Ivory Bill

Lord Judge Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 12th September 2018 Lords Chamber

Leaving out Clause 17 would prevent the appointment of accredited civilian officers with powers of entry and seizure by the Minister.

[Lord Judge (CB)]

My Lords, I apologise to the Committee for having failed to address the issue involved in this legislation at an earlier stage. In the past few weeks, I have had two meetings with Ministers, and I thank them very much for their courtesy and patience in having listened to me. I beg leave to oppose the Question that Clause 17 should stand part of the Bill. There is cross-party support for this amendment, and, as the Committee will appreciate just by looking at the Marshalled List, each supporting name on the Marshalled List is that of a member of the Constitution Committee.

Before I come to the amendment, I would like to emphasise that the broad objectives of this Bill have my complete support. The slaughter of a single elephant diminishes us all. You do not have to have seen an elephant in the wild; it is enough to look at it on the television. When the tusks of a lifeless elephant, killed for ornament or vanity or perhaps for investment purposes, are worth more than the noble magnificence of a living creature trundling about in its natural environment in an organised herd or as a solitary elephant, we know that values have become inverted.

It follows from what I have just said that my support for the broad objectives means that I entirely agree that a Bill that does not have provisions for enforcement is pointless, and I agree that the provisions in this Bill should be properly enforced. This amendment is concerned, when one analyses it, with three words in the enforcement process—three simple little words. What a lot of fuss about three words. The three words are “accredited civilian officer”. Those words create a new enforcement body additional to the police but not subject, as the police are, to police discipline, answerable to a chief constable or equivalent and ultimately answerable to a complaints procedure or its equivalent.

I am going to read the Bill, because I am going to be hearing later on this afternoon all about Explanatory Memoranda, possibly ministerial letters, possibly ministerial assurances in this House:

“In this Act … ‘accredited civilian officer’ means an officer of the Secretary of State who is authorised by the Secretary of State for the purposes of this Act”.


No more, no less. No single embellishment. Absolutely stark. No other safeguarding. No other provision of any kind. He or she will be, if this Bill comes to pass, a civil servant authorised by a Secretary of State and accountable to him. This individual, man or woman, will effectively, if one studies the Bill, have the same powers as a police officer with no provision for oversight, for control, for discipline—all ultimately, in the Bill, left to the Minister.

Clause 17 is troublesome enough, but I accept that it has some limitations on it. It cannot be operated without notice. The Minister’s officer may enter premises for the purpose of,

“promoting awareness and understanding of the provisions of this Act”,

which means that you will get a pep talk, or,

“assessing compliance with those provisions”,

which means rather more. Clause 17 is clear that he may search premises: “any place”, except a dwelling-house. Fair enough. However, that includes any office, factory, shop and, presumably, any garage that is not physically attached to somebody’s dwelling-house, which may be searched for items made of ivory, or containing an appropriate level of ivory.

Given the way the Bill is drafted, we might think that that is it; that is what the accredited officer will do. Indeed, some of the observations I have heard from the Minister rather imply that this is going to be low-level work, not quite as high as that of the police. But if you thought that, and thought that Clause 17 was the end of it, you would miss the subsequent provisions and all the wider powers that are being granted.

I do not want to bore noble Lords, but Clause 18 equates this body of civil servants with the police. On the authorisation of a grade 7 civil servant—that is what the Bill means, though it does not say the words “civil servant”, but only “grade 7”—an application may be made for a search warrant. This time, the search warrant can encompass a dwelling-house as well as all the other premises covered by the previous clause. It may be granted to an accredited civilian officer. Lo and behold, if we read more deeply into this provision, the authorisation may extend to an individual who is not in fact an accredited civilian officer. On the basis of the warrant, that individual will have the same powers as an ACO, who has the same powers as a police officer.

If we go through the provisions in Clauses 20 and 21, they would enable that individual, on entering the house, to examine anything in the home and to carry out tests on any object, while causing the least possible damage, whatever that may mean—what an argument lies ahead about whether this was the least possible damage. However, it is causing damage to somebody’s property. The officer,

“may break open any container”—

they may, therefore, open any drawer; they may require the production of documents; they may,

“seize and detain or remove”,

any item, as they think appropriate in the context of the Bill, from your home, your office or your shop. They may also use “reasonable force, if necessary” to achieve the objective. In other words, if you object, they may use reasonable force to take the item away from you.

