My Lords, I am in a difficult position because I spent a large part of my life in the construction industry and fire protection and I wonder whether I should not perhaps have spoken on the Bill of the noble Lord, Lord Harrison, because I shall be a little repetitive. The difficulty that I face is that my family spent a large part of their life in public service; I have never been in public service, only in private service, which is perhaps why we have to have a Private Member’s Bill when the public sector has failed.
There is a bit of history here. The wonderful thing about your Lordships' House is that many people will not have heard what I said before—some, such as the noble Lord, Lord Campbell-Savours, will have—and I may therefore be repetitive. I have embarked on 35-year journey. My family has a motto: Deus providebit—God will provide, although he has sometimes not been terribly helpful on political issues; but we also had a saying that there were only three things that you could do. First, you could advise people, in which case you joined the professions, although I have to say that the professions today spend more time trying to stop people doing things than protecting them. Secondly, you could take the credit for them that did it, in which case you became a politician, but politicians have become more and more impossible. The third option was, if you were a man, you did it yourself, which is what I have tried to do today and in the years past.
It stems back to when I was an employee of the Midland Bank and we were concerned about the privacy of our clients. People were going into houses, seizing documents and copying things. What were the rights and what was the law? The banking rules were clear: you had to respect and know your client, and you had a duty of care towards them. We employed only 33,000 people in those days, which was the same, I think, as the British Navy, but we were concerned. Since I happened to be a Lord—the only one in the whole bank, I think—they turned to me and said, “You should do something about this politically”. Of course, I could not, but we sat down and worked out what the problem was. Effectively, it was that there were numerous powers of entry which nobody knew about. We therefore sat down to prepare a list. We then thought that the best thing to do, because Ministers did not like to respond to private sector things, was to talk to the House of Commons.
Over a period of many months in 1975 and 1976, Questions were tabled in the House of Commons to ask the Government what their powers of entry were. Nobody seemed to know. The most helpful Minister, as the noble Baroness, Lady Hamwee, may well have expected, was Dame Shirley Williams, who then left the Labour Party and joined the Social Democratic Party. However, there were no answers, so we went on asking questions. When I came here, I went to see the Chief Whip and asked, “What do I do?”. He said, “My dear chap, you ask a question”. So I asked a question and got what was not deemed to be a satisfactory answer.
Over a long, long period of time, I asked more and more questions. What were the powers of entry? One of my more recent questions was to ask the noble Lord, Lord West, what powers of entry Ministers have. The answer was that Ministers do not have powers of entry. As I got used to it, I would write the answer that I expected government to give and then asked them other questions.
I consulted again on what I should do. The powers that be said, “Send them a Bill”. I thought that I was to ask the Government for money. I had not fully understood that a Bill can have a great advantage, because it is an instrument that is printed and you can debate and discuss it. I therefore introduced a Bill in 2006. I just introduced it; I did not do any more. I then introduced a Bill in 2007, which went through the House. Then everybody said, “Well, in order to get it any further, you must get someone in the House of Commons to take it up”.
Powers of entry are to me a public and a government issue and not necessarily a private issue, but they affect private individuals. I therefore introduced another Bill in 2008 which was exactly the same as that of 2007. All that the Bills have done is to say that you should not allow an official of government or of any body to enter somebody’s property and seize or search without permission or without a court order. The difficulty was that nobody knew how many permissions or powers of entry there were. We went on asking questions and could not get the answer, and then finally I was introduced to Professor Richard Stone, who wrote the authoritative book on this. When I asked questions to Ministers who were helpful, I told them that they could get the answer from the Library from Richard Stone’s book, and some did. But the answers were totally unacceptable, because the problem was that the Government did not know what their powers of entry were. In the schedule to the Bill we have put in 200 or 300, but nobody could determine it and there was not a single ministry or department that knew its powers. Worse than that, the private sector—the householder or homeowner—had no idea either.
So here you have a situation in one of the best democracies in the world, where the ministries of government, officials and others, have no idea what their powers are and how they should implement them. As a result, on one side you have legislation that gives powers to the state, but the state does not know what those powers are; on the other hand, you have the private individual, with his home and household, who has no idea what the powers are. Also, he has no idea who is who. As industries have been privatised, for example, so the gasman is now employed by a private sector company and many organisations have been merged and become more and more complex. With every new piece of legislation, there tends to be another power of entry, and as we move into the electronic age, the householder or private individual feels more and more insecure. He fears the knock on the door. Before, he—or she—knew that it would be the milkman. You knew the postman’s knock. You went to the door because you wanted the milk, or the bread, or your letters; now there is a certain fear that the letters or documents that come in may bring bad news, ask you to do something or frighten you, or that it may be another bill. So the householder’s home may be his castle, but he has no idea who comes in and fails to identify themselves. I am not saying that there is much fraud, but it would be helpful if all those who had powers of entry adopted a code of conduct, which simply means that they should identify who they are, say why they are there and in a friendly manner proceed to things without knocking the door down. But doors have been beaten down, and your Lordships will have seen it in the press again and again.
When I introduced the last Bill, I went to see the noble Lord, Lord West, who was very helpful but did not really want to do anything—or his further authorities did not want to do anything. So we thought that we should quietly let No. 10 know that there was a Bill. A few days later, on 25 October, the Prime Minister got up and made a “liberty” speech, as it was called, about the freedom of the individual and the need to deal with these powers of entry. That started the movement. The noble Lord, Lord West, said that we ought to meet, because I had tabled my Bill as an amendment to a regulatory reform Bill—at the end, just to make life difficult. I was advised that this might hold other things up. So the whole Bill became an amendment to another Bill, but I agreed to withdraw it, if we consulted.
