Clause 7 - Forcible entry etc

Legislative and Regulatory Reform Bill – in a Public Bill Committee at 11:30 am on 7 March 2006.

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Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister 11:30, 7 March 2006

I beg to move amendment No. 50, in clause 7, page 4, line 21, after ‘any’, insert

‘arrest, detention, confiscation of property, compulsory purchase of property or any interference with any right referred to in the Human Rights Act or’.

Photo of Martin Caton Martin Caton Labour, Gower

With this it will be convenient to discuss the following amendments: No. 65, in clause 7, page 4, line 23, leave out subsection (2).

No. 66, in clause 7, page 4, line 26, leave out subsection (3).

No. 51, in clause 7, page 4, leave out lines 28 and 29.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

I should like to refer first to amendment No. 51, which has a similar effect to amendment No. 76. The Minister has just agreed to reflect further on that amendment and I hope that he will do the same for this one. It would remove the exemption for Law Commission recommendations when it comes to the restriction on the purpose of the Bill with regard to forcible entry, search or seizure. I would have thought that the same argument applied to amendment No. 51 as applies to amendment No. 76.

Any Law Commission report that affected forcible entry, search and seizure, which are fundamental rights, would, of necessity, be controversial, if not highly controversial. The same argument applies that it would be inappropriate to use the procedure in the Bill for such a proposal and so such proposals should be introduced only as part of primary legislation. Indeed, in so far as they are matters to do with police powers, the arguments that have been put forward about how many opportunities there are to affect such rights also apply in these circumstances.

The point that the hon. Member for Forest of Dean mentioned about the Law Commission is one that the Minister should take seriously. There is a problem with the Bill as a whole when it deals with the Law Commission. If it becomes apparent to a future Government that an easy way of getting through increases in burdens and reductions in rights of the population is to use the Law Commission route, especially remembering that that can affect the common law, unlike the legislative route in the other part of clause 1, it might well adversely affect the nature of the Law Commission and make it a more political body. Some future Government might be tempted to use the powers they have under the legislation setting up the Law Commission to choose a different sort of commissioner. It might be necessary at some point to insert further safeguards into the legislation that establishes the Law Commission against that sort of political interference if the Bill were to go forward in its present form.

Amendment No. 50 is perhaps our last opportunity to consider the question of restricting the purposes for which the Bill’s procedures can be used. It adds to the list in clause 7 about forcible entry, search, seizure and a whole list of other fundamental civil liberties—not to   be arrested, not to be detained and not to have one’s property confiscated or compulsorily purchased, and a host of other rights that are covered in the Human Rights Act—and protects them from the procedure in the Bill. If there were to be a proposal that would affect those rights, primary legislation would have to be used, not the regulatory order.

The Minister has said several times that the reason why he is not tempted by the restrictions on purpose is that there are already safeguards in the Bill. When I asked him the difference between taxation and human rights he referred me to clause 3, the preconditions clause. But many of us are not satisfied with the state of that clause because it is drafted in such a subjective way. The Minister has to give way either on how clause 3 works or on the purposes to which the Bill can be put if he wants to allay our serious concerns.

In the end the Minister must answer the following questions and he cannot use clause 3 as protection against it. Under what circumstances would the Government bring forward under the Bill an order that affected arrest, detention, confiscation and Human Rights Act rights? Why does not the argument apply that any such circumstances are sure to be those in which it would be reasonable to say that the proposal was controversial? If that is the case, why cannot the Government accept the amendment?

Photo of Mark Harper Mark Harper Shadow Minister (Defence) 11:45, 7 March 2006

At the risk of repetition, which has never stopped anyone before, the clause refers back to the 2001 Act. Again, it is not sensible to argue that there were the same protections in that Act because, as we have already said, part of the problem here is that the scope of the Bill is much wider than that Act. As the scope of the Bill is wider, the scope of the protections should be wider too.

Amendments Nos. 65 and 66, tabled by my hon. Friend the Member for North-East Hertfordshire and me, are reasonably similar in nature and have the same thrust as amendments Nos. 50 and 51, tabled by the Liberal Democrats. On amendment No. 65, we welcome the fact that subsection (1) puts restrictions on what order-making powers can be used for, but subsection (2), which allows the extension of such powers, is unacceptable. If it is not appropriate to use order-making powers to authorise forcible entry, search, seizure or the compelling of giving of evidence, it also should not be possible to extend such powers. That should also have to be done by primary legislation. Including the safeguard that the purposes must be similar is so loose a drafting that it provides no safeguard at all. Amendment No. 65 would remove that derestriction and make it clear that order-making powers under section 2(1) could not be used either to authorise forcible entry, search, seizure or the compelling of the giving of evidence or to extend the cases where that may happen.

