Private Security Industry Bill [Lords]

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Mr. Bercow: I beg to move amendment No. 19, in page 2, line 24, at end insert—

    `(2A) The Secretary of State shall lay a copy of any such direction before each House of Parliament.'.

It is a pleasure, Mr. Benton, to echo the welcome to you that has been expressed by my hon. Friend the Member for Surrey Heath and the Minister of State. We look forward to your chairmanship of our proceedings and to the firmness, fairness and humour that you will bring to the task.

Clause 2 is broad and, some fear, potentially all-encompassing. That is why we want to amend it. The Minister will be aware of both the content of the amendment and the fact that my noble Friends in another place tabled a similar amendment, the purpose of which is to ensure that Parliament retains—or perhaps I should say establishes—some leverage and control over what is issued to the authority.

On 1 March in another place, the amendment was tabled on Report. On that occasion, the Government's stance seemed equivocal. Lord Bassam seemed uncertain—and I put that as mildly, politely and understatedly as is my wont—whether the directions given by the Secretary of State to the SIA would be transparent. He said:

    ``there will be very limited circumstances in which these confidential directions might be necessary.''

It was not clear to me that those limits were explained or explored. He continued:

    ``Yes, they might relate to directions naming individuals or companies.''

However, he went on to tease us, inadvertently if not deliberately. He began by attempting to reassure us that

    ``in the majority of cases—probably 99 per cent.—there will be transparency

and went on to say:

    ``in the majority of circumstances the directions should be a matter of public record . . . . We plan to establish the authority on the basis of a presumption of openness on the issue except in the limited and very sensitive circumstances that I have described.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1366-68.]

However, the point at which my hon. Friends and I cavil is that Lord Bassam referred to

    ``limited and very sensitive circumstances''

but did not describe them in any meaningful or adequate sense, although he wrongly claimed to have done so. We are anxious to tease such a description out of the Government. If there is to be transparency in the great majority of cases—we will know what the directions are and they will be on the public record—why is that presumption not in the Bill? If it is 99 per cent. certain that everything will be public, or if it is certain that, in the ordinary course of events, 99 per cent. of the direction will be made public, where is the harm in assuring us of that by stating as much in the Bill?

It repays study if we examine the worthwhile but slightly curious debate in the other place, in which my noble Friends sought to establish what the Government had in mind, or to gain some reasonable example of the directions that they might issue. However, they were unable to get much information out of the Government. My noble Friend Viscount Astor emphasised the broad power in clause 2 for the Secretary of State to

    ``give general or specific directions in writing to the authority''

as well as

    ``the power to request information''.

In the course of the debate, Viscount Astor asked the Under-Secretary why directions were required and whether they would be a matter of public record. In response, he got a Sir Humphrey-style answer. [Interruption.] Lord Bassam said:

    ``I believe that the standard arrangement is for the Secretary of State to be able to give directions to non-departmental public bodies. If necessary, that could include the placing of a cap on fees.'' —[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1362.]

If all that is involved is a cap on fees—

Mr. Charles Clarke: Sounds reasonable.

Mr. Bercow: The Minister is chuntering from a sedentary position. There is no reason why such a cap on fees should not be stated in the Bill. If the power is to be permissive rather than prescriptive—a matter of concern to my hon. Friends and me— and a wider set of directions covering a broader range of topics may be issued, with necessarily greater power being conferred upon the Secretary of State, I politely tell the Minister that it is incumbent on him, as it was on Lord Bassam, to tell us what sort of information may be required of the authority and what sort of directions may typically be issued to it.

Mr. Hawkins: I do not know whether my hon. Friend caught what I thought I heard the hon. Member for Lewisham, East (Ms Prentice) saying from a sedentary position, when he accurately described Lord Bassam's response as a Sir Humphrey-style reply. I think that she said ``Excellent.'' I am not sure whether that is an example of the training programme that Lord Bassam has been undergoing to make himself more like Sir Humphrey. It is interesting that a former Government Whip feels so strongly that Ministers should behave like Sir Humphrey Appleby rather than like Ministers.

Mr. Bercow: I am grateful to my hon. Friend for that intervention, as I did not hear what the hon. Lady muttered. I thought that I was probably the poorer for being deprived of her words—if not words of wisdom, words of revelation. The right hon. Member for Walsall, South spoke earlier about symbiotic relationships. I am bound to say, as will become progressively clearer during the course of our exchanges, that my hon. Friend and I have a symbiotic relationship. He knows when I am in need of a useful nudge, which he has just provided.

I want to develop important arguments—[Interruption.] However, I am, above all, courteous. Does the hon. Lady wish to intervene?

The Chairman: Order. The hon. Lady in the Gallery is not part of the debate.

