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Grand Committee

Volume 733: debated on Thursday 15 December 2011

Grand Committee

Thursday, 15 December 2011.

Arrangement of Business

Announcement

My Lords, if there is a Division in the Chamber, the Committee will adjourn as soon as the Division Bells are rung and will resume after 10 minutes.

Protection of Freedoms Bill

Committee (2nd Day)

Relevant documents: 20th Report from the Constitution Committee, 20th Report from the Delegated Powers Committee

Clause 37 : Judicial approval for obtaining or disclosing communications data

Amendment 116

Moved by

116: Clause 37, page 27, line 9, leave out from “granted” to “or” in line 10 and insert “an authorisation under section 22(3), (3B) or (3F), or renewed the same under section 23(5) and (6)”

My Lords, I apologise in advance for a singularly technical group of amendments, but they need to be explained, if only so that Hansard can show to those who are not here why they have been put forward. They are inescapably dry, not to say turgid. This group contains Amendments 116 to 119, which amend Clause 37, and Amendment 132 which, via the Bill, makes four amendments to Section 22 of the Regulation of Investigatory Powers Act 2000.

Clause 37 incorporates new Section 23A into RIPA 2000, thus extending the cases when judicial approval has to be obtained for surveillance. It is a clause that is to be welcomed, as indeed is the Bill as a whole. Amendments 116 to 119 to new Section 23A are drafting ones, but having suffered from unnecessarily obscure wording during the original passage of RIPA, where I led for these Benches, it still remains one of the most complex statutes there is. I hope that the Committee will think that the amendments are worth while.

Amendments 117 and 118 delete what I think are superfluous phrases from Clause 37, the phrases being, “if any” in subsection (2) and “as the case may be”, which appears later in that subsection. Superfluity of language is to be avoided.

Amendments 116 to 119 to the same new clause rectify what seems to me to be a clear error of drafting. I may say that putting together this Bill must have taxed the drafting skills of parliamentary draftsmen to the limit, and one can hardly be surprised if there is the occasional wrinkle. Amendments 116 and 119 address a confusion repeated in new Section 23A. It distinguishes authorisations under Section 22(3), (3B) and (3F) of RIPA from notices required under Section 22(4) of RIPA. Broadly, authorisations allow surveillance to take place whether or not subject to judicial approval, whereas notices are mandatory and require postal or telecommunications operators to disclose data. Both authorisations and notices, which are distinguished throughout both RIPA and this Bill, can be renewed but they are renewable under different provisions in RIPA 2000 and in this Bill.

However, new Section 23A, set out in Clause 37 of the Bill, states in subsections (1) and (3) that the renewal of authorisations is derived from the same sections as the grant of the same. My Amendments 115 and 119 would rectify that by making it clear that renewals are made under subsections (5) and (6) of Section 23 of RIPA 2000. I am not now entirely sure, on rereading my amendments, that reference to Section 23(6) in Amendment 119 is appropriate, but the Minister will soon tell me. It is rather a lot to ask him to have a view on these arcane matters on the instant.

Amendment 122 contains four amendments to Section 22 of RIPA, which will be incorporated through this Bill. Subsection (1) of Section 22 of RIPA gives the context within which breaches of privacy so as to disclose communications data shall be permissible. At the moment, it says:

“This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data”.

Perhaps we tried when the Bill was passed to insert “reasonably” before “believes”. However, it is never too late and my first change to Section 22 would achieve just that. It seems obvious and follows the general tenor of this Bill that the belief of the designated person should be reasonably arrived at.

The third change in my Amendment 122 to subsection (5) of Section 22 again seems to me obvious: namely, that a lazy or perverse belief on the part of any official should not be sufficient to trigger the authorisations permissible under this important but necessary invasion of citizen privacy.

The second change of my four is to subsection (3) of Section 22 of RIPA 2000, which, as it stands, appears to allow a designated person in effect to delegate his or her power of authorisation to,

“persons holding offices, ranks or positions with the same relevant public authority as the designated person to engage in any conduct to which this Chapter applies”.

Unless my interpretation of this subsection in RIPA is misconceived, this less-than-clear wording would allow a designated person, whose designation has to be prescribed by the Secretary of State by order under Section 25, to delegate under Section 22(3) to persons in the same public authority of any office, rank or position inferior to that of the person making the delegation. Again, in common sense, that cannot be right; hence my insertion of “comparable” so that the delegation by an official under Section 22(3) must be to a person of comparable rank or position.

Lastly—noble Lords will be glad to know that I am coming to the end of this exciting oration—the fourth amendment in my Amendment 122 harks back to the earlier ones in this group. It would change subsection (4)(b) of Section 23 of RIPA by removing “authorise or”, since those words relate to authorisations whereas subsection (4)(b) is exclusively concerned with notices, which, as I have explained, are not permissive but mandatory, and require—that is the relevant word—this or that from the postal or telecommunications operator to which the requirement is addressed.

I am sorry to have taxed the patience of the Committee with these somewhat obscure points but I believe that these amendments would improve the Bill. I beg to move.

My noble friend may not like this question, but we are all family here, are we not? I absolutely agree that one needs a good supply of hot towels when reading this Act. Almost the last point he made was about his Amendment 122, which draws attention to Section 22(3), granting authorisation “for persons holding”—he would like to say comparable—“offices”. I read that as meaning that if you are designated to grant authorisation, you can allow a colleague, whether or not of the same seniority, to engage in the conduct that is referred to in Section 21. What that seems to be doing is saying that the designated person is in a position to grant authorisation, but it is perfectly okay to grant it within his own authority and that the conduct referred to in Section 21 does not mean delegating or granting authorisation to a third party. I am sorry if I have added to the need for hot towels.

I am not perfectly sure that I understood my noble friend’s point. I think she is talking about comparability.

Yes. The reason I think that Section 22(3) of RIPA is wrong is that it does not make any requirement, as I see it, as to the rank or the position of the person to whom any delegation is made by the person originally designated under very carefully confined powers. As my noble friend pointed out, the definition of a designated person involves the Secretary of State making the designation, but when in Section 22(3) a delegation is in effect made, there is no such requirement. Where it refers to the same relevant public authority, that is fine. The person to whom delegation is made has got to be someone else in the same relevant public authority, but there is no requirement as to what rank that person is.

My Lords, my point was that I do not think this is about delegation of authority. I think it is about authorising the conduct which, were it to be proposed to be undertaken by someone in a different organisation, would require authorisation.

My Lords, my noble friend may be right. We disagree, as things stand, as to the meaning of Section 22(3) which, I think she will readily agree, is obscurely worded.

My Lords, I support the noble Lord, Lord Phillips of Sudbury. I well remember RIPA going through and your Lordships did not like it. As a result, very unusually, we tabled an amendment to the regulations that went through. This is symptomatic of some problems and an opportunity to tidy up some of these things. I remember that one of the key points that a lot of us did not like was the lack of external checks. There were too many internal authorisations allowing things to be done which could have some quite severe consequences on personal privacy of the citizens of this country. We should do what we can to tighten that up. I have to admit that I have not looked at any of this in detail, but I trust the noble Lord, Lord Phillips, to have probably got this one right.

My Lords, I think I can intervene now. I apologise if I digress to mention metal thefts, civil partnerships or intercepts as evidence, but even by a quarter past two it has already been something of a long day. My noble friend Lady Hamwee talked about the need for hot towels to understand what is going on behind some of the amendments tabled by my noble friend Lord Phillips. I am grateful to discover that it will be hot towels only for my noble and Liberal friends, so I shall get on with an explanation of what I think my noble friend Lord Phillips is getting at in his amendments and what the Government’s response is. That should be useful to noble Lords. What I think these amendments laudably seek to do is provide a degree of clarity in what is obviously a complex area, but I hope I can persuade him that the existing drafting of Clause 37 and of Sections 22 and 23 of RIPA is appropriate.

Sitting suspended for a Division in the House.

I was just about to get on to Amendments 116 and 119. I think my noble friend accidentally referred to Amendment 116 as Amendment 115. For the sake of the record, I will put that right.

It might help if I first explain the differences between authorisations and notices. Sections 22(3), (3B) and (3F) refer to authorisations. These allow a designated person in a public authority to authorise another person in that authority to take steps to obtain communications data. This will be relevant where the authority rather than the service provider needs to take those steps. Section 22(4) refers to notices. This relates to notices given to a service provider directly. In seeking to redraft subsections (1) and (3) of new Section 23A of RIPA, these amendments are no doubt designed to make it clear that the requirement for magistrate approval applies to the renewals of authorisation notices to obtain communications data as well as their original grant. This is fully the intent of the clause. However, we believe that the text as drafted is correct in law on this point. Section 22 of RIPA applies to renewal, not Section 23—as provided for by the proposed amendment. Where a designated person seeks to grant or renew an authorisation, they do so under Section 22. Section 23 does not provide a separate basis for renewal. It merely makes provision about the form of an authorisation or notice and its duration.

It is, of course, right that Sections 23(5) and (6) refer expressly to renewal but the effect of the provisions is to ensure two things. First, they will make it clear that, where a designated person for a public authority intends to renew an authorisation under Section 22, they can do so at any time before the expiry of the authorisation—which will last for one month. Secondly, it will mean that, where the authorisation is renewed, the requirements of Section 23 in relation to the form of that authorisation are complied with. Sections 23(5) and (6) do not provide a basis for renewal and the clause as currently drafted, which refers to the granting and renewing of an authorisation under Section 22, is correct.

