Norman Baker: Perhaps the Minister can address one point that I forgot to mention. Will employees who are part of the accreditation scheme be subject to the Independent Police Complaints Commission, given that the British Transport police will organise the scheme?
Mr. Denham: The position will be exactly the same as that of other non-police employees if the scheme is organised by the local chief constable. The chief officer of the BTP will need to satisfy himself that an appropriate complaints procedure has been established and is being maintained. He will have to monitor the way in which it operates. The legal responsibilities will be the same as those that we discussed during this morning's debate.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
New Clause 15
Power to amend Chapter 1 of Part 4
'(1) The Secretary of State may by order modify the provisions of Schedule 4 or 5
(a) by adding powers or duties to the powers and duties specified in either of those Schedules;
(b) by otherwise amending, or by repealing, a provision of either of those Schedules.
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Mr. Denham: I beg to move, That the clause be read a Second time.
(2) An order under this section may make provision for such modifications of any enactment (whenever passed) as appear to the Secretary of State to be appropriate for the purpose of facilitating the exercise or performance of any power or duty the capacity to confer or impose which arises by virtue of an order under this section.
(3) The provision that may be made by an order under this section includes
(a) provision adding powers and duties to Schedule 4 by means of the addition of a new Part to that Schedule; and
(b) provision which, for that purpose, adds to the descriptions of officers contained in subsection (2) or (3) of section 35 and makes consequential amendments of subsection (6) of that section.
(4) Nothing in this section shall authorise an addition to the powers that may be conferred on any person under section 35, (Police powers for contracted-out staff) or 37 so as to include (so far as they are not already specified in Schedule 4 or, as the case may be, 5)
(a) any power to arrest or detain persons;
(b) any power otherwise than in the company of a constable to enter any premises without the consent of the occupier of the premises; or
(c) any power that is not already conferred by or under any enactment on constables or on persons of another description specified by or under that enactment.
(5) Subsection (4)(a) shall not be construed as preventing paragraph 1A of Schedule 4 from applying in a case in which a designated person has reason to believe that a person has committed an offence that is capable of being a relevant offence for the purposes of paragraph 1 of that Schedule by reason only of an order under this section.
(6) Before making an order under this section, the Secretary of State shall consult with
(a) persons whom he considers to represent the interests of police authorities;
(b) persons whom he considers to represent the interests of chief officers of police;
(c) persons whom he considers to represent the interests of local authorities; and
(d) such other persons as he thinks fit.
(7) For the purposes of subsection (6)(c), ''local authorities'' means district councils, London borough councils, county councils in Wales, county borough councils, the Common Council of the City of London and the Council of the Isles of Scilly.
(8) The Secretary of State shall not make an order containing (with or without any other provision) any provision authorised by this section unless a draft of that order has been laid before Parliament and approved by a resolution of each House.'.[Mr. Denham.]
Brought up, and read the First time.
The new clause reinstates, in an amended form, the order-making power that was removed in another place. As Lord Rooker said when the power was removed, we understand why there might be anxieties about how it might be used by a future Home Secretary to confer excessive and inappropriate powers on designated or accredited individuals. That is why it is important that I set out the significant number of safeguards to prevent misuse of the order-making power with which the new clause is packed.
How can the Committee provide reasonable flexibility in the future to determine the powers available for community support officers and accredited community safety officers without requiring the inevitably laborious process of returning
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to primary legislation? In the real world, we know that opportunities to introduce primary legislation can be limited.
Before lunch, we had an interesting discussion about proposals supported by Conservative and Liberal Democrat members of the Committee to extend the powers of ACSOs. The reality is that the Governmentthis would be the same if Opposition parties were introducing the Billare embarking on a new development in British policing. The Committee and the Houses of Parliament are making their best judgment about the right sets of powers to confer on police employees and members of accredited schemes. None of us can be absolutely certain that the Bill neither gives too many powers, nor limits them unnecessarily. We have tried to give the Government and future Governments flexibility to adjust the arrangements in the light of experience. This morning's discussion demonstrated how useful such a provision might be.