Ms Bridget Prentice (Lewisham, East): There are so many hon. Ladies in the Room, Mr. Benton, that you are confusing me with my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department. I would hate the hon. Gentleman to have missed what I said, because the idea that I muttered something appals me. I did say ``Excellent'' in response to the comment about Sir Humphrey. The hon. Gentleman would benefit from watching that old BBC television series, which is currently being shown again. He would learn a great deal from Sir Humphrey if he did so.

Mr. Bercow rose—

The Chairman: Order. The Committee should return to the amendment.

Mr. Bercow: I do not seek to ape Sir Humphrey. I am always grateful for the kindly guidance of the hon. Lady, but as she knows, robustness, bluntness and specificity are my watchwords.

I want to focus on what Lord Bassam said. I am not prepared to allow Labour Members to divert attention from his curious reply. He said:

    ``Directions are not statutory instruments; they are merely a mechanism for a more informal way of establishing priorities and registering concerns''.—[Official Report, House of Lords, 30 January 2001; Vol. 621, c. 591.]

He was seeking to reassure those who had expressed concerns by saying, ``Don't worry, this isn't an overarching imposition or a hefty jackboot of a statutory imposition. These are informal mechanisms.''

Much of the debate so far has concerned the relationship between the SIA and the Secretary of State. That issue has been properly explored, whether the relationship is one of dependence, independence or, as the right hon. Member for Walsall, South interestingly, and perhaps appositely, suggested, one of mutual dependence or constructive interaction. I would like to think that that is the relationship that will evolve. However, it is important that we should know, in the overwhelming majority of cases, when directions are being issued by the Secretary of State, the matters on which they are being issued, the purposes for which they are being issued, and what, in those circumstances—which may vary—the word ``direction'' connotes.

My anxiety is that the Government assume, too often, that direction—something insisted on—is what is required. If, as the Minister emphasised, the Security Industry Authority will be carefully composed as a credible, authoritative and responsible body, it is not clear why, on a range of matters, it should regularly need to be subject to direction, as opposed to encouragement, consultation or open exchanges of opinion about what approach should be followed.

I did not find the words of Lord Bassam in the Official Report on 30 January at column 591 at all reassuring, even if they were intended to be so. I know that my noble Friends initially felt encouraged that he was seeking to reassure them that, in the vast majority of cases, information would be public, and there was nothing about which to be greatly concerned. I know that they went on to feel, as the debate progressed, that the Government were, if anything, backtracking on that commitment to openness, and seemed to be paving the way for a more wide-ranging and extensive issue of directions that would not be placed on the public record. That was a concern that my noble Friend Viscount Astor articulated at column 1362 on 1 March. He said that in Committee the Under-Secretary had been kind enough to say that he would reflect on the matter of public record.

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However, my noble Friend was alarmed when, as he understood it, the Under-Secretary went back to the Home Office and all his natural inclinations for open and reasonable government deserted him, notwithstanding all his years of saying that the Labour party wanted more openness in government. My noble Friend was afraid that he had been subverted by the system. I shall not dilate on that point—because you will not like it, Mr. Benton—about which the hon. Member for Lewisham, East expressed such enthusiasm.

Lord Bassam said that he would write to my noble Friend Viscount Astor, and he did so, in his usual courteous fashion. However, the letter was rather extraordinary, because it appeared to be a total denial of what my noble Friend thought that Lord Bassam had previously stood for and argued. He reminded my noble Friend that he had acknowledged the arguments in favour of a general presumption of openness. However, he went on to say:

    ``I remain of the view that there may be very limited circumstances in which the use of a confidential direction may be necessary.''

The only example that he went on to give was one in which directions may be required naming individuals or particular companies. He continued:

    ``consequently we should not place a requirement on the face of the Bill for all directions under Clause 2 to be published.''—[Official Report, House of Lords, 1 March 2000; Vol. 622, c. 1362.]

I put it to the Minister of State—who will speedily have followed the argument—that that is a classic example of erecting an Aunt Sally and then knocking it down. My noble Friend did not make any such request or demand, or insist that there should be a requirement in the Bill for all directions to be published, but said that there should be a presumption that such directions should be published, which is perfectly reasonable.

As I think that my hon. Friend the Member for Surrey Heath believes, it is necessary for directions to be laid before each House of Parliament—we can no longer trust to luck. There has been much backsliding, hedging and prevarication by the Government, and we feel that any direction that is of sufficient public interest to require being stated in writing to the authority should also be of sufficient significance and public interest to be placed on record in Parliament. If the Minister can think of circumstances in which that would be prejudicial to the public interest, it would be helpful if he would explain—rather better than Lord Bassam did—what such circumstances would be. So far, we have not had much satisfaction from the Government on this matter.

