Protection of Freedoms Bill

Lord Selsdon Excerpts

Tuesday 8th November 2011 Lords Chamber

[Lord Selsdon]

My Lords, I suppose that freedom and privacy are two of the most important things in my life. My interest in this matter goes back many years to the banking world, when we had the phrases “duty of care” to your customer and “know thy customer”. I found as time went by that nobody knew anybody: you did not know the gasman; you did not know the postman. Strangers started to appear on the doorstep. In the banking world, we were concerned particularly to protect our clients from all sorts of invasions. This started for me and my colleagues along the lines of, “We had better introduce a Bill”, so, way back in the 1970s, we drafted the protection of privacy Bill, because it was about privacy that we were concerned. Gradually, we found that there were more and more opportunities for government or outside bodies to enter people’s property without permission and do all sorts of strange things, whether or not it was the gasman. This led to my drafting, with considerable help, the Powers of Entry etc. Bill.

This was done initially with the help of a professor from Lincoln University, Richard Stone, who produced the authoritative book, The Law of Entry, Search and Seizure. I began by asking Ministers questions—I think there were well over 100, or maybe 200—as to what the powers of entry were. They did not know the answer, and the standard response was, “The information is not centrally available”. They did not say that the cost of getting it was too much. So I drew people’s attention to the book and put it in the Library, and certain Ministers began to reply. Then, rather to my surprise, the Labour Party and Government became interested and were extraordinarily helpful. Gordon Brown made an announcement at Downing Street that we must do something to control the abilities of people to enter people’s homes without their permission. The Bill, which, as I said, was called the Powers of Entry etc. Bill, lasted about three years. There were three editions, and the final one passed the House with the great help of the Labour Government in March last year.

I have learnt in this place that you never get a Private Member’s Bill through unless you find someone who picks it up in the Commons after winning a ballot. You have to drip-feed the right people in the right way, and watch the stalactites and stalagmites grow. It was therefore a great pleasure to me when we finally got this through with the help of the noble Lord, Lord West, despite the objections of his officials at the Home Office for quite a period of time. We had a Public Bill Committee, which people from all parts of the House served on, and I was lucky enough in the end to get the Home Office to join in. I would mention the name of the man in the Home Office—he was brilliant. Together, we found our starting point was 150, then 250, then 300 pieces of primary or secondary legislation. Then the Home Office, working often through the night, arrived at somewhere around 2,500. Of course they change.

However, who can go into whose house? We thought that it might be right to say that, first, they should knock on the door and say who they are, and then perhaps they should prove who they are. They should probably not do it in the middle of the night and they should probably not do it on a Sunday, they should wear good clothes, and they should possibly have something to say, such as, “I am here for this reason”. Your Lordships will have seen in the press from time to time many occasions when, because a postcode was wrong or the wrong button was pressed, someone beat down the door of someone else’s house, took something away or caused problems. What pleased me so much about this was that, gradually, people became interested. I knew the Government would not necessarily take it up, so I was so grateful that the Labour Government lost the election, because it gave me a chance to put a bit of pressure on the Conservative Government, one of whose wise men rang me in the middle of the night when I was abroad and said, “Your Bill is going to be adopted when we win the election”. I said that I would wait and see whether that happened or not.

Anyway, I did not hear much more. Then, suddenly, the Protection of Freedoms Bill emerged and the powers of entry were within it, bearing some resemblance to what I and my team had done. However, the government system had failed to recognise that we did not leave it by pushing a Bill for someone else to take up and do all the work on. We had communicated. I had written to every local authority in the land and asked for their views. I had written to every bishop and asked him to get in touch with the parish councils. We had written to every one of the bodies that had powers of entry asking for their advice and guidance, and I had put out a website that went right the way around different parts of the world. More than that, we had drafted a petition and were just looking for the 100,000 signatures in order to present a petition at the Box. This was all with the help of the Public Bill Office and the people in the House of Lords.

I am now extremely grateful as I stand opposite the noble Baroness, Lady Royall, and I thank her so much for the help of her Government and ask whether she will help me to persuade this Government to do things in the right way. They started off correctly, but I am glad they put the powers of entry section into another box, as it was pretty useless. It did not even list all the powers, because they change from day to day, but said they would introduce a code of conduct.

I wanted to know what that code of conduct did, because the Bill that we had already had said that you must not go into someone else’s property, office or place of work without permission or a court order. Now it is the court order that has not yet appeared, because it is relatively easy for anyone to obtain one at any time. The noble and learned Lord, Lord Scott of Foscote, was on our team. As your noble Lordships will know, he hunts quite regularly and said that he could even issue an order from the back of a horse if necessary. The issuing of orders is not a problem. We took out one particular area within the Bill that was quite important and that separated the powers of entry from everything else—a saving. It said:

“Nothing in this Act shall apply to the issue or execution of warrants in connection with indictable offences, including terrorist offences”.

So it was really about only commercial or other searches. I had some sympathy for the trading standards officers who took me back to the original Truck Acts, which go back over a long, long period. They had a point when they said that when people were mistrading or behaving badly they had to have the right to go in pretty quickly before the goods had gone.

I now ask the Government whether they would be kind enough to help me. They have listed the powers of entry in the Bill, but they have said they will produce a code of conduct. We do not really need a code of conduct, we need the permission in effect to require that powers are granted for the issue of rights of entry, that you should list them all, and, more than that, that you have the schedule that is necessary here.

The powers of entry all change regularly, and this is where we come to that strange thing, Henry VIII clauses, which I am not terrible well briefed on. The Public Bill Office asked me, perfectly simply, “What do you want to do?”. I said that I wanted to stop the Government doing the wrong things in the wrong way at the wrong time. This came to the fact that maybe the Government should not be allowed to introduce any new powers of entry without primary legislation but should be allowed to remove any unnecessary powers of entry on their own.

I sit down with a simple point; when we come to Committee, I will try to introduce that part of the Bill that we did together to save the Government time and money. If they are going to follow the proposal that they are laying down here, it will be two to three years before they manage to get everything sorted out. In the mean time, my great friend and colleague Professor Richard Stone has got the Oxford University Press to agree to issue a new edition of The Law of Entry, Search and Seizure, which will come out quickly. It would be a pity if that came out before the Government had got their act together. I am going to put pressure on my noble friend on the Front Bench when the Bill comes to Committee and ask for his support. In the mean time, I am very grateful to the party opposite for everything they did to help.