Amendment 109A

Police, Crime, Sentencing and Courts Bill - Report (5th Day) – in the House of Lords at 9:45 pm on 12th January 2022.

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Lord Rooker:

Moved by Lord Rooker

109A: After Clause 50, insert the following new Clause—“Application of Police and Criminal Evidence Act 1984 to National Food Crime Unit of Food Standards AgencyIn the Police and Criminal Evidence Act 1984, after section 114B, insert—“114C Application to National Food Crime Unit of Food Standards AgencyThe Secretary of State may by regulations apply any provisions of this Act to investigation of offences conducted by officers of the National Food Crime Unit in respect of search and seizure.”” Member’s explanatory statementThis amendment is intended to avoid the police having to obtain these powers from a court on behalf of NFCU. The officers dealing with offences could present the case.

Photo of Lord Rooker Lord Rooker Labour

My Lords, I beg to move Amendment 109A, which proposes a new clause. I freely admit that the content of what I am about to say is really nothing to do with the Bill; the Bill is a vehicle for a change quite unconnected with its main thrust. Oh! You can forget to take your mask off.

During Oral Questions on 22 February, I raised the issue of food-related crime and the resources devoted to it. The then Minister, the noble Lord, Lord Bethell, pointed out that the Food Standards Agency constituted the National Food Crime Unit in 2014 and that Ministers were in dialogue about increasing its powers. Indeed, in his supplementary answer later he went further and said that

“its investigatory powers could be enhanced and its impact improved. That is the view of the Government, industry and the police, and that is why we are committed to the dialogue, first suggested by the Kenworthy review”.—[Official Report, 22/2/21; col. 614.]

The food crime unit’s work is about tackling serious organised or complex cases of food crime. The unit, and indeed the Food Standards Agency—which, of course, is a non-ministerial department—can use the powers of RIPA and CHIS, and the unit can access the police national computer and the automatic number plate recognition system. But in key aspects, the unit cannot get into the serious complex cases without the support of hard-pressed partners in policing and local government.

The police have never taken food crime seriously and admit that it is not a high priority. I first came across food crime when I went into MAFF in 1997. I had the same issue when I arrived at Defra a dozen years later. I am not criticising; this is the reality. It is not counted as proper crime, yet billions of pounds are involved—and what is more, there is the risk to public health. There is an issue there.

Delays owing to competing higher-risk police priorities have proven detrimental to a number of food crime unit investigations. The unit needs the powers to be able to go to the courts rather than have the police doing it once removed. In fact, all the unit needs is access to the powers in the Police and Criminal Evidence Act. There have been some cases in the recent past where the police have been unable, unavailable or reluctant to apply for warrants on behalf of the unit. There have been delays when the food crime unit has had to wait for police officers to become available or when police withdrew support because of other priorities.

The gangmasters authority, among others, has secured these powers. In fact, my amendment is a straight copy of the amendment put into the Police and Criminal Evidence Act on its behalf, so I did not have any trouble drafting anything. Of course, the Public Bill Office was incredibly helpful, but I am just following a process that has happened before.

The lack of these powers is affecting staff in the unit due to it being a real constraint. The officers of the unit, none of whom I have spoken to, are well qualified to present cases directly. They consist of ex-police officers of very senior rank, ex-National Crime Agency officers and ex-police intelligence officers, so they are fully qualified in other circumstances to go to court to get the warrants. We are talking about seizure and search; that is the limit of what is in the amendment. The former chair of the Food Standards Agency, Heather Hancock, has said that the National Food Crime Unit cannot do its job relying on the kindness of the police to lend their powers in important cases.

The issue was considered by the National Audit Office in its report Ensuring Food Safety and Standards, HC 2217, in June 2019. Paragraph 13 said:

“The regulatory system lacks the full range of enforcement powers to ensure businesses supply safe food.”

Paragraph 1.30 said:

“The NFCU does not yet have the statutory enforcement powers it needs to investigate food crime such as powers of search and seizure. As an interim measure, it has agreed protocols to work with police forces, but to operate independently in the longer term it will need new powers conferred by Parliament.”

So the Food Standards Agency, a non-ministerial government department, wants the powers; the National Police Chiefs’ Council agrees that it should have the powers; and the National Audit Office agrees that it needs the powers to act independently.

