Protection of Freedoms Bill

My Lords, I am a member of the Joint Committee on Human Rights. We reported on this Bill last October. I do not know to what extent Members of the House have had a chance to read that report. I do not think that it has been referred to in previous debates on this subject, but we dealt with this issue in chapter five of the report. The noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Scott of Foscote, have reminded us of my next point. It is ancient common law that there should be effective protection of our right against arbitrary search and seizure. For me it goes back at least to Entick v Carrington in the days of George III and the famous statement of principle by Lord Camden, which was adopted last week by the American Supreme Court in interpreting the Fourth Amendment to its constitution. Everyone knows that the sanctity of the home and the right to be protected against arbitrary search and seizure is enshrined in our common law. It is also enshrined in our constitutional law through the Human Rights Act and Article 8 of the European Convention on Human Rights. Article 8 guarantees the fundamental right to be protected in respect of one’s private life, one’s home and one’s correspondence. That has been repeatedly interpreted by the European Court of Human Rights as giving effective safeguards against abuse of the powers of search and seizure. Section 3 of the Human Rights Act requires all statutes, including this one, to be read and given effect, if possible, so as to comply with that convention right. Therefore, we are not legislating in a vacuum. The Human Rights Act ensures that anything in this Bill which becomes law is subject to the right of protection in Article 8 of the convention. In addition, Section 6 of the Human Rights Act requires every public authority—this would apply to a police officer, a trading standards officer or anyone else exercising public powers—to use those powers in a way that is compatible with the convention right in Article 8. Therefore, the fears that have been raised in this debate should be understood in the context of the safeguards that have been put in place across parties by the enactment of the Human Rights Act. The Joint Committee on Human Rights drew attention to that in its report. Paragraph 116 states: "““We welcome the recognition in the Bill that powers of entry should be strictly limited to those circumstances in which such a power is justified, necessary and accompanied by appropriate safeguards. The decision to review all existing powers of entry is a welcome one … We consider that a review of existing powers of entry offers a clear opportunity to identify where powers of entry continue to be justified, proportionate and necessary””." We also consider that it would provide greater legal certainty. We said that, "““at a minimum, each power of entry should be strictly defined, including clear limits on the circumstances when the power may be exercised and the identity of the person or body exercising the power””." That, of course, would be a way of giving more concrete support to what is already in the Human Rights Act and the convention. I should be grateful if the Minister were able, even though I have not given him notice, to deal with this in his reply. We regretted, "““that the review of existing powers was not completed””," before this Bill was introduced, and in paragraph 118, we said: "““We are concerned that since the review has not yet been completed, the legislation proposed is overly broad and creates a risk that delegated legislation may be used in future””," in ways that are basically against the public interest. It would be helpful to know, if possible, the Government’s response to that review. Nothing that I have said leads me to support the amendments tabled by the noble Lord, Lord Marlesford, even though I understand his reasons, which I fully respect, for tabling them. I do not think that they are very well drafted or necessary. I think that the safeguards referred to are sufficient but I would be grateful to know more about the review that we asked for as long ago as last October. If the House were asked to divide on this, I would have to vote against the amendment.