Schedule 1 - The Serious Organised Crime Agency

Serious Organised Crime and Police Bill – in a Public Bill Committee at 9:45 am on 11th January 2005.

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Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs) 9:45 am, 11th January 2005

I beg to move amendment No. 64, in schedule 1, page 118, line 9, leave out sub-sub-paragraphs (b) and (c) and insert


(aa) such number of ex-officio members and other members (''ordinary members'') as the Secretary of State may determine.'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following amendments: No. 65, in schedule 1, page 118, line 14, leave out sub-sub-paragraphs (a) to (c) and insert—

'(a) there shall be the same number of ex-officio and ordinary members, and

(b) the total of the number determined under sub-paragraph 1(aa) must not at any time be less than four.'.

No. 66, in schedule 1, page 118, line 26, at end insert—

'(4a) The chairman shall have a casting vote only.'.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The purpose of these amendments is simple: to ensure that the board of SOCA cannot be controlled by the direct appointees of the Secretary of State. Paragraph 1 of schedule 1 sets out the composition of the SOCA board and contemplates a board comprising three categories of member: the chairman, to be appointed by the Secretary of State; ex officio members, who are to include the director general of SOCA and other employees of SOCA appointed by the director general after consultation with the chairman; and so-called ordinary members, who are appointed directly by the Secretary of State. There are no qualifying conditions that ordinary members must meet, so the Secretary of State has an unfettered choice. The Secretary of State also appoints the director general. The board is therefore limited to the Secretary of State's direct appointees—the chairman and the ordinary members—and the appointees of the director general, who is himself an appointee.

A further significant provision, to which the amendments are essentially directed, is in paragraph 1(2)(b), and is that

''the number of ordinary members . . . must not at any time be less than the number of ex-officio members''.

That stipulation is clearly designed to prevent the ordinary members from regularly being outvoted by the ex officio members, for which there can be no justification. We hope that the board will not regularly be split between the ex officio members and the ordinary members appointed directly by the Secretary   of State, but we agree that it is a prudent step to ensure that the ex-officio members do not have a controlling majority.

In other words, there should be a built-in balance. We agree with the Bill insofar as it attempts to build in a balance. However, what is sauce for the goose should also be sauce for the gander. The problem is that while the Bill very properly prevents the balance from being tipped in favour of the ex officio members appointed by the Secretary of State, it does not prevent the balance from being tipped the other way. We believe that there should be a built-in symmetry between ex officio and ordinary members.

The Minister will have noted that our amendments are both modest and simple, but they achieve the proper balance. First, they would allow the Secretary of State to determine the total number of board members. Secondly, they would allow the Secretary of State to appoint the ordinary members. Thirdly, they would continue to allow the director general to appoint the ex officio members. Fourthly, there would still be a minimum board size of four members as well as a chairman. Fifthly, and most importantly, they would ensure that the number of ex officio and ordinary members was equal. Our final amendment proposes that the chairman should have a casting vote, and the chairman would of course be expected to act impartially, free from any political pressure.

The amendments should be accepted for a number of reasons. First, it is important to remember that this Bill will effect a profound change in the way that crime is policed in this country. Independence of the police force from central Government has always been regarded as an important part of the delicate constitutional balance between the Executive and law enforcement agencies. Politicians are not policemen, or any other type of law enforcement officer, and policemen, policewomen and other law enforcement officers are not politicians. The situation should stay that way. The importance of the status of police officers as officers of the Crown is a theme to which I will return, but a general point will be sufficient for the purposes of the amendments. There is an important distinction between political accountability and political control. Political accountability is vital but political control profoundly undesirable.

We hope that the Secretary of State has no intention of using his power to make direct appointments to the SOCA board to outnumber the ex officio appointments made by the director general. If that is the case, we expect the Government to accept the amendments, for they will merely enshrine in legislation what the Secretary of State intends to do. Only if the Secretary of State does intend to make direct appointments to the board of SOCA, so as to outnumber the ex officio members, will the Government decline to accept the amendments. That would be a regrettable and wholly undesirable course for the Government to take, particularly given this Government's record on public appointments. As we know, in the Office of the Commission for Public Appointments, Dame Rennie Fritchie, monitors the   Government's appointments to public bodies. OCPA's ninth report, for 2003–04, makes very interesting reading. The commissioner's foreword makes it plain that she has continuing concerns about the way in which the Government makes appointments. On ministerial involvement in public appointments she said:

''I was concerned to discover in the course of last year that four Departments were routinely showing shortlists privately to ministers during the appointments process. Ministers are given a choice of candidates at the end of the process and can if they wish be involved throughout the process.''

The commissioner went on to say that she was particularly concerned that the unrecorded involvement of a Minister at such a late stage in the appointments process could be interpreted as political interference or personal preference. I could go on quoting from her report, but I want to spare the Minister embarrassment. In the report itself one can find results of OCPA's monitoring of the declared political activity of appointees. For appointments or reappointments in 2003–2004, some 439 appointees declared political activity. Of those, 266 declared activity undertaken for the Labour party—that is, 60 per cent.—and the comparative figures for the Conservatives and Liberal Democrats are 19 per cent. and 12 per cent. respectively. SOCA will be an executive non-departmental public body. For appointments made to such bodies in 2003–2004, the proportion of politically active appointees with Labour affiliations is similar: 91 appointees declared political activity, of which, 49—or 54 per cent.—were active for the Labour party, and six were chairs of executive non-departmental public bodies.

This is not the time to embark on an investigation of the way in which the Government makes public appointments. For present purposes, it is sufficient to note that there are continuing concerns, independently expressed, about the processes used and the results produced in terms of political affiliation. Against that background, it would clearly be sensible to ensure that the potential for politicisation of the SOCA board is properly limited.

Our amendments are modest. By giving the chairman—a direct appointee of the Secretary of State—a casting vote, and by ensuring that the rest of the board is equally balanced between ordinary members—also direct appointees of the Secretary of State—and ex officio members, there is no realistic prospect of the SOCA board somehow going off the rails. In our proposals, the board would be balanced and would, in particular, achieve the right balance between the desirability of political accountability and the undesirability of political control.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 10:00 am, 11th January 2005

I have some sympathy with the position outlined by the hon. Member for Sutton Coldfield. We are dealing with the SOCA board. I find the opening wording of schedule 1 a little confusing, saying that ''SOCA shall consist of'' rather than ''the board of SOCA shall consist of'', because that may be open to manifold confusion further down the line. I invite the Minister to look at that. There may, of course, be a technical reason for that wording, because of the corporate nature of SOCA.  

