Standing Committee H
Tuesday 16 May 2000
[Dr. Michael Clark in the Chair]
(Except clauses 1, 12, 30, 31, 59, 102 and 113)
Power to search premises
Amendment moved [this day]: No. 19, in page 17, leave out lines 22 to 41.—[Mr. Letwin.]
Mr. Oliver Letwin (West Dorset): We were discussing whether there is sufficient reason to retain proposed new section 161, which relates to writs of assistance. I should not want to bore the Committee by repeating the arguments advanced before we adjourned. Suffice it to say that before I would be willing to withdraw the amendment, I would want to hear from the Paymaster General an absolutely compelling case for retaining the writ of assistance, in the light of the fact that it is a draconian measure that is not matched by the powers that the police have.
If I may, I shall discuss amendment No. 20, which is also in this group.
The Chairman: Order. That is not in order. We are discussing amendment No. 19, and hon. Members will notice from the selection list that amendment No. 20 is to be debated separately, not with amendment No. 19.
Mr. Letwin: In that case, Dr. Clark, I have finished.
Mr. Edward Davey (Kingston and Surbiton): I shall be brief in commenting on this Conservative amendment, which the Liberal Democrats do not support. In an informal exchange with the hon. Member for West Dorset (Mr. Letwin), I commented that he was in danger of becoming a dangerous liberal As far as I can tell, he is trying to remove powers from Customs and Excise that it requires to tackle fraud and smuggling, especially as, as we discussed in debating earlier clauses, smuggling is on the increase. The Paymaster General will correct me if I am wrong, but I imagine that those powers help Customs and Excise in its fight against drugs and highly damaging criminal activities.
The clause amends Customs and Excise's existing powers—which are wide ranging and, to some minds, including my own, too great—to search and forfeit without any safeguard for the citizen. The Government seem to be trying to strike a balance between ensuring that Customs and Excise has the power to tackle smuggling and catch drug criminals, for example, while ensuring that United Kingdom law is in line with the Human Rights Act 1998 and does not give overbearing powers to officials but ensures that some safeguards for citizens are provided.
Mr. Letwin: Does the hon. Gentleman agree that the difference between proposed new sections 161 and 161A is the judgment of what is reasonable? If a magistrate judges that there are reasonable grounds for suspicion, he will issue a search warrant. Is the hon. Gentleman saying that Customs and Excise should be the arbiter of that reasonableness, rather than a magistrate?
Mr. Davey: I am saying that writs of assistance have been part of the armoury of Customs and Excise officials for centuries—
The Paymaster General (Dawn Primarolo) indicated assent—
Mr. Davey: The Paymaster General nods. During many Conservative Administrations, those powers were in the hands of officials, and it was not thought then that they were an affront to civil liberties. Time moves on—and, I hope, our tests for what is right progress.
Liberal Democrats welcomed the new test and safeguard for the rights of the citizen that the Government introduced, by enshrining the European convention on human rights in British law through the Human Rights Act 1998. Despite the fact that smuggling is increasing, the Government are right to say that the powers must be in line with that Act.
The Government are also right to say that Customs and Excise needs the powers, however. There are instances when large-scale criminals, who smuggle not only cigarettes but narcotics and do a huge amount of damage throughout the country, can be seized only on the spot. It would be wrong for the Committee and the House to say that customs officials must allow a van that is right in front of their noses and that they know is full of narcotics to go past because they do not have the powers of a search warrant from a magistrate. That would clearly be nonsense, and I hope that the hon. Member for West Dorset will agree with that.
Mr. Letwin: Does the hon. Gentleman think that the police should have a writ of assistance, and not have to rely on a search warrant when they have similar grounds for suspicion about narcotics to those he has described? Is that Liberal policy?
Mr. Davey: No, that is not the position. We are discussing Customs and Excise officials, who operate on the country's frontiers—
Mr. Letwin: No.
Mr. Davey: The hon. Gentleman says no, but in the main they act on the borders, which was why they were established many centuries ago. The Government are modernising the powers of those officials, in recognition of the fact that we have a different balance now. The hon. Gentleman makes a fair point, of course. We must have a balance and we must ensure that those rights are safeguarded—I speak on behalf of a party that has a deep commitment to the civil liberties of our citizens. I am not making a partisan point, as I believe that all parties in the House have that commitment.