Amendment No. 66 is rather wider and I am prepared to accept that amendment No. 51 is more narrowly and perhaps more appropriately drafted, which refers again to whether the Law Commissions should effectively make law here. I have one more   point to make on the Law Commissions. It is unquestionably the case that the Lord Chancellor appoints very good lawyers to the Law Commission, but they are not elected by anybody. They come with their own views as well as their legal expertise. It is therefore not appropriate to give them the power to make law. They are the right people to make recommendations and to use their expertise to make suggestions. However, it should remain for this place to make law rather than be governed by experts, especially when such recommendations are particularly controversial.

Photo of Martin Caton Martin Caton Labour, Gower

Order. Before we continue, let me say that I have been forgetting to indicate whether I intend to have a stand part debate. In this case, most of the substance will be dealt with earlier, so I am hoping that we shall not need a separate stand part debate. If Members could remember that when contributing it will not be needed.

Photo of Mark Harper Mark Harper Shadow Minister (Defence)

Briefly, Mr. Caton, I believe I said that subsection (1) of the clause is welcome because of its restrictive effect, but that we would also welcome the removal of the derestriction represented by subsection (2), and that is what amendment No. 65 would do. We are content to have the stand part discussion now.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I am happy to be able to respond to the specific points that arose in what was a brief debate.

Clause 7 limits the enforcement powers that can be conferred by an order made under clause 1. Powers of forcible entry, search and seizure and powers to compel people to give evidence may be conferred only in similar circumstances to those in provisions that were already made for that purpose in the legislation being reformed. Those limits have been carried over from the 2001 Act and were also in the Deregulation and Contracting Out Act 1994.

In response to the point made by the hon. Member for Cambridge about amendment of the Human Rights Act 1998, it is clear that the protections in clause 3 would prevent the type of thing that he suggests.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

It is an important point, because clause 3 says,

“unless he”— that is, the Minister

“considers that the conditions ... where relevant, are satisfied in relation to that provision.”

So we are not talking about whether the conditions are objectively fulfilled, but whether the Minister thinks so. The Minister might think that the Human Rights Act is simply an inconvenience that he can do without, but that would not be the view of other reasonable people or, perhaps, of the courts.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

The Minister is under a duty and a responsibility to confirm that any order is in line with the Human Rights Act. That assessment is justiciable like any other assessment made by a Minister. The protections are in clause 3, as preconditions.

Although orders cannot create new conditions for forcible entry, search or seizure or to compel the giving of evidence, subsection (3)(a) clarifies that the limitation does not prevent orders from restating legislation containing such provisions. Orders will also be able to reform legislation in the area of enforcement, such as by simplification.

I made a commitment that the Government will not deliver highly controversial proposals by order. As the hon. Member for Forest of Dean (Mr. Harper) commented, the fact that something has been said does not prevent it from being restated, so I shall restate again: in addition to the point about not delivering highly controversial proposals, there are requirements for statutory public consultation, for the Minister to lay an explanatory memorandum and for the Minister’s assessment to be open to legal challenge. The Select Committees, charged by the House with the relevant responsibilities, can oversee and reject specific proposals made by the Minister. The veto that we shall also discuss in some detail before Report is an additional restriction.

The restriction in clause 7 derives from section 3(5) of the 2001 Act. In addition to the current restriction in clause 7(1) on what orders may provide, amendment No. 50 seeks to prevent the authorisation of

“arrest, detention, confiscation of property, compulsory purchase of property or any interference with any right referred to in the Human Rights Act”.

That would be strange to say the least. Like the 2001 Act, clause 6 permits the creation of criminal offences with penalties of up to two years in prison in the appropriate circumstances. Having considered clause 6 and the permitting of the creation of criminal offences with penalties of up to two years in prison, it would seem strange to be able, under clause 7, to create new offences but restrict the ability to arrest or detain anyone.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

My understanding is that because of recent legislation, all criminal offences are now arrestable, so I do not think that that point arises.

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

The point, however, is that in clause 6 we have set up an arrangement whereby we are able to create offences, with important limits. My understanding is—I will seek to clarify it—that amendment No. 50 would limit that ability which was already agreed to in clause 6. In addition, of course, the hon. Gentleman’s suggested list takes us back to the conversation about the preconditions in clause 3.

I know that the hon. Gentleman says repeatedly in Committee that the Bill could be used to undermine human rights and even to revisit the Human Rights Act—they might have said that from time to time—but I draw the Committee’s attention back to the preconditions in clause 3 about the necessary protections and not preventing a person from

“continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.”

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister

The Minister repeats his point, as I have repeated the opposite point. Perhaps I should put it slightly differently. When the Prime Minister talks   about the rules of the game having been changed, is he not referring to what the Minister might consider to be a necessary protection that a

“person might reasonably expect to continue to exercise” as a right? The problem is the subjective nature of clause 3(1), not the particular matters referred to in clause 3(2).

Photo of Jim Murphy Jim Murphy Parliamentary Under-Secretary (Cabinet Office)

I think that it is clear in clause 3 that those protections are in place, and any comment, in this Committee or elsewhere, is superseded by what appears on the face of the Bill. Those protections and preconditions are in clause 3. That is the text that we have before us and the debate that we should be having. Although I understand why the hon. Gentleman makes his comments and sometimes must make them, I contend that he seeks to minimise the protections and preconditions in clause 3.