Almost every Home Secretary I can remember has wanted to subvert the tripartite arrangement as far as he feels he can get away with it, and to instil a degree of making police services accountable—I shall use the term ''police services'', whatever the Minister says—to the Home Secretary of the day. That is testimony to how times have changed. I was chair of a police authority when we had reforms back in the 1990s. The then Home Secretary, the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), wanted to appoint all the members of all the police authorities for the whole of England and Wales. He felt it entirely appropriate that the Home Secretary should have control of the membership of the so-called independent police authorities. Happily, there was a degree of resistance to that, and we ended up with the most Byzantine structure ever formulated for the appointment of police authorities, which involved at least some outside involvement in the working of police authorities. Times have changed. The Conservatives now put forward a proposal that would wrest some control from the Home Secretary, while still accepting the principle that the new body is a national one in which it is quite proper for the Home Secretary to have an involvement. I support them in that contention.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I hope that we can continue as we did on the first clause with constructive debate and discussion and that some of the points that I will make will reassure the hon. Member for Sutton Coldfield that we believe it important for SOCA to have operational independence. A number of areas in the Bill ensure that that independence is enshrined and supported. As the hon. Gentleman explained, the amendments relate to the composition of the SOCA board. In some respects, as he rightly points out, they do not represent a great departure from the existing provisions in schedule 1. Unfortunately, however, I am afraid that I cannot commend them to the Committee.

We indicated in the White Paper ''One Step Ahead'' that responsibility for developing the strategy to deliver the priorities set for the agency would fall to a small board, in which non-executives would be in a clear majority. Schedule 1 achieves that by providing for a board that comprises a chairman, other non-executives, or ordinary members, appointed by the Home Secretary, and executive, or ex officio, members, one of whom will be the director general. The Bill provides that the number of ordinary members must not be less than the number of ex officio members.

In providing for the inclusion of the director general and other executive directors on the SOCA board, we have already moved much further than is normally the case for an NDPB. If hon. Members look at other NDPBs, they will find that the overwhelming majority of boards consist largely or exclusively of non-executives. It is quite exceptional for the chief executive of an NDPB to be a member of the board, so we feel that we have moved a considerable way.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Minister goes on about SOCA being an NDPB, but   the powers that it will be given in the Bill are not those of an NDPB: they are of a hybrid structure and more akin to those of a police authority. That is why I think the Minister is missing the point. I am all in favour of SOCA, but I am in favour of it being an independent body. The Minister is confusing the two concepts, which is why there is justifiable cause for concern.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I welcome contributions to the debate, but the hon. Gentleman's explains why we have not gone for the format used for the majority of NDPB boards. The role played by the director general and the non-executive directors will be crucial in ensuring that people recognise the work done by the organisation. Different levels of accountability will be required, and we need the sort of people who will contribute to successful oversight of the organisation.

I simply wanted to make it clear that we are creating something new, but it looks as if I will have to keep reiterating that we are not creating a police organisation. We are combining several different skills and talents in a law enforcement organisation that will bring together people from policing backgrounds, Customs and Excise backgrounds and perhaps financial investigations backgrounds. It is important that the structures should reflect that and that it can be held to account.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I appreciate the Minister's point, and we shall have an opportunity later to consider some of the powers that SOCA is being given. However, I hope that she is not suggesting that those are the ordinary powers of an average NDPB, because I can assure her that they are not.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

Perhaps the hon. Gentleman is not listening; I just made that point quite clearly. We feel that we need something beyond the service authority that existed for NCIS and the NCS. We are trying to establish a structure that best reflects the organisation we are creating and the powers that it will have, while recognising that it needs accountability and operational independence. I think that I made that quite clear in my first answer to the hon. Gentleman.

The Bill provides that the number of ordinary members must not be less than the number of ex officio members. Amendment No. 65 would require there to be an equal number of ordinary and ex officio members. The hon. Member for Sutton Coldfield may argue that that will still place non-executives in a majority of one when the chairman is added to the equation, and so it will. Furthermore, we intend that SOCA's first board will indeed have an equal number of ordinary and ex officio members. However, on some occasions, it may be necessary to consider how we can allow specific skills to be added to the board, possibly to provide input in relation to a new manifestation of organised crime, without necessarily automatically adding to the executive directors and the management structure under the director general. For that reason, although we agree in principle with what has been said about balance, we want the agency to have some flexibility.

The Committee will be aware that we have already appointed Sir Stephen Lander as chairman-designate   and Bill Hughes as director general-designate. Last month, we initiated the recruitment of the four executive directors—one each for corporate services, intelligence, intervention and enforcement—and next spring we will recruit five non-executives to produce a board of 11. While we envisage that in the first instance there will be parity between ordinary and ex officio members, with the non-executives in a majority of one, I advise the Committee to stick with the formula in the Bill. We accept that, in the interests of effective corporate governance, the non-executives must be in a majority. The Bill makes the point strongly, and it is worth adding that some NDPB boards are composed entirely of non-executives. While I accept the point made by the hon. Member for Beaconsfield about the nature of the organisation, that is why we feel that the formula is appropriate.

The hon. Member for Sutton Coldfield made a number of points about politicisation of SOCA through the appointments process. I do not intend to respond to all of them. All non-executive appointments will be subject to the Nolan rules and to audit by the Commissioner for Public Appointments, and appointments will be determined on merit, not on the basis of a candidate's political persuasion. As a result, the non-executives will be no less independent of Ministers than the executive members of the board. It is important that, as part of the appointments process, people should acknowledge any political affiliation that they have. I recall a case in Doncaster, in a different context, in which a person was appointed to a local trust. He declared that he had no political affiliation, and we later found that he had been a Conservative candidate—perhaps he did not feel that that was a political affiliation. While it might sound odd when we say it out loud, it is important that people in public life acknowledge their political affiliation, and we should not see such an affiliation as being bad in itself. All the non-executive appointments will be subject to the Nolan rules and to audit by the Commissioner for Public Appointments, and I am sure that if anybody had any concerns about this part of the Bill, they would have been made known to us.

Photo of Geoffrey Clifton-Brown Geoffrey Clifton-Brown Conservative, Cotswold 10:15 am, 11th January 2005

Given the constitution set out in schedule 1, it is likely that the Chairman will, on some occasions, need to exercise a casting vote. Will the Minister deal with that? She will know that sometimes people are sick or do not attend for other good reasons, which could be important, given the narrowness of the majority of the Secretary of State's appointees.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

The hon. Gentleman makes an interesting point. In a roundabout way, he seems to be arguing against the amendments in saying that the majority on the board—six to five in favour of the non-executives—is too narrow, and that we should make it larger.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

Well, given what he just said, he is arguing that if somebody is sick, there might not be a majority of non-executives. That seems to contradict the hon. Member for Sutton Coldfield. I shall read the report of our proceedings to check that I heard him   correctly. We will ensure that the schedule covers how the standing orders are to be developed by the SOCA board. Matters concerning its quorum will be for it to decide. I suggest that the hon. Member for Cotswold (Mr. Clifton-Brown) looks at his own words, because I think that he is making an argument for an increase in the number of non-executive members.

Amendment No. 66 would restrict the voting rights of the chairman, so that he could exercise a casting vote only in the event of a tie between the other board members. In practice, few decisions of NDPB boards are taken by formal vote. Nevertheless, I see no reason why we should limit the chairman's freedom to have a full say in any decision. We are asking the chairman of the organisation not merely to turn up to chair meetings but to take full responsibility for the organisation and to be accountable for the annual plan.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The Minister is being unhelpful. This is an extra option to maintain the balance. She knows perfectly well that the chairman influences the committee not only by voting, but by participating in its work. This is another example of the Opposition's having come up with a helpful amendment to address the issue of political accountability.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

My understanding is that the amendment would tie the chairman's hands, because in the event of a decision being made on a show of hands the chairman would have a casting vote. We believe that the chairman should have a vote in the same way as any other board member and, in the event of a tie, a second, casting, vote, to reflect the fact that the chairman should take part in the substantive discussion. Amendment No. 66 would restrict the chairman's voting rights.

