Protection of Freedoms Bill
Lord Marlesford Excerpts(12 years, 3 months ago)
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“(3) Further safeguards shall be that—
(a) unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises occupier or by warrant; and
(b) that, notwithstanding the statute providing for the power of entry, a power of entry may only be used without warrant, or without agreement with the occupier of the premises to be entered—
(i) in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant was sought; or
(ii) by persons specified in regulations made by the Secretary of State when acting under any legislation which permits such a person to exercise such a power.
(4) The persons specified in regulations made under subsection (3)(b) may include, but need not be limited to, any one or more of the following—
(a) a constable;
(b) a member of the Security Service;
(c) an officer of the Serious Organised Crime Agency;
(d) a Trading Standards Officer; and
(e) any person acting in pursuance of the protection of a child or a vulnerable adult.
(5) Regulations made under subsection (3)(b)(ii) shall be subject to approval by resolution of both Houses of Parliament.”
Lord Marlesford
My Lords, when the Prime Minister exhorted his Ministers yesterday to raise their game, I suddenly realised that that is exactly what I am trying to do today. That is why I am bringing back this amendment, now redrafted, which noble Lords on all sides supported in February and which found favour with the House by a majority.
When I was very young I worked with Ernest Marples, who in his day was one of the political celebrities of the Conservative Party because he had such a talent for getting things done. It was he who, under Harold Macmillan as Housing Minister, fulfilled the Tory pledge to build 300,000 homes, a pledge which Aneurin Bevan, another political star with an outstanding talent for oratory and whom we would salute every day as the architect of the National Health Service, had denounced as a cruel deception and an election trick. What was Marples’ secret? He had his own saying that it is the method paragraph that counts. That was how he built the houses.
The election pledge that this Bill seeks to address is to cut back on the intrusive powers of entry into homes. The Government’s method paragraph is to set up a two-year study in the Home Office to review each of the 1,300 powers of entry and to decide what, if anything, should be done about each of them. One of the things that Karl Marx got right was that people will always do what they see to be in their interest. That is invariably right; that is how they are motivated. I do not want to cast aspersions, but bureaucrats seek power as their currency, and of course they want to use it for the public good. The wider the powers the more they can achieve. That is the philosophy. They are also unlikely to give up voluntarily their totally untrammelled 1,300 powers of entry, which are enshrined in statute, and until very recently that is why there has been a growing fear of such powers.
The Minister has told us how the Home Office leads in the creation and the removal of such powers. It has a gateway through which all such powers must pass. A week or so ago, my noble friend gave me a Written Answer to my request that he list the 19 applications in the year from March 2011 to create, amend or re-enact powers of entry that have passed through the Home Office gateway. All but one of those 19 came from Defra and now every one of these new powers is to be made subject to agreement or warrant. I congratulate the Government as that shows what can be done and it illustrates the change in the culture since the Bill was initiated. But—and it is a big but—there were 19 in a year, with 1,300 needing to be processed and a target time of two years. We can all do the arithmetic. The reputation of the Home Office is not at such a pinnacle that it can easily command all other departments, and of course it does not have that useful currency of power which the Treasury has: extra money.
There are rivalries and jealousies well outside the influence of the Home Office. When I first introduced my amendment, it was most enthusiastically welcomed and endorsed by the Trading Standards Institute. Its policy officer, Sylvia Rook, wrote to the noble Baroness, Lady Royall, with a copy to me, on 3 February, saying:
“The Trading Standards Institute is delighted that Lord Marlesford has recognised the important work done by trading standards professionals around the country, and has amended his proposals accordingly … The new proposals, if accepted, will ensure that trading standards professionals can continue the essential work that they do using the powers afforded to them within existing legislation and subject to existing legal constraints”.
In other words, the trading standards people are very happy that this amendment in no way interferes with them. Subsequently, they appeared to change their tune. Not only do I understand why, but it illustrates why it is quite important that it is not left to those with the powers of entry to decide whether they should be modified.
The Local Government Association was unhappy not to be one of the exceptions. Indeed, the association wrote to me some weeks ago pointing out that it, too, sometimes found its untrammelled powers useful and although it did not use them, it always felt that it might have to use them in the future and that they might come in handy. Of course, trading standards is closely linked with local government and is part of the LGA. I know that the LGA was upset that trading standards had agreed a deal whereby it had an exemption and the LGA did not. I am told that the LGA never thought that the amendment would pass and so decided not to devote any resources to telling us that parts of it should be included. In the name of solidarity—we all respect that—trading standards was persuaded to withdraw its enthusiasm. However, today I spoke to trading standards, which confirmed that it was happy to have been given the exemption, which remains in my amendment.
Lord Henley
My Lords, I am a great fan of sunset clauses, and I would be more than happy to do that. It is a matter for Parliament; with any new power that comes in, Parliament must decide whether a sunset clause should be brought in. It is not within the scope of what we are debating now to bring in a sunset clause for all 1,300 powers of entry that exist. That is not the aim of my noble friend’s amendment, and it is not an idea that has been put forward by anyone else. I am sympathetic to sunset clauses, and I know that the noble Lord is sympathetic, but let us consider that with new powers that come in. It is not something that we can debate at this stage.
With those assurances about what we are doing and with the assurance that we will continue to update Parliament on how we are getting on with this, I hope that my noble friend feels able to withdraw his amendment.
Lord Marlesford
My Lords, I am most grateful to all noble Lords who have taken part in the debate. The House of Lords is always quite impressive, but the quality of the experience, knowledge and wisdom that have been shown by noble Lords speaking has been terrific. There has been a psychological thing that probably happens to all of us: there are those who want to do something and get on with it and those who say, “Well, let’s wait”. There is a place for both. However, on this question of how long it would take for a review, when my noble friend Lord Selsdon says that it took 18 months just to count the powers, I just wonder how far they will get in examining each of the 1,300 powers in 24 months.
I want to emphasise just one or two things. The first is that we are not aiming to remove any powers of entry. All we are saying is that we believe that the powers of entry, with certain exceptions, should be subject to agreement or to warrant as far as the occupier of the premises is concerned. The second—and this is where the amendment has changed—concerns what is found or felt about the provision before the powers have all been examined. My amendment does not interfere at all with the Bill’s current provision for a review. That provision will continue and it will be good to have it—I wish it godspeed, and we shall look forward to getting the reports. In the meanwhile, however, we will have achieved something. We will also have given the Government an opportunity so that if it transpires that a power has been trammelled by being subject to agreement or warrant and that has been counterproductive or undesirable in the public interest, the Government will be able to come back ad interim with an order to correct it. That is what I mean in describing the way that I have removed the blanket imposition.
In view of the comments of people such as the noble Lord, Lord Butler, and the noble and learned Baroness, Lady Butler-Sloss, I think that the general tenor is really such that the Government could do better. I would like to see whether the opinion of the House supports that approach.
Piracy
Lord Marlesford Excerpts(12 years, 3 months ago)
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Lord Henley
My Lords, to the best of my knowledge, that is the case, but if I am wrong, of course I will write to the noble Lord.
Lord Marlesford
My Lords, given that the money-laundering regulations, which are part of the law now, make it perfectly clear that any payment made in connection with a criminal activity has to be reported to the government authorities and that consent has to be given before any payments are made, why has there been a de facto exemption in the case of payments negotiated by insurance companies or their representatives for ransoms in connection with piracy, which, whatever else it is, is clearly a criminal activity?