Is the scale of food crime such that these extra powers could be used? The unit was set up in 2014, after my term at the FSA finished in 2013, and came as a result of the brilliant work of Professor Chris Elliott, who looked into aspects of the horsemeat scandal. None of that ever went to court. Food companies do not sue each other in court, which is too open and transparent; there were other ways of dealing with that. We were lucky that it was not a public health issue—it could easily have been. The point is that when the unit was set up, it was worked out that 10 full-scale investigations could be managed by the unit in a year. When I looked at this for my Oral Question in February—I have not chased it up since—data from the first quarter of 2020 showed that more than 30 operations had been opened, in addition to the 40 pre-existing operations.

This is a very simple amendment. It is not new, because the Gangmasters Licensing Authority had the same amendment put in place for exactly the same reasons, so there cannot be anything technically wrong with the amendment. Everybody involved wants it. I see the noble Lord, Lord Blencathra, who of course cannot speak on this as a member of the Food Standards Agency board, nodding in approval, for which I am very grateful. The noble Lord, Lord Krebs, who was the first chair of the Food Standards Agency, wanted to speak tonight, but he had to return to Oxford. The problem is that this was always going to be debated too late.

The answer to the problems lies in this very simple amendment. The morale of the National Food Crime Unit will be vastly enhanced by Parliament giving it this extra bit of power. It will not be putting pressure on the police, first to take an interest in the issue it raises, which the police are not really too bothered about. It also saves the police being involved in going to court to get the warrants. The unit is more than well qualified to deal with the issue on its own.

I arrived here today with two expectations. One was that I would be on my feet at midnight. The other was that it is so simple—everybody wants it—that the Government would accept it. I beg to move.

Photo of Baroness Bakewell of Hardington Mandeville Baroness Bakewell of Hardington Mandeville Liberal Democrat Lords Spokesperson (Environment, Food and Rural Affairs) 10:00 pm, 12th January 2022

My Lords, I am delighted to be able to support this amendment from the noble Lord, Lord Rooker, whose knowledge on this subject is extensive. He has set out his case, and I agree with his arguments.

As has been demonstrated throughout the passage of the Bill, the police are overworked and stretched to their limit. Food crime is not at the top of their list of priorities. A couple of years ago, I went out with the district council’s environmental health officer. Although most of the premises that we visited were providing good-quality catering facilities to both residents in homes and the general public, we visited one that had been closed due to the intervention of the police and the council, in a successful prosecution, for providing food that was unfit for human consumption. This was a very minor case, but it took several attempts before the police were eventually brought on board.

Given the increase in serious crime that the police are now facing, it is not surprising that they are unable to support the National Food Crime Unit in the way that the FSA would like. As the noble Lord, Lord Rooker, indicated, the available information shows that, in 2020, more than 30 operations were opened, while 40 were already running. This is clearly more than the police can deal with, given their current resources.

Organised crime has long tentacles, and that includes food crime. Surely it is better for the FCU to be able to apply directly to the courts than for the public to be put at risk by food crime. The FCU has to wait for the police to support it. Delays will occur, and some crimes will go unpunished. The Food Standards Agency supports this amendment. I hope that the Minister will be able to offer his support to it and allow the National Food Crime Unit to get on with its job unhindered.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, as other noble Lords have just said, serious and organised food crime can have very serious consequences. To free up scarce police resources by giving the National Food Crime Unit the powers that it needs seems sensible. According to the noble Lord, Lord Rooker, the National Police Chiefs’ Council supports this change, so I am looking forward to hearing from the Minister what I am missing, because I cannot immediately see any reason why this amendment should not be accepted.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

As has been said, this amendment raises the issue of food-related crime and the powers and resources available to tackle it. I will make just one or two comments that may seem almost irrelevant, in view of the very strong case that my noble friend Lord Rooker has already made, as we anticipated he would.

As my noble friend said, the National Food Crime Unit, which is part of the Food Standards Agency, works to tackle serious organised cases of food-related crime. My noble friend Lord Rooker powerfully and persuasively made the case that there are blocks on the powers that the unit can access and that it is often reliant on the police, who are overstretched across competing priorities, to be able to use certain powers or apply for warrants, for example. The amendment that my noble friend has moved would allow the unit to access powers directly, under the Police and Criminal Evidence Act, rather than waiting for police support to become available.

I will spell out exactly the Oral Question that my noble friend asked in February last year:

“My Lords, does the Minister accept that the National Food Crime Unit is operating against organised crime with its hands tied? Investigations are being hampered. Does the Minister agree that investigation powers should be strengthened to include powers to collect the necessary evidence to a higher standard? In other words, will the Government agree that the Police and Criminal Evidence Act powers should be granted to the National Food Crime Unit? The National Police Chiefs’ Council agrees to this to remove the burden from local police forces, which actually agree that food crime is not a high priority.”