The matter is one for the SOCA board to determine and to enshrine in the standing orders to be made under paragraph 17 of schedule 1. I invite the hon. Gentleman not to press the amendments.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

I have listened to the Minister with care and am extremely disappointed that she did not find any of our three amendments sufficiently attractive to support them. I should have thought that all hon. Members would be able to support the point that the Opposition are making about the important difference between political accountability, with which we all strongly agree, and political control.

The Minister mentioned those who have already been appointed. I agree that Sir Stephen Lander is an outstanding public servant; I have no doubt that he will do an outstanding job. However, it is important that the board should be seen to be politically accountable and that the level of political control should be just and fair. We do not think that the Minister has said anything to refute my argument about that balance. We should like to vote on amendment. No. 64.

We shall return to issues of political control later in our deliberations, but at the heart of our case about political control is our belief that the Home Secretary should either have a controlling effect on the board—as he will if the amendment is defeated—or should control its priorities. The Bill would give the Home   Secretary both those capacities, which we think is a bad idea. We shall table amendments later to try to redress the balance.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Division number 1 Nimrod Review — Statement — Schedule 1 - The Serious Organised Crime Agency

Aye: 6 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Paul Farrelly Paul Farrelly Labour, Newcastle-under-Lyme

On a point of order, Dame Marion. I am present in Committee but my name was not read out for the purposes of the vote.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

I am sorry, but it is too late now. The numbers have already been announced.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

I beg to move amendment No. 120, in schedule 1, page 120, line 28, after '9)', insert—

'(aa) such persons appointed by SOCA under this paragraph as police members of SOCA,'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss the following amendments: No. 121, in schedule 1, page 120, line 36, after first 'SOCA', insert

'or police members of SOCA'.

No. 108, in schedule 1, page 122, line 33, at end insert—

'Police members of staff of SOCA

13A A person shall be appointed as a police member of SOCA if—

(a) he is attested or sworn as a constable and

(i) he is a member a police force maintained under section 2 of the Police Act 1996;

(ii) he is a member of the Metropolitan Police Force or City of London Police Force;

(iii) he is a regular constable within the meaning of the Police (Scotland) Act 1967;

(iv) he is a member of the Police Service of Northern Ireland;

(v) he is a member of the Ministry of Defence Police appointed on the nomination of the Secretary of State under section 1 of the Ministry of Defence Police Act 1987;

(vi) he is a member of the British Transport Police Force;

(vii) he is a member of the States of Jersey Police Force;

(viii) he is a member of the salaried Police Force of the island of Guernsey; or

(ix) he is a member of the Isle of Man Constabulary;

(b) he is an officer of Revenue and Customs, or

(c) he is an immigration officer within the meaning of the Immigration Act 1971.

13B(1) Subject to the provisions of this paragraph, the Secretary of State may make regulations as to the government and administration of SOCA and conditions of service within SOCA.  

(2) Without prejudice to the generality of sub-paragrpah (1), regulations under this paragraph may make provision with respect to—

(a) the ranks to be held by police members of SOCA;

(b) the promotion of police members of SOCA;

(c) voluntary retirement of the police members of SOCA;

(d) the efficiency and effectiveness of police members of SOCA;

(e) the suspension of police members of SOCA from membership of it and from their office as constables;

(f) the maintenance of personal records as members of SOCA;

(g) the duties which are or are not to be performed by the police members of SOCA;

(h) the treatment at occasions of police duty of attendance at meetings of the Police Federations and of anybody recognised by the Secretary of State for the purposes of section 64 of the Police Act 1996;

(i) the hours of duty, leave, pay and allowances of police members of SOCA; and

(j) the issue, use and return of—

(i) personal equipment and accoutrements; and

(ii) police clothing.

(3) Regulations under this paragraph for regulating pay and allowances may be made retrospective to any date specified in the Regulations, but nothing in this sub-paragraph shall be construed as authorising the pay or allowances payable to any person to be reduced retrospectively.

(4) SOCA may—

(a) pay, or make payments in respect of pensions or gratuities to or in respect of any persons who are or have been police members;

(b) provide and maintain schemes (whether contributory or not) for the payment of pensions or gratuities to or in respect of any such persons.

(5) Before exercising its powers under sub-paragraph (4), SOCA shall have regard to any provision made under the Pensions Act 1976.'.

No. 74, in clause 38, page 21, line 12, leave out 'Whether or not' and insert 'only if'.

No. 142, in clause 41, page 22, line 3, leave out from 'a' to end of line 4 and insert 'police member of SOCA'.

No. 143, in clause 41, page 22, line 5, leave out 'The designated person' and inset 'A police member'.

No. 144, in clause 41, page 22, line 6, leave out 'the designated person' and insert 'a police member'.

No. 122, in clause 41, page 22, line 13, leave out 'the designated person' and insert 'a police member'.

No. 123, in clause 41, page 22, line 16, leave out 'the designated person' and insert 'a police member'.

No. 124, in clause 41, page 22, line 17, leave out 'The designated person' and insert 'A police member'.

No. 125, in clause 41, page 22, line 21, leave out 'the designated person' and insert 'a police member'.

No. 126, in clause 41, page 22, line 23, leave out subsection (8).

No. 127, in clause 42, page 22, line 29, leave out 'persons designated' and insert 'police members'.

No. 131, in clause 46, page 24, line 41, leave out 'designated person' and insert 'police member'.

No. 132, in clause 46, page 25, line 1, leave out 'designated person' and insert 'police member'.  

No. 133, in clause 46, page 25, line 4, leave out 'designated person' and insert 'police member'.

No. 109, in clause 46, page 25, line 5, leave out 'designated person' and insert 'police member'.

No. 110, in clause 46, page 25, line 8, leave out 'designated person' and insert 'police member'.

No. 111, in clause 46, page 25, line 10, leave out 'designated person' and insert 'police member'.

No. 112, in clause 46, page 25, line 12, leave out 'designated person' and insert 'police member'.

No. 113, in clause 46, page 25, line 24, leave out 'designated person' and insert 'police member'.

No. 114, in clause 46, page 25, line 25, leave out 'virtue of the designation' and insert

'reason of holding the powers'.

No. 115, in clause 47, page 25, line 39, leave out 'designated persons' and insert 'police members'.

No. 116, in clause 47, page 26, line 6, leave out 'designated persons' and insert 'police members'.

No. 118, in clause 49, page 26, leave out lines 36 and 37.

No. 119, in clause 49, page 26, line 40, leave out subsection (2).

New clause 8—Police members of staff of SOCA to have powers of constable, etc.—

'(1) The police members of staff of SOCA (''the police members'') shall—

(a) have the powers of a constable,

(b) have the customs powers of an officer of Revenue and Customs, and

(c) have the powers of an immigration officer.

