My Lords, I beg to move that this Bill be now read a second time.
I greatly admire the tenacity of the noble Lord, Lord Ashley of Stoke, and feel very honoured to follow him. The subject of his Bill, and of this Bill, merit debate in your Lordships' House. However, I suffer from a problem of understanding and comprehension. Later, I shall address remarks to the Minister. He should understand that although I speak today with audacity I do not intend my remarks to be taken personally and I make no criticism of him. Neither do I intend any asperity of speech in accordance with the 1626 rules, or whatever they were. But there is a problem. I must wrap my mind around this question of powers of entry, search, seizure and surveillance. It was first introduced to me when I worked in the Midland Bank group exactly 31 years ago. We in the banking world were concerned about our duty to our customers. We had a duty of care, to protect our customers and to know them. We were worried that legislation existed which gave government the right, through various bodies or public organisations, to enter people’s homes, take papers and possibly prejudice the responsibilities and relationship that a bank had with its customers.
Through the Committee of London Clearing Bankers we consulted the then Government, who more or less said, “You don’t have to worry, all public officials in this field have a responsibility and they know their role”. We found that it was difficult to determine how many Acts and how many regulations gave power to whom to do what. I have great regard for the House of Commons. In June 1976, Mr David Price asked a whole series of Questions about which Ministers had powers to order searches and seizures. I will not quote it now but I shall place all the relevant information in the Library. There were a few bright Ministers in the Labour Government in those days before they crossed the Floor of the House. Dame Shirley Williams was one of the Ministers who gave the most comprehensive Answers.
We found that there were exactly 150 Acts or regulations. The idea was that we would pressure the Government to do something about that. The Government did not. Because I happened to be the only one who sloped off for a gin and tonic too early in the afternoon and therefore was made to work weekends, I was asked whether I would draft a Private Member’s Bill. I did so but I did not know my way round here very well; I had been here for only 13 years. I did not know about the Public Bill Office. I thought that you had to do it all yourself. So we found two retired parliamentary draftsmen who lived down in Salcombe, where I used to sail, who very kindly helped me to draft the Protection of Privacy Bill. We never did very much about it but it enabled us to monitor what was happening.
Since those 150 Acts in 1976, over the past 30 years a further 262 Acts and statutory instruments have been introduced by governments. This is not an attack on any one Government: all governments have the same responsibility. I thought it was important that we should know which Acts and statutory instruments gave powers and to whom, so I tabled a series of Parliamentary Questions that were almost the same as those tabled by Mr David Price in June 1976. The Government failed dismally. They did not know the answers, but they were not prepared to say that. We drip fed a few people. The House of Lords Library is a source of almost everything. It introduced me to Professor Richard Stone, who wrote, The Law of Entry, Search, and Seizure. I obtained a copy of it and put a tick beside an extract on Defra because it had more powers of entry than anybody else. Defra told me to look at chapter 8 of Professor Stone’s book. I was then fortunate enough to be able to recruit Professor Stone, but we had already gone back into the early days of the National Council for Civil Liberties. Back in 1976 it had a very bright chairman, a certain Patricia Hewitt, who wrote a book called, The Information Gatherers, which set out the problems. It asked why people should be allowed to go into other people’s homes and take documents without permission or a court order and to whom they were accountable.
With the help of Professor Stone, Liberty and others, after having asked these questions, in 2005 I tabled the Powers of Entry Bill. It contained a schedule inserted by others as I wanted to introduce all sorts of legislation that they said was inappropriate. My favourite was the Protection of Bulls in Service Act. If you overworked a bull, that had some impact on breeding and the regulations and you might wear it out. My grandfather and others always used only one bull but these days everybody uses lots. They excluded a lot of the earlier Bills—for example, the Truck Act 1874—but that does not matter. We produced the list. The idea was that it should not be debated. The Government did not really respond. Later I introduced the new Bill and sent round the same questions. The current Clerk of the Parliaments and I drafted a simple question to ask the Government which Ministers had which powers of entry. With true naval brevity, through semaphore and morse, the noble Lord, Lord West of Spithead, said that no Ministers had any such powers. We laughed. We thought that was strange and that perhaps the noble Lord did not know what his powers, or the powers of government, were in that regard. I address the Minister in a personal capacity but being an able bodied seaman and having left the Navy just before he joined, I have a great respect for someone of his standing and status.
So my problem now is how do we get the Government to act? It may not be necessary to push a Private Member’s Bill through, but I follow the old-fashioned rules. As soon as it was drafted I prepared a brief and wrote to the leaders of the various parties and to the Bishops’ Benches. I also wrote to the Home Secretary, the noble Lord, Lord West, and others and gave all the information that I had. I then thought that I would come here today to see whether I could start something moving. I apologise for the fact that I have to quote. At the same time the Centre for Policy Studies started to do some work. Suddenly I received a phone call at home, saying, “It’s Harry Snoop here”. It wasn’t, actually, it was Harry Snook. I tried to find out who he was but he was calling from a mobile phone. In fact, he is a very bright young barrister who produced for the CPS, Crossing the Threshold, which listed 266 powers of entry. Professor Stone made a few comments in its introduction, of which I should like to read just three. He wrote:
“Under English law, the citizen’s home has traditionally been regarded as a privileged space. The courts have insisted that servants of the state cannot enter a private home without the occupier’s permission unless a specific law authorises them to do so”.
The document continues:
“A number of these powers originate with European Union directives and regulations, rather than with an Act of Parliament passed by the UK’s elected legislators”.
