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Lord Clinton-Davis: The noble Baroness is quite right but surely the phrase,


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catches them all. It is impossible in legislation to mention everyone who ought to be consulted. That catch-all is very valuable.

Baroness Scotland of Asthal: I endorse what has just been said by my noble friend Lord Clinton-Davis. I say to the noble Baroness, Lady Howarth, that she is absolutely right about the nature of the consultation and the mix that quite often is inherent in the structure of the organisations with whom we consult. I hope that nothing that I have said will be misunderstood as indicating that the Government intend to limit those with whom they consult.

The Committee will know that the codes will be published on the website in draft so in practice anyone and everyone will as now be able to comment and make their position clear. At present there are no statutory consultees, only a general duty to consult which we exercise with great frequency and, I believe, efficacy. What we are talking about is the bureaucracy of having a list of specific organisations which have to be consulted on each occasion about each issue. Such a list may not include those who will need to be consulted. There is also the fear of changing that list but organisations change and metamorphose into different organisations. If you have a static list, does that mean that those on it are the only people who will be consulted? We want to make it clear that the matter is open.

I say to the noble Baroness, Lady Walmsley, that we take very seriously indeed the contribution made by children's charities which have been very vocal and rightly so. They have highlighted some of the nuances, differences and changes which are so important in making sure that children and young people's interests are properly reflected. We obviously wish them to continue to address those issues in the energetic way in which they have. We believe that the proposals will allow them to do so.

The Home Affairs Committee proposal is a novel one. We are suggesting that it should have an input into which procedure should be adopted, whether affirmative or negative. However, its novelty does not detract from its efficacy. We believe that it will bring something to the process. I take up the point made by the noble Lord, Lord Elton, about the affirmative procedure. Subsection (7) relates only to the new clauses—that must be the affirmative procedure. The proposed new subsection (7A) offers a choice for revision: either affirmative procedure or the simple laying of an order. We decided not to go for the negative procedure.

I say to the noble Baroness, Lady Carnegy, that we absolutely understand that the affirmative procedure was the course taken by the Delegated Powers Committee. We understand that the real import of what the committee was saying was that significant alterations were of equal importance to new codes, and for affirmative resolutions as appropriate.

The new process we are suggesting is that it may be necessary, for the convenience of everyone, to make minor changes to the codes which do not merit the full

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panoply of the affirmative resolution procedure. If the Home Affairs Select Committee were to indicate to my right honourable friend the Home Secretary that the negative resolution procedure would be preferable and appropriate, we would agree to be bound by that. It is on that novel proposal that we obviously want to have the comments of the Delegated Powers Committee and I have indicated that we shall examine the matter when we have that advice.

Lord Elton: The Minister did not explain why the Government had decided simply to let papers not subject to parliamentary proceedings lie on the table. I was asking for an explanation as to why the middle alternative was not available to the committee so that both Houses could decide whether they wished to pursue a matter further.

Baroness Scotland of Asthal: We have made it clear that we agree that in the majority of such cases the affirmative procedure would be the most appropriate. As I have indicated, if the Select Committee came to the view that the negative resolution procedure was appropriate, we would follow that; and indeed the simple laying of an order would be appropriate where issues do not appear to be contentious or in need of that level of scrutiny. It gives us an opportunity to make each procedure fit the purpose in terms of the nature of the changes that we seek to make.

This is a much more flexible tool than we have had before, but we are trying to apply the lightest touch necessary but to allow both Houses a proper opportunity to scrutinise and debate these issues where that seems to be appropriate. We hope that the way in which we have phrased this—subordinating the exercise of the discretion of the Home Secretary to the committee's suggestion—will inspire confidence that we have got the balance right. Were the committee to come to the conclusion that the affirmative resolution should be used in each and every case having considered on the basis of the information before it that that would be appropriate, as I have indicated, my right honourable friend the Home Secretary is content to be so bound.

Baroness Carnegy of Lour: I wish to be clear about this. I did not realise quite what the noble Baroness was saying. If this amendment is accepted today, the Delegated Powers Committee has nothing to do with it. It is not for the Delegated Powers Committee to decide what Parliament should do; it merely advises this House. Is the noble Baroness putting this amendment to the Committee today, or is she leaving it for further consideration?

