Commons Reason and Amendments

Protection of Freedoms Bill – in the House of Lords at 4:45 pm on 24th April 2012.

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Votes in this debate

Motion A

Moved by Lord Henley

That this House do not insist on its Amendments 16, 17 and 18, to which the Commons have disagreed for their Reason 18A.

18ABecause the Commons consider that the imposition of general restrictions of this nature on the exercise of powers of entry could undermine actions to protect public safety.

Photo of Lord Henley Lord Henley The Minister of State, Home Department 5:02 pm, 24th April 2012

My Lords, the House will recall that Amendments 16 to 18 provide that powers of entry may be exercised only either with the agreement of the occupier of the premises in question or on the authority of a warrant unless the authority using the power,

"can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought".

This restriction would be disapplied where the power of entry was exercised by a trading standards officer, a constable or a member of the Security Service, or in pursuance of the protection of a child or a vulnerable adult.

As I indicated on Report, we do not disagree with the sentiment behind these amendments. Indeed, we share their objective of seeking to roll back intrusive state powers and ensure that, where such powers are needed, they are subject to appropriate safeguards. However, although the amendments are well intentioned, we remain firmly of the view that they could hinder effective enforcement and, in so doing, undermine action to protect public safety. This view was shared by the House of Commons, which, following a reasonable debate, disagreed with your Lordships' amendments without a Division. I note that during that debate in the Commons David Hanson said from the opposition Front Bench:

"My colleagues in another place supported the amendments, so that we could have this debate today ... The Opposition will not support the amendments because we do not feel they are valuable".-[Hansard, Commons, 19/3/12; cols. 531-32.]

As I have previously indicated, it is not what the amendments seek to achieve but the blanket approach that they adopt that creates the problem. They start off with a catch-all requirement that in all cases powers of entry may be exercised only with the consent of the occupier or on the authority of a warrant. They then go on to provide blanket exceptions to this rule.

The result is that the exemptions are either too narrow, in that they fail to capture important powers of entry that help to bring offenders to justice or save life and limb, or they are too broad. In particular, we are not persuaded that trading standards officers should in all circumstances, regardless of their motives for entry, be able to enter any premises, including people's homes, without having either secured the consent of the occupier or obtained a warrant.

My noble friend has attempted, in part, to address the concerns that I set out on Report by seeking to add to the list of exemptions, which now includes an officer of the Serious Organised Crime Agency and by conferring on the Secretary of State a power to add further exemptions by order. In some respects we are offered an amendment in lieu that adds little to the existing provisions in Clause 40. The clause already contains an order-making power to enable additional safeguards, such as the requirement for a warrant or consent, to be added to the exercise of particular powers of entry. We do not need another delegated power to achieve a similar outcome.

In conceding that further exemptions are needed, my noble friend appears to accept that a case-by-case assessment of each power of entry is needed. That is what we are committed to doing. In conducting the review, the rebuttable presumption will be that for any powers of entry in respect of people's homes, these should indeed be exercised only with consent or on the authority of a warrant. Where exceptions are fully justified, they will be applied on a case-by-case basis and not across the board for particular categories of state official. The review of all powers of entry will be completed, as we have made clear, within two years, and we will report to Parliament on progress at six-monthly intervals, as my honourable friend the Parliamentary Secretary made clear in another place.

The review of powers of entry will enable us to deal with the current stock of powers-the 1,300 or so powers that people complain about. Similarly, the gateway that has been established by the Home Office limits the creation of further new powers and is already making significant progress. For instance, greater safeguards have been added to all powers considered to date, including in respect of domestic dwellings, a requirement that entry is obtained either with the consent of the occupier or on the authority of a warrant, and a number of powers of entry have also already been repealed. I hope that that reassures the House that this Government are serious about dealing with the proliferation of powers of entry that we have seen over recent years and ensuring that they are subject to appropriate safeguards. When taken together, the measures that we have brought forward in this Bill and in the new gateway process will strengthen the rights and privacy of homeowners and businesses, provide greater legal certainty and ensure that legitimate law enforcement is not impeded in its duty to protect the public.

In outlining our approach, I have also set out why we cannot, in every case, demand that entry is effected only with the consent of the occupier or on the authority of a warrant and why providing a power to add exemptions simply underlines why a blanket approach will not work. I remind the House again that the Commons disagreed to these amendments after considerable debate without a vote and without seeking to offer any of its own amendments in lieu. Given that, it is time to bring this debate to a close and get on with implementing the provisions of the Bill. I commend Motion A to the House and invite my noble friend not to press his Motion A1.

Motion A1 (as an amendment to Motion A)

Moved by Lord Marlesford

At end insert "but do propose Amendment 16B as an amendment in lieu"

16B: Page 33, line 33, at end insert-

"(3) Further safeguards shall be that-

(a) unless explicitly provided for in the statute providing for the power of entry, all powers of entry shall be exercised by agreement with the premises occupier or by warrant; and

(b) that, notwithstanding the statute providing for the power of entry, a power of entry may only be used without warrant, or without agreement with the occupier of the premises to be entered-

(i) in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant was sought; or

(ii) by persons specified in regulations made by the Secretary of State when acting under any legislation which permits such a person to exercise such a power.

(4) The persons specified in regulations made under subsection (3)(b) may include, but need not be limited to, any one or more of the following-

(a) a constable;

(b) a member of the Security Service;

(c) an officer of the Serious Organised Crime Agency;

(d) a Trading Standards Officer; and

(e) any person acting in pursuance of the protection of a child or a vulnerable adult.

(5) Regulations made under subsection (3)(b)(ii) shall be subject to approval by resolution of both Houses of Parliament."

Photo of Lord Marlesford Lord Marlesford Conservative

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.

Photo of Lord Scott of Foscote Lord Scott of Foscote Crossbench 5:15 pm, 24th April 2012

My Lords, I rise to support the proposed amendment. It relates to the circumstances in which a statutory instrument or legislation can give authority to regulators-not the police as their powers are enshrined in statute and are not in question-to enter private property without the consent of the owner or occupier of the property or the authority of a warrant granted by a judge.

This goes to the view that one takes of the importance of the rule of law in considering what powers the Executive ought to have to interfere with rights of private property. Clause 40 provides that the Government may place fetters on rights to enter private property. That is a discretionary power that the Government may or may not exercise, and in relation to a number of statutory instruments that I have seen, some quite recently, the safeguard provided by Clause 40 has not been adopted. The obligation on government to obtain the consent of the owner or occupier or to obtain a warrant ought, in my opinion, to be the rule.

Of course, there may be exceptions. The noble Lord's amendment provides for them. I suggest that they are ample and adequate, but the rule ought to be that the consent of the occupier or a warrant is obtained and that the case has to fall within one of the recognised exceptions. At the moment, the legislation is the other way round so that the rule makes the addition of safeguards to protect the rights of property dependent on the discretion of the Government. That is not acceptable as a basis on which rights of property can be interfered with.