So we can blame the EU if the Government have failed. The document further states:
“As a result of the proliferation and variety of entry powers, a citizen cannot realistically be aware of the circumstances in which his home may be entered by state officials without his consent, or what rights he has in such circumstances”.
There is a conflict with Article 8 of the European Convention on Human Rights, which effectively says that there are overriding considerations whereby the Human Rights Act may not necessarily be applied. I am moving into territory that I really do not understand but these considerations are national security, public safety, economic well-being of the country, prevention of crime or disorder, protection of health or morality and protection of the rights and freedoms of others.
Here, we already have a conflict between existing legislation or regulations, human rights and the EU. I am not sure where we go on that. The difficulty above all else is that people have a right to know what the legislation is. Hence, I produced the schedule that lists all the Acts. Since the Minister was unable to answer—except in the certain Nelsonian way in which he put his telescope to the blind eye—I wrote him a letter and provided the list of all the Acts in alphabetical and date order. I left two boxes on the left and asked him to tick which ministry was responsible for which Act and which was the Secretary of State. If he did not know, he could put “DK”. I did not ask him his ethnic origins or all those questions that go in government questionnaires. I am sure that he will respond with gusto.
That is a very worrying exercise, because in the mean time, since 1976, when it concerned only public officials, there has been a lot of privatisation and the powers may have been transferred to individuals. The Bill says, “Look, you should not really go into people’s homes, on to their land, with or without buildings, into their property or offices and seize papers and take them away and do things with them without permission or letting them know beforehand and proving who you are”.
We wanted to say originally that you should not do this at all without a court order. Then we came to the question of homeland security. I thought that homeland security meant protecting people in their own homes. That seemed far more appropriate as the key issue. Since the noble Lord is the Minister responsible for homeland security, I want to ask him how he can protect us in our own homes. It is not just the powers of entry that cause the problem; it is the fear that is often associated with a knock on the door by people who you do not know, or when you see someone walking around the garden perhaps to see that your precious Leylandii hedge is not too high or whether you may by chance have slaughtered an animal without sending it to an abattoir. I am not saying that there is abuse of this, but the thought was that in Schedule 1 there would be a list of the Acts and in Schedule 2 there would be what I wanted to call a code of conduct, but the gang—sorry, the team—said that I must call it a code of practice. I tend to think that a code of practice is a bit tougher than a code of conduct.
The context was that no one should enter anyone’s property without letting them know beforehand. Of course, there must be exclusions. We took out from the nearly 400 Acts those relating to the powers of the police and those relating to the powers of the security and intelligence services, and that number dropped to 155. That may or may not be the right thing to do. In general, the police behave properly and many officials behave properly. The officials in the various bodies do not know what their powers are. The idea was that you should give notice in advance and that you should not go into people’s property except between 8 am and 6 pm, or go into their offices or places of business—such as a bed and breakfast—except when they are open. The people who go in should produce a form of identity; maybe they could use the new form of identity card with biometric data, iris scans, a recognisable photograph and all that. With their proof of identity, they should also take the rules and regulations under the powers that they had. If they took documents or materials away, they should confirm that. Those documents and materials should be stored in an appropriate way and with full recognition of the need for security. That is really what it is about.
Then I thought, “Is it not odd that as soon as we have done this and the Government seem not to want to co-operate, the Prime Minister has announced that he was going to instruct the Home Secretary to look at 266 or 250 powers of entry which effectively come straight out of Harry Snook’s Crossing the Threshold?”. I detect a willingness by the Government to do something, and I would rather like to help. I do not wish to be appointed a specialist adviser, but I willingly give them all my intellectual property free of charge.
I now turn to some of the more interesting points. I suggested to the Minister that he would not mind if I repeated the questions, and he could answer them by putting the answers in the Library. After this debate, I will place in the Library my brief, without some of the light-hearted remarks, and copies of the laws of entry and of Crossing the Threshold, because they make fun reading.
Will the Minister please find a way to answer the following questions? In what circumstances can officials of each government department and of public bodies answerable to each Secretary of State enter and search the homes and business premises of United Kingdom citizens? In each case, what is their statutory power? Which Acts set out in Schedule 1 to the Powers of Entry etc. Bill permit officials, from which government department and which bodies answerable to the Secretary of State responsible for that government department or public body, to enter and search the homes and business premises of United Kingdom citizens? Where and how are the records and documentation seized by officials of government departments and public officials enforcing powers of entry, search, seizure and surveillance under prevailing legislation stored? When and how are they disposed of?
We come to surveillance. Once more, I ask the same question: how many public space closed circuit television cameras are in the United Kingdom? How and by whom is the information gathered and retained? Because we have many private bodies with powers of search and entry, how many closed circuit television cameras surveying public walkways or places in the United Kingdom are under the control of the private sector? How many of those CCTV cameras are registered with the Information Commissioner?
This is where I end, on a slightly lighter note. I have tremendous regard for the Royal Navy, and I have a great regard for the noble admiral, if I can call him that. On Trafalgar Day, I asked him what powers of seizure the Royal Navy had over British flag vessels. Then I suddenly realised last night that this Bill relates to the United Kingdom, not only to one area. I panicked for a moment, because when I went up to my naval board, I was asked, “How many balls does a rear admiral have?”. That relates to the fact that admirals, rear admirals and vice admirals have the cross of St George, and I suddenly thought, “Maybe it is a bit too English”. A rear admiral has two balls, a vice admiral has one ball, but an admiral of the fleet has no balls and, more than that, his flag moves from being the flag of St George to the union flag. As a representative of the union, and as an independent unionist Peer, I hope that I can ask whether the Minister will, in true Christmas spirit, respond and please give some encouragement. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Selsdon.)
