Pharmacy Order 2010

My Lords, it is clear that the House owes a great debt to the noble and learned Lord, Lord Scott, for raising this matter. It is a very important subject, which I predict will grow in importance. It is to the credit of the House of Lords that, very largely due to the initiative and hard work of my noble friend Lord Selsdon over a number of years, it is taking seriously this important issue. It is particularly useful to draw to the attention of the authorities of the House the role in this of the Merits of Statutory Instruments Committee. Years ago, I was on the old Statutory Instruments Committee, and very boring it was, because all we had the power to do was to look at powers; in other words, the vires. All we had to say was whether the statutory instrument in question had vires as drafted under the legislation or whether they were Henry VIII clauses. Now, the committee looks at the merits of statutory instruments, which is a big advance. I suggest that, from now on, that committee should always consider whether there are powers of entry in a statutory instrument, whether they are appropriate and necessary, and whether they contain proper safeguards against powers which are disproportionate, particularly powers of entry without warrant. The golden principle to which the noble and learned Lord referred, of the right, particularly of the householder or a landholder, to keep people off their property without due cause for entry, must be revived—it dates right back to Magna Carta. I am disappointed that we should need to discuss this matter tonight, because we had heard that the Government were seized of its importance at the Second Reading of my noble friend’s Bill; indeed, I remember the Prime Minister himself expressing interest in powers of entry last year. Well, his influence may be fading. It is extraordinary that, with the decision that there should be a co-ordinated approach, we have so unjoined-up an example of government as this. I ask the Minister to say directly and honestly—of course, she will be honest—whether the Department of Health consulted the Home Office before drafting the clauses in question, because, apart from anything else, they seem to be extraordinarily badly drafted. As the noble and learned Lord pointed out, they contain perfectly satisfactory conditions for powers to be used with a warrant, but they are then all overridden by loose and sloppy wording which appears to allow entry without a warrant. That is wholly unacceptable. If we were to pass the amendment—and I shall certainly support the noble and learned Lord in the Lobby if he chooses to take the opinion of the House—it would not affect either the implementation of the order or the speed with which it is done; it would merely put down a marker very publicly, as I hope to some extent this debate will do. There is a real danger of antagonising the public with this plethora of powers of entry without a warrant. How can it be that, if the police need warrants in almost all cases, the same should not apply to the great number of other inspectorates, which is growing every year? It is absurd that they should not need them. We recognise that there are circumstances when everyday powers are needed; there is general consent about that. The trading standards people have to be able to visit premises as and when they wish. They do not need a warrant and there is no objection because the visits are an essential aspect of their role. Another issue that has come up in recent years is the need for more direct powers in respect of the protection of children, but in my view the right approach to that is for a case to be made to a magistrate when someone is thought to be at risk. A continuing power would be given for the appropriate people to visit those premises as and when. In itself that would be a safeguard because of the failure of social workers to do their job properly by entering premises to check on some wretched child who is being neglected or abused. It would be much harder to justify with the melange of excuses we always hear after a case has been exposed because the first question would be: "Did you or did you not apply to a magistrate for proper rights of entry to check on that particular case?". In that area, it would be a huge plus to require there to be a magistrate’s warrant. It is a good thing that we have discussed this issue and I hope very much that the Government will agree to accept the amendment. I hope that it will not be implied that we are wasting parliamentary time in discussing this little matter. The noble and learned Lord has made the case very clear, and he has taken trouble to consult, that there is no conceivable need for this power to exist, especially since the order itself lays down clear conditions under which a warrant could be obtained. It is the overriding provision that has been slipped in which is unacceptable. Perhaps the Minister will tell us that it was all a mistake, that they never consulted with anybody, and that they do not have good legal people in her department.