Protection of Freedoms Bill

Lord Stewartby Excerpts

Monday 6th February 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I am sorry not to be able to support what the noble Lord, Lord Marlesford, has described as his package. Reference has been made to individual amendments, but he rightly put them forward as a composite. I know the effort that he has applied over a long period, along with the noble Lord, Lord Selsdon, and indeed the noble and learned Lord, Lord Scott of Foscote. I have been privileged to observe him in the Merits of Statutory Instruments Committee, conducting with great assiduousness what I can only describe as a campaign against rights of entry that continue to crop up in statutory instruments on which we are asked to comment.

I wrote down “presumption” in the non-legal sense; I agree that every power of entry should require a warrant, and my noble friend has reminded us of both the common law and the Human Rights Act. I welcome what is in the Bill, and I am glad that the noble Lord, Lord Cope, referred to it, because I think we have rather tended to overlook what is proposed for our consideration.

I welcome Clauses 39 and 40. The noble and learned Lord, Lord Scott, may not be a veteran, as some of us are, of the continuing debate over “must” and “may”. I also welcome Clause 42. To pick up the terminology used by the noble Lord, Lord Marlesford, I am certainly one who would normally chase the Government—I tend to be on the rather cynical wing. However, I take the two years for the completion of the review at face value, particularly as we can assume that the reports required of Ministers—a duty under Clause 42—will include not only a conclusion but an explanation for each decision, and Parliament will be able to debate these. I note of course that the noble Lord, Lord Marlesford, is not seeking to delete these clauses.

I add one short point. I have another difficulty with the drafting of the second amendment. It would require an authority to,

“demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought”.

I am not entirely sure that I know what is meant by “demonstrate”, but I suspect that we could be heading down a road to judicial review, which would mean that the High Court rather than magistrates became involved in many of these instances.

The noble Lord, Lord Borrie, has mentioned environmental health officers; I think we have the Environment Agency. I say to the noble Baroness, Lady Eaton, that like her I found the examples from the Local Government Association very powerful and helpful. However, I must agree with other noble Lords that this work cannot be allowed to rest.

[Lord Stewartby]

My Lords, I want to add only a small footnote. I begin by expressing our gratitude to the noble Lord, Lord Marlesford, for the diligence that he has shown, not only on this occasion and in this context but because he is constantly on the lookout for failures or delays by government departments or other public bodies. He has made rather a specialisation of taking the opportunity to raise these in this forum. Currently, as always, it is an interesting and not entirely straightforward problem that comes before us.

My noble friend Lord Henley circulated a note last week on a possible exception to the requirement to demonstrate that entry would be frustrated if a warrant or agreement were sought. He argued that the Home Office considered that such an exception would be unworkable. I would be very grateful for more explanation of what “unworkable” means in this context.