Absolutely: I assure the noble and learned Lord that that is exactly the process that we are talking about. It may help noble Lords in this regard if I explain how government policy would be determined by a consultative process before any decision was taken. I thank the noble and learned Lord, Lord Lloyd of Berwick, for making that point.
Clause 2 provides for an order-making power so that the Secretary of State can modify the NCA in relation to counterterrorism functions, including by conferring or removing functions. The order-making power is limited to changing the functions of the National Crime Agency. It does not provide the power to change the functions of other organisations unrelated to the National Crime Agency or to close down organisations. Given the importance of such a decision in the future, before an order can be made the Home Secretary will be required to consult any bodies that she considers will be affected by the order. The order itself will also be subject to the super-affirmative procedure, which is an extended programme of scrutiny by both Houses and indeed the committees of the House.
As a number of noble Lords have pointed out, the Joint Committee on Human Rights yesterday published its report on the Bill and, among other things, raised the question of the mechanism for modifying the functions of the agency. Indeed the report, not unlike the debate today, called for the removal of Clause 2. I can appreciate the concerns of the committee in relation to human rights—these will indeed be important matters
for the Government to consider. However, the statutory mechanism for modifying the functions does not diminish the obligations on the Government to give consideration to, and provide assurance on, a whole host of possible implications of a potential future decision. Human rights are only one aspect of a number of consequential effects of any change in policy in this area.
In addition to the Government’s considerations on any future changes, it is important that Parliament can give due time and consideration to any future decisions to modify the agency’s counterterrorism functions. The super-affirmative procedure set out in Schedule 18 will provide Parliament with the appropriate level of scrutiny should an order be made in the future. The House has been reminded of the view of the Constitution Committee on this matter. I will take the opportunity to remind the House of the conclusions of the Delegated Powers and Regulatory Reform Committee. In its report on the Bill it made no recommendation in respect of this power but did comment:
“The idea of adding to a statutory body’s functions by subordinate legislation subject to a Parliamentary procedure is well established”.
There is nothing new in this process that offends the traditions of Parliament.