Pharmacy Order 2010

My Lords, the purpose of this order has already been explained by the Minister. It is to establish a new regulatory body—a new council—to regulate the conduct of pharmaceutical retail businesses, and to set standards for the practice of pharmacy at registered premises. It is a feature of the order that the council must establish an inspectorate, the function of which will be to enforce the regulatory rules made by the council. I believe all of this to be quite unexceptionable and I do not question the desirability of the order as explained by its accompanying Explanatory Memorandum and the noble Baroness. However, I do question the need for this order to give the members of the council’s inspectorate the right to enter and search private premises without the consent of the occupiers or owners of the premises, and without obtaining any warrant. This point was touched on by the noble Earl. The right to enter and search is not confined, as the noble Baroness’s introduction might have led one to suppose, to a registered pharmacy. It extends to other premises, as the noble Earl mentioned. It is made expressly clear in the same article that it extends to private dwellings. I suggest that to be both unjustifiable and unnecessary, and that is the basis on which I am moving the regret Motion. In moving the regret Motion, there are only three points that I want to make, although I will have to expand on them. First, such an unfettered right to enter private premises without consent and without a warrant is, and ought to be regarded as, contrary to principle. The second point is that there is no need for such an unfettered power to be given to the inspectors. The third point is that the giving of such powers to regulatory authorities is a growing tendency in statutory instruments. I have had the privilege of being a member of the House’s Select Committee on the Merits of Statutory Instruments since November. In that short time, three or four statutory instruments have provided powers to enter and search without consent or a warrant. The noble Lord, Lord Selsdon, has done much more research on this issue and has unearthed hundreds of instruments granting such powers. The proliferation of these powers is increasing, is unacceptable and ought to be checked. Before I expand on those points, I draw your Lordships’ attention to the content of the order in a little more detail in relation to the right of inspectors to enter premises without consent or a warrant. The order provides for that power. It makes criminal any obstruction of the exercise of entry. It goes on, oddly, to provide for circumstances in which the inspectors can apply to a magistrate for a warrant or court order to enter. The magistrate may grant the warrant if they are satisfied that there is a proper reason for the application and provided that the case falls within one of four specified situations. The first is that entry has been refused, or is likely to be refused, by the owner or occupier; the second is that making a request for admission or giving notice to the owner or occupier of the desire to enter would destroy the object of the entry; the third is that the premises are unoccupied or the occupier is temporarily absent; and the fourth is that there is some need for urgency. Those four situations cover every conceivable eventuality in which the need to enter premises and discharge the regulatory function might be desired by an inspector. I return to the three points. First, on the point of principle, there was a debate not long ago on a Private Member’s Bill, the Second Reading of which was sought by the noble Lord, Lord Selsdon. In the course of that debate, the old trite saying was mentioned that a man’s home is his castle—and so it ought to be. The reason why it ought to be his castle and for the origin of that familiar and somewhat trite expression is that it ought to be the place where the homeowner is entitled to repel, to keep out, those whom he does not want to enter his house, and to allow to enter his house those whom he wishes. That is a feature of home ownership and of the respect for a home to which every person is entitled. That is recognised in Article 8 of the European Convention on Human Rights. There are occasions, of course, when imminent emergency or danger to life or limb may require an entry to be made into private premises, including a home, without a warrant, in order to save life or if some serious criminal activity is feared. Short of that, none of which can apply to the enforcement of this order, it ought to be accepted as a golden principle that it is not open to the Executive, officials appointed by the Executive, or officials appointed by any other person or body acting under statutory powers, to enter private premises—particularly private dwellings—without either the consent of the occupier or the authority of a court order. So much for the principle. I do not know whether the Minister would dispute the validity of the principle—I hope she would not—but if there is to be any derogation from it, that can take place only on the basis of clear need. Where is the need in connection with enforcing the regulations and rules relating to pharmacies? The order provides for the right to enter premises under a warrant in the circumstances of: refusal or the likelihood of refusal; urgency; nobody being there, and in case giving notice would destroy the object of entry. In all those circumstances, the order provides for a warrant to be applied for. Of course, if the case can be made out then a magistrate will grant the warrant—and warrants can be applied for very quickly. The inclusion of urgency in the situations where that can happen demonstrates that to be so. The need to give these draconian powers to inspectors to enter without a warrant, notwithstanding no consent, is, I respectfully suggest, quite unnecessary and ought not to have been included. So much for the absence of any need; the proliferation of these powers in statutory instruments is a matter of fact. On the occasions when those powers have been found in statutory instruments that have come before the Merits Committee in the short time that I have been a member of it, the answer has always been: "Well, these powers have been there and we have enjoyed them for a long time. There it is—what’s the matter with them?". That is not a demonstration of need; it is not really an excuse. When the Pharmacy Order came before the Merits Committee, the committee inquired of the department why this power to enter without consent and without a warrant had been included. The answer that the department provided was of some surprise at the question being asked. The power had been there, it said, in similar terms ever since the Medicines Act 1968. I looked at that Act, and there it was: the power to enter without consent and without a warrant, followed by all the comprehensive circumstances that I have already outlined in which a warrant could be applied for. What, then, was the need in 1968? No answer; these powers had simply always been there and have found their way not simply into this statutory instrument but into others. The lack, as it seemed to me, of a proper answer from the department was followed by a communication from an official of the Royal Pharmaceutical Society, who asked if he could come to see me and talk about the order. I think that he was concerned at the delay that my regret Motion was causing to the implementation of the order. I arranged to meet him at that royal society’s premises—just on the other side of the river—and put the questions to him. What was the need for this power to enter without a warrant and without consent? I also asked him how often the inspectors were refused admission and how often it was necessary to apply for a warrant. Had the society ever brought a prosecution against some pharmacist for refusing entry that had been requested? He did not know, but said that he would inquire of the chief inspector and come back to me. Last Wednesday, he sent me a very helpful and illuminating response from the chief inspector. She said that she had looked into the matter and that, over the past 10 years, there had not been a single occasion when a warrant had been applied for or when admission had been refused on request. There had therefore been no prosecutions brought. The chief inspector went on to say that the powers that had previously been enjoyed under the Medicines Act and those that were proposed to be continued under this order were necessary. However, I suggest that the evidence was against her. How could the absence of a need ever to exercise the power to apply for a warrant show that that power would not by itself be sufficient to discharge the purposes of the inspectors? Consent or a warrant would, I suggest, plainly be sufficient on the evidence of the past 10 years, to which I have referred. The question is whether a power to enter without consent or without a warrant is permissible and acceptable. Perhaps the proper treatment of this question should be to require the inspector to ask for consent. On the evidence, he would expect to get it. However, if on the very odd occasion he did not get it or did not think that he should warn the pharmacist by asking for consent, he should apply for a warrant and there would be no difficulty about him gaining entry. The requirement of a warrant in the case of disagreement would introduce an acceptable form of control over the power to enter. A lot is heard about the importance of the rule of law. The rule of law should mean that invasive intrusions into individuals’ homes ought not to be tolerated unless franked by a court order. That is what courts and judges are for. The proposition that obtaining a warrant is merely an optional extra is, I suggest, not satisfactory. On those grounds, I invite the House to agree that regret should be expressed at the inclusion in this order of unnecessary, illogical and unjustifiable powers of entry without consent and without a warrant. I beg to move.