I beg to move amendment No. 19, in page 2, line 24, at end insert—
It is a pleasure, Mr. Benton, to echo the welcome to you that has been expressed by my hon. Friend the Member for Surrey Heath and the Minister of State. We look forward to your chairmanship of our proceedings and to the firmness, fairness and humour that you will bring to the task.
Clause 2 is broad and, some fear, potentially all-encompassing. That is why we want to amend it. The Minister will be aware of both the content of the amendment and the fact that my noble Friends in another place tabled a similar amendment, the purpose of which is to ensure that Parliament retains—or perhaps I should say establishes—some leverage and control over what is issued to the authority.
On 1 March in another place, the amendment was tabled on Report. On that occasion, the Government's stance seemed equivocal. Lord Bassam seemed uncertain—and I put that as mildly, politely and understatedly as is my wont—whether the directions given by the Secretary of State to the SIA would be transparent. He said:
``there will be very limited circumstances in which these confidential directions might be necessary.''
It was not clear to me that those limits were explained or explored. He continued:
``Yes, they might relate to directions naming individuals or companies.''
However, he went on to tease us, inadvertently if not deliberately. He began by attempting to reassure us that
``in the majority of cases—probably 99 per cent.—there will be transparency and went on to say:
``in the majority of circumstances the directions should be a matter of public record . . . . We plan to establish the authority on the basis of a presumption of openness on the issue except in the limited and very sensitive circumstances that I have described.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1366-68.]
However, the point at which my hon. Friends and I cavil is that Lord Bassam referred to
``limited and very sensitive circumstances'' but did not describe them in any meaningful or adequate sense, although he wrongly claimed to have done so. We are anxious to tease such a description out of the Government. If there is to be transparency in the great majority of cases—we will know what the directions are and they will be on the public record—why is that presumption not in the Bill? If it is 99 per cent. certain that everything will be public, or if it is certain that, in the ordinary course of events, 99 per cent. of the direction will be made public, where is the harm in assuring us of that by stating as much in the Bill?
It repays study if we examine the worthwhile but slightly curious debate in the other place, in which my noble Friends sought to establish what the Government had in mind, or to gain some reasonable example of the directions that they might issue. However, they were unable to get much information out of the Government. My noble Friend Viscount Astor emphasised the broad power in clause 2 for the Secretary of State to
``give general or specific directions in writing to the authority'' as well as
``the power to request information''.
In the course of the debate, Viscount Astor asked the Under-Secretary why directions were required and whether they would be a matter of public record. In response, he got a Sir Humphrey-style answer. [Interruption.] Lord Bassam said:
``I believe that the standard arrangement is for the Secretary of State to be able to give directions to non-departmental public bodies. If necessary, that could include the placing of a cap on fees.'' —[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1362.]
If all that is involved is a cap on fees—
The Minister is chuntering from a sedentary position. There is no reason why such a cap on fees should not be stated in the Bill. If the power is to be permissive rather than prescriptive—a matter of concern to my hon. Friends and me— and a wider set of directions covering a broader range of topics may be issued, with necessarily greater power being conferred upon the Secretary of State, I politely tell the Minister that it is incumbent on him, as it was on Lord Bassam, to tell us what sort of information may be required of the authority and what sort of directions may typically be issued to it.
I do not know whether my hon. Friend caught what I thought I heard the hon. Member for Lewisham, East (Ms Prentice) saying from a sedentary position, when he accurately described Lord Bassam's response as a Sir Humphrey-style reply. I think that she said ``Excellent.'' I am not sure whether that is an example of the training programme that Lord Bassam has been undergoing to make himself more like Sir Humphrey. It is interesting that a former Government Whip feels so strongly that Ministers should behave like Sir Humphrey Appleby rather than like Ministers.
I am grateful to my hon. Friend for that intervention, as I did not hear what the hon. Lady muttered. I thought that I was probably the poorer for being deprived of her words—if not words of wisdom, words of revelation. The right hon. Member for Walsall, South spoke earlier about symbiotic relationships. I am bound to say, as will become progressively clearer during the course of our exchanges, that my hon. Friend and I have a symbiotic relationship. He knows when I am in need of a useful nudge, which he has just provided.
I want to develop important arguments—[Interruption.] However, I am, above all, courteous. Does the hon. Lady wish to intervene?
There are so many hon. Ladies in the Room, Mr. Benton, that you are confusing me with my hon. Friend the Parliamentary Secretary, Lord Chancellor's Department. I would hate the hon. Gentleman to have missed what I said, because the idea that I muttered something appals me. I did say ``Excellent'' in response to the comment about Sir Humphrey. The hon. Gentleman would benefit from watching that old BBC television series, which is currently being shown again. He would learn a great deal from Sir Humphrey if he did so.
Mr. Bercow rose—
I do not seek to ape Sir Humphrey. I am always grateful for the kindly guidance of the hon. Lady, but as she knows, robustness, bluntness and specificity are my watchwords.
I want to focus on what Lord Bassam said. I am not prepared to allow Labour Members to divert attention from his curious reply. He said:
``Directions are not statutory instruments; they are merely a mechanism for a more informal way of establishing priorities and registering concerns''.—[Official Report, House of Lords, 30 January 2001; Vol. 621, c. 591.]
