Baroness Smith of Basildon: My Lords, as we have heard from the Minister, at the Report stage of the Bill in November, your Lordships supported the deletion of the clause that provided the Secretary of State with the power to transfer by super-affirmative order counterterrorism functions from the Metropolitan Police to the National Crime Agency. The amendment was in my name and those of the noble Lord, Lord Blair, and my noble friend Lord Rosser. The reason for the amendment was not the transfer of functions, which may well be appropriate at some point in the future, but because such an important and crucial decision should benefit from the appropriate scrutiny of Parliament, which cannot be provided for without primary legislation. As the Minister said, government Amendment 1 would bring back that clause. My amendment, to disagree with that amendment, would delete that provision and retain the status quo.
The reasons for bringing this amendment back to your Lordships’ House are perhaps three-fold. First, the priority of any Government and any Parliament is the security of their citizens, and counterterrorism is, as the noble Lord would readily confess, a key issue in that security. I repeat and emphasise that we are not passing judgment on whether it may, in future, be desirable for the NCA to have responsibility for counterterrorism; only that such a decision must be evidence-led and appropriately consulted on and scrutinised. The Metropolitan Police have built up considerable expertise and skills in relation to counterterrorism and if the Government wish to remove that responsibility and function from the Met—the noble Lord referred to a review—they would need to have a very strong case to do so. I am sure that if it becomes the right course of action in time, that case will be made, and considered appropriately. However, we do not believe that this decision deserves anything other than full and proper scrutiny, which can only be provided by primary legislation. That view was fully endorsed last year by the Joint Committee on Human Rights in its report on the Bill, which stated:
“In our view, the potential human rights implications of a decision to confer counter-terrorism functions on the NCA are sufficiently significant to warrant primary rather than secondary
legislation, to ensure that Parliament has the fullest opportunity to scrutinise the possible implications. We recommend that clause 2 be deleted from the Bill”.
Your Lordships’ House agreed with that conclusion and removed Clause 2 before sending the Bill to the other place.
In terms of effective scrutiny, which the noble Lord referred to in his comments, it is disappointing that the Government did not reintroduce this clause at the Committee stage in the other place but waited until Report. Similar comments were made by the noble and learned Lord, Lord Lloyd. I find it difficult to accept that this was a last-minute decision by the Government to bring this clause back. Why did they not bring it forward earlier, to allow the other place to have the opportunity to debate it in Committee and have a fuller discussion? The Minister said that it had full and, I think, considerable discussion in the other place. In fact, it had two and a half hours on Report and I am not convinced that that was long enough for the Commons fully to consider the matter. This is a big decision and a major issue. Whatever decision is taken in time by the Home Secretary and the Government about removing counterterrorism to the NCA, if that is what they so decide, I want the Home Secretary and the Government to have the full confidence of Parliament and the full confidence of all those involved in counterterrorism that the right decision has been made.
My second point is that, although the noble Lord is right in that the super-affirmative procedure allows for greater scrutiny than an affirmative resolution, it does not provide the level of scrutiny that gives that confidence for the Government or the Home Secretary that I spoke about. The Minister helpfully wrote to me about the super-affirmative order, for which I am grateful, and sent copies of the letter to other noble Lords, repeating the process that was originally in the Bill. He is right when he says that it provides the highest degree of parliamentary scrutiny other than primary legislation. That in itself recognises how important it is that this measure has appropriate scrutiny. However, the briefing note states:
“Whilst the process makes express provision for a role of Committee of either House (it is expected that this would fall to the Home Affairs Select Committee in the House of Commons) this does not preclude a role for those Standing Committees with interests in secondary legislation”.
The note continues to say that the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee will continue to discharge their duties under this procedure. I did not know it had ever been suggested that they would not. Of course they would. That is not a reassurance but merely a statement of existing procedures for all orders that come before your Lordships’ House.
