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Lord Dholakia: My Lords, I endorse everything that the noble Lord, Lord Dixon-Smith, said. We on these Benches support the amendment. The Henry VIII measure that we are discussing is more or less a case of the Home Secretary saying, "I can do anything that I like". He is more or less seeking absolute power. That is pernicious and something that we find difficult to accept. The legislation could have been framed in various ways which would have resulted in such a power not being required.
We have already discussed at some length the conferring of police powers on non-police officers and the concerns and various views about that. Clause 39 would enable the Home Secretary to extend the range of powers which could be conferred on designated or accredited persons simply by order. In our view that is absolutely unacceptable. The conferring of police powers, whether on the police or anyone else should be subject to the proper rigours of scrutiny and debate which is given to Bills and should not simply be something which can be changed by order, even if it is subject to the affirmative resolution procedure. For that reason we strongly oppose Clause 39 being part of the Bill.
Lord Rooker: My Lords, I do not want to add a note of dissent at this stage in our proceedings, but it is extravagant to say that the clause allows the Home Secretary to do anything he likes. That is simply not the case; it is overstating the situation. There are significant safeguards in the clause; any change is subject to the affirmative resolution procedure. I shall return to that matter.
The Secretary of State cannot use the clause to confer powers of arrest or detention on civilians which are additional to those already provided for in Schedules 4 and 5. A civilian cannot be given additional powers to enter premises without the occupier's consent when unaccompanied by a constable. The Secretary of State cannot create new powers which are not already given to a constable or some other person, for example, a local authority employee such as a dog warden or an environmental health officer.Therefore, there are safeguards over and above the affirmative resolution procedure.
One of the first things I was told when I came to this House was that certain committees in the Palace of Westminster are listened to less than others. The committee that counts above all others is your Lordships' Select Committee on Delegated Powers and Regulatory Reform. I am told that the norm is that any and every recommendation of that committee
is accepted by government. The committee's report (HL Paper 73) refers to what was previously Clause 38 and is now Clause 39. It states at paragraph 7:
- "This clause confers a Henry VIII power to modify Schedules 4 and 5 and to modify any other enactment to facilitate the exercise of powers or duties created by an order under the clause. Affirmative procedure is provided for this power, and we consider that this is appropriate".
Lord Dixon-Smith: My Lords, the Minister needs to remember that, although the Select Committee on Delegated Powers is powerful and influential and we must all take its comments extremely seriously, in the end it is the House that decides these matters. The power of the House is greater than the power of any of its committees. That is as it should be. That said, the fact of the matter is that this is an open Henry VIII clause. The Select Committee may well have decided that it is satisfied, but that does not necessarily mean that I am satisfied. Clearly, the noble Lord, Lord Dholakia, who supports the amendment, is not satisfied with the clause either. This is not perhaps the occasion to pursue the matter as we shall need to consider the Minister's response. This is an important issue as there is an element of uncertainty as regards the whole question of the use of designated or accredited persons. It is that lack of certainty that causes us concern. However, for the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 40 [Code of practice relating to chief officers' powers under Chapter 1]:
Lord Rooker moved Amendment No. 221:
- Page 37, line 24, at end insert—
The noble Lord said: My Lords, we have reached government amendments which show what an open, listening and transparent government we are in our response to the Committee stage. I shall be brief as I have a sackload of concessions for your Lordships offered at the behest of the Home Secretary who is delighted to oblige!
Government Amendments Nos. 221 and 226 return to the issue of consultation which has been a theme throughout many of our debates on the Bill. The amendments are concerned with codes of practice issued under Clauses 40 and 46.
The House will recall that Clause 40 obliged the Home Secretary to issue a code of practice relating to the discharge by chief officers of their powers under Chapter 1 of Part 4. Clause 46 imposes a similar requirement on the Home Secretary to issue a code of practice in respect of the carrying out by police authorities and independent custody visitors of their functions in relation to independent custody visiting. It is important that before any such codes are issued or amended, there is an opportunity for the police, police authorities and others with a legitimate interest to give their views. We have always made it clear that we would consult when drawing up such codes. These amendments enshrine that commitment. I beg to move.