Lord Henley
My Lords, the simple fact is that, much as we deplore the payment of ransoms—Her Majesty's Government have made that clear for some time—they are not illegal as such. That is why, in answer to the supplementary question from the noble Lord, Lord Hannay, I made it clear that the Prime Minister has asked for work to be conducted in this field.
Criminal Records Bureau
Lord Marlesford Excerpts(12 years, 4 months ago)
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Lord Henley
My right honourable friend brought in the review exactly because of those concerns—damage to exchange visits, volunteering and the like. That is why she conducted her review last year and is why we made changes during the course of the Protection of Freedoms Bill.
Lord Marlesford
My Lords, will the Minister try to ensure that the Criminal Records Bureau focuses on areas of real priority? For example, does the bureau hold records of people’s passports, including foreign passports? After all, if you want to stop someone on the watch list leaving or entering the country, it is quite useful to know what passports they hold, including foreign ones.
Lord Henley
My Lords, without notice, I am not sure that I can answer my noble friend’s question about passports, but I shall certainly offer to write to him in due course.
Protection of Freedoms Bill
Lord Marlesford Excerpts(12 years, 4 months ago)
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Lord Selsdon
My Lords, Amendment 1 is grouped on its own. As I am on my own, I will wait for the House to evacuate before I continue.
The amendment follows on from the Private Member’s Bill which I introduced into your Lordships' House and which was passed, which said that people should not be able to go into other people’s homes and property without permission or a court order. At that time we also looked at loitering and the nervousness that was caused by people loitering outside properties, surveillance by television cameras, observance from afar and spying in general, but that was left out.
When we recently dealt with the Bill in Grand Committee, it was suggested to me that certain other areas needed to be dealt with. One related to the amendments to RIPA proposed in the Protection of Freedoms Bill which are designed to address the concern about the use of RIPA powers by public authorities to investigate minor offences. The Minister—the noble Lord, Lord Henley, whom I sometimes regard as being a little bit like “Stonewall” Jackson or Cool Hand Luke, who plays a bat and will not let things go past him—confirmed at that time that he accepted the proposals in the Bill would ban the use of covert surveillance by public bodies to gather evidence of non-serious offences and should be amended to ensure that those public bodies could not then get round the law by adopting evidence obtained by covert means by third parties.
When I introduced an amendment to deal with this loophole in Committee on 13 December, I was encouraged at the time by the words of my noble friend Lord Henley, who agreed to look at this issue to,
“see whether we might come forward with some suitable change”.—[Official Report, 13/12/11; col. GC 329.]
He has not come forward with any suitable change, but I gather that he has it still in the back of his mind. The great thing with my noble friend is to take things from the back of the mind and try to get them as near the front as possible.
It seems that my amendment was what the “pros” call too widely drawn. When it was suggested that I put down another one, I went, as always, to the Public Bill Office. I learnt that you do not put down amendments at Third Reading unless you can demonstrate that the Minister had undertaken to do something and had not done it. I had forgotten about that. We checked the matter very carefully and this amendment was the result. I hope that it can be accepted.
I would like to ask my noble friend about other issues that I raised in Committee. I asked whether, since we had the Powers of Entry Bill, he would be kind enough to take the 1,200 powers of entry that we had identified, print them and put them in the Library. He said that that was not necessary because everything could be done electronically. I have a slight conflict of interest here in that, as a member of the Information Committee, I can tell noble Lords that half your Lordships are not electronically enabled, if that is the phrase. Therefore, they like to think back to:
“Abstract nouns in -io call
Feminina one and all;
Masculine will only be
Things that you can touch or see”.
Your Lordships like to feel pieces of paper from time to time. Therefore, I asked my noble friend whether he would agree to put the list of powers of entry in the Library. He said that he might think about it.
Other matters came up. One of the difficulties with Private Members’ Bills is that Ministers are here today, gone tomorrow and back the next day. A code of conduct was proposed. The Minister said that the Bill would induce a code of conduct. I asked him why it could not be stated. I do not think that he said he would think about that. I understand fully that matters such as powers of entry were tacked on to the Protection of Freedoms Bill. However, some aspects of it seem to me that they might even reduce people’s freedom. We should debate this matter further. I beg to move.
Lord Marlesford
My Lords, I strongly support my noble friend. He is absolutely right to bring back points that have not been answered by the Home Office. The purpose of Parliament in general and your Lordships’ House in particular is to scrutinise legislation and ask questions—and to ask for answers to questions. It is the obligation of the Government to come back with suitable answers that give details as to why particular proposals should not be agreed, rather than to give just a blanket refusal. I am very glad that your Lordships’ House decided to pass my amendment that is now part of Clause 40 and that we now have a much better understanding of the need to constrain powers of entry.
However, my noble friend referred to RIPA, which extended the powers of the police to enter without warrant. That is probably justified in terrorist matters. I accepted that, which is why, in my amendment that the House has accepted, I excluded from the need to have a warrant those powers that RIPA had recently given to the police under subsection (5)(b). On the other hand, it is important that we should be absolutely clear and precise on the extent to which powers of entry or surveillance are used. It is not at all desirable that general powers of surveillance, particularly by non-government bodies, could be used to provide evidence, because the way in which the surveillance is constructed is quite likely not to have been properly supervised and defined.
We must realise that the object of the Bill is to extend the freedoms of this country. It is high time to do that, and I therefore hope the Minister will give a good reply to my noble friend, particularly on the code of conduct, and publish—more clearly than the information that has been published only on computers—the huge list of existing powers of entry.
The Earl of Erroll
My Lords, I should like to make two brief points. The first arises from something I have noticed in the way that we run our procedures, which has changed a lot over the many years I have been here. In the old days, matters often used to be pushed at Committee stage to decide in principle whether we wanted to change something; it was then tidied up on Report; and very little was therefore done at Third Reading. Unfortunately, because nothing is now pushed in Committee, it is pushed first on Report; and we are therefore relying more and more on the Minister or someone else tidying up or fulfilling an obligation at Third Reading. That is much later than used to be the case. We have a rod with which we are beating our own back. We see this happen to other Bills on which we have Committee-style debates on Report, which in reality should be an occasion for tidying up what we have pushed through in Committee. I highly recommend that we return to our old procedure, and we might then spend less time debating some of the other Bills that are going through interminably and tediously.
Secondly, the amendment is fair and it is right that it has been brought forward. It is an interesting and probably good amendment, because it will discourage local authorities or other bodies from doing one of the things that all these provisions were rightly introduced in the Bill by the Government to tackle—to discourage these bodies from using strong powers in order to enforce what we consider to be trivial offences by members of the general public. The amendment is a good generic way of dealing with the problem in principle. It is a sensible amendment that should be passed.
I should add as a minor point that we are watching the same thing happen as regards the power to fine people for littering. The other morning, I heard how a lady in her 70s was fined £80, or whatever the statutory amount is, because a thread fell out of her glove on to the ground. I listened to the local authority trying to defend its action—a thread is not meant to be on the ground and is therefore defined as litter. The case was quite horrific, and I can see exactly the same problem happening in similar cases. I therefore hope that this Government will continue to do what they have done in the Bill. They have made a good first move as regards giving citizens back some rights in certain other areas. This amendment helps in the right direction.
