Committee stage in the Lords
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Lord MarlesfordConservative- Quote
- My Lords, I have given the Minister notice of my wish to get an ex cathedra reply to my query about the word “order” in line 10 of Clause 5. The essence of my noble friend’s Bill is, as we all know, to curtail the unfettered, widespread and extensive powers of entry that litter our legislation. The principal point that I have always made is that such powers of entry should in general, which of course means with exceptions, be subject to a magistrate’s warrant. A magistrate’s warrant is an ancient and well understood part of the way in which we do things in this country. Indeed, the idea that the police, with exceptions, have to obtain a warrant before entering private premises for the purposes of a search has always made the conduct of our police force much more acceptable to the public than is the case in many other countries. I therefore ask the Government whether the word “order” encompasses the word “warrant”. An essential point about a warrant is that it is a piece of paper, signed by a magistrate, which the person exercising powers of entry has to present to the person whose premises he wishes to enter. My concern is that an order is a more amorphous concept that could have a much wider application and could therefore exclude the crucial test of whether or not the exercise of the powers of entry are justified in the particular instance. Let me say at once that I have never been opposed to powers of entry, which must be part of any ordered society. Indeed, there are areas in which greater powers are needed. I give just one example. We are all horrified by the all too frequent cases of child abuse, often of the most terrible and heinous nature. In the extensive inquiries that follow, the social services responsible often claim that they had not been able to get sufficient access to investigate or monitor the situation. My remedy is that the social services should be able to get what I would describe as a running warrant—one that would be exercisable over a limited period of perhaps some weeks and would be renewable—empowering entry. That would, in effect, require the social services to judge how serious a case might be. It would be a useful defence for them to be able to show that they had applied for and received such a warrant against any accusations that they had been asleep on a case. I merely cite this as an example, because my worry is that an amorphous court order might be a much less satisfactory means of proceeding.
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Lord Scott of FoscoteCrossbench- Quote
- My Lords, the suggestion that there is some significant difference between warrants and court orders authorising entry is probably wrong. The Bill introduced by the noble Lord, Lord Selsdon, is aimed primarily at controlling powers of entry that are added to rules, regulations, statutes and statutory instruments for the purposes of assisting some requirements in the regulation of the many complexities of the society in which we live. Court-authorised powers of entry have been part of civil law for many years. Powers of entry for the purposes of enabling search and seizure of documents to take place are the best example of that. They used to be called Anton Piller orders—the name derives from the case in which such orders were first granted. When the practice began, the orders were much too readily granted. In the opinion of many, including me, they led to abuse of the powers of the court, with insufficient protection for those against whom the orders were made. Since then, the procedure has been much tightened. The orders are more difficult to get. They are always granted without notice, but there is an immediate hearing with both parties represented when the matter can be looked at on both sides. I mention this in connection with the noble Lord’s Bill because the civil courts have established rules and procedures intended to safeguard the interests of the person whose premises are to be peremptorily entered and searched and whose documents are at risk of being seized. Some of the provisions of the Bill deal with what precautions there should be for the person who is subject to these orders. I suggest that in any reconsideration of the Bill—although I understand that it will almost certainly not survive falling into the abyss on the election and will have to be revived consequent on the election by whoever are the Government in power—civil practices, and the rules and regulations that have been tested over many years and are well known to lawyers and many firms and companies that have been the subject of these orders, might form a good model for the powers to go into the Bill. Perhaps I may make one or two further comments. First, the authority to enter does not necessarily derive from a Minister. Many powers of entry are derived from the authority of a quango or regulator that has been given powers to authorise others to enter. Of course, all those powers are derived in the last resort from statute, but to say that the authorised person is necessarily authorised by a Minister is wrong and too narrow. Secondly, the alternative to entry by warrant or court order—I really do not think that there is any significant distinction between them—is to enter by consent. Entry by consent must always be permissible. If entry is by consent, one does not need to limit the number of people or provide any precautions. The consent authorises whatever is proposed to be done or limits, according to the wishes of the person concerned, what may be done. The Bill should be directed towards entry by warrant or court order. There should be a clear distinction between entry by consent and entry by court order/warrant. Those are the only additional comments that I want to make on the Bill.