My Lords, I will speak briefly in support of the noble Lord and of his fascinating and entertaining introduction. I speak as an ordinary citizen who values individual freedom and is suspicious of the seemingly endless advances of red tape and regulation. As the noble Lord states in his background information paper and has confirmed again this morning, the Bill has been carefully researched over a considerable period, and it is introduced in good faith.
I have not been involved in the development of the Bill, and I read it for the first time only recently. I can only say that I was unaware of the extent of the powers that exist. I do not see how anyone could fail to be amazed by the list of 155 Acts of Parliament set out in Schedule 1 to the Bill. Those Acts contain powers of entry or authorise the making of regulations containing such powers. It is an awesome list.
The aim of the Bill is to establish a common code of practice that brings the multiple excuses and procedures for entry into private property under one heading. The main risk is that the proposed code becomes so complicated that it is self-defeating. The challenge is to make the code clear and simple enough that it does not become yet another layer of bureaucracy. The proposed code of practice set out in Schedule 2 achieves that. As I have said, a great deal of research and thought has gone into the production of the Bill. I congratulate the noble Lord, Lord Selsdon, and Professor Stone, on their work. I am in full agreement with the objectives of the Bill, and I wish it well on its journey through Parliament.
My Lords, I, too, support my noble friend Lord Selsdon and congratulate him, not only on his enterprise and on working so hard and so long on the Bill, but on introducing it today in such an amusing manner. It is not at all necessary for me to take up too much of your Lordships’ time—I will be brief—in repeating the cogent arguments in favour of the Bill. Like the noble Lord, Lord Cobbold, I was horrified when I discovered the huge number of bodies that have the right of entry into our homes, often with the application of severe force, and the condign penalties should we dare to question the need or manner of their doing so.
I am also outstanding—I beg noble Lords’ pardon; I am not outstanding but astounded—that so many of those rights of entry merely relate to administrative and not very urgent matters, which in the case of a dispute with a householder could be simply resolved in another way. I would like to describe one such case. In a holiday home that I own in the country, one of the utilities threatened me with such action because it had experienced difficulty in reading my gas meter, because I was never there when its meter man chose to come. No, it could not call on my neighbour who had the key, as it could call only at the address where the meter was situated. No, it could not simply open the garage door, which would be left unlocked for it, as the householder or his representative had to be present. But yes, it could break my door down if I did not handle the matter in its way.
I spent 20 years as a magistrate. On many occasions, I was called on by the police at my home at extraordinary hours of the day or weekend and asked to sign a search warrant. It was never a case of, “All right, officer, where would you like me to sign?”. In accordance with the strict training that I had received, the policeman had to take the oath solemnly, then tell me in detail why the warrant was needed and what they hoped to find, and—even more importantly—to explain why the matter was so urgent that I had to deal with it there and then, without the concurrence of a full Bench of my colleagues and the advice, if I felt I needed it, of my learned clerk.
In many cases covered by the Bill, the rights of entry can be granted on the say-so of a public official or government department, sometimes as the result of some EU directive, as the noble Lord mentioned. A householder can do little or nothing at the time of entry when faced with an official, often backed by the police, who will threaten arrest for obstruction or disorderly conduct if he protests too vigorously inside his own home. He can do little or nothing to prevent irrelevant material being carted off in black bin bags. There is little hope of getting it back in a timely manner before it is lost by the department, or somehow mysteriously finds its way into the hands of one of the tabloids.
Recent events entitle us to say that the public, with very good reason, have absolutely no reason to trust the Government to protect individuals’ privacy. The authority, by which I mean sometimes a minor functionary in some department or other, is judge, jury and executioner on the question of what entry is needed and how it is exercised. Rights of entry and seizure should be exercisable only after a warrant is authorised by a separate and impartial authority, not on the mere say-so of the person seeking the power.
A year ago the Prime Minister, then still the Chancellor of the Exchequer, promised a “bonfire of regulations”. According to reports in the press on Tuesday, not only has not a single bureaucratic burden been lifted or amended but, on the contrary, the list continues to grow by 14 new regulations every day. The Bill will not reduce that torrent of regulations, but at least it will fire a shot over the Government's bows as to how they exercise the powers that they are taking for themselves.
The Government should ensure that the Bill gets parliamentary time to enable it to pass into law. I hope that the Prime Minister will continue in the path of rightly shedding his control-freak image and assist the British people to have less reason to fear, if not the midnight knock on the door, the peremptory demand to have their homes ransacked by—the gentlemen in the Box will have to forgive me—some civil servant.
My Lords, I, too, congratulate the noble Lord, Lord Selsdon, on the Bill, which I wholeheartedly support. As one has come to expect, he has researched the matter with the utmost thoroughness and drafted the Bill with the greatest care and precision.
I was brought up in an era when it was taken for granted that an Englishman’s home was his castle—we pitied the poor foreigner, for whom that was not believed to be the case—but times change, too often for the worse. A thoughtful writer, Allison Pearson, who it is fair to say was broadly sympathetic towards new Labour until fairly recently, wrote in the Daily Mail two days ago that:
“The once-great thing about Britain was that it always left you alone ... Now, we are among the most spied-upon people in the world”.
It has recently been revealed that the United Kingdom has more CCTV cameras than the whole of the rest of Europe lumped together. How does this country rank in terms of official intrusion into private property?
