand. The clause as currently drafted states that the Secretary of State

“may determine strategic priorities for the NCA.”

I want to replace the word “may” with “will” so that the clause states:

“will determine strategic priorities for the NCA.”

We had a useful discussion on clause 1, which establishes the National Crime Agency. You will recall, Ms Dorries, that along with your co-chair, Mr Caton, we had a long discussion on the governance structures of the National Crime Agency board. Amendment 22 moves us on to clause 2, which is about the strategic priorities for the National Crime Agency.

If the Minister can reassure me that the word “may” effectively means “will”, I will be happy to withdraw the amendment. The Secretary of State may determine the strategies of the National Crime Agency, but equally she or he may not. If the answer is that she may not, we are left with the director general of the National Crime Agency, who is appointed by the Home Secretary, being solely responsible for directing the priorities of the National Crime Agency. Clause 2(2) states:

“In determining strategic priorities for the NCA...the Secretary of State must consult—

(a) the strategic partners,

(b) the Director General”,

and this amorphous phrase:

“(c) any other persons whom the Secretary of State considers it is appropriate to consult.”

However, responsibility for strategic priorities should still ultimately lie with the Secretary of State.

As part of my preparation, I discussed the matter with the Association of Chief Police Officers. I spoke, via my office, to Chief Constable Mick Creedon, who leads for ACPO. He sits on the National Crime Agency design and operating transition board and is the ACPO lead on serious organised crime issues. He said that  when the Secretary of State is setting the strategic direction for the National Crime Agency, there will be a huge need for a clearer definition of what the agency is being set up to achieve. In my view, responsibility for that lies with Ministers.

Workstream groups are established under the Bill and there will be strategic command groups, but I think it is important that we set strategic priorities for the National Crime Agency. Going back to the points made by the hon. Member for North Antrim and others in our previous sitting, the strategic responsibilities lie with the Government. If the Government do not set them and they duck out of their responsibilities—“may” rather than “will”—the strategic priorities would ultimately be set, although in consultation with other bodies, by the director general.

If the director general sets the priorities, there is the potential for conflict downstream. We have already seen in the past year, as I mentioned on Tuesday, that the National Crime Agency, even though it is not yet fully formed, is becoming a port of call for areas of concern that have arisen and the Secretary of State has—quite rightly—said, “National Crime Agency, this is your responsibility. Please go and look at this issue.” The child abuse inquiry in north Wales is the most prominent case to date.

Will the Minister explain where responsibility would ultimately lie if the Secretary of State, who “may determine strategic priorities”, did not set any and ultimately there was conflict downstream for the director general over his or her actions? It is Keith Bristow now, but we are setting this in train for the future. The future Secretary of State might then be accountable to Parliament and then, ultimately, having not set strategic priorities, would be answerable to Parliament on what the director general has said, rather than on what—

Photo of David Burrowes David Burrowes Ceidwadwyr, Enfield, Southgate

I thank the right hon. Gentleman for giving way. I appreciate that his role involves finding ways to scrutinise, but he has experience of the House and the Committees and of being a Minister. Can he point to other times when he has taken forward a Bill containing a clause with “will” in it? “May” is obviously a term that is not “must”, and obviously does often cover “will”. Is he not dancing on a pinhead? Can he refer to other clauses of a similar nature which used “will” rather than “may”, which obviously is a proper term that is often distinguished from “must”?

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I cannot off the top of my head, because I have not prepared in that way for that particular intervention. I accept that this might be a point. My simple point is to clarify what “may” means as opposed to “will”. In every way that I understand it, “may” means that “I might do something”—that I may determine strategic priorities for the National Crime Agency—but it does not mean that I will set them.

In my view, the word “will” gives a statutory undertaking that the Secretary of State ultimately has to sit down at least once a year and set out his priorities for 2013-14 for the National Crime Agency. He must say that he is consulting with the strategic partners, that he will consult with the director general and with these amorphous “other persons” that he considers appropriate. It means  that he will set the priorities, not that he may set them, and not that he might duck out of that responsibility; he will set them. It is of course important to get clarification on what that means.

Photo of Andy McDonald Andy McDonald Llafur, Middlesbrough

It appears very clear to me that the word “may” implies permission, whereas “will” confers an obligation upon the Secretary of State to set the strategic priorities. With respect to the hon. Member for Enfield, Southgate, I do not think it is dancing on a pinhead. I think it is actually a crucial and vital difference, and we are right to pursue this issue and see where the obligation lies. If there is to be an obligation, I would suggest that the word “will” would serve the purpose infinitely better.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I am grateful to my hon. Friend for his support. I do not think it an issue of dancing on a pinhead, and I think there is a clear difference between “may” and “will”. If the Minister in his response assures me that “may” means “will”, there may well be an opportunity for me to withdraw the amendment. However, I want some clarity about that, because as I read it—I am a simple man from up north; I might have got this wrong—“may” means that I have the responsibility not to do it. It means that I may be able to choose not to do it, rather than that I will have to do it. There is a subtle difference between the two that I think anybody listening to it would accept.

