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Lord Dholakia: My Lords, we set out our arguments on Report as to why we oppose Clause 40. The clause contains draconian powers by which the Secretary may, by order, amend the provisions of Schedules 4 and 5—as was rightly pointed out by the noble Lord, Lord Borrie.
On Report, we were told by the Minister that this is a long long-stop, and that the Home Secretary cannot make an order unless the draft has been laid before Parliament and approved by a resolution of both Houses.
The question we must ask is: why does the Secretary of State require such wide-ranging powers? On Report, this House was not prepared to give powers to the Secretary of State in Clause 5. I know that the amendment does not relate directly to that provision, but the power in that clause would give the Home Secretary the ultimate authority, bypassing the duties and obligations of police authorities across the country, thus enabling him to control police functions centrally. A strong impression is given of the degree to which the Home Secretary wishes to exercise these powers, bypassing many of the functions of the local police authority.
The police authorities have local accountability. They are the ones who should be exercising powers, without interference from the Secretary of State. But we know the Minister's view of police authorities. I am delighted that he met members of some of them today. Perhaps he will have a change of heart.
There is ample Home Office involvement in the composition of police authorities. The 1994 Act introduced by the then Conservative administration ensures that, out of 17 members—nine of whom are councillors and three of whom are magistrates—five independent members are appointed from a shortlist referred by the Home Secretary. Again, he has considerable leeway within which to convince those at local level about what is required and what is appropriate.
Even at present, the Home Secretary has wide powers. He can make regulations and issue codes of practice and good practice guidelines which police authorities follow. To empower the Secretary of State further, as envisaged in Clause 40, bypasses one of the fundamental principles of local policing. Section 96 of the Police Act 1996 requires police authorities, not the Home Secretary, to make arrangements for local consultation. The purpose is to obtain people's consent as regards policing in their area and to obtain the co-operation of local people in preventing crime.
The Secretary of State does not require the additional powers laid down in Clause 40. This is another measure which shows how far the Government are prepared to go to control some police functions centrally.
Lord Rooker: My Lords, I am in a quandary. I do not know what the precedent is for this House effectively overturning a settled recommendation of the Select Committee on Delegated Powers and Regulatory Reform. Obviously, the House is master, not the committee. However, it will not wash the next time a
Minister has to tell his or her department that the committee's recommendations on a Bill should be observed. Why on earth should anyone listen? The implication will be that the committee is not particularly powerful, because we cannot guarantee that the House will agree to implement its recommendations.In the past, the Government have accepted the Select Committee's recommendations and have amended and changed legislation at its request. They have acceded to the views of the committee. To the best of my knowledge, they have accepted its recommendations without qualification where it has believed that powers being exercised by negative resolution should be exercised by affirmative resolution; or where powers were being operated in such a way that in the view of the committee the House ought to have more control. So it simply will not wash in future if the House decides to overturn the recommendation in paragraph 7 of the committee's report relating to this clause—which was Clause 38 in the Bill as originally drafted.
It is true that this is a Henry VIII clause. The Secretary of State may modify Schedule 4 and other enactments to facilitate the exercise of powers. It makes it clear that we consider that the affirmative power is appropriate. So, for the future, we must make our minds up. There is no reason why Ministers in other departments should acquiesce in future to the recommendations of the Delegated Powers Committee if they are minded not to. It simply will not work for Ministers in this House to explain to Ministers in the other place, who may not fully understand the position here, that this is how this House works. To the best of my knowledge, to remove Clause 40 would be to tear up the rulebook.
Furthermore, any recognition whatever that this is enabling legislation has been absent from the debate. The clause is not prescriptive. There is reference to pilot schemes. Of course there will be pilots. There are 43 police authorities—and they will not all choose to operate the legislation. It is for the chief constables to decide whether to include such provision in their policing plans. It is not up to the Home Secretary. This is purely enabling legislation for chief constables. There is nothing prescriptive about it. So I cannot understand some of the arguments that have been made repeatedly at different stages.
It is not as though Clause 40 contains no safeguards, or checks and balances, to prevent the provision from being used inappropriately. Any changes under the terms of the clause are subject to affirmative resolution—a fact dismissed by the noble Earl. I do not dismiss it, and I do not accept his dismissal.
Noble Lords will appreciate that the clause contains a significant safeguard. A future Home Secretary will not be able to extend the range of powers available under this part of the Bill at the drop of a hat. That is important. Secondly, while the clause would allow the
Secretary of State to give chief officers a greater range of powers to make available to designated and accredited persons—
Earl Russell: My Lords, will the Minister tell the House when an affirmative resolution was last rejected by another place?