He was seeking to reassure those who had expressed concerns by saying, ``Don't worry, this isn't an overarching imposition or a hefty jackboot of a statutory imposition. These are informal mechanisms.''
Much of the debate so far has concerned the relationship between the SIA and the Secretary of State. That issue has been properly explored, whether the relationship is one of dependence, independence or, as the right hon. Member for Walsall, South interestingly, and perhaps appositely, suggested, one of mutual dependence or constructive interaction. I would like to think that that is the relationship that will evolve. However, it is important that we should know, in the overwhelming majority of cases, when directions are being issued by the Secretary of State, the matters on which they are being issued, the purposes for which they are being issued, and what, in those circumstances—which may vary—the word ``direction'' connotes.
My anxiety is that the Government assume, too often, that direction—something insisted on—is what is required. If, as the Minister emphasised, the Security Industry Authority will be carefully composed as a credible, authoritative and responsible body, it is not clear why, on a range of matters, it should regularly need to be subject to direction, as opposed to encouragement, consultation or open exchanges of opinion about what approach should be followed.
I did not find the words of Lord Bassam in the Official Report on 30 January at column 591 at all reassuring, even if they were intended to be so. I know that my noble Friends initially felt encouraged that he was seeking to reassure them that, in the vast majority of cases, information would be public, and there was nothing about which to be greatly concerned. I know that they went on to feel, as the debate progressed, that the Government were, if anything, backtracking on that commitment to openness, and seemed to be paving the way for a more wide-ranging and extensive issue of directions that would not be placed on the public record. That was a concern that my noble Friend Viscount Astor articulated at column 1362 on 1 March. He said that in Committee the Under-Secretary had been kind enough to say that he would reflect on the matter of public record.
However, my noble Friend was alarmed when, as he understood it, the Under-Secretary went back to the Home Office and all his natural inclinations for open and reasonable government deserted him, notwithstanding all his years of saying that the Labour party wanted more openness in government. My noble Friend was afraid that he had been subverted by the system. I shall not dilate on that point—because you will not like it, Mr. Benton—about which the hon. Member for Lewisham, East expressed such enthusiasm.
Lord Bassam said that he would write to my noble Friend Viscount Astor, and he did so, in his usual courteous fashion. However, the letter was rather extraordinary, because it appeared to be a total denial of what my noble Friend thought that Lord Bassam had previously stood for and argued. He reminded my noble Friend that he had acknowledged the arguments in favour of a general presumption of openness. However, he went on to say:
``I remain of the view that there may be very limited circumstances in which the use of a confidential direction may be necessary.''
The only example that he went on to give was one in which directions may be required naming individuals or particular companies. He continued:
``consequently we should not place a requirement on the face of the Bill for all directions under Clause 2 to be published.''—[Official Report, House of Lords, 1 March 2000; Vol. 622, c. 1362.]
I put it to the Minister of State—who will speedily have followed the argument—that that is a classic example of erecting an Aunt Sally and then knocking it down. My noble Friend did not make any such request or demand, or insist that there should be a requirement in the Bill for all directions to be published, but said that there should be a presumption that such directions should be published, which is perfectly reasonable.
As I think that my hon. Friend the Member for Surrey Heath believes, it is necessary for directions to be laid before each House of Parliament—we can no longer trust to luck. There has been much backsliding, hedging and prevarication by the Government, and we feel that any direction that is of sufficient public interest to require being stated in writing to the authority should also be of sufficient significance and public interest to be placed on record in Parliament. If the Minister can think of circumstances in which that would be prejudicial to the public interest, it would be helpful if he would explain—rather better than Lord Bassam did—what such circumstances would be. So far, we have not had much satisfaction from the Government on this matter.
There is an anxiety—which is the root of our amendment—that the Government do not seem to have much confidence in the authority that they have chosen to establish. Even before it has been created, the Minister appears to be saying that he is able to decide who gets a licence and who does not. In certain circumstances, he may direct the authority not to give someone a licence because he does not think that it should. I want to know what circumstances would cause a conflict between the Security Industry Authority and the Secretary of State, and what would justify the insistence of the latter on his point of view over and above the considered judgment of the authority appointed to make such assessments. If such circumstances can be envisaged, they should be explained to us now. If such conflicts are thought likely to arise in future, it is not unreasonable, if we believe in open government and the integrity of the SIA and of the relationship between it and the Secretary of State, to demand public explanations. That much we have not yet had from the Government.
The position seems even worse than I have so far described. I will probably be excoriated by my hon. Friends the Members for Surrey Heath and for Mid-Norfolk (Mr. Simpson) for my characteristic understatement of the case. I know that I tend to fall into that trap, but I am doing my best to speak up with some force on the matter, and they will no doubt encourage me.
The position seems worse than I have so far described because the Home Secretary may discover reasons why someone should not be given a licence—for example because that person has a criminal record. Under the Bill, the authority will have the right to acquire such information. It will be able to hold informal discussions with the Home Office and agree with the Home Secretary not to issue a licence. However, central Government have reserved the power to issue directions—not to have a discussion or a mutually beneficial interaction, but simply to insist.
I want to explore the point in some detail. I may have satisfaction from the Minister, but I have not had satisfaction from reading the debates in the other place. For the avoidance of doubt, let us remind ourselves of the terms of the clause. It 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.''
