Protection of Freedoms Bill

Lord Selsdon Excerpts

Thursday 15th December 2011 Grand Committee

Moved by

[Lord Selsdon]

131: Before Clause 39, insert the following new Clause—
“List of powers of entry
The Secretary of State shall ensure that the list of powers of entry in Schedule (Acts and secondary legislation containing powers of entry) is kept up to date and published.”

[Lord Selsdon]

I shall also speak to Amendments 131A, 132 and 136. I shall try not to bore the Committee as this has been a fairly tedious subject for me.

I joined your Lordships’ House in 1963 as an independent unionist Peer, which is now a defunct breed and was absorbed by the Conservative Party. I was told always that I should be as independent as I could. One of my specialist subjects was the fear of someone being able to go into people’s property without permission or without a court order. Over a period of five years I introduced five Bills despite considerable opposition from everybody, but later, with the help of my noble friend Lord Marlesford, the noble and learned Lord, Lord Scott of Foscote, Liberty and a few other bodies, including a Home Office Bill team, we managed to get something through the House. I had thought that as it had got through the House and it produced a schedule of those Bills that gave power of entry, it would be a relatively simple matter for the new Conservative Government to adopt it. They tacked the issue on to the freedom Bill rather at the last moment.

The modern Conservative Party, in its manifesto—Modern Conservativism: Our Quality of Life Agenda—which it passed to me before the election, said:

“A Conservative Government will cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrates’ warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety. Labour plans to give bailiffs powers of forced entry into the home to collect civil debts will be revoked”.

I thought that I should go to see my noble friend Lord Henley with his new Bill team and it was an amazing repetition of what happens. I went to Room 5, which is just up the Corridor. The first time I went was to see the noble Lord, Lord West, with his officials. I sat in the same seat and they were very nice, smiled at me and said that it was not convenient to do anything about this at this time, as it was too complicated. I sat with my noble friend Lord Henley, with different officials, just a few days ago. I sat in the same seat and he said that the Government were not prepared to accept any amendments. It was an exact replica and I wondered why—was this because it was too complex or was there some other motive? I thought probably the motive was that they really did not want to be bothered with it. Frankly, the Protection of Freedoms Bill is an enormous great Bill in its own right. Why should they go back and bother on these issues?

However, these issues are important and with my first amendment you would have had a list in the Bill of the powers of entry. It took a very long time to get that list together—started mainly by Professor Richard Stone of Lincoln University, who produced the authoritative book on it. It was then added to, not by Ministers of whom I asked questions and questions because their answer was, “The information is not centrally available”—more or less they did not know. The Home Office, to give it its due, stepped in and together we managed to produce the schedule of more than 600 Acts with powers of entry that was published and put in the Bill. Amendment 131 says:

“The Secretary of State shall ensure that the list of powers of entry”,

in the schedule should be published and I thought it should be in the Bill.

The Minister said it was not a good idea. However, I thought it was a good idea that it should be published so I put that in here and I then tabled the full schedule. I had to snip out the ones I thought had gone—and this is a totally amateur activity but “amateur” means someone who loves his subject. I then thought if I produced this, it might help. The Minister said he did not want it in the Bill because every time one had to be amended it would need primary legislation. I said there was a way round it without doing too many Henry VII or Henry VIII powers or whatnot and my great supporting team in the Public Bill Office produced a very simple clause which is my other amendment—it says effectively you can amend by secondary legislation. Then I was told that they did not want to amend by secondary legislation either. They did not want to amend at all. I wondered what one could do so I introduced another amendment. I thought the Government themselves should publish a list and put it in the Bill—and I still believe that should be the case—not just leave it hidden away in some website that is extraordinarily difficult to access.

I then suggested to myself that maybe there was another way this could be done. I thought, “Let us go back to where we came in”. I asked every ministry what their powers of entry were. At Second Reading I told the noble Lord, Lord Bach—who was very kind and helpful—what his powers of entry were and I put them in the Library. However, a Back-Bencher is not allowed to put anything in the Library officially. Only Ministers can do that. I had prepared a 200-page document that takes in all the history of this. I am going to ask the Minister if he will put it in the Library. I lent it to the Home Office Bill team who read it and left no dirty fingerprints on it whatever, so it was obviously not very thoroughly read and I brought it back. In that is a complete schedule.

