Schedule 5 - Police, customs and immigration powers

Crime and Courts Bill [Lords] – in a Public Bill Committee at 9:15 am on 29th January 2013.

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Question proposed, That this schedule be the Fifth schedule to the Bill.

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

Schedule 5 will set the parameters of the designation of the director general’s powers under clause 8. In line with the initial comments made by my right hon. Friend the Member for Wythenshawe and Sale East, I want to test how the designation will work in practice.

Does the Minister intend to convene an advisory panel for the proposed and current post holder, Mr Keith Bristow? Will Mr Bristow exercise all three competences or not?—[Interruption.] I think the Minister is saying that that is not a matter for the Committee. I am sorry, but we are discussing schedule 5, which states:

“The Secretary of State must appoint an advisory panel”.

I want to know whether an advisory panel has been appointed to consider the competences and whether the current post holder intends to exercise all three competences.

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

The right hon. Gentleman rightly heard me say that, in my view—although obviously such matters are decided by you, Ms Dorries—the matter is not one for the Committee. Mr Bristow could decide to resign from his post this afternoon—I do not envisage that he will—and we do not need to have a long conversation about which particular skills and attributes he personally has. What we are doing is putting legislation in place that will be suitable for a director general, whoever that is in the future.

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

The point is that we have a post holder in post, for whom I have great respect. The discussion is not about the post holder, but I am interested in whether the processes in schedule 5 are, have been or will be used in relation to the current post holder. It is perfectly legitimate to ask whether the post holder, who is a chief constable, is planning to take on board the other competences under clause 8—the powers of a Revenue and Customs officer and of an immigration officer.

Schedule 5 will give the Secretary of State the power to appoint an advisory panel to see whether the current post holder wishes to take on those two powers. I am just inquiring whether the current post holder is intending to apply to have the two designated roles. Is the Secretary of State or the Minister going to appoint an advisory panel?

Paragraph 4(3) of schedule 5 gives details on what the advisory panel should be. I am interested to test that in relation to the current post holder and to future post holders, if designations are proposed.

Schedule 5 at the moment says:

“An advisory panel is to consist of—

(a) a person to chair the panel, who must not be a civil servant;”.

Okay, they must not be a civil servant. Will the Minister indicate what competences the potential chair of a panel might have, given the chair will judge the competences of an immigration officer, Revenue and Customs officer and/or a constable? Will the Minister tell us the type of person he envisages would chair the panel, if not a civil servant?

Secondly, the advisory panel is to consist of

“(b) an appropriate number of other members (the “expert members”) who, when taken together, have appropriate knowledge of the following matters—

(i) the training of constables in England and Wales

(ii) the training of officers of Revenue and Customs…

(iii) the training of immigration officers;

(iv) the training of NCA officers.”

My question is: what type of competences are required of the chair of the panel? What is an appropriate number? What type of skill and knowledge are those people expected to have in relation to the competences? Those are important matters.

“(4) The expert members of the advisory panel must—

(a) consider the…adequacy of the Director General’s training, and

(b) give the panel’s chair such information in respect of their consideration of that question as the chair may require.

(5) The panel’s chair must then—

(a) consider the information given by the expert members,

(b) decide the question of the adequacy of the Director General’s training.”

Those are important points. I am testing schedule 5 because that is what is before us. Does Mr Keith Bristow intend to apply for the two competences that he does not have? If he does, does the Minister or the Secretary of State intend to exercise the powers under schedule 5? If so, what type of person should be chair of that advisory panel? How many people will be members of that panel and with what competences? This proposal would give tremendous power to the Secretary of State and I want to test how that would be exercised.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Presumably the point that my right hon. Friend is trying to tease out is whether the chair and members of the panel will be competent in the areas of expertise they are to judge. Could this be a back-door route for the Home Secretary to import foreign law and order experts into our system, bringing in people who have no competence in our system but might be law enforcement officers in other jurisdictions?

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

That is an interesting point to which the House of Commons will return later. I know my hon. Friend takes a keen interest on the Home Affairs Committee.

I make these points, Ms Dorries, because on page 68 of the Bill there is the heading “No advisory panel”, under which it says:

“5(1) The Secretary of State may, by regulations, make provision about the circumstances in which the Director General may be designated as a person having operational powers otherwise than on recommendations made in accordance with paragraph 4.”

So, under schedule 5, the Secretary of State has the power to appoint an advisory panel but also the power not to. I am testing the Minister on his view regarding the current post holder, who is a chief constable, and whether he intends to designate those other two powers. If so, has the process already been followed, and if not, will it be followed? If that designation is required, will there be a panel or not? What is the principle involved? Unless the Secretary of State finds somebody who happens to be an immigration officer, a customs officer and a chief constable, what are the circumstances where no advisory panel will be brought forward?