It refers not merely to ``directions'' but to ``general or specific directions''. We must therefore assume that in some circumstances the Secretary of State expects—to deploy another word, I believe accurately—to insist on his preferred course, even if that course has not been decided on or has even been rejected by the Security Industry Authority.
I am unhappy about that. It is perfectly possible that someone could be refused a licence not because the Security Industry Authority decides that he or she is unsuitable to hold one, but because the Secretary of State has been reminded by officials that, under the clause, he can stamp his feet and issue a written instruction—``directions'' or ``instruction'' seem to be interchangeable terms in such circumstances—to the authority to that effect.
If that is not what the Government have in mind—I am prepared to accept that it might not be, although it is difficult to understand how it would not be—why is the Minister not prepared to give us an assurance by stating more explicitly in the Bill the extent of the perceived power of direction or the limits to it? When we are not told the specifics and a permissive power is provided that seems to be extremely wide, we become anxious that the power might be abused or, if not abused in the strict terms of the Bill and the entitlement that it confers, used for purposes for which we do not believe that it should be used.
In the same debate, my noble Friend Viscount Astor, at column 1366, asked the Under-Secretary to give an example of when the Home Secretary would give a direction relating to an individual. I emphasise that that could be a direction about which the individual himself or herself never learned. That is disturbing, because surely the first principle of natural justice is that a person against whom an adverse decision is made should know why. If he or she does not, it is difficult to understand how he or she can properly appeal. I do not see why the circumstances pertaining to that individual cannot be assessed by and adjudicated on by the authority. It is not clear why the Secretary of State needs to intervene. However, in response to my noble Friend Viscount Astor asking him to explain the matter, interestingly and curiously, Lord Bassam said:
``The direction would not be: `Thou'—the SIA—`shalt not give a licence to'. In very limited circumstances the Secretary of State may ask for investigations to be made on sensitive issues with regard to companies about which there is concern. The Secretary of State may use that power to direct the SIA to carry out an investigation into a specific company where there is concern—perhaps a PSI equivalent of BCCI.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1367.]
That is interesting. The Government were saying, ``Oh yes, there is a power of direction. We know that—general or specific—because it is in clause 2, but all we would be doing is directing the authority to conduct an investigation or to consider a factor that hitherto it had failed, through inadvertence or refusal, to consider.'' The Under-Secretary seemed to be trying to reassure my noble Friends that the direction would not insist on the granting or refusal of a licence to an individual.
We now come back to the issue to which we often return in our debates: the conflict between what is written in the Bill and Ministers' assurances. They assure us that the Bill sets out how they intend to proceed, but my hon. Friend the Member for Surrey Heath and I are worried that such measures may not always be interpreted that way in practice. Why? Well, Ministers are not computers, although they occasionally make a good imitation of them. They are human beings and will vary. Some may adopt a relatively light-touch approach, some may take a middling approach and some may take a wide and comprehensive approach. I do not know which of the models offered by the right hon. Member for Walsall, South will be taken as their guiding light, but that could vary, and honourably so.
That is why we are worried that, if there were a potential for power to be used more widely than we would consider justified or consistent with the independence and integrity of the Security Industry Authority, caveats and safeguards should be put in place to ensure that that does not happen, whatever the legislative and directional appetite of the Secretary of State of the day. That, as yet, we do not have that assurance is a source of concern to me.
My noble Friend Viscount Astor went on to develop his point about the Secretary of State's power. He said that the directions not only give him the power to
``direct that someone should not be given a licence, but they give him the power to give a secret direction to the authority to give someone a licence. Someone could get a licence because, on a whim, the Secretary of State feels that it is necessary. We will never know. The authority might be against the decision, but there will be nothing that it can do about it. It will have to comply.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1368-69.]
I regard that as a central point. Will the Minister answer me head on about this subject? I am willing to concede that such action may not happen often. I accept that it might not happen at all, but it is conceivable that a situation could arise in which the Secretary of State thought that a particular individual—perhaps someone who had lobbied privately for the privilege—should be granted a licence, when the Security Industry Authority had come to a different view.
The Secretary of State of the day would issue either a general or specific direction, because he is empowered to do that under the terms of the unamended clause. In this context, it would be a specific direction: he might state that, although he recognises that the authority has judged that a licence should not be granted to the individual, he has access to information to which the authority is not privy, or he is better acquainted than the authority with the individual, and he insists that the authority provide a licence.
Would such information be in the public domain? Would the example that I have described be one of the 99 per cent. of cases that, Lord Bassam assured us, would be publicly recorded, or would reasons be invoked to justify withholding the information? Those are legitimate concerns. Although only a small number of cases might be affected, they would be of great importance to the individuals concerned, and they might reflect on the integrity and propriety of the procedures undertaken.
In the course of the debate to which I have referred, Lord Bassam said that
``The Secretary of State cannot interfere in the judgment of the SIA. That is not the point. The noble Viscount''—
``is assuming that the Secretary of State will simply tell the SIA not to give a licence.''
Equally, as I have argued, he could tell it to give a licence. Lord Bassam then states:
``That is not what I am saying. I was very careful not to say that. That is the authority's judgment alone.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1369.]
That was the Under-Secretary's statement, but it is merely his interpretation, as there is no reference point for it in the clause.
