My Lords, I thank the noble Lord, Lord Condon, for his speech and in particular for the goodwill that he demonstrated towards the success of the NCA.
I hope that I do not disappoint noble Lords when I say that I will resist these amendments, but I will address the issue in some detail and fullness. Some of the elements will come up in later debates, but I recognise the importance to noble Lords of this particular group of amendments none the less. They go to the heart of the Government’s arrangements for the NCA. The noble Baroness, Lady Smith, reiterated the position that she outlined in Committee, that the NCA should be led by a statutory board headed by a non-executive chair.
I will come to my noble friend Lady Hamwee’s amendment later, because she talked about a slightly different form of governance. I start by addressing the amendment tabled by the noble Baroness, Lady Smith, and whether it is somehow necessary for the National Crime Agency to have a statutory board. We can establish quite quickly that it is not. The NCA is being established as a Crown body without incorporation. A Crown body without incorporation does not have a separate legal identity from the Crown, so incorporation and a statutory board are not, strictly speaking, required. The functions of the agency are conferred directly on the agency itself, not on a board. This is a tried and tested model for a non-ministerial department and works well for other similar agencies with which noble Lords will be very familiar, such as the Crown Prosecution Service and the Serious Fraud Office.
Not only is no statutory board required, but to create one would be detrimental to the effective governance of the NCA. The noble Lord, Lord Harris, spoke vigorously about the fact that he felt a governance board would be very effective for the NCA. However, we have designed the agency so that the Home Secretary —the elected Government’s representative who is accountable, not to nobody as the noble Baroness, Lady Smith, implied, but to Parliament—has clear strategic oversight, while the director-general, who would be an experienced crime fighter, provides the day-to-day operational leadership. Furthermore, we have designed the agency’s governance arrangements so that the director-general will be directly accountable to the Home Secretary, not beholden to a committee. In this way we will ensure that the accountability structures are clear, practical and non-bureaucratic.
The amendments of the noble Baroness seek to mirror the arrangements for the Serious Organised Crime Agency, which was blessed with the traditional quango-type structure, led by a non-executive chair and a board. However, as my noble friend Lord Henley pointed out in Committee, SOCA’s arrangements have risked more bureaucracy rather than more accountability. The current SOCA chair and board are excellent individuals who have done a good job, but to be led by
a committee was never the right structure for a law enforcement agency. Police forces are led by chief constables directly accountable to a single individual—the elected police and crime commissioner. The National Crime Agency should similarly have an operational director-general at its head who is directly accountable to the Home Secretary.
The noble Baroness argues that the statutory board will help preserve the director-general’s operational independence. She is perhaps concerned that his operational independence might be dented by too frequent contact with the Home Secretary without the protection of a committee. My noble friend used the word “cosy”. I cannot reconcile that idea with reality. The director-general will be an experienced crime fighter and a strong leader in his or her own right, not a shrinking violet, and that is certainly not how anybody who knows Keith Bristow, nor any noble Lord with direct experience of governance in policing, would describe him.
To put it another way, the relationship between the director-general and the Home Secretary, just like that between chief constables and the police and crime commissioners, will be a robust, professional partnership where both parties have their own roles to play which are set out clearly in the legislation. In particular, Clause 4 establishes the operational decisions test which rests with the director-general. If the legislation is not enough protection, I do not see what a non-executive chair or committee is going to add, other than a further layer of bureaucracy through which the director-general’s discussions with the Home Secretary will have to filter.
Of course, we can all absolutely agree on the importance of good governance for the NCA. While the director-general is rightly ultimately charged with leading the organisation, in doing so he will obviously need and want the advice and challenge of other experienced voices from inside and outside the NCA. Here I can perhaps help noble Lords because the NCA, like other non-ministerial departments without statutory boards, will still need to have a management board to advise the director-general on the strategic direction of the organisation, ensure that there are proper audit and risk arrangements in place and so forth.