For example, in future we might agree with the Opposition parties that it would be appropriate to give ACSOs powers with regard to vehicles that are used to cause annoyance. It would be a great shame if we had to use primary legislation to confer that power. Equally, let us suppose the Government got something completely wrongone must always allow for that possibility, although I realise from the shocked expressions of Opposition Members that it is unlikelyand one of the powers caused problems whenever it was used. It could not simply be removed from the schedule of powers available, despite guidance and best practice advising the best use of a CSO or ACSO.
I shall go through the various safeguards that need to be in place. The extension of police powers to non-police officers is a controversial issue, so there need to be safeguards.
First, any change under the new clause would be subject to affirmative resolution by both Houses. It is worth reminding the Committee that the House of Lords Delegated Powers and Regulatory Reform Committee, in its report on the Bill, passed no comment on the order-making power in this clause, other than to confirm that the affirmative resolution procedure was appropriate. It would need the positive assent of both Houses to bring about any change; a Home Secretary could not extend the range of powers available to CSOs and ACSOs on a whim.
Secondly, while the clause would enable the Secretary of State to allow chief officers to make a greater range of powers available to designated and accredited persons in the future, the level of seriousness of such powers would not change. The clause does not allow a Home Secretary to raise the stakes by enabling him to use the order-making power to bestow all sorts of more significant powers on individuals. Indeed, it explicitly prohibits the Secretary of State from using the clause to confer on civilians powers of arrest or detention that are additional to
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those already provided for in schedule 4. He or she will not, by stealth, be able to create an army of CSOs with full constabulary powers, which was one of the issues of concern in another place, nor will he or she be able to confer additional powers to enter premises without the occupier's consent when unaccompanied by a constable.
Thirdly, the Secretary of State will not be able to create new powers that are not already given to a constable or other person, for example a local authority employee such as an environmental health officer. All those restrictions will apply to those employed directly by the police authority as much as to anybody else.
Finallythis is a new addition to the clausebefore making use of the order- making power, the Secretary of State will need to consult police authorities, chief officers, local authorities and others with a legitimate interest. When doing so, he will need to be open about his motivations and address any concerns that are expressed.
It is always easy to oppose powers of this sort, on the grounds that they are going too far, we are better off without them and we should get the primary legislation right in the first place. However, I ask the Committee to give this serious consideration. Without such a clause, we could end up in a position in which chief officers who can identify a need for additional powerssay, to add to the list of offences for which a fixed penalty notice might be issuedhave to wait for some years before an appropriate opportunity for primary legislation comes along. Similar problems might be experienced in removing powers that cause concern.
The safeguards that we have put into the Bill are appropriate to a clause of this sort and I commend it to the Committee.
Mr. James Paice (South-East Cambridgeshire): I add my words of welcome to you, Mr. O'Brien.
The Minister has been very cunning in using this morning's Opposition amendments as a justification for the new clause. I do not criticise him for practising a ministerial ploy. However, it will not wash. Just because we proposed some other powers, that is not to say that we automatically support the concept that a Secretary of State should be able to add to those powers at the stroke of a pen[Interruption.] I slightly exaggerate. The Minister putters from a sedentary position. I said ,''At the stroke of a pen''. I shall come back to precisely what is involved. The clause was removed in another place. Although he has referred to lots of added safeguards, the only additional provision that could be described as a safeguard relates to consultation.
The Minister did not explain why subsection (1) of the new clause is so different from subsections (1) and (2) of the original clause, which was deleted. There might be technical reasons, but there is a significant change in the wording. I do not believe that that constitutes a safeguard.
He is right that there is a safeguard, if one can call it such, in that the Secretary of State is not allowed to extend the powers of detention or arrest. That is about
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it. The clause will allow, by affirmative resolution, the extension of any existing police power to all the civilian categories that we have mentioned. It also allows the creation of new categories of civilians employed within the police force. Although the Minister says that it does not allow the creation of new powers, his argument is slightly disingenuous given that that would be a new power for a police officer. That power should not be conferred by a statutory instrument; it is a major issue.