Amendments 117 and 118 seek to omit the words in brackets in new Section 32A(2) of RIPA. On the proposed omission of “if any”, these words cater for the fact that a local authority application for a notice or authorisation to obtain communications data may be refused. This is not merely a rubber-stamping exercise. That is an important point and it is brought out expressly by the drafting of the clause. On the proposed omission of “as the case may be”, these words make it clear that the provisions apply both to notices and authorisations to obtain communications data. We hope that it is a helpful steer to the reader. RIPA has sometimes been accused of being complicated and impenetrable—my noble friend said something similar. The drafting provides clarity on that.

Finally, Amendment 122 seeks to amend Sections 22 and 23 of RIPA, which relate to obtaining and disclosing communications data and the form and duration of authorisations.

The addition of the word “reasonably” into subsections (1) and (5) of Section 22 is not required and could cause confusion elsewhere. Reasonableness is already implicit within RIPA because it is expressly inherent in the Article 8 test of necessity and proportionality. Making an explicit reference to reasonableness in the context of Section 22 would cast doubt as to the test to be applied elsewhere in RIPA, where there are similar formulations.

My noble friend also suggests that Section 22(3) of RIPA, as it currently stands, allows the designated person, in effect, to delegate his or her power of authorisation. I can tell my noble friend that this is not the intention behind subsection (3); rather it is to allow an individual, commonly referred to as a single point of contact, to undertake the practical facilitation with the communications service provider to obtain the communication requested. I want to be clear that the designated person remains that authorising officer and that he is not allowed to delegate his responsibility.

The proposed amendment to Section 22(3) of RIPA would have the effect of altering the rank of that single point of contact so that it is comparable to the designated person. The single point of contact is an accredited individual who has undertaken training in order to facilitate the obtaining of communications from communications service providers. While I do not believe that to be the intention of my noble friend, it should be clear that requiring that this function be discharged by a person of higher rank would not provide any greater safeguards, given the expertise and training that the single point of contact already has. Indeed it would reduce the safeguard whereby the person authorising conduct is more senior than the person carrying out the conduct.

I hope that those technical explanations—hot towel stuff, as my noble friend Lady Hamwee said—will be sufficient to allow my noble friend to withdraw his amendment. If he has any further queries, I hope that I will be able to deal with them but, if necessary, I will write to him.

My Lords, I am grateful for the Minister’s reply. I let his officials have a copy of what I was going to say an hour or so in advance of this Committee so that it was not a complete surprise to them all. I shall need a little time to absorb the response. I have to be frank and say that on a number of issues, at first flush, I was not convinced. But the best way forward, if the Minister agrees, is that we have a conflab outside this Chamber on any points that have residual concern. I was not intending to divide the House at this stage in any event but no doubt he will afford me access to his Bill team so that we can sort anything out if it needs it.

My Lords, it would be right that we should sit down and discuss this, and I would welcome a chance to arrange a meeting with my noble friend. It is technical and difficult stuff. My noble friend Lady Hamwee referred to it as hot-towel-around-the-head stuff. I think it might be almost more cold-towel-and-a-lot-of-black-coffee stuff. But whatever happens, we have to discuss it and we will certainly try to do so.

I am grateful to the Minister, although I would prefer whisky. I certainly accept what he said and I beg leave to withdraw the amendment.

Amendment 116 withdrawn.

Amendments 117 to 121 not moved.

Clause 37 agreed.

Amendment 122 not moved.

Clause 38 : Judicial approval for directed surveillance and covert human intelligence sources

Amendment 123 not moved.

Amendment 124

Moved by

124: Clause 38, page 29, line 44, at end insert—

“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”

My Lords, I think I need to take my noble friend Lord Phillips of Sudbury aside to explain that whisky may dull the pain but caffeine keeps one on the job better.

I do speak for myself. I hope Amendment 124, at any rate in the drafting, is a little more straightforward. I declare an interest as one of a number of vice presidents of the Chartered Institute of Environmental Health, from which this amendment comes. The amendment is concerned with environmental health and, in particular, with noise.

There has been, I understand, a long-running issue as to whether the investigation of noise nuisance requires covert surveillance. It is not the Home Office but in fact Defra which has mainly been concerned with this. Environmental health officers listen to noise in its context and record, one of the technical terms, anything listened to which brings—as I understand it since it is as the institute understands it—what it does within the meaning of Section 26(9) of RIPA. The Home Office takes the view that dealing with noise nuisance does not ordinarily require covert surveillance and so it is not caught by RIPA. Perhaps this amendment covers it if and when it does. Therefore this amendment is a probing one. The institute is generally in support of the need for judicial authorisation but so far as its work is concerned in this area there are some difficulties.

As this has been long running, it is able to anticipate the arguments that may be made against the need for such an amendment so I am going to start with the response and then its response to each of the Home Office’s likely responses. The first is that surveillance follows complaints so quickly that obtaining authorisation would not be reasonably practicable and that this excuses the need for authorisation. The institute says that the exception is when surveillance is undertaken as an “immediate response”, such as when a police officer sights a suspect in the street. There is always going to be a delay between the making of the noise complaint and its investigation. Secondly, if local authorities warn noise perpetrators that they may be monitored surveillance following that will not be covert and so will not be caught by RIPA.

Giving a warning causes delay. It rather undermines the duty on local authorities under the Environmental Protection Act to investigate complaints and quite obviously it would tend to be self-defeating. I dare say many noble Lords will have experienced complaint in different contexts to noise or what they may perceive as noise. I perceive muzak as noise. I have often asked for it to be turned down. It is turned down temporarily in a place of entertainment and up it goes again. Thirdly, if local authorities warn noise perpetrators that they may be monitored, again surveillance will not be covert and so not caught. I beg your pardon. I should have said that giving a warning takes the investigation out of RIPA and the measurement of sound pressure levels does not require authorisation. But there is no numerical standard for noise nuisance because environmental health officers have to judge the noise in context. Depending on what else is going on, the noise may or may not be intrusive, and for evidential purposes it is accepted practice to record it.

Fourthly, private information is unlikely to be obtained because perpetrators have no right of privacy to information that is audible outside the premises it is coming from. However, the institute draws attention to the definition in RIPA of “private information” by reference to its content as distinct from its audibility. Fifthly, surveillance carried out without authorisation is not necessarily unlawful. That is the case where there is an equivalent process of authorisation in another statute, but that does not apply in this case. Lastly, the whole thrust of this part of the Bill is the protection of magistrates’ approval against unjustified snooping by local authorities, and both I and the institute have sympathy with that. The Home Office has confirmed in Answer to a parliamentary Question in another place that there is no evidence to suggest that noise investigations are being carried out inappropriately by local authorities. We have read of instances where local authorities have rather overstepped the mark in their use of the powers, but this is not one of those examples.

In the hope that I have not taken too much of the Minister’s speech in anticipation of the answer, I beg to move.

My Lords, I thank my noble friend for her introduction to the amendment, and indeed she has anticipated quite a lot of what I will say in response. None the less, there are some things that are worth emphasising, and I hope that in doing so I can give her some assurances. I certainly agree that noise nuisance is something that is clearly intolerable to the person experiencing it and that in many instances the noise under investigation may occur at night, so anyone who is subject to that kind of disturbance feels strongly about the situation they find themselves in and wants any action to deal with it to be rapid. However, Amendment 124 is unnecessary because the sort of noise we are talking about, that which causes disturbance and affects people’s lives, is not caught by RIPA.

Before I go on to cover some of the topics raised by my noble friend, let me say that Home Office officials have already met representatives of the Chartered Institute of Environmental Health and of Defra to discuss these points. We have said that we shall work with them on revising the RIPA code of practice on covert surveillance in order to make it clear that authorisation under RIPA is unlikely to be necessary for noise abatement reasons. Surveillance conducted and governed under RIPA relates to private information only. It requires that when public authorities obtain private information covertly, they do so only when it is necessary and proportionate, in line with our right to privacy. However, the privacy implications of someone making a loud noise will usually be such that RIPA is not engaged. Loud machinery, alarms or music, for instance, are not private information, and if the noise emanating from someone’s house because of, say, an argument is so loud that it can be heard in the street outside or the adjoining property, it is highly questionable whether the people concerned have a realistic expectation of privacy. If the noise involves violent or threatening behaviour, then it would always be appropriate to call for the police.

If the council’s policy is to serve an abatement notice warning that monitoring may be carried out, then that monitoring cannot be deemed to be covert in nature, which my noble friend has already anticipated. In these scenarios, a RIPA authorisation would not be required. This is made clear in the RIPA covert surveillance code of practice; that code has statutory force.

The only instance where a RIPA authorisation definitely would be required is where a local authority noise monitoring device was calibrated to boost the signal so as to record conversations which could not be heard outside the property with the naked ear. However, this would constitute intrusive surveillance and RIPA does not permit local authorities to do this. Most people would agree that this would be an unwarranted breach of someone’s privacy. I therefore maintain that local authority noise monitoring would not normally require to be authorised under RIPA; that this is already made clear in RIPA; and that it therefore would not be subject to prior magistrate approval. However, as I say, we are meeting with the Chartered Institute of Environmental Health and Defra to look at the code of practice. Before I ask my noble friend to consider withdrawing her amendment, I wish to reinforce the Government’s view that noise disturbance of the kind she describes is an important matter. However, I do not think that her amendment is necessary.

My Lords, I agree that very often in the sort of situation about which the noble Baroness and I are talking, any conversations which take place are not very edifying or instructive—“indiscreet” might be the term for them. I live fairly near a pub so that is why I make that comment. I have learnt a lot of bad language over the years as I have heard it in the very late hours.

I welcome what the noble Baroness says about the possible revision to the code of practice, but I am concerned that if the legislation requires authorisation the code of practice cannot undo that requirement. However, I will read what she has said and discuss it with the institute. I beg leave to withdraw the amendment.

Amendment 124 withdrawn.

Amendments 125 to 127 not moved.