(2) For the purposes of this Part ''police member'' means a person who falls within paragraph 13A of Schedule 1.'.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

This group forms the crux of the Opposition's case on the constitution of SOCA. I draw the Committee's attention in particular to amendment No. 108 and new clause 8. With the other, consequential, amendments, their purpose is to create a category of officers of SOCA classed as police members. Police members will have the powers presently exercised by police officers, Revenue and Customs officers and immigration officers. The amendments will remove the confusion that will be generated by the mix-and-match designations anticipated from the provisions of part 1, chapter 2.

To understand the amendments requires an understanding of two issues. The first is the historical significance and importance of the office of constable. The second is the way in which the Bill, as presented, proposes to give what might broadly be described as police powers to SOCA staff.

First and foremost, I need to provide a little history about the office of constable. It is important, because it is a history that is in danger of being eroded by the Bill, almost by default. Although today's police forces are the creation of statute and the police have numerous statutory powers and duties, in essence a police force is from a legal point of view neither more nor less than a number of individual constables, whose status derives from the common law. I draw the   Minister's attention to the fourth edition of ''Halsbury's Laws of England'', volume 36(1), ''Police'', paragraph 201.

The office of constable dates back to the parish constable, who, by the beginning of the 17th century, was responsible for the preservation of the peace within his bailiwick and for the execution of the orders and warrants of justices of the peace. The constable's oath and his close relationship with the justices of the peace then characterised him as ministerial officer of the Crown, like a sheriff or a justice of the peace, rather than as a mere local administrative officer. In short, constables have never been civil servants.

Various enactments were passed in the 19th and 20th centuries to provide for the establishment of police forces. Powers were not conferred on members of police forces as such, but a member of a police force must on appointment be attested as a constable by making a declaration. A member of a police force now has all the powers and privileges of a constable throughout England and Wales. The hallmark of the present day constable therefore remains, as it was in the 17th century, his attestation. Until so attested, he has neither the authority nor the status of a constable. Once he is attested, he holds that office. The office applies equally to members of police forces, to special constables, and to the director general and police members of the National Criminal Intelligence Service and the National Crime Squad.

I draw attention to the fact that when Parliament created NCIS and the NCS, it wisely saw fit to maintain the significance of the office of constable by creating a category of police member of those organisations. The Bill will abolish NCIS and the NCS and absorb those organisations into SOCA. What then will be the precise status of a police constable? When carrying out his or her duties as a constable, a member of a police force of whatever rank acts as an officer of the Crown and a public servant. Their powers are exercised by virtue of their office, and unless they are acting in execution of a warrant, their powers can be exercised only on their own responsibility.

A police constable who deliberately fails to carry out his or her duties by wilfully omitting to take steps to preserve the Queen's peace or to protect a person under attack actually commits a criminal offence: the common law offence of misconduct of an officer of justice. The Crown is not liable for the wrongful acts of a member of a police force. Although a constable is an officer of the Crown and a public servant, his or her relationship with the Crown is not that of master and servant nor that of principal and agent. He or she is a servant of the Crown only in the sense that any holder of a public office may be called a servant of the Crown or of the state.

Well, one might say that all that is very interesting, but why on earth does it matter to us here today in 2005? The answer is that it has some important consequences for the nature of policing and for the independence of our police force.  

A police officer cannot be dismissed on notice. They cannot take industrial action. They have a duty to act and report both on and off duty. They are also politically impartial. Those have been the characteristics of our police for at least the past 175 years, and they derive from the office of constable. As a result, our police are unique. As a result of that, they are uniquely good. I note in passing that there are issues to which sufficient thought has not been given by those responsible for the Bill. We see from new clause 1 that the Government have realised that they have not made proper provision for the liability stemming from the unlawful conduct of SOCA staff.

The second issue that I have identified is how the Bill proposes to grant police and other powers to SOCA staff. Once one understands the current proposals for equipping SOCA staff with police powers, one sees immediately that the Bill will create a deeply unsatisfactory regime. A radical rethink is required. Clause 38(1) gives the director general power to

''designate a member of the staff of SOCA . . . as . . . a person having the powers of a constable'' or

''the customs powers of an officer of Revenue and Customs'' or

''the powers of an immigration officer.''

Who can be designated as having the powers of a constable, a Revenue or Customs officer, or an immigration officer? A safeguard that the person was already trained and qualified to exercise those powers would provide at least some comfort, but the Bill expressly provides that any member of SOCA's staff can be given any of those powers, or indeed all of them, whether or not he or she is already qualified to exercise them.

Let us look more closely at the process of designating a member of SOCA with the powers of a constable. In the case of a designated constable, there is no requirement for this second-class constable to take his oath of attestation. He will have the powers of a constable, but not, it seems, the duties. The effect of clause 38(5) is that if an employee of SOCA was a constable before he was designated by the director general, his tenure of the office of constable is suspended. It seems, therefore, that these second-class constables can take industrial action, just as Customs and immigration officers can at present.

Under clause 41(2), it appears that the designation of constable brings with it all the powers and privileges of that office. In fact, under clause 28(2)(a), the designation made by the director general can be made subject to limitations on the powers that can be exercised, or to limitations on the purposes for which powers are exercised. So there will be second-class constables with second-class powers. The lawyers will have a field day trying to work out whether, in any particular case, the powers exercised by the constable-designate were within his authority, or whether they   were exercised for an authorised purpose. That will certainly not help to combat serious or organised crime. Worse still, under clause 38(2)(b), persons can be designated as constables for fixed periods. Under clause 40, designation can always be withdrawn, even if it was given originally without time limit.

The Police Federation reports that a straw poll shows that an overwhelming 95 per cent. of serving NCS officers stated that they were unwilling to transfer to SOCA. That is hardly surprising. Quite apart from the wholly unsatisfactory nature of the arrangements from the point of view of those unfortunate enough to be designated as temporary second-class, limited-power constables, what is the position for those in relation to whom the constables-designate seek to exercise their powers? When someone is challenged by a police officer, surely they are entitled to know what the powers of that constable are. Improper exercise of police powers is rare, and the fact that anyone can discover, if they want to, what powers a police officer has by virtue of his office is a useful way of maintaining that state of affairs. But what will the position be if someone is challenged by a constable-designate? How are they to know whether the designation is still in force? More importantly, how are they to know whether the powers that the constable-designate seeks to exercise have in fact been granted to him or her? Are constables-designate to carry around with them a list of the powers that the director general has decided to grant them, together with a list of those that they have not been granted? Of course, the constable-designate will also need to demonstrate not only that he has the powers, but that he is exercising them for one of the purposes for which he has been authorised.

What the Bill provides for in relation to constables-designate applies equally to SOCA staff designated to exercise Customs or immigration officer powers. However, those are not three distinct menu options—they are a sort of smorgasbord. The combined effect of clause 38(1) and (2) is that a person who has never exercised any of the powers before can be given a mix-and-match set of powers—part constable, part Customs officer and part immigration officer.

Imagine a scenario in which established home-grown criminals are believed to be running a large-scale cigarette smuggling operation through Dover docks. After long and careful surveillance, there is to be a raid of a warehouse. The first planned raid had to be postponed because of industrial action by SOCA staff, but it has been rescheduled and the team is ready to go. Arrests need to be made, documents need to be seized and smuggled goods will need to be taken into custody. Along come the group of SOCA staff, who are a mixture of constables-designate, who between them have most, but not all, the powers of policemen, and Customs officers who have Customs powers but no more.

