Protection of Freedoms Bill

Debate between Lord Selsdon and Baroness Royall of Blaisdon

Monday 6th February 2012 Lords Chamber

[The Earl of Erroll]

The point about passing at least two of these amendments is that at least we can come back and tidy them up at Third Reading, because certain people have criticised their wording. If you do not pass them now there is no pressure to put anything in at Third Reading. This happens quite frequently and stalls the whole thing.

The whole point is that householders need to know what their rights are. They cannot possibly begin to know if there are thousands of different powers of entry, so there need to be some very simple rules that apply universally, which is what we have to come up with eventually. I support the first two amendments in particular.

The first amendment is about giving permission for entry, which I fear slightly because there is always a danger of people being bamboozled on the doorstep or being threatened by “If you don’t let us in we know you are guilty” and letting them in out of fear. Amendment 37ZB is therefore particularly important. It states what we understand the position to be in common law and in other things, but why not restate it? These are the things that must be taken into account when powers of entry are being examined and there is no harm in restating something when people have clearly forgotten. People expect a warrant unless there is a very good reason why not. To my mind that is quite reasonable and I cannot see why it is a problem.

I was most intrigued by the third amendment because it reserves certain powers and I could not understand why the noble Baroness started off by saying that trading standards officers did not exist, then said what a good job they did and then said that she disapproved of this amendment as it reserved powers to these non-existent people. I could not understand why the amendment was not a good idea because it would keep the powers of these people—whoever they might be—as they were. Although the amendments have defects, we should pass them and the Government can tidy them up at Third Reading.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the noble Lord, Lord Selsdon, who raises a very important issue in relation to the use of these powers. I note what he has said and his excellent work leading to the very welcome safeguards that are already in the Bill but would certainly not be there without his work. However, I must tell him that I think he is being a little tough on the excellent people from the Trading Standards Institute. I am sure that, while one person was at tea at 4.30 pm, the majority of them were out doing their business at that time.

[Lord Selsdon]

They telephoned me back and were extraordinarily helpful. We are going to meet. I had not realised the depth of their experience and knowledge.

[Baroness Royall of Blaisdon]

Good.

It is important to recognise the rights of premises owners and occupiers when it comes to the use of these powers and to ensure that they are exercised, in the absence of the consent of the owner or a warrant, only when truly necessary. The noble Lord has introduced very important safeguards into his amendments. Last week, I was extremely anxious about the amendments that had been tabled because, like many other noble Lords, I had been contacted by the Trading Standards Institute, for whose work I have long-standing admiration, and was very worried about its concerns. The amendments which have been retabled by the noble Lord have assuaged many of my fears and the Trading Standards Institute clearly now feels comfortable with them.

The amendments leave a number of outstanding issues, the first being, as I believe the noble Lord himself said, as did the noble Baroness, that “trading standards officers” is not a recognised term. Therefore, the amendments would have to come back to the House at Third Reading because there would have to be some sort of tidying-up exercise.

I am also concerned about whether the amendments would hamper the legitimate use of these powers by local authority officers who are not currently provided with an exemption by the amendment, such as environmental health officers. I listened very carefully to the case made by the noble Baroness, Lady Eaton. Having said that, I believe that the noble Lord includes important safeguards in his amendment which specifically allow for the use of those powers when it can be demonstrated that the purpose of their use would be frustrated by having to seek permission from the premises owner or to apply for a warrant, which is a jolly important safeguard.

I am therefore in a bit of a difficult position here. I heard the discussion about the review. I think that the noble Lord, Lord Vinson, was right to say that the review mechanism must be strengthened. I wonder why the review is taking so long, and I would like to hear from the Minister. I will be interested to hear the Government’s response to these amendments and, specifically, whether the Minister believes that the amendments provide sufficient safeguards to enable, for example, environmental health officers to undertake their work. I have to say that I am inclined to support these amendments, especially as it is clear that they will have to come back to the House at Third Reading in order to be technically correct. That would give Members of the House another opportunity, if necessary, to bring forward another amendment in order to safeguard the powers of, for example, environmental health officers.

Protection of Freedoms Bill

Debate between Lord Selsdon and Baroness Royall of Blaisdon

Thursday 15th December 2011 Grand Committee

[Lord Selsdon]

I shall also speak to Amendments 131A, 132 and 136. I shall try not to bore the Committee as this has been a fairly tedious subject for me.

I joined your Lordships’ House in 1963 as an independent unionist Peer, which is now a defunct breed and was absorbed by the Conservative Party. I was told always that I should be as independent as I could. One of my specialist subjects was the fear of someone being able to go into people’s property without permission or without a court order. Over a period of five years I introduced five Bills despite considerable opposition from everybody, but later, with the help of my noble friend Lord Marlesford, the noble and learned Lord, Lord Scott of Foscote, Liberty and a few other bodies, including a Home Office Bill team, we managed to get something through the House. I had thought that as it had got through the House and it produced a schedule of those Bills that gave power of entry, it would be a relatively simple matter for the new Conservative Government to adopt it. They tacked the issue on to the freedom Bill rather at the last moment.

The modern Conservative Party, in its manifesto—Modern Conservativism: Our Quality of Life Agenda—which it passed to me before the election, said:

“A Conservative Government will cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrates’ warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety. Labour plans to give bailiffs powers of forced entry into the home to collect civil debts will be revoked”.