Clause 38 agreed.

Amendment 128 not moved.

Amendment 129

Moved by

129: After Clause 38, insert the following new Clause—

“Matters subject to legal privilegeInvestigatory powers: legal privilege

(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—

“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—

(a) a communication, insofar as the communication consists of matters subject to legal privilege;(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege. (8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.

(9) The Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.

(10) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—

“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.

(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.

(12) The Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.

(13) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.”(3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—

“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—

(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or(b) matters subject to legal privilege.(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—

(a) obtaining matters subject to legal privilege,(b) providing access to any matters subject to legal privilege to another person, or(c) disclosing matters subject to legal privilege.(7) In subsection (5), “legal consultation” means—

(a) a consultation between a professional legal adviser and his client or any person representing his client, or(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.(8) In subsections (5) and (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.

(9) The Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, for the purpose of subsection (7) or (8), anything is done with the intention of furthering a criminal purpose.

(10) A code of practice issued under section 71 may in particular contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.””

My Lords, this amendment was suggested to me and drafted by the Bar Council. Although it looks long and a bit daunting, I hope the Committee will understand that the point which it addresses concerns a simple point of principle, and the practice of that principle. The principle is the need to protect legal professional privilege. The Bar Council is seriously concerned that RIPA violates legal professional privilege by permitting authorities secretly to obtain information about privileged communications, in particular private meetings and other communications between a lawyer and a client. I was pleased to be asked to table this amendment as I feel very strongly that a lawyer and his client should be able to speak freely, and that the lawyer should be able to take instructions without fear of them being listened to.

The right of someone in custody to a private consultation with a lawyer is expressly protected by the Police and Criminal Evidence Act 1984. The importance of an accused person being able to confer with his lawyer in private has also been emphasised in numerous cases under the ECHR. Indeed, it has been said that it is a fundamental condition on which the administration of justice rests.

The need for reform of RIPA was revealed by a case in 2009, In Re McE, when the House of Lords held that Part II of RIPA permits the covert surveillance of meetings between defendants and their lawyers. Noble Lords will be aware of recent high-profile cases involving CHIS—covert human intelligence sources— that have emphasised the need for privilege to be protected expressly; for example, the case of the undercover police officers, PC Mark Kennedy and DC Jim Boyling, infiltrating protest groups pursuant to RIPA authorisations. The Government’s partial response to In Re McE was to make two orders and two codes of practice under powers contained in the Act, one relating to directed surveillance and the other to covert human intelligence sources, which altered the authorisation procedures, but these do not address the fundamental problem.

We have already referred to the complexity of RIPA. The new clause has been carefully drafted—I am happy to say not by me—to ensure that covert powers of investigation cannot be used to target legally privileged information, while at the same time ensuring that privilege is not abused for a criminal purpose and that the regime caters for a position where it turns out that the privileged material has been acquired accidentally. The provisions would prevent the targeting of legally privileged material. The draft clause uses the code of conduct as a vehicle for guidance on minimising the risk of accidentally obtaining privileged material.

What I understand is called in the trade the “iniquity exception” has been reduced in scope. The Police Act 1997 takes matters out of privilege if the item or communication is,

“in the possession of a person who is not entitled to possession of them”

or is held or made,

“with the intention of furthering a criminal purpose”.

The Bar Council points out that the first of these exceptions would be counterproductive but it has reduced the scope rather than simply taking out the exception, which would perpetuate the problem that it is seeking to deal with. The wording in subsection (6) of the draft clause defining what cannot be targeted by a CHIS is borrowed directly from one of the 2010 orders made following the case to which I referred.

The provision about surveillance is based on evidence from solicitors that legal consultation involving protests or other multiple-defendant situations often take place in private premises—noble Lords will remember that one of the recent examples was of protesters at a power station whose group had been infiltrated by a police officer—and this amendment covers premises in so far as they are used for legal consultations. The other of the 2010 orders to which I have referred makes specific provision for targeting any place in use for legal consultations—in other words, it limits the premises and therefore limits the scope of the order. The definition of legal consultations that has been used is, however, very similar to that used in the order that is already in force.

It is a long amendment but, as I say, at the heart of it is a simple but very important proposition. I beg to move.

My Lords, I am in general sympathy with the objective behind this amendment but have some anxieties about the effect of subsections (9) and (12), which mirror one another in similar language. They seem to say that the question of whether a communication has been made with the intention of furthering a criminal purpose is to be determined in accordance with regulations or provisions made by the Secretary of State. Whether a particular communication is protected by privilege or that privilege is forfeited because the purpose of the communication was to further a criminal purpose is the sort of issue that could easily come up in legal proceedings before an ordinary court. On this notion that the Secretary of State could pre-empt that, I note the language,

“make provision for the determination (on an application for an”—

interception warrant, which I can understand—

“or otherwise)”.

That “or otherwise” seems to carry the power right through to legal proceedings where the question of privilege is an issue. I would like some elucidation on the intention behind these two subsections.

My Lords, I will be brief because the noble Baroness, Lady Hamwee, has gone over the thinking and reasoning behind this amendment, which, as she said, emanated from the Bar Council. She referred to the House of Lords judgment which appeared to hold that RIPA permitted the covert surveillance of meetings between defendants and their lawyers even though no express provision in the Act authorises it and such actions were regarded as contrary to the Police and Criminal Evidence Act 1984. The noble Baroness also referred to other developments, such as the undercover police officers who infiltrated protest groups and maintained their cover while fellow protestors were prosecuted and tried for offences. In one of those cases, I think I am right that significant non-disclosure of the officers’ role led to a number of overturned convictions and cases dropped against other campaigners. The Lord Chief Justice also expressed disquiet that an undercover police officer might have been party to legally privileged communications between the defendants and their lawyers. I suppose that the concerns of the Lord Chief Justice were confirmed in the case related to DC Boyling when it was revealed that he had indeed attended meetings with the defendant and his solicitor.

As the noble Baroness said, the Government made a partial response to the House of Lords judgment on the McE case by making two orders, one relating to direct surveillance and the other to covert human intelligence sources. Clearly, as the noble Baroness said, that has not addressed what the Bar Council regard as the fundamental problem. In making those comments, we want to hear the Government’s response to this amendment. Clearly, there are concerns—probably highly justifiable ones—about others having access to communications between a defendant and his lawyers. One suspects that it is perhaps a case of recent developments leading to RIPA being interpreted in a way that was probably not intended. We want to hear the Government’s response since they may well argue—we wish to hear the case—that the Bar Council amendment would not be appropriate. Equally, it might turn out that they will accept it.

My Lords, I will endeavour to respond as comprehensively as I can to the issues raised in this short debate. I appreciate the concerns raised by the Bar Council but your Lordships will understand that no one can regard themselves as beyond the law or immune from investigation or prosecution. Nevertheless, RIPA recognises the special relationship between a lawyer and client, and puts in place special protections for any covert obtaining of material subject to legal and professional privilege.

RIPA already limits obtaining legally privileged material to intelligence and law enforcement agencies investigating serious crime or acting in the interests of national security. In each case, whether it is interception or surveillance, internal authorisation is by senior official—for instance, the director-general of the Security Service or a chief constable. In addition, and crucially, this is then subject to external independent approval, either by the Secretary of State or a surveillance commissioner, before any covert action can be taken.

The RIPA codes of practice, which have statutory force, provide further safeguards. The interception code makes it clear that where communications which include legally privileged communications have been intercepted and retained, or where the subject of the interception is to be a lawyer, the matter should be reported to the Interception of Communications Commissioner during his inspections and the material be made available to him, if requested.

In addition to safeguards governing the handling and retention of intercept material as provided for in Section 15 of the Act, caseworkers who examine intercepted communications should be alert to any intercept material which may be subject to legal privilege. Where there is doubt as to whether the communications are subject to legal privilege, advice should be sought from a legal adviser within the intercepting agency. Similar advice should also be sought where there is doubt over whether communications are not subject to legal privilege due to the “in furtherance of a criminal purpose” exception. The covert surveillance and covert human intelligence source codes make it clear that such independent external approvals will be granted only where there are exceptional and compelling circumstances that make the authorisation necessary—for instance, where there is a threat to life or limb or to national security.

My noble friend Lady Hamwee and the noble Lord, Lord Rosser, have already made reference to the McE case. In 2009, the former Judicial Committee of your Lordships’ House ruled in that case that RIPA could be used to authorise the covert surveillance of legally privileged consultations but that this needed to be subject to an enhanced approval process. The enhanced RIPA safeguards were tested in the case of RA v Chief Constable of the Police Service of Northern Ireland where the High Court of Northern Ireland ruled that the RIPA regime was lawful and provided sufficient safeguards against abuse. To be clear, those new safeguards have been tested in a court of law and were found to be robust.

In reference to the comments made by the noble and learned Lord, Lord Scott, about the amendment put forward by my noble friend Lady Hamwee, I will of course leave my noble friend to respond to him. Given these existing stringent limitations and safeguards on public authorities obtaining legally privileged material under RIPA, and the fact they have been tested in court, as I have said, and have been found to be robust, I would suggest to my noble friend that this amendment is unnecessary and I invite her to withdraw it.

My Lords, this being Grand Committee, of course I will withdraw the amendment. The noble Baroness’s reference to the role of the commissioner and some other comments seem to be steps taken to deal with the issue after the horse has bolted. But I will read her comments carefully. The point that no one is immune from prosecution is not something with which I seek to argue. It is a parallel but different point.

The noble and learned Lord, Lord Scott, make a very interesting point about regulations made by the Secretary of State. I did not mean to disclaim responsibility for drafting the amendment; I meant to give credit to others. But I did not draft it and I do not think that it would be right for me to attempt to respond in any detail at this point. The noble and learned Lord set me an interesting dilemma and I shall think about it after today’s Committee Sitting to consider how one might address it.

