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
Clauses 96 to 98 - Retention and destruction of
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
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.