Protection of Freedoms Bill

Earl of Erroll Excerpts

Thursday 15th December 2011 Grand Committee

[Lord Phillips of Sudbury]

My Lords, my noble friend may be right. We disagree, as things stand, as to the meaning of Section 22(3) which, I think she will readily agree, is obscurely worded.

[The Earl of Erroll]

My Lords, I support the noble Lord, Lord Phillips of Sudbury. I well remember RIPA going through and your Lordships did not like it. As a result, very unusually, we tabled an amendment to the regulations that went through. This is symptomatic of some problems and an opportunity to tidy up some of these things. I remember that one of the key points that a lot of us did not like was the lack of external checks. There were too many internal authorisations allowing things to be done which could have some quite severe consequences on personal privacy of the citizens of this country. We should do what we can to tighten that up. I have to admit that I have not looked at any of this in detail, but I trust the noble Lord, Lord Phillips, to have probably got this one right.

[The Minister of State, Home Office (Lord Henley)]

My Lords, I think I can intervene now. I apologise if I digress to mention metal thefts, civil partnerships or intercepts as evidence, but even by a quarter past two it has already been something of a long day. My noble friend Lady Hamwee talked about the need for hot towels to understand what is going on behind some of the amendments tabled by my noble friend Lord Phillips. I am grateful to discover that it will be hot towels only for my noble and Liberal friends, so I shall get on with an explanation of what I think my noble friend Lord Phillips is getting at in his amendments and what the Government’s response is. That should be useful to noble Lords. What I think these amendments laudably seek to do is provide a degree of clarity in what is obviously a complex area, but I hope I can persuade him that the existing drafting of Clause 37 and of Sections 22 and 23 of RIPA is appropriate.

--- Later in debate ---

[Lord Scott of Foscote]

My Lords, I support wholeheartedly these amendments. My interest in powers of entry began about two years ago when I became a member of the Merits of Statutory Instruments Select Committee. Very soon it became apparent to me that statutory instruments kept coming in front of the committee providing for powers of entry for regulators in various different areas of activity.

One statutory instrument I particularly remember and which really prompted my interest more than any other was one arising under the Medicines Act, which gave power to regulators to enter the premises of pharmacists in order to ensure that the various provisions of the relevant statutes were being observed. The power to enter, which included entry into people’s dwellings, was a power to turn up and demand entry. If entry was refused, it was a criminal offence, and the official would have to come back with a warrant upon which he could gain entry; or, of course, if he knocked on the door and was admitted by consent, that was satisfactory.

When I saw the power to enter without consent and without a warrant, I began to worry. I went to visit the civil servants who had produced the particular statutory instrument and asked them about it. I was told, “Oh, this is common form, this has been here for years. Several previous statutory instruments under the old Medicines Act had similar provisions”, which was not really an answer to the question. I asked how often they had found it necessary to prosecute people for refusing entry, and they said, “Never”. Then I asked how often did they have to get a warrant. “Oh, we are always allowed entry”, they said. There was not a problem. They entered according to their customary practice, of which all of them had experience, by agreement. However, there on the statute book, in so far as a statutory instrument is part of the statutory law, was a power to enter without either agreement or a warrant. Other statutory instruments began appearing with the same features. Inquiries about those did not produce a significantly different response from that which had been given to me by the officials who had dealt with the Medicines Act statutory instrument.

I then met the noble Lord, Lord Selsdon, and conversations with him encouraged—and perhaps to some extent exaggerated—my worries about these powers of entry in statutory instruments. They do matter, I respectfully submit, particularly where the premises in question is somebody’s home. People are entitled, when they go through their front door and shut it behind them, to feel inviolate. Of course, the police have all sorts of powers of entry. They can enter under warrant, which is well known; they can also enter in hot pursuit of a criminal if the criminal dives in and seeks to take refuge; they can enter if they suspect criminal activity is going on within the premises and so forth. These powers of the police are well accepted and understood, but powers of entry for officials who are not the police but simply officials in some government department with a regulatory function—which is important and needs to be carried out—are an entirely different proposition.

There is absolutely no reason why powers of entry for all officials outside of the police should not require either agreement from the occupier of the premises or a warrant. The notion that you need a safeguard for very speedy entry in some cases is probably mistaken. A warrant can be applied for without any notice to the person whose premises are to be entered. The arrival of somebody with a warrant is just as much a surprise as the arrival of somebody without one. There is no need in an emergency to allow an entry. The warrant can be applied for and obtained very quickly from a magistrate, of whom there are many in all parts of the country. You ring them up and can go to the duty magistrate at any hour to get a warrant—if your facts are sufficient to justify the magistrate’s agreement to your application.

So much for powers of entry. The need for powers that require neither agreement nor a warrant is simply absent. What is worse is that a number of the statutory instruments where these excessive powers of entry can be found are accompanied by a provision making it a criminal offence to refuse entry. I have done no research other than the questions I asked of the individuals I have already referred to, to discover how often it has been necessary to bring criminal proceedings against people who refuse entry. I do not know the answer to that but, again, if there is any anticipation on the part of officials of a likely refusal, then they should get a warrant, ex parte without notice to the occupier of the premises, and turn up with it. Then they would be allowed entry.