If it is intended that in no circumstances would the Secretary of State do more than direct that particular investigations take place, and that in no circumstances would he use a power—or even think that he had a power—to require the SIA to change a decision that it had reached, why does the clause not include an assurance to that effect? That is a simple point: indeed, as the late Enoch Powell would have said, it is so blindingly obvious that only an extraordinarily clever person could fail to grasp it.
This matter is of concern to my party, so I hope that the Minister will reflect seriously on it and provide an answer. The power is widely drawn and my party believes that it could be abused, and used in ways that the House does not understand. Perhaps the Minister will tell us how far he would involve himself in the mechanics of individual applications? I presume that he accepts that he could direct inquiries or investigations of particular individuals to be undertaken. If that is the case, why does he not also accept that if a Government did not agree with the conclusion of an authority's investigation, they could insist that it was changed?
Will the Minister tell us more than Lord Bassam did about the circumstances in which this broad power would be used? If he is prepared to set out in detail the circumstances that he or the Home Secretary envisage, we might be reassured. Is it a Henry VIII power? Will it allow the Secretary of State to direct the SIA to act contrary to its decisions, or in ways that might conflict with other parts of the Bill or other legislation? I am also concerned about the relationship between the directions and any other legislation that might be forthcoming, such as secondary legislation. If this wide power is to exist, surely the direction should, ordinarily, be placed before Parliament?
The following question begs itself: if the Secretary of State is to have such broad powers of direction, what, ultimately, is the purpose of having the security authority at all? I hope that that point is not reached. The Minister will recall that similar issues were raised concerning the Secretary of State's powers of direction in relation to the new national probation service during the debates on the Criminal Justice and Court Services Act 2000. I do not intend to do any more than animadvert in that way to that legislation, because you, Mr. Benton, would get upset if I dilated on it. However, I am worried that the Government are providing themselves with a broad power.
I believe that the Minister will accept that the power is broad. If he does, will he explain the legal constraints on its exercise? If, however, he is in an especially argumentative mood, which I hope he is not, and disputes that the power is broad—although it is difficult to understand how he could—and says that it is narrow and limited, there is no good reason why he should not now explain what the narrowness of the power entails and the strict limits on its exercise. Either way, there is no good reason why we should not have a rather better explanation of that intended exercise than Ministers have so far provided. It is on that basis—to raise legitimate anxieties about the scope of the clause—that I press the amendment.
I have no concerns about whether the directions given are published. In many cases, they should be. The question is when they should be published; at the time of the direction or in the annual report. It would be interesting to know the range of means by which the Home Secretary or the Minister of State will communicate the views of the Home Office and, I presume, other Government Departments, to the SIA. We are not creating an independent fiefdom of the private security industry or any other group of organisations. I would be appalled if the SIA regarded itself as separate from Government and able to do what it wanted and merely reported to the Home Secretary or Parliament annually.
When I first became a Member of Parliament and my local councillors whinged that I was pinching a lot of their work by holding weekly surgeries, I wisely said that enough casework was available to keep us all fully engaged for a long time. Crime prevention is a sufficiently enormous job not only to keep the Home Office and its competent civil servants in jobs to retirement and way beyond, but to provide ample scope for the SIA.
The Home Secretary has an advantage that the chairman and chief executive of the SIA will not have. The Home Secretary will be aware of the activities in the Home Office, involving the police, civil servants and the fire service, and links with the intelligence services and other Departments. The scheme under which the SIA will, I presume, work will be much more limited and restricted to the private security industry in all its dimensions.
I envisage an enormous advantage for a Cabinet Minister and his deputy, who will have the organisational and informational breadth of activity to be able to communicate to the SIA in one of a variety of forms. One level will be through statutory instruments. For hon. Members who have not read it, I recommend the report by the House of Lords Select Committee on Delegated Powers and Deregulation in which it offered its wisdom on the Private Security Industry Bill, saying:
``There is nothing in this Bill which the Committee wishes to draw to the attention of the House.''
Far more interesting is the evidence given to that House of Lords Committee by the Home Office, which lists all the different examples of when statutory instruments will be used and what response is available to the House of Commons and, I presume, the House of Lords. However, I do not speak as somebody with any experience of government. There is one person here who is in government, and he and the distinguished Secretary of State will know the methods by which their personal or departmental views will be communicated to an organisation that will be set up by the Home Office.
I welcome what the right hon. Gentleman said about transparency. However, with respect to him, we are debating not merely the communication of personal views, but a proposed amendment to a clause that confers a substantial power on the Secretary of State. In the light of what the right hon. Gentleman said about Ministers having access to certain information to which the SIA may not have access, will he say whether he thinks that the Secretary of State should be able to direct the granting of a licence to individuals, or the refusal to grant a licence? Does he think that that is what Ministers have in mind? If Ministers do have such things in mind, should they be open about it? That would be consistent with the right hon. Gentleman's comments about transparency.
I have no idea what is in my hon. Friend the Minister of State's mind at any stage, but I can imagine instances when it will be necessary for the Secretary of State to communicate sensitive information to the SIA.