Continental bureaucrats are traditionally regarded as authoritarian, pernickety and horrendously slow in their dealings with their frustrated citizens. On the other hand, they are prepared to bend or ignore the rules—particularly in southern Europe—to protect national or regional interests. I very much doubt that their Governments allow them as extensive powers of entry as is the case in Britain. For one thing, you burst in unannounced on a suspicious French peasant toting his rusty 12-bore at your peril. Admittedly, that is to some extent informed guesswork, so let us go back to the details of the Bill.
Without doubt the most welcome and useful clause is Clause 6, which restricts the times within which compulsory entry can take place other than in exceptional circumstances. Most people will not realistically have the time or inclination to study the Bill in detail, should it become law, but the fact that no official will be entitled to hammer on your door before eight o’clock in the morning is something that everyone can easily grasp and welcome. One can only wish that that restriction could be extended to the police, though one can understand why it cannot be. One suspects that 6 am raids on the homes of non-violent men and women suspected of relatively minor white-collar offences have more to do with an eagerness to get into the first editions of the evening papers, or on to lunchtime television or “The World at One”, than with any genuine operational imperative. One wishes that similar constraints could be imposed on the Revenue and Customs, which, for accidental historical reasons, has even more powers than the police. That is essentially because it was granted its powers roughly 200 years earlier, in more autocratic times. However, that may be for another day, unless we can somehow slip it into the Bill, which I doubt.
Earlier, I deplored the extent to which an Englishman’s home was no longer his castle. Interestingly, the Scots and the Northern Irish are rather better off. The National Council for Civil Liberties, now known as Liberty, revealed a few years ago that the powers of compulsory entry on to private property were no less than 57 per cent fewer in Scotland and 41.5 per cent fewer in Northern Ireland than in England and Wales.
This Bill is quite modest. It is far from revolutionary given that as drafted it does not seek to repeal a single power of entry, merely to make them less disturbing and disrupting to the citizen or, as I prefer to call him, subject. That being the case, the Bill deserves solid support from all quarters of your Lordships’ House.
My Lords, I, too, strongly support my noble friend Lord Selsdon. He has done an enormous amount of work on this Bill, and it is work that very much needed to be done.
It is interesting that the Minister who has been selected to respond is the noble Lord, Lord West, for whom we all have not only huge respect but great hope as a new entrant into the Whitehall jungle. At ministerial level, he may be able to do a lot. It is a little surprising that a Home Office Minister should be selected to reply to the Bill, given that it excludes Home Office responsibilities—the police and security services and all that—from its provisions. That exemption is well founded. On the other hand, I feel that it is curious that there should be firm rules for the police on entering property that do not apply to other officials. The rules are centred on the need for a warrant. Frankly, I would have thought that, if it is good enough for the police to have to obtain a warrant, that requirement should be good enough for anyone else. My noble friend Lady Miller described the careful way in which magistrates assess applications for warrants. Apart from anything else, having to get a warrant makes an official, policeman or anyone else think twice or three times and consider more carefully whether or not it is appropriate and necessary to effect this power of entry.
Of course there will be occasions when entry must be made in an emergency at any time of day or night by people other than the police. When I discussed this with my wife, she mentioned the importance of being concerned about the abuse of children. That would be another exemption, certainly in relation to the hours, and perhaps a warrant might not even be required. Clause 6 limits the hours during which powers of entry could be used. I hope that when we discuss this in Committee one of changes might be that anyone covered by the Bill who seeks entry outside the prescribed hours of, I think, 6 am to 8 pm should be required to get a warrant. That would be a simple and valuable change.
My noble friend talked about the extent to which the Government simply do not have the information that one might expect them to have about all this. That is astonishing. It strikes me as slack management in Whitehall. It is increasingly clear that the Government do not really have a grip on Whitehall in terms of either efficiency or legislation. That is particularly important these days when the House of Commons no longer scrutinises legislation properly. One of the worst changes ever made by this Government was to introduce automatic guillotines on every Bill. In my day in the press lobby, when I wrote about politics in Britain, if a Bill was running into difficulties one wrote that the Government might have to obtain a guillotine and one talked about their particular difficulties. Now the guillotine is automatic and the legislation is not properly considered. That is an aspect of slack management. It is an important point of which the Government should be aware.
This also relates to information that one would have thought the Government should have. Totally by chance, just before I came into the Chamber, I picked up a Written Answer from the noble Lord, Lord Bassam, to a Question that I asked on the number of drivers currently disqualified from driving. This is a quotation from his Answer:
“It is not possible for the information on driving disqualifications held on the police national computer to calculate the number of people currently disqualified from driving”.
That is astonishing. It is just an example of the lack of efficient, effective management. You cannot manage a business or a Government without proper information and my noble friend has been clear in drawing our attention to the huge gaps in the obvious information that is needed.
It might have been more appropriate for a Treasury Minister to have answered on this Bill. I point out to the Minister that the backdrop to our discussion is a serious worsening of economic outlook and certainly a looming cash crisis for the Chancellor. What is needed is less government, fewer busybodies and fewer thoughtless forms of enforcement, which ties in with this Bill. There are many wildly overstaffed enforcement departments of local authorities and quangos. Many interesting examples are given in the book Crossing the Threshold by Harry Snook, from which I enjoyed reading an extract.