We are not only talking about entry, but also about the searching of premises. Who would be other than aggrieved and indignant if an official turned up at his or her premises, demanding the right to search and shuffling through the wardrobe, the drawers in the bedroom, the Chesterfield or whatever it may be? These are necessary powers but they should not be exercised without the authority of a judicial figure if agreement on the exercise of them is not forthcoming or is expected not to be forthcoming. This reform of the powers of entry is long overdue and is excellent.

In Clause 40 of the Protection of Freedoms Bill there is a welcome attempt on the part of the Government to introduce safeguards to be associated with powers of entry in order to reduce the problems to which I have referred. Those seem to be fine but, if I may respectfully say so, for one exception. They start in subsection (1) by saying that:

“The appropriate national authority may by order provide for safeguards”.

That is a discretionary power. “May” means “may”—it does not mean “shall”. Then one finds in subsection (2)(d),

“a requirement for a judicial or other authorisation before the power may be exercised”.

That is still a discretionary power. To my mind, the attraction of Amendment 133 tabled by the noble Lord, Lord Marlesford, is that it makes the requirement for a warrant or consent compulsory. If paragraph (d) were taken out of Clause 40(2) and given a separate paragraph, making it a compulsory requirement for the exercise of a power of entry, the rest of Clause 40 would be entirely satisfactory and welcome. To leave it simply as a matter of discretion is simply not good enough, and the Government should think again about that. There is no reason why it should not be necessary to have either an agreement or a warrant. In any case, where there is a worry that notice to the occupant of the premises would give him or her opportunity to get rid of material that they do not want discovered, then go without notice but with a warrant. That solves the problem. This is an area of the law that needs reform. The amendment in the name of the noble Lord, Lord Marlesford, provides the necessary reform, but it needs some adjustment to Clause 40. That is all I need to say at this stage about that.

If the occupier consents, of course there is no problem, but I have a little worry about consent. Consent, if it is to be a satisfactory alternative to a warrant, must be free and willing. When an official knocks on the door and says, “I am from the department of whatever and I need to search your property” for whatever he or she is searching for, the householder may very well be overawed by the authority and hence unwillingly give his consent. That should be looked at very carefully, and a code of conduct in that regard is probably desirable. If there is any doubt about it, the official should get a warrant before it can be done without notice to the occupier. That should solve the problem. For the reasons I have given, I strongly support the amendment in the name of the noble Lord, Lord Marlesford.

[The Earl of Erroll]

My Lords, I should like to say a few words on this important issue. Ultimately, it is the householder or the business owner who has to decide whether the official or whoever it might be is allowed in or not. Not all of them are necessarily government officials because there are powers of entry for certain people—for instance, RSPCA officials in certain circumstances as regards animals. But I may be wrong. I just think that there are, which is frightening. I do not know one way or the other.

[Lord Scott of Foscote]

The noble Earl is quite right. There are powers for RSPCA officials. If they have reason to believe that an animal is not being well looked after or is being mistreated, they have a power of entry.

[The Earl of Erroll]

That is the point. The power of entry does not extend just to government officials. It can extend to other bodies. The danger is that the poor person at the door does not really know. As regards a business, perhaps officials have come along to seize equipment for some reason and think that an offence has been committed. That could be severely dangerous for a business, particularly if some of the equipment might be needed. A person needs to know instinctively whether the official can come in or not. The danger of any consent being involved is that it would be an excuse for bullying. We notice already that people who have regulatory functions, say, under health and safety, food safety or whatever, sometimes insist on things being done, which may not be strictly within their powers to insist on. Often expensively, people comply because they are terrified that they will get more inspections or more grief from the authority if they refuse. They also may have a feeling of, “If I don’t let this person in, it will seem as if I have something to hide. Then I will go in a black book and they will be around again and again”. I do not like anything that relies on a consent model.

I have looked at this issue randomly and I picked out hedgerows regulations, which I thought probably applies to private households. It includes a nice, simple phase which states that if someone does not let an official in or that it is difficult, they can get a warrant. It is terribly simple. I do not see why we do not classify things: basically, a warrant is needed to get entry, except, as everyone has said, in the case of an emergency. I will not try to suggest the wording because two efforts have been made. It is absolutely right. The idea that we modify every statute, Act of Parliament or regulation to bring them into line is completely the wrong way to go about it.

We had this problem with surveillance, investigatory powers and communications et cetera, which is why we introduced the Regulatory and Investigatory Powers Act—RIPA—which we talked about earlier. RIPA has been made incredibly complicated, which we would not want. But why do we not have an Act which regulates all powers of entry so that everyone can see the conditions quite simply and all other statutes or Acts refer to it if there is to be a power of entry? The power should be laid down in one place, but this time it should be kept simple.

At the end of the day we have to think back probably to Edmund Burke who, in the late 1700s, referred to the Englishman’s home being his castle. Yet here we are still struggling to keep a little bit of last defence there in some way. It seems that every single member of the public has access to it except the person who wants to protect it. If we cannot have any of this and it is too difficult to set it out simply in one place then I like the list of the noble Lord, Lord Selsdon, or a duty for someone to have that list somewhere easily available so that, if I am a business owner or householder, I can click on the Home Office website and it will tell me exactly what I have to do. How we do that is up to the powers that be. Personally, I think having it in one simple Act somewhere else that everyone refers to would be much simpler, certainly for me and the general public.