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Lord SkelmersdaleConservative- Quote
- My Lords, the Committee will be grateful to my noble friend Lord Marlesford for introducing this stand part debate by saying that he had advised the Minister what he was on about and that, therefore, the Minister could give a proper answer. I rather suspect that the noble and learned Lord has just given the proper answer, but I will await the Minister’s comments with interest. It is rather unfortunate that my noble friend did not tell me what he was on about, because I had suspected that he was on about something entirely different in this clause. If an individual has or is likely to have committed a malfeasance, it is hardly likely that under Clause 5(2) he would allow entry into his premises. I should be grateful if the Minister and my noble friend Lord Selsdon could explain that. This is particularly likely to be the case in the example given by my noble friend Lord Marlesford, who spoke, in part as an illustration, of members of the social services not being able to gain access to a child’s home. That member of the social services is hardly likely to be able to gain entry any more easily if the person having control of the premises has to agree that entry should take place. I should be grateful for advice on that point.
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Lord SelsdonConservative- Quote
- My Lords, I did not add my name to the clause stand part question tabled by my noble friend because sometimes you get out of your depth. I suppose one would say: “A little learning is a dangerous thing; Drink deep, or taste not the Pierian spring: There shallow draughts intoxicate the brain, And drinking largely sobers us again”. One has the ability in this great House to go back into the past and the distant past. With the help of the Library and the archives I went back to the Pentateuch, Roman law and Norman law. I was given something that I thought was terribly important and which made me change my mind about my noble friend’s intervention. It was about entry under warrant by George II and is very appropriate. Perhaps I may put my glasses on and read. After the 29th day of September 1757, “on bequest made to him, her, or them to open the same by any Peace Officer authorised to search there by Warrant from any Justice or Justices of the Peace, for the County, Riding, Division, City, Liberty, Town, or Place in which such House, Warehouse, or other Place shall be situate, refuse to open the same and permit the same to be searched, it shall be lawful for any such Peace Officer to break open any such House, Warehouse, or other Place”— in the daytime— “and to search as he shall think fit therein for the Goods”— and chattels— “suspected to be there, doing no wilful Damage”. That refers to a warrant. I was perfectly happy with the idea of a court order, but I surrender to the wisdom of my noble friend.
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Baroness HamweeLiberal Democrat- Quote
- My Lords, I spent two years reading Roman law, but it has not been a lot of use to me since. My point does not follow from that. I think that I made this important drafting point at Second Reading. Clause 5(2) reads as if each of the three requirements has to be satisfied, but logic tells me that that cannot be the case. Paragraph (c) states that, “the person having control of the premises has agreed … the entry”, which is at odds with the other provisions. In the next Parliament, when the noble Lord brings this Bill back—I suspect that he will, because he has a fine track record of pursuing this matter—perhaps he will look at the drafting of Clause 5(2) to make it clear whether paragraph (c) should be read with the word “or” or “and”. I read it as “and”, but I am not sure that that is correct.
