Protection of Freedoms Bill

My Lords, in moving Amendment 37ZA, and speaking to Amendments 37ZB and 37ZC, on powers of entry, I must say at once that, crucially, the three amendments all go together. I am grateful to my noble friend the Minister for circulating to us all on Thursday the Home Office view on my amendments. Normally one learns of objections only in the winding-up speech of the Minister, but this useful form of pre-debate negotiation has enabled me to meet at least two of the Home Office points with changes to my amendments. However, I did notice one rather surprising statement in the Home Office brief, and in fact if it were not in both the summary and the main argument I would have been tempted to see it as a misprint. The brief states: "““The Government supports action to remove necessary or unjustified powers of entry””." That is not what I seek. It is perhaps rather sad to note that the Home Office retains its historic belief in its own omniscience, which I well remember from my days in Whitehall, but it seems to be losing its reputation for accuracy. The first amendment makes the main point that powers of entry should be used only by agreement with the occupier of premises or with a magistrate’s warrant. The second amendment allows for exceptions where it is obviously necessary to continue with routine inspections and checks without notice being given. The third spells out specific areas where I am not seeking to change existing practice in the use of powers of entry: trading standards, the police and security services, protection of children and vulnerable adults. The Trading Standards Institute explained to me why it needs its existing powers for its job of protecting consumers; for example, by checking goods in shops or the accuracy of a petrol pump at the petrol station, and so on. I am glad that the institute has been able to assure me and the Official Opposition that it is now content with the amendment, which would enable it to continue with its important and valuable work. Although the essence of my argument is that powers of entry should be subject to the same constraints as the police who normally and traditionally have to have a warrant, the Home Office has helpfully pointed out to me that the Terrorism Prevention and Investigation Measures Act 2011 has given constables certain new powers to enter without a warrant. That is why I have added Amendment 37ZC to cover the police and security services. It is also, of course, necessary to continue to allow unannounced entry to those charged with responsibility for the protection of children or vulnerable adults. Thus inspecting old people’s homes, checking on children at risk or similar crucial monitoring functions must be allowed to continue without either warrant or agreement. However, I feel I must emphasise the principle underlying my amendments and why I am doing this at all. In our country, the right to privacy and to enjoy property or conduct legitimate businesses without state intrusion has been a long-standing freedom. Indeed, it has echoes going back 800 years to Magna Carta, which sought to protect individuals from the Crown and from officials of the Crown. The fact that the police cannot, in general, enter people’s homes or businesses without a magistrate’s warrant is a cherished freedom well-known to the public and has given rise to the ancient phrase, ““An Englishman’s home is his castle””, which was coined by the great English jurist Sir Edward Coke, who was responsible for the Petition of Right in 1628. The law should protect the individual and must never be defied. In 1977, that great icon Lord Denning quoted Thomas Fuller’s 1732 dictum, ““Be you ever so high, the law is above you””. The lesson in that, of course, is the huge responsibility that legislators have to ensure that the laws they make enhance and enshrine liberty rather than erode freedom. This, of course, is what this Protection of Freedoms Bill should be seeking to do. I was disappointed, but perhaps not surprised, that the Minister should have so completely rejected my first two amendments on powers of entry when they were debated, with support from all sides, in Grand Committee, but I am well aware that the Home Office expects to have the monopoly of any improvements to its legislation. However, it is a pity that Ministers in this coalition Government should not have seen their prime duty when this Bill was drafted as being to extend real freedom rather than seeking to protect the territorial rights of the bureaucracy. For years legislation has surged liked a tidal wave. No Government seem to have the power or even the will to stem it. More and more laws have been passed which give officials of every rank and type the right to enter premises without so much as a by your leave to inspect, check, observe, search or test whatever perfectly honest citizens are doing in their own property. This is something that the public are increasingly aware of and apprehensive about. The real hero behind my small attempt to reinforce our ancient liberties is my noble friend Lord Selsdon. Over a period of more than a decade he has been accumulating details of the legislation which justifies my amendment. In spite of starting with some obstruction rather than co-operation from Whitehall, he has succeeded in producing a dossier in which there are more than 1,200 separate pieces of legislation giving powers of entry, in most cases without the safeguards we have the right to expect and indeed demand. They cover every sort of issue, right down to demanding entry to a private house to see whether a TV is switched on or, where a person has left a child with the people next door while they go to the cinema, to check whether those people have got a child minder’s licence. I hope that my noble friend will tell us something more about the legislative background to this debate. Most of these provisions are in secondary legislation—statutory instruments—and it is only recently that Parliament has had the power to examine the merits rather than just the vires of statutory instruments. It does so through the House of Lords Merits of Statutory Instruments Committee, which was established in 2003. This supplements the Statutory Instruments Joint Committee of both Houses. The Merits Committee is doing an excellent job and, interestingly, it has had cause to draw the attention of the House to proposals for fresh powers several times during the past few months. On 15 December 2011 in Grand Committee the Minister told me that the Home Office felt that my amendments were, "““going a bit too far””," and suggested that, "““we want to look at all the powers we have and are asking all departments to do so””.—[Official Report, 15/12/11; col. GC 379.]" With more than 1,200 pieces of legislation, noble Lords will realise how little progress would be made. Indeed, I anticipate that the bureaucrats would find a reason why powers should be retained in their existing form in nearly every case. There has been widespread support for my amendments from Liberty, which I much welcome. I would remind my noble friends on this side of the House that the Conservative manifesto specifically undertook to, "““cut back the intrusive powers of entry into homes. Public bodies (other than the police and emergency services) will require a magistrate’s warrant, and approval for such a warrant will be restricted to tackling serious criminal offences or protecting public safety””." My amendments seek to support and implement that commitment. I would have expected my noble Lib Dem friends, with their proud commitment to civil liberties, to be chasing the Government on this issue. Following the principles of the 18th century Whig statesman Edmund Burke, I fervently believe in the role of the state to hold the ring: to protect the population from ill treatment or exploitation. Those who may need such protection include the old and the infirm, children, employees, consumers, savers, investors and many other groups. I would never deny to the state the powers that it needs to provide this protection, but many of the powers of entry as they exist today can intrude, intimidate and even oppress. That is why they need to be constrained. As this will probably be the last occasion for a decade or so that we have a Bill which is tailor-made for this reform, I shall, if necessary, ask your Lordships to support me in the Lobby on what I hope we can all agree would be a significant step forward for the right of privacy, individual freedom and democracy. As always, the wording of my amendments may not be precisely what the Home Office needs, but provided I can get a commitment from the Minister to do so, I will be happy for the Government to tidy them up at Third Reading. I beg to move.