Protection of Freedoms Bill

Lord Cope of Berkeley Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Neill of Bladen]

My Lords, I would have wanted to vote for the noble Lord’s first amendment, but I can see that there are difficulties and that maybe more time for thought is required. It is perfectly true, as the noble Lord, Lord Lester, said, that a report has been produced that emphasises the sovereignty, as it were, of the human rights convention, which intrudes—I mean that in a good sense—into earlier legislation and the rights and the protection that are not visible there.

My concern is that the ordinary man or woman in the street does not understand the scope of the Human Rights Act and would be outraged to hear that there are 1,200 instances when officials can enter your house—your home—and certainly your business and would wonder how that could have arisen over the years. In the absence of a ministerial explanation, I would be inclined to infer that it would become a habit that if you wanted a power that might be useful one of these days for some of your officials, you stick in a power of entry. Parliament is bereft of any power either because that power is in a statutory instrument and we do not amend statutory instruments, or it is in a bit of primary legislation that goes through with that clause unattacked.

Something clearly has to happen as a result of the amendment moved by the noble Lord, Lord Marlesford, the research by the noble Lord, Lord Selsdon, which has produced the figure of 1,200, and 500 separate pieces of legislation, as I understand it, from the noble and learned Lord, Lord Scott of Foscote. My present state of mind is that I am very anxious to hear what the Minister has to say and what amelioration of the situation can be produced. It is not satisfactory at the moment and some quite sweeping amendments will be required, no doubt making due reference to the points raised by the noble Lord, Lord Lester.

[Lord Cope of Berkeley]

My Lords, I, too, have sympathy with my noble friend Lord Marlesford’s amendment in principle. At the same time, I also observe that the review to which the noble Lord, Lord Lester, referred a few moments ago is not required by statute until after this Bill is passed. It is in Clause 42 of the Bill, and Secretaries of State then have two years in which to review the 1,200 powers or however many it turns out to be. It would be helpful to your Lordships' House if my noble friend the Minister could tell us whether the review is already in progress and how many of the 1,200 powers have so far been reviewed in addition to the 15 that are due to be knocked out by Schedule 2. Clearly, the review has reached 15 of the 1,200 in a negative sense, but how many of the others have so far been reviewed?

[Baroness Hamwee]

My Lords, I am sorry not to be able to support what the noble Lord, Lord Marlesford, has described as his package. Reference has been made to individual amendments, but he rightly put them forward as a composite. I know the effort that he has applied over a long period, along with the noble Lord, Lord Selsdon, and indeed the noble and learned Lord, Lord Scott of Foscote. I have been privileged to observe him in the Merits of Statutory Instruments Committee, conducting with great assiduousness what I can only describe as a campaign against rights of entry that continue to crop up in statutory instruments on which we are asked to comment.

I wrote down “presumption” in the non-legal sense; I agree that every power of entry should require a warrant, and my noble friend has reminded us of both the common law and the Human Rights Act. I welcome what is in the Bill, and I am glad that the noble Lord, Lord Cope, referred to it, because I think we have rather tended to overlook what is proposed for our consideration.

I welcome Clauses 39 and 40. The noble and learned Lord, Lord Scott, may not be a veteran, as some of us are, of the continuing debate over “must” and “may”. I also welcome Clause 42. To pick up the terminology used by the noble Lord, Lord Marlesford, I am certainly one who would normally chase the Government—I tend to be on the rather cynical wing. However, I take the two years for the completion of the review at face value, particularly as we can assume that the reports required of Ministers—a duty under Clause 42—will include not only a conclusion but an explanation for each decision, and Parliament will be able to debate these. I note of course that the noble Lord, Lord Marlesford, is not seeking to delete these clauses.

I add one short point. I have another difficulty with the drafting of the second amendment. It would require an authority to,

“demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.

I am not entirely sure that I know what is meant by “demonstrate”, but I suspect that we could be heading down a road to judicial review, which would mean that the High Court rather than magistrates became involved in many of these instances.

The noble Lord, Lord Borrie, has mentioned environmental health officers; I think we have the Environment Agency. I say to the noble Baroness, Lady Eaton, that like her I found the examples from the Local Government Association very powerful and helpful. However, I must agree with other noble Lords that this work cannot be allowed to rest.