In Russia—this country is not in such a position—a high percentage of private security companies are run either by the KGB or criminal gangs. What if such an organisation set up a branch in this country for the purpose of investigation or to pursue people for the Russian Government? What if such a company wished to take over a British or European company using laundered money? The SIA may not have access to such information, but the heads of MI5 and MI6 would have a word in the ear of the appropriate Minister, who could then have a word in the ear of the chairman or chief executive of the SIA. I assume that that would not be committed to the public domain.
Did I hear the hon. Gentleman correctly? I cannot argue any further; if he thinks that much information of such sensitivity should be put on the website—too much is, anyway—he is making a big mistake.
It would depend on the circumstances of the case. I say in all sincerity to the right hon. Gentleman—he knows that I respect his position—that I am concerned about establishing transparency, which he said that he supports. I accept that the right hon. Gentleman cannot predict what the Minister thinks, but is he saying that, because of the greater knowledge available to the Government, they should be able not only to communicate their view, but to insist on whether an individual should be granted a licence? If so, does he accept that that directly conflicts with what Lord Bassam of Brighton said in the other place? What is the Government's position, and can it be clearly established?
The Minister of State outranks his colleague in the House of Lords, and two months have elapsed since the House of Lords debates. All of us, not least those in the Home Office, are learning; the Home Office's interest in private security is a recent phenomenon.
I do not want to give colleagues a lecture, because I am not competent to do so on this matter; I have never been and am not likely to be a Minister. However, there is a range of available methods. I recall attending a lunch at No. 10 when the then Prime Minister, Lady Thatcher, merely lifted her head to look in the direction of Charles Powell, and up he jumped. I am not aware of any words having passed her lips or any
gesticulation of either her left or right hand. It was merely a glance—no doubt a piercing one—that led to the intended reaction. There will be a whole range of methods of communication. Psychologists talk about the law of anticipated reaction; this leads to students dressing up as lawyers even when they are in their first year at university. People behave according to how they believe they should behave.
The Home Secretary will appoint the chairman in the first instance, so he should be reasonably compatible with the future incumbent of the office. I should be interested to know the range of methods of communication. Anyone who has been in the Government or who aspires to be in the Government knows that there is a range of methods and modes of communication that do not have to be absolutely formalised. The Conservative party has operated for centuries on that basis, as have all political parties.
I do not have the slightest anxiety about any malevolence on the part of Home Secretaries. Over the years, they have all been either competent or exceedingly competent. I have no worries that they are closet fascists, closet communists or mentally deranged. They have a great deal of input to make into the setting up, the workings and the future of the SIA. They will be the people who can integrate the various Government Departments.
I wrote an article about the myth of non-regulation, which, thankfully, no one read, because it countered the argument that I have been advancing for the past 25 years that there is no regulation in this area. In fact, there is an enormous amount of regulation and anyone who has been the Secretary of State for Trade and Industry, the Minister for Energy or a Secretary of State for Defence could explain exactly how much regulation in respect of the police or security operatives is outside the scope of the Bill.
I am not speaking for the Home Office. There may be exceptional cases when such action will be necessary. If I had sensitive information that had been derived from the United States, for example, about an individual, it would not be necessary for me to drag into my office the chairman of the SIA and say, ``You will not grant a licence to that individual because I have information from X intelligence agency in the United States that he is funded by the Russian or Italian mafia. He is an undesirable person. Although I am not telling you not to issue a licence, I shall leave you to look at the file to make your own judgment.'' In some circumstances, such action would not only be desirable, but absolutely necessary.
I do not believe that such provisions will be abused. As the Minister of State said, the industry is evolving. In 20 years from now, the number of man guards will be far less because, regrettably or otherwise, technology will have supplanted them. The Home Office and other Government Departments must be able to change gear without coming back to Parliament to ask for new legislation and I believe that the Bill is sufficiently flexible to allow them to do that.
We will have the Home Affairs Committee, the Defence Committee, the statutory instrument process, parliamentary questions, private briefings with the Home Secretary, meetings with the chief executive or the chairman of the SIA and an annual report. There will be many opportunities for Members of Parliament to express their views without necessarily thinking that somewhere in the Home Office is a malevolent individual who is hell-bent on denying them the necessary information.
The Minister would be capable of providing more detail on many occasions, and that information could, quite legitimately, swiftly be made public. However, there must be many circumstances in the murky world of policing, national crime and international private security in which it is necessary for information that is transmitted not to find its way into the public domain. If the chief constable of any police authority were asked if he would be prepared for all communications to his officers or to the police authority to appear in the local newspaper, he would think that we were bonkers.
The hon. Member for Southport implied that the hon. Member for Buckingham had a mouth full of words, or that he raised simple but serious points. Is it not sensible to let the Minister answer them, because the other question, about whether the matter should be written into the Bill, is also impacted on by the fact that the official record of our debates can be used in courts and tribunals?
I enjoyed my right hon. Friend's contribution. I was a little distressed by what I can only describe as his revolutionary pessimism in saying that he thought that there was enough work to share between himself, his councillor colleagues and the rest of us. We in the Government had all hoped that after another term of the Labour Government we would have achieved utopia; there would be no complaints because we would have achieved a perfect society. I am disappointed that he does not share that ambition.
On the points made by the hon. Member for Southport, I draw the Committee's attention to clause 26 (2), concerning commencement. It states:
``The provisions of this Act, other than this section, shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be appointed under this subsection for different purposes.''