Being a Scot, I always like Scottish names. My family name is Thomson, without the “p”. I was then introduced to Mr Brown, who is without an “e” and is therefore Scottish. Everyone needs a Mr Brown; Queen Victoria had a very helpful Mr Brown. I found that after a discussion with Mr Brown and his colleagues—and I cannot identify in which department that was—we had a surprising community of interests. We then set up together a public sector Bill team, as we called it, with Liberty, the Centre for Policy Studies and Mr Brown and his team and bothered and set out with Richard Stone to work out the pieces of legislation and regulations that gave powers, and to whom. I asked a few more questions and, naturally, the official Civil Service did not want to be bothered with too many questions. However, quietly, over the summer period, in quite a remarkable way, Mr Brown and his team produced a schedule which is terrifying but extraordinarily impressive. I cannot display big documents in your Lordships' House, as it is against the rules, although I could have held up a single piece of paper. But here we have identified 700 or 800 Acts of Parliament and secondary legislation, to a total of somewhere around 1,200 powers of entry, which no one else knows about and no government department knows about.
So what do we do? My hope is that this Bill now moves to Committee and that at that stage we can amend the schedule of Acts in it, because it is wrong—it will always be wrong from time to time. To go with that, we have the code of conduct. One situation that has been made is that there should be a code of practice for all Bills in future. But the difficulty lies in communicating this to the general public. Logically, it would be done by a website or by email, but most people do not know how to do that; householders cannot find the information and get frightened by it. So we need something simpler. I thought that we should co-operate from this House—and I believe that any legislation that affects the freedom or rights of the individual should if possible start in this House in the first place and then go to the Commons, rather than the other way round. That would be one of my objectives. We got in touch with local government authorities, because every power of entry will be exercised at a property in a local authority area, and local authorities do not know their own powers of entry. So we will see whether in the course of next week we can set up some form of website, linked to the Home Office website, which will start to promote and encourage an understanding of what these powers of entry are. There are many fun ones, which people have forgotten about, and there will be many more to come. A terrifying thought is that new legislation is coming in. I was just handed a Bill about hatching of eggs. The powers of entry in that Act are four or five pages long.
Somehow, we need to simplify everything—and it is a simple matter. All powers of entry should be registered and understood, and anyone who exercises them should enter only at a certain time of day and not at weekends and not in the middle of the night, and should not knock the door down, should be courteous and friendly and have a sign that says who he is—and in big letters, because some people will not have their glasses on when they go to the front door and will be frightened about who they are letting in.
My proposal is to take these issues further—and I hope that we will be able to debate this here today. I would be grateful for your Lordships’ help, because at a local level this becomes particularly important and within regions there are many differences. But I have one question for the Minister. Under the dangerous Weeds Act, is cannabis, the weed of wisdom, classed as a dangerous weed? There are other pieces of legislation that you can go through—but I have said enough. I hope that your Lordships will understand that I am trying to seek good will and encourage the Government, so that when we introduce a new Bill at the end of this Session or the beginning of the next, it will work. The plan is that this Bill will go to Committee and we will put some amendments in; it will then go to Report and pass just a week before the election. Then we will introduce a new Bill, one hopes with government support—or the Government will permit a new Bill, or set up some form of pre-legislative scrutiny committee in the House to get all these things under way. I beg to move.
My Lords, I support the noble Lord on this Bill. He is to be applauded for drawing attention to the huge proliferation of these powers, insidiously to some extent, because these extensions of powers of officialdom to enter private premises are not widely known and are very difficult to find if one wants to identify the particular power being exercised. The vice of these powers is not only that they are difficult to find and identify but that far too many are exercisable, not only without the consent of the occupier or owner of the premises in question, but also without the authority of a warrant. We are all familiar with warrants for the police and others to enter and search premises, look at documents and remove objects and so forth when necessary for their function, be that the prevention of crime or some regulatory function, but the notion that these powers can be exercised without consent and without a warrant—without, therefore, any judicial control—needs special and careful justification.
I think it would be accepted that, in circumstances of imminent danger to life or property, there must always be rights for appropriate people, be they the police, the fire services or whoever, to enter the premises and deal with the immediate situation. Subject to that, though, there ought to be acceptance of a general overarching principle that the right of the Executive, of persons appointed by the Executive, of persons appointed by some quango or of an individual exercising some statutory authority to enter premises, to search the premises, to remove documents and do all the other various things that I have referred to should not be tolerated unless done either with the consent of the owner or occupier or under the authority of an order of the court—a warrant.
There are many primary Acts that provide, in entirely unexceptionable terms, for powers of entry of the sort that are acceptable. A recent example—indeed, it is not yet an Act—is the Cluster Munitions (Prohibitions) Bill, which was before this House recently. On Wednesday 6 January, just over a week ago, the House approved the enforcement provisions contained in that Bill. Those provisions provide powers of entry into the premises of arms dealers and munitions manufacturers for the purpose of enforcing the ban against the manufacturer of, or dealer in, cluster bombs. The provisions make it clear that the powers of entry are not exercisable except with the consent of the owner or occupier of the premises—the arms dealer or munitions manufacturer, as the case may be—or under the authority of a warrant granted by a court. The circumstances in which the warrant can be granted are spelt out. The case has to be made for the need to enter and search. That, in my respectful opinion, is as it should be.
It would be tedious to research the whole area of primary legislation that gives similar powers in entirely unexceptionable terms, but there are Acts and innumerable statutory instruments on the statute book that grant powers of entry, search and so forth, some of which grant those powers without requiring any consent or the production of any warrant from a court. The Medicines Act 1968 is an example that I happened to look at in connection with a statutory instrument that I shall mention in a moment and which came in front of the Merits Committee, to which I had the privilege of being appointed in November. I am told that there is also a veterinary Act that has similar provisions. The Medicines Act provides a power to inspectors—to regulators—to enter any premises, including domestic premises, without consent or a warrant, but then goes on to provide for circumstances in which a warrant can be applied for. This is a formula—repeated, I think, in the statutory instrument on eggs that the noble Lord, Lord Selsdon, referred to, and in four or five statutory instruments that have come before the Select Committee in the short time that I have been a member of it—that provides for a warrant to be applied for in circumstances that are comprehensive of any need to enter. These include cases where there has been refusal or there is likely to be refusal by the owner to permit the entry, cases where there is some great urgency that does not permit the risk of a refusal to be taken and cases in which the premises are unoccupied. Four situations were set out; there is one other that slips my memory for the moment. The circumstances are as comprehensive as one could expect. Why, therefore, given the comprehensive spread of the ability of the authorised person to go to the court and get a warrant, which can be done very quickly, is it necessary also to give a power to enter without consent and without a warrant?
