Protection of Freedoms Bill

Lord Marlesford Excerpts

Tuesday 24th April 2012 Lords Chamber

Moved by

[Lord Marlesford]

At end insert “but do propose Amendment 16B as an amendment in lieu”

16B: Page 33, line 33, at end insert—
“(3) Further safeguards shall be that—
(a) unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises occupier or by warrant; and
(b) that, notwithstanding the statute providing for the power of entry, a power of entry may only be used without warrant, or without agreement with the occupier of the premises to be entered—
(i) in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant was sought; or
(ii) by persons specified in regulations made by the Secretary of State when acting under any legislation which permits such a person to exercise such a power.
(4) The persons specified in regulations made under subsection (3)(b) may include, but need not be limited to, any one or more of the following—
(a) a constable;
(b) a member of the Security Service;
(c) an officer of the Serious Organised Crime Agency;
(d) a Trading Standards Officer; and
(e) any person acting in pursuance of the protection of a child or a vulnerable adult.
(5) Regulations made under subsection (3)(b)(ii) shall be subject to approval by resolution of both Houses of Parliament.”

[Lord Marlesford]

My Lords, when the Prime Minister exhorted his Ministers yesterday to raise their game, I suddenly realised that that is exactly what I am trying to do today. That is why I am bringing back this amendment, now redrafted, which noble Lords on all sides supported in February and which found favour with the House by a majority.

When I was very young I worked with Ernest Marples, who in his day was one of the political celebrities of the Conservative Party because he had such a talent for getting things done. It was he who, under Harold Macmillan as Housing Minister, fulfilled the Tory pledge to build 300,000 homes, a pledge which Aneurin Bevan, another political star with an outstanding talent for oratory and whom we would salute every day as the architect of the National Health Service, had denounced as a cruel deception and an election trick. What was Marples’ secret? He had his own saying that it is the method paragraph that counts. That was how he built the houses.

The election pledge that this Bill seeks to address is to cut back on the intrusive powers of entry into homes. The Government’s method paragraph is to set up a two-year study in the Home Office to review each of the 1,300 powers of entry and to decide what, if anything, should be done about each of them. One of the things that Karl Marx got right was that people will always do what they see to be in their interest. That is invariably right; that is how they are motivated. I do not want to cast aspersions, but bureaucrats seek power as their currency, and of course they want to use it for the public good. The wider the powers the more they can achieve. That is the philosophy. They are also unlikely to give up voluntarily their totally untrammelled 1,300 powers of entry, which are enshrined in statute, and until very recently that is why there has been a growing fear of such powers.

The Minister has told us how the Home Office leads in the creation and the removal of such powers. It has a gateway through which all such powers must pass. A week or so ago, my noble friend gave me a Written Answer to my request that he list the 19 applications in the year from March 2011 to create, amend or re-enact powers of entry that have passed through the Home Office gateway. All but one of those 19 came from Defra and now every one of these new powers is to be made subject to agreement or warrant. I congratulate the Government as that shows what can be done and it illustrates the change in the culture since the Bill was initiated. But—and it is a big but—there were 19 in a year, with 1,300 needing to be processed and a target time of two years. We can all do the arithmetic. The reputation of the Home Office is not at such a pinnacle that it can easily command all other departments, and of course it does not have that useful currency of power which the Treasury has: extra money.

There are rivalries and jealousies well outside the influence of the Home Office. When I first introduced my amendment, it was most enthusiastically welcomed and endorsed by the Trading Standards Institute. Its policy officer, Sylvia Rook, wrote to the noble Baroness, Lady Royall, with a copy to me, on 3 February, saying:

“The Trading Standards Institute is delighted that Lord Marlesford has recognised the important work done by trading standards professionals around the country, and has amended his proposals accordingly … The new proposals, if accepted, will ensure that trading standards professionals can continue the essential work that they do using the powers afforded to them within existing legislation and subject to existing legal constraints”.

In other words, the trading standards people are very happy that this amendment in no way interferes with them. Subsequently, they appeared to change their tune. Not only do I understand why, but it illustrates why it is quite important that it is not left to those with the powers of entry to decide whether they should be modified.

The Local Government Association was unhappy not to be one of the exceptions. Indeed, the association wrote to me some weeks ago pointing out that it, too, sometimes found its untrammelled powers useful and although it did not use them, it always felt that it might have to use them in the future and that they might come in handy. Of course, trading standards is closely linked with local government and is part of the LGA. I know that the LGA was upset that trading standards had agreed a deal whereby it had an exemption and the LGA did not. I am told that the LGA never thought that the amendment would pass and so decided not to devote any resources to telling us that parts of it should be included. In the name of solidarity—we all respect that—trading standards was persuaded to withdraw its enthusiasm. However, today I spoke to trading standards, which confirmed that it was happy to have been given the exemption, which remains in my amendment.

--- Later in debate ---

[Lord Henley]

My Lords, I am a great fan of sunset clauses, and I would be more than happy to do that. It is a matter for Parliament; with any new power that comes in, Parliament must decide whether a sunset clause should be brought in. It is not within the scope of what we are debating now to bring in a sunset clause for all 1,300 powers of entry that exist. That is not the aim of my noble friend’s amendment, and it is not an idea that has been put forward by anyone else. I am sympathetic to sunset clauses, and I know that the noble Lord is sympathetic, but let us consider that with new powers that come in. It is not something that we can debate at this stage.

With those assurances about what we are doing and with the assurance that we will continue to update Parliament on how we are getting on with this, I hope that my noble friend feels able to withdraw his amendment.

[Lord Marlesford]

My Lords, I am most grateful to all noble Lords who have taken part in the debate. The House of Lords is always quite impressive, but the quality of the experience, knowledge and wisdom that have been shown by noble Lords speaking has been terrific. There has been a psychological thing that probably happens to all of us: there are those who want to do something and get on with it and those who say, “Well, let’s wait”. There is a place for both. However, on this question of how long it would take for a review, when my noble friend Lord Selsdon says that it took 18 months just to count the powers, I just wonder how far they will get in examining each of the 1,300 powers in 24 months.

I want to emphasise just one or two things. The first is that we are not aiming to remove any powers of entry. All we are saying is that we believe that the powers of entry, with certain exceptions, should be subject to agreement or to warrant as far as the occupier of the premises is concerned. The second—and this is where the amendment has changed—concerns what is found or felt about the provision before the powers have all been examined. My amendment does not interfere at all with the Bill’s current provision for a review. That provision will continue and it will be good to have it—I wish it godspeed, and we shall look forward to getting the reports. In the meanwhile, however, we will have achieved something. We will also have given the Government an opportunity so that if it transpires that a power has been trammelled by being subject to agreement or warrant and that has been counterproductive or undesirable in the public interest, the Government will be able to come back ad interim with an order to correct it. That is what I mean in describing the way that I have removed the blanket imposition.

In view of the comments of people such as the noble Lord, Lord Butler, and the noble and learned Baroness, Lady Butler-Sloss, I think that the general tenor is really such that the Government could do better. I would like to see whether the opinion of the House supports that approach.