I cannot believe, however, that the hon. Gentleman really wants to push his position as he is doing today; he would not do so if he consulted his right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe). He seems to want to take from the authorities at the borders the power to prevent some serious crimes.
Mr. Nick St. Aubyn (Guildford): Will the hon. Gentleman show us where the Bill states that the powers are only to be exercised at the border of our country?
Mr. Davey: I am not basing my case solely on that.
Mr. St. Aubyn: Yes, you are.
Mr. Davey: No; if the hon. Gentleman had been listening to me he would have noticed that I did not try to make that point. The reality is that in the vast majority of cases those powers will be exercised at the frontier. However, because we need to change Customs and Excise practices, those powers are increasingly used inland—normally at the excise houses, and on the roads and fairways that lead to them. They are not used in street corner shops, and so on.
The issue is whether such strong powers should be retained in that small number of cases where they are deemed necessary to tackle serious crime. I believe that the Government have got the balance right. We might need to revisit that issue, but the liberalisation measure in the clause is right. They would be wrong to go as far as the hon. Member for West Dorset suggests, and I hope that they will reject the amendment.
Dawn Primarolo: I start with the point on which I think the Committee will agree with the hon. Member for West Dorset. He is correct to draw attention to powers in the Bill that Customs and Excise can operate and to seek clarification on their extent and the reasons for them. By going through some basic points, I hope to reassure him.
The debate is focusing on the question of whether there should be search warrants or the continued use of writs of assistance. I am sure that the hon. Gentleman knows that there is currently no requirement to limit the use of writs of assistance. By practice, Customs and Excise has been careful in how the power has been used. We have decided that it is correct to put into legislation how we expect the limit to operate on a writ of assistance.
It might help the Committee if I explain briefly what writs of assistance are and give examples of seizures in which they have been used. I shall also state the frequency with which they are used, as the matter is important. Finally, I shall return to the questions that are at the heart of the hon. Gentleman's points, which are whether the power is appropriate for the work of Customs and Excise and whether it is unnecessary because an alternative can easily be used.
Writs of assistance are documentary authorisations to search unspecified premises for smuggled goods and anything else liable to forfeiture under customs law. They do not apply only at our frontiers, but operate inland if that is where the goods are. They are issued by the Queen's bench division of the High Court at the beginning of a monarch's reign and remain valid for six months after the end of the reign. During that time they are lodged at various Customs offices, where the senior manager is responsible for their use.
The issue of writs of assistance is entirely under the control of that Customs and Excise senior manager. My hon. Friend the Member for Doncaster, Central (Ms Winterton) gave a good example about drugs. The point made by the hon. Member for Kingston and Surbiton (Mr. Davey) and my hon. Friend the Member for Barnsley, West and Penistone (Mr. Clapham) was that seizure would not be possible where goods were liable to be moved rapidly.
During March 2000, information was received that a container carrying cigarettes was being delivered to an address in Barking from which it would be removed within an hour. The writ of assistance was used to gain entry to the premises as there was insufficient time to obtain a search warrant. More than 5 million cigarettes were seized. Three people were arrested and subsequently charged with excise offences. Without the operation of the writ, the consignment would have been lost and the opportunity missed to knock out a major criminal organisation. Given what the Conservative party has said about other issues connected with criminal activity, it expects quick and decisive action when necessary.
I shall cite another example. In August 1999, on the basis of information that premises in the Thanet area were due to be cleared of duty-unpaid cigarettes, a team with a writ responded in one hour. That included driving the 20 miles to the location. For the detection of 165,000 cigarettes, the premises were searched and the goods were seized one to two hours before clearout was due. Such an opportunity would have been lost had a writ not been granted.
As part of an exercise in January this year, a blitz operation took place. Officers visited a house in Wales, but were refused entry. They saw a significant number of smuggled cigarettes in the hall and used the writ to gain entry and seize the goods before they could be moved. In February this year, following information received about events in Glasgow, a woman was seen at a motor vehicle with bags of cigarettes. When approached by officers, she immediately ran off to a house with some of the bags. She refused to answer the door. The officers confirmed, from the cigarettes left in the car, that duty had not been paid on them. The officers obtained a writ to gain entry to the house and cigarettes were seized.