My Lords, I am sympathetic to the noble Lord’s line of argument, but would he comment on an apparent contradiction? I am a little more sympathetic to the Home Office than the noble Lord is. I put down a Question about how many people who had speeding notices were prosecuted or, to put it the other way, not prosecuted because they were driving with false plates and so on. The Answer was that this information is not collected centrally but is down to local authorities. We have to balance this problem of so-called “overregulation” with the fact that, as the noble Lord is worried about, Whitehall is not capable of collecting information centrally. Perhaps he would think about that contradiction.
My Lords, of course the information should be collected. To have proper management you need information, because then you see what you need to do and what you do not need to do. A great deal of this Bill is about what is not needed to be done.
Talking about swollen agencies, I have a wonderful example, which happened at my home in Suffolk. Two people from the Environment Agency appeared in a very comfortable motor car. They had stopped because they spied on our farm a pile of brick rubble, which was to be used to make up farm tracks. They spent half an hour haranguing someone who worked for us, saying that this was an unauthorised rubbish dump. Those people should not have been cruising around looking for trivia. If you have clear information, you then focus on what you need to do. In the private sector you focus on where you can make a profit. In the public sector the focus should be on where the citizen needs your help.
I do not want to detain your Lordships for longer, but I would like to say that I hope very much that this Bill will be taken seriously by the Government, that we will have time to debate it fully and that it will reach the statute book in some form or another.
My Lords, before the noble Lord sits down, perhaps I might correct him for the record. The Bill stipulates that entry into someone’s home should take place only between 8 am and 6 pm on weekdays, not the much less agreeable time span of 6 am to 8 pm that he imagined.
My Lords, with the permission of the House, I rise to speak in the gap. The views that the noble Lord, Lord Marlesford, has just expressed are consistent with his general sympathy for the introduction of national identity cards, which, equally, are about information available to the state.
I congratulate the noble Lord, Lord Selsdon, on introducing this Bill. I had no intention of speaking today because I thought that the Bill would be taken later in the afternoon and I did not expect to be here, so my comments will be brief.
I particularly welcome the fact that the Bill is realistic in its objectives in the sense that it excludes intelligence, police and HM Revenue and Customs, because, if there were any public concern about the contents of the Bill, it would be that the services provided in those areas might be compromised in some way. They will not be as a result of the Bill.
I also welcome the Bill because it establishes the principle of records being kept of all occasions when these powers are being used. This information is not generally available, and the provisions in paragraph 33 of Schedule 2, and those in paragraph 34 on the wider availability of the information gleaned under paragraph 33, are welcome to those of us who believe in the widest possible application of freedom of information.
I also welcome paragraph 6 of Schedule 2, which requires that a copy of the code must be carried by all those exercising the powers to which it applies and that it must be made available to the occupier of any premises entered. Like the noble Lord, Lord Cobbold, I was astonished to read the substantial list of legislation that provides for potential entry by people under warrant or whatever. I did not know that the powers were available on such a scale in such a wide variety of conditions. Every citizen in the land should know that they, as individuals, have access to the code and should be sure and satisfied that the conduct of a person applying the code is proper under the law.
As I said, I welcome the Bill. I hope that some way can be found to take the provisions forward. There are one or two little areas where I have a slight reservation but I am sure that they can be dealt with at a later stage.
My Lords, I congratulate the noble Lord, Lord Selsdon, on the introduction of the Bill and assure him of full support from these Benches as it progresses, subject only to improvements to its form that we hope to be able to make.
The noble Lord wondered whether he should be presenting to your Lordships a code of conduct or a code of practice. Whichever you call it, the nature of a code is that it offers guidance rather than imposes requirements. Therefore, there is a certain amount of latitude in the practical application of that code. I shall come back to that theme in a moment.
I also congratulate the noble Lord, Lord Selsdon, because he has obviously persuaded the Prime Minister to his way of thinking, as the PM’s speech on liberty on 25 October 2007 to the University of Westminster incorporates many of the noble Lord’s ideas. That speech, if I may use an appropriate sentiment for the Christmas season, appeared to us on these Benches in this way: those who have dwelt in darkness have seen a great light. The Prime Minister said in that speech that he wanted to work together with other political parties and that he was going to start,
“immediately to make changes in our constitution and laws to safeguard and extend the liberties of our citizens”.
He specifically referred to,
“respecting privacy in the home, new rights against arbitrary intrusion”,
“The advancement of individual liberty depends upon the protection from arbitrary interference of the person and private property and, above all, the home”.
He also announced that the Home Office was working with the Association of Chief Police Officers to see whether they could bring together,
“all existing police powers of entry into a single understandable code”.
However, he went on to refer to the powers of entry that many other public authorities have. He told us that,
“the Home Secretary will establish and coordinate a wider review of all other powers of entry”.
I should like to ask the Minister whether this work has started. If it has not started, when will it start, and what is the programme for its completion?
The Prime Minister said that any change would be accompanied by guidance on how those powers should be exercised—the exact point made by the noble Lord, Lord Selsdon, about the production of this code—and he talked about the rights that members of the public have,
“to take action if those expectations are not met”.
That comes to the nub of my mild criticism of the Bill, as drafted by the noble Lord, because it does not make it particularly clear what the legal effect of failure to comply with the code will be. You cannot stop the proceedings that are in hand for a judicial review to be brought in the administrative court, so what happens if the code is breached? Nothing in the Bill says that it is a criminal offence to break any particular part of this code. Indeed, that is not what codes are about; as I said at the beginning, it is a question of guidance rather than the imposition of responsibilities.
