Clause 8 - Director General: customs powers of Commissioners and operational powers

Crime and Courts Bill [Lords] – in a Public Bill Committee am 8:55 am ar 29 Ionawr 2013.

Danfonwch hysbysiad imi am ddadleuon fel hyn

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

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

Good morning, Ms Dorries. I hope that you had a pleasant weekend. It is a great pleasure to be here in Committee today. The Opposition have tabled no amendments to clauses 8 to 15, but we intend to discuss all the clauses to explore the issues and the Government’s thinking in what I hope will be a helpful and constructive way. I give notice to the Whip and to the Minister that we do not plan to vote against the clauses, but we want to have at least some discussion. Depending on what the Minister says, we might oppose the clauses, but I doubt that we will.

Clause 8 is about operational powers of the director general and the commissioners. It states that the director general, Keith Bristow, who has already been appointed,

“has…the same powers as the Commissioners for Her Majesty’s Revenue and Customs would have.”

It continues:

“The Secretary of State may”

—that is the key word—

“designate the Director General as a person having one or more of the following—

(a) the powers and privileges of a constable;

(b) the powers of an officer of Revenue and Customs;

(c) the powers of an immigration officer.”

Interestingly, the clause confers on the Secretary of State another power:

The Secretary of State may modify or withdraw a designation of the Director General by giving notice of the modification or withdrawal to the Director General.”

Schedule 5 gives effect to the clause and will form part of this debate, but I want to ask the Minister about clause 8 as a whole. In what circumstances may the Secretary of State

“designate the Director General as a person having…the powers and privileges of a constable”,

which, self-evidently, Keith Bristow has? The same question applies to:

“the powers of an officer of Revenue and Customs;” and

“the powers of an immigration officer.”

Will the Secretary of State designate the director general as having those powers as a matter of course? It would be helpful to know, because according to the material that we have dealt with to date, the director general, Keith Bristow, will have responsibility for the National Crime Agency as it relates to policing of serious organised crime; Revenue and Customs and the border force; and matters connected with policing and training through the work being amalgamated through the National Policing Improvement Agency. I am genuinely interested in hearing in what circumstances such powers will be vested in the director general and whether it will be a matter of course.

Subsection (3) states:

“The Secretary of State may modify or withdraw a giving notice of the modification or withdrawal to the Director General.”

If the director general is to be vested with the powers as a matter of course, in what circumstances does the Minister envisage the Secretary of State giving a power to the NCA director and then exercising the power to

“modify or withdraw a designation”?

With these questions, I am trying to discover what powers the Minister anticipates the director general of the NCA will have. Serious responsibilities are vested in the agency and the director general will have oversight of those issues. The heart of the clause is the competence of the director general to oversee, direct and have powers in relation to those fields.

This is an important matter, and I have already asked whether and how it has been dealt with in respect of Keith Bristow. Although the Bill has not yet passed through the Commons, it has had Second Reading in the Lords and has completed its Committee stage. Keith Bristow was appointed more than 12 months ago to be national director of the NCA. What powers have already been vested in him? What assessment have the Secretary of State and the Home Office made of Mr Bristow’s powers? This is not a criticism of Keith Bristow. As I said at the first sitting of the Committee, I have a great deal of respect for his work and worked with him during my time fulfilling Government functions. My questions are not about him but about the principle of a future Keith Bristow and the starting point for such a person. Were the tests under clause 8 directed at Keith Bristow on his appointment? What powers does he have as of 29 January regarding these matters? That is an important point and I will welcome the Minister’s comments.

Those points also relate to schedule 5, which I think we might deal with in a separate stand part debate, so I may leave my comments on that schedule until then. That would be helpful, as it deals with an advisory committee, but I will just touch on the issue now and we will discuss it more fully in due course. The advisory panel is put in place under paragraph 4(1), which says,

“The Secretary of State must appoint an advisory panel (to enable recommendations to be made as to the operational powers which the Director General should have)”.

The schedule states that an advisory panel must be appointed to advise on whether the director general has the relevant skills for those powers, but it states also that the Secretary of State has the power not to have an advisory panel. We will test that when debate schedule 5. My question in relation to clause 8 is: was an advisory panel put in place when Keith Bristow was appointed? Clause 8 gives power to schedule 5 and we have Keith Bristow in post, so I question the powers, the “may” and whether the Secretary of State acted with or without an advisory panel, as the Bill directs, when appointing Keith Bristow.

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

Good morning, Ms Dorries and all those on the Committee. It may be helpful if I briefly outline the purpose of clause 8 and the associated schedule 5. I will try to incorporate a response to the points just raised by the right hon. Gentleman.

Clause 8 confers the powers of the commissioners for revenue and customs on the director general and sets out the arrangements for the designation of the wider operational powers on the director general. The director general will be, first and foremost, an officer of the NCA with all the necessary operational powers to take an active part in agency operations. The crime-fighting experience and focus of the director general of the NCA will be crucial in setting the tone for the agency’s work, establishing its crime-fighting credentials and securing its position in the law enforcement landscape.