5 p.m.
Lord Rooker: I cannot, my Lords, but that is not the point. If the other place chose to accept a resolution, that would be its business. The point is that, in whatever case it might be, the other place would be given that opportunity. It is not as though the power being operated would be agreed by negative resolution. There is a well tried procedure. It is no good arguing that, just because the other place accepts affirmative resolutions, that is to be dismissed and parliamentary accountability is to be dismissed. One might as well argue that there is no difference between negative and affirmative resolutions if we take the noble Earl's point to the illogical conclusion that he seems to be advancing. I simply do not accept his argument.
The checks and balances in the clause are important. Anyone might run away with the idea that the clause gives the Home Secretary the power to do anything he wants, and ram that through under the affirmative procedure—which I do not accept is a case of ramming through. The clause explicitly prohibits the Secretary of State from conferring powers of arrest or detention on civilians which are additional to those already provided for in Schedules 4 and 5. So he cannot by stealth create an army of community support officers with full constabulary powers. He cannot confer on such officers additional powers to enter premises without the occupier's consent when unaccompanied by a constable; and he is prevented from creating new powers which are not already available to a constable or some other person—for example, a local authority employee such as a dog warden or an environmental health officer. He cannot do any of those things under the clause, by negative or affirmative resolution, with or without the approval of the House. He simply cannot do it. None of us claims to have a crystal ball. Schedules 4 and 5 provide a comprehensive list of powers—a menu from which chief constables can choose—which would enable those who are designated as community support officers to tackle the various types of behaviour that blight people's lives at the moment, in 2002. In the future the position might change. It may change or it might change, but we do not say that it "will" change.
The ability to use secondary legislation is important. Chief police officers would not have to wait, potentially for a number of years, for appropriate primary legislation. There are always excuses for why Bills cannot be put in the programme.
I also argue that the clause would allow the Secretary of State to add additional categories to the types of support staff who can be given police powers, if it becomes apparent in the future that that will be a sensible thing to do in order to free up highly trained police officers to spend more time on the street, where the public want them. We have to reduce the 43 per cent of a police officer's time spent in the station. That is, after all, one of the main purposes for Chapter 1 of Part 4 of the Bill. Empowering support staff in this way maximises the use of the skills and the time of police officers. It is an important part of the battle against unnecessary bureaucracy that ties constables into police stations for too long dealing with red tape and issues that do not require all their skills. It is about putting a greater uniformed presence on the streets.
The noble Baroness, Lady Hanham, raised the issue of the local elections that are to take place next week. I would loathe to be a Tory candidate in a marginal seat who has been told, "The Government are on the rocks, you are going to get in this time", only to discover that the Conservatives in the House of Lords are voting against a greater uniformed-police presence on the streets. That is the reality of the package of amendments tabled today. I can say the same for the Liberal Democrat candidates.
We are trying to get bobbies out of the stations and on to the streets. In order to do that they need greater support in certain areas, as deployed through the Bill in terms of accreditation and community support officers. I repeat that this is enabling legislation. This is not the Home Secretary saying to chief constables, "You will appoint community support officers"; and no one should give the impression that it is. The chief constables may employ community support officers and other designated individuals, but they do not have to. Chief constables may accredit organisations that first have to request accreditation; it is not for the chief constable to do that. So we are not talking about the Secretary of State being able to force the schemes on to chief constables. At all stages of the Bill we have made that abundantly clear.
If noble Lords are not satisfied in respect of the arguments for Clause 40, which we were told on Report and again today is a matter of principle—there is no question about that—we then come to Amendment No. 29: the quaint little new clause giving power to approve pilot schemes. What is in that new clause? There is a power for the Home Secretary, by order, to increase the powers available to accredited persons in up to 12 pilot areas. There are few safeguards in Amendment No. 29. Do not forget that Clause 40 is out and all the safeguards that I have talked about are out. There are no safeguards in the new clause or very few. Yes, it is subject to the affirmative procedure, but there are no limitations on the order-making power in the new clause as there are in Clause 40 which is already in the Bill.
We are legislating seriously and maturely. I make it clear that under these amendments Clause 40 goes out and that new clause goes in. We are not comparing like with like. There is no restriction that prevents the powers of arrest being conferred on accredited
persons. There is nothing to prevent accredited persons being given powers of entry without being in the company of a constable. Furthermore, it would be possible to confer on accredited persons the power to use reasonable force. That is the new clause. Surely nobles Lords will not seriously attempt to put such a measure on the statute book.
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