The Minister can claim that the affirmative resolution procedure gives a vestige of democracy to the proposal. However, he has been in the House for a long while. He well knows that statutory instruments are effectively rubber stamps. The only exception was, perhaps, last week's exercise in which his poor colleague, the Under-Secretary, the hon. Member for Coventry, North-East (Mr. Ainsworth), was trotted out to defend the Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) (Amendment) Order 2002. He spent two days defending it to the media, only for the Home Secretary to cut the ground from under him by saying that the Government had got it wrong. I sympathisethat is the price of being a junior Minister. That was the only occasion on which I can recall being anywhere near seeing an SI defeated, and even in that case we must wait to see what materialises.
The Minister knows that affirmative resolutions go to statutory instrument Committees and they are agreed. As he said, the issue of giving police powers to civilians is highly controversial, not just between political partiesimportant as that isbut in the country. We know that the Police Federation strongly opposes the idea; the police superintendents are less than enthusiastic and so, with a few notable exceptions, is the Association of Chief Police Officers. The Association of Police Authorities has been very concerned, as has virtually everybody else. It would be a highly controversial move. That is why the power to alter the Bill should remain in primary legislation; a statutory instrument, subject to affirmative resolution, should not be used in such a controversial way.
We do not know what powers a future Home Secretary might decide to add or remove. I agree with the Ministerwe do not know whether we are right on either side of the Committee. The Government might have made an awful mistake, or several, but only time will tell. However, that is not an excuse for creating a mechanism by which democracy can be short-changed and something major, such as the extension of legions of police powers that are not in schedule 4 or 5 but which do not involve detention or arrest, can be added. It is not right for that to be done by secondary legislation.
There were many discussions in the other place before it was decided to throw out this Henry VIII clause giving huge powers to Ministers. It is worth mentioning that those views are shared not just by my noble Friends, but by others. My noble Friend, Lord Dixon-Smith read subsection (2) of the new clause, which only a highly paid lawyer can understand
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perhaps the hon. and learned Member for Redcar (Vera Baird) can help usand most laymen cannot. He described it as
''a glorious melange of facility to amend primary legislation by regulation.'' [Official Report, House of Lords, 7 March 2002; Vol. 632, c. 515.]
Lord Dholakia stated on Report:
''The conferring of police powers, whether on the police or anyone else should be subject to the proper rigours of scrutiny and debate, which is given to Bills and should not simply be something which can be changed by order''.[Official Report, House of Lords, 16 April 2002; Vol. 633, c. 876.]
During the final debate, when the Lords voted to remove the clause, Earl Russell said:
''If this House allows this clause to remain on the statute book, Parliament will have made itself redundant.''[Official Report, House of Lords, 25 April 2002; Vol. 634, c. 385.]
That might be a marginal exaggeration, but the gist of what he said is absolutely right. The part of the Bill that relates to police powers is highly controversial. It constitutes a potential major infringement of individual rights because it provides that powers may be exercised by community safety officers, investigating officers, ACSOs and others. Indeed, the Secretary of State could use the same mechanism to extend still further the number of categories of civilians employed by the police.
We should accept the fact that there will inevitably be some delay if it proves necessary to change the powers because they turn out to be inadequate or excessive, but I still believe that that should be done in primary legislation. The Minister said that chief constables might have to wait for years for things to be changed, but as the legislation introduces a huge step change, and as the police have existed for 150-odd years without such powers being given to civilians, I suggest that it is not much of a problem for them to have to wait another two years if it becomes necessary to change the provisions. If the matter becomes urgent, and if there is agreement between the parties, the Minister knows as well as I do that primary legislation can be passed extremely quickly. Given the tendency of the Home Office to introduce several pieces of legislation in every parliamentary Session, it would be possible to introduce the necessary clause or schedule to put the matter right within 12 months. It is unnecessary to give the Secretary of State the Henry VIII powers in the new clause, notwithstanding the safeguards to which the Minister referred. It is such a controversial issue that any change to the legislation should be introduced, according to the full democratic process, in primary legislation, so I oppose the new clause.