Police, Crime, Sentencing and Courts Bill — House of Lords, 2022-03-22
Topic: Law and Crime
Richard Rosser (Labour, Centre-left): There are three issues in this group and I wish to say something about all of them. Starting with Motion A1, I thank the noble Lord, Lord Sharpe of Epsom, for sending me a copy of his letter of 22 February to my noble friend Lord Rooker on Lords Amendment 58, which relates to the Food Standards Agency. As the letter says, the amendment gives powers available to the police under the Police and Criminal Evidence Act 1984 to the National Food Crime Unit of the Food Standards Agency. However, the Commons disagreed with the amendment, giving this reason: "Because it is premature to confer new search and seizure powers on the Food Standards Agency until the accompanying accountability arrangements, including in respect of the handling of complaints about the exercise of such powers, have been determined." Yet Lords Amendment 58 does not lay down a specific date or timescale by which powers available to the police under PACE have to be given to the National Food Crime Unit. It simply says: "The Secretary of State may by regulations apply any provisions of this Act to investigation of offences conducted by officers of the National Food Crime Unit in respect of search and seizure." If I am right, the Commons reason suggests that the Commons and the Government never actually read the terms of Lords Amendment 58. That is surprising, since the letter from the Minister to my noble friend Lord Rooker states that "the Government agrees in principle that these powers should be conferred upon NFCU officers in order to support their vital work tackling food crime." There is no argument about whether the powers should be given, but simply over when they should be given. Lords Amendment 58 would give the statutory authority to the Secretary of State to give those powers but leaves it up to the Secretary of State to decide when the time is right. So what is the problem with the amendment The letter from the Minister goes on to say: "Food crime is a very serious issue and empowering the NFCU to investigate these offences independently will ensure that their specialist knowledge is put to best use and that the burden on police forces is reduced" Yet the Commons and the Government have disagreed the amendment. The Minister goes on to say that "further work is required to fully work through the implications of these proposals to ensure that any exercise of police powers by a non-police body is necessary, proportionate and legitimate and that suitable governance and accountability arrangements will be in place", and: "For these reasons we have tabled a motion to disagree with Lords amendment 58" But Lords Amendment 58 does not say that the Secretary of State has to do it; it would simply give the Secretary of State the necessary statutory power to do it if and when the Secretary of State so wishes, which is the point being made by my noble friend Lord Rooker. Frankly, the Government really are struggling to think of a credible argument why Lords Amendment 58 should not be accepted The powers currently available to the Food Standards Agency under food law relate to the enforcement of regulatory matters. The NFCU investigates cases of serious crime, often involving offences such as fraud. However, the FSA’s existing powers do not sufficiently equip the NFCU to investigate these crimes fully and lawfully, and to collect evidence to the higher standard needed to prove criminal intent, without the support of partners in the hard-pressed environments of policing or local authorities As part of the FSA, the NFCU already has access to sensitive law enforcement powers around directed surveillance, securing communications data and the management of convert human intelligence sources. But NFCU officers have not yet been given essential investigatory powers, including the power to apply to courts for warrants to search premises and seize evidence, or to interview suspects without police officers present. The unit has to rely on the support of partners, including the police forces, to carry out these activities. This means that the courts are not hearing from the experts familiar with the cases, which can increase the likelihood that warrants are not authorised. As I understand it, competing demands on police time have led to delays in several NFCU investigations. At present, the NFCU needs the police to go to court and swear warrants on its behalf, so investigations are delayed if the police decline or take time to do so, or if the court refuses to authorise the warrant, which is more likely if the person swearing it cannot answer questions about the case. The NFCU also needs the police to be present when warrants are executed, which can lead to delays in the unit being able to carry out searches or seize critical evidence if the police have other priorities. As I understand it, the evidence seized then needs to be taken into police custody before it can be transferred to the NFCU. These issues can and do create delay, which is a problem in running a live investigation and trying to gather evidence before it is moved or destroyed I understand that NFCU investigations have been impacted by all the issues to which I have referred. I am also advised that the FSA’s view is that these additional powers are essential to enable the National Food Crime Unit to properly investigate and pursue complex food crime cases. As has been said, this was also identified as a gap in its systems to keep food safe in the independent review by Professor Elliott in I think 2014 following the horsemeat scandal In the Commons debate on this Lords amendment, the Minister said that the chairman of the Food Standards Agency had written to the Minister for Crime and Policing on 11 August 2021, expressing concern that the existing powers of the National Food Crime Unit were insufficient for their purpose. The Minister responded in October by expressing support for the request and indicating the Home Office’s intent to work with the NFCU to find a suitable legislative vehicle.