Protection of Freedoms Bill

Lord Lester of Herne Hill Excerpts

Tuesday 24th April 2012 Lords Chamber

[Lord Butler of Brockwell]

My Lords, I, too, rise to support the amendment. I do it on the basis of practical experience. I do the Government the credit of saying that their heart is in the right place on this. Indeed, on all sides of the House, it would be agreed that powers of entry without permission or warrant should be kept to a minimum. However, as the noble Lord, Lord Marlesford, said, the crux is where the initiative for reviewing these regulations should lie.

Here, I speak on the basis of long experience in the Cabinet Office and successive initiatives to reduce regulation in government. Those who have been Ministers will be familiar with this. In this matter, the Cabinet Office was on the side of the angels. It wanted to see —indeed, it was a duty imposed on it by Governments—that regulations were reduced. There were successive deregulation bodies. The Minister in another place, Mr Francis Maude, led one of them. The experience of asking departments to make the case for the existence of regulations showed that doing it that way round was not successful because they could always make a case that the regulation might at some time be necessary or useful. For that reason, I was always in favour of having a sunset clause on regulations, a provision that from time to time a department that wanted to maintain regulations should have to make the case for them again. That is what, in effect, the amendment proposed by the noble Lord does. If the Government want to make progress in this, the onus should be on departments to make the case for the power to be renewed. Otherwise, the power should lapse. I am quite sure that if the onus is left as it is and the regulations are reviewed by the departments, very little progress will be made.

I support the noble Lord’s amendment particularly because, as he has said previously, this is a historic opportunity for the Government to set a sunset clause on these powers and oblige departments to make the case anew. I am not sure whether the noble Lord’s amendment is technically correct, but it would be wise for the Government, whose heart, I believe, is in the right place, to think about this again. I hope that they will do so. I am afraid that if they do not, the objectives that they seek to achieve will not be effectively achieved.

[Lord Lester of Herne Hill]

My Lords, I am a member of the Joint Committee on Human Rights that reported on this matter. In paragraph 116 of our report, we welcomed,

“the recognition in the Bill that powers of entry should be strictly limited to those circumstances in which such a power is justified, necessary and accompanied by appropriate safeguards”.

I would be grateful for acknowledgement by my noble friend the Minister that it is common ground that these powers should be in existence and exercised only where the power is,

“justified, necessary and accompanied by appropriate safeguards”.

When this matter was raised previously by the noble Lord, Lord Marlesford, I spoke critically of his amendment and what he was seeking to do on the grounds that the matter was already covered by the European Convention on Human Rights and the Human Rights Act. On reflection, not only having listened to the debate so far but having looked at the Commons Reason for disagreeing, I am now tending to be much more supportive of this amendment. With respect, I cannot understand how the other place can disagree, in considering that,

“the imposition of general restrictions of this nature on the exercise of powers of entry could undermine actions to protect public safety”.

That seems an extraordinary statement.

The purpose of the amendment moved by the noble Lord, Lord Marlesford, is to write into this important Bill a constitutional safeguard, which, for example, in the American Bill of Rights, is contained in the Fourth Amendment: the prohibition on unreasonable search and seizure. Within the past three months, the American Supreme Court gave a judgment on that guarantee, referring to English doctrine against unreasonable search and seizure, which, of course, we in this country trace back in common law to the great case of Entick v Carrington. The noble Lord, Lord Marlesford, is seeking to use not just the European Convention or the Human Rights Act but the statute itself to contain a general restriction against the abuse of powers of entry by the retention of unnecessary powers.

I perfectly appreciate that the Government have undertaken to carry out a two-year review of the detail, and that is highly desirable and has been welcomed by the Joint Committee on Human Rights. However, I cannot see any objection to a general constitutional restriction against the retention or use of unnecessary powers of search or seizure. I shall listen carefully to how this is dealt with in reply, but at the moment, like others who have spoken so far, I have become much more sympathetic to this than I was on the previous occasion.

--- Later in debate ---

[Lord Henley]

My Lords, I start by saying to my noble friend Lord Marlesford and other noble Lords that I am grateful for the fact that he acknowledges that we are at least on the same side in that we seek to reduce the number of powers of entry and make sure that existing powers of entry have the appropriate safeguards where necessary.