It may seem tedious to go through these issues, but this proposal would give powers to a Secretary of State to determine these matters now and in future. All I am seeking is to tease out the Government’s thinking, so that when future Members of the House test a Minister on the exercise of these powers, they will have an idea of Parliament’s intention when giving those powers to the Secretary of State. This is the right moment to ask why there should be an advisory panel, who would be on it, when, where and how, and also to ask in what circumstances one would not be convened. Does the Minister have a view on where we are with the current post holder, Mr Keith Bristow?

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East 9:30 am, 29th January 2013

I do not think my right hon. Friend is raising tedious questions, but important ones. The purpose of the panel is to decide whether the director general is adequately trained. Would it not be better to make the assessment prior to the appointment of the director general, rather than waiting until the director general has been appointed?

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

In the interests of speed, Ms Dorries, I did not mention two other points that I wish to mention. My right hon. Friend has given me a chance to do so. Paragraph (6) refers to

“adequate training in respect of that power”,

and paragraph 9 defines adequate training as

“training that is adequate to enable that power to be properly exercised”.

What does that mean? And “appropriate” training means

“appropriate in the Secretary of State’s view”.

So we need to test those issues, too.

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

I am pleased that my right hon. Friend has had a further opportunity to raise more questions for the Minister, who I am sure will answer them.

I have no doubt about the competence and experience of Keith Bristow. In common with my right hon. Friend, I do not question Keith Bristow’s seniority, experience and ability to do the job. However, the questions are important. We need to know whether a panel will be convened in relation to the current post holder once the Bill is enacted. It is an important question for the longer term. We would not expect to convene a panel after the appointment of the chief executive of an NHS hospital trust to see whether they had had adequate training, and we would not convene a panel after a head teacher had been appointed to see whether they had the adequate competences and experience to be the head teacher. It would surely be better to do that in advance. If there are areas in which the post holder does not have competence, what then happens? Is he sent off for more training? Is the authority delegated to another official? We need to know the answer to such important questions.

I accept that no one person can have every competence to the nth degree, but what is the consequence if a judgment is made that a post holder does not have the experience and training in one area? What is the implication of that? Is he sent off for more training or is the authority delegated to somebody else?

I want to ask about the panel itself. As my right hon. Friend has said, we need to know more about who is likely to be the chair of the panel. The only criterion at the moment is that they must not be a civil servant, so that includes the majority of the population. We need to know a little more about the type of person that the Secretary of State has in mind. My right hon. Friend made various observations and raised questions about the other people who might form the panel. What would happen if the panel members formed a view about the competence and experience of the post holder that was not accepted by the chair of the panel? According to schedule 5, all the power ultimately rests with the chair and the panel members are simply there to advise. Presumably, the chair can take the advice or not. So what  would happen if there was a substantial difference of opinion between members of the panel and the chair?

Will the report of the panel members be published and made available, or will it be kept private? I am concerned. My hon. Friend the Member for Birmingham, Selly Oak alluded to bringing in law enforcement officers from other jurisdictions. As I commented the other day, the Home Secretary seemed to be dead set against that until recently, when she was reported to have had a major change of mind. She is now prepared to think about bringing in senior police officers from the United States and other places.

What if the Home Secretary was hellbent on appointing a certain director general, who had come outwith our jurisdiction and who did not have experience of the policing system in the United Kingdom? She then appoints the chair of a panel that she hand-picks, because she knows that the chair will agree with her. The panel members are then assembled and they take a completely different view and make a clear recommendation to the chair, who completely ignores their expertise and makes his recommendation to the Home Secretary, which she was anticipating, anyway. That would be complete nonsense. We need to know whether the panel members’ report will be published and what ultimate authority they will have in making a recommendation to the Secretary of State. Schedule 5 looks at first sight like an innocent little schedule, but as we begin to think about not just this but future appointments, many questions arise.

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

I am grateful for the opportunity to demonstrate to the Committee that schedule 5 is indeed an innocent little schedule. People need not be unduly alarmed when considering giving it their approval this morning.

The right hon. Member for Delyn asked about the powers that Keith Bristow possesses. Of course, in terms of the matters we are discussing, the NCA, under his leadership, cannot assume the full functions until the Committee, the House and Parliament have given their approval to the whole process. Were the Committee to decide, against my recommendation, to reject schedule 5, the ability of the director general to satisfy an advisory panel would obviously be compromised, because there would be no provision for such a panel. Until the Bill receives Royal Assent, we are not in a position to go ahead in the way that we envisage, which is precisely why we are seeking Parliament’s approval right now.