I do not wish to take up your Lordships' time by repeating what I said during previous debates on this topic and, moreover, today is my wife's birthday and I have agreed to take her out to dinner at 6 pm. I hope, therefore, that the Minister will forgive me if I do not stay to hear his reply to this amendment.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I, too, rise to support the amendment. I do it on the basis of practical experience. I do the Government the credit of saying that their heart is in the right place on this. Indeed, on all sides of the House, it would be agreed that powers of entry without permission or warrant should be kept to a minimum. However, as the noble Lord, Lord Marlesford, said, the crux is where the initiative for reviewing these regulations should lie.

Here, I speak on the basis of long experience in the Cabinet Office and successive initiatives to reduce regulation in government. Those who have been Ministers will be familiar with this. In this matter, the Cabinet Office was on the side of the angels. It wanted to see -indeed, it was a duty imposed on it by Governments-that regulations were reduced. There were successive deregulation bodies. The Minister in another place, Mr Francis Maude, led one of them. The experience of asking departments to make the case for the existence of regulations showed that doing it that way round was not successful because they could always make a case that the regulation might at some time be necessary or useful. For that reason, I was always in favour of having a sunset clause on regulations, a provision that from time to time a department that wanted to maintain regulations should have to make the case for them again. That is what, in effect, the amendment proposed by the noble Lord does. If the Government want to make progress in this, the onus should be on departments to make the case for the power to be renewed. Otherwise, the power should lapse. I am quite sure that if the onus is left as it is and the regulations are reviewed by the departments, very little progress will be made.

I support the noble Lord's amendment particularly because, as he has said previously, this is a historic opportunity for the Government to set a sunset clause on these powers and oblige departments to make the case anew. I am not sure whether the noble Lord's amendment is technically correct, but it would be wise for the Government, whose heart, I believe, is in the right place, to think about this again. I hope that they will do so. I am afraid that if they do not, the objectives that they seek to achieve will not be effectively achieved.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I am a member of the Joint Committee on Human Rights that reported on this matter. In paragraph 116 of our report, we welcomed,

"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".

I would be grateful for acknowledgement by my noble friend the Minister that it is common ground that these powers should be in existence and exercised only where the power is,

"justified, necessary and accompanied by appropriate safeguards".

When this matter was raised previously by the noble Lord, Lord Marlesford, I spoke critically of his amendment and what he was seeking to do on the grounds that the matter was already covered by the European Convention on Human Rights and the Human Rights Act. On reflection, not only having listened to the debate so far but having looked at the Commons Reason for disagreeing, I am now tending to be much more supportive of this amendment. With respect, I cannot understand how the other place can disagree, in considering that,

"the imposition of general restrictions of this nature on the exercise of powers of entry could undermine actions to protect public safety".

That seems an extraordinary statement.

The purpose of the amendment moved by the noble Lord, Lord Marlesford, is to write into this important Bill a constitutional safeguard, which, for example, in the American Bill of Rights, is contained in the Fourth Amendment: the prohibition on unreasonable search and seizure. Within the past three months, the American Supreme Court gave a judgment on that guarantee, referring to English doctrine against unreasonable search and seizure, which, of course, we in this country trace back in common law to the great case of Entick v Carrington. The noble Lord, Lord Marlesford, is seeking to use not just the European Convention or the Human Rights Act but the statute itself to contain a general restriction against the abuse of powers of entry by the retention of unnecessary powers.

I perfectly appreciate that the Government have undertaken to carry out a two-year review of the detail, and that is highly desirable and has been welcomed by the Joint Committee on Human Rights. However, I cannot see any objection to a general constitutional restriction against the retention or use of unnecessary powers of search or seizure. I shall listen carefully to how this is dealt with in reply, but at the moment, like others who have spoken so far, I have become much more sympathetic to this than I was on the previous occasion.

Photo of Lord Borrie Lord Borrie Labour 5:30 pm, 24th April 2012

My Lords, I rise to speak, as I did on a previous occasion, in support of the general principles of which the noble Lord, Lord Marlesford, has spoken. In particular, he has done a service to this House, and indeed to the other place in enabling it to undergo an exercise of looking at and debating the whole matter of powers of entry. Nobody suggests that powers of entry are always justified; or that they are never justified. The noble Lord, Lord Marlesford, has raised public safety and the House of Commons has raised it as a key factor to consider alongside whether powers of entry should exist.

As I see it, the difficulty is that the noble Lord, Lord Marlesford, has wanted to clarify the law, of which one surely must be in favour. But he has also-I am afraid that it is still in his amendment before us today-picked on particular bodies, such as trading standards officers, and given them a blanket okay for their powers of entry. It so happens that I am an honorary vice-president of the Trading Standards Institute and I should declare an interest. The institute may wonder whose side I am on because I am saying that it is wrong for the law-it is a question of whether the law should be changed in the direction of the proposal in the name of the noble Lord, Lord Marlesford-to pick on a particular public official or group of public officials and say, "They are in the clear. They can have powers of entry because they go into car dealers' premises and people's premises, including businesses, and so on to investigate whether there is something in there that suggests a criminal offence. That is okay but it is not okay necessarily for other people".

Perhaps I may repeat myself here, but in, I think, the last debate, I asked, "What about environmental health officers who are concerned with public safety? Why are they not mentioned?". I noticed that Members of the other place referred to inspectors on behalf of gas companies going into premises to ensure that there will not be an explosion or, if there has been an explosion, to look at how to deal with it. What about firefighters? They have been mentioned but are not specifically mentioned in the amendment in the name of the noble Lord, Lord Marlesford. Some people may think that they should be.

I do not think that it is right to isolate or separate one group of officials from another and to take a preconceived view that one lot are always in the right and doing what is proper while others are not mentioned.

Photo of Lord Lawson of Blaby Lord Lawson of Blaby Conservative

I am puzzled by the principle that the noble Lord, Lord Borrie, is enunciating. Is he not aware that throughout a whole swathe of legislation lines have to be drawn? Parliament is responsible for drawing the line where it thinks that it is right and sensible. His argument that you cannot draw any line at all and that, therefore, you should allow the bureaucracy to do what it wants untrammelled by Parliament seems slightly unconvincing.

Photo of Lord Borrie Lord Borrie Labour

I am most grateful for the intervention of the noble Lord, Lord Lawson, because I entirely agree with what he said. I am concerned that this notion of picking out one group of officials has been made by a private Member of the House of Lords proposing this amendment without any examination of why that group should be supported and not others. As I understand it, the Home Office, over a period of months, intends that there should be a thorough review of the across-the-board powers of entry of numerous officials connected with various departments and that it should not be a question of suddenly determining that a particular group of officials should be specially mentioned in legislation and not others. That is my concern and I am most grateful to the noble Lord, Lord Lawson, for bringing the matter out.

It is not suitable for us now without any review of across-the-board powers of entry to isolate one set of officials against another. The review emphasised by the noble Lord, Lord Henley, which was mentioned by Ministers in the debate in the other place, is vital before one starts getting into the detail of what powers of entry should be permitted and what should not.