The arrangement in clause 8 for the three types of operational powers—police powers, customs powers and immigration powers—is distinct from the general administrative powers of the director general to run the agency and his or her operational responsibilities as the head of a crime-fighting agency, which are covered under earlier clauses. The director general will have the overall direction and control of the agency’s operations, even if he or she does not hold operational powers; but the director general will need to hold such operational powers if he or she wants to take an active part in those operations—for example, making arrests alongside NCA officers. Even without the operational powers, the director general will be able to run his organisation,; the question is whether he will have the special powers vested in a police officer, a customs officer or an immigration officer.

In the clause and the linked arrangements in schedule 5, there will be a clear and independent mechanism on the face of the Bill to provide the director general with those important operational powers. The director general will be able to be designated with one or more of the powers of a constable, a customs officer and an immigration officer. Under the provisions in clause 9, it falls to the director general to designate other NCA officers with those same operational powers, but our view is that it would be inappropriate for the director general to designate them to himself. He can designate other people and oversees that process, but who can designate him? Clause 8 provides for the Home Secretary to designate the director general with operational powers.

It is clearly important that the director general is designated with operational powers only if he is adequately trained and fit to exercise such powers. Schedule 5 provides  two routes for assessing the adequacy of the training in operational powers before the Home Secretary can designate them to the director general. Designation will take place either on a binding recommendation of an advisory panel, which would be set up to judge the suitability in a given area for the director general to receive the designation, or according to certain regulations, subject to the affirmative procedure. It may well be that if the director general manifestly has that level of competence, it will not be necessary to convene an advisory panel, but it is necessary to recognise the competence that he or she holds.

Clearly, the judgment on whether the director general is adequately trained is best taken by operational experts and not by the Home Secretary, who authorises the process but does not routinely have the expertise to make the judgments. The reason two processes are set out is to ensure that the provisions are sufficiently flexible to cover a range of scenarios, including when a director general does not have prior training in the operational powers or, conversely, when he or she does have the prior experience in some or all of those powers. We shall consider the details of the arrangements when we debate schedule 5, which is obviously an extension of the current debate.

The director general will also be conferred with the powers of the commissioners for revenue and customs. That is an important development and one that addresses a gap in the arrangements for the Serious Organised Crime Agency: for example, SOCA officers could use customs officers’ powers to seize goods, vehicles or vessels used in smuggling, but were then unable to make decisions relating to the subsequent return, sale or destruction of seized items because they did not possess the relevant powers, as those are conferred under statute on the commissioners for revenue and customs. By providing the powers of the commissioners to the director general, that gap will be filled. In recognition of the extensive powers of the commissioners of revenue and customs, the clause allows the director general to exercise those powers only for customs matters; he or she will not be able to use those powers for revenue matters, which will remain the preserve of HM Revenue and Customs. The commissioners have extensive functions and powers and it is right and proper that tax and revenue matters remain the preserve and responsibility of HMRC.

The right hon. Gentleman made a couple of specific points about the provision that the Home Secretary “may” designate powers. We expect that she will designate the powers to the director general, subject to the provisos that I just outlined. We accept that the withdrawal of those powers is very unlikely. I suppose one could conceive of the nature of the knowledge required to fulfil the task evolving over time and the director general not updating his knowledge, so that having previously been deemed fit to exercise the powers, he may not be deemed fit to fulfil them any longer unless he updates his knowledge. However, the main purpose of the ability to withdraw designation is to make the treatment consistent with that of other NCA officers. The director general has the power to modify the conditions of other employees of the NCA and, in extremis, to withdraw the designation of their powers, so it was thought fit that a parallel power should be vested in the Home Secretary.

Regarding Keith Bristow himself, we have not yet agreed clause 8 and schedule 5 and I would not want the  Government ever to be accused of being insufficiently respectful of the Committee or of Parliament more generally, but with his background as chief constable of Warwickshire police, Keith Bristow ticks the box emphatically in terms of having the necessary qualifications to exercise the powers as a police officer. He does not have any powers as the director general of the NCA because those are subject to the Bill, so the further powers that the Home Secretary may confer on him, subject to the advisory group’s recommendation, will follow in due course, once the creation of the NCA has been agreed by Parliament and fully constituted.

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

I am grateful to the Minister for his explanation. I do not want to be churlish, but the Bill has not gone through all its stages in Parliament—not even clause 1, which states:

“A National Crime Agency, consisting of the NCA officers, is to be formed.”

Mr Keith Bristow was appointed as the director general of the National Crime Agency, which is yet to be formed, more than 12 months ago. I was asking the Minister, effectively, what consideration under clause 8 has been given to Keith Bristow’s competences on the other issues? Self evidently, as a chief constable, he has

“the powers and privileges of a constable”,

but he was appointed 12 months ago, before the Bill has received Royal Assent. What consideration was given to the designation of

“the powers of an officer of Revenue and Customs” and

“the powers of an immigration officer”?