I do not believe that the Bar Council would have gone to the effort of dealing with a matter about which the current Lord Chief Justice has himself expressed disquiet had it felt that an amendment was not necessary, so I will be talking to the council between now and the next stage. Other noble Lords have asked if there might be a meeting to discuss a number of issues, and this is one that will be particularly amenable to some further discussion, if that is possible. I do want to imply anything as regards the noble Baroness, but for myself this is pretty much above my pay grade. I beg leave to withdraw the amendment.

Amendment 129 withdrawn.

Amendment 130

Moved by

130: After Clause 38, insert the following new Clause—

“Clarification of unlawful interception under RIPA

(1) After section 2(7) of the Regulation of Investigatory Powers Act 2000 (meaning and location of “interception” etc) insert—

“(7A) The fact that the intended recipient has collected or otherwise accessed such stored communication, shall not affect the definition of communication in transmission under subsection (7).””

My Lords, this amendment is a response to calls from both the Director of Public Prosecutions and the former Assistant Commissioner of the Metropolitan Police to clarify the law in respect of the illegal interception of voicemail messages. The amendment seeks to clarify the definition of interception in the context of Section 1 of RIPA to mean that those who access the voicemail of individuals without their knowledge or consent will be liable to prosecution, even if the intended recipient has already accessed the messages.

In his evidence to the Select Committee on Culture, Media and Sport on 24 March this year, the then acting Assistant Commissioner of the Metropolitan Police, John Yates, stated that the reason he had initially advised the committee in September 2010 that only 10 to 12 victims could have cases brought for them in relation to alleged phone hacking was the,

“very prescriptive definition of Section 1 of the Regulation of Investigatory Powers Act”,

which deals with the illegal interception of voicemail messages. Of course, we now know that there are potentially thousands of cases where voicemail messages have been accessed and listened to without authorisation. However, to prove the offence of interception under the section, Mr Yates maintained that the prosecution had to show that a voicemail message had been intercepted prior to it being listened to by the intended recipient. In response to the evidence given by Mr Yates, the Director of Public Prosecutions wrote to the Select Committee on Culture, Media and Sport in April of this year to clarify the opinion of the Crown Prosecution Service on this issue. He told the committee that in 2006 in relation to the investigation of, I think, Messrs Goodman and Mulcaire, the CPS initially advised the Met that:

“The offences under Section 1 of RIPA would, as far as I can see, only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this”.

Furthermore, the DPP stated that the view of the CPS at the time was that it regarded the question of whether or not the unauthorised accessing of a voicemail message after the recipient has collected the message is a RIPA offence as a difficult legal issue which had not been tested or authoritatively determined; that there were tenable arguments either way; that the observations made by the noble and learned Lord, Lord Woolf, in 2002 of NTL Group Limited versus Ipswich Crown Court pointed to a narrow view; and that it approached the prosecution on the basis that if the issue of interpretation arose, it could be preferable to proceed on a narrow interpretation, thereby avoiding the necessity of having a contested trial.

The letter from the DPP in April noted the following points. First, no concluded or definitive view was ever reached, and from the outset the head of the CPS special crime division indicated that the interpretation is,

“very much untested and further consideration will need to be given to this”.

Secondly, that,

“the prosecution was never required to, nor did it, articulate a definitive view of the law … in the case of Messers Goodman and Mulcaire”.

Thirdly, in his view,

“the legal advice given by the CPS to the Metropolitan Police on the interpretation of the relevant offences did not limit the scope and extent of the criminal investigation”.

That final point is based on the advice given by the CPS to the Met that the case could have been prosecuted under other offences, including the Computer Misuse Act. However, the Met was apparently reluctant to bring a prosecution under that Act. It has been suggested that that was for tactical reasons, but I do not know whether that was the case. Whatever the situation may be, it does not detract from the need to clarify the law on arguably the most relevant offence under RIPA. We believe that a clarification in the law is needed to make it clear that an offence of illegal interception of voicemail messages applies regardless of whether that message has been listened to by the intended recipient. Our amendment would provide that clarification and I hope that the Minister will take this opportunity to provide such clarification. I beg to move.

My Lords, the noble Lord, rightly, is looking for a degree of clarification, as suggested in his amendment. I do not think that we need clarification, and it might be helpful if I set out the case.

First, let me be clear that phone tapping or hacking is illegal. As the noble Lord made clear in his opening remarks, it remains illegal—I want to emphasise this—even if the intended recipient has access to that communication. I am aware of some of the concerns and the point was addressed directly by the DPP in the written evidence to the Home Affairs Select Committee in October last year. He stated that his advice to the police and the CPS would be to assume that,

“an offence may be committed if a communication is intercepted or looked into after it has been accessed by the intended recipient and for so long as the system in question is used to store the communication in a manner which enables the (intended) recipient to have subsequent, or even repeated, access to it”.

The recent Home Affairs Select Committee report, following its inquiry into unauthorised tapping or hacking of mobile communications, signified the particular importance of Section 2(7) of RIPA and that not enough attention had been paid to its significance. The committee did not recommend that Section 2(7) be amended. As Members of the Committee will be aware, we also have the Leveson inquiry, which is looking at a number of issues related to phone hacking. The first part of the inquiry, which is already under way, is focusing on the role and conduct of the press. The second part of the inquiry will examine the extent of unlawful or improper conduct at the News of the World and other newspapers and the way in which management failures have allowed it to happen. The original police investigation and its failings, the issue of corrupt payments to police officers, and the implications of all this for relations between police and the press will also be considered as part of the second part of that inquiry.

As the noble Lord will be aware, there are a number of other inquiries and investigations in hand and the police investigation into allegations of phone hacking continues, which I referred to in the Chamber only the other day in answering a Question. We believe it to be most appropriate, which I think the noble Lord would accept, to await the outcome of these various inquiries to know just what has happened, and so on, and to examine the conclusions before considering any changes to the law in this area. Further, we consider that the meaning of Section 2(7) is clear and that there are sufficient penalties in place to deal with offences of unauthorised interception. I refer the noble Lord back to the advice of the DPP to the CPS prosecutors. I hope that the noble Lord will accept that that deals with his points and that it is probably best to wait for the outcome of all those reports before he, we or anyone goes further.

My Lords, I thank the Minister for his response. I am not as convinced as he is that the present legislation is entirely clear because the events to which I referred would suggest that in certain fairly key quarters there appears to be some confusion over the current position. I do not mean confusion as far as the Minister is concerned, but I did refer to the police and the evidence that had been given. I am not entirely surprised that the Minister made reference to inquiries currently being undertaken. If I can take it from what he said, which I am sure I can, if those inquiries suggest that there is any lack of clarity in the present legal position, or even if the inquiry does not think there is a lack of clarity but nevertheless it would be helpful if the wording in the legislation were firmed up so that no one else could be in any doubt, that is the road that the Government will go down to end any confusion there might be on anyone’s part. On the basis that the Minister agrees that that will be the Government’s response—

I do not know whether the noble Lord wants me to intervene to confirm that that is exactly the case. Obviously, we are awaiting the results of those inquiries, and it would be wrong for us to jump before that. Whatever they recommend will be something that the Government will have to consider with great care.

Amendment 130 withdrawn.

Amendment 131

Moved by

131: Before Clause 39, insert the following new Clause—

“List of powers of entry

The Secretary of State shall ensure that the list of powers of entry in Schedule (Acts and secondary legislation containing powers of entry) is kept up to date and published.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My Lords, my noble friend Lord Selsdon came to the House in, I think, 1963, as a member of the Independent Unionist Peers. I came somewhat later in 1977, and also joined that group. I was obviously not independent enough as soon after that they were rechristened the Association of Conservative Peers. Obviously, I take note of and am interested in what my noble friend said on these matters. Like the noble Baroness, Lady Royall, I pay tribute to his diligence and doggedness in this matter over the last 48 years—or is it even longer than that? The noble Lord has battled with these matters for a long time.

I was also fascinated to hear what he said about placing things in the Library. That is something that I have said on a number of occasions. I never knew that it was purely the prerogative of Ministers. If that is what my noble friend said then that must be the case.

I also note with interest what the noble Baroness, Lady Royall, said in regard to one of the noble Lord’s amendments, which suggested that we could amend such a list by negative resolution. She wished to see it amended only by affirmative resolution. In due course, she might come to regret that. She might remember that there was a time when we had a very large number of paralytic shellfish orders going through the House, which, for some peculiar reason, had to all be agreed by affirmative resolution. I suspect that that was an opposition party—I do not know whether it was us or the party opposite—moving an amendment in the course of some Bill relating to shellfish, thinking, “Gosh, here’s an amendment we can get the Government on. Let’s make it affirmative rather than negative”. The rather rash Minister may have agreed—just so that he had a concession to offer the party opposite—that it should be affirmative and then all of us came to regret it later when we had a whole raft of these affirmative resolutions to deal with, which would not have been necessary.

In this case, that would be the case because there are a very large number of powers of entry and we would want to keep the list under review. But we think it is better to keep it under review by means of administrative methods rather than at a legislation level. The publication of a list in legislation requires that it is kept up to date and altered every time any power of entry was created, repealed or amended. I do not think that that would be the best use of parliamentary time.

While I agree that there should be a readily available and up-to-date list of powers, I am not persuaded that what my noble friend suggests is the right way to go about it. We believe that clarity and transparency can be achieved by publishing an up-to-date list of powers of entry alongside the Bill or, for that matter, any other enactment. The list, which is currently available on the Home Office website, not only identifies the statutes conferring powers of entry but also lists the relevant sections within those Acts and the purpose of each power.