Photo of Lord Neill of Bladen Lord Neill of Bladen Crossbench

My Lords, we should take this opportunity, which follows the vote on a previous occasion when the House by a majority voted in favour of the amendment in the name of the noble Lord, Lord Marlesford. We now have a revised and better version of his amendment. But it has not been treated with enormous respect in the other place, which had a debate but no vote. We have had a letter from the noble Lord, Lord Henley, dated 27 March. The letter says that the amendment is "well intentioned" -so the majority of the House had good intentions when it came forward with this little bright idea. The letter states that these proposals, if legislated for,

"could hinder rather than help ... Our issue with the amendments is not with their underlying aim, but with the blanket approach they adopt".

It is about time that something is done. There could be a two-year inquiry-that could be doubled or quadrupled -and no pending Bill in front of the House. We have a Bill. Let us take some action, follow the amendment, repeat what happened last time and send it back again to the other place.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I strongly agree with the noble Lord, Lord Neill. With this very convenient amendment at this late stage, it seems to me that the time has come for the Government, if necessary, to come forward with a sensible amendment that could be produced extremely quickly. They absolutely do not need two or four years, as the noble Lord, Lord Neill of Bladen, said, to come up with a situation that is obviously not sensible.

I have come from a meeting of the Select Committee on the Merits of Statutory Instruments where we discussed an order on green bananas, which has a provision to deal with the rights of entry. As it happens, it does not deal with the criminal part of that but Regulation 6 says that there may be an application to a magistrate for a warrant. It does not refer to the circumstances but I assume that they are those in which force is required. At the moment, I cannot see why you have to have a right of entry for green bananas when you can perfectly well get a magistrate's warrant if it is absolutely necessary. What I am telling your Lordships' House is that it is going on now and that it is time to stop it.

Photo of Lord Elton Lord Elton Conservative

My noble friend is probably old enough -I certainly am-to remember the days when an Englishman's home was always referred to as his castle. Castles are besieged by mice. What worries me about this is that the officers who will have powers to enter my castle and your Lordships' castles-mine is a very small place-vastly outnumber the number of mice who are able to do so. The mice are undercontrolled and so, in present legislation, are very large numbers of these officials. I do not think that they should be and noble Lords probably do not think that they should be either.

My noble friend has suggested a simple and elegant way to control the situation. The noble Lord, Lord Borrie, who shakes his head, happens to be a fellow honorary vice-president of the Trading Standards Institute. I was hearted by what he said, although he may not have intended that. He said that the removal of the powers suggested by the noble Lord, Lord Marlesford, does not go far enough. I join others who think that the provision could be further improved with consideration by the other place. Some of us have been Ministers and have had legislation that we wanted passed. It is ludicrous to leave this legislation as it and to entrust the matter to a departmental inquiry, of all things, in the expectation that it will sort it out within a time limit or achieve something worth while.

Photo of Baroness Crawley Baroness Crawley Opposition Deputy Chief Whip (Lords)

My Lords, perhaps I may make a brief and slightly croaky intervention-I go one up on my noble friend Lord Borrie-as president of the Trading Standards Institute. I thank the noble Lord, Lord Marlesford, for engaging so closely with trading standards over the past number of months since first introducing his amendment in February. Indeed, trading standards officers would rather have been included in his amendment than not and therefore I do not decry them for their enthusiasm. However, after much discussion with partners in the intervening months, I should inform the noble Lord that, on behalf of trading standards, I shall not be able to follow him into the Lobby on his amendment.

My reasons are twofold. First, following on from the point made by my noble friend Lord Borrie, the provision made to include trading standards in the list of exceptions does not give enough scope to ensure consumer protection from rogue traders, money launderers and scammers of all types across all sectors. In difficult economic times-and we certainly live in difficult economic times-consumers are more and more vulnerable to these crooks and opportunists. Therefore, the legislation we bring forward to protect consumers must be very carefully enacted and leave no gaps in that protection.

Secondly, Motion A1 allows for an exemption only if provided for by the Secretary of State through regulation. Trading standards officers are extremely concerned that if the Motion is carried they would lose their existing powers of entry-they have been protecting us, as consumers, for over 100 years-until such time as they may be reinstated by statutory instrument. That uncertainty is not in the best interests of today's vulnerable consumers.

Photo of Lord Crickhowell Lord Crickhowell Conservative

My Lords, I had not intended to take part in this debate but one matter does strike me. In the eight years in which I was a Minister in the Administration of my noble friend Lady Thatcher, whenever a Minister said that something would take a particular period of time, she used to say, "Well, just think what was achieved in time of war during that kind of timescale". We have been told that this review will take two years. I do not understand why the Minister does not simply say to the Home Office, "You have got to do it in a year". Why will it take two years to carry out a review? If we were in a time of war, it would be dealt with much more quickly.

I put to the Minister exactly the retort of my noble friend Lady Thatcher. Set a timescale that is reasonable and achievable and, if the review is completed in the next year, there would be an opportunity for any necessary legislative change to take place within the present Parliament. As it is, I feel that we will get beyond 2015 and nothing will have been done.

Photo of Lord Vinson Lord Vinson Conservative 5:45 pm, 24th April 2012

My Lords, I share with many in the Chamber the deep concern about the erosion of our freedoms. If our forebears were listening today and hearing that more than 1,000 organisations and, through them, probably tens of thousands of officials have the right of entry into the Englishman's castle, his home, they would be horrified.

I am comforted by the emollient words of the Minister, who says that what we are trying to do is helpful but he would rather leave it to his own officials to take two years to work out the position. I suggest that we put the clause the other way round and that he says to his officials, "I am going to accept the latest amendment of the noble Lord, Lord Marlesford, and if you have not reviewed your position and come up with a satisfactory conclusion within two years, by default the noble Lord's amendment will stand". That would surely put a boot behind the consideration of these matters by the various departments and help achieve what we all want to achieve. Perhaps in his reply the Minister will say whether that idea has any grains of usefulness.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, picking up on the point of the noble Lord, Lord Butler, I think everyone's heart is in the right place on this matter but that we are struggling to articulate what is in our hearts in the right way. I am with those who, as the debate goes on, increasingly see complexity in this matter and a need for us to be very careful in the way we do what we are all trying to do.

We have reached a point in the procedure where what we agree to in the wording has got to be very precise and correct. Some noble Lords have said, "Send this back to the Commons and it can sort it out". However, we know that in practical terms that would be very difficult within what is now almost a matter of hours. To be rather boring, perhaps necessarily so, on the drafting, I said on the previous occasion that I find the term "demonstrate" very difficult. It is not one which I am accustomed to seeing in legislation and I do not know where it rests in the evidential hierarchy, if that is the right way of expressing it. I am worried about the possibility of judicial review around "demonstrate" within new subsection (3)(b)(i).

I am also quite puzzled. I think I am correct in saying that what the Government are proposing in Clause 40(1) is discretionary, and so could come within the review; that Clause 40(2) is not exclusive; and that we, as a House, would be asked to consider what is proposed in particular instances through the statutory instruments procedure. Sometimes, notwithstanding the Merits of Statutory Instruments Committee, of which I am a member-I was not there this afternoon but I read the green bananas order realising that it might have some application today-it is incumbent on all of us, as a House, to be very diligent with what is coming before us via statutory instruments. However, if there is discretion-I think the proposals of the noble Lord, Lord Marlesford, are not mandatory but discretionary-then, in a sense, what is proposed is something and nothing. However, we are talking about them as if they are mandatory.