Lord Renton: My Lords, I have a suggestion that I hope the Government will find helpful. The codes of practice must obviously take into account the provisions of our criminal law. Paragraph (g) of the amendment refers to the Secretary of State consulting,
Lord Dixon-Smith: My Lords, the Minister will be happy to hear that I welcome him when he is in listening mode and is responding to points that were earlier made about the Bill. This is another welcome addition to the Bill and we are grateful to him.
Lord Rooker: My Lords, I should respond to the point that the noble Lord, Lord Renton, made about the Attorney-General, as a law officer of the Crown. It would be most unusual if the Home Office were turning out documentation that was not cleared around Whitehall. The noble Lord did not ask for anything to be added to the Bill; he was simply highlighting the fact that the phrase,
On Question, amendment agreed to.
Clause 41 [Offences against designated and accredited persons etc.]:
[Amendments Nos. 222 to 225 not moved.]
Clause 46 [Independent custody visitors for places of detention]:
Lord Rooker moved Amendment No. 226:
On Question, amendment agreed to.
Clause 47 [Detention reviews for detained persons who are asleep]:
Lord Bassam of Brighton moved Amendment No. 227:
The noble Lord said: My Lords, I shall speak with the spirit of brevity that will now engulf us as we trundle through endless government amendments, which were introduced in a fantastic spirit of generosity that was described by my noble friend Lord Rooker. This amendment is a technical amendment to the Police and Criminal Evidence Act 1984, to resolve an anomaly between Section 38 of PACE, which covers the duties of custody officer after charge, and Section 40 of PACE, which covers reviews of detention. It mirrors the amendments already made by Clause 47 in respect of the duties of the custody officer before charge.
I have with me a long and worthy explanation of the matter, which I could read out and try to encourage noble Lords to take careful note of, but I am afraid that I have given the long and the short of the matter. I hope that that explanation, and the fact that this is a highly technical amendment that seeks to benefit all, will please noble Lords. I beg to move.
On Question, amendment agreed to.
Clause 53 [Vehicles used in manner causing alarm, distress or annoyance]:
"( ) Before issuing or revising a code of practice under this section, the Secretary of State shall consult with—
(a) the Service Authority for the National Criminal Intelligence Service;
(b) the Service Authority for the National Crime Squad;
(c) persons whom he considers to represent the interests of police authorities;
(d) the Director General of the National Criminal Intelligence Service;
(e) the Director General of the National Crime Squad;
(f) persons whom he considers to represent the interests of chief officers of police; and
(g) such other persons as he thinks fit.
( ) The Secretary of State shall lay any code of practice issued by him under this section, and any revisions of any such code, before Parliament."
6.30 p.m.
"such other persons as he thinks fit".
In that regard, the Government should consult the Attorney-General, the Lord Chief Justice, the senior judge at the Old Bailey or someone with eminent experience of the criminal law. However, they need not necessarily write that into the Bill.
"such other persons as he thinks fit",
should include the sort of people who he mentioned. I am sure that that will be taken on board.
Page 40, line 29, at end insert—
"( ) Before issuing or revising a code of practice under this section, the Secretary of State shall consult with—
(a) persons whom he considers to represent the interests of police authorities;
(b) persons whom he considers to represent the interests of chief officers of police; and
(c) such other persons as he thinks fit.
( ) The Secretary of State shall lay any code of practice issued by him under this section, and any revisions of any such code, before Parliament."
Page 41, line 3, at end insert—
"( ) In subsection (10) of that section—
(a) for "(6)" there shall be substituted "(6B)"; and
(b) for the words from "the substitution" to the end there shall be substituted "the modifications specified in subsection (10A)".
( ) After that subsection there shall be inserted—
"(10A) The modifications are—
(a) the substitution of a reference to the person whose detention is under review for any reference to the person arrested or to the person charged; and
(b) in subsection (5), the insertion of the following paragraph after paragraph (a)—
'(aa) asleep;'"."
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