Moreover, it is a feature of the Acts and statutory instruments that contain provisions of this sort that a refusal to allow entry is a criminal offence. One could potentially have a situation in which the official knocks on the door and says, “I have a right to enter and search your premises”—let us suppose it is a dwelling house—and the homeowner, surprised, says, “Well, may I see your warrant?”. The official says, “I haven’t got a warrant and I don’t need one”, so the homeowner says, “That’s not good enough”, and slams the door. That is a criminal offence. The authorised person can go off to obtain a warrant, come back and go in by force if necessary, but why should it be a criminal offence for a homeowner to refuse entry to someone who does not have court authorisation to enter? No doubt in the vast majority of cases, when regulators get in touch with the owner or occupier of the premises that they desire to enter, the owner will say, “Fine, come and look”, but that would be a case of consent—an acceptable condition for entry, I would suppose.
The vice that needs to be addressed, and which the noble Lord’s Bill seeks to address, is the proliferation of powers of entry that require neither consent nor a warrant. The noble Lord referred to the trite saying that a man’s home is his castle. The proliferation of these powers offends that principle. There may be private premises where these powers of entry without consent or warrant do not matter so much. I suppose that open land, agricultural land, moorland and woodland would fall into that category. It might be arguable that it would not matter so much if there were a right to enter commercial buildings without consent. I would not accept that argument, but it might be an argument that could be put. But to allow this power to insist on entry to domestic dwellings without consent and without a warrant under the threat of criminality if there is a refusal is something else again. This must be addressed, and the noble Lord’s Bill would address it.
For those reasons, I strongly support the intentions behind the Bill. I have read it carefully. There are a number of drafting difficulties about it at present, but they can be addressed later. The Bill deserves a Second Reading.
My Lords, the whole nation owes a great debt of gratitude to my noble friend Lord Selsdon for introducing this important Bill. He is to be congratulated on all the hard work that he has done with the help of Home Office officials in preparing the Bill and, for the first time, revealing to the nation the gigantic number of powers of entry contained in some 1,200 statutes, comprising both primary and secondary legislation.
I have, in the past, been a severe critic of the Home Office for its constipated and unwelcoming approach to new ideas from outside its own magic circle, so it gives me particular pleasure on this occasion to be able to offer it a bouquet on its positive approach to this vital constitutional subject. Indeed, if it continues in this vein it may indicate a major cultural revolution, which should be welcomed by both libertarians and by those for whom efficient but limited government is a priority. I aspire to be a member of both of those groups.
A preliminary list is in the schedule but, in addition to mere lists of the primary and secondary legislation containing the powers, my noble friend has shown me the very detailed description of the exact powers and conditions in each of the statutes. The purpose of the Bill goes to the heart of our parliamentary democracy and, indeed, echoes the evolution of the struggle for the protection of rights of citizens, which goes right back to 1215. Magna Carta itself has the following provision:
“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land”.
Parliament has let down the spirit of Magna Carta in allowing the law of the land to become, in far too many cases, oppressive and disproportionate in its execution.
The Bill also echoes the development of habeas corpus, which goes back to the 17th century, although cases involving habeas corpus are known in English law back to 1214. Perhaps I might mention the amicus curiae brief that the noble and learned Lord, Lord Goldsmith, along with 252 members—I am one of those amici—of both Houses of the United Kingdom Parliament, together with the Scottish Parliament, the European Parliament and the Welsh Assembly, submitted this month to the Supreme Court of the United States in the matter of certain Uighur detainees in Guantanamo. I strongly recommend that those who are interested in the evolution of our ancient freedoms should read the brilliantly written and detailed descriptions by the noble and learned Lord, Lord Goldsmith, of the struggles against both monarchs and over-mighty Executives to retain habeas corpus.
My noble friend’s Bill seeks to regulate the use of powers of entry to make them less overbearing, disproportionate and intrusive than they have become. No one denies that, in a well-regulated and democratic society, the servants of the state need many powers to oversee, administer and enforce the laws of the land. Unfortunately, as life grows evermore complicated, more and more legislation is churned out by the Executive. Much of it is ill-considered and ill-drafted and it has, in recent years, relied almost entirely—given the deplorable routine use of the guillotine in another place—on your Lordships’ House for scrutiny and improvement. What I find wholly unacceptable is the way in which powers of entry can all too often be administered without the authority of a magistrate. The noble and learned Lord, Lord Scott, who has just spoken, made that point extremely clear. Those powers are thus fodder for every officious official who likes to display his supremacy. This applies in particular to local government and, of course, to the multitude of regulating quangos.
What an irony it is that the police generally require a warrant to enter private premises, yet in the mass of the statutes listed in this Bill the use of a warrant is not generally required. Of course, we recognise that there are many important occasions— some of them dramatic, such as the prevention of terrorism or serious organised crime, and some routine, such as the inspection of premises under standards rules—where unannounced entry is necessary. For those purposes a warrant may or may not be required as well. What a paradox it is, however, that in recent years the most careful arrangements have been made to lay down detailed rules for the supervision of the interception of communications, yet Parliament has legislated in a myriad of ways to allow entry to premises without the slightest attempt to ensure that the powers are appropriately and proportionately used. It is clear that in the great majority of cases all the information required can be obtained by co-operation and consent but where compulsory entry is needed, it should—with the exceptions that I have already mentioned—be subject to the warrant of a magistrate.
Your Lordships might remember that on 15 June last year this House took a small but, I believe, important step in reversing the previous trend. At the Report stage of the Political Parties and Elections Bill, we inserted an amendment with support from all sides of the House, by a vote of 152 to 105, to require that the untrammelled powers of entry which had been put into the Bill should be subject to a magistrate’s warrant. The Government subsequently accepted that amendment and I am grateful to the noble Lord, Lord Bach, for doing so; it is now in the Act. I am intending to table an amendment in Committee on this Bill to require that all future legislation, primary or secondary, which includes powers of entry should have the use of such powers spelt out along the lines of this Bill, particularly to ensure that, with clearly defined exceptions, the exercise of all such powers for entry without consent would require a magistrate’s warrant.