If this was a series of powers granted to a police officer, I would have no objection. That is consistent with our having police officers who act independently of Ministers and are answerable for their conduct. However, if this applies to civil servants answerable to a Minister, and subject ultimately to his approval, I respectfully suggest to the Committee that it is a very serious provision. Entering your home and seizing your property may be fine, if justified. It may be fine if subject to limits that we in Parliament put on; but what are the limits here? I can go only by the passages that I have read in the Bill that is before us. I am sorry to sound discourteous, but I do not attach any significance to an Explanatory Memorandum or to a ministerial letter—which are of no relevance whatever in assessing what the powers are—or, indeed, as I have said, to ministerial assurances here, though I mean no discourtesy to the Minister. Of course, it will not be used for this purpose or that purpose or the other purpose.

This Bill has come from the House of Commons and is being proposed or countenanced in Great Britain in our name. It proposes that we should give these powers to such officials. If noble Lords read about this happening in a country that they were fond of—let us say, for the sake of argument, Australia, New Zealand, Canada or France, or wherever it might be—and heard that an Act, passed by whatever the legislative assembly might be, gave a Minister in what they thought was a democracy, anxious to protect its liberties, the power to deploy civil servants in the way in which this Bill proposes, they would be immensely troubled.

We can look at this as a ministry “taskforce”, but if it were happening abroad, “taskforce” would not be the kind of word that we would use. We would use words that indicated a much deeper degree of trouble and concern. We would have to recognise that, as the Bill stands, it is a ministry’s private law enforcement body. This is not our way. This simply will not do, and we must not let it do. I beg to move.

[Lord Cormack]

My Lords, my name is attached to all the other amendments in the group. I need to say very little, because the noble and learned Lord, Lord Judge, has spoken with passion and eloquence. He has made a case that is impossible to refute. The noble and learned Lord has done many services to your Lordships’ House. Many times, he has drawn attention to Henry VIII clauses. Many times, he has drawn attention to giving by those means and others more and more power to the Executive in the person of their Ministers.

This is a most alarming example of passing power from Parliament to the Executive—in fact, to a Minister’s nark who will have invested in him or her all the powers rightly possessed by the police and perhaps more. There are implications for our society and our democracy in a clause such as this being accepted in a Bill which everybody accepts has noble intentions. Some of us have sought to demonstrate that it is not a very well-conceived Bill, but whatever view one takes on the importance of antique ivory, which I and other noble friends have been talking about on Monday and today, this issue is wholly separate. It concerns the independence of the citizen and his right to retain his private property and not to have it molested by those who would not ordinarily be in a position to examine it. The provision to allow the use of minimum force is again alarming. That is why I went through the Bill and deleted every reference I could see to those three very innocent-sounding but alarming words, “accredited civilian officer”.

I do not want to over-dramatise, but this is Orwellian. We should not have anything to do with this in either House of Parliament. I am astonished that this should have come from the other place. It illustrates, if anything is needed to illustrate it, how important it is that we have a more dispassionate assembly to scrutinise our legislation. It also illustrates how exceptionally fortunate we are to have in your Lordships’ House those who have no party political affiliation, who cannot by any stretch of the imagination or vocabulary be accused of making a political point. We have in this House Cross-Benchers, among whom are some of the finest lawyers in the land.

Forget this Bill and forget our differences on other aspects of it. We would be doing a grave disservice to our democracy if we allowed this Bill to proceed with these words in it. I devoutly hope that my noble friend will be able to give a much more encouraging answer to this group of amendments than he has given to other amendments, and I hope very much that we will not have to return to this subject on Report. I hope that it will have been dealt with by that answer. But if it is still in the Bill, it is your Lordships’ duty at that stage to take it out of the Bill.

--- Later in debate ---

[Lord Gardiner of Kimble]

I am grateful to my noble friend for permitting me to re-emphasise that the Government will consider not only what has happened during this debate but also the recommendations of the Constitution Committee. I cannot be fairer than that at this stage, as my noble friend should know.

[Lord Judge]

My Lords, I am always willing to talk to the Minister, but the courteous way in which both Ministers have treated me during our discussions would make it extraordinary if I did not come straightaway when they were ready. However, the issue that has to be addressed is a simple one, which, unless something is done about it, will eventually lead me to invite the House at a later stage to consider its view. We cannot have a ministerial task force with these powers. That is what is not acceptable. Beyond putting that marker down for myself, I am willing to talk at any time, but for the purposes of today, I withdraw my opposition to Clause 17 standing part of the Bill.

Clause 17 agreed.