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- My Lords, I am nervous of discussing in depth Roman law and other law, certainly with someone as distinguished as the noble and learned Lord, Lord Scott of Foscote, to whom I apologise: I read Hansard earlier this week and I noticed that “learned” was not there, which was my error. My contact with the law possibly started when I was a young lieutenant and, with powers of summary punishment, I could imprison someone for two years at a summary court. The situation has changed dramatically since then, but I felt at the time that it was a pragmatic way of achieving discipline. I thank the noble Lord, Lord Marlesford, for giving me notice of his question on this issue and his proposal to oppose that this clause should stand part of the Bill because the debate serves to illustrate the potential difficulties in seeking to apply a common approach to all powers of entry. On the specific question concerning the difference between a court order and a magistrate’s warrant, the answer from my experts is that a court order is directed at an individual and requires them to do or not to do something. Examples would be an order under Schedule 1 to PACE for a person to produce documents for the police or a football banning order specifying that someone must not attend a certain sporting event. Failure to comply with a court order may in some cases amount to an offence or allow further forceful action to be authorised under a warrant. A warrant authorises the person to whom it is addressed to exercise a specified coercive power, using force if necessary. The person can, for example, enter and search premises, seize specified articles or arrest a named person and bring them before the court. It may be permissive, as in the case of a search warrant, which does not require the police to execute it, or, in the case of a commitment warrant, it may direct that a person be delivered to prison and detained there or that a person who has failed to surrender to bail be arrested and delivered to the court. That is the best definition of the differences that the experts could come up with. As noble Lords are aware, each power of entry is subject to individual parliamentary scrutiny. It means that the entry power is considered within the context of the specific primary or secondary legislation that it supports, which I believe is an important safeguard. There are situations in which an enforcement agency can and does seek the authority of a court before entering premises. This may be to enter a dwelling, to enter premises where the enforcement agency has reasonable grounds to consider that entry, if sought, would be refused, or to enter premises where entry has previously been sought and refused. Determining the need for a warrant and how it is applied to each individual power of entry will depend on the nature of the breach, the type of premises being entered and the purpose of the entry. We should not seek to determine operational need in such a prescriptive way as that proposed in Clause 5. Additionally, the requirement to apply for a warrant in certain situations should be seen as a safeguard and not a limitation. At the same time, the amendment would appear sometimes to remove completely the need for a warrant. Neither option is preferable, which is why our approach is to maintain the position in which Parliament considers each power of entry on its merits. As I shall indicate when dealing with the amendments to the Bill, we propose to introduce a powers of entry code of practice for those other than police officers exercising these powers. The code will set out the criteria for consideration of all powers of entry, including setting out justification for a requirement to enter premises with or without a warrant. In the circumstances, I oppose the proposed amendment and would ask noble Lords, in considering the appropriateness of this Bill, to consider also the points that I have made.
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- Lord MarlesfordConservative
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- I am grateful for all the speeches, which have taught me a lot. Like everything to do with the law, this is immensely complicated, but I am slightly reinforced in my instincts about the value of warrants, certainly as far as public understanding is concerned. That is quite important.
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- Lord SelsdonConservative
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- My Lords, I shall speak to all the amendments standing in my name, with a certain trepidation because there is an element of concern as to whether they are right. I should like to begin by thanking the Minister. This is an unusual situation. I have introduced a Bill that is reasonable and says simply that the Government should know what their powers of entry are, Ministers should know what their powers of entry are, and people should know what those powers are. So I was knocked off my perch by the Minister when, not long ago, I asked him which Minister has which powers of entry under the schedule of the previous Bill. The Minister, as you would expect from someone used to high command, said that no Minister has a power of entry. That, I must say, confused me because I wanted to know who does have powers of entry. With remarkable intelligence, the Minister suggested that I should speak to someone in the Home Office. I know that you do not speak to officials unless you have been given a permission to speak. In the past, when I have had to deal with the more difficult countries of the world, including Iraq when under sanctions, I was not allowed to go there unless I had a permission to speak. This is something produced in green and white, signed and with references to the