I hope that the Government will accept this Bill and build upon it, so that all future legislation with powers of entry would be much more tightly drawn. I should like to see a publicity campaign to encourage members of the public who feel that they have been subjected to disproportionate or abusive powers of entry to report it, perhaps through the Parliamentary Ombudsman, so that Parliament can take necessary steps to control the Executive. That, after all, is one of our fundamental mandates on behalf of the people.
I am very sorry that the noble Lord, Lord West, is not able to be here to respond on behalf of the Government, because I am aware that he has done much to encourage and assist my noble friend in preparing the Bill. The noble Lord, Lord West, is one of the few successful GOATs who have joined the Government Front Bench and I would be happy to see him remain there when there is a change of government. I believe that, however little it is initially noticed in the wide world, we will today be taking an important step to reinforce the rights of our citizens for which our forefathers fought so hard.
My Lords, I support the Bill and congratulate my noble friend on introducing his measure. This subject is particularly important in the context of the forthcoming Olympic Games to be held in London in 2012, and in that context I declare my interests as chairman of the British Olympic Association, as a director of the London organising committee—the body established by the Mayor and the BOA to oversee the delivery of the Games—and as a member of the Olympic board which has oversight of the Olympic project.
The relevance of this Bill to the Games was made clear by the president of the International Olympic Committee, Jacques Rogge, when he stated on 29 October last year:
“Our view is very simple: athletes competing in the UK must submit to UK law. There is a rule that guarantees the rights of citizens and residents and that will rule the issue of searching rooms”,
at the Olympic Games in London. I wish that were the case. What concerns President Rogge is the greatest challenge to competitive sport; the intent of a few—a very few—athletes, coaches and suppliers of banned drugs and performance-enhancing substances to give a competitive advantage through cheating and deception. I intend today to use the example of doping in sport, and the importance of the provision of legal powers to search premises with a warrant, as a case in point to underline the importance of the Bill.
President Jacques Rogge, a medical practitioner himself, has made tackling drug abuse in sport a priority for the International Olympic Committee. His laudable commitment, supported by Professor Arne Ljungqvist, has been supported by the World Anti-Doping Agency, which, under the current direction of its president, John Fahey, has sought to become a friend of sport in seeking to establish a global programme of measures to tackle cheating through the use of performance-enhancing drugs.
In this country, I have sought for many years to persuade the Government to establish an independent anti-doping agency and I have spoken to that effect in your Lordships’ House on many occasions. I congratulate Ministers, particularly those in the Home Office, who have worked to put in place the independent anti-doping agency, UKAD, members of which are now working to ensure that it is supported in its work with the relevant powers of entry, authority, co-operation with law enforcement agencies and financial support to tackle the supply chain and the importation of banned substances under the WADA Code. If successful, we can, through proactive work, ensure that the United Kingdom never becomes a home for a BALCO, the genesis of Operation Puerto or a ready base for those who seek to make a living through the promulgation and use of banned performance-enhancing substances in sport.
In this context, I congratulate Andy Parkinson, the chief executive, on his leadership and direction of UKAD. No such agency can succeed without the chief executive earning the respect of his colleagues and peer group. He has achieved that already. With people of this quality in charge, there is real hope for those who seek a proportionate yet effective programme of action against doping in sport. Without such action, we will have competition between chemists’ laboratories, not between top-level athletes. That would endanger the health of young athletes and wreck the principles on which fair competition in sport is built.
Since I introduced the first inquiry as Minister for Sport back in September 1987, which produced a report entitled The Misuse of Drugs in Sport, I have held the belief that we need primary legislation to address a number of areas in this field. In recent months, I have been working on a draft Private Member’s Bill to introduce the legislation required to enact relevant measures, which will cover tackling the supply chain, sharing information and—directly relevant to this Bill—establishing the legal framework for entering premises with a search warrant to support the work of the IOC, WADA and UKAD. Today's Bill may be the vehicle to address the key issue raised by the president of the International Olympic Committee. Following close consideration of the debate today, and subject to the timing of the Bill in Committee, it may be possible—I hope that it will—through amendment to provide the legal framework for the relevant agencies to gain entry with a search warrant into premises during the London Olympic Games in 2012 and to provide the legal framework necessary to take action against those who are in breach of the WADA Code.
When this subject was first raised, the public debate went to the heart of the Bill. On the one hand, it remains my firm view that any powers to enter premises for the purpose I am outlining must be with a search warrant and that, in turn, the police must have sufficient cause to believe that an incident has been committed which is sufficiently persuasive for a magistrate or a court to provide such a search warrant. On the other hand, there are those who seek legal powers to allow the police to undertake random checks without a warrant, a subject recently aired by the British Athletes Commission. For the avoidance of doubt, random checks for this purpose would be wholly unacceptable to me, as I am sure they would be to the movers of this Bill, who emphasise the importance of obtaining search warrants and the pursuance of the due process of law.
However, I regret to inform the House that, at present, there are no powers available to the police which would allow them—either during, before or after the Olympic Games in London, 2012—to search premises for evidence that, say, the banned practice of “blood doping” in sport was taking place; thus my call for primary legislation in this area.
Much work is being done by the CPS, the British Olympic Association, LOCOG and government officials on this subject. I commend their commitment and detailed review of these issues. Our consideration of this subject in Parliament should seek to continue to work in parallel with the cross-government working group and with the results of full engagement with the law enforcement agencies. We need to see where the gaps are. We need to consider how to tackle breaches of the WADA Code. We need to act against blood doping and the increasing prevalence of gene doping. We need to avoid legislation being rushed through Parliament as a result of a doping scandal in sport.
