Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)

I beg to move, That the clause be read a Second 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

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 Government—this would be the same if Opposition parties were introducing the Bill—are 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 wrong—one must always allow for that possibility, although I realise from the shocked expressions of Opposition Members that it is unlikely—and 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

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.

Finally—this is a new addition to the clause—before 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 powers—say, to add to the list of offences for which a fixed penalty notice might be issued—have 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, Conservative)

Mr Norman Baker (Lewes, Liberal Democrat)

I congratulate the hon. Member for South-East Cambridgeshire (Mr. Paice) on his contribution, with which I entirely agree. When the Labour party was in opposition, as the Minister knows—in fact, he had the decency to concede as much himself—there was always stiff opposition to any attempt to introduce so-called Henry VIII clauses, which are essentially undemocratic in that they remove parliamentary scrutiny by the House. Statutory instruments are a substitute for that, whether they are subject to affirmative resolution or otherwise. That is

especially the case in relation to controversial measures. The Minister suggested that it would be laborious, although I do not think that he used that word, time-consuming and difficult to find a slot for the introduction of primary legislation, but that argument is insufficient to outweigh our serious concerns. As the hon. Gentleman said, if Ministers decide that powers must be added, there are numerous Home Office Bills to which such a measure could be tacked on. Equally, if certain powers are unnecessary or discredited, we could allow them to fall into disuse before repealing them when the appropriate moment arises, so there is no need to avoid the use of primary legislation.

The Minister put his case reasonably this afternoon. I am glad to see that he has regained his gentle urbane good humour after this morning. He mentioned the new direction that the Government want to pursue, quite rightly, but that suggests that the future is uncertain, which makes the case for introducing changes by primary legislation, rather than by affirmative resolution, even more important.

The Minister was good enough to say that it was his best guess that the powers to be introduced by the Bill would work. I am sure that he and others have wrestled with the various options before introducing the Bill. It just so happens that his best guess is not my best guess, but I accept that that is his honest belief. I would be slightly more amenable to the proposal if Ministers had shown some willingness to accept amendments from Opposition Members or from the House of Lords, but we have not seen that. Ministers have fallen over themselves to suggest that Home Office draftsmen are the fount of all knowledge, but they have not said that others' ideas might worth considering in relation to this new step forward, which represents a radical change.

We have seen the typical resistance that we see from all Government Departments to amendments tabled by the Opposition or from outside the Government's closed ranks. Indeed, the Government are trying to reverse the amendments that were passed in the House of Lords against their wishes. I find it difficult to believe that the legislation is perfect, but that is the conclusion that we are supposed to reach. The Bill will emerge from Committee intact, except for the Government amendments, which suggests that it is based on a narrow focus of opinion. That is one reason why I am reluctant to agree to such wide-ranging powers.

I am also reluctant to agree to those powers because we have not yet seen how the powers will work. I tried to suggest that there should be a 12-month review of a proposal that we discussed earlier. Although the Minister saw the merit in having a review, he did not want to be tied to a particular time scale. I am sure that the powers will be reviewed by Government, but is it not appropriate that when they are reviewed for the first time—because the key issue is how well they will work—they should be the subject of a full discussion

on the Floor of the House, followed by amendments to primary legislation where necessary? If the Minister turns out to be right and the legislation works well, I would have some sympathy with the idea that powers could be added to or deleted subsequently.

The Minister mentioned several safeguards that are included in the new clause. Affirmative resolution is worth while, so far as it goes, and better than negative resolution or nothing, but it is limited for the reasons outlined by the hon. Member for South-East Cambridgeshire. One of the problems is that we cannot amend statutory instruments. I wish that the Government would allow Committees to amend them. When one or two amendments would improve a proposal, the Government often accept them, but they must take back a statutory instrument and reintroduce it, because they cannot allow it to be amended. That is a matter for the Leader of the House, but it limits the effectiveness of the affirmative resolution, which the Minister proposes in relation to this legislation.

The fact that the new clause excludes the power of arrest or detention is obviously welcome. That is a very important point, which I shall not dismiss or minimise in any way. It is also important that the powers to enter premises should be limited, but that still leaves a huge range of police powers that could be conferred by the Minister on CSOs or ACSOs. That could allow a huge range of road traffic matters to be dealt with. Speed traps, pursuit of vehicles to measure speeds and so on could be handled by CSOs in the future; they do not require a power of arrest or detention unless alcohol is involved. A speeding offence does not involve arrest; that could be dealt with by a CSO. Therefore, a range of powers could be handed over. The public should be involved in the debate; it should not be discussed in a Room on the Committee Corridor on an obscure afternoon.