When the warehouse is raided, there are some surprises, but not only for those already inside. It turns out not only that cigarettes are being smuggled, but that there is evidence of cocaine importation. Many of the people in the warehouse speak poor English, and it   soon transpires that there seems to be extensive involvement of an eastern European gang. It emerges that SOCA has turned up without all the powers that it needs. It is not quite clear whether the powers of the constables-designate are extensive enough. The Customs officers-designate need to check whether the purposes for which they are authorised are sufficiently widely drawn to allow them to seize all that they need to in my scenario. The picture is not attractive—it looks more like the Keystone Cops than 21st-century law enforcement.

A year later the trial collapses. Defence lawyers, having obtained full details of the precise powers of each of the investigators, discover that one of the authorisations had expired altogether and that a key piece of evidence was seized by someone acting in excess of their powers. There must be a better way to equip SOCA staff with the powers that they will need.

Having explained, by way of background, what it means to be a police constable and the proposals to create pale imitations to deal with serious and organised crime, and having painted a picture of the risks inherent in the mix-and-match scheme anticipated in clause 38(2), I turn briefly to the amendments. Instead of the second-class constables-designate anticipated in the Bill, we propose to create a unified category of police members of SOCA who can exercise the powers of constables, the Customs powers of Revenue and Customs officers, and the powers of immigration officers.

In essence that aim is achieved by two core amendments. First, amendment No. 108 provides a new definition of police members of SOCA. Staff who satisfy one of three alternative criteria will be police members. The three criteria are simple—the person concerned must be either a constable in a police force, a Revenue or Customs officer, or an immigration officer. That approach will mean that SOCA will draw on staff who already have experience in one of the three core law enforcement activities that SOCA seeks to draw together.

The second core proposal, in new clause 8, is intended to replace the cumbersome machinery in clauses 38, 29 and 40 for what I described as a smorgasbord of powers and purposes granted to designated persons—in that connection I draw the Committee's attention to amendments Nos. 139, 140 and 141. The proposal is also to provide that all police members may exercise the power of a constable, the Customs powers of a Revenue and Customs officer and the powers of an immigration officer.

The purpose of SOCA is to strengthen the powers available for

''preventing and detecting serious organised crime''.

That, at any rate, is what clause 2(1)(a) says. At their heart, those functions are policing functions. What is needed is not second-rate policemen, but super policemen. It seems that all the front-line staff of SOCA who exercise powers of investigation and arrest and use warrants and so on, ought not only to have the powers of constables, but to combine those powers with the necessary Customs and immigration powers.  

Training, of course, will be required. For those who come to be police members from the police force, that training will need to deal with the new customs and immigration powers. For those who come from Customs and the Revenue, the same applies in relation to their new police powers, and we expect that extensive training will be required. The same is so for those who come from the Immigration Service. No doubt regulations will need to be made to deal with the appropriate training of SOCA police members.

Our proposals are bold but simple. Bold action is needed if SOCA is to have a realistic prospect of achieving its aims. The simplicity of our proposals means that they will bring clarity to the powers of SOCA law enforcement officers. All those officers will have the same powers. Those powers are extensive, but extensive powers are needed. A police member of SOCA will be in no doubt about the powers he or she is to exercise. He will not need to pause to ask himself whether the power he is authorised to exercise is, on any particular occasion, within the limited purposes for which he has been authorised to exercise it. For those who are challenged by SOCA police members in the course of investigations, there will be no doubt as to the powers that can be exercised. When prosecutions are mounted, there will be no field day for defence lawyers, picking over the details of which officer did precisely what, and why, and whether he was authorised to do it.

Serious and organised crime calls for investigation and prevention by officers with serious and properly organised powers. Our amendments would achieve that, although I am happy to defer to the Minister in respect of the drafting if she feels that they do not fully achieve what they set out to.

Photo of John Mann John Mann Labour, Bassetlaw 10:30 am, 11th January 2005

The hon. Gentleman will forgive me for still trying to take in his theoretical example. I am sure that he has plenty of evidence for how much cocaine has been smuggled in through eastern Europe, but it seems rather a circuitous route.

My question is whether the hon. Gentleman's myriad amendments would reduce employment rights, including the right to strike, of any members of SOCA in any way.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

I am sorry that the hon. Gentleman was having trouble with my example. I produced it in the hope that it would demonstrate the pitfalls in the current set up, and I look forward to the Minister's dissecting it and explaining why those pitfalls do not exist. We are very concerned that they do.

On the hon. Gentleman's specific point about employment rights, we will come to a set of amendments deal specifically with that and with the balance required in dealing with employment rights and complaints procedures between policemen and policewomen and civil servants. Clearly, his and my reaction to that point will depend on what the Minister says about this set of amendments, which clearly seek to remove some of the confusion and delineate a set of police members of SOCA.

In offering the amendments, we seek acceptance by the Government of our key criticisms of principle on this part of the Bill and in the make-up of the new   agency. I accept that we are all as one in the aim of ensuring that the agency is able to combat serious and organised crime, but I hope the Minister will accept these amendments or take them away to consider which of them she can accept or explain why, as presently drafted, the Bill does not cause the very confusions that I have set out.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 10:45 am, 11th January 2005

As the hon. Member for Sutton Coldfield (Mr. Mitchell) said, this is a core issue of the Bill, and a core area of potential division between Opposition Members and the Government. As the Minister will be aware, there is serious concern outside this Committee, within the ranks of the police service, about the consequences of what is proposed. Anyone who has had any dealings with the police at any operational level fully understands the importance attached to the office of constable.”

We do not need to take an overdose of constitutionality to understand that this is considered to be of paramount importance in understanding the role and functions of the police officer. The office of constable, as an officer of the Crown, carries with it status, duties, responsibilities and protections. Those are protections from inappropriate influence; an awareness that as an officer of the Crown, an officer is doing his or her duty to the best of their abilities and cannot be manipulated in ways that are incompatible with the office of constable.

That is why police officers feel strongly about maintaining the office of constable. It has been a recurrent theme in my dealings with the service over the years, and I stand four-square behind the status of that office. It is something that is worth protecting by enshrining it in our law. Countless statutes in the law of England and Wales, and in Scots law, reflect the particular position of the constable. It is the constable who is given the powers that are not given to the ordinary citizen. They are quite extraordinary powers in terms of the plurality of our citizenship: the power to detain, to arrest, to investigate, to seek arrangements for a search, or to ensure identification. As a society, we should not give away those powers lightly to any individual. That is why I say that the office of constable is worth protecting.

As the hon. Member for Sutton Coldfield said regarding the police side of SOCA's functions, this was well understood in setting up its predecessor organisations, NCIS and the NCS. Specific arrangements were made for what were then hybrid organisations. NCIS in particular was a hybrid organisation, undoubtedly, but it was clearly understood that those police officers working in NCIS remained police officers. They may no longer have been working for a constabulary, nor have been donning a blue uniform and helmet, but they were police constables and officers of the Crown, with all the responsibilities and duties that go along with that.

