My Lords, I should say at the outset that the Government and I are sincerely grateful to the Constitution Committee for the clear recommendations outlined in its report, which we have considered thoroughly and addressed through the Government’s amendments to the Bill. I also express my gratitude to the noble and learned Lord, Lord Judge, and my noble friend Lord Cormack for raising this matter in Committee. At that stage, I promised that I would consider it fully and return to it on Report. Since then I have met the noble and learned Lord with officials on a number of occasions with a view to bringing forward the amendments tabled today. He asked me to say how much he regrets that he had to leave to fulfil a long-standing commitment outside the Parliamentary Estate. I am also permitted to say that he was prepared to put his name to the Government’s amendments to Clauses 17 to 19, and his name would have been on the Marshalled List had it not been for some timing on the day on which he sought to do so. Through those discussions, the Government have tabled a series of amendments that both address the concerns previously raised by the noble and learned Lord and my noble friend, and ensure that the ivory ban continues to be underpinned by robust and proportionate enforcement.
I must first clarify that, when I refer to accredited civilian officers, I am referring to officers of the regulator, which will be the Office for Product Safety and Standards. OPSS is part of the Department for Business, Energy and Industrial Strategy. In Committee, I also acknowledged the Constitution Committee’s recommendation that the Government could more clearly define the enforcement role of accredited civilian officers. We have taken on board these recommendations by removing Clause 17 from the Bill, and proposing two new clauses, which will be inserted after Clause 22. Together, these ensure that the powers conferred on accredited civilian officers are set out separately from those conferred on police and customs officers. This ensures that the role of accredited civilian officers as regulators of compliance is now much clearer in the Bill.
The noble and learned Lord, Lord Judge, previously raised concerns about the extent of the powers conferred on accredited civilian officers to enter and search a premises. The Government have tabled a number of
amendments that significantly restrict the powers of accredited civilian officers and I would like to explain these restrictions further. These amendments mean that accredited civilian officers no longer have a specific power to enter premises for the purpose of raising awareness of the provisions of the Bill. This amendment further clarifies OPSS’s core responsibility of assessing compliance with the sales ban.
The first of the proposed new clauses, “Accredited civilian officers: powers of entry”, clearly outlines when an accredited officer may enter a premises. “Premises” is defined in the Bill as any place, including,
“(a) a vehicle, vessel or aircraft;
(b) a tent or moveable structure”.
Subject to giving reasonable notice, accredited civilian officers may enter a premises if they reasonably believe it might be used in connection with the dealing of ivory, such as the back office of an antiques shop—that is, an area that is not publicly accessible—for only one of two reasons. The first is for the purpose of assessing compliance; the second is if there are reasonable grounds to suspect there is evidence relevant to an offence on that premises.
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OPSS officers may also lawfully enter a premises open to the public without giving notice. Such public spaces would include a shop, an antiques fair or a street market. Having entered such a public premise, the officer may assess compliance of items, but if they wish to enter any non-public part of the premises, such as a back office to a shop, they would need to give reasonable notice.
The Government’s amendments make it absolutely clear that accredited officers will no longer have the power to apply for a search warrant to enter any premises—that means dwellings and non-dwellings. The power to apply for a search warrant will be limited to police and customs officers only.
Government amendments remove the power to search from accredited civilian officers, and replace it with a power to “examine”. Other powers of accredited civilian officers confer the power for an officer to examine visually or measure anything that they believe may be relevant evidence—for example, an item that appears to be made of or contain ivory on display in a shop and which does not appear to fall within an exemption. They may also request any person on the premises to produce any relevant document, such as an exemption certificate or registration, that may demonstrate compliance or otherwise with the ban. If an officer identifies an item or document that is relevant evidence of an offence, or is relevant evidence to an investigation into whether an offence has been committed, the officer may seize that item or document pending further investigation.
I understand that it is the purpose of my noble friend Lord Cormack’s amendments to remove the power of seizure from accredited civilian officers. We believe, however, that this power is critical to regulating compliance. For example, if an officer suspects that an ivory item does not fall within an exemption but is on display for sale, it is important that the officer has the power to seize that item as relevant evidence of
an offence. As I previously stated, the amendments I just outlined address the concerns raised by my noble friend by explaining why it is necessary for an accredited civilian officer to be able to seize an item on the grounds that it is evidence of an offence having been committed, or relevant evidence to an ongoing investigation.
We believe that the amendments strike a careful balance between ensuring that officers have only the necessary power, while ensuring that they remain able effectively to carry out their duties as regulators of the sales ban. To further restrict their powers would leave them unable to carry out their duty. Without OPSS officers, the duty of assessing compliance would fall solely to the police, and we do not believe that that is proportionate. Any ivory ban is only as effective as its enforcement, as was made abundantly clear at the Illegal Wildlife Trade Conference I recently attended.
I turn to an issue on which I have had considerable discussion with the noble and learned Lord, Lord Judge: the Constitution Committee’s recommendation that regulatory functions in the Bill should be subject to the Regulators’ Code. We fully concur with that recommendation, but are unable to address the point through an amendment to the Bill. The noble and learned Lord and I had considerable discussions on the matter, and he entirely understood the mechanism by which this needs to be done.
The Regulators’ Code is given effect by the Legislative and Regulatory Reform Act 2006. Section 24(2) provides that bodies and enforcement functions must have regard to the Regulators’ Code if they are listed in the Legislative and Regulatory Reform (Regulatory Functions) Order 2007. Using the order to ensure that the regulator is subject to the code would be consistent with the intention of Parliament when it approved Section 24(2) of the 2006 Act and would follow the correct procedure laid out in that Act.
Laying secondary legislation to amend the 2007 order to include the regulatory functions of the Bill will be a priority for the department as it works to implement the Bill. Officials are in close contact with the Department for Business, Energy and Industrial Strategy, which holds responsibility for the Legislative and Regulatory Reform Act 2006.
With these government amendments, I hope your Lordships will accept that we have taken appropriate actions to restrict and better define the role of OPSS and taken on board the recommendations made by the Constitution Committee and the noble and learned Lord, Lord Judge, and my noble friend Lord Cormack. I know that the noble and learned Lord, Lord Wallace of Tankerness, who is in his place, also contributed in Committee on these matters. I hope that noble Lords will feel that the Government have sought to address these matters in the most appropriate fashion. I beg to move.