Protection of Freedoms Bill

Baroness Eaton Excerpts

Monday 6th February 2012 Lords Chamber

As to the sense behind the first amendment, I am wholeheartedly in favour of it. I support it and submit that the House should do likewise. The “may” in Clause 40(2)(d) ought in my opinion to be a “must”. It is quite inadequate for the requirement to obtain judicial authorisation to be simply discretionary. For all those reasons, I wholeheartedly support these amendments.

[Baroness Eaton]

My Lords, I declare an interest as a vice-president of the Trading Standards Institute and of the Local Government Association. I wish to raise some concerns regarding Amendment 37ZC, which is in the name of my noble friend Lord Marlesford.

I share the anxieties of my noble friend and many others of your Lordships about the perception that is held by many people that too many officials have access to the homes of private individuals. I welcome the fact that he has amended his original amendment to try to deal with one of my key concerns, which was that trading standards officers could no longer enter premises unless they had a warrant. Unfortunately, this area of the law is remarkably complex. I am not a lawyer, but the proposed amendment would not be feasible, as trading standards officers are not defined in the law and therefore could not legally be made exempt. Technically, in the law, they do not exist.

Even if they did, the problem itself also relates to environmental health officers, who equally need access to premises for the same reasons. As the noble Lord, Lord Borrie, has said, councils use powers of entry to protect the public across a range of statutory activities. Powers of entry are essential in order for councils to carry out their responsibilities and to seek evidence to prosecute offenders, thereby protecting individuals and local businesses from harm. Without a routine power of entry on to business premises, council officers would not be able to carry out their basic day-to-day functions, protecting the public and their local communities. Officers would also not be able to act in a swift manner where necessary.

Councils cannot enter premises used solely as a private residence without a court order or the owner’s permission, and only routinely have the power to enter business premises to collect evidence. Most existing legislation already contains safeguards to ensure that the existing powers of entry are not used inappropriately: for example, where premises are used solely as a private dwelling place, council officers can enter those domestic premises only with the consent of the occupier or when a warrant to enter has been obtained from a justice of the peace to do so. Council officers do not currently have, and have never had, a routine power of entry into premises used solely as a private dwelling place. Equally, should the premises owner refuse entry, the council must leave and seek a warrant before returning. In instances where the business premises are also a personal residence, councils will often obtain a warrant to ensure privacy is protected.

It might be helpful if your Lordships had some examples of just how these investigations take place. I should like to refer to events in North Yorkshire County Council, where the trading standards team receives around 260 reports of doorstep crimes a year: namely, traders cold-calling at the homes of consumers—most often elderly and vulnerable people—offering to carry out property repairs such as roofing or gardening work, or to sell products such as fish or mobility aids. Given the number of incidents and the fact that many of the offenders target a specific area and then rapidly move on, the service introduced a rapid response service to incidents. Two officers are therefore on call every day to immediately attend incidents where offenders are still at the home of elderly victims, still in the vicinity or are due to return to collect payment. Often, multiple offences are committed, such as: failing to issue the householder with a notice of their cancellation rights; and making false, misleading statements regarding what work is required or what a reasonable price for the work is.

When a call is received by the rapid response unit to attend such an incident, officers will often want to carry out a search of the vehicle being used by the offenders. In such circumstances, a vehicle is defined as “premises”. A search will be conducted to identify and seize evidence relating to the business or to other potential victims, et cetera. Officers are solely reliant on their powers to enter the suspect’s vehicle as “premises” to do this. The need to attend such incidents immediately is very clear; if suspects were aware that a report had been made to the police or trading standards, they would just disappear.

There is no time in these situations or in a situation where a vehicle has been stopped to consider an application for a warrant. It is also extremely unlikely where suspects often deny any connection to the alleged offence that any permission would be given to carry out a search with consent. Removing the powers of entry for enforcement staff in such situations would thus be seriously detrimental to their ability to tackle such offences, which often involve elderly and vulnerable victims being targeted for their life savings, often on a repeat basis.

Multiple complaints were received by the trading standards team over a number of months from consumers regarding a business that operates a council tax refund service. The complainants alleged that they had not been provided with copies of any paperwork by the firm; they were not told what percentage of any rebate recovered would be taken by the company, or that VAT would also be charged by the company. Repeated efforts were made by the council’s business advice team to get the company to comply with its legal obligations. However, complaints continued to be received. Action under the Enterprise Act was then commenced, but that did not prevent numerous further complaints being issued.

A decision was taken to institute an investigation into the company, and the files were passed to the fraud and financial investigation team. Warrants for the registered offices of the business were obtained to facilitate the seizure of paperwork and because it was anticipated that the company would obstruct any investigations. During the warrant executions, it became apparent that the firm was also making use of a further unit in the same building. Officers therefore used their statutory powers of entry to access the unit, which was not covered by the original warrant, and seized relevant documentation. It also became apparent that company staff were keeping documents in their vehicles and at their home addresses, including copy contracts. As a result of the definition of “premises” including any vehicle, again officers were able to use their statutory powers to enter the related vehicles and homes to seize relevant documentation. This would not have been possible without the power of entry. Had they required further warrants to access these additional premises, it would have given the company and their employees an opportunity to remove or destroy relevant evidence in the period of time required to obtain warrants.

The evidence seized during the use of powers and the warrant application has substantiated the claims made by consumers regarding the companies’ failure to comply with their statutory duties and proved that multiple offences have been committed. This would not have been possible without the use of these powers. I welcome the wish of my noble friend Lord Marlesford to address the needs of these services by this amendment but, regrettably, it would not solve the problem. I hope that he and the Minister will be able to reach an accommodation and understanding of his concerns and find a solution.