My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Judge, and my noble friend Lord Hodgson of Astley Abbotts. I say to my noble friend Lord Sharpe that I am sorry that Ministers in this House once again have to take the brunt of my ire over Home Office matters for which they are not responsible and entirely blameless. I also say to the Government that I am not a natural rebel. I made the mistake of sitting in on the last debate and was utterly convinced by the arguments of the noble Lord, Lord Coaker, but nevertheless as a former Chief Whip felt that I had better support the Government, only because I had not told them in advance that I would rebel.
The College of Policing employs more than 700 people, and last year spent more than £47 million. The Bill, like others before it over the last seven years, gives the college the right to prepare guidelines to be implemented by the police, which will affect the public. In this case, it is pre-trial bail. Your Lordships may have assumed that a body called the College of Policing to which the Home Office has been granting regulatory authority is a statutory body set up by Parliament, and that perhaps you had missed the Bill setting it up when it went through this House. That is what I thought until recently, when I discovered that it has no statutory authority whatever but is a private limited company, limited by guarantee. Not many people know that, as the great Sir Michael Caine denies he ever said. It was announced by the then Home Secretary, Theresa May, on 24 October 2012, and this is what she said—sorry, this is not what she said; it was merely a Written Statement, with no questions asked:
“My Department has now legally incorporated a company limited by guarantee under the name ‘College of Policing Limited’. The college will become operational in December 2012. The college will be established on a statutory basis as soon as parliamentary time allows.”—[Official Report, Commons, 24/10/12; col. 62WS.]
Nine years and 20 Home Office Bills later, there has apparently been no time to put this powerful arm’s-length body on a statutory footing. Do your Lordships believe that this is simply an oversight? I am afraid that I am a cynical person, and I do not. I suggest that it is a deliberate attempt by the Home Office to avoid parliamentary scrutiny for this organisation.
I serve on two arm’s-length bodies and they, like dozens of others, were created by statute. It is not rocket science for the Home Office to simply copy the
usual format of 10 to 15 clauses setting out the general powers of the organisation and a schedule with the technical stuff about salaries, appointments and all that sort of thing. Our statute book is full of such creations of statutory arm’s-length bodies. Indeed, the Home Office has done all the homework already; this private company, of course, has a memorandum and articles of association, which Companies House requires. It is not rocket science for the Home Office simply to lift all that from the memorandum and articles of association and add it to a Home Office Bill such as this Christmas tree one, or introduce a new one. I can conclude only that the Home Office has deliberately not done it, and it cannot say that it has had no time to do that after nine years of this limited company operating.
Let me make it clear that I do not challenge the honesty, integrity or desire of the police officers and civilians running this organisation to try to do good and reduce crime. Indeed, in my time as a Police Minister I never met a policeman who did not believe that if he or she had that little bit of extra power—to be able to take the fingerprints and DNA of everyone and keep them on file in case they are needed—they would make a huge difference in cracking down on crime. They are right, of course, but if one were to grant those powers it should be done by Parliament. I do not challenge its honesty and integrity, but I challenge its right to exist as a powerful arm’s-length body without a single minute of parliamentary time, either in the other place or in this House, devoted to considering its establishment, powers, rights and duties.
If I may say so, it gets worse. In a recent Parliamentary Answer, the Home Office confirmed that the college has put in a bid for a royal charter. Can your Lordships imagine that—a private limited company, already exempt from parliamentary creation, getting a royal charter? Who do they think they are? Of course, if it got it and if MPs or Peers—someone like me—then began to question its activity, it would say that it had a royal charter and was above repute, and how dare I question them and to mind my own business. My instinct tells me that this is simply not right.
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I put down this amendment because I do not want this body to be given the right to create more regulations bypassing Parliament until both Houses of Parliament have passed a Bill creating it and granting it the powers to make laws, if we decide to do that. Some of the regulations this body makes have to be laid before Parliament by the Home Secretary without questions asked unless the Home Secretary has grievous reasons for refusing to do so. They are just laid before Parliament, stuck in the Library and not debated in this House.
I was inspired to look into this because of the guidance being issued by the police on Covid. This House passed regulations on wearing masks and the two-metre rule and then, a few days later, the college seemed to issue contrary instructions to the police on how they should be enforced. I was therefore concerned that the college was issuing guidance which may have been illegal. The Cabinet Office calls the college part of the What Works Network. It may work quite well for the college, but I do not think it works well enough for the public, who are affected by illegal guidance.
When I tabled this amendment, I had absolutely no idea that the Court of Appeal would, just a few days before Christmas, rightly condemn the college for issuing guidance on recording 120,000 innocent people as having criminal records for committing non-crime hate incidents. The court said that the college acted unlawfully, and that was exactly my fear. Even if there were an SI on this matter that had been through both Houses of Parliament, it might have been struck down on judicial review, but I suggest that there would be a much smaller possibility of that if it had been debated in both Houses of Parliament rather than being merely a rule invented by a private limited company.
As your Lordships know, the Home Office has rushed in an amendment to partly tackle that illegal behaviour by the College of Policing. It will be dealt with on Monday, so now is not the time or place to talk about it. I will say more on it on Monday. However, it seems to make the point abundantly clear that when guidance is invented not in an Act, not even by secondary legislation, but by a third party outside parliamentary control, the rights of the subject can be imperilled, no matter the decency or the integrity of the people making those regulations. The College of Policing no doubt does some good work, but it should be an arm’s-length government body approved by Parliament, not a private limited company. All I want to hear from the Minister tonight is when this organisation will be put on a statutory footing in an Act approved by Parliament. I beg to move.