The process of kicking the thing off would be done by statutory instrument in the manner set out in the Bill.
The hon. Member for Buckingham made a speech in which, even more than usual, he made a tremendous mountain out of what is a small molehill. Some may say—I could not possibly—that that is his characteristic contribution to this Parliament. The power of direction in relation to a non-departmental public body is a standard provision in legislation, as we all know. It is the kind of provision that was available and was established in legislation passed by the previous Government for dealing with NDPBs. It is a routine process and I am surprised that so much could be made of it.
I will be clear; it is not the case that the Secretary of State can direct the SIA to issue or not issue a licence to a particular individual. A Secretary of State cannot issue such a direction. The licensing function is specifically conferred on the SIA and clearly set out in clauses 7 and 8. The power of direction cannot be exercised in such a way as to deprive the authority of its function. The power does not enable the Secretary of State to take over functions conferred on the authority by Parliament. That is important.
I am saying that the Act has the primacy. I do not know whether, in his time as a Secretary of State in the previous Government, the right hon. Gentleman put legislation through the House dealing with NDPBs, but the power exists specifically to allow directions to be made on issues such as what might be published in the annual report of the organisation or on a range of such functions. It is a general power. The explicit meaning of the Act is that it is the responsibility of the NDPB—in this case, the Security Industry Authority—to carry out the responsibilities set out in clause 1 in the ways elaborated on throughout the Bill. It is the authority's responsibility; it is not the prerogative of the Secretary of State to usurp that authority.
The Minister accused me—unworthily, although entirely typically—of trying to make a mountain out of a molehill. I was doing nothing of the kind. I was airing legitimate concerns, as I will continue to do at every stage—[Interruption.] The hon. Member for Weaver Vale (Mr. Hall) can chunter and be smug from a sedentary position if he so wishes, but it will not discourage me from the pursuit of that duty.
Will the Minister acknowledge that what he is saying is argument by advocacy and not by evidence? He is simply asserting that there is no power to grant or to refuse a licence. How does he explain the conflict between that assertion and the fact that in subsection (1) of the unamended clause 2 we are told that the authority shall comply with any ``general or specific directions'' given to it in writing by the Secretary of State? It does not make an exception in relation to decisions on the granting or non-granting of licences.
The point that the hon. Gentleman has not understood is that a series of functions are set out for the SIA in clause 1, including the power to grant or not grant licences. It is the SIA that, under the legislation passed by this Parliament, will have the legal authority to carry those matters through. It would not be right or appropriate for a Secretary of State to seek to usurp that function. If he turns his attention to clauses 7 and 8, he will see that the Secretary of State does have certain functions in relation to the operations set out, which we shall debate later. That demonstrates clearly that there are issues in relation to criteria. Clause 7(5) states:
``Criteria or revised criteria set out under this section shall not have effect for the purposes of this Act unless the Secretary of State has approved them.''
Is the Minister saying that subsection (1) cannot be used in the way suggested—for example, to direct the SIA not to give a licence to a company when, for security reasons, it is known that it would be inappropriate to do so? What he has told the Committee would rule that out. Clearly, that is not what was previously understood by the Committee. That would seem to be one of the few occasions on which the clause would be justified without the amendment for which my hon. Friend the Member for Buckingham has so eloquently argued.
I am saying that the power does not exist in precisely the way indicated. I thought that my right hon. Friend the Member for Walsall, South was saying—he will correct me if I misunderstood—that information, influence and opinions are spread throughout Government by a multiplicity of different means. He was not approving the stare of Baroness Thatcher, as it were, but simply describing what he had seen. There are many such areas, as he suggested. If the right hon. Gentleman is asking whether the Secretary of State has a right to direct the authority to issue or not issue a licence to a particular individual or company, the answer is no.
I am listening carefully to the Minister, but does he not recognise that what he is setting out as the Government's position is directly contrary to the letter that his ministerial colleague, Lord Bassam, wrote to my noble Friends in relation to the Bill? The terms of that letter were set out by my noble Friend Viscount Astor at column 1362 of the Official Report on 1 March 2001. It stated:
``I remain of the view that there may be very limited circumstances in which the use of a confidential direction may be necessary, for example, directions naming individuals or particular companies and consequently we should not place a requirement on the face of the Bill for all directions under Clause 2 to be published''.
That is a quotation from a ministerial letter relating to the clause. It is specific about what the Government were taking power to do.
I had planned to address that matter later. The hon. Gentleman has misunderstood—although not, I think, maliciously—the point that has been made. As my noble Friend stated, it is conceivable that a Secretary of State might feel sufficiently concerned about the activities of particular individuals or companies to direct the SIA to investigate them. There is a difference between that and the argument erected by the hon. Member for Buckingham, which concerned the issuing of licences against SIA decisions, and therefore usurping its power. If I have not sufficiently dealt with that matter I will give way later, but I want to make more progress in addressing the points that have been made.
As I indicated earlier, if directions are given, they are likely to relate to relatively routine matters, or conceivably to sudden or unusual circumstances to which the Secretary of State wants the SIA to respond, perhaps swiftly: he might be sufficiently concerned about the activities of particular individuals or companies to decide to ask the SIA to investigate them. I am not suggesting that those are likely scenarios, but a prudent Government would wish to be able to address them if they arose. If a directive were to be given about the activities of an individual or company, making it public at the outset might defeat the objective of achieving a confidential report. The hon. Member for Buckingham asked whether there were cases in which a directive should not be made public, and I suggest that that is one such example.