London 2012 is the driver. We need to ensure that we do not give the police draconian powers, but seek the level of scrutiny, process and checks and balances required before searching premises with a warrant. We have the opportunity to give the Olympic world considered legislation that embraces best practice worldwide in order to tackle the challenges faced by the growing sophistication of those engaged in doping in sport.
To provide the House with one key example, I will focus on where there is evidence of blood doping, or where it is alleged, and, in so doing, seek to reflect some of the invaluable work under way by members of the cross-government working group, which I have mentioned. Blood doping is topical. It is a matter of concern both to the IOC and, in particular, to winter sports. It was a major issue in the Turin Winter Olympic Games four years ago and is high on the agenda for the Vancouver Winter Olympic Games which begin next month.
There are those who believe the Fraud Act 2006 is the best way of tackling the practice of blood doping in sport. I have serious reservations about that proposition. Any case referred to the CPS by the police for consideration of the question of prosecution must be reviewed in line with the test set out in the code for Crown prosecutors. This test has two stages. First, the CPS must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge. This means that a jury or a bench of magistrates or a judge hearing a case alone, properly directed in accordance with the law, is more likely than not to convict the defendant of the alleged charge. If the case does not pass the first stage—the evidential stage based on the strength of the evidence—it must not go ahead, no matter how important or serious it may be.
The advice offered to me is that an athlete found in possession of blood and/or blood doping paraphernalia could potentially be guilty of an offence of possession of an article for use in the course of, or in connection with, fraud, contrary to Section 6 of the Fraud Act 2006. An athlete who injects himself with blood prior to an event could be guilty of an offence of attempted fraud contrary to Section 1 of the Criminal Attempts Act 1981. An athlete who injects himself with blood prior to an event in which he then competes could be guilty of an offence or fraud by false representation, contrary to Section 2 of the Fraud Act 2006.
However, as lawyers would rightly point out to me, the Fraud Act 2006 was not envisaged to cover cheating in sporting competitions. As one legal adviser put it,
“there is a sense we would be shoehorning the offence into situations for which it was never intended".
The courts would be resistant to such an approach and I am certain that supporters of this Bill would share that view as a matter of principle—particularly since the current Government's view, which I share, is that criminalising athletes for doping is a disproportionate response to a sporting problem. However, I do believe in criminalising the supply chain.
Moreover, it would be questionable whether the police would be able to obtain a search warrant from a JP. The general rule that underpins the Bill is that a justice of the peace, under Section 8 of the Police and Criminal Evidence Act, has power to issue a warrant authorising a constable to enter and search premises where he is satisfied that there are reasonable grounds for believing that an indictable offence has been committed and there is material on the premises which is likely to be of substantial value to the investigation of the offence. Although fraud is an indictable offence, experts are of the view that the offence probably only takes place when the athlete competes in the event, so no offence will have been committed at the time when the premises are searched. That advice goes further when considering the Human Tissue Act 2004 and the Human Tissue (Quality and Safety for Human Application) Regulations 2007, which apply to blood and “blood components” and are thus unlikely to apply in the context of the Olympic Games.
I contend that, on this evidence, there is no likelihood under the current law that an enforcement officer would obtain a search warrant to enter Olympic premises in 2012. In other words, English law as it stands, and as applied to the Olympic Games in London, does not offer a solution which would allow anti-doping authorities to obtain a warrant to enter and search a room in the Olympic village where a breach of the WADA code is reasonably suspected; or, just as important, if not more so, premises nearby or elsewhere in England where it is suspected that blood doping activity is taking place.
In my opinion, a search warrant should be issued by the police only for the purpose of investigating a suspected criminal offence for which the CPS would have to be willing to prosecute, and not for the purpose of investigating a breach of sports rules which govern athletes. Being able to obtain a warrant to enter and search the relevant premises is the only way successfully to detect and investigate a potential doping violation and prevent the cheats from reaching the starting line. Today, no law exists in the country to provide confidence that any such warrant would be issued. Without such a law, there is the possibility of using Olympic entry forms to obtain the consent of athletes. However, there are many in your Lordships’ House who would have reservations that, without a legal basis, any such request could well fall foul of the potential obligations of the European Convention on Human Rights, and in particular Article 8—the right to respect for a person’s private and family life, his home and his correspondence.
In conclusion, the position is clear: the timing of implementing the PACE powers is far too long to address the problems both of blood doping and other contraventions of the WADA Code, at and before the London Games. There are many anti-doping offences in sport which are not indictable under the Misuse of Drugs Act and the Medicines Act. No possibility exists to use warrants to search relevant premises in that context—in particular, premises under the control of a third party. This leads me to a clear recommendation to the Government. It is time to legislate and to bring forward primary legislation to ensure that we lead the world in anti-doping in sport and provide the legislative framework to meet the IOC president’s request that search powers, in line with the Bill, are available in the fight against doping and on the statute book in time for London 2012.
As a supporter of the Bill, I will now seek advice from experts in your Lordships’ House as to whether it can be amended to cover the objectives I have set out today. I very much hope so.
My Lords, I want only briefly to intervene, because it would be wrong if someone from the Labour Benches were not to rise to indicate that many of us support the principles enshrined in this legislation. I personally congratulate the noble Lord, Lord Selsdon, on a remarkable campaign. I have been in this institution in one House or the other for nearly 30 years, and rarely have I seen a Member of either House go so diligently about seeking to acquire all the information necessary to secure a substantial piece of legislation. It is substantial—if local authorities, which the noble Lord is calling upon to act with him and others to ensure that the public know what their rights are, were to respond in the way that he suggests, that would have a major effect on the rights of citizens. I hope that they use the local authorities and that those authorities respond in the way that he suggests.
The noble Lord has kept me and others informed throughout his campaign. What I found in the schedule was astonishing. I do not know if everyone here or students outside, who obviously are not here to see what happens in the Chamber, have read it. They should consider the list of Acts which have within them the powers that are the subject of this Bill. It is a long list. The scale of the powers available to the authorities and the amount of pieces of legislation must have come to a surprise to many Members of both Houses.