The Minister referred to consultation. That is a welcome development; it is a step forward from where we were when this matter was debated in the House of Lords, and I am grateful for that. However, I would have more faith in consultation if I believed that any Minister or his Department or even any Government paid attention to it. After all, the consultation on the Bill revealed that most police authorities and police forces are opposed to CSOs, yet a proposal for CSOs is being railroaded through in the Bill. The consultation exercise might have been listened to, but it has not informed the contents of the Bill. Therefore, we cannot conclude that if the Minister consults on, say, an extension of powers for CSOs and receives comments that are largely or wholly negative, that will necessary influence whether he proceeds. He might well do so despite the consultations. Therefore, my first reason for opposing the new clause is the extensive nature of the Henry VIII clause, which I am unhappy with in principle.

Notwithstanding the Minister's elegantly put and entirely reasonable-sounding case, secondary legislation is a dangerous road to go down. Even if it means more time spent discussing the legislation in the

Commons and even if that slows things down a little, primary legislation is the proper way in which to proceed when considering measures of this magnitude.

Mr George Osborne (Tatton, Conservative)

Mr. O'Brien, I begin by saying what a pleasure it is to serve under your chairmanship.

I support what my hon. Friend the Member for South-East Cambridgeshire has said and agree with the hon. Member for Lewes. The Minister has presented the clause in apparent innocence, saying that it is important to be able to amend the powers in the light of experience and so on. He even accepts that the extension of police powers to non-police personnel is controversial. However, he does not seem to accept that enabling a Home Secretary to give more powers to such people is even more controversial. That prompted a lengthy debate in the House of Lords.

We should remember that the powers have been debated at length in this Committee and in the House of Lords. The minutiae of the powers has been examined through the parliamentary process. We have not always persuaded the Government of the force of our argument, although they have made serious concessions, particularly in relation to the power to detain people under accredited community safety schemes. There is a process of scrutiny, and it has engaged the interest of the Committee and of the House of Lords. Under this clause the current or a future Home Secretary could simply bypass all that and introduce new powers and clauses that would be subjected—as my hon. Friend says, with much greater experience than I do of this place—to little scrutiny under the SI procedures, even if that is by affirmative resolution. We are dealing with powers, even if they are not powers of arrest and detention as defined in the clause, that directly affect the liberty of the individual. My hon. Friend has reminded us of what Earl Russell said in the House of Lords. He also said that they were dealing with powers that

''led to the revival of impeachment in the Parliament of 1621.'' —[Official Report, House of Lords, 25 April 2002; Vol. 634, c. 385.]

That might have been a slight exaggeration on the part of the noble Lord, but as a history graduate who enjoyed his books, I know that he knows what he is talking about where history is concerned. These are serious powers. We tend to be very polite in this Committee, as the hon. Member for Lewes was, and stress that we are not talking about the present Home Secretary but a future one. After what we saw last week, I am worried about the current Home Secretary introducing powers that he has dreamed up, with little thought as to their implications, and changing his mind three days later.

There are no real safeguards in the clause to protect people from the schemes and gimmicks of this Home Secretary, let alone future ones. That is why I am cautious about giving the powers, and not happy with the clause. I hope that if we vote on it, we vote to defeat it.

Mr Patrick Mercer (Newark, Conservative)

I am grateful for the opportunity to speak. We are getting used to the Minister's approach to problems—his mailed fist clad

in a glove of velvet presented with enormous felicitation and brought down with a clang once our backs are half turned.

I am grateful to the Minister for his points about consultation. I take them entirely into account, as my hon. Friends and the hon. Member for Lewes have done. I understand that there will be no extension of the powers of detention or arrest under the clause. However—the Minister knows what is coming—I am not going to quote from another place or from history books; I am going to quote from the floor of the police station, where I have spent a little time, not on it, but listening.

Mr Kevan Jones (North Durham, Labour)

Handcuffed.

Mr Patrick Mercer (Newark, Conservative)

I am grateful to the hon. Gentleman.

