Police, Crime, Sentencing and Courts Bill — House of Lords, 2021-10-25
Topic: Law and Crime
David John Maclean (Conservative, Centre-right): My Lords, as chair of the Delegated Powers and Regulatory Reform Committee, I support Amendments 33 and 41 in my name. I intend to speak only once on the whole Bill, unless the spirit moves me via my noble friend the Minister’s reply. She will know that there were quite a few recommendations in the Delegated Powers Committee report, but I have put down just these two amendments If the Committee will permit, I will take the first minute to run through the more general criticism we made of the delegated powers in the Bill. I will not return to this subject again. In our response to the memorandum, we said: "We are surprised and concerned at the large number of inappropriate delegations of power in this Bill … We are particularly concerned that the Bill would … allow Ministers—and even a non-statutory body—to influence the exercise of new police powers (including in relation to unauthorised traveller encampments and stop and search) through ‘guidance’ that is not subject to Parliamentary scrutiny … leave to regulations key aspects of new police powers—to restrict protest and to extract confidential information from electronic devices—that should instead be on the face of the Bill; and … allow the imposition of statutory duties via the novel concept of ‘strategy’ documents that need not even be published." That is the subject of the amendments before us today, and that is what I shall major on We concluded our general introduction by saying: "We are disappointed that the inclusion of these types of delegations of power—on flimsy grounds—suggests that the Government have failed when preparing this Bill to give serious consideration to recommendations that we have made in recent reports on other Bills." That is fairly scathing condemnation, and it is a bit unfair on noble Lords in this Committee and from the Home Office, because they had nothing to do with drafting these provisions We all know how it happens. The Bill has come from another place; Ministers who have served in the Home Office and other departments will honestly admit this. I dealt with about 20 Bills when I was in the Home Office. The Bill team and civil servants would come in and say, "Here’s the Bill, Minister", and we would look at the general politics of it. Then they would say, "Oh, by the way, there are some delegated powers there. When you’re ready to come back again to tweak it, we can deal with it". We all said, "Yes, jolly good; carry on", but never paid any attention to them. I am certain that the Bill team in the Commons—the civil servants drafting the Bill—did not, and nor did the Commons Ministers. It came here and this bunch of Lordships have got a bit upset, and I suspect others will too I say to my noble friend the Minister to go back, as other Lords Ministers have to do, and explain to Ministers in the Commons and the Bill team—the Bill team thinks it is sacrosanct; it has drafted it and does not like people mucking around with it—that that bunch up the Corridor will want some concessions. My political antennae tell me that on Report there may be a few amendments made by noble Lords on all sides—amendments I might not approve of at all—but if we want to get somewhere, the Commons should make concessions on this, because they are really sensible Before I comment on the two amendments, I will give one example. We criticise the provisions on serious disruption; I think the noble and learned Lord, Lord Judge, wishes to remove them from the Bill. We say in our report that the Government have been able to draft a half-page statutory instrument describing serious disruption. If the Government can draft it there, stick it in the Bill, for goodness’ sake, and then it can be amended later That is enough general criticism. I apologise to my noble friend as she has to take it all the time, but other departments have been infinitely worse in some of their inappropriate delegations. The Home Office is not the worst offender Clauses 7(9) and 8(9) "make provision for or in connection with the publication and dissemination of a strategy" to reduce serious violence. Clauses 7 and 8 allow collaboration between authorities and a local government area "to prevent and reduce serious violence", including to "prepare and implement a strategy for exercising their functions"— all good stuff Under Clauses 7 and 8, a strategy "may specify an action to be carried out by … an educational authority … a prison authority … or … a youth custody authority", and such authorities are under a duty to carry out the specified actions. However, there is no requirement for such a strategy to be published; instead, the Secretary of State has the power, exercisable by regulations subject to the negative procedure, to "make provision for or in connection with the publication and dissemination of a strategy" This power would appear to allow the Secretary of State to provide that a strategy need not be published if she so wished, or even to decide not to make a provision about publication at all. That does not make sense to us. My committee is "concerned that the absence of a requirement to publish means that a strategy can have legislative effect—by placing educational authorities, prison authorities and youth custody authorities under a statutory duty to do things specified in it—but without appropriate transparency." We therefore recommend "that the delegated powers in clauses 7(9) and 8(9) should be amended"— that is, tweaked a wee bit— "to require the publication of any action which is specified in a ‘strategy’ as one that an educational authority, a prison authority or a youth custody authority must carry out." That is a minor tweak—actually, so are many of the other things we recommend. We may be scathing in the report, but we are not asking that fundamental bits of the Bill be deleted or rewritten completely; we are merely asking for more transparency. Putting more things on the face of the Bill will save the Government rather a lot of grief in this House later on.