Responsible Ministers will use this list as their starting point for undertaking the detailed review that we want them to do to look at all powers of entry, which is required under Clause 42. That review requires responsible Ministers to examine the justification for these powers and whether they are proportionate and contain adequate safeguards, which, again, is something that my noble friend wants. Those that are no longer needed will be repealed. All that work will be co-ordinated by my department, the Home Office, which is also responsible for managing the gateway that was established to limit the creation and amendment of powers of entry.

We have made every effort to ensure that the list we have published is up to date, but the review of powers of entry will also cover any others that may be identified as a result of further research. Perhaps I may offer my apologies to my noble friend because it is only by doing further research that we discover that such-and-such a statute of such-and-such a year contains some powers and needs to be looked at.

Finally, I turn to my noble friend’s Amendment 131A, for which I have considerably more sympathy if it is intended as an alternative to the approach proposed in Amendments 131 and 132. I can certainly accept the spirit of that amendment. As I have said, there should be a readily available and up-to-date list of powers of entry. Again, however, we do not think that it should appear in statute. I have some doubts as to whether we need to write a duty to publish such a list in the Bill but I am more than happy to discuss that with my noble friend during the next few weeks before we get to Report. We want to be transparent and to make something available but we do not think that the Act or the Bill is the right place to do it. As I have said, I have a degree of sympathy for Amendment 131A. I am prepared to look at that and to discuss it with my noble friend.

My Lords, I have great admiration for what the noble Lord, Lord Selsdon, has done. The number of powers of entry is truly amazing and overwhelming, but I think that we are skirting a much bigger issue, which is the question of the implementation of Article 8 of the European Convention on Human Rights that covers the right to privacy. It is either beautifully observed or perhaps, I fear, widely neglected. I hope that we can take a more systematic view of when and under what circumstances powers of entry are justified. Listing them makes it very plain just how urgent the problem is, but I think that the remedies will have to be on a slightly different scale.

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

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

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

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

Amendment 131 withdrawn.

Clause 39 agreed.

Amendments 131A and 132 not moved.

Schedule 2 agreed.

Clause 40 : Adding safeguards to powers of entry

Amendment 133

Moved by

133: Clause 40, page 33, line 33, at end insert—

“( ) A further safeguard shall be that, unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises owner or by warrant.”

My Lords, in moving Amendment 133 I shall speak also to Amendment 134. Amendment 133 requires that powers of entry to premises already enshrined in the law or which are part of future legislation should be exercised by agreement or by warrant. Amendment 134 would allow the authority using the powers of entry enshrined in law to do so without agreement or warrant if the authority can demonstrate that,

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

I shall of course give examples of how this amendment would apply.

I shall start from the historical perspective. For many centuries the rights of owners and occupiers of property have been argued over, disputed, defended and invaded. This all starts with Roman law, pre-Norman law, the Magna Carta and the Great Charter of Liberties and the Petition of Right, 1628, and goes right up to Article 8 of the European Convention on Human Rights, as the noble Baroness said.

Indeed, the protection of property rights, privacy and quiet enjoyment, whether of ownership, tenure or occupation, has come to be seen as an important aspect of a civilised and, ultimately, democratic society. It is therefore entirely appropriate that a Bill entitled Protection of Freedoms should have a part dealing with powers of entry. It does, indeed, form an ideal vehicle for us to discuss the ideas underlying my amendments, which do not in any way conflict with Clause 42 to which my noble friend the Minister has just referred.

We are all deeply indebted to my noble friend Lord Selsdon for all the work that he has done on this matter over many years. He has gathered it all together in a most scholarly volume, which he showed me yesterday. I doubt whether anyone knows more about this subject than he does. He is a wonderful example of the expertise—in this case, pretty esoteric perhaps—which resides in the House of Lords in its present form. He has uncovered an extraordinary number of pieces of legislation which allow virtually unfettered powers of entry to private premises for the officers or representatives of many different government and other bodies. These powers of entry have multiplied at an extraordinary rate. I think, at the latest count in his schedule, there are more than 1,200 of them. As my noble friend mentioned, there was an attempt in 1954 by the relatively young Lord Hailsham to deal with powers of entry, which I think related to the powers of electricity companies. I wish to quote a tiny bit from Hansard. Lord Hailsham said:

“For 200 years or thereabouts, the inhabitants of this country slept peacefully in their beds, in the supposition that the late John Wilkes had successfully established the proposition that their houses could not be entered without a warrant”.—[Official Report, 24/2/1954; col. 1127.]

The real paradox is that the sanctity of property has always been most vigorously protected by the fact that in this country in general the police have been required to obtain a warrant from a magistrate. I believe it is high time that the hitherto unchecked expansion of the right to enter property should be brought into line with the constraints to which the police are subject.

My Amendment 133 refers to entry by agreement. In almost every instance there is absolutely no reason why an entirely satisfactory arrangement should not be made between the property owner and the powers for whatever inspection may be necessary; and, indeed, it very often is. However, the fact remains that there is a feeling that the extent to which official busybodies are allowed to arrive unannounced and demand entry for whatever purpose they desire has aroused widespread and atavistic resentment, which itself generates a feeling of alienation from the state. That is something which any democratic Government should seek to counter. Indeed, my own party, the Conservative Party, gave specific undertakings in its manifesto which my noble friend has quoted. It is disappointing that so far we have not seen action, but this is a moment when action can be taken.

I recognise that there are cases where the whole purpose of the entry for inspection has to be an unannounced event. I refer to a couple of examples. The first and most obvious one is the everyday work of trading standards officers who need to enter premises such as shops and restaurants to look at the kitchens and make sure that hygiene and other standards of service are being met. Another group concerns those who inspect old people’s homes and other such premises. That is why I have included my Amendment 134 as a safeguard.

My noble friend Lord Phillips of Sudbury had hoped to speak to these amendments but he has had to go to another meeting, but he has asked me to say that he supports them. I very much hope that my noble friend the Minister will not only accept but welcome what I am trying to do. I shall of course be perfectly happy for him to tell me that he would wish to knock the wording into better shape, although I personally think it is pretty good, having been drafted by our admirable Public Bill Office to which we all owe such a debt of gratitude. I beg to move.

My Lords, I support wholeheartedly these amendments. My interest in powers of entry began about two years ago when I became a member of the Merits of Statutory Instruments Select Committee. Very soon it became apparent to me that statutory instruments kept coming in front of the committee providing for powers of entry for regulators in various different areas of activity.

One statutory instrument I particularly remember and which really prompted my interest more than any other was one arising under the Medicines Act, which gave power to regulators to enter the premises of pharmacists in order to ensure that the various provisions of the relevant statutes were being observed. The power to enter, which included entry into people’s dwellings, was a power to turn up and demand entry. If entry was refused, it was a criminal offence, and the official would have to come back with a warrant upon which he could gain entry; or, of course, if he knocked on the door and was admitted by consent, that was satisfactory.

When I saw the power to enter without consent and without a warrant, I began to worry. I went to visit the civil servants who had produced the particular statutory instrument and asked them about it. I was told, “Oh, this is common form, this has been here for years. Several previous statutory instruments under the old Medicines Act had similar provisions”, which was not really an answer to the question. I asked how often they had found it necessary to prosecute people for refusing entry, and they said, “Never”. Then I asked how often did they have to get a warrant. “Oh, we are always allowed entry”, they said. There was not a problem. They entered according to their customary practice, of which all of them had experience, by agreement. However, there on the statute book, in so far as a statutory instrument is part of the statutory law, was a power to enter without either agreement or a warrant. Other statutory instruments began appearing with the same features. Inquiries about those did not produce a significantly different response from that which had been given to me by the officials who had dealt with the Medicines Act statutory instrument.

I then met the noble Lord, Lord Selsdon, and conversations with him encouraged—and perhaps to some extent exaggerated—my worries about these powers of entry in statutory instruments. They do matter, I respectfully submit, particularly where the premises in question is somebody’s home. People are entitled, when they go through their front door and shut it behind them, to feel inviolate. Of course, the police have all sorts of powers of entry. They can enter under warrant, which is well known; they can also enter in hot pursuit of a criminal if the criminal dives in and seeks to take refuge; they can enter if they suspect criminal activity is going on within the premises and so forth. These powers of the police are well accepted and understood, but powers of entry for officials who are not the police but simply officials in some government department with a regulatory function—which is important and needs to be carried out—are an entirely different proposition.

There is absolutely no reason why powers of entry for all officials outside of the police should not require either agreement from the occupier of the premises or a warrant. The notion that you need a safeguard for very speedy entry in some cases is probably mistaken. A warrant can be applied for without any notice to the person whose premises are to be entered. The arrival of somebody with a warrant is just as much a surprise as the arrival of somebody without one. There is no need in an emergency to allow an entry. The warrant can be applied for and obtained very quickly from a magistrate, of whom there are many in all parts of the country. You ring them up and can go to the duty magistrate at any hour to get a warrant—if your facts are sufficient to justify the magistrate’s agreement to your application.

So much for powers of entry. The need for powers that require neither agreement nor a warrant is simply absent. What is worse is that a number of the statutory instruments where these excessive powers of entry can be found are accompanied by a provision making it a criminal offence to refuse entry. I have done no research other than the questions I asked of the individuals I have already referred to, to discover how often it has been necessary to bring criminal proceedings against people who refuse entry. I do not know the answer to that but, again, if there is any anticipation on the part of officials of a likely refusal, then they should get a warrant, ex parte without notice to the occupier of the premises, and turn up with it. Then they would be allowed entry.