United Nations. The Minister then suggested that I should meet with him and Mr Alan Brown at the Home Office, and gave me permission to speak. Thereafter, I found that there was a complete change in my own attitude because I had assumed that the Government were trying to hide under the table things that they do not know. I realised that they did not know what their powers of entry are, so with members of my own private team, including Professor Richard Stone, we assembled a list of the relevant Bills. Historically, this started in 1975 when we found 60 powers of entry. Each time I introduced a new Bill, the number of powers of entry had doubled and redoubled, until we now find a total of 1,208 powers of entry which have heretofore been identified. They are set out in 295 Acts providing 753 powers of entry, and 286 statutory instruments providing 455. What I had not realised is exactly what those powers of entry are. With the help of the Home Office, we produced a schedule, almost all of which was provided by the department. Having done that, I wanted to place that schedule in the Library of the House. But, of course, there is another problem in that a Member of the House is not allowed to place anything in the Library; only a Minister can do so. I should like to ask the Minister if he will go along with what I have done today. I went to the Library and told the librarians that although I am not allowed to place anything, effectively I have left the schedule on the table. Therefore I would be grateful if, following the debate, the Minister would be willing to place it in the Library. During our discussions between the private sector team and the Home Office, we suddenly found that we had a lot in common. All anyone wanted to know was what are the powers of entry, who are they available to and how can they be exercised. Some time ago we had said that we must have a code of conduct saying that people must be polite, identify themselves and so on. But in our discussions I found out that what in fact would be needed is a code of practice. I am still not sure of the technical difference between a code of conduct and a code of practice, although it was explained to me. If things are left as they are, with a schedule listing 1,208 powers of entry, every time a new power is introduced it would have to be added to it, so the schedule would have to be constantly amended. Two examples gave me some concern, partly from the noble and learned Lord, Lord Scott of Foscote. I refer to two statutory instruments that were about to go through: the cluster munitions regulations and what I think were the hatching of egg regulations. To my amazement I found that a cluster of munitions and a clutch of eggs had attached to them exactly the same powers of entry, although they must be at opposite ends of the spectrum. My thought was that the whole idea of a code of practice is right and proper, and that is what we come to in the first amendment. When premises are entered, someone may have to be interviewed. Proposed new Clause 1(2) provides that the code of practice to be issued by the Secretary of State will contain guidance on, “(a) the tape recording of interviews ... (b) the visual recording of interviews... (c) the searching of a person not under arrest; (d) the searching of vehicles without making an arrest; “(e) the arrest of a person; (f) the detention, treatment, questioning and identification of a person; (g) the searching of premises; (h) the seizure of property found on a person or premises”. The list includes a whole lot of things that I had not thought about, so I was immediately brought round to the fact that one of the solutions is a code of practice. I shall not read it all out, but the amendment goes on to cover almost anything that anybody could think of, along with many things I would never have thought of myself. I strongly recommend that we adopt a code of practice, and I shall move quickly on to the second clause.
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- Lord MarlesfordConservative
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- My Lords, I support my noble friend, who has done so much work on this matter. There are three great benefits expressed in the new clause. First, the Bill has drawn attention to a much wider circle to powers of entry; that is a good thing. Secondly, it has enabled us to know exactly what powers of entry exist; it is quite frightening how many there are. Thirdly—and most important—it could enable us to exercise a new form of discipline over the use of such powers, which could prevent them being as overbearing as on occasions they are. It was never on the cards to revoke the vast number of powers of entry which exist in the statute, but when there are powers of entry in future legislation, the presumption should be that they would be exercised only by warrant and that that would be set out in whatever the legislation is. I hope that we will not have primary legislation or statutory instruments which merely slip in new powers of entry as though they were an everyday thing that one has to have in case they are needed. If the Bill goes through and, as my noble friend said, if it can form the basis of a White Paper at a later date, it will hugely improve the situation to which my noble friend has spent so many years drawing attention.
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- Lord Scott of FoscoteCrossbench
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- I express my complete and wholehearted agreement with the noble Lords, Lord Selsdon and Lord Marlesford. The Bill will allow to be enshrined in the law what ought to be regarded as a bright-line principle: that officialdom should not be allowed to enter private premises without either consent or a warrant or court order.