I think that the first thing the Bill should have is a statement that the code is admissible in criminal, administrative or civil proceedings. It is very important that the code enacted by the Bill should be freely available for comment in any proceedings that may be brought. If proceedings are brought against the person whose property is entered for the imposition of penalties under whatever legislation it may be, he should be entitled to refer to the code in court and say, “Well, they were in breach of this or that other provision of the code and therefore any penalty that is imposed upon me for refusing entry and so on should be mitigated to a considerable extent”.
However, the code should be admissible if, for example, the person seeking to exercise a power of entry commits a criminal offence. What sort of criminal offences do I have in mind? Under the Public Order Act 1986, for example, Section 3 concerns affray, which is defined as the use or threat of unlawful violence. Section 4A(1) of the same Act says that it is an offence to harass, alarm or distress a person, or indeed to threaten to do so using threatening, abusive or insulting words or behaviour or disorderly behaviour, thereby causing the person concerned or, indeed, another person—perhaps a resident inside the premises—harassment, alarm or distress. So it should be admissible to control the actions of a person who is exercising a power of entry.
There is also the Protection from Harassment Act 1997, which states that it is a criminal offence if a person pursues a course of conduct which amounts to the harassment of another. There are further provisions in the Serious Organised Crime and Police Act 2005, to which this code could be relevant. So, for criminal proceedings, whether brought against the person whose home is entered or in relation to the way in which the power is exercised, obviously the code should be something to which the court may pay attention. Similarly, I said that administrative action was unlikely, but if a case were brought judicially to review the conduct of a person seeking entry or the administrative authority behind him, again there should be an ability to refer to the court.
Then there are actions in tort. When Englishmen had castles in Tudor times, actions for forcible entry were very common. The most famous one is that of Fortescue v Stonor in 1532 where there was forcible entry of property with 30 men on one side and 80 on the other. One of Lord Fortescue’s men was killed by a crossbow bullet. Things have moved on a little since Tudor times, but the civil action for trespass is still alive and kicking in our civil courts, and there should be the ability to refer to this code in any action that may be brought.
I shall be anecdotal, if I may. I was interested in the actions of the noble Baroness, Lady Miller, as a magistrate in questioning a policeman when he wants a warrant signed; asking why it is so urgent and what it is about. The noble Lord, Lord Marlesford, referred to that safeguard as well. I recall once being in Hong Kong having successfully judicially reviewed the action of a magistrate who had simply signed a warrant without even seeing the policeman who brought it. He was kind enough to invite me to dinner after our successful case. While at dinner, a knock came at the door and a young man was standing there with a warrant in his hand. Mine host, the magistrate, turned to me and said, “Now, you listen to this. What’s it all about? Why do you need it urgently? All right, I’ll sign it”. He turned to me and asked, “Is that all right?”. I said, “Well, he was in plain clothes, you didn’t know him and you didn’t ask him to identify himself”. I was surprised when he reached for my throat to shake me as a result, but he had not gone through the procedure entirely correctly.
That indicates the safeguards to which the noble Baroness referred, and how very much we value our right of privacy, our right to remain in our homes without any interference unless it is properly authorised. The code proposed here for the way in which these powers of entry should be exercised is an excellent step in the right direction. I hope that the Bill gets its Second Reading and we will co-operate in moving it on from there.
My Lords, like other noble Lords, I fully support the Bill. It is clear that the noble Lord has done a great service both to Parliament and the country by tabling this Private Member’s Bill today. It is truly alarming that it takes an individual Member of this House to bring together all the legislation under which various government departments can require or force entry to private or commercial premises.
Like the noble Baroness, Lady Miller, I have experience as a magistrate in having to consider the eligibility of a request by police for a warrant. In the case of the vast number of Acts listed, it is not a requirement that a magistrate should be involved, so there is no independent overview of what is being done in the Government’s name. There is simply a right ‘or a putative right’ depending on whether regulations have actually been made authorising such action. As the noble Lord, Lord Monson, said, most British people even now have a belief that their homes are their castles, or, as was said, “a privileged space”, and that those who come into them do so only with the person’s agreement. I guarantee that if we told any ordinary citizen—I include the noble Lord, Lord Campbell-Savours, not as an ordinary citizen but as an informed legislator, and he would not be able to answer this—that there were more than 100 Acts of Parliament, allowing officials of various government departments or agencies to demand entry, they would not believe it. They would be even less impressed if you told them that there are statutory powers where the Government appear to be unable to identify which is the host department. Over time, the names and responsibilities of government departments change, but that should not mean that information as important as this gets lost in the transition.
It is even more concerning that there appears to be a complete lack of either interest or competence in government to even keep a watching brief on what legislation gives these pretty draconian powers. As the noble Lord pointed out, the Home Office, which perhaps should be the guardian of our rights, is so disinterested that it does not appear to keep a note of where these powers lie. As the noble Lord also rightly said, where Parliament gives the power of entry in legislation, there should be a code of conduct in force as to how and when such action should be carried out. The noble Lord, Lord Thomas of Gresford, gave us a clear indication of what should be attached to that.
Should there not also be proper accountability in government for the monitoring of the use of these powers, which government put into being, and should they not have ownership of them? It is just too cavalier for this to be left in the air. Valid and good reasons can always be given—and are—for reducing the rights of citizens, it is always for “their good” or “their protection” to fight crime and prevent terror. They are all persuasive arguments and, as each piece of legislation is passed, they will no doubt have been considered and debated. I am certain that few Members of Parliament or of this House will know of, and therefore take into account, the myriad other powers that are floating about, to which other legislation will just add. It is reasonably fair to say that more or less every footmark we make in our daily lives is marked by some authority or another, whether it is myriad CCTV cameras in the street, in shops, at airports on motorways, and so on. We accept that now as a way of life, but we still need to be able to return home in the reasonable expectation that no one can just barge their way in.