I thought that I should go to see my noble friend Lord Henley with his new Bill team and it was an amazing repetition of what happens. I went to Room 5, which is just up the Corridor. The first time I went was to see the noble Lord, Lord West, with his officials. I sat in the same seat and they were very nice, smiled at me and said that it was not convenient to do anything about this at this time, as it was too complicated. I sat with my noble friend Lord Henley, with different officials, just a few days ago. I sat in the same seat and he said that the Government were not prepared to accept any amendments. It was an exact replica and I wondered why—was this because it was too complex or was there some other motive? I thought probably the motive was that they really did not want to be bothered with it. Frankly, the Protection of Freedoms Bill is an enormous great Bill in its own right. Why should they go back and bother on these issues?

However, these issues are important and with my first amendment you would have had a list in the Bill of the powers of entry. It took a very long time to get that list together—started mainly by Professor Richard Stone of Lincoln University, who produced the authoritative book on it. It was then added to, not by Ministers of whom I asked questions and questions because their answer was, “The information is not centrally available”—more or less they did not know. The Home Office, to give it its due, stepped in and together we managed to produce the schedule of more than 600 Acts with powers of entry that was published and put in the Bill. Amendment 131 says:

“The Secretary of State shall ensure that the list of powers of entry”,

in the schedule should be published and I thought it should be in the Bill.

The Minister said it was not a good idea. However, I thought it was a good idea that it should be published so I put that in here and I then tabled the full schedule. I had to snip out the ones I thought had gone—and this is a totally amateur activity but “amateur” means someone who loves his subject. I then thought if I produced this, it might help. The Minister said he did not want it in the Bill because every time one had to be amended it would need primary legislation. I said there was a way round it without doing too many Henry VII or Henry VIII powers or whatnot and my great supporting team in the Public Bill Office produced a very simple clause which is my other amendment—it says effectively you can amend by secondary legislation. Then I was told that they did not want to amend by secondary legislation either. They did not want to amend at all. I wondered what one could do so I introduced another amendment. I thought the Government themselves should publish a list and put it in the Bill—and I still believe that should be the case—not just leave it hidden away in some website that is extraordinarily difficult to access.

I then suggested to myself that maybe there was another way this could be done. I thought, “Let us go back to where we came in”. I asked every ministry what their powers of entry were. At Second Reading I told the noble Lord, Lord Bach—who was very kind and helpful—what his powers of entry were and I put them in the Library. However, a Back-Bencher is not allowed to put anything in the Library officially. Only Ministers can do that. I had prepared a 200-page document that takes in all the history of this. I am going to ask the Minister if he will put it in the Library. I lent it to the Home Office Bill team who read it and left no dirty fingerprints on it whatever, so it was obviously not very thoroughly read and I brought it back. In that is a complete schedule.

I thought that maybe we should return and say that as all these Acts, primary and secondary legislation, relate to ministries and as the ministries keep changing let us pass the responsibility back to the individual Minister to produce, regularly—I have said at the start of every parliamentary Session but it could be every week, every month or whenever—a schedule of all Acts and secondary legislation containing powers of entry for which his or her department has responsibility.

It is pretty difficult for the Home Office to put all these things together because things are happening often without its knowledge. It produced a really remarkable document available on its website that lists them all. However, householders and others ought to have the right to know if someone calls and says they have a right to come in under what right that is, hence the concept of a code of conduct, which I put in before. The Minister did not really want my code of conduct. All I was trying to do was to suggest things that should go into it.

My noble friend Lord Marlesford will mention that it was a long time ago but my great mentor when I arrived in the House of Lords was Lord Hailsham. He was the only one I met and he asked me, “Who are you and what are you doing here?” and actually gave me tea. One of his specialist subjects in those days was powers of entry. My noble friend will raise this later. It is built into me that I do not want to wear a pass or be forced to carry an identity card. I want to be who I am. Even when I went to have my biometric details done for the test identity card, it said, “Not known, not recognisable”. My fingerprints did not seem to work and I had a bit of fear.

I have introduced this amendment in the hope that the Minister will take some action. It would be nice if these Acts of Parliament were in the Bill. If that is not possible, maybe each of the departments could have an instruction to produce a schedule from time to time and provide a direct reference other than by e-mail. As a member of the Information Committee of your Lordships’ House, I can advise you that your Lordships are not terribly switched on. Many do not even have an e-mail address and probably only about 50 per cent could be determined to be electronically active.

Fortunately, I have here on my new trial iPad all 200 pages—I just pressed a button and was absolutely shattered. I recommend that all noble Lords should have such an opportunity. That is not corruption but just a simple statement. I ask the Minister to try to find a way. I am extremely grateful to the Labour Party. In Opposition, it accepted what I proposed, discussed it and was very constructive and sympathetic. We ended up with a piece of paper with a lot of things on it that made sense. The question is how you impart that information in the right way to the right people to provide them with protection. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, I pay tribute to the noble Lord for his diligence and doggedness on this issue. I find it extremely useful to have a list of primary and secondary legislation and Acts which bear relation to powers of entry. Maybe it is because I am now freed of the shackles of power that I am rather attracted by the notion that a list should be published in a schedule so that people can clearly see it. My one difference with the noble Lord is on his Amendment 136, in which he suggests that the Secretary of State should have a power to amend the list by a negative resolution. While I trust Ministers and would not wish to cast any aspersions on them, some extremely important powers of entry and Acts of Parliament would be cited in the list. It would be proper for any Minister to have to come to the House and be accountable, so I would be in favour of an affirmative rather than negative resolution.