At the Report stage, we were assured that a super-affirmative order is, in effect, amendable. To an extent, that is right, but, crucially, it can be amended only at the draft stage that the noble Lord spoke of by permission of the Secretary of State and by the Home Secretary. The Secretary of State and the Home Secretary in the super-affirmative order must have regard to any representation made. Parliament does not have the power to amend; only the Secretary of State has that power.
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Finally, this clause has taken on a far greater significance on an issue that the Minister did not refer to in his speech, but is important. As a result of the failure to gain agreement on a legislative consent Motion from the Northern Ireland Assembly so that the National Crime Agency can be genuinely national and not the nearly National Crime Agency that we have now, we have an amendment in the next group to disapply the provisions of the NCA to Northern Ireland. We will have an opportunity to discuss that in more detail in the next group. However, it is extremely serious that the Government have got into a position where they have scrapped our existing national organisation for serious and organised crime, SOCA, before reaching agreement with the Assembly about its replacement. We now have no nationally reaching equivalent.
I think I heard the noble Lord mutter, “Is that relevant?”. It is entirely relevant to the discussion before us today on the issue of scrutiny. We understand that some Members of the Assembly have significant concerns over the provisions relating to the operations of the NCA in Northern Ireland, particularly in the potential future responsibility for counterterror operations within Northern Ireland. Clearly, the history of counterterrorism and the link between paramilitary organisations and serious and organised crime in Northern Ireland mean that special consideration will need to be given to how the NCA might operate in relation to counterterrorism in Northern Ireland. That is not a job for secondary legislation. We have serious concerns that the re-introduction of Clause 2 by the Government will make any agreement with Northern Ireland regarding the NCA even more difficult than is now the case.
Why are the Government insisting on a clause that might put any agreement on the NCA’s operations in Northern Ireland permanently out of reach? It is a clause that has been heavily criticised by the Joint Committee on Human Rights, and by distinguished ex-commissioners, as we heard previously in the debate, and resoundingly rejected by your Lordships’ House. The Minister of State, Jeremy Browne, said in the other place:
“The Government have not taken a view as to whether counter-terrorism should be transferred into the NCA. The NCA is not even up and running yet. It requires the assent of the House before we get to that stage, and we have said that when the NCA is up and running, that is something that the Home Secretary may wish to consider”.
That is perfectly logical and sensible. I agree entirely with those comments. It would be premature to make a decision before then so the Minister has got it right.
However, I profoundly disagree with his previous comment:
“It seems to me that this is not a very substantive issue; it is a procedural issue”.—[Official Report, Commons, 13/3/13; col. 328.]
That is a serious underestimation of the issues involved. It is not just a procedural issue; it is a serious issue that deserves thorough scrutiny. Parliament and your Lordships’ House also have responsibility to support the Government to ensure they get it right through adequate scrutiny.
Proper parliamentary scrutiny on an issue of this magnitude should not be reviewed by the Government as an attempt to thwart or delay; it is too important for that. Proper parliamentary scrutiny is to support this Government, or any Government, in getting it right. We know that in your Lordships’ House and outside, there is a wealth of expertise, experience and knowledge that would want to be of assistance to the Government and the nation on this issue.
As the Minister was coming to the end of his comments, he spoke of the review that has been undertaken and said that it would not be understood if parliamentary time could not be found for legislation after the review. It is the Government who are in charge of parliamentary time, and I find it hard to conceive of circumstances where the transfer of responsibilities on counterterrorism from the Met to the National Crime Agency would be an urgent or emergency issue. However, I say to the Minister that he knows, and the Government know, that in such cases or circumstances, negotiations can take place to ensure speedy legislation without compromising essential security.
The Minister said that he and the Government reflected on this when bringing the amendment back so that there could not be primary legislation on this matter in the future. I have to say to the Minister that he has not come back with any new or compelling arguments as to why this House and the other place should not have the opportunity to scrutinise by primary legislation such a major move. I beg to move.