As to noble Lord's reference that, essentially, future Parliaments may say, "Notwithstanding that a statute says X, Y, Z, it shall be something else", again that may be something or nothing. However, I wonder what implication it has because no Parliament can bind its successors, as we know.

This brings me back to thinking that we need the review which has not only been promised but is required. I am entirely with those noble Lords who say that two years is too long given the demands that we are all making. It is easy to ridicule departmental inquiries. As I had understood it-I have never been in government -it is the departments that do all the work, with Ministers being advised by them. So we should not be too dismissive of the departments. However, the work needs to be done more quickly than under the timetable the Government are currently setting, and I for one would urge my noble friend on. If the Government can see their way to a quicker exercise, that might take the sting out of this.

I ought to say, finally, that I am vice-president of the Chartered Institute of Environmental Health. However, I have not been briefed by them, or even discussed it with them, and it has not been in my mind as in any way influencing what I have said.

Photo of Lord Selsdon Lord Selsdon Conservative

My Lords, I find myself in a very difficult position, having begun this subject in 1975 and taken three Private Members' Bills through the House. I am extremely grateful to my noble friend Lord Marlesford, who has a much more aggressive and attacking attitude than I do, being a man who has journalistic abilities. I am a simple person who simply says that there is a logic here.

First, you have to find out how many powers of entry there are. We began by asking questions of Ministers, none of whom knew what their powers of entry were. We worked out together that there were 584 and then made a joint arrangement with the Home Office to conduct a review, which took 18 months. We got up to 800 and then to 1,100. Finally, with the support of the Home Office, we found there were 1,200. However, this was not enough, because individual Ministers still did not know what their powers of entry were. All powers of entry relate to individual ministries, whether to Defra or any other ministry. I suggested this to my noble friend in Committee but did not want to speak again because one says the same things again and again. Even though some of your Lordships have passed on and some have never heard what one has said, repetitive Peers are not good creatures.

I therefore suggested to my noble friend that he put the latest list of powers of entry in the Library. He was rather reluctant to do this and said that we could see them on the Home Office website. However, that is quite difficult to access. Fifty per cent of your Lordships are not what I would call electronified and therefore do not know how to access websites. My noble friend wrote to me the other day and said that it would be placed in the Library. I am on the Information Committee and it is not yet there. Perhaps it could get there quite quickly.

My objective today is not to suggest anything. The help that I had was from the party opposite, which in the beginning was slightly cynical about all this. However, it went out of its way to say that this was a non-party issue and that we needed first to define what those powers of entry are and secondly to make sure that each ministry and Minister knows what their powers are and how they could be applied. There was then a separate exercise in respect of a code of conduct. That was going to take a further period to review, although we worked one out in a simple morning sitting around a table. You would say please and thank you and identify who you were. You might wear a uniform. It was not a very difficult exercise.

I am not saying that the Government are prevaricating in any way. I find this very difficult. Trying to be non-party on this, I should probably not vote for or against anything. However, the Minister should do what he can to reassure the House that this matter is under control. There is no need for another two-year review. I could get it done by the private sector pretty quickly.

I am very grateful to my noble friend for showing the attitude that he has. The noble Lord, Lord Marlesford, does not give up once he is on to something and does not lose the scent. I am very grateful to him for doing this today. I do not want to go against any party Whips, but I did say to my own party Whip that there might be an occasion when I could once more be a little bit independent for a short period. However, I urge him to take matters further.

Photo of Lord Rosser Lord Rosser Opposition Whip (Lords), Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

My Lords, the noble Lord, Lord Marlesford, has explained that his amendment seeks to address the objections that were raised by the Government to his original amendment, which was passed by your Lordships' House but did not find favour in the other place. As the noble Lord has said, the amendment seeks to address what he has described as the "blanket approach" criticism and has sought to meet points raised in the other place by including officers of the Serious Organised Crime Agency and members of the Security Service in the exceptions.

The amendment provides that,

"a power of entry may only be used without warrant, or without agreement with the occupier of the premises to be entered ... in cases where the authority using the power can demonstrate that the aim of the use of the power would be frustrated if a warrant or agreement were sought; or ... by persons specified in regulations made by the Secretary of State when acting under any legislation which permits such a person to exercise such a power".

The amendment goes on to say which persons may be specified in such regulations, but also says that it,

"need not be limited to" such persons.

I wish to refer, as an example, to trading standards officers, who are one of the five persons specified in the noble Lord's amendment. Trading standards officers do not currently have, and have never had, a routine power of entry into premises used solely as a private dwelling place. If the trading standards officer is dependent on the first criterion-the power of entry without a warrant or the agreement of the occupier-the difficulty arises from the fact that the breadth of their work is considerable and there are many and varied reasons why such an officer may wish to visit a business.

The first criterion means that any time an officer entered a business without a warrant or without the agreement of the occupier of the premises because they believed that the use of that power of entry would be frustrated if a warrant was sought, they could then be open to a legal challenge and the need to prove a negative: namely, that they could not have achieved their objective if they had applied for and obtained a warrant. That could be difficult to prove and would certainly be time-consuming when trading standards officers are already under pressure. It would probably result in trading standards officers entering premises unannounced much less frequently, to the detriment of their vital public protection role. Without having a power of immediate entry into business premises, trading standards officers would find it more difficult to carry out their basic day-to-day functions of protecting the public and their local communities, since they could have the barrier of possible legal challenge every time they sought to act swiftly.

Unfortunately, the second criterion, which is new, would leave it up to the Secretary of State to decide whether to give trading standards officers and any other officials the right of power of entry without a warrant or the agreement of the occupier of the business premises, unlike the noble Lord's previous amendment, which gave such power full stop without being dependent on or waiting for the Secretary of State. If the Secretary of State does not, by regulation, give that power-and no one knows which way a particular Secretary of State would jump-it would make it much more difficult than now for trading standards officers to carry out their role of protecting the public and local communities. It would also make it harder to resist a legal challenge under the first criterion, on the grounds that trading standards officers were seeking to exercise a power that the Secretary of State had declined to give them by regulation. My understanding is different from that of the noble Lord, Lord Marlesford, on the position of the Trading Standards Institute on his amendment.

We understand the intentions and objectives behind the noble Lord's amendment and the safeguards in relation to powers of entry that he is seeking to achieve. For that reason, we will not oppose his amendment if it is taken to a vote. However, we do believe, for the reasons I have mentioned, that in some instances the noble Lord's new amendment may well make it more difficult for people such as trading standards officers to carry out their vital public protection role. For that reason, if his amendment is taken to a vote, we will abstain on it.

Photo of Lord Henley Lord Henley The Minister of State, Home Department 6:00 pm, 24th April 2012

My Lords, I start by saying to my noble friend Lord Marlesford and other noble Lords that I am grateful for the fact that he acknowledges that we are at least on the same side in that we seek to reduce the number of powers of entry and make sure that existing powers of entry have the appropriate safeguards where necessary.

