Protection of Freedoms Bill

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 in 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.