Policing and Crime Bill - Delegated Powers and Regulatory Reform Committee Contents

Ninth Report

Policing and Crime Bill


1.  This Bill had its Second Reading on 3 June. Only Part 1 of the Bill is concerned with policing. Parts 2-8 amend various aspects of the criminal law, with Chapter 2 of Part 8 containing a miscellany of changes which include, importantly, new powers to make provision about the retention and destruction of fingerprints, samples etc. taken in the course of criminal investigations. The Home Office has prepared a memorandum, printed at Appendix 1, explaining each of the delegations of power conferred or affected by the Bill, and the level of parliamentary control which is to apply in each case.

Clause 2 (Police Senior Appointments Panel)

2.  Clause 2 inserts new sections into the Police Act 1996, establishing a statutory Police Senior Appointments Panel, which will replace the existing non-statutory panel. New section 53B(1) provides that the panel is to be constituted "in accordance with arrangements made by the Secretary of State". There is a case for these arrangements to be set out in a statutory instrument subject to negative procedure, but, as the functions of the panel set out in the Bill are purely to advise the Secretary of State and police authorities, on balance the Committee does not consider the absence of any Parliamentary control inappropriate. However, under new section 53D(1) further functions may be conferred on the panel by order, and any new functions need not necessarily be purely advisory. The Committee is content with this arrangement, as any such extension of functions would be exercisable by statutory instrument subject to negative procedure, when both Houses could consider whether the new functions are suitable for a Panel constituted in accordance with Ministerial arrangements rather than regulations.

Clause 95 (criminal records: applications)

3.  At present, a person who applies to the Criminal Records Bureau for a criminal record certificate etc. must do so in the manner and form prescribed in negative regulations. Clause 95 substitutes for this requirement a power for the Secretary of State to determine "the form, manner and contents" of an application, with no parliamentary oversight. Although, at first sight, the loss of parliamentary control over procedural forms may not seem to be particularly important, a requirement to apply on a particular form commonly involves a requirement to provide information specified in the form, which generally is a matter which may be suitable for parliamentary scrutiny.

4.  The form currently in use (set out in S.I.2002/233) requires the provision of personal information - for instance, the sort code and account number of the applicant's bank account - but Parliament is at least in a position to consider and, if not satisfied, to veto the extent and depth of the information sought by the prescribed form. Because clause 95 removes, rather than confers, a power to make regulations, there is no explanation in the memorandum why it is thought appropriate to remove the opportunity for parliamentary scrutiny.

5.  A very similar point arises in clause 81, by which the Secretary of State is given the power to determine "the form, manner and contents" of a monitoring application under the Safeguarding of Vulnerable Groups Act 2006.

6.  The Committee draws to the attention of the House the change made by clause 95, and the provision made in clause 81, so that the Minister might be given the opportunity to explain the proposed absence of parliamentary control in these instances.

Clauses 96 to 98 - Retention and destruction of samples etc.

7.  Clause 96 inserts new sections 64B and 64C into the Police and Criminal Evidence Act 1984 ('PACE') conferring wide powers on the Secretary of State to provide by affirmative regulations for the retention, use and destruction of the material (for instance, fingerprints or DNA or other samples taken in the course of a police investigation) described in section 64B(2). The regulations may confer functions on a body established by the regulations, including the function of keeping their operation under review, and may also amend or repeal any Act, including this one, possibly by conferring further delegated legislative powers. As is acknowledged in paragraph 61 of the memorandum, these new powers are extensive, albeit exercisable only in the context of the materials described in section 64B(2). Clause 96 makes provision for England and Wales; clauses 97 and 98 provide for the armed forces and for Northern Ireland respectively.

8.  The context is explained in some detail in paragraphs 57-71 of the memorandum by reference to the Government's response to the decision last December of the European Court of Human Rights in the case of S. and Marper -v- UK. Paragraphs 63 onwards explain the tension which the Government sees between the need to take time properly to develop a coherent policy in response to the decision and the need to comply with the decision without undue delay. The choices of legislative vehicle are seen as threefold: provision in this Bill, provision in a subsequent Bill and provision in subordinate legislation.

9.  The legislative provision to be made about the retention and destruction of samples will be important, controversial and complicated. As the Government memorandum notes, "the judgment raises complex issues which need to be properly thought through" (paragraph 64). It seems clear to the Committee that Members of both Houses will want, and should have, the opportunity to propose and debate amendments to this legislation. The proposal in the Bill, for regulations subject to the normal affirmative procedure, would not allow for this. The Committee therefore concludes that the extremely wide delegated powers in clauses 96 to 98 should not be allowed to remain in the Bill in their present form.

10.  In principle, leaving aside any timing considerations, the Committee considers that provision about this important and complex subject should be in primary legislation, giving the usual opportunity for detailed scrutiny by Parliament. If the House is convinced by the Government's case that the matter cannot be left to future primary legislation, then only a super-affirmative procedure would be appropriate. Under such a procedure a proposed set of regulations would be laid, and both Houses and its Committees (and others) would have the opportunity to debate and comment on them. The Government would then consider, in the light of this scrutiny, whether to make amendments before laying a new set of Regulations before both Houses for formal approval. The Committee anticipates that consideration might be given to proposing a remedial order under section 10 of the Human Rights Act 1998. Such an order would be subject to the super-affirmative procedure set out in Schedule 2 to the 1998 Act, allowing representations on an initial draft to be made to the Government (explicitly including "any relevant Parliamentary report or resolution"), before a (possibly revised) draft was formally submitted for approval by both Houses. The Committee notes that, though a super-affirmative procedure would allow both Houses to propose amendments, it would be up to the Government what changes it included in the draft instrument laid before Parliament for final approval, and that (unlike Bills) there is no mechanism for reconciling differences of view between the two Houses.

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