There is an anxiety—which is the root of our amendment—that the Government do not seem to have much confidence in the authority that they have chosen to establish. Even before it has been created, the Minister appears to be saying that he is able to decide who gets a licence and who does not. In certain circumstances, he may direct the authority not to give someone a licence because he does not think that it should. I want to know what circumstances would cause a conflict between the Security Industry Authority and the Secretary of State, and what would justify the insistence of the latter on his point of view over and above the considered judgment of the authority appointed to make such assessments. If such circumstances can be envisaged, they should be explained to us now. If such conflicts are thought likely to arise in future, it is not unreasonable, if we believe in open government and the integrity of the SIA and of the relationship between it and the Secretary of State, to demand public explanations. That much we have not yet had from the Government.

The position seems even worse than I have so far described. I will probably be excoriated by my hon. Friends the Members for Surrey Heath and for Mid-Norfolk (Mr. Simpson) for my characteristic understatement of the case. I know that I tend to fall into that trap, but I am doing my best to speak up with some force on the matter, and they will no doubt encourage me.

The position seems worse than I have so far described because the Home Secretary may discover reasons why someone should not be given a licence—for example because that person has a criminal record. Under the Bill, the authority will have the right to acquire such information. It will be able to hold informal discussions with the Home Office and agree with the Home Secretary not to issue a licence. However, central Government have reserved the power to issue directions—not to have a discussion or a mutually beneficial interaction, but simply to insist.

I want to explore the point in some detail. I may have satisfaction from the Minister, but I have not had satisfaction from reading the debates in the other place. For the avoidance of doubt, let us remind ourselves of the terms of the clause. It states:

    ``In carrying out its functions the Authority shall comply with any general or specific directions given to it in writing by the Secretary of State.''

It refers not merely to ``directions'' but to ``general or specific directions''. We must therefore assume that in some circumstances the Secretary of State expects—to deploy another word, I believe accurately—to insist on his preferred course, even if that course has not been decided on or has even been rejected by the Security Industry Authority.

I am unhappy about that. It is perfectly possible that someone could be refused a licence not because the Security Industry Authority decides that he or she is unsuitable to hold one, but because the Secretary of State has been reminded by officials that, under the clause, he can stamp his feet and issue a written instruction—``directions'' or ``instruction'' seem to be interchangeable terms in such circumstances—to the authority to that effect.

If that is not what the Government have in mind—I am prepared to accept that it might not be, although it is difficult to understand how it would not be—why is the Minister not prepared to give us an assurance by stating more explicitly in the Bill the extent of the perceived power of direction or the limits to it? When we are not told the specifics and a permissive power is provided that seems to be extremely wide, we become anxious that the power might be abused or, if not abused in the strict terms of the Bill and the entitlement that it confers, used for purposes for which we do not believe that it should be used.

In the same debate, my noble Friend Viscount Astor, at column 1366, asked the Under-Secretary to give an example of when the Home Secretary would give a direction relating to an individual. I emphasise that that could be a direction about which the individual himself or herself never learned. That is disturbing, because surely the first principle of natural justice is that a person against whom an adverse decision is made should know why. If he or she does not, it is difficult to understand how he or she can properly appeal. I do not see why the circumstances pertaining to that individual cannot be assessed by and adjudicated on by the authority. It is not clear why the Secretary of State needs to intervene. However, in response to my noble Friend Viscount Astor asking him to explain the matter, interestingly and curiously, Lord Bassam said:

    ``The direction would not be: `Thou'—the SIA—`shalt not give a licence to'. In very limited circumstances the Secretary of State may ask for investigations to be made on sensitive issues with regard to companies about which there is concern. The Secretary of State may use that power to direct the SIA to carry out an investigation into a specific company where there is concern—perhaps a PSI equivalent of BCCI.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1367.]

That is interesting. The Government were saying, ``Oh yes, there is a power of direction. We know that—general or specific—because it is in clause 2, but all we would be doing is directing the authority to conduct an investigation or to consider a factor that hitherto it had failed, through inadvertence or refusal, to consider.'' The Under-Secretary seemed to be trying to reassure my noble Friends that the direction would not insist on the granting or refusal of a licence to an individual.

We now come back to the issue to which we often return in our debates: the conflict between what is written in the Bill and Ministers' assurances. They assure us that the Bill sets out how they intend to proceed, but my hon. Friend the Member for Surrey Heath and I are worried that such measures may not always be interpreted that way in practice. Why? Well, Ministers are not computers, although they occasionally make a good imitation of them. They are human beings and will vary. Some may adopt a relatively light-touch approach, some may take a middling approach and some may take a wide and comprehensive approach. I do not know which of the models offered by the right hon. Member for Walsall, South will be taken as their guiding light, but that could vary, and honourably so.

