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Lord Dixon-Smith moved Amendment No. 28:
- Leave out Clause 40.
The noble Lord said: My Lords, Amendments Nos. 28 and 29 are grouped together, although the second amendment is not consequential on the first. In fact, they will be taken separately.
Amendment No. 28 is deceptively simple: "Leave out Clause 40". Clause 40, of course, is another matter altogether. It provides the Secretary of State with the power to extend the police powers set out in Schedules 4 and 5 to police civilians working at the order of the
chief constable or to accredited persons working under a scheme created by the chief constable. It provides a power for the Secretary of State to amend the contents of the schedules to increase or diminish those powers.It is, of course, true that the power is subject to affirmative resolution by both Houses, and, to that extent, Parliament will be involved in any subsequent decision to amend the schedules. However, despite what the Select Committee on Delegated Powers and Regulatory Reform has said about the matter, such clauses call into question the validity of the legislation that we pass. We have seen that from time to time with other Bills. I do not apologise for saying that. Parliament gives much less consideration to statutory instruments than we give to fundamental legislation, such as this Bill.
Clause 40 goes too far. There are other problems with Schedules 4 and 5, to which we shall come later, although we need not concern ourselves with those now. However, we argue strongly that Parliament should decide such matters and that should be the end of it. We do not see the necessity for having Clause 40 in the first place. If such matters have been properly debated and determined by both Houses by the time that the Bill is passed, that ought to be the end of it.
Amendment No. 29 is in the same group. We felt that it was worth pursuing. It could be argued—this is where I find myself with a slight intellectual difficulty—that Amendment No. 29 is in conflict with a wish to leave out Clause 40. However, given the realities of political power, as Parliament goes to work, one cannot be certain what the final outcome on the Bill might be. In any event, there will have to be a great deal more discussion in another place about the Bill.
The clause that Amendment No. 29 would insert would be appropriate. There may be occasions when wider powers than those which are finally included in Schedules 4 and 5 will be appropriate, particularly for accredited people, but we on this side of the House have argued consistently that the people on the streets exercising police powers should be policemen.
We have tried very hard to persuade the Government that the accreditation schemes could be used to revivify the Special Constabulary. The Government was having none of either argument. They had bitten on a hook, the barb was set—I congratulate the person who set it, whoever he may be—and they were not prepared to consider other, perhaps more effective, schemes which would have provided a better long-term solution. I refer to my remarks on the previous amendment. This whole issue has come about as a result of a failure over time to properly fund the police force so that there can be sufficient real policemen on the streets.
Amendment No. 29 seeks to allow the Secretary of State to approve pilot schemes in the first instance. If people wish to try schemes of accreditation with powers additional to those permitted by the Bill, then, subject to the Secretary of State deciding that they are appropriate, they will be able to do so. If such schemes are successful, as some people believe that they will be,
although I am immensely sceptical that any success will be on the scale that they hope for, the amendment would permit the Secretary of State to expand the number of schemes and even to introduce them nationally. It is a valid amendment and one well worth pursuing.Amendment No. 28 is the significant amendment of the two. Amendment No. 29 needs further debate, but that will have to take place in another place. I beg to move.
Lord Borrie: My Lords, I wish to speak to Amendment No. 28 only. The amendment seeks to remove Clause 40, which enables the Secretary of State to amend by order the detailed powers in Schedules 4 and 5 of police civilians and accredited persons.
The noble Lord, Lord Dixon-Smith, has said that he seeks to delete Clause 40, despite the fact that it has the maximum kind of safeguard that one expects for delegated legislation—that is, that any use of the power in Clause 40 would require a draft order to be approved by both Houses of Parliament. The fact that the noble Lord, Lord Dixon-Smith, is moving the amendment—we may hear from the Liberal Democrats in support of it, as the names of the noble Lord, Lord Dholakia, and the noble Baroness, Lady Harris of Richmond, appear on the amendment—is somewhat surprising in view of the many debates that there have been on the powers to be given to civilians, particularly the community support officers. We may hear further arguments today.
In so far as there is perfectly legitimate anxiety about the powers of community support officers and others, this is not exactly an innovation on the ground. But it is an innovation in so far as it concerns detailed powers in police legislation and, given that it is fairly novel, it strikes me as contrary to much of what the noble Lord, Lord Dixon-Smith, said in Committee and earlier. He said that this is new and worrying and that he is anxious about how it will work out. But if the powers of civilian and community support officers at Schedules 4 and 5 are to be included in the Bill—and it is still an "if" at the present time—then, because this is novel, surely the noble Lord should see it as highly desirable that, if the Secretary of State should find that in this particular or that particular we have included a power that should not be there, or that we have omitted a power that should be there, the schedules should be amended by order of the Secretary of State, subject to the parliamentary control to which I have referred. That would seem a wholly appropriate and desirable power.
I could surely use some of the arguments used by the noble Lord, Lord Dixon-Smith, in previous debates to indicate that I, too, am anxious about these powers and would like to see that in certain circumstances they could be amended. We all know that there is to be a police Bill this year. The previous Bill was not long ago, but often there is a gap of many years between a substantive Act dealing with a subject such as this and another substantive Act. To wait until there is time for primary legislation may be wholly undesirable.
4.45 p.m.
Earl Russell: My Lords, powers of arrest and powers of entry are about as fundamental powers in English law as one can well take. I am afraid that the noble Lord, Lord Borrie, was mistaken to say that they are an innovation. They have been tried before and caused a vast amount of controversy. Inevitably, they led to conflicts of interest. They led to the revival of impeachment in the Parliament of 1621. I am afraid that the noble Lord, Lord Borrie, is illustrating the proposition that those who do not know history are compelled to repeat it.
In the face of these powers we have only the power of the statutory instrument. In the previous Parliament, 0.5 per cent of negative instruments were debated in another place. The percentage for affirmative instruments was not much higher. None was defeated. One single statutory instrument was defeated in this place. If this is the only power we have to control powers of arrest and entry, we relegate ourselves to being a part of the dignified part of the constitution: we are preserved to show off to the tourists while the effective government goes on elsewhere. If this House allows this clause to remain on the statute book, Parliament will have made itself redundant.
Baroness Hanham: My Lords, I shall address my remarks to Amendment No. 29. I have spoken previously about the ambition of the Royal Borough of Kensington and Chelsea, of which I am a council member—I hope to remain a member after 2nd May—to introduce a scheme of borough constables. Whatever happens to this clause, we shall wish to be part of a pilot scheme. One of the advantages and attractions of limiting the provision initially to pilot schemes is that it will enable us to see how the system works.
In Committee, I moved amendments to encourage the Minister to consider giving community constables the power of detention and the ability to use force in order to detain; and, secondly—although perhaps not so importantly—that community officers should be able to seize bicycles. That is an important aspect when one has been nearly mown down—as I have—by someone hurtling along the pavement. So there are additional areas where people consider those powers should be given.
I see, however, that it might be difficult to operate such provision on a general basis without having tested it out. Therefore, I support the concept of agreement to a number of pilot schemes in order to work out what the powers should be and how they could be applied—perhaps also to see what limitations should be imposed as a result of the concerns raised regarding the Secretary of State's powers. It would need to be determined whether they were too wide or not wide enough.
Therefore, Amendment No. 29 has a great deal of merit. It provides an opportunity to see how the system will work; then it gives the Home Secretary the right to extend the pilot schemes after observing how they operate. I support Amendment No. 29, but it is probably a matter of "tail over top" or "top over tail"—I am not quite sure which.
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