We are not only talking about entry, but also about the searching of premises. Who would be other than aggrieved and indignant if an official turned up at his or her premises, demanding the right to search and shuffling through the wardrobe, the drawers in the bedroom, the Chesterfield or whatever it may be? These are necessary powers but they should not be exercised without the authority of a judicial figure if agreement on the exercise of them is not forthcoming or is expected not to be forthcoming. This reform of the powers of entry is long overdue and is excellent.

In Clause 40 of the Protection of Freedoms Bill there is a welcome attempt on the part of the Government to introduce safeguards to be associated with powers of entry in order to reduce the problems to which I have referred. Those seem to be fine but, if I may respectfully say so, for one exception. They start in subsection (1) by saying that:

“The appropriate national authority may by order provide for safeguards”.

That is a discretionary power. “May” means “may”—it does not mean “shall”. Then one finds in subsection (2)(d),

“a requirement for a judicial or other authorisation before the power may be exercised”.

That is still a discretionary power. To my mind, the attraction of Amendment 133 tabled by the noble Lord, Lord Marlesford, is that it makes the requirement for a warrant or consent compulsory. If paragraph (d) were taken out of Clause 40(2) and given a separate paragraph, making it a compulsory requirement for the exercise of a power of entry, the rest of Clause 40 would be entirely satisfactory and welcome. To leave it simply as a matter of discretion is simply not good enough, and the Government should think again about that. There is no reason why it should not be necessary to have either an agreement or a warrant. In any case, where there is a worry that notice to the occupant of the premises would give him or her opportunity to get rid of material that they do not want discovered, then go without notice but with a warrant. That solves the problem. This is an area of the law that needs reform. The amendment in the name of the noble Lord, Lord Marlesford, provides the necessary reform, but it needs some adjustment to Clause 40. That is all I need to say at this stage about that.

If the occupier consents, of course there is no problem, but I have a little worry about consent. Consent, if it is to be a satisfactory alternative to a warrant, must be free and willing. When an official knocks on the door and says, “I am from the department of whatever and I need to search your property” for whatever he or she is searching for, the householder may very well be overawed by the authority and hence unwillingly give his consent. That should be looked at very carefully, and a code of conduct in that regard is probably desirable. If there is any doubt about it, the official should get a warrant before it can be done without notice to the occupier. That should solve the problem. For the reasons I have given, I strongly support the amendment in the name of the noble Lord, Lord Marlesford.

My Lords, I should like to say a few words on this important issue. Ultimately, it is the householder or the business owner who has to decide whether the official or whoever it might be is allowed in or not. Not all of them are necessarily government officials because there are powers of entry for certain people—for instance, RSPCA officials in certain circumstances as regards animals. But I may be wrong. I just think that there are, which is frightening. I do not know one way or the other.

The noble Earl is quite right. There are powers for RSPCA officials. If they have reason to believe that an animal is not being well looked after or is being mistreated, they have a power of entry.

That is the point. The power of entry does not extend just to government officials. It can extend to other bodies. The danger is that the poor person at the door does not really know. As regards a business, perhaps officials have come along to seize equipment for some reason and think that an offence has been committed. That could be severely dangerous for a business, particularly if some of the equipment might be needed. A person needs to know instinctively whether the official can come in or not. The danger of any consent being involved is that it would be an excuse for bullying. We notice already that people who have regulatory functions, say, under health and safety, food safety or whatever, sometimes insist on things being done, which may not be strictly within their powers to insist on. Often expensively, people comply because they are terrified that they will get more inspections or more grief from the authority if they refuse. They also may have a feeling of, “If I don’t let this person in, it will seem as if I have something to hide. Then I will go in a black book and they will be around again and again”. I do not like anything that relies on a consent model.

I have looked at this issue randomly and I picked out hedgerows regulations, which I thought probably applies to private households. It includes a nice, simple phase which states that if someone does not let an official in or that it is difficult, they can get a warrant. It is terribly simple. I do not see why we do not classify things: basically, a warrant is needed to get entry, except, as everyone has said, in the case of an emergency. I will not try to suggest the wording because two efforts have been made. It is absolutely right. The idea that we modify every statute, Act of Parliament or regulation to bring them into line is completely the wrong way to go about it.

We had this problem with surveillance, investigatory powers and communications et cetera, which is why we introduced the Regulatory and Investigatory Powers Act—RIPA—which we talked about earlier. RIPA has been made incredibly complicated, which we would not want. But why do we not have an Act which regulates all powers of entry so that everyone can see the conditions quite simply and all other statutes or Acts refer to it if there is to be a power of entry? The power should be laid down in one place, but this time it should be kept simple.

At the end of the day we have to think back probably to Edmund Burke who, in the late 1700s, referred to the Englishman’s home being his castle. Yet here we are still struggling to keep a little bit of last defence there in some way. It seems that every single member of the public has access to it except the person who wants to protect it. If we cannot have any of this and it is too difficult to set it out simply in one place then I like the list of the noble Lord, Lord Selsdon, or a duty for someone to have that list somewhere easily available so that, if I am a business owner or householder, I can click on the Home Office website and it will tell me exactly what I have to do. How we do that is up to the powers that be. Personally, I think having it in one simple Act somewhere else that everyone refers to would be much simpler, certainly for me and the general public.

My Lords, I am not unsympathetic to the sentiments underlying the amendments in this group and I am not unsympathetic to the points made by the noble and learned Lord, Lord Scott of Foscote. Clauses 39 to 53 in Chapter 1 of Part 3 of the Bill go in the direction the noble and learned Lord would like to go. Obviously they do not go far enough as he would like to delete from Clause 39 “may” and replace it with “shall”.

I hope I will be able to explain this in response to my noble friend’s amendment but I think that might be going a bit too far. My noble friend would introduce a presumption that anyone seeking to exercise a power of entry may only do so either with the consent of the premises owner, which I think is Amendment 134, or under the authority of a warrant. That approach might be appropriate in many cases and that is why we want to look at all the powers we have and are asking all departments to do so. However, I am not persuaded that it would be right to adopt it as a blanket approach. One size does not fit all.

My previous job before the Home Office was in Defra. There, obviously animal disease was a matter of great concern to us. I also remember, as a farmer in the north of England not far from Longtown, the 2001 outbreak of foot and mouth. Obviously there is a need for the authorities, if we can put it like that, to be able to go into premises very rapidly, sometimes without a warrant—however rapidly the noble and learned Lord thinks that we can get a warrant. In the case of foot and mouth, speed was of the essence. It is possible that one of the reasons that the 2001 outbreak was not dealt with as effectively as it might have been was because there was initially a degree of inertia and a lack of speed.

The Committee will be aware that there are a very large number of powers of entry and we discussed that in the previous amendment. We want to make sure that we have appropriate lists of them to make life easier for individuals. However, when we carry out our review into all the powers as provided for by Clause 40(2) some will obviously prove necessary, some will require strengthening with further safeguards and some we will seek to abolish. That is why the word “may” might be more appropriate than the “shall” the noble and learned Lord is suggesting.

I was not suggesting that “shall” should apply to all the items. I was suggesting that it should apply to Clause 40(2)(d)—“may” could be kept for the rest.

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

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

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

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

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

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

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

Perhaps I may point out that the Northern Ireland Assembly, the Scottish Parliament and the Welsh Assembly are busily creating their own powers of entry. Once this Bill is passed, as I hope very much it will be, the safeguards in it will apply to the powers of entry under UK legislation but not to legislation passed by the devolved Administrations. Have there been any discussions with the devolved Administrations about applying the same standards to their legislation?

One of the joys of devolution is that it allows different parts of the United Kingdom to do different things. One might or might not approve of the different things they do, and they might create tensions in certain border areas. It will entirely depend on what powers each of the three devolved countries have as to what they do. Obviously we will continue to discuss matters with colleagues, as we do on all matters that go across borders. However, in the end it has to be a matter for them. It might be that differences will appear in due course, but once you have let the genie out of the bottle, that is what happens.

Since there will be conversations, it might be important to think about the way in which this code of conduct can be understood by citizens whose premises are to be entered, or not entered, in that this is very much addressing the official who seeks to enter, and what he or she may or may not do. It is very important to have something very simple that the citizen can actually grasp and say, “No, you have no warrant. I do not agree. This is not an emergency, so not now”.

I well understand what the noble Baroness is saying. As we all know, statute is not written in a language that most of us find that easy to understand—although I have no doubt the noble and learned Lord finds it easy to understand. Codes of conduct are obviously written in a manner that we hope will be understandable by all those who have to either make use of them or who will be affected by them. I am sure that as codes of conduct are drawn up, the strictures the noble Baroness has mentioned will be taken into account.

My Lords, I thank the noble and learned Lord, Lord Scott, for his very powerful support, which I think the Government should take very considerable note of. The Minister gave no indication of any real sympathy with this. The examples he gave from the Defra thing of course are covered extremely well by my second amendment, which says quite clearly that where the purpose of the exercise of the power of entry would be in any way frustrated by having to get agreement, or even a warrant, that that could be justified under the present situation.

As the noble Earl, Lord Erroll, said, this is a very important subject, and he made some very useful points. We shall certainly return to it on Report. I believe that there will be widespread support on all sides of your Lordships’ House for what we are trying to do. If there is any chance of having constructive conversations with the Home Office—which I rather doubt—I would be happy to have such discussions. However, at the moment I absolutely reject the idea that this one-by-one study in any way replaces what I want, which is a much more constrained, sensible and proper use of powers of entry. Although in the mean time I have to withdraw the amendments, we shall be returning in full force to them on Report.

Amendment 133 withdrawn.

Amendment 134 not moved.

Clause 40 agreed.

Clauses 41 to 43 agreed.

Amendment 135 not moved.

Clause 44 : Procedural and supplementary provisions

Amendment 136 not moved.

Clause 44 agreed.