That is why we are worried that, if there were a potential for power to be used more widely than we would consider justified or consistent with the independence and integrity of the Security Industry Authority, caveats and safeguards should be put in place to ensure that that does not happen, whatever the legislative and directional appetite of the Secretary of State of the day. That, as yet, we do not have that assurance is a source of concern to me.

My noble Friend Viscount Astor went on to develop his point about the Secretary of State's power. He said that the directions not only give him the power to

    ``direct that someone should not be given a licence, but they give him the power to give a secret direction to the authority to give someone a licence. Someone could get a licence because, on a whim, the Secretary of State feels that it is necessary. We will never know. The authority might be against the decision, but there will be nothing that it can do about it. It will have to comply.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1368-69.]

I regard that as a central point. Will the Minister answer me head on about this subject? I am willing to concede that such action may not happen often. I accept that it might not happen at all, but it is conceivable that a situation could arise in which the Secretary of State thought that a particular individual—perhaps someone who had lobbied privately for the privilege—should be granted a licence, when the Security Industry Authority had come to a different view.

The Secretary of State of the day would issue either a general or specific direction, because he is empowered to do that under the terms of the unamended clause. In this context, it would be a specific direction: he might state that, although he recognises that the authority has judged that a licence should not be granted to the individual, he has access to information to which the authority is not privy, or he is better acquainted than the authority with the individual, and he insists that the authority provide a licence.

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Would such information be in the public domain? Would the example that I have described be one of the 99 per cent. of cases that, Lord Bassam assured us, would be publicly recorded, or would reasons be invoked to justify withholding the information? Those are legitimate concerns. Although only a small number of cases might be affected, they would be of great importance to the individuals concerned, and they might reflect on the integrity and propriety of the procedures undertaken.

In the course of the debate to which I have referred, Lord Bassam said that

    ``The Secretary of State cannot interfere in the judgment of the SIA. That is not the point. The noble Viscount''—

Viscount Astor—

    ``is assuming that the Secretary of State will simply tell the SIA not to give a licence.''

Equally, as I have argued, he could tell it to give a licence. Lord Bassam then states:

    ``That is not what I am saying. I was very careful not to say that. That is the authority's judgment alone.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1369.]

That was the Under-Secretary's statement, but it is merely his interpretation, as there is no reference point for it in the clause.

If it is intended that in no circumstances would the Secretary of State do more than direct that particular investigations take place, and that in no circumstances would he use a power—or even think that he had a power—to require the SIA to change a decision that it had reached, why does the clause not include an assurance to that effect? That is a simple point: indeed, as the late Enoch Powell would have said, it is so blindingly obvious that only an extraordinarily clever person could fail to grasp it.

This matter is of concern to my party, so I hope that the Minister will reflect seriously on it and provide an answer. The power is widely drawn and my party believes that it could be abused, and used in ways that the House does not understand. Perhaps the Minister will tell us how far he would involve himself in the mechanics of individual applications? I presume that he accepts that he could direct inquiries or investigations of particular individuals to be undertaken. If that is the case, why does he not also accept that if a Government did not agree with the conclusion of an authority's investigation, they could insist that it was changed?

Will the Minister tell us more than Lord Bassam did about the circumstances in which this broad power would be used? If he is prepared to set out in detail the circumstances that he or the Home Secretary envisage, we might be reassured. Is it a Henry VIII power? Will it allow the Secretary of State to direct the SIA to act contrary to its decisions, or in ways that might conflict with other parts of the Bill or other legislation? I am also concerned about the relationship between the directions and any other legislation that might be forthcoming, such as secondary legislation. If this wide power is to exist, surely the direction should, ordinarily, be placed before Parliament?

The following question begs itself: if the Secretary of State is to have such broad powers of direction, what, ultimately, is the purpose of having the security authority at all? I hope that that point is not reached. The Minister will recall that similar issues were raised concerning the Secretary of State's powers of direction in relation to the new national probation service during the debates on the Criminal Justice and Court Services Act 2000. I do not intend to do any more than animadvert in that way to that legislation, because you, Mr. Benton, would get upset if I dilated on it. However, I am worried that the Government are providing themselves with a broad power.

I believe that the Minister will accept that the power is broad. If he does, will he explain the legal constraints on its exercise? If, however, he is in an especially argumentative mood, which I hope he is not, and disputes that the power is broad—although it is difficult to understand how he could—and says that it is narrow and limited, there is no good reason why he should not now explain what the narrowness of the power entails and the strict limits on its exercise. Either way, there is no good reason why we should not have a rather better explanation of that intended exercise than Ministers have so far provided. It is on that basis—to raise legitimate anxieties about the scope of the clause—that I press the amendment.

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