The noble Lord has really done a great service by bringing all this information together. It is extraordinary that it is he who has had to ferret it out. I hope and expect that this House will give this Bill a fair reading today and that there will be some legislative agreement in both Houses that this is a very good way of starting the bonfire that we hope to see of such regulations.
My Lords, I congratulate the noble Lord, Lord Selsdon, on securing a slot for the Second Reading of his Bill and, in doing so, instituting this debate on the important issue of powers of entry. As a former naval person, he does not need to apologise for speaking with audacity. Naval persons are meant to speak with audacity, and I understand that he always does. I am delighted that he has not changed that today.
This is an important issue, and the noble Lord’s work on it is commendable and deserves the praise of all noble Lords. I am also most impressed by his knowledge of naval flags, but will not go into detail as to my distinctive pennant. I also thank him for acknowledging how bright Labour Ministers are and for offering his labour free of charge.
I know that this is an issue of continuing interest both to the noble Lord, as he explained, and to all Members of this House. That has been shown by the valuable contributions to the debate from all those speaking today. The issue of those who are authorised to exercise the powers of entry and when they may do so is already regulated by Parliament through individual statutes which grant these powers.
It should be stressed that all the individual powers which the noble Lord raises in Schedule 1 to the Bill have been subject to the full scrutiny of Parliament. In addition, Section 67(9) of the Police and Criminal Evidence Act 1984 requires that persons other than police officers who are charged with the duty of investigating offences or charging offenders shall, in the discharge of that duty, have regard to any relevant provision of a code. In this case, the relevant PACE code is code B: the code of practice for searches of premises and seizure of property.
Chapter 6 of the code sets out considerations of the time of searches, communications with the owner or occupier including provision of a notice of powers and rights, and the conduct of searches. The code applies a degree of discretion to take account of operational requirements. For example, in terms of the time of searches, paragraph 5.2 indicates that:
“Searches must be made at a reasonable hour unless this might frustrate the purpose of the search”.
The noble Lord’s Bill removes that operational discretion and instead provides that no entry shall take place on a bank holiday or public holiday and that entry shall take place only between 8 am and 6 pm between Mondays and Fridays and, for business premises only, at any other time when the business is open. Therefore, the Bill does not simply seek to consolidate the existing powers. Instead, it seeks to set a prescribed limit on the times when entry may take place, the maximum number of persons permitted to enter premises, the production of documents and the seizure of documents.
The role of the investigating or enforcement officer is not so precise. The objectives of the noble Lord’s Bill are laudable but, as Parliament has identified in the passing of individual statutes, there are occasions on which discrete powers and the exercise of those powers are required to deal with specific operational situations. The noble Lord, Lord Monson, referred to Clause 6 and time but, for example, colleagues in weights and measures advise that activities that might lead to fraudulent practice are often conducted outside of normal business hours, such as fraudulently preparing documents, adjusting weighing or measuring equipment, meter manufacture or preparing short-measure packages.
However, the Government—and certainly this Minister—have great sympathy with the intention behind the noble Lord’s Bill. As the Prime Minister indicated in his speech on liberty made on 25 October, there is the need for additional protections for the liberties and rights of the citizen, and that one of the strongest guarantees is a clear understanding of what these rights are. That is more difficult with the very existence of hundreds of laws.
The Prime Minister added that the Home Secretary is working with the Association of Chief Police Officers to examine, in the name of clarity and the greatest possible protection for the individual, the scope for bringing together in a single understandable code all existing police powers of entry. He went on to say that,
“besides the police, many other public authorities covering areas like public health, animal welfare, health and safety, and customs and excise, also have powers of entry. So, alongside the review of police powers, the Home Secretary will establish and co-ordinate a wider review of all other powers of entry”.
The key objectives of the review are, first, to produce a comprehensive list of powers of entry, inspection, search and seizure to provide clarity for police, investigating agencies and, more importantly, the public; secondly, to develop a statutory framework for all existing powers and scrutiny criteria for all proposed new powers; thirdly, to enable development of public-use information material to raise awareness of businesses and individuals of their rights and expectations and what to do if those expectations are not met. This work is being taken forward in conjunction with the review of the Police and Criminal Evidence Act 1984. Reference to powers of entry and whether there should be a discrete framework of powers for all agencies was included in the PACE consultation paper issued in March 2007. In response, the Bar Council indicated that:
“We consider it desirable that the powers of all those charged with investigating crime, preserving order, transporting offenders etc could be contained in one accessible piece of legislation”.
The PACE review is due to complete its final stage of consultation in spring 2008. It is intended that by then we can produce proposals around powers of entry for non-police agencies, including options on a single statutory framework, safeguards for and rights of the public and, importantly, a review of the existing powers and whether they remain necessary and proportionate. The last element is a key aspect of the review and one which the noble Lord had not taken into account in determining the contents of the Bill.
I hope that Members of this House, including the noble Lord, Lord Selsdon, appreciate that the aim of such a review is not simply to consolidate existing legislation, but to raise awareness and understanding of what can be done and by whom and what redress the owner of the business or the occupier of the premises has if those exercising the power do not comply with their statutory function. That point was raised by a number of speakers.