Clause 45 : Devolution: Scotland and Northern Ireland

Amendment 137

Moved by

137: Clause 45, page 35, line 35, at end insert “without being ancillary to other provision (whether in that Act or previously enacted) which deals with an excepted or reserved matter”

My Lords, we are still on powers of entry. This is a small, technical group of government amendments to Clauses 45 and 47 and Schedule 9 to ensure that the Secretary of State’s order and code-making powers in the powers of entry provisions and the new order-making power inserted into the Regulation of Investigatory Powers Act—RIPA, as we have called it this afternoon—may make provision in respect of a transferred matter in relation to Northern Ireland, where such a provision is ancillary to reserved or excepted matters. These are similar to amendments already made to Schedule 1 during Committee of the whole House. I beg to move.

Amendment 137 agreed.

Amendment 138

Moved by

138: Clause 45, page 35, line 36, leave out ““transferred matter” has the meaning” and insert ““excepted matter”, “reserved matter” and “transferred matter” have the meaning”

Amendment 138 agreed.

Clause 45, as amended, agreed.

Clause 46 agreed.

Clause 47 : Code of practice in relation to non-devolved powers of entry

Amendment 139

Moved by

139: Clause 47, page 37, line 22, at end insert “without being ancillary to other provision (whether in the Act of the Northern Ireland Assembly or previously enacted) which deals with an excepted or reserved matter (within the meaning given by section 4(1) of the Northern Ireland Act 1998)”

Amendment 139 agreed.

Clause 47, as amended, agreed.

Clauses 48 to 50 agreed.

Clause 51 : Effect of code

Amendment 140

Moved by

140: Clause 51, page 39, line 27, at beginning insert “No instrument containing the first order under subsection (5) is to be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.

( ) Subject to this,”

My Lords, these amendments give effect to a recommendation made by the Delegated Powers and Regulatory Reform Committee. As the noble and learned Lord, Lord Scott of Foscote, is still here, I hope this amendment will find favour with him at least. The committee argued that there may be considerable interest in the first order to be made under Clause 51(5), setting out those relevant persons required to have regard to the code of practice for powers of entry. In view of this, the committee recommended that the first such order should be subject to the affirmative procedure. The Government are content to accept this recommendation and these amendments make the necessary changes to the Bill, including to the parallel order-making power, exercisable by the Welsh Ministers in Schedule 3. I beg to move.

Amendment 140 agreed.

Amendment 141

Moved by

141: Clause 51, page 39, line 28, at end insert—

“( ) If a draft of an instrument containing the first order under subsection (5) would, apart from this subsection, be treated as a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not a hybrid instrument.”

Amendment 141 agreed.

Clause 51, as amended, agreed.

Clauses 52 and 53 agreed.

Schedule 3 : Corresponding code of practice for Welsh devolved powers of entry

Amendment 142

Moved by

142: Schedule 3, page 123, line 25, at beginning insert “No instrument containing the first order under sub-paragraph (5) is to be made unless a draft of it has been laid before, and approved by a resolution of, the National Assembly for Wales.

( ) Subject to this,”

Amendment 142 agreed.

Schedule 3, as amended, agreed.

Clauses 54 to 57 agreed.

Clause 58 : Emergency power for temporary extension and review of extensions

Amendment 143

Moved by

143: Clause 58, page 41, line 34, after “place,” insert—

“(iii) at any time when Parliament is sitting or is in recess the Secretary of State, with the concurrence of the Attorney General, considers it would be inexpedient to introduce primary legislation to authorise a temporary extension of detention because of—(a) time constraints,(b) the risk of prejudicing the possibility of a fair trial of a person suspected of or charged with a terrorist offence, or(c) unacceptable risk to public safety or to security,”

My Lords, Amendment 143 is in my name and those of the noble Baroness, Lady Liddell of Coatdyke, and the noble Lord, Lord Faulks. Clause 57 establishes on a firm and clear basis the principle that a terrorist suspect should not be detained without being charged for longer than 14 days. Fourteen days is already a very long period to detain someone without charge. For any other offence, the maximum would be no more than four days. The case for a longer period in respect of terrorist suspects is justified only by the especial nature and problems of terrorism.

Over the years, there has been much debate about how long the period should be. At one time under a previous Administration, a maximum of 90 days was suggested. This Bill now sets the maximum period at 14 days, to be extended only in the most exceptional circumstances. It has not been necessary to extend the period of detention without charge beyond 14 days at any time in the past five years. Nevertheless, it remains the view of the Home Secretary, as well as of the police and the Director of Public Prosecutions, that the possibility that it might one day become necessary to do so cannot be excluded and should be provided for.

The Government took the view that, in order to make sure that the period of detention would be extended only in the most exceptional circumstances and only when really necessary, there should be no standing power to extend the period by order, and that it should be extended only by the introduction of emergency primary legislation if and when the need arose. They prepared draft Bills to have ready for introduction when required; and they invited a Joint Committee of both Houses of Parliament to give the draft Bills pre-legislative scrutiny. That committee, of which I had the privilege of being the chairman, believed that the Government were right to wish to create a contingency power to extend the maximum period for pre-charge detention of a terrorist suspect beyond 14 days up to not more than 28 days in truly exceptional circumstances.

The committee understood and respected the Government’s reasons for proposing that this power should be provided by emergency primary legislation, to be enacted only when the need arose, so that temporary extensions of the period of detention would happen only in very exceptional circumstances, and so that the need for and the provision of the power could be subject to parliamentary scrutiny. We believed, however, that the parliamentary scrutiny of such emergency primary legislation to this effect would in practice be very seriously circumscribed. We thought that it might prove in practice to be very difficult to explain to Parliament the reasons for introducing it without either disclosing information that would endanger security or public safety, or information that would prejudice the right of a suspect or suspects to a fair trial. This could make the process of justifying the legislation almost impossible for the Secretary of State and totally unsatisfactory and frustrating for Members of both Houses of Parliament. We also thought that there would be an unacceptable degree of risk that it would sometimes be almost impossible to introduce and pass the legislation required within a sufficiently short period of time when Parliament was in recess and would have to be recalled. It would, of course, be absolutely impossible to introduce primary legislation during the period between the Dissolution of one Parliament and the opening of a new Parliament.

We therefore concluded that emergency primary legislation, as exemplified in the Government’s draft Bills, did not offer a satisfactory solution, and we recommended a new order-making arrangement, under which the Secretary of State would be authorised to make an executive order if need arose to extend the period of detention of terrorist suspects without charge to not more than 28 days for a three-month period, if exceptional circumstances applied, subject to strict safeguards and subject also to the agreement of the Attorney-General.

In Clause 58 of the Protection of Freedoms Bill, the Government have accepted the committee’s recommendation in part and have made provision for temporary extensions of the period of detention by executive order in the period between the Dissolution of one Parliament and the first Queen’s Speech in the next. However, they are proposing to rely exclusively on the introduction of emergency primary legislation when Parliament is sitting. I and the noble Lords who were members of the Joint Committee and who have put their names to this amendment remain of the view that the difficulties of introducing emergency primary legislation might be insurmountable even when Parliament was sitting, and that there needs to be a fallback or fail-safe provision allowing the Secretary of State to make an executive order if in those circumstances it is really necessary to extend the period of detention of a terrorist suspect or suspects for longer than 14 days.

Our amendment is permissive, not mandatory. It would not prevent a Secretary of State introducing emergency primary legislation if he or she were satisfied that he or she could safely and effectively do so. It would allow the Secretary of State to proceed by means of an executive order even when Parliament was sitting, with the concurrence of the Attorney-General if time constraints, risks to security or public safety, or the risk of prejudicing a suspect’s right to a fair trial, made it impossible or impracticable to introduce primary legislation. The safeguards will be the same as those applying to an executive order made at a time when Parliament had been dissolved. The principle that there should be an alternative to the introduction of emergency primary legislation is already established by Clause 58 of the Bill as it stands. The amendment that we are proposing is a modest extension of that principle—permissive, not mandatory; it does not seek to establish a new principle.

I should not like to be the Secretary of State who had to explain to Parliament and to the country after a terrorist incident in which innocent people had been killed or injured that the incident could have been prevented if only the Protection of Freedoms Bill had been enacted as improved by the acceptance of this eminently reasonable cross-party amendment. I beg to move.

My Lords, I support the amendment tabled by the noble Lord, Lord Armstrong, and other members of the Joint Committee. It is an eminently sensible amendment because the Government have rightly recognised the practical impossibility in certain circumstances of emergency legislation, hence the introduction of Clause 58. However, as the noble Lord, Lord Armstrong, said, there remain real concerns over the workability of the Government’s proposal.

We believe that there is a serious risk of jeopardising a fair trial if Parliament is to be provided with enough information to properly scrutinise the necessity of the use. It seems as though it would be practically unworkable because, as the noble Lord said in his introductory statement, there would be a need to introduce and pass legislation with too short a timeframe to enable proper scrutiny and accountability. The scrutiny of legislation within such a short deadline would appear to be a dangerous way to legislate because the time pressures and state of emergency would undermine proper and dispassionate scrutiny of the legislation. By prescribing the use of an emergency power too tightly, within the most serious situations, the sheer use of the power would indicate to any future jury the unusual gravity of the case and therefore prejudice its views. We support the amendment moved by the noble Lord, Lord Armstrong.

My Lords, I am grateful to the noble Lord for his detailed consideration of this clause, and I thank him for his letter of 16 November in which he provided a detailed explanation of the reasons behind his amendment.

The amendment would extend the circumstances in which an order could be made under Clause 58 to increase the maximum period of pre-charge detention in relation to terrorist suspects from 14 to 28 days. We have made it clear that we believe that the maximum period for pre-charge detention for terrorist suspects should in the majority of circumstances be 14 days. Given that no suspects have been held for longer than 14 days since 2007, it is evident that such a long period is not routinely required.