Photo of Charlie Elphicke Charlie Elphicke Ceidwadwyr, Dover

I thank the right hon. Gentleman for giving way. I am a simple man from down south, and I am a bit puzzled because the other day he argued for the vaunted independence of these organisations, and stated that quangos should be allowed to do their own thing. Yet today he argues that the Secretary of State “will” tell them what to do. It seems to me that he argues one thing one day and another thing the next.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I think the hon. Gentleman must have been doing his post on Tuesday, because I did not argue that at all. What I argued on Tuesday was for the Secretary of State to set strategic directions, but for the board to contribute to that and to do the challenge function, the monitoring and the budget responsibility. I argued that the board should follow on and sit on the director general, to ensure that the strategic objectives set by the Secretary of State were put into a local plan which would be achieved and which was followed through. In my view there is still a role for that board, but we have had that argument and I will not revisit it.

What I argue for here is for a strategic direction to be set by the Secretary of State, who for example would say that in 2013, with the command units available, human trafficking, drug abuse, child exploitation or whatever are the key strategic priorities. The Secretary of State would say that they expect these issues to be reduced by x or y per cent., and to do so certain things are expected to be done, because that is a strategic priority. The job of the director general is then to look at how he or she implements that, and the job of the board—had we had one—would have been to monitor progress on that, to challenge day to day, to put pressure on the Security of State and provide some expertise on how the National Crime Agency could deliver those tasks. So there is no contradiction between what I said on Tuesday and what I say now. I simply want clarity from the Minister.

If it helps, before the Minister responds I will quote the following:

“I quite like politicians and Governments who accept leadership and responsibility, and do not try to push off all the tasks to people who the public generally do not know, have never heard of and have not had a chance to select.”

I think that “will” meets the obligations of that quote. It means that politicians will accept leadership and responsibility and will not just push off tasks to people who the public do not know and will not have a chance to meet. I use that particular quote because it is the Minister speaking in Tuesday’s sitting at 10.45 am, in column 31 of Hansard. I hope that he will not go back on what he said on Tuesday about the need for responsibility to lie with the Secretary of State.

Photo of Gavin Barwell Gavin Barwell Ceidwadwyr, Croydon Central

I have some sympathy with the point that the right hon. Gentleman is making about the importance of politicians setting the strategic direction. However, will he elucidate the difference between that argument in relation to this agency and the Labour party’s argument about police and crime commissioners, which was that there was a great risk in allowing politicians to set strategic priorities for the police, and that that would overlap with operational independence?

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I think there is a real difference. Politicians have always set the direction and strategic policy of police authorities. Police authorities were made up of councillors, politicians, magistrates and independent members. They set an overall strategic level. Our argument with police and crime commissioners was that one person would be vested with that responsibility, rather than its being collective. I accept that one person is vested with responsibility in the National Crime Agency, but that one person is the Home Secretary, who is accountable to the House of Commons, appointed by a Prime Minister, and who usually has the majority support of Members of the House. There is therefore a great deal more overview and scrutiny of the Home Secretary than there would be on this matter.

I do not wish to push this too far, but I am trying to make the point that “will” and “may” are two different words. Even if “may” is a commonly used term, which it may be, I believe that “will” has a different meaning and, as my hon. Friend the Member for Middlesbrough said, confers a specific responsibility. “May” gives the opportunity for an opt-out. I wish to see, particularly in the absence of a board, responsibility for National Crime Agency strategic responsibilities lying firmly with the Home Secretary, and I hope that the Minister agrees.

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

It is a pleasure to serve under your chairmanship this morning, Ms Dorries. How bracing it was to start our deliberations with an Olympian quote on the nature of political authority. I was casting my mind back as to who might have said that—Winston Churchill, Franklin Roosevelt, even President Obama—only to find that it was myself. I can now retire happy, having been recognised for shedding light on the entire nature of how powers should be exercised in a modern democracy.