The Government believe that in the overwhelming majority of cases it would be right, and a matter of course, for directions to be placed in the public domain at the time that they are made, but that there are circumstances in which that might not be right.
My noble Friend Lord Bassam did not fully describe the limited and sensitive circumstances in the letter to which the hon. Member for Surrey Heath referred, because they are likely to be so rare and unusual that it is difficult to conceive of them. He suggested that, although it might be necessary to direct that there should be an investigation, it might be prejudicial to make that direction public at the outset.
Finally, I want to offer a little commercial for the Government. We passed the Freedom of Information Act 2000. That empowers individuals by enabling them to request to see directions when they arise, as all information held by public authorities is covered by the Act. That is another weapon in the armoury that my right hon. Friend the Member for Walsall, South described when he was discussing parliamentary actions that can be taken in particular areas. The Government put that weapon on the statute book. Its practical effect is to enable the public to look directly at situations and to place information in the public arena.
It is also important to take account of the Act's disqualifications: one of its exclusions concerns instances when disclosure is prejudicial to the conduct of public affairs. I am trying to describe an example of that. A direction to look at a particular individual or company could be prejudicial to the effective conduct of public affairs, so the situation should be allowed to stand as it is. That is the basis on which I ask the Committee to consider the amendment, and on which I ask for it to be withdrawn or voted down.
I have listened to the Minister's attempts to resolve the conflict between what he is saying with the contents of his noble Friend's letter. My noble Friend Viscount Goschen said:
``I understand the natural desire of Home Office officials to issue the Minister with a `get out of gaol free card' to sew into the lining of the back pocket of his coat for some eventuality that may arise in the future which had not been considered.''—[Official Report, House of Lords, 1 March 2001; Vol. 622, c. 1365.]
That is an accurate description of the Minister's argument, which is that he cannot anticipate future circumstances, but in case the Security Industry Authority is not able to listen to informal advice a future Secretary of State may have to issue a direction. If that were the case, should we in Parliament not know about it? That is precisely the point of the amendment.
That is a point for the hon. Gentleman to make in his winding-up speech. I was asked to give examples. They ranged from the relatively trivial direction to include certain uncontroversial aspects in the annual report to the possibly delicate and sensitive direction to investigate a particular company or individual. I acknowledge that that would be a rare circumstance. It would not necessarily be in the public interest for such a direction to be in the public arena, because that would of itself inhibit the purpose of the direction and the activities of the authority.
I do not accept the universality of the amendment. Let us suppose that certain information—whether from the security services, which is unlikely, or from any other source—causes an investigation into a particular security company. If such information were made public, the criminals in that company would cover their tracks before they could be examined properly. I cannot accept that that is in the public interest. That is why I reject the amendment, which, in such circumstances, favours telling the criminals beforehand that they are about to be investigated. That is not a good way in which to proceed. I urge the hon. Member for Buckingham to withdraw the amendment. If he is not willing to do so, I shall ask the Committee to vote against it.
The Minister of State was at his least convincing. He said that the power is relatively narrow. We fear that, by contrast, it is broad. The right hon. Member for Walsall, South declined to say whether he thought the power was narrow or broad, but he explained why he can envisage circumstances in which a relatively broad power would be justified. That is at the heart of the matter. The right hon. Gentleman, in explaining that it might be legitimate and desirable in certain circumstances for the Secretary of State to require the authority not to issue a licence, invoked more information being made available to the Secretary of State by comparison with the free-standing Security Industry Authority.
In effect, the right hon. Gentleman said that he did not know exactly what the Minister was thinking, but looking at the matter from a common-sense point of view, it seemed that from time to time the Government will have access to information about individuals or companies that will not be available to the Security Industry Authority. He said that, in such circumstances, the Government ought to be able to say to the authority, ``We have this information. We are happy to tell you what it is either in detail or in general terms, and you should not issue a licence.'' He went so far as to say that he thought that such cases would be so obvious and incontrovertible that the authority would not argue about them. However, he conceded that, even if the authority were minded to argue about the matter, the Secretary of State should be able to insist on his decision being taken.
The stance of the right hon. Gentleman is eminently respectable. He went on to defend it. In fairness, it is a different stance from that of the Minister, which is murkier and less defensible. I do not want to be uncharitable. I have been more than charitable to the Minister in previous Standing Committees, but I have greater regard for the candour of the right hon. Member for Walsall, South than for his. In a poor and unconvincing winding-up speech, he simply argued by advocacy, not evidence. My right hon. Friend the Member for Hitchin and Harpenden (Mr. Lilley) speedily picked up on that. The Minister just said that the Security Industry Authority has the power and responsibility for decisions about licences. That is not supposed to be the business of the Secretary of State.
Clauses 7 and 8 describe the powers available to the SIA that, admittedly, relate to licensing. What makes hon. Members think that the Secretary of State would wish to interfere in that process, or could do so? The answer, which is why my hon. Friends and I are minded to press the amendment, is the broad and potentially all-embracing power that the Government have decided to confer on themselves in the unamended clause.