Let me go back. The conversation was about the practical questions of how the advisory panel will work. It is worth reminding the Committee that the Home Secretary will judge whether the director general warrants the particular special powers in the three fields of constable powers, customs powers and immigration powers. We have made it that way because otherwise the director general, who is responsible for the NCA staff, would be making that judgment about himself. We thought that the Committee would be more satisfied if he was not put in the invidious position of making a judgment about his own competences, so that judgment is made by the Home Secretary.

Of course, the current Home Secretary is demonstrating on a daily basis particular competence in her office, but we cannot be certain that that will always be the case. We do not know whether a future Home Secretary will  have particular knowledge or insight into the particular requirements that an individual needs in order to become a designated constable, customs officer or immigration officer. So, to ensure that the Home Secretary can make an informed decision about the director general, schedule 5 contains the provision for an advisory panel of people with the relevant expertise.

The advisory panel is not a permanent sitting committee. It is not a group of people who are remunerated on a year-in, year-out basis and turn up for monthly meetings. It is a small group of people—the number depends on the precise nature of what they are trying to ascertain and what is necessary to make the judgment—brought together to ensure that the Home Secretary has the knowledge required to make the decision. Let us say, for example, that the director general is seeking the powers that go with being an immigration officer. One would envisage that the advisory group would be people with particular expertise in the requirements necessary to become a designated immigration officer. They would not have particular expertise in customs issues, because that is not the matter at hand. They would look at what requirements the director general was able to fulfil and make the recommendation to the Home Secretary on that basis. That is how it would work.

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

I am genuinely not trying to be difficult on this; I am just trying to find out from the Minister whether, in the case of the current post holder Keith Bristow, for example, he intends to convene a panel in relation to potential designation. If the answer is yes, the question has to be whether he is willing, as my right hon. Friend the Member for Wythenshawe and Sale East said, to publish the names of the people on that panel, their competences and any comments about those issues. Those are matters for scrutiny. If I were to table a parliamentary question at some point and ask who the members of the advisory panel were, would the Ministers say, “Yes, they were people A, B, C, D and E?” I simply want to get that transparency so that we understand the matter.

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

Of course, the Home Secretary will be the person who makes the decision whether the director general should be given operational powers in a particular field, and she takes advice the whole time. In fact, Governments are not always as transparent as we are being now in describing it as an advisory panel. Perhaps even as we are meeting now, the Home Secretary may be in the Home Office taking advice from a group of people who have expertise in a particular field to enable her to undertake her duties better informed by expert insights. An advisory panel will be constituted to fulfil that role.

The right hon. Member for Wythenshawe and Sale East asked why all of this will not be done prior to an appointment. The point I was trying to make earlier was that because the NCA will be a wide-reaching body that will be seeking to fight serious and organised crime across the board, it is very unlikely that the director general will have such operational powers as part of their CV on the blocks and waiting to go when they apply for the post. It is likely that they will be drawn from a particular field or area of expertise. He or she will still be able to run the show and make operational decisions, but if he or she wants to exercise operational  powers in a particular area, he or she will have to demonstrate competence to do so.

We are talking about particular powers, such as those of a constable—that would not apply to Keith Bristow, because his background means that he already has those operational powers. One can take a view about a police operation without having the formal operational powers of a chief constable, but if a director general wants to have the formal powers of arrest or detainment that a chief constable has, they will need to demonstrate the right level of attainment and knowledge to exercise those powers. I do not want the Committee to get the impression that the director general will be hamstrung without those powers. It is just that he or she may be keen to have at their disposal the three sets of powers in question.

I was asked about the Home Secretary having the power to appoint, and the power not to appoint, an advisory group. That is precisely because, taking Keith Bristow as an example, we want the Home Secretary to have the power not to appoint an advisory group to advise her on whether he is suitable to have constable powers, because we all know that he is. She does not feel it is necessary to constitute a group to tell her something that she already knows. The Bill therefore makes provision for a decision to be made where the right way to proceed is obvious to everybody concerned. Where the Home Secretary feels that she needs additional insights provided by a limited group of advisers brought together specifically for that narrow purpose and then disbanded again afterwards, the Bill provides the power for that group to be brought together more openly and transparently than if she just decided to take the guidance of advisers and experts, as she does on daily in any case.

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

I am grateful to the Minister. I will not test him further on this matter. I simply wanted to put a few items on the record, and it has been helpful to have discussion of them. Ultimately, we are legislating, and although he said that the Home Secretary might at this very moment be receiving advice from individuals in the Home Office, that is not in schedule 5, which the matter that we are discussing is. However, I am happy to give the schedule a fair wind. In slower time, I will read what the Minister has said in response to our questions.

Question put and agreed to.

Schedule 5 accordingly agreed to.