Lord Hodgson of Astley Abbotts
My Lords, I congratulate my noble friend on having brought forward these amendments. I was the subject of stalking for four or five months and a truly terrifying experience it is, too. I was stalked by a woman who rang me at all hours of the day and night and who I believed did not know where I lived. However, the day that I moved house and returned from the other place to my new home, I found a note through the door, saying, “I hope that you will be very happy in your new home”. Such an experience leaves you with an impression that there is somebody out there, waiting for you and watching for you. I am very pleased that the Government have moved on this because it is a very serious social problem.
My stalker was in the end revealed to be much more harmless than many, in the sense that her real name was Anita Hodgson—that is why she had appealed to me. She called herself Anita Windsor and believed that she had been married to Prince Charles and that people were denying her rights to join the Royal Family.
Lord Marlesford
Perhaps I may say a word on Amendments 13 and 14, Amendment 13 already having been referred to by my noble friend the Minister as a government amendment and Amendment 14 being in the name of the former Leader of the House. I support both amendments and rejoice that Amendment 13 sets out exactly the right conditions and constraints on powers of entry. In the first instance, it requires a warrant; in the second, following your Lordships’ amendment on Report, it points out that premises may be entered without the agreement of the occupier in cases where the authority using the power can demonstrate that the aim and use of the power would be frustrated if a warrant or agreement were sought. That is very neatly replicated in the government Amendment 13. I am glad that the Government are at last taking an approach that should be used for all powers of entry. I totally support the Leader of the Opposition’s Amendment 14. Again, it will ensure that the amendment proposed by your Lordships' House on Report is perfectly consistent with all matters connected with the Bill. They are worthwhile changes, as well as dealing with the serious problem of stalking.
Protection of Freedoms Bill
Lord Marlesford Excerpts(12 years, 5 months ago)
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Lord Marlesford
“(3) A further safeguard shall be that, unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises occupier or by warrant.”
Lord Marlesford
My Lords, in moving Amendment 37ZA, and speaking to Amendments 37ZB and 37ZC, on powers of entry, I must say at once that, crucially, the three amendments all go together.
I am grateful to my noble friend the Minister for circulating to us all on Thursday the Home Office view on my amendments. Normally one learns of objections only in the winding-up speech of the Minister, but this useful form of pre-debate negotiation has enabled me to meet at least two of the Home Office points with changes to my amendments. However, I did notice one rather surprising statement in the Home Office brief, and in fact if it were not in both the summary and the main argument I would have been tempted to see it as a misprint. The brief states:
“The Government supports action to remove necessary or unjustified powers of entry”.
That is not what I seek. It is perhaps rather sad to note that the Home Office retains its historic belief in its own omniscience, which I well remember from my days in Whitehall, but it seems to be losing its reputation for accuracy.
The first amendment makes the main point that powers of entry should be used only by agreement with the occupier of premises or with a magistrate’s warrant. The second amendment allows for exceptions where it is obviously necessary to continue with routine inspections and checks without notice being given. The third spells out specific areas where I am not seeking to change existing practice in the use of powers of entry: trading standards, the police and security services, protection of children and vulnerable adults.
The Trading Standards Institute explained to me why it needs its existing powers for its job of protecting consumers; for example, by checking goods in shops or the accuracy of a petrol pump at the petrol station, and so on. I am glad that the institute has been able to assure me and the Official Opposition that it is now content with the amendment, which would enable it to continue with its important and valuable work.
Although the essence of my argument is that powers of entry should be subject to the same constraints as the police who normally and traditionally have to have a warrant, the Home Office has helpfully pointed out to me that the Terrorism Prevention and Investigation Measures Act 2011 has given constables certain new powers to enter without a warrant. That is why I have added Amendment 37ZC to cover the police and security services.
It is also, of course, necessary to continue to allow unannounced entry to those charged with responsibility for the protection of children or vulnerable adults. Thus inspecting old people’s homes, checking on children at risk or similar crucial monitoring functions must be allowed to continue without either warrant or agreement. However, I feel I must emphasise the principle underlying my amendments and why I am doing this at all.
In our country, the right to privacy and to enjoy property or conduct legitimate businesses without state intrusion has been a long-standing freedom. Indeed, it has echoes going back 800 years to Magna Carta, which sought to protect individuals from the Crown and from officials of the Crown. The fact that the police cannot, in general, enter people’s homes or businesses without a magistrate’s warrant is a cherished freedom well-known to the public and has given rise to the ancient phrase, “An Englishman’s home is his castle”, which was coined by the great English jurist Sir Edward Coke, who was responsible for the Petition of Right in 1628.
The law should protect the individual and must never be defied. In 1977, that great icon Lord Denning quoted Thomas Fuller’s 1732 dictum, “Be you ever so high, the law is above you”. The lesson in that, of course, is the huge responsibility that legislators have to ensure that the laws they make enhance and enshrine liberty rather than erode freedom. This, of course, is what this Protection of Freedoms Bill should be seeking to do.
I was disappointed, but perhaps not surprised, that the Minister should have so completely rejected my first two amendments on powers of entry when they were debated, with support from all sides, in Grand Committee, but I am well aware that the Home Office expects to have the monopoly of any improvements to its legislation. However, it is a pity that Ministers in this coalition Government should not have seen their prime duty when this Bill was drafted as being to extend real freedom rather than seeking to protect the territorial rights of the bureaucracy.
For years legislation has surged liked a tidal wave. No Government seem to have the power or even the will to stem it. More and more laws have been passed which give officials of every rank and type the right to enter premises without so much as a by your leave to inspect, check, observe, search or test whatever perfectly honest citizens are doing in their own property. This is something that the public are increasingly aware of and apprehensive about.
The real hero behind my small attempt to reinforce our ancient liberties is my noble friend Lord Selsdon. Over a period of more than a decade he has been accumulating details of the legislation which justifies my amendment. In spite of starting with some obstruction rather than co-operation from Whitehall, he has succeeded in producing a dossier in which there are more than 1,200 separate pieces of legislation giving powers of entry, in most cases without the safeguards we have the right to expect and indeed demand. They cover every sort of issue, right down to demanding entry to a private house to see whether a TV is switched on or, where a person has left a child with the people next door while they go to the cinema, to check whether those people have got a child minder’s licence. I hope that my noble friend will tell us something more about the legislative background to this debate.
Most of these provisions are in secondary legislation—statutory instruments—and it is only recently that Parliament has had the power to examine the merits rather than just the vires of statutory instruments. It does so through the House of Lords Merits of Statutory Instruments Committee, which was established in 2003. This supplements the Statutory Instruments Joint Committee of both Houses. The Merits Committee is doing an excellent job and, interestingly, it has had cause to draw the attention of the House to proposals for fresh powers several times during the past few months.
On 15 December 2011 in Grand Committee the Minister told me that the Home Office felt that my amendments were,
“going a bit too far”,
and suggested that,
“we want to look at all the powers we have and are asking all departments to do so”.—[Official Report, 15/12/11; col. GC 379.]
With more than 1,200 pieces of legislation, noble Lords will realise how little progress would be made. Indeed, I anticipate that the bureaucrats would find a reason why powers should be retained in their existing form in nearly every case. There has been widespread support for my amendments from Liberty, which I much welcome.