I begin with a very brief history lesson. At the time when the noble Lord, Lord Butler, was Secretary to the Cabinet, I can remind him and the House that we had something of the order of 500 or 600 powers of entry. As my noble friend Lord Selsdon said, it was difficult to know exactly how many there were. Over the years, mainly after the noble Lord ceased to be Secretary to the Cabinet, we saw a rather dramatic growth in the number of powers of entry. Something of the order of about 700 new powers of entry crept in between 1997 and 2010. I am sure that there were very good reasons for many of them and that all of them went through both Houses of Parliament, because all of them would have needed primary legislation in one form or another to get them.

It might be that Parliament nodded in its duty and did not provide the appropriate safeguards and checks and balances when considering all those powers of entry. Because of the dramatic growth that we saw over those 13 years, the new coalition Government in 2010 made a commitment that we would review all existing powers of entry and do what we could to reduce those that were unnecessary, bringing in appropriate safeguards-a warrant or consent-where necessary. That is why we brought forward the provisions in this Bill in Clauses 39 to 46.

I make it clear to the House that those proposals were in respect of the existing stock of the 1,300 or so powers of entry that we had. On top of that, there is always the danger-because Governments do this-that new powers might creep in. That is why we brought in the new gateway approach in the Home Office, to be adopted by all other departments, to look at any new powers of entry that might come in and make sure that they were properly scrutinised and that Parliament looked at them appropriately as they came through in Acts of Parliament. I am grateful to my noble friend Lord Marlesford that he at least commended that gateway approach to the new powers, but we are largely talking about the existing powers and how we want to look at the existing stock and do what we can to reduce it.

My noble friend brought forward his amendment before. It went to the Commons, where they looked at it-and I have to say to the noble Lord, Lord Neill, that they did not look at it with a lack of respect. They gave it a very good hearing and debated it for some 45 minutes, and the fact that they did not divide on it was obviously a sign that they thought that there was sufficient agreement. It is not for the Government to decide whether matters are divided on. Certainly, considerable respect was shown to the amendment and it was debated in considerable detail in another place.

My noble friend in his amendment seeks to create a blanket approach to what should be dealt with and then accepts that that approach is wrong-and he admits it is wrong because he then brings in a blanket exemption, which surely contradicts the whole point of what he is trying to do. We are trying to conduct a review of the whole process, which will closely examine all the powers that we have and those that are necessary while adding further safeguards to others. That is the important thing. There might be some powers that we do not need-right, we will get rid of them. There might be some that we do need but which do not have the appropriate safeguards, and in that case we will look at them. We have made it clear that in conducting our review the default position will be that any powers that require entry to people's homes must require their consent or be by warrant only. This amendment provides only a blanket rule across the board, which we do not think is the right approach.

I accept that there have been criticisms-

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

Can the Minister confirm that we are not in a vacuum while the review is taking place in that, if there were unnecessary and disproportionate searches or seizures, the Human Rights Act would require our legislation to be read properly to prevent them from being classified as lawful searches or seizures?

Photo of Lord Henley Lord Henley The Minister of State, Home Department

My noble friend is a great expert on the Human Rights Act and the House always defers to him when we discuss such matters. If there was a case of the sort that he implies, I am sure the courts would look at it in a manner that he thinks appropriate.

I am trying to make clear that we want to conduct a review over two years. I accept that there has been criticism from a number of colleagues, including my noble friend Lady Hamwee, who asked whether we could do it more quickly. The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Lawson also implied that we should do it more quickly. We will try to do it as quickly as possible but, as my honourable friend said in another place, we will also update Parliament on a six-monthly basis about how we are getting on. We think that this approach is the better one-to go through all the powers one by one, from department to department. Obviously, some departments will have a bigger workload than others. I understand that my old department, Defra, has rather a lot of powers. No doubt we will encourage them to work harder, and I and my colleagues in the Home Office will encourage them to do that. I think that is the better approach, and my noble friend's approach-to bring in a blanket approach, accept that it is wrong and then bring in blanket exemptions-is not the right way forward.

Photo of Lord Elton Lord Elton Conservative

Will there be an opportunity in both Houses to debate the combined report when it is laid before Parliament before decisions are taken on legislation?

Photo of Lord Henley Lord Henley The Minister of State, Home Department

I would hope that, as and when each power of entry is looked at, we will remove it as appropriate. I can assure my noble friend that we have already moved about 30 or so as part of the review. Most of those will require only secondary legislation to do that. It will be an ongoing process. As I made clear earlier, we will give a six-monthly update to Parliament on how we are doing this. At the end of that process I cannot give a commitment as to exactly what we will do. Certainly I am sure that my noble friend and others will hold us to account if we do not keep to that two-year programme. As I said, we want to do it more quickly if we can.

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, I agree with a great deal of what the Minister has said, but would the Government's objectives not be better achieved if they proceeded on the basis that powers would lapse unless a positive case could be made for them, rather than that they should remain unless a case is made to remove them?

Photo of Lord Henley Lord Henley The Minister of State, Home Department

My Lords, I am a great fan of sunset clauses, and I would be more than happy to do that. It is a matter for Parliament; with any new power that comes in, Parliament must decide whether a sunset clause should be brought in. It is not within the scope of what we are debating now to bring in a sunset clause for all 1,300 powers of entry that exist. That is not the aim of my noble friend's amendment, and it is not an idea that has been put forward by anyone else. I am sympathetic to sunset clauses, and I know that the noble Lord is sympathetic, but let us consider that with new powers that come in. It is not something that we can debate at this stage.

With those assurances about what we are doing and with the assurance that we will continue to update Parliament on how we are getting on with this, I hope that my noble friend feels able to withdraw his amendment.

Photo of Lord Marlesford Lord Marlesford Conservative

My Lords, I am most grateful to all noble Lords who have taken part in the debate. The House of Lords is always quite impressive, but the quality of the experience, knowledge and wisdom that have been shown by noble Lords speaking has been terrific. There has been a psychological thing that probably happens to all of us: there are those who want to do something and get on with it and those who say, "Well, let's wait". There is a place for both. However, on this question of how long it would take for a review, when my noble friend Lord Selsdon says that it took 18 months just to count the powers, I just wonder how far they will get in examining each of the 1,300 powers in 24 months.

I want to emphasise just one or two things. The first is that we are not aiming to remove any powers of entry. All we are saying is that we believe that the powers of entry, with certain exceptions, should be subject to agreement or to warrant as far as the occupier of the premises is concerned. The second-and this is where the amendment has changed-concerns what is found or felt about the provision before the powers have all been examined. My amendment does not interfere at all with the Bill's current provision for a review. That provision will continue and it will be good to have it-I wish it godspeed, and we shall look forward to getting the reports. In the meanwhile, however, we will have achieved something. We will also have given the Government an opportunity so that if it transpires that a power has been trammelled by being subject to agreement or warrant and that has been counterproductive or undesirable in the public interest, the Government will be able to come back ad interim with an order to correct it. That is what I mean in describing the way that I have removed the blanket imposition.

In view of the comments of people such as the noble Lord, Lord Butler, and the noble and learned Baroness, Lady Butler-Sloss, I think that the general tenor is really such that the Government could do better. I would like to see whether the opinion of the House supports that approach.

Division on Motion A1

Contents 89; Not-Contents 190.

