Private Security Industry Bill [Lords]

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Mr. Clarke: I simply wanted to kill off the red herring that the right hon. Member for Hitchin and Harpenden raised in relation to clause 13. It is the point that I have been seeking to make throughout my response to this debate. Clause 13 states:

    ``The Secretary of State may by order make provision for local authorities to carry out some or all of the Authority's relevant licensing functions in relation to such cases and such areas, and for such purposes, as may be specified or described in the order.''

Clause 13(3) describes the order referred to. It states that such an order may

    ``impose such conditions and requirements in respect of the carrying out of any of the Authority's relevant licensing functions by a local authority as the Secretary of State thinks fit''.

The point that it makes is that the Secretary of State's ability to make an order is within the context of the remit of the authority as a whole. There are many local authority licensing schemes, for example, in relation to bouncers at nightclubs, in respect of which it may be appropriate for the local authority to continue that role. As is made clear, the Secretary of State's power is within the context of the overall responsibility of the SIA, under clause 1, to carry out that function. The Secretary of State must act within that framework.

Mr. Bercow: That is very interesting, but I do not think that the Minister has even managed to persuade himself. He certainly has not persuaded any sensible, dispassionate and attentive member of the Committee, although I recognise that that excludes a substantial number of Committee members, who are not interested in the details of the argument at all.

Mr. Mike Hall (Weaver Vale): That is so arrogant.

Mr. Bercow: The hon. Gentleman chunters from a sedentary position, but he has not followed the argument, and does not understand the point. He cannot recognise the conflict between the Minister's assertions and the terms of the Bill, which confer extensive power. That is the reality.

Mr. Ian Stewart: I have been following the argument, as I am sure the hon. Gentleman recognises. I ask him to withdraw one comment: he asserted earlier, as I am sure the record will show, that the Bill does not, as my hon. Friend the Minister said, provide the SIA with the power to give or not give licences. I hope that he did not mean to imply that, but that provision is in clause 1(2).

Mr. Bercow: I absolutely concede that. The record is always the exclusive arbiter in such matters, but I certainly intended to give no such impression. If the hon. Gentleman looks at the record, I think that he will see that I did not say that. Of course the provisions of the Bill empower the Security Industry Authority to make decisions on such matters. However, I did say—which may have led him to make his observation—that the terms of the Bill do not make it clear that that is the exclusive preserve of the SIA. In fact, I used the word ``only'' in that regard—the Bill does not make it clear that that is a matter only for the SIA. If the Minister is suggesting that that is the case, there is no reason why we should not have the additional safety net of including such an assurance in the Bill.

I am disappointed by the Minister's comments, because he has not provided a justification of his position. The power could be more widely used—I am not even arguing that it would be used for bad purposes—but he is trying to argue that it is a relatively limited power, and that all that is possible is the direction to the authority to investigate. It is more likely that the Government imagine that they have a reserve power to insist on their point of view. If that is what they want, and what they recognise that they might wish to exercise, the matter should be debated on its merits—on the basis of whether it is a good or bad idea—and the Bill should state clearly that that is what the Government have in mind. As it stands, the clause is worryingly broad. It is open to use for purposes that the Government are not acknowledging, let alone defending. That is an unsatisfactory state of affairs because it does not make for clarity of law, which is what we should seek to establish. The Minister's concluding remarks were unsatisfactory, and I urge my right hon. and hon. Friends to support the amendment.

Mr. Lilley: I had not intended to speak in this debate, but I have been stirred to do so by the case that has been made by my hon. Friend the Member for Buckingham.

The Committee's duty is to scrutinise the legislation: its task is to establish the Bill's meaning and to ensure that it will achieve what we want it to achieve. The Minister, perhaps a little flustered by the difficulties that he experienced in adequately explaining the meaning of the clause, described the scrutiny that it was receiving as pettifogging. So be it. It is our duty to establish the meaning of the Bill clause by clause.

I entered Parliament with the objective of trying to limit the powers of Government and to minimise the discretion of Ministers, ensuring that where discretion has to be exercised, Ministers are accountable and transparent in their actions. The clause appears to give very broad powers to Ministers: it gives them discretionary powers and it does not make them transparently accountable to the House in the exercise of those powers. The amendment would at least set right some aspects of those discretionary powers by making the exercise of them transparent.

Two issues have emerged in the course of the debate. First, is it reasonable to give such powers to the Secretary of State? Secondly, does the clause give him those powers, as it appears to, or does it not, for the reasons given by the Minister?

There is a reasonable case for giving the Home Secretary those powers. That was explained by the right hon. Member for Walsall, South. Circumstances could arise in which the Home Secretary was in possession of information from the security services that he could not divulge, even to the SIA, because it would compromise the sources from which he obtained it, but that made it advisable in the public interest that the SIA be directed not to license a particular firm.