I would remind my noble friends on this side of the House that the Conservative manifesto specifically undertook to,
“cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrate’s warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety”.
My amendments seek to support and implement that commitment. I would have expected my noble Lib Dem friends, with their proud commitment to civil liberties, to be chasing the Government on this issue.
Following the principles of the 18th century Whig statesman Edmund Burke, I fervently believe in the role of the state to hold the ring: to protect the population from ill treatment or exploitation. Those who may need such protection include the old and the infirm, children, employees, consumers, savers, investors and many other groups. I would never deny to the state the powers that it needs to provide this protection, but many of the powers of entry as they exist today can intrude, intimidate and even oppress. That is why they need to be constrained.
As this will probably be the last occasion for a decade or so that we have a Bill which is tailor-made for this reform, I shall, if necessary, ask your Lordships to support me in the Lobby on what I hope we can all agree would be a significant step forward for the right of privacy, individual freedom and democracy. As always, the wording of my amendments may not be precisely what the Home Office needs, but provided I can get a commitment from the Minister to do so, I will be happy for the Government to tidy them up at Third Reading. I beg to move.
The Minister of State, Home Office (Lord Henley)
My Lords, we return to an issue that my noble friend discussed in some detail in Committee. He has brought forward his two amendments, Amendments 37ZA and 37ZB, marginally amended in that he has, I think, changed from “owner” to “occupier”, which is probably an improvement in the amendment, and has added Amendment 37ZC, which disapplies the restrictions imposed by Amendments 37ZA and 37ZB in particular circumstances; I will get to that in due course.
I made it quite clear to my noble friend in Committee that I have some sympathy with what he is trying to achieve in dealing with the 1,200 or so powers of entry that we have. We agree—my noble friend and I, and others—that there is a need to add further safeguards to the exercise of those powers of entry. That is why, as part of our coalition agreement—I emphasise that this is part of that; this is a coalition desire—we brought in Clauses 39 to 53 to provide some safeguards relating to the exercise of powers of entry. Where I differ from my noble friend is over his general approach; in particular, we continue to question the wisdom of adopting what would be a blanket, one-size-fits-all approach, which is what he is seeking to do.
I believe that the provisions already in the Bill offer a better way forward. Clause 42 places a duty—I stress that this is a duty—on the responsible Ministers to review each and every power of entry within two years of Royal Assent. I appreciate that there were some complaints from my noble friends Lord Cope and Lord Vinson about just how long that was going to take, but I have to make the point that there are some 1,200 of these powers of entry—of which getting on for half were introduced by the party opposite, the party in which the noble Baroness, Lady Royall, was such a luminary, and therefore I find her remarks on this subject somewhat interesting.
It is important that we review those powers of entry carefully and go through them and we have given ourselves the job to do that within two years of Royal Assent. Clause 40 enables new safeguards to be added to particular powers of entry by order. Again, I make no apology for that, but I remind the House that many of these powers—the majority of them—will already have in them a need to obtain a warrant or some other consent. The idea that all these powers are giving unnamed officials broad powers of entry without having to seek a warrant is just not the case. The majority of them already require that. My noble friend and others have expressed a degree of scepticism that that review will be undertaken. However, I can assure him that it is down there in the Bill; it will be a requirement on us to make sure that review is done within the two years, and that is why it has been written into legislation.
My noble friend Lord Lester also worried about the fact that we were bringing in various Henry VIII powers to make amendments, and felt that that was not in line with what the Joint Committee on Human Rights had asked for. I should make it clear to my noble friend that we responded to the Joint Committee’s report in November last year, and in that reply we pointed out that the Delegated Powers Committee had made no recommendation in respect of those delegated powers that we are assuming. Clause 40 allows us to add safeguards, as proposed by my noble friend Lord Marlesford, in appropriate cases, and we will certainly do that.
I will focus my detailed remarks on Amendment 37ZB, as it was in respect of this amendment that my noble friend’s arguments were, on the face of it, the most seductive. This amendment offers persons exercising a power of entry three options: first, they can obtain the consent of the occupier; secondly, they can obtain a warrant, usually from a magistrates’ court; thirdly, the power may be exercised without a warrant or the agreement of the occupier in any case where it can be shown that the aim of the use of the power would be frustrated if a warrant or agreement were sought.
I hope that there is general agreement that we cannot, in every case, demand that entry is effected only with the consent of the occupier or on the authority of a warrant. To illustrate that point, the House will recall the outbreak of foot and mouth disease where, had requirements such as these applied, I fear the consequences for livestock may have been much greater. Obviously, consent could have been withdrawn, and that carries its own risks.
To take another more recent example, the new Terrorism Prevention and Investigation Measures Act contains a number of powers that grant constables the right to enter and search premises without warrant. For instance, there is a power to enter and search premises if a constable has a reasonable suspicion that the individual who is subject to a TPIM has absconded. In such circumstances, the police clearly must act quickly to check whether the individual has absconded, and if he has, to try to find evidence to help locate him. The law is designed to protect our national interest and provide security to the public but could very well be frustrated by these amendments.
We must also consider the very serious questions of delay, where the exercise of overcaution or prolonged deliberation by the authorities might place at risk the health of animals, individuals or the wider public. Similarly, the need to obtain a warrant or, for instance, locate the occupier of the premises in question in order to get their permission to enter could lead to the loss of valuable time in some cases.
That is not to say, as I made clear at the beginning, that we do not support the use of warrants and seeking consent where that is appropriate. However, as we are all aware, there are a large number of powers of entry that exist today, and operational imperatives differ widely. We do not want to impede an authority’s ability to respond to matters effectively and to take decisive action, and so we consider that such operational decisions are best taken by the relevant authorities.
My noble friend has argued that his Amendment 37ZA caters for such circumstances by providing a let-out in stating that,
“where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.
However, I do not accept that this provides the answer. It is not entirely clear to whom any urgent or unannounced need to enter premises should be demonstrated and proven. The approach taken in this amendment could lead to endless, time-consuming and expensive litigation, with aggrieved persons challenging the lawfulness of the exercise of a power of entry in a particular case, as my noble friend Lady Hamwee made clear. Such a challenge could be mounted on the grounds that the public authority in question had not demonstrated that the given exercise of the power of entry would have been frustrated if the agreement of the occupier had been sought or a warrant obtained. I hope that was not what my noble friend was intending when he drafted his amendments, but I fear that it could be the likely outcome.
I appreciate that there have been concerns, expressed by the noble Lord, Lord Borrie, and my noble friend Lady Eaton, relating to the Trading Standards Institute and the Local Government Association, which raised some concerns about Amendment 37ZA and 37ZB along the lines that I have set out. I appreciate also that my noble friend Lord Marlesford was trying to deal with those concerns by tabling Amendment 37ZC. In a sense his amendment makes my case for me, because at its heart is an acknowledgment that one size does not fit all, and that there must be exceptions to the blanket restrictions that my noble friend is seeking to impose by means of his Amendments 37ZA and 37ZB.
However, in providing exceptions purely for trading standards officers—undefined, as my noble friend Lady Eaton said—constables and members of the Security Service, or in pursuance of the protection of a child or a vulnerable adult, Amendment 37ZC simply highlights the fact that there will be other circumstances where the exception should apply. What about the powers of entry under the Gas Safety (Rights of Entry) Regulations 1996? I carefully took an example from a previous Conservative Government rather than from the previous Labour Government. These regulations offer powers of entry to premises for the purposes of preventing gas escapes, surely something that is very important—it would be necessary to move very quickly and there might not be time to obtain a warrant.