I thought that maybe we should return and say that as all these Acts, primary and secondary legislation, relate to ministries and as the ministries keep changing let us pass the responsibility back to the individual Minister to produce, regularly—I have said at the start of every parliamentary Session but it could be every week, every month or whenever—a schedule of all Acts and secondary legislation containing powers of entry for which his or her department has responsibility.

It is pretty difficult for the Home Office to put all these things together because things are happening often without its knowledge. It produced a really remarkable document available on its website that lists them all. However, householders and others ought to have the right to know if someone calls and says they have a right to come in under what right that is, hence the concept of a code of conduct, which I put in before. The Minister did not really want my code of conduct. All I was trying to do was to suggest things that should go into it.

My noble friend Lord Marlesford will mention that it was a long time ago but my great mentor when I arrived in the House of Lords was Lord Hailsham. He was the only one I met and he asked me, “Who are you and what are you doing here?” and actually gave me tea. One of his specialist subjects in those days was powers of entry. My noble friend will raise this later. It is built into me that I do not want to wear a pass or be forced to carry an identity card. I want to be who I am. Even when I went to have my biometric details done for the test identity card, it said, “Not known, not recognisable”. My fingerprints did not seem to work and I had a bit of fear.

I have introduced this amendment in the hope that the Minister will take some action. It would be nice if these Acts of Parliament were in the Bill. If that is not possible, maybe each of the departments could have an instruction to produce a schedule from time to time and provide a direct reference other than by e-mail. As a member of the Information Committee of your Lordships’ House, I can advise you that your Lordships are not terribly switched on. Many do not even have an e-mail address and probably only about 50 per cent could be determined to be electronically active.

Fortunately, I have here on my new trial iPad all 200 pages—I just pressed a button and was absolutely shattered. I recommend that all noble Lords should have such an opportunity. That is not corruption but just a simple statement. I ask the Minister to try to find a way. I am extremely grateful to the Labour Party. In Opposition, it accepted what I proposed, discussed it and was very constructive and sympathetic. We ended up with a piece of paper with a lot of things on it that made sense. The question is how you impart that information in the right way to the right people to provide them with protection. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, I pay tribute to the noble Lord for his diligence and doggedness on this issue. I find it extremely useful to have a list of primary and secondary legislation and Acts which bear relation to powers of entry. Maybe it is because I am now freed of the shackles of power that I am rather attracted by the notion that a list should be published in a schedule so that people can clearly see it. My one difference with the noble Lord is on his Amendment 136, in which he suggests that the Secretary of State should have a power to amend the list by a negative resolution. While I trust Ministers and would not wish to cast any aspersions on them, some extremely important powers of entry and Acts of Parliament would be cited in the list. It would be proper for any Minister to have to come to the House and be accountable, so I would be in favour of an affirmative rather than negative resolution.

--- Later in debate ---

[Lord Henley]

My Lords, when I referred to the gateway that we talked about, I sought to say that what we are committed to do in the Home Office is to check any new powers as they come in from other departments to make sure that they can be justified before they are introduced. It is easy to introduce something without much further thought, but we are trying to create a form of approach that will allow for a greater degree of caution and care to be used before such powers are introduced.

[Lord Selsdon]

I am most grateful to the Minister, and maybe the time has come once again to offer the help of the private sector in solving the problem. My two extra amendments take into account the points he raised with me. The preparation of the list means not just the issuing of it but also its availability to people at the right time. I have arranged with Professor Richard Stone at the University of Lincoln, who is rewriting the powers of entry, search and seizure with the Oxford University Press, to co-operate fully, as we have before, with the Government. We might see whether we can arrange a powers-of-entry cloud. This would mean that it would be available on my iPad, on which even now I have the whole of the Home Office Bill along with the updates that the officials themselves have not yet had. I do not know why they use yellow on their website because it is not a good colour. If these things are readily available online and in the Library—

[Lord Henley]

Perhaps my noble friend will give way. He, like me, is wearing a yellow tie, and he is also wearing a yellow shirt. Perhaps it is a good coalition colour to be wearing on an occasion like this. No doubt the Home Office works in the same spirit.

