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Mr. Bercow: Indeterminate sex.
Mr. Maclean: Indeed. I would not wish to be accused of being institutionally gender prejudiced, or whatever the derogatory term may be.
Dr. Julian Lewis (New Forest, East): Androgynyphobic.
Mr. Maclean: That was a helpful intervention from a sedentary position--we shall have the benefit of reading it in Hansard with the correct spelling tomorrow.
I have explained the context of the amendments. Hon. Members and those who follow our debate carefully can now appreciate the purpose of new clauses 1 and 3 and my attempt to give greater coherence to the Bill. The new clauses also deal with the problem of the ability of officers of either, any or indeterminate sex--or even both, which I once came across in forensic medicine--to search people of a similar nature, or who are similarly equipped or attired.
In new clause 3, I work from the assumption that the Government believe that it is acceptable for an authorised officer to go through the palaver of applying to a justice of the peace to get a warrant to enter premises. One could have a debate--the other place held one--on clause 5, which grants foreign agency inspectors the right to march into premises without a warrant. However, we are debating not clause 5 but clause 4, which deals with a British official, the "authorised officer". He has to surmount the hurdle of obtaining a warrant from a JP to enter premises.
If the Government are willing to make an authorised officer jump over the hurdle of getting a warrant from a JP, I propose another small hurdle or sub-hurdle. If the authorised officer meets resistance, he should obtain a second warrant, which new clause 3 describes as the "forcible entry warrant". In most cases when an authorised officer enters the premises, he will not meet resistance. If he arrives at "any reasonable hour"--I hope we shall have time to debate the amendments that my right hon. Friend the Member for Bromley and Chislehurst tabled on that--"within one month", I assume that the people on the premises will open their doors and voluntarily allow the authorised person to enter.
Let us suppose that the authorised person meets resistance and that the people on the premises deny him entry. The Bill provides for the authorised officer to use force, if necessary. How can he do that? Can he do it himself? That is a grey area. We all assume that the constable will exercise the force. However, the constable may not be empowered; the officer may not have brought the constable with him. The Bill does not state that in all circumstances in which an authorised officer is given the right of entry, he has to take a police officer with him.
Perhaps the authorised officer will take a constable with him in unusual circumstances; perhaps he will take a bobby with him as a matter of course when he has obtained a warrant, to deal with possible resistance. However, the Bill does not provide for that. Even when a constable accompanies the authorised officer--if he is
asked to do that--the constable has the discretion to refuse to use his powers if he does not wish to do so. The constable "may" assist, if necessary.New clause 3 tries to clarify and change the position. When the authorised officer knocks on the door, and people refuse to answer, the new clause provides for him to return immediately to the court and obtain a forcible entry warrant. That empowers the constable to use the necessary force to gain entry. Is not that a better system? Is not that more in keeping with our British view of justice and forcible entry into premises? If a police constable--not an authorised officer from the Department of the Environment, Transport and the Regions or the Nuclear Safeguards Authority or an agency--knocks on the door, he can say, "It's not an inspector this time, chummy. It's me and the police service. Here's a warrant for forcible entry." If he is refused, the officer can then use force.
7.15 pm
Mr. Paul Keetch (Hereford): I am trying to understand the right hon. Gentleman's point. How would he secure the premises between the time when the first hurdle had been attempted and the police officer took the second hurdle? How would the right hon. Gentleman ensure that any material that warranted the inspection was not removed from the premises in the meantime?
Mr. Maclean: The authorised officer would encounter that problem when he got his first warrant. He must get a warrant to enter the premises. I assume that people who have nuclear material or information are so clever and dangerous that, if they wished to thwart the entry of an authorised officer, they would do it from stage one. Perhaps the material will be encrypted, and the officers will not get their hands on it. The fact that the authorised officer has to fetch a police officer and return with a warrant a couple of hours later is not fatal to the successful raiding of the premises. The people who will try to frustrate the measure know that an authorised officer will try to raid their premises.
Mr. Keetch: Does the right hon. Gentleman presume that a company in, for example, Penrith or Hereford, will have been told about the initial warrant?
Mr. Maclean: I work on the assumption that even if the company has not been told, it will know about it. The Bill does not provide that when an authorised officer applies for a warrant on oath, the people whose premises he wishes to enter must be informed. I did not spot that in the measure. Such a provision may be built into the Bill. If not, the court will grant a warrant to the authorised officers without informing the people whose premises will be inspected. We are not considering petty crooks who will be taken by surprise by a sudden police raid and found with the incriminating stuff on them.
The premises that are to be raided will belong to those who are involved in the nuclear industry and have some information that is regarded as additional protocol information. If they do not expect a visit from the authorised officers when the Bill is passed, they will be poor at their jobs, or at least their criminality.
The Parliamentary Under-Secretary of State for Trade and Industry (Dr. Kim Howells): The right hon. Gentleman makes an important point. He makes an analogy with what he describes as petty criminals. He knows that the powers we are considering are last resort measures. They would be used only in circumstances of, for example, suspicion that someone was selling nuclear material to a country such as Iraq. Does he believe that it is less urgent to obtain forcible entry when all other approaches have been refused than when, for example, the police carry out a drugs raid? The illicit sale of nuclear material is at least as important.
Mr. Maclean: Of course it is. However, why does not the Minister redraft the Bill to place the powers of forcible entry clearly in the hands of the constable and of the police service rather than the authorised officer? The Bill provides simply that the constable may assist if necessary. The Minister grants the powers to break into people's property to an authorised officer. Without straying from the path and considering clause 5 in detail, if the Minister is so proud of the provisions whereby an authorised officer applies to a justice of the peace, I hope that he will extend that to clause 5 and make the agency inspector approach a JP. Agency inspectors can enter any premises anywhere without a warrant from a JP.
Mr. Bercow: Forcible entry is important, but so too is the activity that might follow. Does my right hon. Friend seriously propose in new clause 3(4)(c) that individuals who are subject to a search should automatically be deprived permanently of their property, or does he concede that they should have the opportunity under new clause 3 to make representations about having the property returned to them?
Mr. Maclean: My hon. Friend makes another good point; I am dealing with new clause 3 subsection by subsection, but can jump ahead a couple to deal with it. I tried to replicate in new clause 3(4) the main provisions that the Government have included in clauses 4 and 5. I did not want to build in any other concepts which they might say were different from what they want to achieve and therefore unacceptable. The wording that I use in subsection (4)(a), (b) and (c) is identical, or almost identical, to that used by the Government.
I accept the difficulty that the officer could severely disadvantage a business were he wrongly
- to copy, or to seize and remove, any document or other thing which he has reasonable cause to believe is something which contains Additional Protocol information.
Mr. Richard Page (South-West Hertfordshire): I am slightly curious, as my right hon. Friend seems to have formed an alliance with the Minister. New clause 3 refers to gaining entry at reasonable hours. Given that the Minister said that illegal fissionable material might be held in a premises, surely breaking in only in authorised or legitimate hours is unduly generous. My right hon. Friend the Member for Bromley and Chislehurst
(Mr. Forth) tackles that point sensibly in amendment No. 9. I should find it hard to support new clause 3 unless my right hon. Friend explains the fundamental weakness that it contains.
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