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

Part of 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

Photo of Jeremy Browne Jeremy Browne The Minister of State, Home Department 8:55, 29 Ionawr 2013

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.