I would like to know whether, for example, the Secretary of State has considered appointing the advisory panel for which schedule 5 provides in respect of Keith Bristow. Again, this is not a criticism of Mr Bristow; I just want to know what consideration was given, because the Minister’s test that clause 8 is not yet law does not stand: clause 1 is not yet law, yet Mr Bristow has been appointed. He has walked away from being the chief constable of Warwickshire and is now the director general of the NCA, yet neither clause 8 nor clause 1 have taken effect. Will the Minister give some indication of where we are with the process and the proposed director general?

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

The right hon. Gentleman is correct that some preliminary work has taken place; it would be difficult to constitute the NCA in a matter of weeks from a standing start. Of course, SOCA still exists—in fact, I had a meeting with the leading officers in SOCA just a day or two ago to talk about their ongoing operations and activities. We are waiting until Parliament has granted its full approval—assuming that it does—for the NCA before we are in “all systems go” mode and can put every single arrangement in place.

I do not know whether it is appropriate to talk about Keith Bristow. The powers in the Bill will last beyond the appointment of any specific individual, although Mr Bristow’s background is clearly in the powers of a constable, rather than the customs or immigration powers. His successor may have a background, and therefore greater expertise, in a different field, and not necessarily  have a background in the powers of a constable. The director general will oversee the work of the NCA and its operational leadership, regardless of whether he or she has designated powers in all three of those areas. He or she might feel it is helpful to have those powers and the Home Secretary might agree with that assessment, so it might be a good idea for the director general to acquire additional skills and training and for an advisory panel to judge whether the director general has reached a satisfactory level of attainment, but the decision on that arrangement will be based on the competence, knowledge and background of the individual concerned.

I do not want the Committee to get the impression that the NCA under the leadership of Keith Bristow will be able to operate only in certain fields because his background is in one area and not in another. He will still be able to manage and run the organisation for which he will be responsible.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs) 9:15, 29 Ionawr 2013

I accept that, and I understand that procedure. However, the clause gives the Government the power to designate the three competences of the director general. My simple question is—I am not sure whether the Minister has answered this—will it be normal practice for those powers to be designated to the director general? If that is the case, will those powers be designated to the current holder of the post, Mr Keith Bristow? Will it be it normal practice for the Government to seek a candidate, if Mr Bristow leaves in two, three, four, five, six or seven years’ time, and designate those powers to them? I am interested in the scope of the post, rather than the individual post holder.

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

That is a good point. The Government will certainly not only consider a candidate to be director general if he or she has already ticked all three boxes—immigration, customs and constable powers. The advisory committee will advise the Home Secretary whether the director general has attained a level of knowledge that warrants him or her being vested with those powers. We envisage that the director general will be able to run the organisation perfectly well without having powers in all three areas.

However, it is unlikely that a candidate will become director general if they have no background in any of those three areas. I imagine that directors general will seek to acquire knowledge to be given powers in those areas, although it is not necessary for them to possess that level of knowledge and those powers formally to run the organisation and the operations. They can take a keen interest in the fields of the NCA’s activity without having formal powers granted upon them in the same way that you or I, Ms Dorries, can take a keen interest in police operational matters without having the formal powers of a constable vested upon us. Just as the director general will wish senior NCA employees to have a broad understanding of the formal powers across the organisation in order to equip them to do their jobs to an even higher standard, the Home Secretary and the director general will wish to reach that extensive level of attainment.

Photo of Paul Goggins Paul Goggins Llafur, Wythenshawe and Sale East

I am very much looking forward to the debate on schedule 5  because the Minister raises some very interesting questions. I put this simple question to him: would it not be better for the Home Secretary to know for sure that the director general has the necessary competences before she appoints him, rather than waiting until after she has appointed him to convene the panel to then be advised on whether he has the competences?

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

I hesitate because I cannot immediately think of an individual—although I defer to the two previous Home Office Ministers on the Opposition Benches—who has designated powers as a customs officer, an immigration officer and a police officer. They tend to be different strands of career development, and people will have accumulated knowledge and expertise in the particular strand that they have chosen earlier in their career. To say in advance, when looking to appoint a future director general, that only someone who has accumulated expertise in all three fields would be deemed to be suitable even to put themselves forward would almost certainly limit the field of applicants too greatly.

As I have said, the director general will still be able to oversee the NCA’s operations. Members of the Committee were alarmed that a director general who does not have designated powers in, for example, the field of immigration would have his hands tied in overseeing the immigration function of the NCA. I can put their minds at rest—they should not be alarmed on that score. The director general will take a close interest in all matters regarding the NCA, but he will not be able to exercise the functions of a designated immigration officer if he or she chooses to get their hands dirty on the front line, unless the Home Secretary, following the advice of the advisory panel, has deemed him or her fit to do so.

I would imagine that, in order to extend his or her knowledge, that might be an area in which they could be interested to acquire additional skills and insights, but it will not be a requirement. Clause 8 and schedule 5 lay out the process by which that would happen.

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

We will explore these matters in slightly more detail in schedule 5 to see exactly where the Minister is coming from regarding the powers. I am happy to let clause 8 stand part of the Bill.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.