I congratulate the noble Lord. This proposed legislation is consolidating in the sense that it sets out all the legislative areas. I hope that the Bill goes into Committee and that, ultimately, a Government are prepared to give the Bill the time necessary for its safe passage through both Houses.
My Lords, I congratulate the noble Lord, Lord Selsdon, on his tenacity in pursuing this issue. As in previous Bills, he used the term “tenacity” when referring to the sponsor of the Bill that was debated immediately before his. However, that term applies to him today. From these Benches, I very much support the premise—no pun is intended—on which this Bill is based, for the reasons explained by the noble and learned Lord, which I shall not repeat at length.
The balance of powers of the state against those of the individual—perhaps, in this context, one should call the individual the citizen—needs care. The increase in the powers of the Executive, from a neutral position, against those of the citizen needs justification in every case. What we are talking about is, indeed, an invasion of privacy—one which is less publicised than personal invasions of privacy which we debate in the context of DNA, ID cards and so on. Nevertheless, this is extremely important.
I, too, was surprised at the length of the schedule, but I wondered whether it was up to date. My impression, over the term of the current Government, is that there have been far more introductions of the sorts of powers which we all find offensive than appear in this schedule. Rather like the noble Lord, Lord Campbell-Savours, I wondered whether this was a subject on which one should encourage PhD or MA work to bring this all together and to check it out.
I am sorry to insert a note, not of discord, but of caution. This issue requires a more complex, detailed, and perhaps more subtle approach than is in the Bill. Consideration would have to be Act by Act and statutory instrument by statutory instrument, starting from the same basic point that a power needs to be justified—looking at the particular requirements in each case and, indeed, whether the power is required at all. One would hope that one might, through such an exercise, get rid of many of these powers, and certainly co-ordinate and standardise them.
Perhaps the noble Lord in his reply can tell me how much consultation there has been with each of the agencies whose powers are in contention in the Bill. I remember, during consideration of legislation a few years ago, that we listened to a lot of self-justification by some of the agencies. I was not always persuaded by it, but there has to be that sort of exercise.
Like the noble and learned Lord, I feel that there are a number of drafting points, most of which could be considered at a later stage. I shall mention just two. The first is how one defines “danger” as set out in this context. The “Limitations on powers of entry” would allow for entry,
“necessary to avert danger to life or property”.
That could cover a huge spectrum of danger, including the amount of possible damage, as well as a time spectrum—immediate or long-term danger—and the degree of danger. Are we talking about an emergency, for instance? That may be what is implicit.
My second and more important point at this stage in the Bill’s proceedings is that in Clause 5(2) each requirement in each paragraph must be met. It cannot be the case that there would have to be both a warrant and the agreement of,
“the person having control of the premises”.
That is obviously inconsistent. If there is agreement, there would be no need for a warrant. Again, perhaps the noble Lord can confirm either that I have misread the drafting or that this is something he can take up.
As I said, I do not want my caution to reduce the concern that I expressed on behalf of these Benches about the excessive powers of the Executive, which have grown in such an extraordinary way, as illustrated by the schedule to the Bill, whether or not it is complete. The noble Lord has demonstrated his tenaciousness. I suspect that the Bill is not destined for a long life in this Parliament but the subject certainly needs very careful attention.
My Lords, this has been a very interesting debate, kicked off by the long-running attack of my noble friend Lord Selsdon. Listening to his opening speech, I recalled the final lines of a Noel Coward song:
“say ‘thank God’, we’ve got no cause to complain, Alice is at it again!”.
Clearly, when I say that, I mean it in no disparaging way. He is absolutely right in pursuing a matter which concerns every man, woman and child in this country, as my noble friend Lord Marlesford almost said. Powers of entry have become so widespread and so draconian over this Government’s time in office that there has arisen a considerable amount of unease, to put it mildly, both in and outside Parliament. The noble Baroness, Lady Hamwee, remarked on that.
This unease was reflected in the debate on a Motion tabled by my noble friend Lord Onslow, which called on the Government to withdraw a statutory instrument laid under the Proceeds of Crime Act. Although that order was for a specific purpose—namely, the expansion of powers of entry to personnel of organisations who had not had them previously—it is germane on a more general point. The Merits of Statutory Instruments Committee produced a report on this instrument. I am not sure whether the noble and learned Lord, Lord Scott, was able to sign up to it or whether he was a member of the committee at that time. He shakes his head, so he was not; none the less, from his speech today, I am sure that he would have done.
An enormous number of public sector organisations now have employees who are accorded such powers. One of my regrets about the Bill is that these organisations are not listed in a schedule, to go with the long list of legislative authority which the current schedule comprises. The Bill would, I believe, have much more force and resonate more with the public if it contained that as well. None the less, like the noble Lord, Lord Campbell-Savours, I congratulate my noble friend on his diligence: it must have taken hours and hours of work. I know from bitter experience how difficult it is for anyone but a Minister to get such matters right, so I ask the Minister whether the schedule is complete or whether my noble friend has missed one or two Acts or statutory instruments.
To pick a couple of the powers at random, the Regulation of Investigatory Powers Act has been used in some very odd ways—Bournemouth and Poole Council harassing a mother for trying to send her child to a popular school in her catchment area, or Croydon Council trying to catch a person pruning a tree in the borough. The Terrorism Act was used to arrest a tourist photographing St Paul’s Cathedral. These examples show the disproportionate way in which legislation can be, and sometimes is, used.
I make these points to put the Bill into context because it is not, regretfully, about why these intrusive powers are used but how. Clause 5 makes it clear that a person authorised by any Act or statutory instrument in the schedule should not exercise power off his own bat but only after application to a judge or magistrate, in the same way as applies to a search warrant. The only exception to this is when there is a danger to life or property. Examples might be when there is, or is likely to be, a gas explosion or perhaps when the sound of shooting is heard inside a house. Either of these scenarios might occur at any time of the day or night, so I find it somewhat curious that Clause 6 is so definitive regarding the timing; unless the court order says something different. To go back to my example of an imminent gas explosion, by the time the authorised person has succeeded in finding a magistrate on a Sunday or in the middle of the night, it might very well be too late. I should be grateful therefore if, when he comes to wind up, my noble friend would explain his thinking behind Clause 6.