Those powers were not on the statute book when I was Secretary of State for Trade and Industry. However, three weeks after I was appointed to the post, Saddam Hussein invaded Kuwait, and we possessed information that there were two or three companies in this country that were beneficially owned by the Kuwaiti authorities, so I had to act to nationalise those companies. That was an uncharacteristic decision, and I was probably the last Conservative Minister to nationalise a company, but an exceptional power was on the statute book, and on that occasion it was necessary to exercise it in the national interest.

It might be the case that the Bill gives the Home Secretary similar exceptional powers to exercise in the national interest. If the Minister had come to the Committee and said that that was the case, we would have listened sympathetically, although we would also have tried to restrict and limit the exercise of those powers to particular circumstances. We would have wanted to ensure that his actions were as accountable and transparent as possible, but we might have accepted that there was a case for no transparency in such circumstances: for example, the Secretary of State might wish to exercise those powers without that being known to a criminal or a foreign hostile power.

There is a case for the clause as it stands. However, the Minister said that the Bill does not give the Secretary of State the power to direct the SIA specifically and generally and that he was not taking the power to direct the SIA to do anything that it is empowered to do under the Bill. He intervened to make such an extraordinary statement. It can mean only that he is taking powers to direct the SIA to do things that it is not empowered to do under the Bill. When I said that to him, he floundered.

12.30 pm

My question needs answering. The Home Secretary will have the power to direct the SIA either to take action that it is empowered to do under the Bill, or to do things that it is not empowered to do under the Bill. We can rule out the latter. It could not be possible for the Home Secretary to have powers to direct the SIA to do things that it is not able to do, but it is possible that the Bill grants the Home Secretary the power to direct the SIA to do things that it is empowered to do, and to tell it specifically which way to jump.

The Minister said that the Home Secretary could tell the SIA to carry out an investigation. It is not clear to me how he can read that into that lucid wording of clause 2(1), which states:

    ``In carrying out its functions the Authority shall comply with any general or specific directions given to it in writing by the Secretary of State.''

Why should the SIA respond to the Secretary of State if he asks it to undertake an inquiry, but not if he asks it to reach a particular conclusion at the end of that inquiry? I know of no legal maxims or case law that would justify the extraordinary assertion of the Minister that the clause does not mean what it appears to mean. He made that assertion off the top of his head.

Mr. Bercow: I understand and entirely endorse my right hon. Friend's point. Does he not agree that if the Secretary of State had available to him, courtesy of the Security Service or others, damning information that the SIA did not possess, he would in those circumstances not even be directing that an investigation should take place? He would be directing that, in the light of that additional intelligence, someone who would otherwise have been granted a licence should not be granted a licence. Why does the Minister not own up to that fact? It is so obvious.

Mr. Lilley: My hon. Friend is absolutely right. Does the wording of clause 2(1) empower the Secretary of State to tell the SIA what to do and what type of action it can take? A quick perusal of the Bill, which I had not previously committed to memory, shows that clause 9 refers to

    ``The power of the Secretary of State to prescribe the conditions on which a licence must be granted and the power of the Authority to impose additional conditions''.

The Secretary of State has a lot of power. Clause 13 states:

    ``The Secretary of State may by order make provision''.

The Minister attempted to argue that the Bill implies that the Secretary of State can only take certain action without curtailing the authority's power to make decisions. Yet clause 13 states that the Secretary of State can take away from the authority the power to make decisions and give it to other bodies. That shows that it is reasonable for us to interpret clause 2(1) as requiring the authority to exercise its functions in a specific way.

To reach such conclusions, the Minister of State must have lost touch with the use of the English language and be in an Alice in Wonderland-type world where words mean what he says they will mean. What wording would he have to insert into the Bill to give the Home Secretary the power to direct the authority to comply with a direction to refuse a licence to a particular company? In other words, how would he word a clause to mean the same as clause 2 seems to mean to every member of the Committee—except him—and those in another place who have discussed the matter, including his colleagues? If he is saying that it is impossible to find a form of words that would enable the Home Secretary to have such a power, he has just shot himself in both feet and he had better return to the Committee in a more reasonable frame of mind after lunch.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Division No. 1]

Bercow, Mr. John
Fearn, Mr. Ronnie
Hawkins, Mr. Nick
Lilley, Mr. Peter
Simpson, Mr. Keith

Clarke, Mr. Charles
George, Mr. Bruce
Hall, Mr. Mike
Kennedy, Jane
Miller, Mr. Andrew
Prentice, Bridget
Stewart, Mr. Ian
Thomas, Mr. Gareth R.
Turner, Mr. Neil
Winterton, Ms Rosie

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 2 ordered to stand part of the Bill.

Clause 3

Conduct prohibited without a licence

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