What about the powers to enter and search for evidence on premises occupied or controlled by a person who is under arrest for an indictable offence? Such powers are not just exercisable by constables but also by customs officers, immigration officers and members of the Serious Organised Crime Agency. To give another example, what about the powers of firefighters under the Fire and Rescue Services Act 2004 to enter premises without consent for the purposes of protecting life and property? I put it to my noble friend and to the House that the exception should apply equally in those cases.
I could provide more examples—I am sure there will be others—but until we have conducted the review I have promised, and which the statute makes clear will happen, it will be impossible to say with confidence that these amendments would not seriously inhibit the ability of law enforcement officers and others to protect the public.
As I have indicated, we wish to achieve an aim similar to the one my noble friend suggests. The new Home Office gateway has already removed in some cases—I can give this assurance to my noble friend Lord Cope—the right to enter private homes unless accompanied by a warrant. These include regulations relating to forestry law enforcement, wine manufacture and inspecting animals for disease. We have said that notice must be provided where it is reasonable to do so and appointments must be made with home owners and businesses before powers are exercised.
As I have mentioned, we will be reviewing all 1,200 or so powers of entry, and Clause 40 allows us to add necessary new safeguards on a case-by-case basis. The new code of practice, about which my noble friend Lord Selsdon was cynical, will be introduced under Clause 47 and will govern the exercise of powers of entry and set out further safeguards to protect the rights and civil liberties of individuals and businesses.
I put it to my noble friend that this is a preferable approach which provides greater legal certainty. I therefore ask him to withdraw his amendment. However, if he should seek the opinion of the House, I would encourage your Lordships to reject the amendment.
Lord Marlesford
My Lords, I thank everyone who has taken part in this interesting and useful debate. I was drawn to the clarity with which the legal mind of the noble and learned Lord, Lord Scott, approached the issue; there is much attraction in it. However, the concessions I have made, which have been referred to, were intended to meet some of the points raised.
The noble Lord, Lord Borrie, was able to produce many arguments about why, in some way or other, the proposal had not gone far enough—even in the case of trading standards officers, who have expressed complete satisfaction with what I have done.
I listened with great interest to my noble friend Lady Eaton, who gave a full account of a case in Yorkshire. I am sure it was an important, useful and maybe typical case, but I found myself thinking that had the people involved needed to get a warrant they would have been able to execute the case every bit as effectively as they did without one because the timescale she described would have made it perfectly possible.
The noble Lord, Lord Neill of Bladen, made a good point. The tendency at the moment, which has grown up over the years, is that if you want an extra power of entry you just stick it in. That has been the culture which, in a sense, we are trying to counter.
The noble Lord, Lord Lester, produced, as he so often does, the human rights legislation as being the solution to it all. I would remind him—well, not remind him because he knows it as well as I do, as do most of your Lordships—that human rights legislation, although desirable in theory, is about the slowest and most expensive route for correcting wrongs as can be imagined. The European Court of Human Rights is absolutely bunged full and is years and years behind. I would strongly recommend that we find a better route for anything which depended on using it. I see that the noble Lord is about to make a further defence of the Human Rights Act. I give way to him.
Lord Lester of Herne Hill
I was not going to do that; I was going to point out that the remedy is in our courts, not in Strasbourg, to get an injunction or compensation under the Human Rights Act.
Lord Marlesford
Of course, if people do not like what our courts say, they go to the European Court of Human Rights. Most astonishingly trivial cases have been put to it. My right honourable friend the Prime Minister had some phrase for the multitude of cases going to the European Court of Human Rights. With the greatest respect and affection for my noble friend Lord Lester, I suggest that we do not use the European Court of Human Rights as a solution to these particular problems.
The Minister produced the same arguments as last time. He expressed a degree of sympathy but he did not answer in any detail the concerns of my noble friends over the progress of this review. All this debate has done, in a sense, is illustrate the way in which people will always find some ingenious argument or other to support a position. I remember my noble friend Lord Hurd, when he was a junior diplomat in Beijing—I think it was his first posting—writing a letter, which I was shown, to a certain noble Lord about a visit to Beijing of a senior politician who he described as being inclined to take up an impossible position and then cast around for clever ways of supporting it. The noble Lord, Lord Hurd, saw this as the sure mark of a second-class mind. I thought that was pretty damning but there is a danger of trying to find arguments against this. I do not feel that any substantial argument has been put forward.
The noble Earl, Lord Erroll, got it right when he said that if we do not pass this now, nothing will happen. We have had years of nothing happening. I was grateful for the support of the Leader of the Opposition when she said that we must at least get the Government to come back at Third Reading with something. Otherwise, this whole issue will clearly go to sleep again. Over the past few years we have had a surfeit of ill prepared legislation. It is our duty to improve it, whatever the Whips may say. Otherwise, it is hard to justify the survival of your Lordships’ House. I would like to test the opinion of the House.
Lord Marlesford
“(4) A further safeguard shall be that, notwithstanding the statute providing for the power of entry, a power of entry may only be used without warrant, or without agreement with the occupier of the premises to be entered, in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought.”
Protection of Freedoms Bill
Lord Marlesford Excerpts(12 years, 5 months ago)
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Lord Campbell-Savours
I put the same proposition more seriously. I am convinced that there is much support throughout the United Kingdom for the establishment of such a database. I have no evidence, apart from anecdotal evidence and conversations. However, I believe that many people out there would have no problem donating their DNA to such a database. The huge and undeniable benefit of going down the voluntary database route is that it would greatly help to take the stigma out of DNA retention and would help to develop public recognition of the benefit of retaining DNA. The bigger the voluntary database, the lower the level of stigma will be.
It is inevitable that over this century the state will hold more and more information in secure conditions. Better that the collection of such information be organised in a thought-out and structured manner rather than in conditions of panic when the state feels so much under threat that its only response is overreaction, with resultant confusion in policies on law and order.
We are slowly moving into a world where the measure of our freedom is dependent on our freedom to walk where we wish, live where we wish, travel where we wish, interact with others where we wish, transact where we wish and live longer without fear of assault on our person, our possessions and our civil rights. That will require some data to be held on us as individuals. I believe that there are many millions out there who are prepared to invest in the protection of their freedom. For me, the question is not so much the nature of the data to be held—I think that at the end of a national debate we can agree on that—but how we can arrive at a point where the public have swallowed their misgivings and reservations about the secure handling of data. As the former Metropolitan Police Detective Chief Inspector Colin Sutton put it in the Times two weeks ago:
“We are seemingly happy to attach biometrics to our passports—and therefore to our identities—but fearful of DNA. Our data-dependent society requires everyone to be ‘on the system’”.
As the senior judge Lord Justice Sedley put it in the Times on 6 September 2007:
“Where we are at the moment is indefensible. We have a situation where if you happen to have been in the hands of the police, then your DNA is on permanent record. If you haven’t, it isn’t … It also means that a great many people who are walking the streets, and whose DNA would show them guilty of crimes, go free”.
He went on to say that expanding the database to cover the whole population had,
“very serious but manageable implications”.