As my noble friend said, the Minister replied:

“The noble Lord entirely has a point. I completely agree with him that the National Food Crime Unit has a formidable task ahead of it and that its investigatory powers could be enhanced and its impact improved. That is the view of the Government, industry and the police, and that is why we are committed to the dialogue”.—[Official Report, 22/2/21; col. 614.]

That is what the Government said in reply.

We welcome this commitment and would have given appropriate support to a resulting legislative process, which is why we are supportive of what my noble friend Lord Rooker seeks to achieve with this amendment. The Government have thus previously recognised that this is a problem, but what action has been taken so far since that clear recognition, which was repeated last February? Will the Government now accept the amendment my noble friend has moved? If not, why not?

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom Lord in Waiting (HM Household) (Whip)

My Lords, I am grateful to the noble Lord, Lord Rooker, for raising this important matter. I acknowledge that there is considerable experience of the Food Standards Agency in your Lordships’ House. We support, in principle, the proposal to increase the investigative powers available to the National Food Crime Unit. The fraud cases of which we have been made aware by the chair of the Food Standards Agency, Professor Susan Jebb—as referred to by the noble Lord—are truly shocking.

Food crime is a very serious issue, with fraud in our food supply chains costing billions of pounds each year. The National Food Crime Unit, which was established to investigate these crimes, should be empowered to tackle them, to improve the response to these cases and to reduce the burden on its colleagues in law enforcement. As such, we are still committed to working with the Food Standards Agency and DHSC, its sponsoring department, on extending certain Police and Criminal Evidence Act powers to the National Food Crime Unit. However, in doing so, we need to work through the implications of this. It may assist the noble Lord if I briefly set out some of the issues we think we would need to explore further.

First, the exercise of any PACE powers by the National Food Crime Unit must be necessary, proportionate and legitimate. As such, it is important that there are suitable governance, accountability, oversight, investigations and complaints arrangements in place, as there are for the police. The National Food Crime Unit is not a statutory body, nor does it have a separate legal identity. Oversight, governance and the complaints processes sit with the Food Standards Agency board, which commissions independent reviews and facilitates a complaints process which ultimately reports to the Parliamentary and Health Service Ombudsman. There is therefore no formal independent oversight.

There is also a lack of clarity on the necessary protocols when PACE powers would be exercised, including in relation to post-incident procedures on seizure, retention and evaluation of evidence, and the treatment of arrested persons without police presence. These are all issues which, I have no doubt, can be resolved but I am sure noble Lords would agree on the necessity of ensuring that the appropriate accountability and governance arrangements are in place, given that we are dealing with intrusive powers of the state. As such, we do not believe that it would be appropriate to extend the search and seizure powers in PACE to the National Food Crime Unit without further consultation on the issues I have described. I do not think the noble Lord, Lord Paddick, misses very much, but that is the answer to his question.

I reassure the noble Lord, Lord Rooker, that we are committed to taking this work forward with the Food Standards Agency. I do not have a specific answer to the question of the noble Lord, Lord Rosser, on where the dialogue is at the moment. On that basis, I hope that the noble Lord will be content to withdraw his amendment.

Photo of Lord Rooker Lord Rooker Labour

I remind the House that I said that the Food Standards Agency, and therefore the unit, can use the powers of RIPA and the CHIS Act that we passed last year. We are not dealing with some little quango here; this is a government department. If the Government were serious, between February last year and today they would have sorted this out.

I have not campaigned on this. I left it in February and thought, “All I have to do is wait until a vehicle comes along and check if it has been dealt with or not.” The fact is that I am not going to let the Minister get away with it. Someone is going to have to go to the members of the FSA board, and therefore the unit, and say to them, “The Government stopped this change.” When the next big scandal comes along—there are scandals of different scales, and it is nine years since horsemeat so we are due another any time now—no one over there will be able to say, “We were going to do this but Lord Rooker withdrew the amendment.” As such, I am going to test the opinion of the House.

Ayes 32, Noes 20.

Division number 3 Police, Crime, Sentencing and Courts Bill - Report (5th Day) — Amendment 109A

Aye: 32 Members of the House of Lords

No: 20 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Amendment 109A agreed.

Consideration on Report adjourned.

House adjourned at 10.29 pm.