Baroness Scotland of Asthal: I am putting the amendment to the Committee today. I should clarify the point, as I may have innocently confused matters. The choice is between the affirmative procedure and the mere laying of an order, as the noble Lord, Lord Elton, indicated. I hope that I have made that clear.

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In introducing the amendment I was attempting to explain that there are real difficulties in putting the proposal that the Home Secretary should be bound by the committee's recommendations on the face of the Bill, because of the possibility of the committee changing and the construct being different. We know that we cannot do that—the draftsmen have told us as much. But what we can do is to make a commitment to this House that these issues will go before the committee; the committee will have an opportunity to examine them; and the Home Secretary has indicated that he will be so bound.

So far as concerns the Delegated Powers Committee, we are asking this Committee to consider the amendment now, but we are doing so on the basis that the Delegated Powers Committee has not had an opportunity to have its say. What I was saying was that, if, contrary to our current expectation, a different view is alighted upon, we will consider that before we return to the matter on Report. So this may not be the end of it if there is a powerful argument that we should properly consider.

Baroness Carnegy of Lour: I thank the Minister for that response.

5.15 p.m.

Lord Hodgson of Astley Abbotts: If we are to take Amendment No. 37 now, it may be helpful if I raise some of the concerns I have about Amendments Nos. 38 and 39. Otherwise, we shall have a repeat of the same debate on the next grouping. We are concerned about the parliamentary scrutiny aspect. We are grateful to the noble Baroness for her briefing letter. She has summarised it very fairly. She said:


    "The basic intention of clause 9 is to speed up and simplify processes in relation to the codes so that it is easier to keep them up to date in the face of an ever-increasing rate of legislative and procedural change. However, concerns have been expressed during debate in the Commons, as well as by the Home Affairs Select Committee . . . that the proposed changes are too far reaching and do not allow for sufficient consultation and parliamentary scrutiny".

So far so good. But the letter went on to say:


    "In the light of these objections we are now proposing to amend clause 9 so that any new codes will remain subject to the full affirmative resolution procedure in parliament as at present. In relation to proposed changes to the existing codes, our amendments would effectively allow the Home Secretary discretion to choose either the affirmative resolution procedure on a draft order or straightforward laying of a made order depending on his judgement about the level of scrutiny necessary in each particular case. However, in order to avoid allowing an inappropriate level of discretion to the Home Secretary, we would undertake in parliament during the passage of the Bill that he would agree to consult the HASC in every case and be bound by their views on which procedure to adopt in relation to each proposed change. This approach was trailed in debate at Commons Report stage and did not meet with any opposition".

That raises a number of serious concerns. We have, as yet, no definition for the phrase "new code". The noble Baroness has given us one off the top of her head this afternoon, but, cynically, one could argue that there will never be a new code; there will only be revisions of existing codes. Secondly, is it right that the Home Secretary should decide whether to use the

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affirmative or negative resolution? Thirdly, while it is true that the Home Affairs Select Committee will have some influence over which procedure is used, is it influence with teeth, given the political make-up of the committee?

Finally, I can see no role for this House in arriving at this decision. One of the primary roles of this House is as a revising Chamber. There is legal, judicial and general expertise in abundance in this House and it should therefore have a role in this procedure.

One final matter that I should like to raise with the Minister is how frequently the Government believe it will be necessary to review the PACE codes in future. It is one thing to consult on changes to the codes and to construct new codes. It is quite another to go through the hard, day-to-day realities of implementing the changes—new forms, new procedures and, above all, new training are highly absorptive of police time. So it would be helpful as we debate this general area if the Government could give some indication of their thinking as to the frequency with which these changes are likely to be made in future. For example, would the Government consider an amendment suggesting that codes could be revised, say, only twice in any 10-year period? There are issues that we have not teased out, and, rather than return to them in relation to Amendments Nos. 38 and 39, I thought it worthwhile to raise those points now.


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