We then have the very interesting comments of Professor Sir Alec Jeffreys in his evidence to the Commons Home Affairs Select Committee on 3 February 2010. Sir Alec was described by the chairman of the committee as the person who,
“invented techniques for DNA fingerprinting in 1984”,
and as,
“the person who … invented this course of genetics”.
Sir Alec fathered the scheme proposed by the Government in the Bill. It was he who called upon the Home Office to adopt the Scottish model due to his profound concerns over the operation of the DNA regime in England and Wales at that time. To be fair to him, I quote his response to Gary Streeter MP’s questions in its entirety, but briefly. Gary Streeter asked him:
“Do you think it would be fair if the police did not just keep the samples from the people they have arrested who turn out to be innocent but if we were all on the database? How would you feel about that? Would that be a better system than the current system?”.
Professor Sir Alec Jeffreys replied:
“It would be a much less discriminatory system. I do not want to discuss the issue of discrimination against certain classes of our society, but it would get rid of issues of discrimination. I personally would be very uncomfortable with the idea that the police would have such a database. My vision would be of a parallel database … that would allow the police to keep their criminal DNA database and then one can image how those two could possibly interface. Very, very interestingly, the United Arab Emirates has agreed to go ahead with mandatory databasing of the entire population—and without any change in legislation, as far as I can tell. They intend doing that over the next few years. There is an experiment that is about to start which will greatly merit a very careful watch, to see whether it really does impact on criminal detection or whether it is seen by the UAE society as much more of a surveillance tool—which would be my worry, I have to say”.
This is the man who basically invented this whole science.
My amendment is but a tentative step down that route. The reference to “categorising of donors” is the move towards the parallel database. There are a number of questions that would need answers if we were to proceed with a voluntary DNA database. What is the cost to be? Who will pay for it? What is the scale of public support? What security arrangements could be put in place to protect such data? What arrangements could be made for the removal of data? Who would have access to the data? How would one categorise data so as to de-stigmatise the retention of data while allowing for the transfer of data between the various categories?
These questions would be the subject of inquiry, investigation and debate within the National DNA Database Strategy Board, which is what I am recommending in my amendment. I have used the board as a peg on which Parliament would place the responsibility for taking the whole enterprise forward. I beg to move.
Lord Marlesford
My Lords, I strongly support the noble Lord, Lord Campbell-Savours. He is merely putting forward, probably before his time, something that will inevitably come. The sad thing is, as we have more and more science at our disposal to improve the standard of our lives throughout the world, every now and again it is resisted. There is nothing new in that; it is always happening.
When the noble Lord was speaking, what immediately occurred to me as a good example of scientific progress that is being rejected in some areas at the moment is GM foods. There have even been examples of modern vaccinations being rejected. Clearly, DNA being the most certain of the biometrics currently available is something that will come. It is used in other countries. There is nothing sinister about it. The noble Lord’s idea of a voluntary database is extremely sensible and a very good way of moving forward.
Of course one has to recognise the cultural inhibitions and the emotional barriers to doing these things. I always felt that the problem with the identity card system that the previous Government aspired to and which the current Government have scrapped was not the identity part of it but the cards, because people saw identity cards as being echoes of fascism and totalitarianism of various sorts. In any case, the card itself is quite a dangerous thing. The great thing about biometrics is that if you want to know who someone is, you have the biometric and thus the person. If you want to check whether A is who he or she says they are, you take the biometric. You cannot compare the person with a card, because a good criminal or a good terrorist would ensure that the chip on the card matched themselves, but you can compare them with a fundamental base. This will come. Of course, as the noble Lord said, we are in a complicated society in which people move, but the global economy is nothing compared with the global society in which we will move, and as this happens we have to be able to dispose of resources efficiently to help people who need help rather than those who do not, and of course to fight crime as well. We have to have the means of knowing who people are. What the noble Lord suggests is thoroughly sensible, and as it would give the Government only the powers to do it I hope that they will look at it very carefully.
Protection of Freedoms Bill
Lord Marlesford Excerpts(12 years, 7 months ago)
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Lord Marlesford
“( ) A further safeguard shall be that, unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises owner or by warrant.”
Lord Marlesford
My Lords, in moving Amendment 133 I shall speak also to Amendment 134. Amendment 133 requires that powers of entry to premises already enshrined in the law or which are part of future legislation should be exercised by agreement or by warrant. Amendment 134 would allow the authority using the powers of entry enshrined in law to do so without agreement or warrant if the authority can demonstrate that,
“the aim of the use of the power would be frustrated if a warrant or agreement were sought”.
I shall of course give examples of how this amendment would apply.
I shall start from the historical perspective. For many centuries the rights of owners and occupiers of property have been argued over, disputed, defended and invaded. This all starts with Roman law, pre-Norman law, the Magna Carta and the Great Charter of Liberties and the Petition of Right, 1628, and goes right up to Article 8 of the European Convention on Human Rights, as the noble Baroness said.
Indeed, the protection of property rights, privacy and quiet enjoyment, whether of ownership, tenure or occupation, has come to be seen as an important aspect of a civilised and, ultimately, democratic society. It is therefore entirely appropriate that a Bill entitled Protection of Freedoms should have a part dealing with powers of entry. It does, indeed, form an ideal vehicle for us to discuss the ideas underlying my amendments, which do not in any way conflict with Clause 42 to which my noble friend the Minister has just referred.
We are all deeply indebted to my noble friend Lord Selsdon for all the work that he has done on this matter over many years. He has gathered it all together in a most scholarly volume, which he showed me yesterday. I doubt whether anyone knows more about this subject than he does. He is a wonderful example of the expertise—in this case, pretty esoteric perhaps—which resides in the House of Lords in its present form. He has uncovered an extraordinary number of pieces of legislation which allow virtually unfettered powers of entry to private premises for the officers or representatives of many different government and other bodies. These powers of entry have multiplied at an extraordinary rate. I think, at the latest count in his schedule, there are more than 1,200 of them. As my noble friend mentioned, there was an attempt in 1954 by the relatively young Lord Hailsham to deal with powers of entry, which I think related to the powers of electricity companies. I wish to quote a tiny bit from Hansard. Lord Hailsham said:
“For 200 years or thereabouts, the inhabitants of this country slept peacefully in their beds, in the supposition that the late John Wilkes had successfully established the proposition that their houses could not be entered without a warrant”.—[Official Report, 24/2/1954; col. 1127.]
The real paradox is that the sanctity of property has always been most vigorously protected by the fact that in this country in general the police have been required to obtain a warrant from a magistrate. I believe it is high time that the hitherto unchecked expansion of the right to enter property should be brought into line with the constraints to which the police are subject.
My Amendment 133 refers to entry by agreement. In almost every instance there is absolutely no reason why an entirely satisfactory arrangement should not be made between the property owner and the powers for whatever inspection may be necessary; and, indeed, it very often is. However, the fact remains that there is a feeling that the extent to which official busybodies are allowed to arrive unannounced and demand entry for whatever purpose they desire has aroused widespread and atavistic resentment, which itself generates a feeling of alienation from the state. That is something which any democratic Government should seek to counter. Indeed, my own party, the Conservative Party, gave specific undertakings in its manifesto which my noble friend has quoted. It is disappointing that so far we have not seen action, but this is a moment when action can be taken.