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- Lord SkelmersdaleConservative
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- This is a composite group of amendments. I shall start with the proposed code of practice. The noble Lord, Lord Brett, told us at Second Reading that the Government have been working on such a code of practice. What sort of code of practice will it be? As I understand it—I am sure that the noble and learned Lord, Lord Scott, will correct me if I am wrong—there are three kinds of code of practice. One creates an absolute offence for not obeying it. Another is taken into account in a criminal prosecution. The third just lies around and nobody quite knows what happens to it, but I understand that it has no legal force. The noble Lord, Lord Brett, told us at Second Reading that there are 1,208 powers of entry contained in 295 statutes and 286 statutory instruments. Since 1977, Parliament has passed 79 Acts and 220 statutory instruments containing references to powers of entry. One would assume that most of the officers authorised by these various Acts of Parliament to have powers of entry would already have by virtue of their employment some kind of identification card saying, at the very least, what organisation they belong to. Have my noble friend and the Minister identified any people authorised by the various Acts and statutory instruments who do have not some form of identification showing where they come from? It is all very well for the known powers of entry to be exhibited on the Home Office website, but it is clear that my noble friend Lord Selsdon wants in his Bill rather more than that: he wants them to be in an Act of Parliament. The amendment, which would leave out the schedule and replace it with a new one, may or may not be up to date—I have not checked every one with the Home Office website, nor do I know whether the Home Office website is up to date. At Second Reading, I asked a similar question: whether the list in my noble friend’s original schedule was complete and up to date. Whether it is or not, there is no way, should the Bill eventually—perhaps in a slightly amended form—get on to the statute book, to alter the schedule. One would have thought that this was an absolute necessity, because I cannot for the life of me imagine that we have seen the end of new powers of entry getting on to the statute book. The schedule will need fairly regular updating.
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Lord West of SpitheadLabour- Quote
- My Lords, perhaps I may address a couple of small points before going into the amendments. The noble Lord, Lord Selsdon, wondered whether I would place the schedule in the Library. That seems huge common sense, but I have learnt from bitter experience that when I do things that are huge common sense I get my legs chopped off. Perhaps I may look at that proposal. I am sure that I shall be able to do what the noble Lord suggests, but I need to confirm that I am not breaking some statute of 1320 or something in doing it. However, it seems to make absolute sense. The noble Lord, Lord Skelmersdale, raised a couple of points on the code of practice. We are proposing that the code of practice be issued as guidance to enforcement bodies. Compliance with the code will then be a requirement when any new or amending proposed powers of entry are put before Parliament.
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- Lord SkelmersdaleConservative
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- What legal force will this particular code have, or has the Home Office not decided yet?
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- Lord West of SpitheadLabour
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- We have not worked out exactly what the legal back-up will be. On identity, all officials exercising a statutory power of entry are required to provide evidence of their authority when entering premises and to confirm their identity. Of course, confirmation of their identity will be much easier when they have ID cards, but I am sure that they will voluntarily wish to obtain them. In considering the amendments in their totality, it might be helpful if I set out what has been achieved to date, which was touched by the noble Lord, Lord Selsdon. The Prime Minister, in his speech on liberty on 25 October 2007—he may have been in cahoots with the noble Lord, Lord Selsdon, or have spoken to him—referred to the importance of understanding what powers existed and how they are exercised. In July 2008, we completed the initial stage of the process, as was mentioned by the noble Lord, in publishing for the first time a list of powers of entry associated with statutory powers, along with details of who could exercise them and of rights and safeguards. I, too, was quite amazed by the number that existed; I had absolutely no idea that there were so many—it has been mentioned that 1,208 are contained in 296 statutes and 286 statutory instruments. It was quite remarkable. The fact that we now have them all laid out is good; I am glad that the Prime Minister talked about it; and I thank the noble Lord, Lord Selsdon, for his single-minded approach to ensuring that it was done. It is essential that the power of entry, as with any enforcement power, achieves the right balance between the need to enforce the law and ensure public protection and to provide sufficient safeguards and rights to the individual. As noble Lords are aware, each power of entry is subject to individual parliamentary scrutiny, as I have mentioned. This means that the entry power is considered within the context of the wider primary or secondary legislation, which is an important safeguard. To require that each new entry power is considered within the context of a powers of entry Act as well would diminish that safeguard and cause a degree of bureaucracy. With regard to the safeguard, each power of entry and any associated enforcement powers should be proportionate to the nature of the breach or issue of public protection. Again, applying a common set of provisions as