I am trying to demonstrate the speed that might be necessary when using the writ as a result of intelligence information. The hon. Member for West Dorset is saying that the use of the writ instead of a search warrant should not become the status quo. Under the amendment, writs of assistance could be used only in emergencies. We estimate that that might be 5 per cent. of the total cases.
I have to hand the figures from 1989 to 1998–99. In 1989, writs were used 230 times. By 1997–98, they had been used 263 times and, in 1998–99, writs were used on 301 occasions. We want to enable customs to respond quickly. The clause modifies the power to enter and search premises for smuggled goods. It is intended that such power should be used only in urgent situations, hence the requirements under the Bill. I must say to the hon. Gentleman that failure to have the power would be inappropriate given the intelligence-led work of much of our challenges to smuggling, be it of cigarettes, drugs or other illegal items in the United Kingdom.
We shall resist the amendment. To abolish the power to enter premises entirely would severely undermine the ability of customs to deal with an ever-growing and extensive criminal activity. We are limiting a power. It was never questioned under the previous Government. It is not as though we are giving customs such powers for the first time. We are asking ourselves what is appropriate and trying to find the balance between safeguarding the work of customs and protecting rights. It is a question not just of loss of revenue, which is obviously very important, but—as I have explained several times—of the strategies that Customs and Excise is developing to break up the ability of criminal networks to distribute the goods, as well as to remove those goods. We can pour staff into seizing goods, but as long as people believe that they are beyond the scope of prosecution we will be dealing with an impossible position.
The hon. Gentleman might like me to explain the procedure for issuing the writ. This touches on his point about the power, which is substantial, not being set for all time, never to be revisited. The writs are lodged under secure conditions in Customs and Excise offices where the manager is responsible for their custody and use. To obtain a writ, the case officer must apply in writing to the senior manager and provide evidence as necessary to support his or her application, which should include an explanation of why a search warrant is inappropriate. The biggest problem will be time and the danger of goods being moved on.
If the senior manager decides that the application is justified, he or she will release the writ to the officer—the named officer in the record—who must return it to the senior manager as soon as the search or searches that the officer intends to carry out, under the authority of the writ, have been completed. Full records are maintained in the relevant local customs offices on the use and return of every writ to Customs and Excise. We can therefore continue to monitor the appropriate use of the power.
The only other question is that of an appeal against the use of a writ. When customs uses a writ of assistance as an authority to search premises, the owner or occupier of those premises cannot prevent that search. However, if that person is unhappy with the way in which he or she has been treated by customs, he or she may make a written or verbal complaint, which has to be dealt with formally in accordance with the standard procedure of customs for complaints handling. That involves the appropriate officer carrying out a thorough investigation of the complaint and issuing a reply within 10 working days, in which the findings on the reasons for using the writ of assistance are fully set out.
If the complaint is upheld, the reply will say what customs intends to do to put it right. That may vary. If someone is still not satisfied with the handling of his or her complaint, he or she can ask the adjudications office to examine the case. If still dissatisfied after the adjudicator's decision, he or she may ask the local Member of Parliament to refer the case to the Parliamentary Commissioner for Administration. Checks are therefore in place.
I shall respond to the other points made by the hon. Member for West Dorset. The power is being reduced to make it clear that a search warrant should be used, except in exceptional, urgent circumstances in which applying for a search warrant would lead to the loss of the seizure through the goods being moved. The records on the use of the writ are kept clearly and it is an appropriate power, given the challenges that we now face, and the speed with which drugs and other goods are moved. While the writ for access to premises was still necessary, we believed that it should be limited on the grounds of reasonableness. That is the effect of the clause.
I hope that the hon. Gentleman will accept that explanation. His amendment completely removes our ability to use the writ to enter premises under such circumstances, which would leave us dependent on a search warrant. Given the exceptional problems of time constraints that may occur, I hope that the hon. Gentleman will accept that it is appropriate that the writ of assistance remains, albeit limited by the Bill.