I recognise that there are cases where the whole purpose of the entry for inspection has to be an unannounced event. I refer to a couple of examples. The first and most obvious one is the everyday work of trading standards officers who need to enter premises such as shops and restaurants to look at the kitchens and make sure that hygiene and other standards of service are being met. Another group concerns those who inspect old people’s homes and other such premises. That is why I have included my Amendment 134 as a safeguard.
My noble friend Lord Phillips of Sudbury had hoped to speak to these amendments but he has had to go to another meeting, but he has asked me to say that he supports them. I very much hope that my noble friend the Minister will not only accept but welcome what I am trying to do. I shall of course be perfectly happy for him to tell me that he would wish to knock the wording into better shape, although I personally think it is pretty good, having been drafted by our admirable Public Bill Office to which we all owe such a debt of gratitude. I beg to move.
Lord Henley
I well understand what the noble Baroness is saying. As we all know, statute is not written in a language that most of us find that easy to understand—although I have no doubt the noble and learned Lord finds it easy to understand. Codes of conduct are obviously written in a manner that we hope will be understandable by all those who have to either make use of them or who will be affected by them. I am sure that as codes of conduct are drawn up, the strictures the noble Baroness has mentioned will be taken into account.
Lord Marlesford
My Lords, I thank the noble and learned Lord, Lord Scott, for his very powerful support, which I think the Government should take very considerable note of. The Minister gave no indication of any real sympathy with this. The examples he gave from the Defra thing of course are covered extremely well by my second amendment, which says quite clearly that where the purpose of the exercise of the power of entry would be in any way frustrated by having to get agreement, or even a warrant, that that could be justified under the present situation.
As the noble Earl, Lord Erroll, said, this is a very important subject, and he made some very useful points. We shall certainly return to it on Report. I believe that there will be widespread support on all sides of your Lordships’ House for what we are trying to do. If there is any chance of having constructive conversations with the Home Office—which I rather doubt—I would be happy to have such discussions. However, at the moment I absolutely reject the idea that this one-by-one study in any way replaces what I want, which is a much more constrained, sensible and proper use of powers of entry. Although in the mean time I have to withdraw the amendments, we shall be returning in full force to them on Report.
Protection of Freedoms Bill
Lord Marlesford Excerpts(12 years, 7 months ago)
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Lord Selsdon
My Lords, I have asked more questions on CCTV cameras in your Lordships’ House than anybody, I think, and I have been confused. The figure of 4.2 million was introduced twice by Labour Ministers in the past; there was also a code of good practice. It was estimated that there were 400,000 cameras in the London area alone. Some of the other estimates which led to private television cameras said that there was one for every three office buildings. I therefore support in principle the proposal that we should have more information. By my own knowledge from throughout the continent of Europe, we are the only country that has no knowledge of how many CCTV cameras we have, or of the latest technology that comes with them.
I will give your Lordships only one example. French policemen now have wonderful helmets, partly British designed, which have two cameras in the front and two in the back. As the French do not charge you for having a licence for a car, they make quite a lot of money out of some speeding offences but that technology is quite remarkable. I find it strange that we have not yet embarked on any programme to determine how many cameras there are and who they might belong to.
Lord Marlesford
My Lords, I should first declare an interest as I have CCTV cameras around my house. My main point is that the emphasis has perhaps very much been on what is to some extent a sort of fear and constraint: “Let’s find out how much”. I can see that, absolutely. However, CCTV is actually one of the great advances in protection, liberty and freedom and in having a safer society. I would always caution against standing against it. I recollect very well that many years ago when Citizens’ Band radio first came out, the Home Office in those days was very opposed to it. It reckoned that radio communications were for the broadcasting authorities, the military, the emergency services and itself. For a long while, people were illegally using CB radios but eventually the Home Office came round to recognising that CB radios, and any other intercom system by wireless, was a perfectly legitimate method of life. It is now in the ultimate in the mobile phone.
I can see that information is always interesting to get, but sometimes a survey such as this can be very expensive. There could be a commercial interest; no doubt, companies who supply mobile phone networks and, indeed, the hardware for mobile phones do a great deal of market research in order to maximise their sales all over the world. However, one wants to be quite careful before one takes something which has become an absolutely standard method of life and starts to spend a lot of money—public money in particular—in making great inquiries into it. I am happy for the commercial people to spend their money.
The example of the police in France was fascinating, and I had not heard about that. I do not think that we must do anything which stands in the path of progress in using modern technology. CCTV is not a particularly modern technology but it is an absolutely everyday technology. All of that said, there must of course be constraints on abuse or misuse of a technology. That is all I would like to say.
Lord Henley
My Lords, I can be quite brief on this. I start by agreeing with the noble Lord, Lord Rosser, that CCTV is a vital tool in fighting crime. I believe that the public and the police are generally supportive of its use. The provisions in the Bill build on that support and will, I hope, maintain public confidence in the use of CCTV. However, as we saw with Project Champion in Birmingham—the noble Lord will remember this—such confidence can be very rapidly undermined if CCTV systems are seen as spying on local communities, rather than as a tool that helps keep them safe and secure. Therefore, we propose that our code of practice—for which guidance is set out in Clause 29—will form a coherent framework that will enable the public to challenge any system operator over how and why they use CCTV. It will also assist operators in maximising the effectiveness of their systems.
Calling for an inquiry is not only a very expensive option, as suggested by my noble friend Lord Marlesford, at a time when we do not want to spend money on such things, but also adds very little other than delay to the proposed code of practice, which will help to ensure the right balance between protecting the privacy of the citizen and the security and safety of the public. Our approach is designed to make sure that those using CCTV do so appropriately, proportionately, transparently and effectively. I think that was broadly endorsed by the various responses to our consultation.
UK Border Agency
Lord Marlesford Excerpts(12 years, 8 months ago)
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Lord Henley
My Lords, on the delays, the border agency is largely meeting the targets imposed on it. The noble Lord will no doubt have examples of some pretty severe delays, but in the main, at something like 95 per cent of all locations, the agency is processing individuals with the appropriate speed. As for the noble Lord’s final remarks, all we are saying is that it seems that this official, or these officials, went beyond what Ministers authorised. That is why this process is taking place.
Lord Marlesford
Does my noble friend agree that there have been repeated occasions when the incompetence of the Home Office immigration department has been denounced, going back to a time when the noble Lord, Lord Reid—who in my view was a very effective Home Secretary—declared the department not fit for purpose? On that occasion the head of the department was actually promoted to be Permanent Secretary at the Ministry of Defence. Is my noble friend aware that not only are we deeply disturbed by the apparent incompetence being revealed, but that there have been press reports over the weekend of criminal corruption at the heart of the service in the headquarters at Lunar House? That is deeply worrying. Will he add to the inquiry’s terms of reference the possibility of replacing the top operational command of this service, currently exercised by Home Office officials, with the appointment of retired military officers who have spent their professional lives defending the realm?
Lord Henley
On my noble friend’s first point, I am aware that there has been a certain amount of criticism over the years of the various controls that we have on our borders—going back, as he pointed out, to Mr John Reid, now the noble Lord, Lord Reid, and others. We are trying to put that right. My noble friend also commented on criminal activity within the UK Border Force. No doubt they are only allegations at this stage, and are another matter that it will be permissible for Mr John Vine to look at in his review. As I said earlier, at the moment we are still discussing the draft terms of reference for the review, but I am sure that he would be more than happy to look at matters of that sort as well.