[Lord Selsdon]

It was part of the coalition activities. This is an area that will not go away. What I am trying to say to the Minister and his team is that there are a lot of people out there who would be willing to help. There are methods of presentation and of access, but not least there is the interpretation. Although I will not read it out today, I refer noble Lords to Lord Hailsham—my noble friend Lord Marlesford may have mentioned that—because this issue was raised by Lord Hailsham 56 or more years ago. It is an important one. Of course I will not press the amendment now, but I will arrange to meet my noble friend and see what I can do to help him and his Bill team. I beg leave to withdraw the amendment.

Amendment 131 withdrawn.

--- Later in debate ---

[Lord Henley]

I take the noble and learned Lord’s point. He has not actually got an amendment down on this at the moment so we have not been thinking about that precisely but certainly we would consider having a look at that if the noble and learned Lord wants to come back to it on Report. I can see that Clause 40(2)(d) is where he wants the “shall” to come in.

The very simple point I am making is that not all powers of entry can be treated the same. Some powers of entry relate to the investigation of criminal offences or to a breach of regulation, but others do not. I would argue that it would be counter-productive in this instance, and indeed might prove unworkable in the case of powers of entry derived from European legislation, to seek to overlay a blanket requirement along the lines proposed in these amendments.

That is not to say that these types of safeguard do not have a place, and that is why we support the wider use of warrants whenever powers of entry are exercised. We also support the principle of consent in most cases—although obviously there are cases where consent would not be appropriate—and the removal of a power to enter people’s homes unless it is fully justified and accompanied by a magistrate’s warrant. I am trying to indicate that we need to consider the most appropriate approach on a case by case basis, and I think that Clause 40 allows us to do just that. The list of possible safeguards set out in subsection (2) includes a large number set out in paragraphs (a) to (k). These include a requirement for judicial authorisation and a requirement to give notice of the exercise of a power of entry and so on. I could read through the entire list. We consider that a targeted approach appears to be the preferable course of action on this occasion. The safeguards that apply best in most cases are specific to the type of investigation or inspection required and to the legislation conferring particular powers of entry.

I do not know if my noble friend Lord Selsdon wants me to go on to deal with his amendment or whether he is going to speak to it.

[Lord Selsdon]

I should like to say a few words about it at this point.

[Lord Henley]

I shall therefore give way. I thought that it was part of this grouping. However, my noble friend has not yet spoken so I shall listen to him.

[Lord Selsdon]

I shall speak simply on the matter of the code of conduct. The noble and learned Lord, Lord Scott of Foscote, pointed out that my amendment had certain faults in it because it should have said “either/or” and not all at once. What one had done before in discussion was to determine which factors should go into the code of conduct. My noble friend the Minister has rightly said that he will produce a very reasonable one. However, a difficulty is that each of the different pieces of primary and secondary legislation requires different consideration. For example, in the first 12 Bills listed on the Home Office website, there are 36 powers of entry relating to animals. They need a different method of handling when you enter a property. I want just to point out that I am on the same side as the Minister with regard to codes of practice or codes of conduct, but the noble and learned Lord pointed out that I should have put in “either/or” instead of the whole lot. That was my own typographical error.

[Lord Henley]

I am grateful to my noble friend for that explanation. I could not accept his code of conduct, but he will see what we have set out in Clauses 47, 48, 49, 50, 51 and even down to Clause 53 which sets out a corresponding code in relation to Welsh devolved powers of entry. It might be that my noble friend wants to have further discussions about that. However, what we have set out in terms of being able to alter or replace the code should be sufficiently wide and able to deal with difficult matters such as a code of conduct in relation either to animals or to other matters. On glancing through my noble friend’s code, I thought that it was what might be described as over-prescriptive. It is better to leave it to the route that we are setting out in the Bill.