However, these are quibbles which can easily be explored in Committee. What cannot be dealt with then are the astonishing number of organisations that have powers of entry. My noble friend Lord Selsdon reminded us that, shortly after inheriting his position, the Prime Minister was concerned enough to institute a review into the need for additional protections and rights for the citizen. The key objectives of that review were, first, to produce a comprehensive list of powers of entry, inspection, search and seizure to provide clarity for the police and investigating agencies and, more importantly, for the public. So, although this Bill is not the complete answer, the Government are “on side” so far as concerns the reasons behind it.
I further understand that this review was attached to a review of the Police and Criminal Evidence Act and that it was included in a consultation paper. I am sure that the Minister will be able to tell us more about that. Given the Prime Minister’s obvious desire for something to be done, I find it quite amazing that the review seems to have dropped into a black hole. It was due to have completed its final stage of consultation in the spring of last year. That is around nine months ago. By then, the intention, so the noble Lord, Lord West, told the House, was that proposals would be produced around powers of entry, especially for non-police agencies. I note the word “especially”. So what has happened? As I said, I hope and expect that the Minister will tell us.
There is now a certain urgency about this. As we all know, under the Terrorism Act, officers can stop and search anyone in a designated area without having to show reasonable suspicion for doing so. This is covered in Section 44 of the Act. I accept that it is not an exact parallel but it is analogous to the thorny subject of powers of entry. I had the news on Wednesday that the European Court of Human Rights said in a judgment that that legislation breached the right of privacy in a case involving two Britons who were subject to such a stop-and-search procedure outside an arms fare in 2003. Looking into the future to 2013 or 2014, could that not easily happen during the Olympic Games—an interest dear to the heart of my noble friend Lord Moynihan, whose speech I hope the Minister will take very seriously? Going back to the human rights breach, needless to say, the Home Office is to appeal.
The whole purport of my noble friend’s Bill is that “we can’t go on like this”, and I commend him for bringing it forward yet again.
My Lords, I join others in congratulating the noble Lord, Lord Selsdon, on his commitment and persistence in this important area. The noble Baroness used the word “tenacity”; I say “persistence”. Both are meant to be complimentary to the sterling efforts that the noble Lord has made on this issue. I appreciate that he has taken the time and effort to discuss his proposals with the Home Office. He used the term “community of interests”. I think that we have a community of interests, which is why we shared with him how we consider we will meet our common objective of increasing public awareness—giving people the knowledge that they have the right to have—and raising public accountability.
As has been said, surprise has been expressed in many quarters that we have so many—more than 1,200—rights of entry. However, as noble Lords are aware, each individual power of entry is subject to parliamentary scrutiny. Any proposed new power of entry contained in a Bill or draft statutory instrument must complete the relevant parliamentary process. The noble and learned Lord, Lord Scott, referred to the cluster munitions legislation and the Medicines Act and said that citizens may be accosted and surprised when someone knocks on their door and demands entry when they do not know who the person is and when he has no warrant.
We believe that the present position should remain and that each power of entry—here I agree with the noble Baroness, Lady Hamwee—should be seen in the context of the offence or regulatory breach that it is intended to deal with. Adopting a uniform approach across all agencies would impact on their operational effectiveness and may prevent or reduce achieving the intended aim of the power. Setting down the operational processes in a single statute or laying out a common set of safeguards and protections would mean an inflexible approach. That does not make for good legislation because it would not recognise the wide range of offences or breaches that require a power of entry to ensure effective enforcement of the law.
There are problems and difficulties that need to be addressed and the community of interest is how we are seeking to do that. We are proposing that when any new or amending powers of entry are put before Parliament, the sponsoring department must comply with a code of practice that sets out consideration of what I believe meet many of the points raised. First, there is the justification for the powers, proportionality and impact of their use—a point made by the noble Baroness, Lady Hamwee. Secondly, there are the rights and safeguards of the owner or occupier of premises, which was referred to by the noble and learned Lord, Lord Scott. Thirdly, there is consideration of the alternatives of using entry powers, which was implicit in many of the contributions. The noble Lord, Lord Skelmersdale, made the valid point that it was not necessarily the powers of entry but how those powers are implemented by the persons authorised so to do. Fourthly, there are the important issues of guidance, training and the competency of those to whom powers would be granted. That is the best way of tackling the misuse of powers of entry. Fifthly, there is the issue of grievance, which was raised by the noble Lord, Lord Skelmersdale, when people think that they have been mistreated. Whether it is a question of rudeness, lack of information or people overstepping the mark, the answer is to have a complaints procedure. Sixthly, there are the reporting and scrutiny mechanisms of the powers, and seventhly, communications and public access to the data.
Those seven conditions in the code of practice would require that the information is submitted in template format to Parliament when draft legislation is put before it. The template would be published alongside the Bill or draft statutory instrument. The code of practice would also require draft guidance—a draft copy of the notice of powers and rights and details of training requirements to be published at the same time.
We would maintain the central record of entry powers that is currently on the Home Office website. Any new or repealed powers would be added to or deleted from that list. We will shortly be launching a public consultation on how to raise awareness of existing powers and how the public can access their rights and what their expectations should be.
Parliament has long recognised the need for powers of entry. The volume of legislation granting such powers illustrates the importance attached to ensuring that laws made by Parliament can be enforced effectively and appropriately. But we need to ensure that part of that effectiveness includes powers that meet operational enforcement requirements and which provide for adequate levels of accountability. We believe that our proposed approach will achieve these important aims. We very much welcome the input of the noble Lord, Lord Selsdon, and others, in the proposed consultation process. Our objective is to have the code of practice template and new communications processes in place by the end of this summer.