Lord Henley
My Lords, I think that the noble Lord is trying to take the inquiry on to other, equally important matters which should be looked at. We want John Vine to be able to report by January of next year. Therefore, he should focus on the issues in front of us—that is, why officials were going beyond what was authorised by Ministers, and what Ministers authorised.
Lord Marlesford
My Lords, will my noble friend comment on my suggestion that the Vine terms of reference should include the possibility of bringing in the retired military to run this service in the future?
Lord Henley
My Lords, I am sure that Mr Vine will have noted what my noble friend had to say. I am not going to comment at this stage.
Police Reform and Social Responsibility Bill
Lord Marlesford Excerpts(13 years ago)
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Lord Marlesford
“Parliament Square committee
(1) Within six months of the passing of this Act, the Secretary of State shall by regulations establish a committee with responsibility for managing the controlled area of Parliament Square.
(2) The committee’s members shall be representatives of—
(a) all of the bodies which own or have responsibility for the controlled area of Parliament Square, and(b) the metropolitan police force.(3) The committee shall co-ordinate the work of its members in order to ensure that the controlled area of Parliament Square is kept clear of litter, detritus or other debris.
(4) The Committee shall report annually to both Houses of Parliament.”
Lord Marlesford
My Lords, we now move to the Parliament Square elements of this Bill. In moving Amendment 306A and speaking to Amendment 306B, which are very much interlinked, I am trying to save the Government from themselves. We are all agreed on the need for something to be done about Parliament Square and I think we are agreed on what should be done. Parliament Square is an appropriate place to have protests but at the moment it is completely out of control as a result of the encampments. In recent weeks and months, the encampments have grown greatly. A few months ago there were only eight tents; now there are over 30. In fact, a lot of Parliament Square has been taken over not so much by protesters but by rough sleepers. Obviously something has to be done. I am not producing the final word on this but I am producing what I believe to be a much more sensible and workable solution than the one in the Government’s own Bill.
We are all agreed on the need to end encampments, but I am seeking to remove Clause 147 and to replace it, in Amendment 306B, with my own clause. First, we have to look at Clause 145, which I am not in any way interfering with. It sets out provisions making the encampments illegal and sets out very clearly and in great detail how the tents and sleeping equipment should be classified. It says,
“‘sleeping equipment’ means any sleeping bag, mattress or other similar item designed, or adapted, (solely or mainly) for the purpose of facilitating sleeping in a place”.
That is a perfectly sensible and very wide definition, and of course cardboard boxes could be added because people sometimes adapt them to sleep in. But in a moment we will come to what I do not like in the Bill and noble Lords will see why it is rather inappropriate, not as a definition, but because of Clause 147.
Clause 147 spells out the terms and conditions for the seizure by the police of all the items listed in Clause 145. One of the problems of Parliament Square is that it has always been the responsibility of lots of different bodies: the Greater London Authority, Westminster City Council, the Metropolitan Police, and to some extent the Highways Agency. We want one committee—I do not mind terribly how it is organised—with representatives from all the bodies so that together they can run the thing in a sensible manner. That is set out in Amendment 306A.
Amendment 306B has been tabled because I really do not think that Clause 147 is an appropriate way of doing this. The police are to be asked to seize all these things. Clause 147(4) authorises the police to,
“use reasonable force … in exercising a power of seizure”.
Normally the word “seizure” is used for drugs, weapons, documents relating to serious organised crime and so forth. Are the police really to be used to seize blankets? Is there not a better way? And then what are the police to do with the things they seize? It is all laid out in Clause 147, which I wish to replace. Clause 147(5) states:
“An item seized under this section must be returned to the person from whom it was seized … no later than the end of the period of 28 days beginning with the day on which the item was seized”.
Does that make sense? Clause 147(6) goes on to state:
“If it is not possible to return an item under subsection (5) because the name or address of the person from whom it was seized is not known … the item may be returned to any other person appearing to have rights in the property who has come forward to claim it, or … if there is no such person, the item may be disposed of or destroyed at any time after the end of the period of 90 days beginning with the day on which the item was seized”.
We are aware of a shortage of police. Are they really to be given the role of maintaining tents, sleeping bags, mattresses and cardboard boxes until the appropriate time and seeking, no doubt diligently, to find out who they originally belonged to and returning them to their rightful owners? I am all in favour of the laws and rights of property, but this is a rather expensive way of doing it. Is it surprising that Councillor Colin Barrow, the leader of Westminster City Council, wrote to the noble Lord, Lord Campbell-Savours explaining why the proposals in the Bill simply will not work?
I fear that the Home Office is displaying a deep angst about this matter. I can see why that has been generated because when we had the democracy village on the green bit of Parliament Square, it took almost £1 million in legal fees to remove it. It was a tremendous performance. However, once the courts had ruled, it was eventually removed with remarkably little aggravation because in general people obey the law, provided that the law is in place.
We come now to my proposal, which is much simpler. The proposed committee will run Parliament Square, helping to decide what is appropriate in terms of demonstrations and all that, and of course we all start from the presumption that demonstrations are a good thing. The committee will have the power to authorise the removal of the items set out by the Government, but that will not be done by the police. Subsection (3) of my proposed clause simply states:
“The committee shall ensure that between midnight and 6am every night any items listed in subsection (2) are removed”.
I do not intend for this material to be removed by the police, but probably by Westminster City Council’s refuse removal people. That is a simple, unprovocative and unconfrontational method, and in general, people do not confront those who are kind enough to remove rubbish. Although I admit that it may be necessary in the first few days for the police to be present, I believe that it will quite quickly settle down given how quickly the democracy village came to an end. If people wish to bring their tents, they will have 18 hours out of 24 in which they can have them, but, on the whole, you have a tent because you want to sleep in it. If it is going to be removed at midnight and you then have six hours without it, the chances are that you will make your sleeping arrangements in a different manner.
My proposal is moderate and limited; it genuinely seeks to help the Government to achieve what we all want and what they have tried to achieve not quite so elegantly in their Bill. I beg to move.
Lord Marlesford
My Lords, I am most grateful to all noble Lords who have taken part in this debate. I never pretended that this was the last word. I am disappointed that the Government feel that their Bill is the last word. I am delighted to hear that the Minister will discuss these matters in more detail with Westminster City Council. I find it a little strange that the letter from which the noble Lord, Lord Campbell-Savours, quoted was written as recently as 21 June. After all, the Government have had this Bill in gestation for many months. If I had been on Westminster City Council, I, too, would have been a little miffed if I appeared to have been ignored.
To answer the noble Lord, Lord Armstrong, and others, the committee will certainly be all-embracing. Whoever should be on it will be on it. It will not have to sit all the time; it will have a, presumably very small, permanent staff—perhaps someone seconded from the Met, someone from Westminster City Council and someone from here who will keep a watching brief for us. I was surprised when the Minister said that she did not know whether the committee would report to her. My amendment says:
“The Committee shall report annually to both Houses of Parliament”.
I do not say that that is necessarily the right idea, but for her to say that I have made no provision for reporting is simply not true. It is in the amendment. My worry is that the Home Office just does not like ideas from outside. It does not even read them; it just rejects them, which is disappointing. Given the Minister’s answer, and to encourage the Government to think a little more, I should like to test the opinion of the House.