Motion A1 disagreed.

Division number 1 Protection of Freedoms Bill — Commons Reason and Amendments

Aye: 87 Members of the House of Lords

No: 188 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Motion A agreed.

Motion B

Moved by Lord Henley

That this House do agree with the Commons in their Amendments 51A to 51E.

51A: Line 40, at end insert "or serious alarm or distress"

51B: Line 43, after "(b)" insert "either-

(i) "

51C: Line 44, at end insert "or

(ii) causes B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities,"

51D: Line 46, at end insert "or (as the case may be) will cause such alarm or distress"

51E: Line 51, at end insert-

"(2A) For the purposes of this section A ought to know that A's course of conduct will cause B serious alarm or distress which has a substantial adverse effect on B's usual day-to-day activities if a reasonable person in possession of the same information would think the course of conduct would cause B such alarm or distress."

Photo of Lord Henley Lord Henley The Minister of State, Home Department 6:25 pm, 24th April 2012

My Lords, I shall speak also to Commons Amendments 133A to 133C. The House will recall that at Third Reading in this House the Bill was amended to introduce two new specific offences of stalking and stalking involving fear of violence. These new offences are set out in new Sections 2A and 4A of the Protection from Harassment Act 1997. I acknowledged at the time that the new Section 4A offence needed better to reflect the psychological trauma experienced by victims. I indicated that the Government would bring forward further amendments to address this point when the Bill returned to the Commons to consider the Lords amendments.

These additional amendments were duly approved by the Commons on 15 March and it now falls to your Lordships' House to agree to them. The amendments made in the Commons to Amendment 51, which I brought forward at Third Reading, widen the new Section 4A offence so that a course of conduct amounting to stalking that causes serious alarm or distress, which has a substantial adverse effect on a victim's usual day-to-day activities, is also captured. These changes will mean that when a stalker's course of conduct causes their victim to, for example, change where they socialise or to ask their friends or family to pick up their children from school because they are afraid of running into their stalker, the Section 4A offence could be made out and therefore, on conviction, result in a sentence of imprisonment of up to five years. I am confident that through these changes we have further strengthened the protection of victims of stalking. We are also sending a clear message to perpetrators that this behaviour will not be tolerated.

I am convinced that we now have workable and effective laws to bring the perpetrators of stalking to justice. Elfyn Llwyd, who chaired the recent independent inquiry on stalking, said in the debate in the Commons that the new provisions,

"show that the Government have carried out a listening exercise, and we will now have firm laws. They will prevent lives from being ruined and, crucially, from being lost".-[Hansard, Commons, 19/3/12; col. 553.]

Before bringing forward these amendments in the Commons, my officials discussed them with the National Association of Probation Officers and Protection Against Stalking. These organisations share the concerns raised here at Third Reading about the psychological impact that stalking has on victims. As many of your Lordships will know, both NAPO and PAS have said that they support the changes we have made.

I know that that view was widely shared on all sides of this House, but it is clear that the noble Baroness, Lady Royall, has some lingering doubts, if I may put it that way, that have prompted her to table two further amendments to the Commons amendments. I seek to reassure her that those amendments are unnecessary.

The noble Baroness's amendment to Amendment 51C seeks to include a further limb to new Section 4A to cover cases where a stalker causes a victim to fear for their personal safety or that of another. I can assure the House that where such stalking behaviour causes the victim serious alarm or distress such that it substantially affects their day-to-day activity, then it could meet the threshold for the Section 4A offence. The threshold would also be met where the behaviour causes the victim to fear violence. A third party who is made to fear for their safety could also have recourse through the existing criminal and civil law, including by pursuing an injunction or a restraining order in appropriate cases.

The Government consider that the Section 4A offence should be reserved for cases where a stalker causes the victim to fear, on at least two occasions, that violence will be used against them or where a stalker causes their victim,

"serious alarm or distress which has a substantial ... effect" on their,

"usual day-to-day activities".

It is right that this offence, carrying a maximum sentence of five years' imprisonment, is reserved for those stalking behaviours that are more serious and have greater impact on their victim. Of course, all cases of stalking are serious and can wreck lives, but it is important that we maintain a clear distinction and escalation between the two new offences. Prosecution under Section 4A should be reserved for the worst cases. Such cases should already be captured in the Section 4A offence and adding this limb could lower the threshold too far. If the stalking behaviour does not cause the victim to experience one of the effects as set out in Section 4A(1), a prosecution under Section 2A would be more appropriate.

Again, officials have discussed this amendment with NAPO, Protection Against Stalking and with the Association of Chief Police Officers' stalking lead. We have expressed our view that such cases could be captured in the existing Section 4A offence as amended in the Commons, and that this should be highlighted in police training. To ensure that this issue is properly understood by police and prosecutors, officials will involve ACPO, NAPO, Protection Against Stalking and others in developing training and guidance. Officials will meet them soon to agree how to work together. I am convinced that this issue can be addressed without further changes to the legislation. We now need to get the Bill on the statute book and to work with partners to ensure that these new offences are fully effective in protecting the victims of stalking and bringing offenders to justice.

I end by saying that I am indebted to all Members of the House who have worked with us to shape this legislation. Together, we have across all parties developed workable legislation that will support the police and the courts in eradicating this awful crime. This will make a real difference to victims. I again pay tribute to noble Lords on all sides of the House, including the noble Baroness, Lady Royall, the noble Baroness, Lady Howe, who is not in her place, and my noble friend Lady Brinton, for their tireless efforts in raising these issues and ensuring that stalking victims will be properly protected by these new laws. I commend Motions B and C to the House and invite the noble Baroness not to press her Motions B1 and B2. I beg to move.

Motion B1 (as an amendment to Motion B)

Moved by Baroness Royall of Blaisdon

At end insert "but do propose Amendment 51F as an amendment to Amendment 51C"

51F: Line 3, at end insert "or

(iii) causes B to fear for B's personal safety or the safety of another"

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Shadow Spokesperson (Equalities and Women's Issues), Shadow Leader of the House of Lords, Shadow Spokesperson (Cabinet Office)

My Lords, today we are almost there: a new law on stalking, for which Parliament rather than Government has been in the driving seat. Over the past six months, a staggering amount of progress has been made, much of it due to the advocacy of noble Lords on all Benches. Like the Minister, I pay special tribute to the noble Baroness, Lady Brinton, and the noble Baroness, Lady Howe, along with my noble friends on these Benches. The progress is also testament to the campaigners, the excellent parliamentary inquiry, and most of all to the survivors and their families that we will soon achieve proper protection in law for the victims of stalking. I also pay tribute to those women who have shown extraordinary courage in the face of this harrowing crime: women like Claire Waxman, Tracey Morgan, Sam Taylor, Tricia Bernal and Claudia Miles, whose lives were stolen by their stalkers, but all of whom are utterly determined to make sure that future victims get the justice and protection that they deserve.

The Commons amendments that we are considering today are concessions that the Government made following serious concerns raised at Third Reading about their initial proposals. I thank the Minister and the Bill team for the work they have done. We support the amendments brought forward and warmly welcome them as far as they go. However, it is disappointing that the Government did not heed calls from experts to strengthen the proposals on police powers and to allow for cases prosecuted under the new Section 2A offence to be referred up to the Crown Court should new evidence emerge.