The outline framework document has been referred to and we will be discussing it later. I hope noble Lords have been able to see it, and I will try to make sure that copies are available in the Printed Paper Office, if they are not there already. It provides for the board to be established under the chairmanship of the director-general, which my noble friend Lady Hamwee referred to, and it will include non-executive members. The role of those non-executive members, just like non-executive board members anywhere else in government—or outside government, for that matter—will be to advise and challenge the executive on the basis of their outside experience and skills in order to help the organisation do better.
I contrast that picture of non-executive membership with the non-executive posts provided for in Amendment 2. Under the noble Baroness’s proposed model, the NCA board would comprise persons representing the views of police and crime commissioners
and chief officers in the different parts of the United Kingdom. The noble Baroness argued that this is needed to ensure that the NCA is sufficiently alive to the interests of those groups. Clearly PCCs and the chiefs of the United Kingdom’s various police forces will be key partners for the NCA. That is why the Bill provides that they will be part of the group of strategic partners and will have the opportunity to influence the strategic direction of the agency through consultation on the NCA’s strategic priorities and the agency’s annual plan. The director-general will also, of course, want to engage personally with chief officers and PCCs across England, Wales, Scotland and Northern Ireland to ensure that the NCA is doing everything it can to help protect their communities from serious and organised crime. He will do that, and is already doing that, through building solid relationships with individual chiefs and PCCs, and through the Association of Chief Police Officers and the new Association of Police and Crime Commissioners. These practical working relationships will ensure that the NCA is alive to the complex needs of communities and of its partners that serve those communities.
Four individuals attending the NCA board could hardly do the same. In seating these individual representatives at the table of the NCA board, the noble Baroness has turned it from a board—in other words, a body which one might expect to focus on using its diverse experience to get the best possible performance from the NCA—into something more like a stakeholder forum for the NCA’s partners to air their views. I believe that the Government’s model is a better one and gives better direct access to the director-general.
My noble friend’s amendment would also create a statutory board for the National Crime Agency, in this case chaired by the Home Secretary with a further ministerial member and a number of non-executive members in addition to the NCA’s executive leadership. This is a similar structure to that adopted by ministerial departments, albeit that has never been set out in statute and nor, as far as I am aware, has anyone called for it to be so set out. I am not persuaded of the case for such a board. I appreciate that my noble friend’s amendment tries to leave the director-general in control of the agency and directly accountable to the Home Secretary by underlining that the board will function subject to the provisions set out in Part 1, but let us be pragmatic here. It will hardly help establish the director-general’s clear operational leadership of the agency if its key leadership body is chaired by the Secretary of State. Furthermore, many corporate management decisions that properly fall to a board—for example, on the people strategy—would not be for the Home Secretary, and she would not see it as her role to chair those sorts of deliberations, since to do so would cut across the director-general’s leadership and direction of the agency. So the director-general would still need to establish and chair an NCA management board to deal with those issues.
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I therefore fear that the creation of another ministerially chaired board runs the risk of adding another layer of bureaucracy to the agency. We are all familiar with
such bodies, where one is required to rehearse the same issues as have already been debated in a previous meeting, for the benefit of a slightly different cast but to no additional effect. It would surely be far better to give the director-general and his team more time to get out on the job of fighting crime.
The noble Baroness, Lady Smith, asked whether the arrangements for appointing and, if necessary, dismissing the director-general were in conflict with the director-general’s operational independence. I can assure her that the NCA and its director-general will be operationally independent of government. This is hugely important and the Government are committed to protecting that independence. The legislation includes explicit provisions for the DG to be in complete control of whatever operation he or she chooses to run and how it is run; Clause 4 backs that up and lays it out.
In summary, these two approaches, while motivated by a genuine desire on the part of both the noble Baronesses to ensure that the NCA has good corporate governance, instead have the effects of undermining the clarity of the governance arrangements provided for in the Bill and introducing an unnecessary layer of bureaucracy into those arrangements. My noble friend has said in the past that she is not wedded to any one model. I welcome her open-mindedness and I commend to her and to the noble Baroness, Lady Smith, the clear and direct governance model that is set out here in the Bill, which we have chosen after careful consideration and to which we are wedded. I hope in the light of these remarks that the noble Baroness will consider withdrawing her amendment