I turn now to some of the points that were made and on which I wish to provide information. The noble and learned Lord, Lord Scott, raised the question of the need for warrants. One reason why we think that the Bill’s approach might not be the best way forward is that the determination of the need for a warrant is dependent on the reason why entry is required. In a powerful speech that went way beyond my knowledge of medicine and sports law, the noble Lord, Lord Moynihan, made a contribution that I am advised by the noble Lord, Lord Skelmersdale, I should take seriously. I shall, and I will look at it in some detail. As the noble Lord outlined, the trafficking and supply of doping substances are covered by the Misuse of Drugs Act, and that is not a criminal offence at the moment. The introduction of the police into a matter of sporting rules rather than the being breached is difficult. The noble Lord referred to the new anti-doping body, UKAD, and we shall look at the information- sharing arrangements between law enforcement and UKAD before running headlong into any criminalisation. The noble Lord’s contribution deserves a rather better response than that, so I shall look at it carefully in Hansard and let him have a more considered response.
The noble Baroness, Lady Hamwee, asked about consultation with other agencies. We are consulting all agencies because existing powers will have to be scrutinised as well as those that are being introduced as legislation comes before your Lordships’ House. Departments will be asked to set out a timeline when they can provide the information on powers, rights, guidance, training, reporting and scrutiny, which are the questions being asked of all bodies. That scrutiny will then be publicly available through their websites. It will be an opportunity for them to review whether they need to have powers of entry, or whether the powers that they already have need to be reduced or changed. That will give us an opportunity to move forward in the spirit of the noble Lord’s proposed legislation.
There was a question on whether the schedule was up to date, so I can give noble Lords some statistics. At present, there are 1,208 powers contained in 295 statutes and 286 statutory instruments. To date, there are 1,230 powers contained in 311 statutes and 297 statutory instruments. Since 1997 Parliament has passed 79 Acts and 220 statutory instruments that contain references to powers of entry. It is a rather longer process than just the period since this Government came to office. To suggest, as the noble Lord, Lord Skelmersdale, did, that this has been an issue of great significance in the past 12 years perhaps undermines the fact that it has gone on from 1983 onwards when the Mitchell review first identified it. I hope that in setting out the Government’s position I have given heart to all those who are concerned about this issue.
The noble Lord, Lord Selsdon, made laudatory remarks about the co-operation of Home Office officials on this. That will continue as the consultation continues. While not giving a definitive answer to my noble friend, I think that we are travelling in the same direction and, I hope, at the same pace.
I was not saying that previous Governments were not to blame for having inserted various powers of entry into various Acts of Parliament. I was suggesting that the situation has become more serious in the past 12 years and that these powers of entry have come thicker and faster.
I have given the statistics and people can make their own judgments. The more important issue is to look at how often some of these powers are used. Powers on the statute book are often not used and although there seems to be a plethora, how often they have been used and their purposes are rather more relevant. The consultation that we are having with agencies and departments will help to reveal that and guide us into taking matters forward.
My Lords, I am extremely grateful to your Lordships for having given the Bill such a good reception.
My father spent his life motor-racing and died at a young age. He always said, “You must never run out of petrol and you mustn’t ever get stuck in the mud or snow”. So in view of the comments of the noble Baroness, Lady Hamwee, I thought I might take another five and a half hours of your Lordships’ time. She asked whether there has been consultation. The work of the Home Office and other ministries has been pretty good. I would not normally, but I propose just to read the headings. Under each of the columns of the investigation which has already taken place before we have a wider consultation—and with me it is only a 35-year consultation period—the document states: “Statute, Purpose, Purpose of entry”; next, “Warrant: yes or no?”; next, “Category of person who many enter: PC or official, and level of authority”; “Other person permitted to enter”; “Threshold: To enter without warrant or make application for warrant”; “Type of premises”—and there are four different types of premises; “Times for entry: Any time”, and other various times as well; “Other conditions”, with a range of other conditions; “Notification to occupier required: Before entry, On entry, On leaving or None?”; “Other powers—e.g. Question persons present, examine records etc”; “Specific offence: to obstruct entry”. That is just to start, and this document weighs quite a lot.
I would like to complain about the historic meanness of Her Majesty’s Government. I was offered three copies of this great document—this magnum opus. I was then told that unfortunately, because it is in colour, I would have to pay 20p for each sheet other than the original copy. But never mind, it is on the website. The consultation period should be ongoing, but the most important thing now is to inform, and to inform ministries and the officials within those ministries of what their powers are, because many of them do not know; and then, in the consultative period, to inform every local authority and every body—every quango, ango and NDPB which is involved—that there is a consultative period and that one should ask for it.
I go back to the noble Lord, Lord Puttnam. He had a great influence on me when, one day, he had his idea of promoting this House—because I had been told that you had to do everything through the House of Commons—and then we had the idea of Project Outreach. So I wondered whether we were allowed to communicate with people without going through the House of Commons. Previously I was told that if anyone wrote to you, you should pass it to the relevant Member in the House of Commons—because we did not have any writing paper and we had quill pens and ink, and it is impossible to get any ink in your Lordships’ House now. So I thought that we should start our own consultative process from the House of Lords, which I shall be doing myself under Project Outreach with some bogus name; in fact I think I shall call myself the Undertaker. We will have a website and communicate with all people. I thought it would be reasonable that we should offer and declare that hereinafter in your Lordships’ House we will offer to represent—as we are non-elected, with certain exceptions such as some of my colleagues and myself; the election process may be slightly doubtful but we have a certain legitimate claim—all elected people in the United Kingdom: Members of the House of Commons, local authority members and councillors, parish councillors and others. That is a total of 109,360 persons or personages.
So the consultation period will be as wide as possible and we will have a website—and also we should enjoy it. We want to make sure that the person has quiet enjoyment of his dwelling place, which I believe is one of the legal terms, and remove the fear and let it be known that everyone is on top of this.
Finally, I should just like to advise your Lordships that it is very important to have a starting handle. If you do get stuck in mud or snow you should always have a starting handle. The reverse gear in a car is the slowest gear. So you take the plugs out of your car, you put in the starting handle and you turn it in reverse gear, and you will get yourself out of any snow or any other mess. But on this particular project I do not have a reverse gear, so we will go on going forward.
Bill read a second time and committed to a Committee of the Whole House.