Offender Management Bill

moved Amendment No. 99: 99: After Clause 12, insert the following new Clause— ““Procedure for orders under section 12 (1) The Secretary of State must not make an order under section 12 unless— (a) a draft of the order has been laid before and approved by a resolution of each House; and (b) each of the resolutions for approving the draft was agreed more than 60 days after the day on which the draft was laid before the House in question. (2) No draft order under section 12 is to be laid before Parliament unless— (a) the Secretary of State has prepared and published a report containing a proposal for the making of such provision; (b) the report sets out the Secretary of State’s reasons for making the proposal; (c) the report has been laid before Parliament and each House has approved the proposal contained in the report, either with or without modifications; and (d) the draft order gives effect to the proposal so far as approved by both Houses. (3) An approval given in either House satisfies the requirements of subsection (2)(c) only if it was given in that House on the first occasion on which a motion for the approval of the proposal was made in that House by a Minister of the Crown after— (a) the laying of the report; or (b) if more than one report containing that proposal has been laid before that House, the laying of the one laid most recently. (4) In reckoning a period of 60 days for the purposes of subsection (1), no account shall be taken of a day for which— (a) Parliament is dissolved or prorogued; or (b) the House in question is adjourned as part of an adjournment for more than four days.”” The noble Baroness said: My amendment would require the Secretary of State to publish a report setting out his reasons for believing that the time was right to expose the core offender management tasks, such as writing court reports, to the new process of contestability, which lies at the heart of the Bill.It would do so by applying the super-affirmative procedure to the statutory instrument that would remove Clause 4. Noble Lords—at least those who have been involved in the Bill—will recall thatClause 4 prevents the Secretary of State from opening up core offender management work to contestability. That protection, however, can be whisked away by a statutory instrument laid under the powers given to the Secretary of State in Clause 12. The Government have said that they will not expose services such as the writing of court reports to contestability until they are sure that the time is right to do so, or at least for the next three years. The Committee has debated Clauses 4 and 12 in some detail and has set out its considerable concerns about how they will operate. Indeed, the greater part of our debates in the first four days of Committee on the Bill has been dominated by the concerns of noble Lords about the way in which the Government intend to push ahead with their policy of contestability without first being adequately clear about its operation. My Amendment No. 99 has been proposed to find a way forward that may satisfy all sides of the debate. We believe that only the process recognised by the Delegated Powers and Regulatory Reform Committee as being the most stringent secondary legislation mechanism available should be used to remove the protection for core services in Clause 4. So how would the amendment work and why do we think that it is right for this Bill? If the Secretary of State wished to bring forward a statutory instrument to remove Clause 4, under my amendment he would first have to publish a report containing his proposals and giving his reasons for them. The report would have to set out why the Secretary of State believed that the time was right and it would have to give details of what had happened so far in exposing other non-core work to contestability, to enable the House to judge whether the time was right to let Clause 4 wither and die. The report would be laid before Parliament and both Houses would be required to approve it before the statutory instrument could proceed. Effectively, the amendment would give this House what it so often calls for; that is, the opportunityto have an amendable statutory instrument. That would be superior to the existing position whereby instruments can be only accepted or rejected. Members of the Committee will be aware of how cautious I always am with regard to statutory instruments and how cautious noble Lords are generally. We have one recent example of a statutory instrument being rejected—the casinos statutory instrument. It was an extraordinary occasion; I think that it was only the second time in living memory that the House has rejected a statutory instrument. That course of action is taken very seriously and not lightly. If Members of the Committee check the list, they will see that I did not vote on that occasion. The Opposition were not whipped to vote. I followed the line that I always do; that is, if this House has given its approval to the primary legislation, it is a matter of great concern if we are in the position of having to vote against secondary legislation. It is not a matter in which I would wish to take part, except as a very last resort. Why is this procedure right for this Bill? I believe that it is a way forward that would resolve some of the major concerns about the Bill as a whole. It is of course a novel procedure. The Government first tried to introduce it during the passage of the Identity Cards Act. At that stage, I objected to its use on two grounds, both of which can be ignored for the purposes of this Bill. First, I said that the procedure was wrong for a change of constitutional significance to the liberty of every citizen, as the change to all-out compulsion for ID cards in the Identity Cards Act would be. Secondly, I did not believe that the Government were serious about abiding by the implications of the process of the super-affirmative procedure. My suspicions were based on comments made by the Minister in another place, Mr Andy Burnham, who effectively said, ““Well, it does not really matter what the House of Lords do. We will have supremacy anyway, so it is not really an amendable regulation””. The first matter does not apply here, so this is not the wrong process for this Bill. My second objection was resolved clearly by the noble Baroness, Lady Scotland, in this House. I am grateful to her for her clear assurance at Report stage of the Identity Cards Bill on 23 January 2006, at cols. 990-94. She made it clear that, if this House did not agree to an amended form of a statutory instrument under the super-affirmative procedure, the only way forward for the Government would be by primary legislation. Shedid the House a service for the future by making that so clear. I believe that the limitation in Clause 4 is fundamental, as I made clear at Second Reading and in Committee. It is a matter of policy, as paragraph 28 of the report from the Delegated Powers and Regulatory Reform Committee observed. For a matter as fundamental to the Bill as the limitation in Clause 4 and the allied proposals in Clause 12, the super-affirmative procedure would be the appropriate course to take. I hope that the Minister will agree and will accept the amendment. I beg to move.