I begin with a very brief history lesson. At the time when the noble Lord, Lord Butler, was Secretary to the Cabinet, I can remind him and the House that we had something of the order of 500 or 600 powers of entry. As my noble friend Lord Selsdon said, it was difficult to know exactly how many there were. Over the years, mainly after the noble Lord ceased to be Secretary to the Cabinet, we saw a rather dramatic growth in the number of powers of entry. Something of the order of about 700 new powers of entry crept in between 1997 and 2010. I am sure that there were very good reasons for many of them and that all of them went through both Houses of Parliament, because all of them would have needed primary legislation in one form or another to get them.

It might be that Parliament nodded in its duty and did not provide the appropriate safeguards and checks and balances when considering all those powers of entry. Because of the dramatic growth that we saw over those 13 years, the new coalition Government in 2010 made a commitment that we would review all existing powers of entry and do what we could to reduce those that were unnecessary, bringing in appropriate safeguards—a warrant or consent—where necessary. That is why we brought forward the provisions in this Bill in Clauses 39 to 46.

I make it clear to the House that those proposals were in respect of the existing stock of the 1,300 or so powers of entry that we had. On top of that, there is always the danger—because Governments do this—that new powers might creep in. That is why we brought in the new gateway approach in the Home Office, to be adopted by all other departments, to look at any new powers of entry that might come in and make sure that they were properly scrutinised and that Parliament looked at them appropriately as they came through in Acts of Parliament. I am grateful that my noble friend Lord Marlesford at least commended that gateway approach to the new powers, but we are largely talking about the existing powers and how we want to look at the existing stock and do what we can to reduce it.

My noble friend brought forward his amendment before. It went to the Commons, where they looked at it—and I have to say to the noble Lord, Lord Neill, that they did not look at it with a lack of respect. They gave it a very good hearing and debated it for some 45 minutes, and the fact that they did not divide on it was obviously a sign that they thought that there was sufficient agreement. It is not for the Government to decide whether matters are divided on. Certainly, considerable respect was shown to the amendment and it was debated in considerable detail in another place.

My noble friend in his amendment seeks to create a blanket approach to what should be dealt with and then accepts that that approach is wrong—and he admits it is wrong because he then brings in a blanket exemption, which surely contradicts the whole point of what he is trying to do. We are trying to conduct a review of the whole process, which will closely examine all the powers that we have and those that are necessary while adding further safeguards to others. That is the important thing. There might be some powers that we do not need—right, we will get rid of them. There might be some that we do need but which do not have the appropriate safeguards, and in that case we will look at them. We have made it clear that in conducting our review the default position will be that any powers that require entry to people’s homes must require their consent or be by warrant only. This amendment provides only a blanket rule across the board, which we do not think is the right approach.

I accept that there have been criticisms—

[Lord Lester of Herne Hill]

Can the Minister confirm that we are not in a vacuum while the review is taking place in that, if there were unnecessary and disproportionate searches or seizures, the Human Rights Act would require our legislation to be read properly to prevent them from being classified as unlawful searches or seizures?

[Lord Henley]

My noble friend is a great expert on the Human Rights Act and the House always defers to him when we discuss such matters. If there was a case of the sort that he implies, I am sure the courts would look at it in a manner that he thinks appropriate.

I am trying to make clear that we want to conduct a review over two years. I accept that there has been criticism from a number of colleagues, including my noble friend Lady Hamwee, who asked whether we could do it more quickly. The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lawson also implied that we should do it more quickly. We will try to do it as quickly as possible but, as my honourable friend said in another place, we will also update Parliament on a six-monthly basis about how we are getting on. We think that this approach is the better one—to go through all the powers one by one, from department to department. Obviously, some departments will have a bigger workload than others. I understand that my old department, Defra, has rather a lot of powers. No doubt we will encourage them to work harder, and I and my colleagues in the Home Office will encourage them to do that. I think that is the better approach, and my noble friend’s approach—to bring in a blanket approach, accept that it is wrong and then bring in blanket exemptions—is not the right way forward.