As the Minister said, government Amendments 51A to 51E add a new set of criteria to the more serious Section 4A stalking offence in order to ensure that those cases where a stalker never makes an explicit threat of violence towards their victim are still liable for the maximum penalty of five years' imprisonment where their course of conduct has caused the victim to suffer sustained and serious distress or alarm which forces them significantly to change their day-to-day activities. However, the stalking charities Protection Against Stalking and the Network for Surviving Stalking, as well as criminal justice professionals such as the National Association of Probation Officers and senior criminal barristers, are all concerned about a small number of serious cases where victims refuse significantly to alter their daily routine in the face of the stalker's actions but fear for their personal safety or that of another person close to them. The more serious Section 4A offence as currently drafted would not be sufficient to enable a successful prosecution.

Mary Porter, for example, started to receive offensive e-mails and texts from a colleague about five years ago. The behaviour soon escalated to criminal damage to her property and silent phone calls. Although she feared for her safety, no specific threat of violence was ever made. Mary took a conscious decision not to react to his behaviour by changing her routine or work patterns. However, the stalking took its toll. She developed muscular strain through stress, which affected her mobility. She also reported having great difficulty sleeping, having nightmares and being unable to get his behaviour out of her mind. Eventually she discovered the identity of the stalker. She kept records and a log of his behaviour, which she was able to present to the police, but after several months of sustained harassment, he was given a short custodial sentence which was suspended for 12 months. Why should someone like Mary, who refused to let her stalker affect her daily routine, not have the same right to protection?

My amendments would ensure that women like Mary, who have serious concerns about their personal safety as a result of their stalker's actions-even if explicit threats of violence are not made-would be covered by the same protection under the Section 4A offence. The amendment also makes reference to the safety of another, as it is well known that stalkers can often target loved ones, particularly children, to get to their victims. Sally Evans separated two years ago from her abusive partner. He then commenced a campaign of threats and intimidation, including vandalism to her car on three occasions, as well as invading her website, sending offensive messages, texts and photographs to her employer and following her in the car. He used the family courts to obtain contact with the children and, fearing the consequences of his escalating activity, Sally decided to co-operate. She was frightened and worried about her personal safety and that of her children, but at this time there was still no overt threat of violence. The police told her that they were powerless to intervene unless he made a physical attack. It was only recently, when he threatened to kill her in front of one of the children, that the police finally acted.

In reference to my amendments, the charities Protection Against Stalking and the National Association of Probation Officers stated that:

"Following discussions with police, lawyers and others, PAS and NAPO support an amendment which would expand the definition beyond fear of violence to include causing a person to fear for their personal safety or the safety of another, for example a child or relative".

Similar support has been pledged by the charity Network for Surviving Stalking, and Dr David James, consultant forensic psychiatrist at the National Stalking Clinic, has stated that:

"The proposed amendment to the Bill regarding the specification of fear for personal safety or that of another as a parameter is very important, given the psychological damage that stalkers inflict and seek to inflict. The amendment would substantially strengthen the legislation and we would encourage peers to adopt it".

My amendments do not make significant textual changes, but they are changes that would make a significant difference to the lives of victims in a small number of serious cases like those of Sally Evans and Mary Porter. We are tantalisingly close to achieving our new law on stalking. However, we must make sure that when it reaches the statute book, we end up with the best possible version. No doubt the Government will argue that at this stage it is too late to bring forward further changes and the Minister said that he thought that all cases would be reasonably covered by the amendments being proposed by the Government today. However, I believe that while we have the opportunity to ensure that victims like Sally Evans and Mary Porter could be properly covered by legislation, we have a duty to ensure that they are served by the most comprehensive law possible. I would therefore urge noble Lords to think of those two women in our debate and to support my amendments. I beg to move.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat

My Lords, last Wednesday was the second annual National Stalking Awareness Day and two events were held simultaneously here and in the Scottish Parliament. They differed radically from the event held one year before because all those present in London were able to celebrate the introduction of this Bill, promoted on a cross-party basis in both Houses of this Parliament. One year ago, the people's inquiry into stalking was just being created. It was ably chaired by Elfyn Llwyd MP and supported in every possible way by the National Association of Probation Officers and Protection Against Stalking, which had come together in their absolute determination to persuade Parliament that we needed legislation that recognised the scourge of stalking. It needs naming, appropriate sentencing, support for victims and, importantly, treatment for perpetrators. Some members of that inquiry were sceptical about the need for change but the evidence bravely given by the victims, survivors, families of murdered victims, police and others in the criminal justice system made it undeniably evident that change was needed.

Last month the Home Secretary, speaking in the Commons debate, confirmed the need for change. Turning to the amendments before us now, she made it much clearer and plainer that the behaviour of those in the criminal justice system had to change, too, to recognise the seriousness of the case, even if it could not be specifically identified in every exemplar. She specifically said:

"Those amendments will widen the section 4A offence to incorporate behaviour that causes the victim serious alarm or distress that has a substantial effect on his or her day-to-day life. This change will mean that when a stalker causes their victim, for example, to take alternative routes to and from work, when the victim is afraid to leave the house or when they have to ask their friends or family to pick up their children from school because they are afraid of running into their stalker, this could count as behaviour that attracts the more serious section 4A offence and therefore, on conviction on indictment, a maximum five-year sentence. The message could not be clearer-anyone who ruins someone's life with their stalking should expect to be severely punished".

The Secretary of State went on to say that legislation will be kept,

"under review. The last thing we want to do is to find that the legislation is being misinterpreted".

She had set out examples,

"to send a message to people that that is all they are".-[Hansard, Commons, 19/3/12; col. 546-47.]

Some of the examples to do with changing the culture are absolutely vital within the system. Frankly, that change should start with the renaming of the department in the Home Office that deals with stalking. It is currently called-I am not making this up-"Death and Violence". One small but significant change such as this will signal a key change in how the Government, the Civil Service and the criminal justice system are starting to treat stalking. This is about human beings and how they are treated.

I give one illustration from the courts today. The result of Elliot Fogel's case was due to be heard this morning-the latest chapter in his stalking of Claire Waxman over the past 20 years. He was imprisoned for two years in January for breaching a lifetime restraining order; this was after a 16-week sentence for the original stalking offence two years ago. He wanted his sentence reduced. Shockingly, the case was adjourned from this morning to this afternoon because the CPS had again forgotten its evidence and files on his repeated breaching of previous restraining orders. A further problem was that the CPS had consistently not prosecuted breaches of restraining orders, so the court was able to look only at three out of the many that had been taken to court. This presents a very different picture for the judges but it is one that they were forced to use. I am pleased to say that the court finally made its decision this afternoon and Fogel's sentence remains.

Every single court case in Claire Waxman's long and difficult experience of being stalked has been adjourned at least once because the CPS arrived without key papers or because of other unbelievable acts of incompetence. As with domestic violence cases, these delays, caused entirely by administrative errors, can be physically dangerous to victims and their families. The court is often stuck without effective means of prosecution. The only way to get around this is through training and guidance on stalking, its perpetrators and its victims. Until this happens, victims stand no chance of a fair trial or even a voice.