So the point made by the hon. Gentleman is an important one. In looking at this new organisation we have to protect that which is good in the police service and ensure that it is maintained. The Minister will again say that this agency falls way beyond the police service, but it carries out policing functions and has police powers. It is inspected by Her Majesty's inspectorate of constabulary and subject to investigation by the Independent Police Complaints Commission. It is in many ways a policing organisation and we must understand that.

Given that it operates on a United Kingdom basis, we should also be aware of differences in the   constabulary's position between the law of England and Wales and Scots law. If we are to have officers acting with the designation of constable, they must be aware of the legal framework within which they work. That is something that we will return to. It would be entirely inappropriate for an English constable who was familiar with the workings of the Police and Criminal Evidence Act 1984, but completely unaware of what relationship he or she may have with the procurator fiscal, to blunder their way through Scots law. Moreover, someone who has never held the office of constable in either jurisdiction would certainly not have the necessary training or knowledge to carry out their duties appropriately. We will return to this issue when we discuss clause 38. I have tabled amendments to that clause dealing with the transition between taking on employment in the new SOCA and leaving or returning to employment by a police force.

The hon. Member for Sutton Coldfield has done the Committee a service by tabling this comprehensive list of amendments. The Government cannot simply swat aside those serious concerns; they need to be addressed. We all want to see SOCA working effectively. We all want to ensure that there is no confusion; we want to ensure that appropriate officers are attracted into the service, and that they feel confident in the positions that they hold in the agency; and they should know what their powers are. We also want to ensure that they realise that, in many ways, as constables they remain officers of the Crown and not employees of an organisation to which they hold only a temporary contractual affiliation rather than the much deeper relationship that goes with the office of constable.

I hope that the Minister will reflect on what has been said today, and also on what I know has been said to her by those who represent police organisations. I hope that she will carefully consider the status of officers in the agency, and whether what is proposed genuinely reflects the responsibilities that we seek to place on them.

Photo of Vera Baird Vera Baird Labour, Redcar

The hon. Member for Sutton Coldfield clearly set out the nature of the office of constable. The point might best be made by saying that it is the difference between the role as set out by the hon. Gentleman, with the officer having the freedom and responsibility of being directly appointed by the Crown, and that of an employee in a commercial relationship with an employer, whose instructions he is contracted to follow whether or not they clash with his duties as a constable. That might most effectively sum up the potential tension. Of course, police officers cannot be dismissed so easily as employees.

I suppose that it is possible to exaggerate the independence of the role of constable. I have never known a police officer tell a sergeant that he was not going to follow orders because he thought that what he was being told to do was incompatible with his individual responsibility as a constable. The role is important. It is important to the police officers who hold it, but it is also important symbolically—and even constitutionally.  

I foresee a situation developing—I would be pleased if the Minister were to comment—in which much street policing is likely to be carried out by community support officers. They are not constables; although they are being given increasing powers, they are at the bottom end. At the top end are SOCA staff, who will not necessarily be constables. Only the middle level will include constables. I wonder whether that is because the Government do not truly put much value on the role; that may or may not be a realistic approach, but it is an interesting and important question.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

Does the hon. and learned Lady share my concern about something to which I referred earlier—the squeezing of the role of the office of constable to the point at which the police are dealing primarily with outbreaks of civil disturbance and effectively becoming a gendarmerie rather than a police force?

Photo of Vera Baird Vera Baird Labour, Redcar

I heard that point being expressed as I arrived; I should have apologised at the outset, Dame Marion, for not being here at the start of the sitting. I see the hon. Gentleman's point.

There may be a more practical point here, which is that the director general or someone designated by him will be able to appoint to the role of constable someone who has never before had such a role. That is not a theoretical or symbolic question. It is about giving someone extra powers. They are serious powers—the power to take away someone's liberty; if he tries to escape, the power to chase and restrain him; the power to use reasonable physical force; the power to handcuff him, to search his home and, if necessary, to break and enter the home in order to carry out the search.

It is a slight cause for concern—I may be understating it—that the Government countenance giving those powers to someone who has not had them before. We clearly need to know what caution will be exercised when making such appointments, because one does not want SOCA giving powers of that sort to people not trained to deal with them, even under the pressure of needing to launch an operation quickly because of an emergency. Will the Minister comment on that?

I did not take strongly—it may have been a defensive move on my part—the point about lawyers being likely to play havoc with authorisation. It would be a pretty poor officer who did not check before he went on an operation what authorisation he had and whether it had expired. That is a fairly fanciful position. However, I am sure that there are good reasons for requiring it, and that they are connected with flexibility—bringing people into SOCA and letting them go out again should one type of crime increase and then reduce if SOCA is successful. No doubt the reasons are important, but police officers have real concerns and I am sure that the Minister will address them.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

There comes a point in a Committee's consideration of any legislation—I have served on enough home affairs Committees over the past three years to say this—when it reaches a crunch point. I   wish SOCA well. I understand why the Government want to set it up: it has the potential to perform a valuable service in the detection and prevention of crime and the arrest of serious criminals. However, when one looks at the totality of the Bill, and at the powers that are to be conferred on SOCA, it is apparent that SOCA is not some Government Department producing intelligence, it is an enforcement agency, and some of its proposed powers are draconian.

Picking up the point made by my hon. Friend the Member for Sutton Coldfield, it is true that the office of constable has always existed as a separate office under the Crown, not as part of the Administration. It is also true that in the past it was easy to be sworn as a constable. My cousins have truncheons on their walls from the time in the early 19th century when their forebears were sworn as constables to suppress riots. All one had to do was to go before a magistrate and swear. One was then issued with a truncheon and went off to carry out the function. We have moved on a little since then, and obtaining the office of constable is seen as a professional activity. It starts with training and gaining an understanding of the rights and, above all—as the hon. Member for Somerton and Frome said—responsibilities that go with the office, and of the independence of action that is supposed to be conferred.

The hon. and learned Member for Redcar (Vera Baird) is right. I do not suppose that many constables have told their sergeants that they will not do something, but the potential exists for that to happen. Later in the Bill, SOCA officers of one kind or another—including some who might not be constables at all, which is more problematic—have conferred on them certain substantial powers, so it is important that the Government get SOCA off on the right footing. The way in which it is being devised is misplaced. An enforcement agency that is almost certainly going to contain police officers to carry out its work should, as my hon. Friend the Member for Sutton Coldfield said, have police members and follow the well tried procedure that NCIS had.

I urge the Minister to take in good part, and as a co-operative enterprise by the Committee, the deep anxieties that are being expressed about the way in which the Government seem to be going about this. The irony is that if the Government do not listen in this place, they will be forced to listen in another place. Given that they want to introduce the Bill, the Minister would do well to consider how it can be used to set up the organisation that we all want in a fashion that commands approval. I am looking forward to hearing her response, as the Committee stage is an opportunity for dialogue. I hope that she will explain why she does not agree with Committee members of all parties that there should be police membership and that this should be a police body with constables sworn in the usual way. What is the downside? What problem does the Minister perceive? Why can we not have such things? If she can give me a coherent and understandable explanation, I may be persuaded. At the moment, however, I simply do not see it.  