set out in a powers of entry Act would disapply the proportionality test. Additionally, it would not allow account to be taken of any specific investigative requirements associated with a particular power of entry. On the question of bureaucracy, any proposed entry power that sought, for effective enforcement purposes, to differ from the provisions from a powers of entry Act would require consideration both under that Act and under the legislation in which it was being introduced. This would not only result in consideration being given twice but would also require the new power to be listed in a separate schedule to this Bill. It would need to be listed separately because the criteria for exercising the power would be different from that contained in the powers of entry Act itself. The approach is a recipe for confusion—an unintended consequence, I am sure, of the draft Bill. The introduction of the Bill, in this amendment, would mean that existing statute would be subject to amendment without any consideration by Parliament on either the efficacy of the change or benefits that it would bring or the operational impact on individual enforcement agencies. The provision of the Bill means that even the routine power of entry for inspection purposes would require a magistrate’s warrant. The noble Lord has not submitted any evidence to show why this might be necessary nor given any indication of the benefits or costs associated with the approach. Such a broad-brush approach to existing Acts and statutory instruments helps to illustrate the potential significant disadvantages of adopting the Bill. I turn to the new clause. The Bill is about powers of entry, clearly, and while the purpose of such entry may be to investigate offences or suspected breaches of the law, the proposed amendment would significantly extend the aim of the Bill to deal with the investigation and evidence-gathering process. The amendment is therefore outside the scope of the Bill. The Police and Criminal Evidence Act, PACE, and the accompanying PACE codes of practice provide the core framework of police powers and safeguards around stop and search, arrest, detention, identification and the interviewing of detainees. Section 67(9) of the Act states: “Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of ... a code”. The provisions of the PACE codes therefore already apply to those agencies that are tasked with the duty to investigate offences. It is a statutory requirement on each enforcement body and their responsibility to ensure that authorised officers exercise their powers in compliance with the relevant requirements of each code. The method of identification should remain a matter for the individual agency in order to assist the owner or occupier to understand the agency or organisation that the person represents. A single point of issue would diminish an additional important identifier for the public. Instead, we are proposing in the powers of entry code of practice the minimum information and the format that agencies should issue to authorised officers. This will include photograph, name, logo and authorisation to act on behalf of the agency. We aim to publish a public consultation document later this year that will set out proposals for raising public awareness, increasing accountability and improving the quality of communication, a point touched on by the noble and learned Lord in his comments. This will include a draft code of practice on the powers of entry for enforcement agencies other than the police service and security agencies in the exercise of the powers of entry, inspection, search and seizure. We aim to require that when any new or amending powers of entry are put before Parliament for consideration, the sponsoring department will be required to comply with the code of practice, as I have said, and will set out the need to consider, first, the justification for the powers, proportionality and impact of their use; the rights of and safeguards for the owner or occupier of the premises, and I share the view of the noble Lord, Lord Selsdon, and other speakers that these ancient rights are crucial to our nation; alternatives to using entry powers; the guidance, training and competency of those to whom powers would be granted; the complaints procedure; reporting and scrutiny mechanisms of the powers; and communications and public access to all the relevant data, something that a number of speakers have covered. As I have indicated, the conduct of the investigation after powers of entry have been exercised is not a matter for such a code but is instead subject to the application of PACE codes where relevant. I have just had a note from the Box about codes of practice. I shall see if my response was wrong. No, effectively my answer on that was correct, so I am very pleased about that. On the basis of what I have said, I ask the noble Lord to withdraw the amendment.
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- Lord SkelmersdaleConservative
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- I really cannot let the Minister get away with the idea that a national ID card is a panacea for all our ills. Not only do we have fundamental objections on this side of the House, as noble Lords well know, but the fact is that an identity card will not have the name of the organisation to which the individual belongs on it, and that is one of the things that my noble friend Lord Selsdon is calling for.
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- Lord West of SpitheadLabour
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- I can only say “Touché”. The noble Lord is absolutely right: the card will not have the name of the organisation on it, and clearly that will have to be done. Of course, we have different views on the identity card. I have one already, and I find it extremely valuable; it means that I do not have to have all sorts of other things to identify who I am, and I find that very useful. I think that youngsters find them useful as well. He is right, though: we would have to find some way of showing the organisation.