The two conditions in clause 3 ensure that orders cannot create inappropriate powers to authorise

“arrest, confiscation ... compulsory purchase of property or any interference with ... the Human Rights Act”.

As I have already alluded to, the Minister must give an undertaking, when laying an order, that that order is in line with the Human Rights Act.

Amendment No. 65 provides that orders could not extend existing powers

“for purposes similar to those to which the power applied before the order was made” to

“authorise forcible entry, search or seizure”,

or to

“compel the giving of evidence”.

That provision derives from the 2001 Act and there is no evidence to support the suggestion that it should be changed.

Removing the provision could prevent worthwhile reforms from being delivered by order. For example, amendment No. 65 would prevent the extension of an existing statutory power to search vehicles or boats for a substance harmful to health to include a power to search buildings for that same substance. The hon. Gentleman has not made a strong enough case that the 2001 Act needs to be changed in that respect. I cannot therefore support amendment No. 65.

Amendment No. 51 would apply the restrictions in clause 7(1) to provisions implementing Law Commission recommendations, preventing the implementation by order of Law Commission recommendations authorising forcible entry, search or seizure or compelling the giving of evidence. Accepting the amendment could mean that well-considered and worthwhile reforms recommended by the Law Commission after detailed research and extensive consultation could be implemented only by a Bill. None the less, I accept that circumstances in which that power might be useful are likely to be limited and occasional. I am therefore willing to reflect further on amendment No. 51.

Amendment No. 66 would have the same effect on Law Commission recommendations as amendment No. 51, but would also prevent the use of any orders   under clause 1 to restate legislation on topics covered by the restriction in clause 7(1). The hon. Member for Forest of Dean was fair enough to acknowledge that point about his amendment’s deficiencies, and accepted that amendment No. 51 would be a much more attractive suggestion.

Amendment No. 66 would prohibit orders that made the law more accessible and easy to understand by bringing together different pieces of legislation in a single order or putting the provisions into plainer language. We hear all too often that the law is complicated or distributed over several sources. Occasionally we need to simplify it or consolidate it to make it simpler for those who are regulated to access the law. That saves time, money and energy, as well as occasional frustration, for those affected by it. I therefore cannot accept amendment No. 66.

Government undertakings and safeguards in the Bill, including the preconditions set out in clause 3, will ensure that the powers described in clause 7 are used appropriately. I agree to reflect on amendment No. 51 and therefore invite the hon. Member for Cambridge to withdraw it, but I cannot support amendments Nos. 50, 65 and 66, which would restrict the 2001 Act and could unnecessarily rule out the delivery of beneficial reforms by order.

Photo of David Howarth David Howarth Shadow Minister, Office of the Deputy Prime Minister 12:00, 7 March 2006

I am grateful for the Minister’s offer to reflect on amendment No. 51, which works as a pair with amendment No. 76, on which he also agreed to reflect. I hope that he will reflect on the Bill’s possible effects on the Law Commission’s work and the long-term consequences of relying heavily on Law Commission recommendations in that way.

I return to amendment No. 50, however, on which I should like to press the Committee to a Division. The Minister’s defence fell into two categories. One was an argument about the effect of the amendment on powers of arrest. As I said in an intervention, I do not accept that. My recollection is that due to recent legislative change, all offences are now arrestable. Therefore, any new offence created would also be arrestable. I do not think that that is a problem.

More generally, the Minister’s defence mentioned the protections provided in the rest of the Bill. On that matter we simply disagree. The most fundamental question is the effect of clause 3. He seems to be saying that if a Minister acting under clause 3(1) said that he considered that the preconditions in clause 3(2) had been satisfied, and if that Minister was wrong in a way that violated the Human Rights Act 1998, that in itself would be a violation of the Human Rights Act. I hope that that is correct, but it is a new idea to me that considering something might be a violation of the Human Rights Act. Normally, the Act is violated when people do things rather than consider them. That does not seem a sufficient protection.

Furthermore, if that is the Minister’s understanding of how clause 3(1) works, I am surprised that he did not mention it when we talked about clause 3(1) earlier. That would have been an interesting and perhaps acceptable basis on which to discuss an   amendment to clause 3(1). It is a tempting option to put forward such an amendment on Report. I shall press amendment No. 50 to a Division, but in view of the Minister’s offer to reflect on the terms of amendment No. 51, I no longer intend to press thatQuestion put, That the amendment be made.

The Committee divided: Ayes 5, Noes 8.

Division number 11 Nimrod Review — Statement — Clause 7 - Forcible entry etc

Aye: 4 MPs

No: 7 MPs

Aye: A-Z by last name

No: A-Z by last name


Question accordingly negatived.

Clause 7 ordered to stand part of the Bill.