I agree with what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) and the hon. Member for Hayes and Harlington (John McDonnell) said about amendment 158, and indeed about other amendments.
Objectivity is vital. In the absence of objectivity, the police officer will be judge and jury, deciding everything on the spot, and—with the best will in the world—in a difficult, fraught situation on a busy Saturday night, things could go badly wrong. If we do not bring some objectivity to bear, we shall be on a very dangerous and slippery slope. I hope that the Government will consider this reasonable amendment.
8 pm
The hon. Member for Croydon North (Mr Reed) referred to Government amendment 82, but said that time did not permit further discussion of it this evening. With respect, I entirely disagree. The amendment is constitutionally important. I remind the House that it states:
“In Schedule 7 to the Government of Wales Act 2006 (legislative competence of Welsh Assembly), in the list of exceptions in paragraph 12, for ‘Anti-social behaviour orders’ there is substituted ‘Orders to protect people from behaviour that causes or is likely to cause harassment, alarm or distress‘.”.
On the face of it, the amendment does not seem particularly difficult to accept. However, the Government tabled it notwithstanding strong objections raised by both the First Minister of Wales and the Welsh Minister for Local Government and Government Business, and I understand that both gentlemen have written to the Minister for Policing and Criminal Justice and the Secretary of State for Wales expressing grave concern.
The amendment would replace a current exception to the legislative competence of the National Assembly of Wales with respect to antisocial behaviour orders with that new exception. I understand that the Home Office has so far claimed that the amendment to schedule 7 of the Government of Wales Act is merely consequential, and can thus be made without the need for a legislative consent motion in the Assembly. However, the First Minister made it clear in correspondence with relevant Ministers in the House of Commons that the amendment would
“represent a substantive reduction in the Assembly’s legislative competence.”
I consider that to be a matter of constitutional importance that cannot simply be brushed away.
It is surprising, to say the least, that the Government have chosen to act so brazenly, given that in their response to part II of the Commission on Devolution in Wales, they said that the interpretation of this self-same exception was “unclear”—referring to the provision that specifies antisocial behaviour orders as an exception to the Assembly’s legislative competence in respect of local government, namely paragraph 12 of schedule 7 to the Government of Wales Act. The question of how the Government can amend the exception without being certain of its interpretation is beyond at least my understanding, and probably beyond that of many other people. Given that the Government suggested that the Silk commission should look into the matter, it is perverse for them to act in advance of the commission’s recommendations. Furthermore, as they stated in their evidence that they were uncertain about how to interpret the exception, I do not know how they can be so sure that no legislative consent motion is required to amend it.
If the proposed amendment to the exception were passed, all orders to protect individuals from behaviour giving rise to harassment, alarm or distress would be outside the legislative competence of the Welsh National Assembly. The Assembly would consequently be unable to legislate to protect people from such behaviour, even in devolved fields such as education, health and housing. The amendment would represent a substantive alteration in the institution’s competence, and the House should therefore not accept it without first seeking the Assembly’s agreement. I understand that a legislative consent memorandum and motion are to be laid in the Assembly, and that the Welsh Government will not be supporting the motion. I expect that the same will apply to my Plaid Cymru colleagues in the Assembly.
I believe that the amendment should be withdrawn, and that further discussions should take place. In my view, for the Government to railroad through the House a measure about which they are unclear is a constitutional disgrace.