There are a number of lurking anxieties about the Bill, which I do not necessarily share but which we must face head-on. One is that the last Home Secretary, with his generalised dislike of police operational independence, wished to create a body without such features and that is one reason why the Bill was drafted in its present form. If that was indeed his fear, I disagree with him, but we now have a new helmsman, so we have all the more reason to review any such lurking prejudices and to look at the Bill afresh.

Ultimately, we come back to fundamental issues of civil liberties. Like so many Bills that we have considered over the past few years, this Bill gives state agents considerable powers. There may be good reasons for doing so. We must face up to the fact that, as Ministers often remind us, we live in a more lawless world—although it is apparently a more lawless world in which crime is decreasing; there has always been a certain incompatibility between those two views—and a world in which we need to take effective action to deal with dangerous people. In the process, however, we should not throw out the baby with the bath water. We must preserve our civil liberties.

I have great faith in the policing service in this country precisely because of the ethos that underpins it. The problem with the Bill is that we are creating an agency that will have considerable powers and exercise police functions—if it were not going to do so, there would be no need for clause 38—but we are not giving it the identity that it ought to have. I hope that the Minister will respond positively to the amendments. We want SOCA and we want it to work as well as the Minister wants it to, but she will have an awful lot of trouble getting it unless she listens on this point.

Photo of James Clappison James Clappison Conservative, Hertsmere 11:00 am, 11th January 2005

I rise to support the excellent points that have been made by hon. Members on both sides of the Committee, including by my hon. Member for Sutton Coldfield in his excellent opening speech. The Government have to tell us why they are going down their chosen path and apparently bypassing the office of constable.

I have only one point to add. One reason why people in this country have a good relationship with individual police officers is that the office of constable has operated for a long time—there has been continuity in that office. People have got used to police officers acting within the framework of the rights and responsibilities created by that office. That is very valuable, and it is one reason why people do not see the police as an organisation to be feared, to be held in contempt or to be uncertain about because it is one of 57 varieties of security organisation. That is why people regard individual police officers in the way they do. I want SOCA to be a success and its members to have the same relationship with the public as the police. The question that cries out to be answered in this debate is the one framed by my hon. Friends: why can the office of constable not be included in the way that they suggest?  

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

Let me start by saying that neither I nor any other member of the ministerial team at the Home Office is trying to undermine the role of police constables and the work that they do on our behalf. We have record numbers of police officers in England and Wales, which demonstrates our recognition of the fact that for level 1 and level 2 policing we must ensure that we have throughout the 43 police forces an adequate body of people who have the status of a constable and the concomitant powers for dealing with the different types of crime and criminality that they see daily. That does not mean we think that there are no roles for others who can support police officers in their duty. That is one of the reasons why we have supported the development of community support officers. We are at odds with the Opposition on that subject, even though we know that where the arrangements work well—where local police forces work in harmony with CSOs and engage in developing and working with them—it is extremely popular with the public. Such an approach tackles criminality and antisocial behaviour and their effect on our communities. In that mixed picture, which we as constituency MPs, members of the public as victims, and police forces have to deal with, we need different skills and support to achieve our aims. Those aims are to ensure that communities can live in peace without fear of crime and that police officers do not have to deal with matters that tie their hands and prevent them from getting on with what their powers enable them to do—to really crack down on crime in an effective way.

It is important that we go through the rationale for establishing SOCA at this stage. In some ways the amendments act against the concept of establishing such an agency. The question could be asked, ''Why not just make existing partnerships work better? Why not leave the NCS, NCIS, drugs investigations by Customs and Excise and the immigration crime department of the Home Office in one place, and make them work better, with each retaining its present individual status?'' That is one possible consequence of the line of argument that Opposition Members are putting forward.

It might be argued that we should not have a new organisation with one culture where people come together as first among equals, but that we should instead merge the old organisations and have departments within the new one that deal with different matters. Certain types of people who come from customs and drugs investigations could work in one department, police officers in another, and financial investigators, accountants and specialists in other areas in other departments. That, too, could be a consequence of accepting the amendments.

In devising SOCA, there has been and continues to be considerable consultation with all organisations affected, including the Police Federation, and staff involved in all the constituent parts of the new organisation. We are mindful of the fact that we are not trying to create a type of second-class constable—or a super-constable. SOCA will be a new organisation where there is one culture that people sign up to, where their best endeavours and talents can be utilised to the   utmost to ensure that we can intervene, use intelligence to its best effect and enforce the law.

I take issue with some of the comments about Keystone Cops and sending officers of SOCA into a situation where they would spend half their time arguing about who was able to do what. I give organisations credit for the way in which they already work with different people with different powers and from different backgrounds. In the regions of England and Wales, I have visited staff of NCIS and the NCS who are working in multi-skilled, multi-qualified teams. We have talked quite a bit about political interference in operations. I would not begin to try to second guess the director general, his executive directors and all those who will work in SOCA, who will use their skill and expertise to make sure that they are mindful of the law when they go into investigations and operations and that they are working within the limits of the law. The people involved in those teams and operations are qualified to do the jobs that they have to.

Questions have rightly been asked about designating powers—who will have the powers and their training and qualification to have some of those powers assigned to them. I said on Second Reading that there is no doubt that, whether the powers be those that apply to a constable, a customs officer or an immigration officer, we must ensure that the individual employee of SOCA who is to be given them is trained to do that job. That is relevant to the point made by the hon. Member for Somerton and Frome about members of SOCA working in Scotland and being aware of the different legal procedures. I will consider the matter further and decide whether it would provide reassurance to include some mention of training in the Bill. I did say on Second Reading that it is vital that people are reassured that members of SOCA will not simply be designated powers, with no safeguards to ensure that they are adequately trained and therefore qualified to use those powers.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The Minister did indeed say that on Second Reading. Will she say whether she is drafting new clauses or amendments to that effect and whether she intends to table them on Report? They are not on the Committee's agenda yet

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I am prepared to consider drafting amendments to include training in the Bill.

I share the hon. Gentleman's admiration for the police service. The Bill, as I have tried to illustrate, is not about undermining police forces in this country but is about recognising the issues that SOCA will face and the rationale for drawing together different parts of different organisations to make a real difference. I fear that the hon. Gentleman envisages a national police agency staffed, in the main, by police members. It sounded to me as though he wants to create super-police members. SOCA has been criticised for creating an elite, but as I said on Second Reading, we are not creating an elite force of police constables. SOCA will be a very different organisation. We recognise that police constables in forces up and down the country, including the South Yorkshire police force in my constituency, do an incredibly hard job in protecting our communities. We are not in the business of trying   to create some super-constable based at SOCA who would compete with constables in police forces.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

A note of unreality seems to be creeping into our discussion. As I understand it, the agency is likely to have a substantial number of police or ex-police officers serving on its staff. Far from it being a super-constabulary, I expect it to draw in different strands of expertise to deliver a particular outcome. In those circumstances, it is all the odder that police members should not be recognised for what they are within the service. That is the issue with which the Minister has yet to grapple. I hope that she will do so.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I think that I am grappling with it. We recognise that the hon. Gentleman is right. Some people who currently work for, say, the NCS or NCIS will form part of SOCA, and other police officers may choose to apply to work for SOCA as part of their career or according to their interests. However, we are not creating a police agency. The amendments are fundamentally at odds with our vision of SOCA, about which we have been clear from the start. We were clear about it in the White Paper, on which we consulted. SOCA should not and will not be a police organisation. Its staff will not be police constables or, as the hon. Gentlemen prefer, police members. Instead, we envisage a national law enforcement agency that brings together the experience and expertise of the police agencies of NCIS and the NCS in one organisation and recognises that to do their job members of SOCA should have powers, many of which will undoubtedly include police powers.