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- Lord SelsdonConservative
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- My Lords, I am most grateful to the Minister, except for the last 20 seconds of his comments. I do not intend to withdraw the amendment. The Minister said that he has 63 powers of entry, but the noble Lord, Lord Bach, sitting beside him, apparently has 62. Neither of them actually knows at present. The agreement that I wanted was that there would be a period of consultation and the Bill would pass through its remaining stages and then fall in the next week or so, as did the previous Bill that passed through. As the Minister will be aware, we have a powers of entry consultation website going out at the time when the Bill is due to pass. Powers of entry will generally take place in premises or property, and those properties have one thing in common: they are normally in a local authority area. So we will be in touch with all local authorities to get their support. I am hoping that the Minister will accept what I have proposed. It would be wrong for the Government of the day to say at this time that they did not have time for 1,201 powers of entry that may be exercised between now and goodness knows when. That would send the wrong message. Perhaps he would agree to reconsider and just sit there quietly, as he can do, and not say anything, bearing in mind that if he says that he will not accept any of these amendments, I will move them. Heaven knows how you do that—I would have to find someone to stand in the Lobby and count—but our website would then say that there was no co-operation from the Government. The Minister promised co-operation, though, and so far we have had it. To take another matter, the intellectual property of what is in the Bill belongs to the House of Lords, not to anyone else. It is not mine; I have checked on this. If all this work has been done with the help of the Home Office, the information is there and we now wish to go through a consultation period, why can we not go through it together? At the moment the website has only 187 pages on it, and it will probably go up to 230. Part of it will give the history of Roman law and things like that, while other parts will say, “If you want to be bored out of your tiny mind, read the next 100 pages”, and then schedule every single Question. I shall help the Minister even more. The previous time when I asked a Question, he was the one who replied that no Ministers have powers of entry. On Monday I will table another six Questions every day on this subject to ask the Secretary of State what powers of entry he has. The Whips Office provided me with the relevant Ministers’ names, but even the government Whips Office can make mistakes. Often in such lists there is a little typographical mistake, and in this one Douglas Alexander became Douglas Alexandra. I did not type it; I scanned it in. I will send a letter to each Minister, saying “Dear Minister, I have tabled this Question. Attached is the Answer. Could you now please place, in response to these Questions for Written Answer over the last few years, the schedule to the Bill, which has been prepared, principally, by the Home Office?”. I think that would be correct. It would not be a good idea, in view of the record in Hansard, to produce a list of all the most unsatisfactory Questions asked in this House over the past three years, which all relate to powers of entry. I wonder if the Minister might remain seated so that we can pass these amendments. The Bill would then go to the next stage, and then it would fall. I promise not to bring it up again in the same form if the Government co-operate. I think I am the only Member of your Lordships’ House who has never had the opportunity to vote. Could the Minister comment on this rather nice, extravagant gesture that I am making?
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- Baroness HamweeLiberal Democrat
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- I have not taken part in the debate on these amendments, but I urge the Minister to accept the amendment for a reason completely unrelated to the Bill. Many noble Lords—I would be one—would not know how to vote and might not vote. We would not want to see the House counted out; there is some very important business to follow.
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- Lord MarlesfordConservative
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- I am rather shocked by what has been said. I thought it had been made perfectly clear that the Bill was a means of securing discussion on the whole issue and making progress towards a new regime. It was never expected or intended that the Bill, which is clearly imperfect in its present form, would reach the statute book. I understood that the co-operation that the Home Office had given to my noble friend was such that there would not be the old fashioned, constipated, “not invented here” Home Office reaction of, “Let’s chuck the whole thing out. What do they mean by daring to raise these matters? These are our affairs”. It is awful that, having had such amicable conduct over the Bill so far, there are certain things that the Minister read out—I am sure he did not write them—which reflected that old fashioned Home Office view. It would be very unconstructive if my noble friend were to press his amendment to a vote. The suggestion of the noble Baroness on the Liberal Democrat Front Bench is probably the right answer; a vote would ensure that the House was counted out. I hope the Minister will reconsider, as the noble Baroness has asked.
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- 11:30
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The Lord Speaker (Baroness Hayman)Crossbench- Quote
- My Lords, it might assist the Committee if I made the procedural situation clear. If it were to appear in a Division that fewer than 30 noble Lords had voted, in accordance with Standing Order 58 I would have to say that the House then resumed. The House would then proceed to the next business on the Order Paper; we would not lose subsequent business, but proceedings on the current business would be terminated.