I shall explain what most worries people in forces that do not wholeheartedly embrace the idea of CSOs and ACSOs. I take the point of the hon. Member for Lewes that some forces are not keen on the idea. One of those forces is Nottinghamshire. I am surprised by the grasp that the average bobby and the average sergeant have of the exact extent to which CSOs would change their lives. That is not something that has just flashed across their consciousness. They have sat down and talked about it at length. The opinions that I have heard are essentially this: they understand that in semi-rural areas such as Newark and Retford there will be a need, perhaps more than in many other areas, for CSOs. They are, therefore, reasonably broad-minded about it. They understand that they can be relieved of many duties by CSOs. They pointed particularly to the detention officer who was in the nick with them that night, and said how much weight he had taken from their shoulders.

None the less, being essentially conservative, perhaps reactionary, they are worried about what the CSOs will do and what powers they will have. They are prepared to accept the imposition of CSOs so long as their chief constable has powers over them that they fully understand. The one thing that they do not agree with and cannot contemplate is the idea of those powers being inconsistent. Giving the idea to Joe Bobby that a Home Secretary could change the powers, apparently at the drop of a hat—I understand that that is deliberate hyperbole—and that what he sees as an up-gunned traffic warden could at short notice be turned into a constable of almost equal power to himself does not help the cause of CSOs.

Therefore, while I understand the need for powers and I think that police officers in rural constituencies understand the need for CSOs, any alteration to those powers should be a matter for primary legislation. The affirmative resolution procedure, followed by a statutory instrument, is all but rubber-stamping. It would—I think that I speak for the police officers in Newark—be a power too far and a clause too far. I hope that the Committee will have the sense to reject the clause.

Mr Nick Hawkins (Surrey Heath, Conservative)

I want, briefly, to support what my hon. Friends the Members for South-East Cambridgeshire, for Tatton (Mr. Osborne) and for

Newark (Patrick Mercer) have said. Specifically, I would say that officers in Surrey have expressed the same views as those reported by my hon. Friend the Member for Newark—they are not restricted to Nottinghamshire. My hon. Friend was right to draw attention to the fact that officers in many forces have looked at the matter extremely carefully. It is not something that flashed across their consciousness. One of the reasons why it has been thought about so carefully is because of the enormously helpful analysis of all the Government's proposals in the Police Federation's Police magazine. That publication is always interesting because of the thoroughness with which the federation's correspondents analyse the issues. Naturally, they will often express views that are at odds not only with this Government, but with any Government who are proposing changes. It is right, however, to pay tribute to the fact that the debates in police canteens between officers during pauses in their duties are much informed by the Police magazine.

As my hon. Friend the Member for South-East Cambridgeshire said—with the support of my other hon. Friends—Henry VIII clauses are dangerous. I am sure that the Minister and the present Home Secretary would not misuse their powers in the ways that some of us may be worried about, but such powers will be on the statute book and a future Home Secretary may be tempted to misuse them. In principle, the Conservative Opposition should always be unhappy when a Government are proposing a Henry VIII clause because it leaves the way open for a future Home Secretary to extend the powers dramatically at the drop of a hat, as my hon. Friend the Member for Tatton said. I do not want to repeat the arguments that have already been advanced, but for the sake of fairness, it is important that the views put to me by officers in Surrey and elsewhere are on the record.

Mr John Denham (Minister of State (Police, Courts and Drugs), Home Office; Southampton, Itchen, Labour)

We have had a useful debate. I suppose at the heart of it was whether Parliament trusts Parliament to do the job that Parliament has been set up to do. Another place rejected two orders that were introduced under the Greater London Authority Act 1999 on mayoral elections. It is not the case that the affirmative resolution procedure is a purely rubber-stamping exercise. It is an important part of the new clause that the extension of powers is brought within the affirmative resolution procedure. I accept that the problem is whether a Home Secretary in the future brings forward proposals for change, but after consultation and given the limits set out under the new clause, we trust Parliament to do its job and say yea or nay to the extension of powers. Given the constraints and safeguards in the Bill, I believe that we should be willing to do that, but it may be something on which the Committee may wish to divide. No doubt, we shall return to it at a later stage.

As for the specific point made by the hon. Member for South-East Cambridgeshire, the reason for the change in wording is that, on reflection, the first draft

was ambiguous about whether measures could be subtracted from the powers under schedules 4 and 5 by virtue of the new clause as well as be added to them. Clearly, for reasons that I set out earlier, it would to enable such activity to take place. That is why there has been a change in the drafting. Why it is so extensive, I do not know, but I am sure that that is the reason for the change. I shall not prolong the discussion. The arguments on all sides have been advanced clearly and fairly.

Motion made, and Question put, That the clause be read a Second time:—

The Committee divided: Ayes 12, Noes 7.