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Protection of Freedoms Bill

My Lords, when the Prime Minister exhorted his Ministers yesterday to raise their game, I suddenly realised that that is exactly what I am trying to do today. That is why I am bringing back this amendment, now redrafted, which noble Lords on all sides supported in February and which found favour with the House by a majority. When I was very young I worked with Ernest Marples, who in his day was one of the political celebrities of the Conservative Party because he had such a talent for getting things done. It was he who, under Harold Macmillan as Housing Minister, fulfilled the Tory pledge to build 300,000 homes, a pledge which Aneurin Bevan, another political star with an outstanding talent for oratory and whom we would salute every day as the architect of the National Health Service, had denounced as a cruel deception and an election trick. What was Marples' secret? He had his own saying that it is the method paragraph that counts. That was how he built the houses. The election pledge that this Bill seeks to address is to cut back on the intrusive powers of entry into homes. The Government's method paragraph is to set up a two-year study in the Home Office to review each of the 1,300 powers of entry and to decide what, if anything, should be done about each of them. One of the things that Karl Marx got right was that people will always do what they see to be in their interest. That is invariably right; that is how they are motivated. I do not want to cast aspersions, but bureaucrats seek power as their currency, and of course they want to use it for the public good. The wider the powers the more they can achieve. That is the philosophy. They are also unlikely to give up voluntarily their totally untrammelled 1,300 powers of entry, which are enshrined in statute, and until very recently that is why there has been a growing fear of such powers. The Minister has told us how the Home Office leads in the creation and the removal of such powers. It has a gateway through which all such powers must pass. A week or so ago, my noble friend gave me a Written Answer to my request that he list the 19 applications in the year from March 2011 to create, amend or re-enact powers of entry that have passed through the Home Office gateway. All but one of those 19 came from Defra and now every one of these new powers is to be made subject to agreement or warrant. I congratulate the Government as that shows what can be done and it illustrates the change in the culture since the Bill was initiated. But—and it is a big but—there were 19 in a year, with 1,300 needing to be processed and a target time of two years. We can all do the arithmetic. The reputation of the Home Office is not at such a pinnacle that it can easily command all other departments, and of course it does not have that useful currency of power which the Treasury has: extra money. There are rivalries and jealousies well outside the influence of the Home Office. When I first introduced my amendment, it was most enthusiastically welcomed and endorsed by the Trading Standards Institute. Its policy officer, Sylvia Rook, wrote to the noble Baroness, Lady Royall, with a copy to me, on 3 February, saying: "““The Trading Standards Institute is delighted that Lord Marlesford has recognised the important work done by trading standards professionals around the country, and has amended his proposals accordingly … The new proposals, if accepted, will ensure that trading standards professionals can continue the essential work that they do using the powers afforded to them within existing legislation and subject to existing legal constraints””." In other words, the trading standards people are very happy that this amendment in no way interferes with them. Subsequently, they appeared to change their tune. Not only do I understand why, but it illustrates why it is quite important that it is not left to those with the powers of entry to decide whether they should be modified. The Local Government Association was unhappy not to be one of the exceptions. Indeed, the association wrote to me some weeks ago pointing out that it, too, sometimes found its untrammelled powers useful and although it did not use them, it always felt that it might have to use them in the future and that they might come in handy. Of course, trading standards is closely linked with local government and is part of the LGA. I know that the LGA was upset that trading standards had agreed a deal whereby it had an exemption and the LGA did not. I am told that the LGA never thought that the amendment would pass and so decided not to devote any resources to telling us that parts of it should be included. In the name of solidarity—we all respect that—trading standards was persuaded to withdraw its enthusiasm. However, today I spoke to trading standards, which confirmed that it was happy to have been given the exemption, which remains in my amendment. This is exactly why I believe that this very moderate step of requiring powers of entry to be exercised either by agreement or with a magistrate's warrant should in general be taken by Parliament and not left to be decided by those who enjoy them. This brings me to the crux of the difference between the position that the House took when it passed the original amendment on 6 February and the Government's position; it is that the Home Office still believes that it should decide which of the 1,300 powers of entry should be modified or removed. Our amendment would mean that all powers of entry would remain in existence but would all be subject to agreement with the occupier or to a warrant, with the exceptions provided by the amendment. I remind your Lordships that the exceptions cover, first, cases where the local authority with power of entry can demonstrate that the use of the power would be frustrated if consent or a warrant were sought. This would cover, for example, entry by the emergency services or another person to deal with something such as a gas leak, or by the fire brigade or an ambulance crew. I was interested that the Minister indicated that I had not provided adequate protection for the saving of lives. My second example concerns a police constable. Normally, the police always require a warrant. However, certain changes made as a consequence of terrorism removed that requirement, and I did not wish to interfere with the steps that Parliament had recently taken. I added to the Security Service, which I put in the original amendment, an officer of the Serious Organised Crime Agency. As a former member of Sub-Committee F, I had the opportunity two weeks ago of visiting SOCA. I was extremely impressed by its work, and clearly it is absolutely right that it should be included as an exception. I have already referred to trading standards officers. Finally, and very importantly, the amendment refers to, "““any person acting in pursuance of the protection of a child or a vulnerable adult””." Obviously, we do not want in any way to risk creating a problem in fulfilling those duties. Having been accused of taking a blanket approach—this charge was included in my noble friend's letter to all Peers and referred to again by the Minister in another place—I redrafted the amendment. It is slightly different from how my noble friend described it. It would allow the Government, by an order that would be subject to the approval of both Houses, to remove the constraints that my amendment would impose on any particular power of entry where, in the light of the experience, the constraints had been found by the Government to be inappropriate or counterproductive. I emphasise that I do not seek to remove any powers of entry. All I say is that in general, with exceptions, the powers should be subject either to agreement with the occupiers of the premises or, where that cannot be achieved, to a warrant. We will retain these exceptions. This is an entirely non-party proposal, but one that the legislation gives us an ideal opportunity to enact. Finally, I will say that I was always perfectly ready to collaborate with the Government on any necessary drafting changes. Sadly, the message that I received was that the Home Office had no wish to negotiate, with the implication that its legislation is for it to draft and is none of my business. On that I will let your Lordships decide. However, I do not believe that leaving the review to the Whitehall machine, with the Home Office in the lead, would produce acceptable results in an acceptable timescale. I beg to move.