The agency will bring under one roof NCIS and the NCS, as well as parts of Customs and the immigration service, and will therefore be more than the sum of its parts. It will be an independent body corporate with its own culture and its own identity, an agency whose staff are highly regarded and respected in their own right throughout the world, as are our excellent police forces. It is not about trying to tie together four different parts that have their own cultures, but about one organisation with one culture, which recognises that people will need to have access to and designation of the powers of a police officer, as well as those of customs or immigration officers.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 11:15 am, 11th January 2005

The Minister begins to worry me rather more when she makes such comments. She is giving SOCA police powers as and when the designation is given to individuals. Is there not a danger that she will be seen to be creating not an agency but a parallel police force for specific law enforcement purposes? That is not what the Government said that they were doing on Second Reading.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

No, I do not think that I have said that. Of course, a number of people who work for the organisations that will form part of SOCA already have the qualifications and training for the powers that they will need to do their job. A number of other people in future—whether they come from customs, immigration or the police—will bring their training and qualifications with them. We are not starting with a blank sheet. All members of SOCA will be employees   of SOCA—first among equals. Different people will need to use different expertise and talents. We will have to bring people in who have specialist skills in certain areas, such as financial investigation. It may be appropriate at some stage that they be trained and qualified in certain powers that will be necessary for them to be an effective member of a team and to contribute to the end, which is to defeat organised crime.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

Why does that not cause a problem in NCIS now?

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

NCIS was created of itself. SOCA is a new organisation We must recognise that in the past many of the people who have come to NCIS have been on secondment. There may be secondments to SOCA, but it will be a totally different organisation.

We should consider what did not work. When I have talked to customs officers and to police officers who work for NCIS and the NCS, I have asked them why they want SOCA when they seem to have fantastic operations that work and which have had some good results. They reply that they have gone as far as they can in partnership working: to make a real difference and move on, they need to recognise that there are too many overlaps between what the different organisations do and that their cultures sometimes prevent them from working together effectively. They want a single organisation that brings their capabilities together, and within that one organisation, in many respects, they want people to be valued equally, with one status—as SOCA employees.

I can understand why the hon. Member for Sutton Coldfield wants to adopt a more traditional approach, but in part we are trying to achieve recognition of how organised crime and serious organised crime operate in the 21st century. The creation of SOCA and its remit was a major part of our consultation in the White Paper. We need to recognise that we can defeat serious criminals in a number of ways. There are a number of people with different skills and talents in existing organisations, and in future people with such skills and talents might want to apply directly to be part of SOCA. We feel that we have come up with safeguards throughout the Bill to ensure that people are given appropriate powers—appropriate not only to their training and qualifications, but to the needs of the organisation. That is why the designation of powers is important. SOCA will be a step change away from a classic investigation organisation of investigation and prosecution toward employing the most effective and proportionate means dedicated to reducing the harm done by organised crime.

I fear that the argument advanced by the hon. Gentleman, which is in some ways very understandable, has led him to a place where he might not want to be, because the amendments would ensure that the Secretary of State can regulate the police members of SOCA in the performance of their duties and their maintenance as police members of SOCA. Is he actually suggesting that the Secretary of State should be given more powers to regulate what would in effect, if the amendments were accepted, be a   national police agency? Elsewhere, he has tabled amendments to limit to the Secretary of State's powers. He seems to be pointing in two directions at once.

Photo of Andrew Mitchell Andrew Mitchell Shadow Minister (Home Affairs)

The Minister is unfairly representing the amendments in the round, as I am sure her civil servants will tell her. The amendments in this group when taken together with the amendments to limit the Home Secretary's interference and power would have precisely the opposite effect from the one that the Minister has just described.

Photo of Caroline Flint Caroline Flint Parliamentary Under-Secretary (Home Office)

I stand by what I said. There are issues about the Secretary of State's relationship to the police and to SOCA. However, the issues about accountability and the Secretary of State's powers are not the same for both groups. If the amendments were passed, there would be the potential to muddle the Government's clear position on the roles of the Secretary of State, the board, the chairman and the director general.

What of the powers of the police members whom the amendments would create? Such members would have the powers of a constable, a customs officer or an immigration officer. I am glad to say that we seem to agree on at least one thing—that, in principle, an individual can have and exercise the powers of a constable, customs officer and immigration officer all at the same time. However, that leads me to wonder why things cannot be the other way round. Why can a police member potentially exercise the powers of all three, but not a customs officer, an immigration officer or, better still, as we envisage, an employee of SOCA, uninhibited by cultural and institutional legacies? Such a person might come to the organisation fresh with a particular expertise that would help us to fight organised crime, but they would need to be designated certain powers to do their job and to work in a team.

The hon. Gentleman wants to have his cake and eat it and he has undermined his position. I am left wondering whether he has grasped the full implications of the amendments. Has he considered the possibility that the police members would, in effect, be super-police, with the full set of powers of a constable, an immigration officer and a customs officer? That would arguably leave SOCA in a worse position that the NCS. Under the provisions of the Police Reform Act 2002, the director general of the NCS could designate staff as investigating officers with a limited array of police powers. The amendments would deprive the director general of SOCA of a similar flexibility. Under the hon. Gentleman's approach, it is all the powers or none—there is no halfway house.

Of course the issue is complex, but we are dealing with complex crime. The sort of people we need to work in SOCA will bring certain knowledge and experience, but they may occasionally need at their disposal some of the powers of a constable, a customs officer or an immigration officer. It does not follow, however, that they will necessarily have to have all those powers at any one time. There are real problems with the amendments. They would not only create a class of super-police, but undermine the ability of   some of the talents we want to attract to SOCA to do their job. The potential for real or perceived inequality is obvious. The danger of SOCA appearing to cream off the brightest and the best from local police forces will be all the greater if SOCA is seen to be staffed by an elite group of police members.

SOCA's staff will be every bit as professional and independent as police officers, but I strongly refute the argument that only police officers can be entrusted with police powers. We have long since moved away from such a position. There is a host of professionals with police or police-like powers, including customs officers, immigration officers, prison officers and, to an extent, community support officers. There are also investigating officers and the staff of the Independent Police Complaints Commission. It is an affront to each and every one of those dedicated public servants to suggest that they are in some way less professional or   impartial in the discharge of their duties and the powers that have been assigned to them.

We value the office of constable highly. Sworn police officers have their place, and I am pleased to repeat that there are record numbers of them in this country. However, that the office of constable is part of the police service. SOCA will not be a police force and, consequently, should not be staffed by police officers. It will, however, be staffed by men and women who are every bit as professional, highly trained, dedicated and impartial.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

SOCA will not be a police force—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.