Exercise of powers by others
Mr. James Paice (South-East Cambridgeshire): I beg to move amendment No. 40, in
clause 27, page 15, line 35, leave out 'Treasury' and insert 'Secretary of State'.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 41, in
Amendment No. 42, in
clause 27, page 16, line 1, leave out subsection (2).
Mr. Paice: We now come to another group of slightly disparate amendments. Amendment No. 40 is straightforward and simple. There may be a clear reason for the phraseology of the clause, but it seems odd that, under its heading,
''Exercise of powers by others'',
reference is made to ''The Treasury''. Such measures are almost unique because, invariably, Bills refer to the Secretary of State.
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This morning, the Minister said, ''The Secretary of State does not necessarily mean the Home Secretary.'' He wanted to put it on the record that the ''Secretary of State'' covers each member of the Government. Thus, ''The Treasury'' seems somewhat out of kilter with normal practice.
Mr. Heath: As always.
Mr. Paice: The hon. Gentleman suggested that the Treasury is normally out of kilter with everything anyway. He is probably right.
Usually, Bills refer to the Secretary of State, which is a term that covers all Ministers, including those acting under the Secretary of State. I therefore do not understand why the Treasury is referred to in the clause. It may be many other things, but the Treasury is not a person. It is an institution. The Bill states that it may ''by order provide'' for functions to be transferred. That is odd. If the person involved must be someone from the Treasury, surely reference should be made to the Chancellor of the Exchequer, as its head, or even the First Lord of the Treasury, the Prime Minister. I accept that it is a minor point, but the reference to the Treasury struck me as odd. It jars with the usual way in which Bills are drafted.
Amendment No. 41 relates to circumstances under which the commissioners can prescribe the functions to be conferred on the Secretary of State. We consider that guidance should be issued by the Secretary of State. The amendment would require that when the Treasury has conferred on a Customs officer the same functions as those exercised by a constable, the Customs officer should still follow guidance issued by the Secretary of State so that it follows the same pattern as the one whereby functions would be operated by a constable who issues guidance to officers, albeit rarely. Much of what the Bill deals with will not happen often; it may happen even less often for a Customs officer. Therefore, it would be a significant step forward to issue guidance to ensure that we have consistency in implementation and activity.
Amendment No. 42 would omit subsection (2), which concerns the power being given to the Secretary of State to delegate by order his responsibility to another person. The subsection refers to functions being conferred
''in prescribed circumstances by a prescribed person'';
in other words, it refers to whoever the Secretary of State decides to put into the order. The measure is a Henry VIII clause. However, it goes beyond that because we need to know who the Secretary of State is likely to want to prescribe by order. It is not impossible to imagine a situation in which the Secretary of State might want an individual to do something and that individual was neither a constable nor a Customs officer. However, an individual cannot be prescribed in an order. If we are to have more than one order, clearly the Secretary of State is envisaging categories of people or employees of organisations who would receive such functions. It would be helpful if the Minister told us who he imagined that would be. One possibility is CSOs—community support officers—and there are countless others, such as the
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Crown Prosecution Service and the Serious Fraud Office, on which powers might be conferred. If the Minister can tell us which organisations will be included, I would have preferred to see those in the Bill. It seems odd that we are giving the Secretary of State a wide-ranging power to provide by order powers to any person or group. If he knows who that will be, why cannot it be included in the Bill? It could be added, even if we wanted to keep the open power in case things change. If the Government cannot tell us who these people are, I am not convinced that we need the order-making power at all.
The amendment is exploratory, but important because the clause gives a significant power to the Secretary of State. We need to know the Government's real intentions. I understand that the CPS and the SFO do not want the powers. If that is the case, the Bill should not include a power for the Secretary of State to give powers to those bodies. I look forward to the Minister's comments on the three amendments, which all address slightly different issues. I hope that he can reassure me on some of them, and that he will be generous enough to recognise the point behind the amendment relating to the Treasury.
Mr. Heath: I hope that it will not inconvenience the hon. Member for South-East Cambridgeshire (Mr. Paice) too much if I agree with him on all three amendments.
The Treasury appears to have a semi-mythic status in Government. As I understand it, the Treasury must be treated with the greatest of respect, certainly if a Department wants anything from the next comprehensive spending review. However, there does not seem to be any reason for it to be singled out in legislation, but perhaps the Home Office has to render unto Caesar that which is Caesar's. I shall not be distraught if the amendment is unsuccessful, but I think that we are seeing yet another oddity in the way in which we make law in this country.
The point about guidance is more substantive. I have argued many times in statutory instrument Committees, particularly those relating to PACE and the guidance notes that are given to police in the execution of their duties, that almost invariably parallel functions are exercised by other non-police enforcement officers, especially those who work for Her Majesty's Customs and Excise. It seems sensible to ensure that the guidance that is issued to Customs and Excise is the same as that issued to police officers in the exercise of their duties when they are doing the same thing. There is an invisible, or even visible, wall between the Home Office and the Treasury, which prevents full co-operation—not operationally, but structurally. It would be much better if both Departments considered matters initially and they came to a common view. They could then produce common advice to those who need to operate legislative functions on the ground.
We have already had an argument about the power to make secondary legislation. My view is that if powers are conferred on organisations or individuals they should, where possible, be named in primary legislation; they should not be reserved for secondary legislation. I support the hon. Gentleman.
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Mr. Ainsworth: First, on amendment No. 40, I tell the hon. Member for South-East Cambridgeshire that at the top of my page is the word, ''Resist''—not that that means anything; the previous one said the same thing.
The Government considers that the power to make orders conferring powers on Customs is properly exercised by the Treasury, because it is responsible for Customs and Excise so it holds the power to make orders on its behalf. Similar powers were given to the Treasury in section 7(7) of the Criminal Justice (International Co-Operation) Act 1990. That is the extent of my argument. I have inquired who provided me with that argument—would hon. Members believe that it was the Treasury?
I am not certain to what degree I am prepared to resist. I remember that once upon a time I was a Treasury Whip and on one occasion, when I asked why the Finance Bill was not due to meet in the mornings, I was told that it was because it was the Finance Bill Committee. That has changed, but we seem to have a similar defence in this case. In light of the points that have been made in the Committee, I assure hon. Members that I shall seek further advice from the Treasury about whether it would want us to continue to resist the amendment.
Amendment No. 41 has a bit more substance to it. I accept the point that was made earlier. Let us consider it and see whether it makes sense. The amendment would require the Secretary of State to issue guidance describing the circumstances in which a Customs officer might exercise powers.
The ability to confer powers on Customs is a key provision. The key effect of conferring powers would be to enable direct transmission of requests to Customs and Excise, without granting it certain powers that are currently only available to the Secretary of State, such as the ability to nominate courts. It is pointless to allow direct transmission to Customs, because it would still have to return requests to the central authority to obtain a court nomination or a search warrant. The UK is under an obligation to move towards direct transmission of requests. The clause represents a practical way to achieve that with Customs.
Customs and Excise is experienced in handling mutual legal assistance requests. It has indicated that it would like to be able to receive and execute requests directly. It already receives requests directly, but it must revert to the Secretary of State if a court nomination or a search warrant application is required. That bureaucratic process could be fulfilled entirely properly by Customs.
Mr. Paice: The Minister has admitted that the first brief was garbage and, if he reflects, he will see that his current brief is garbage, too. No one is contesting whether Customs officers should have the power. We debated that on Tuesday. We are now talking about whether it should operate under the guidance of the Secretary of State.