However, there may be exceptional circumstances in which it is necessary to extend temporarily the maximum period. A mechanism should therefore be in place to provide for such circumstances. We are clear that any extension of that maximum period would be a very serious matter and, as such, the question of whether to increase the maximum period available should be put to Parliament by way of fast-track, primary legislation.

I am grateful for the consideration of this issue by the noble Lord, Lord Armstrong. He has invested considerable effort during, and since, his chairmanship of the Joint Committee which undertook the pre-legislative scrutiny of the Government’s draft fast-track legislation. The Joint Committee agreed with the Government that the creation of a contingency mechanism to increase the maximum period of pre-charge detention is a sensible precaution. However, the committee advised against the use of primary legislation suggesting that the circumstances in which it might be needed would make its passage through Parliament impossible, a point stressed by the noble Baroness, Lady Royall.

The Government also agreed with the committee’s conclusion that primary legislation would not be a workable solution during the period when Parliament is dissolved because obviously there would be no Parliament to take it through. As a result of a Government amendment agreed on Report in the House of Commons, Clause 58 now provides for the Secretary of State to make an urgent order to extend the maximum period of pre-charge detention, but only during a dissolution or in the period before the first Queen’s Speech of a new Parliament.

The noble Lord’s amendment seeks to allow an urgent order to be made by the Secretary of State at any point if she felt that the use of primary legislation would be inexpedient for any of three reasons: namely, that there is not enough time; that there is a risk of prejudicing future trials; or that there is a risk to public safety or security. I appreciate the arguments put forward by the noble Lord that the Government may proceed by way of primary legislation but that they should also retain the option of using an urgent order-making power if primary legislation is too difficult. However, the Government remain of the view that when Parliament is sitting or is in recess, such a power is not appropriate.

A 28-day limit on pre-charge detention for terrorist suspects is such a significant extension—it doubles the time—of the current limit, which is itself longer than the period permitted for non-terrorist investigations, that we believe Parliament should have the opportunity to debate and approve such a move. Yes, it will be difficult to manage primary legislation in those circumstances but it has been done before and the noble Lord, Lord Armstrong, has pinpointed some of those difficulties in his amendment, as has the noble Baroness, Lady Royall. However, we believe that it will be possible.

Parliament has shown itself capable of debating emergency legislation in one or two days in the past—I have taken part in some of the debates—when the issues have been of real importance and urgency. Furthermore, Parliament would be required to debate the principle of 28-day detention rather than the circumstances of any individual cases, which will properly remain the responsibility of the courts. Therefore I do not think the danger to which the noble Baroness alluded would occur.

While that means that Parliament must tread a very careful line in discussing the details of any individual investigations, it would be afforded the opportunity to consider the general nature of the threat and the need for any extended period of pre-charge detention in the context of that threat. Again, I think Parliament has a track record of discussing sensitive ongoing legal issues, as we have seen this year with the intensive debate around phone hacking.

The Government believe that the introduction of an order-making power along the lines proposed would detract from the principle that in the main 14 days should be the maximum period of detention in all normal circumstances and this should be reflected in the legislation. The temptation to use such a power instead of primary legislation would be greater and this Government do not believe that it properly reflects the exceptional nature of 28-day pre-charge detention.

In this group, we were also due to consider government Amendments 144 and 145. It might be of some use if I briefly say a word or two about them. They are in response to a recommendation and an observation made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. The committee reported that any order made by the Secretary of State under Clause 58 should be laid in draft before Parliament as soon as practicable. The committee noted that a similar provision in the Terrorism Prevention and Investigation Measures Bill requires an order to be laid before Parliament.

The Government accept the committee’s recommendation and Amendment 144 will give it effect. An order made by the Secretary of State under Clause 58 will be made only when Parliament is dissolved. That effectively means that a draft would be laid as soon as possible once a new Parliament has assembled. The order would then be subject to parliamentary approval within 20 days, as per the requirement in the clause.

The Delegated Powers Committee also noted that the drafting of the Bill means that the revocation of any temporary extension order made under this power would also be subject to the affirmative procedure, and questioned whether this was appropriate. After further consideration, we are of the view that the revocation of a temporary extension order need not be subject to parliamentary approval. A revocation order would simply return the maximum period of pre-charge detention for terrorist suspects to 14 days.

Should Parliament agree to Clause 57, it will already have signalled its agreement that the default maximum period should be 14 days. I do not believe that it is necessary for Parliament subsequently to approve an order that restores the 14-day limit, given that the effect will simply be to revert to the status quo. As an order could be both made and revoked while Parliament is dissolved, it is possible that Parliament could be asked to approve an order and then approve its revocation immediately afterwards. Given that Parliament’s concern has been around the increase of the maximum period rather than any reversion to 14 days afterwards, I believe that it is sensible to allow for a process of parliamentary approval in respect only of the making of an order, rather than the revocation. That will allow Parliament to debate the principle of an extension of pre-charge detention, but will not result in the unnecessary use of parliamentary time if that increase, for whatever reason, is no longer required.

That is the explanation behind government Amendments 144 and 145. I hope that what I have said about the amendment in the name of the noble Lord, Lord Armstrong, will satisfy him and that he will therefore feel able to withdraw his amendment.

My Lords, of course I entirely respect the Government’s preference for introducing primary legislation if time and other constraints permit. I am afraid that, having sat through the proceedings of the Joint Committee and having heard a great deal of evidence on the subject, it remains my belief that the Government’s view that emergency primary legislation when Parliament is sitting will always be able to provide what is needed is optimistic. Their determination to rely on emergency primary legislation is admirable. If this amendment were to be passed, they would still be able to exercise that power and resist the temptation to introduce an executive order. I am glad that the Secretary of State and the Minister are of the view that they would always be able to do so.

It is at that point that my view still, with respect, differs from that of the Minister. The risk of great difficulty in introducing emergency primary legislation for the reasons set out in the amendment remains. The consequences of not being able to extend the period of detention over terrorist suspect or suspects without charge could have literally fatal consequences. While I beg leave to withdraw the amendment at this stage, I wish to reserve the right to return to the matter on report.

Amendment 143 withdrawn.

Amendments 144 and 145

Moved by

144: Clause 58, page 44, line 40, at beginning insert—

“(6ZA) As soon as practicable after making an order under paragraph 38 of Schedule 8, the Secretary of State must lay a copy of the order before each House of Parliament.”

145: Clause 58, page 44, line 46, at end insert—

“(6C) Subsections (6A) and (6B) do not apply to an order under paragraph 38 of Schedule 8 which revokes an order under that paragraph.”

Amendments 144 and 145 agreed.

Clause 58, as amended, agreed.

Clauses 59 to 60 agreed.

Clause 61 : Replacement powers to stop and search in specified locations

Amendment 146

Moved by

146: Clause 61, page 46, line 24, at beginning insert “reasonably”

My Lords, the Committee will be aware that the Government made a remedial order—the Terrorism Act 2000 (Remedial) Order 2011—earlier this year to replace the stop and search powers in Sections 44 to 47 of the Terrorism Act 2000 with a more targeted and proportionate power. That order will cease to have effect when, subject to parliamentary approval, Clause 61 of the Bill comes into effect.

The Joint Committee on Human Rights issued two reports on the Terrorism Act 2000 (Remedial) Order 2011. It recommended in both reports that the Bill should be amended to clarify that a senior police officer making an authorisation in respect of the new stop and search powers must have a reasonable basis for not only their suspicion that an act of terrorism will take place but also their view that the authorisation is necessary and proportionate to prevent such an act. The Parliamentary Under-Secretary for Crime and Security responded to the Joint Committee’s second report stating that he would consider whether the Bill should be amended. I can confirm today that the Government accept the Committee’s recommendation, which is implemented by this amendment.

I should stress that Amendment 146 is without prejudice to the construction of “considers” elsewhere in the Terrorism Act 2000. In the particular context of this provision in the Bill, we are merely emphasising—in response to the Joint Committee’s report—the implicit meaning that consideration must be reasonable so that the intended meaning is clear to all, including the courts. We feel this clarification may be helpful given the contrast between “reasonably suspects” in the first part of the test for authorisation and “reasonably considers” in the second.

The amendment to Schedule 6 makes a parallel change to the stop and search powers in Schedule 3 to the Justice and Security (Northern Ireland) Act 2007, as amended by that schedule. I beg to move.

My Lords, we welcome the Bill’s provisions in relation to stop and search in general. We also welcome the amendment before us today. Stop and search is an important police tool and was introduced for a very good reason in response to the changing security environment. However, as actions this summer have shown, community cohesion and the effectiveness of policing depend on public confidence. We know, for example, from the interim report of the Independent Riots, Communities and Victims Panel, that stop and search was cited as a major source of discontent with the police. This discontent and concern was widely felt by young black and Asian men specifically. It is absolutely right and proper that this government amendment introduces the concept of reasonableness. I wholeheartedly support the Government in their amendment.

Amendment 146 agreed.

Clause 61, as amended, agreed.

Schedule 5 agreed.

Clauses 62 and 63 agreed.

Schedule 6 : Stop and Search Powers: Northern Ireland

Amendment 147

Moved by

147: Schedule 6, page 138, line 9, at beginning insert “reasonably”

Amendment 147 agreed.

Schedule 6, as amended, agreed.

Clause 85 agreed.

Schedule 8 agreed.

Clauses 86 to 99 agreed.

My Lords, I wonder whether this is a convenient moment for the Committee to adjourn until Tuesday, 10 January at 3.30 pm. I wish the Committee a very happy Christmas.

Committee adjourned at 4.45 pm.