I shall try to address some of the detailed questions. If I miss any, I shall respond in writing, and there will an opportunity to discuss this further in Committee. The noble Lord, Lord Selsdon, raised the lack of detailed knowledge of how many powers of entry and enactments there are. It is surprising that we have not had a better view in the past. That point was also touched on by the noble Lord, Lord Marlesford. We now know that there are 680 powers of entry contained in 323 enactments. As the noble Lord pointed out, when the Mitchell review was carried out in 1980, it identified 700 different powers but concluded that there might be more and was unable to provide a complete list. I am glad to say that we have the information now but considering the matter was being looked at in 1980, that is not impressive.
When I realised that there were 680 powers of entry and 323 enactments, I was amazed. I only became aware of the figures when I was preparing for this debate. The noble Baronesses, Lady Miller of Hendon and Lady Hanham, the noble Lord, Lord Cobbold, and my noble friend Lord Campbell-Savours were all surprised and amazed. Indeed, the House in general was surprised and amazed. It is clear that something needs to be done about it, and I hope that noble Lords can tell from what I have said that something is being done about it.
The noble Lord, Lord Selsdon, raised a number of detailed questions, and I shall respond to them in writing, where I can, and place a copy in the Library of the House. I do not think he would expect or want me to try to respond now or we would be here until tonight, if I could manage to do so. The noble Baroness, Lady Miller, mentioned a bonfire of regulations, and I agree with her view that we do not seem to have moved as fast as we should have on this. I have no doubt that we need to reduce and rationalise the amount of legislation in this country. I will try to achieve that in my post, and I know that the feeling in the Government is that we must do something about this and must start making it happen.
I thank the noble Lord, Lord Marlesford, for his hopes for me. I hope that he did not feel that he got second best by getting a Home Office Minister rather than a Minister from another department. I think my remarks have covered the points he made. The balance between knowledge, the data we gather and how we analyse them, and freedom is interesting and difficult. My noble friend Lord Lea of Crondall pointed that out, as did my noble friend Lord Campbell-Savours when he mentioned ID cards. This is a difficult issue because good data are necessary to administer and control, but people in Britain instinctively dislike data-gathering because we feel we are individuals and we do not like people intruding in our lives. I hope we will get the difficult balance right. I think we have probably got it right, but we always have to be very sensitive to it.
The noble Lord, Lord Thomas of Gresford, mentioned the Prime Minister’s speech. Well before this debate, I discussed with the Prime Minister many of the issues that he, the noble Lord and I feel strongly about. That discussion did not take place in darkness as the noble Lord said. The depth of my knowledge of English history is not such that I can refer to a Tudor incident—Fortescue v Stonor—but I was very interested to hear about it. I hope there will be no crossbow deaths in future.
Finally, to answer the noble Baroness, Lady Hanham, the Home Office is certainly not disinterested in this; it is very focused on it. I mentioned the important work that is going on. Again, I thank the noble Lord, Lord Selsdon, for the work that he has done, which has helped dramatically.
I hope that I have answered most of the points raised. As I said, there is a degree of support for the direction of the Bill, but there are also substantial areas of work that require to be completed. Once we have completed those tasks, the Government intend to put the matters before the public through consultation to seek their views, and those of stakeholders and practitioners. That is the most appropriate way forward.
I acknowledge the level of interest and considerable effort that the noble Lord, Lord Selsdon, has given to the matter, as I have mentioned several times. If he would find it helpful, I would be very happy to arrange for him to meet with officials once work has been completed on identifying the full list of powers, the relevant officials who may exercise them and the associated protections and safeguards in place for the public.
My Lords, I am extremely grateful to those who were kind enough to support this initiative. Like all initiatives, this is only the beginning. I am grateful to the noble Lord, Lord West, for doing an Admiral West. There was a slightly schizophrenic aspect: when he was reading the civil brief, it did not make sense at all; when he spoke as himself, he made a lot of sense.
Just to give the Home Office a bit of guidance, I refer to the reply to a Written Question by the noble and learned Baroness, Lady Scotland. It states:
“A record of all powers of entry is not maintained centrally. In July 1983 the Prime Minister agreed that the Home Office, together with the then Scottish Home and Health Department and Northern Ireland Office should take responsibility for scrutinising proposals to create or re-enact powers of entry within their home jurisdiction”.—[Official Report, 23/11/05; col. WA 219.]
That Question was answered in the same way by all other government departments.
As I said, I thank everyone who spoke and I will follow the old-fashioned rule—I have even brought a pen in and I am trying to do joined-up writing, because I was told when I first came to this House by Earl Home, “My dear chap, we can’t type very well, so therefore we write. If you haven’t got joined-up writing, it doesn’t matter; it is a sign of lack of consistency”.
I remind the Minister that this place, the House of Lords, is pretty good. The Clerk of the Parliaments is in this House. The Public Bill Office, which has done so much for me, has so much knowledge, and the Library here is better. There are occasions when certain Bills, even if they are Private Bills—because all the Bills that come to us are Public Bills—might start in this place.
It is a monumental task. I may get the quote wrong, but as Lord Birkett said, “You know, when you are dealing with government departments and all the different bodies of state, it makes you feel like a rather strange mongrel dog confronted with an ever-continuing line of lamp posts and wondering if you have enough power to get to the end”.
I feel that I must shut up now. I would like to take matters further. I take up the Minister's suggestion of meeting with officials; I have a great regard for them. As he knows well, the school that brought me up has more officials in government than any other. I commend the Bill to the House.
On Question, Bill read a second time and committed to a Committee of the Whole House.
House adjourned at 1.04 pm.