The hon. Member for Eccles made an interesting point about the admissibility of evidence and proceedings that could be invoked in cases of conflict that go to the courts. I acknowledge that, but we must have an overwhelming concern about what is in the Bill, rather than the utterances on a particular occasion by a given Minister who, by definition, whatever his or her merits and whether he or she is destined to go upwards or downwards, is a here today and gone tomorrow—or the day after tomorrow—Minister. What matters is what is in the Bill. [Interruption.] I am grateful for the encouragement of my right hon. Friend the Member for Hitchin and Harpenden. He has taken many Bills through the House—rather more than any other member of the Committee. I am concerned by the specific reference to ``general or specific directions'' given to the authority by the Secretary of State.
Apart from transparency, scope is the central point about which I am overwhelmingly concerned. The Minister said, in response to the invocation of my hon. Friend the Member for Surrey Heath of the comments of Lord Bassam, that the reference to particular individuals or companies is simply a reference to the power that would be taken to direct an investigation. I should be grateful for the Minister's attention at this point because, if I am to criticise his argument, as I shall, it would be helpful if he would confirm what his argument is.
The Minister seemed to say that there would a power to provide that the Security Industry Authority ``should look at'' a particular individual or company. When challenged by my hon. Friend the Member for Surrey Heath, he insisted that the power did not go beyond that: the Secretary of State could insist that someone should be investigated or examined in more detail, but he could not insist on the primacy of his judgment over that of the authority. However, the problem with that is that it is not what the unamended clause states. If the Minister is adamant that the Secretary of State would in no circumstances insist on his view over that of the authority, why does it not say so in the clause?
The reason that I accused the hon. Gentleman of making a mountain out of a molehill—I have difficulty maintaining an active attention when he goes through the matter in such a pettifogging way—is that if he examines clause 1(2)(a), he will note that it states that the functions of the authority shall be
``to carry out the functions relating to licensing and approvals that are conferred on it by this Act''.
That is a function of the authority, not of the Secretary of State. That is the point.
Actually, that is not the point. First, let me deal with the nonsense about pettifogging. The Minister ought to understand—let him learn it once and for all—that it is precisely the responsibility of the Committee to scrutinise the Bill in detail. If he is so obviously preoccupied with his ascent up the greasy pole of politics that he does not understand that that responsibility is incumbent not only on Opposition members of the Committee but on every member, it is time that he learned that. That is the first point, of which the hon. Member for Weaver Vale, who frankly does not understand much of what we are debating, does not have the slightest comprehension.
Secondly, clause 1, to which the Minister referred in defence of his position, confers the responsibility on the authority but does not make it clear that it is its exclusive responsibility. Sure enough, responsibilities are granted to and powers are conferred on the Security Industry Authority, but the Bill does not state that the matter is exclusively the authority's concern and that in no circumstances can the directional power of the Secretary of State touch on the exclusive discretion of the authority in granting or not granting licences. If that is how the Secretary of State wants us to understand the matter, it is incumbent on the Government to draft their legislation such that the matter can brook no doubt, but they have not chosen to do so.
That is a helpful additional point on which I had not focused. It directly cuts across, contradicts and undermines the Minister's claim that these are matters only for the authority. They are matters for the authority, but that is not the same as saying that they are matters only for the authority.
The Minister says that the investigation is all that the Secretary of State has the power to direct. The trouble is that that is inconsistent with the perfectly reasonable point made by the right hon. Member for Walsall, South that the Secretary of State might have information provided to him by agencies that is not available to the Security Industry Authority. On the strength of that information, he might want to advise or direct the authority to grant or not to grant a licence. The Minister said a few moments ago by way of a subordinate clause of a sentence that it was unlikely that information about a particular individual or company would reach the Secretary of State via the intelligence services, although he did not explain why he thought that. I hope that he would accept that it is possible that such information might reach the Secretary of State and cause him to doubt a judgment reached by the SIA without that information being available to it.
If the Minister and his Department have come into possession of information that the SIA does not have, does the Minister not understand that in such circumstances the Department would not be asking the authority to conduct an investigation? In such circumstances, the SIA would not be the appropriate authority to conduct an investigation, because it would be doing so without information that the Secretary of State had and that made him believe that he was in a better position to reach a decision. Why then can the Minister not understand that a Secretary of State might want to insist on his preference, as opposed to that of the inadequately informed Security Industry Authority?
It is perfectly imaginable that such a scenario could arise. Interestingly, the Government, who are breathtakingly arrogant about such matters, are hypersensitive. Perhaps that is because we sometimes attack them, justifiably, with some vigour.
I am perfectly prepared to concede that a scenario such as the right hon. Member for Walsall, South describes could arise. Ministers might have information provided to them that the SIA does not have. In such circumstances, they would not be asking for an investigation to be conducted. They would probably be saying that, given the incontrovertible information that they have, a licence should not be granted: ``Please do not do so'', or ``Thou shalt not do so.'' I am saying not that that is necessarily objectionable but that such a scenario is likely to arise, so the Minister should be prepared to clarify the extent of the power in the Bill. He should not pretend that a situation might or might not arise, or that the Government are proposing to confer on themselves a lesser power than that which they are intent on conferring.
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.
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.
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).
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.
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.
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.
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.
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.
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.