I am grateful to the right. hon Gentleman for tabling amendment 22, which he has indicated is a simple amendment that would convert the power conferred on the Home Secretary to set strategic priorities for the National Crime Agency into a duty—the change from “may” to “will”. We agree that the Home Secretary has a vital role in setting the strategic direction for the agency. Indeed, in practice—this point was made forcefully by my hon. Friend the Member for Enfield, Southgate—we would expect that the Home Secretary would always wish to set strategic priorities in accordance with the power granted by clause 2. It is rather hard to envisage circumstances in which she would decline to discharge—I was going to say “those obligations,” but they are not obligations—the option that is open to her, or where she would not regard it as an obligation. Clause 2 was drafted as a permissive power rather than a duty, however, in order to allow flexibility in any exceptional cases, even if they are hard to envisage, where a Secretary of State may choose not to set strategic priorities.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

Will the Minister therefore tell the Committee in what circumstances he would expect the Secretary of State not to set the strategic priorities?

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department 11:45, 24 Ionawr 2013

Let me come to that precise point, but the right hon. Gentleman will prefer it if I answer him in a roundabout way, for reasons that will become apparent in a moment. Before I get to that point, I should note that this provision is similar to the equivalent provision made for the Serious Organised Crime Agency in section 9 of the Serious Organised Crime and Police Act 2005, so we have drawn on precedent. The Opposition, when they were in government, presumably thought it desirable to have flexibility in this matter, so I was going to ask the right hon. Gentleman whether he could tell me, and whether he had a good example.

To get to the nub of the matter, it is our intention that the National Crime Agency should at all times have appropriate strategic priorities in place, and that the Home Secretary should set those priorities. If the right hon. Gentleman withdraws his amendment on the understanding that I will go away and reflect on the substance of his point, we will look at whether the clause needs to be made more explicit, for the reasons that the hon. Member for Middlesbrough touched on in his intervention. In practice, for the reasons that my hon. Friend the Member for Enfield, Southgate gave, we do not envisage the clause having a substantial effect in legislative terms. For neatness and the avoidance of doubt, if the right hon. Gentleman withdraws his amendment, we will make sure that this issue is resolved to everybody’s mutual satisfaction.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I can see a win when I have got one. I accept it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

Clause 2(2) states:

“In determining strategic priorities for the NCA (including deciding whether there should be such priorities), the Secretary of State must consult…the strategic partners,…the Director General, and…other persons whom the Secretary of State considers it is appropriate to consult.”

Clause 15 gives the definition of strategic partners, but that definition, surprisingly, does not include the words “police and crime commissioner”. I have not tabled an amendment because it may simply be that the definition,

“Such persons as appear to the Secretary of State to represent the views of local policing bodies”,

includes police and crime commissioners. However, I find that striking, because the creation of police and crime commissioners is a flagship Government policy, although I accept that it is not originally a policy of the Minister’s party. Given that clause 15 defines police and crime commissioners as a policing body, it would be helpful to let police and crime commissioners know, now they have been elected and founded, that they are part of the team and can be consulted formally.

Clause 15, on the interpretation of part 1, defines a range of bodies. Given that clause 2 only mentions strategic partners, the director general and the amorphous group of other people whom the Secretary of State considers it appropriate to consult, would it not have been better for clause 2(2) to have included a reference to clause 15, rather than to strategic partners? That would mean that all the bodies listed in clause 15 would know that they will potentially be consulted. Clause 2 does not specifically mention that the British Transport police, the civil nuclear constabulary, the Ministry of Defence police, the Serious Fraud Office, border revenue, the Police Service of Scotland, the Police Service of Northern Ireland and others can be consulted about the National Crime Agency’s plan.

I accept that the clause is only about a consultation on strategic priorities, but I feel that it is best to play as part of a team. If those bodies—in particular the more important, bigger ones such as the British Transport police—were asked what their views are, they might have a contribution to the strategic objectives of the National Crime Agency. At the moment, their views might be asked for and taken into account, but equally they might not be. If we are going to make the National Crime Agency a success, we should involve people so they feel it is acting on their behalf and setting priorities on their behalf. Clause 2 as drafted, although I have not amended it, seems to be slightly restrictive in terms of the consultation on strategic priorities.

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department

I should bring it to the Committee’s attention—one or two Members may have failed to notice this—that amendment 4 to clause 15, which, at the current rate of progress, we will probably arrive at some point this afternoon, makes precisely that point. The amendment stands in the right hon. Gentleman’s name. It may be of convenience to the Committee to discuss the issue then and not have me make the same speech twice.

Just for a taster, however, the essence of our point is that clause 2 states that the Secretary of State must consult

“any other persons whom the Secretary of State considers it is appropriate to consult.”

Her hands are not shackled in that regard, and she may wish to consult police and crime commissioners. It is  not a requirement to consult them because they are responsible for their police forces, not the NCA. They may well have interesting insights to provide, which is why the Secretary of State may wish to consult them, but she is not required to do so. I can, as I said, discuss the issue in greater detail when the, in my view, more relevant clause 15 comes up, to which there is an amendment on precisely this point. I hope that the Committee will agree to the important but quite limited clause 2.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.