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- Lord SkelmersdaleConservative
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- My Lords, irrespective of that, may I presume to give a little advice to my noble friend? After all, he has been a Member of this House even longer than I have. It is an extremely difficult matter, even if you do not want to, to get each stage of a Private Member’s Bill through your Lordships’ House and/or another place. Issuing threats of the sort that my noble friend has just issued is not helpful to his cause.
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- 11:30
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- Lord SelsdonConservative
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- They are not threats. I have never issued a threat in my life. It is what we had agreed in discussion. There would be a period of consultation and the information would be sent out. Everyone has had that information. The only solution is for me to say that we vote on the amendments or I withdraw them. It is difficult when you have undertaken that the amendments would be put down. Many have been drafted from information provided by the Government. The Schedule is the Government’s Schedule. It is wrong to leave a Bill with the wrong schedule of powers of entry. The other question is about removing the requirements that are tabled for codes of practice and leaving that for a later date. I was always perfectly happy that it would be correct for a code of practice to be introduced at the right time, stating that there was no need for a schedule, and every existing and future piece of legislation would be bound by an acceptable code of practice. I ask the Minister, who has more experience than me although he has not been here that long, what he would like me to do. It is a very difficult scene. I do not want to go away and say that I have wasted all this time and effort. I am asking the questions. I say to my noble friend on the Front Bench that there is no threat. I am stating what I thought had been agreed between private and public sector.
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- 11:30
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Lord Campbell of AllowayConservative- Quote
- I make a short point on the code of practice, to which I heard my noble friend refer. Without knowing the legal efficacy of it and without having discussed it, at this stage one cannot rely on anything about it. It can be effective in a civil manner on a negligence action, for example, but it is very rare that it can be used in a criminal context. One has to decide whether it gets into either groove. Many are merely exhortations, without legal efficacy. If you are going to consider this seriously, look at the speech that Lord Denning made in this House 30 years ago, which I introduced. Most of the relevant considerations are in that speech.
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- Lord West of SpitheadLabour
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- My Lords, as I have already indicated, we intend to publish a public consultation document, which will include the draft code of practice that has been talked about, covering the powers of entry for enforcement agencies other than the police and security agencies. We welcome the noble Lord’s kind offer of further engagement. Indeed, there has been very good engagement. How he proceeds from here is a matter for him. It is his Bill. I would not deem to guide him on that any further than I have with what I have said already. As regards possible threats, I did not take his words as a threat. I look forward to my eight letters a day for my remaining time in government.
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- 11:30
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- Lord SelsdonConservative
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- I am most grateful to the Minister. Maybe the solution is this. I did not necessarily want to move all those amendments; I just wanted to change the schedule. Suppose I say that I will not press Amendments 1, 2 and 3, but we just amend the schedule. The Bill will then go through and become the same as the last two Bills—a record of the latest legislation—and the consultation period will go on. I am also concerned that there will, I believe, be an election soon. Have the undertakings given by Governments in the past in relation to this issue been honoured within that period? Many Governments will say that they have better things to do. If the noble Lord was agreeable, I would not press Amendments 1, 2 and 3 and would just amend the schedule. Then, all we have is an updated schedule. There is no further debate and the code of practice is left to officials to determine in their own way. I have no wish to steal the emperor’s—or the admiral’s—clothes.
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- 11:30
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- Lord Campbell of AllowayConservative
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- The officials must not deal with legal efficacy as they feel it should be. That is a matter for your Lordships.
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- 11:30
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- The Lord SpeakerCrossbench
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- Is the noble Lord seeking leave to withdraw Amendments 1 to 3?
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- 11:30
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- Lord SelsdonConservative
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- If I have no advice and no response, I must jump off a bridge and say that I would be willing, in view of the lack of a positive response from the Government, to withdraw Amendments 1, 2 and 3, but not the amendment to the schedule. That would mean I was dishonest.
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