We have debated the detail of this at length and gained, I understand, unusual consensus on the need for stalking legislation. The time has come to accept the Secretary of State's clear intention on this and for the Home Office and the Ministry of Justice to begin the vital work of changing the culture around the treatment of these offences to make it clear that the scourge of stalking is no longer acceptable in England and Wales.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat 6:45 pm, 24th April 2012

My Lords, what we have heard today emphasises the need for training for the police and maybe other agencies, and the need to be alert to behaviour that may escalate, having started as apparently comparatively innocent. I was relieved to hear my noble friend say that these amendments are unnecessary and grateful for his explanations. Reading them earlier today, it seemed to me that they were covered in both senses. The two sets of behaviour described, of which individual B was the subject, would fit within the new sections. As regards a third party, it is likely, depending on the degree of seriousness, for other criminal offences to be involved.

As I say, I am glad to know that the amendments are unnecessary and that such behaviour will be covered. If legislation is adequate, it is important that it is not expanded to cover explicitly this sort of example because matters that are not explicitly included might then be thought to be excluded. Therefore, if the legislation covers, perhaps in a fairly technical way, the behaviours that are of concern, it could be damaging in a wider sense to spell out those behaviours in the legislation.

Photo of Lord Henley Lord Henley The Minister of State, Home Department

My Lords, I can respond relatively briefly and will deal, I hope, with most of the points. First, to protect the honour of the Home Office, I correct just one point made by my noble friend Lady Brinton. She talked about there being a department in the Home Office known as "Death and Violence". I can assure her that that is not the case. The Home Office team that leads on this is called Interpersonal Violence, which I hope my noble friend will accept is a better name than the suggestion that she put forward.

I thank the noble Baroness, Lady Royall, for accepting that this matter has been driven by Parliament. It has been cross-party and I pay tribute to all those in this House and another place-the right honourable Elfyn Llwyd and others-who have led the work on this. Perhaps I may also say how important it is that we work with others; and that is why we will continue to talk to NAPO, Protection Against Stalking and ACPO about how we bring in the right training. As the noble Baroness will be aware, my right honourable friend the Prime Minister made it clear on International Women's Day that training will be provided, and we will work with those bodies to develop that training. It is because we are providing it that we do not believe that the noble Baroness's amendments are necessary or appropriate. It is because we believe that we have come to a considerable degree of consensus on this that now is the moment to move on and get this Bill on the statute book.

All that I want to do at this point is respond to one matter in the example that the noble Baroness gave regarding Mary and the problems she faced. The noble Baroness said that Mary did not change her daily routine and therefore would not be captured by new Section 4A. As the noble Baroness made clear, Mary on that occasion kept records of her stalker, she did not sleep and had to speak to the police. All those are examples of day-to-day activities being affected. Therefore, new Section 4A certainly could apply in that case, and that is why it is important that we provide the police with exactly the right training, and is why I am trying to give the commitment that we will work with the bodies that we have been talking about to make sure that the right training is evolved.

I should also take on the point made by my noble friend Lady Brinton about the need within the Home Office and Ministry of Justice to make sure we change the culture appropriately-that obviously also applies to the police-in terms of understanding the importance of these matters and ensuring that prosecutions are, when appropriate, pursued with vigour, if necessary at the higher level provided by new Section 4A, or by new Section 2A in much more minor cases. I dealt with the example given by the noble Baroness because I wanted to make it clear that new Section 4A could apply even in that case.

I therefore feel that the noble Baroness's amendments are not necessary. I hope that she will not press them and that the Bill can move on to the statute book with due speed.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

Is the noble Lord prepared to say that the Government's view is that the amendment of the noble Baroness, Lady Royall, is in fact included in the interpretation of their Amendment 51C?

Photo of Lord Henley Lord Henley The Minister of State, Home Department

My Lords, my understanding and what I was trying to get over is that, with the introduction of appropriate training in how the police prosecute in these matters, her amendment is not necessary. I therefore think I am right in saying that what I have said would be covered by my noble and learned friend's point.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat

I apologise for casting aspersions on the Home Office. I got my departments muddled. Unfortunately, it was the Ministry of Justice that has a department with such a name.

Photo of Lord Henley Lord Henley The Minister of State, Home Department

I, as always, speak for Her Majesty's Government when I am at this Dispatch Box, but on this occasion I cannot honestly answer for the Ministry of Justice. All that I was trying to do was clear the name of my department, but I am sure that other, Justice Ministers will in due course be able to respond to my noble friend's point.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Shadow Spokesperson (Equalities and Women's Issues), Shadow Leader of the House of Lords, Shadow Spokesperson (Cabinet Office)

My Lords, I am grateful to the Minister and to the noble Baronesses who participated in this debate. The Minister and the noble Baroness, Lady Brinton, quite rightly spoke of the critical value of training for the police and other members of the criminal justice system. It is clear that in the case cited by the noble Baroness, that of Claire Waxman, training that will bring about a change of culture is an absolutely necessary and vital part of ensuring that in future the perpetrators of stalking are truly brought to book and the new offence that we are introducing is properly used against them.

I realise that the Minister says that the case of Mary would be covered by the amendments being brought forward by the Government, and he says that my amendments are not therefore necessary. The intervention of the noble and learned Lord, Lord Mackay, is of course extremely valuable because the Minister has clearly said that it is his interpretation of the government amendments and the Bill as it stands that those cases would be covered. However, a lot of what the Minister has rightly said-and I, too, am glad about the consensus that we have achieved on the Bill-depends on the quality of the training that will be provided to the people involved in the criminal justice system. I am glad that ACPO, NAPO and Protection Against Stalking will be involved in the discussions on training but, frankly, the words of my amendments are almost belt and braces. We are often told by Bill teams and parliamentary counsel that one should not include in a Bill matters that are otiose, but I do not regard the words that I propose as otiose. It is belt and braces to ensure that while training is important, should it fall down for whatever reason, those words will be in the Bill to ensure that people such as Mary, Sally Evans and others mentioned to me by NAPO, ACPO and other charities are properly covered. Before us is a great opportunity. I pay tribute to all Members of this House and indeed the Government for moving as far as they have gone in this Bill. The consensus that we have achieved is terrific. However, I should like to ensure that the belt and braces are there, and I therefore seek the opinion of the House.

Division on Motion B1

Contents 160; Not-Contents 207.

Motion B1 disagreed.

Division number 2 Protection of Freedoms Bill — Commons Reason and Amendments

Aye: 158 Members of the House of Lords

No: 205 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Motion B2 not moved.

Motion B agreed.

Motion C

Moved by Lord Henley

That this House do agree with the Commons in their Amendments 133A, 133B and 133C.

133A: Line 22, leave out "by stalking or otherwise" and insert "and stalking involving fear of violence or serious alarm or distress"

133B: Line 41, leave out "by stalking or otherwise" and insert "and stalking involving fear of violence or serious alarm or distress"

133C: Line 46, leave out "by stalking or otherwise" and insert "and stalking involving fear of violence or serious alarm or distress"

Motion C agreed.