Session 2010-12
Publications on the internet
Protection of Freedoms Bill

Protection of Freedoms Bill

The Committee consisted of the following Members:

Chairs: Martin Caton  , Mr Gary Streeter 

Baker, Steve (Wycombe) (Con) 

Blackwood, Nicola (Oxford West and Abingdon) (Con) 

Brake, Tom (Carshalton and Wallington) (LD) 

Brokenshire, James (Parliamentary Under-Secretary of State for the Home Department)  

Buckland, Mr Robert (South Swindon) (Con) 

Chapman, Mrs Jenny (Darlington) (Lab) 

Chishti, Rehman (Gillingham and Rainham) (Con) 

Coaker, Vernon (Gedling) (Lab) 

Efford, Clive (Eltham) (Lab) 

Ellis, Michael (Northampton North) (Con) 

Featherstone, Lynne (Minister for Equalities)  

Johnson, Diana (Kingston upon Hull North) (Lab) 

Johnson, Gareth (Dartford) (Con) 

Opperman, Guy (Hexham) (Con) 

Robertson, John (Glasgow North West) (Lab) 

Shannon, Jim (Strangford) (DUP) 

Tami, Mark (Alyn and Deeside) (Lab) 

Watson, Mr Tom (West Bromwich East) (Lab) 

Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Annette Toft, Rhiannon Hollis, Committee Clerks

† attended the Committee

Column number: 361 

Public Bill Committee 

Tuesday 26 April 2011  


[Martin Caton in the Chair] 

Protection of Freedoms Bill

Clause 34 

Commissioner in relation to code 

Amendment proposed (this day): 82, in clause 34, page 23, line 28, after ‘it’, insert ‘and the processing of personal information if that information relates to the code’.—(Vernon Coaker.)  

4 pm 

Question again proposed, That the amendment be made. 

The Chair:  I remind the Committee that with this we are discussing the following: amendment 83, in clause 34, page 23, line 28, at end insert— 

‘(d) handling complaints and taking enforcement action in relation to breaches of the code’.

Amendment 85, in clause 34, page 23, line 37, at end add— 

‘(5) The Secretary of State shall keep under review the functions of the Surveillance Camera Commissioner to ensure that those functions are not duplicated by the Information Commissioner or any other public official.’.

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  I welcome you back from the Easter recess, Mr Caton, and I hope you had a good and restful time. 

Before we broke for lunch, we were finishing the debate on the lead amendment, amendment 82, and I was responding to an intervention by the hon. Member for West Bromwich East. To conclude my point, the Government intend to ensure that, in making arrangements for the coming into effect of the new commissioner role, the relationships with other relevant bodies are clearly established. That will include respective roles, boundaries and potential areas for liaison or joint working. Those relationships will be kept under review as a matter of course, and the various commissioners may comment on them in their respective annual reports, should they wish to do so. 

The intention is for the new commissioner to fill an existing gap, not to take on functions already performed elsewhere. There is no reason to suppose that existing bodies would seek to widen their roles and expand into the territory occupied by others. Therefore, the amendment perhaps goes wider than required. However, I can give the Committee an assurance that the Government will be alert to any emerging confusion about respective roles and to the need to ensure that appropriate steps are taken to address such an eventuality. At this stage, however, there is no reason to suggest that there will be

Column number: 362 
any problems. We will certainly focus on this point as part of the process of implementing the provisions in this part of the Bill. 

I share the desire to get the relationship between the surveillance camera commissioner and the Information Commissioner off on the right footing. Indications we have received in relation to evidence to the Committee certainly do not suggest that there will be any problems. I hope that in light of my comments and the debate I hope that the hon. Member for Gedling will be minded to withdraw the amendment. 

Vernon Coaker (Gedling) (Lab):  Good afternoon to you, Mr Caton, and to everyone on the Committee. I will withdraw the amendment. I think what the Minister said was helpful, although he was not quite right to say—I may have misunderstood him—that the witnesses did not express considerable concern about the possible duplication or confusion of roles between the surveillance camera commissioner and the Information Commissioner. 

It is worth reminding the Committee, for example, of what the Law Society said: 

“The potential for conflict with the Information Commissioner’s existing CCTV code of practice and between the Information Commissioner and the Surveillance Camera Commissioner have been pointed out by commentators and is of concern to the Society. More importantly, the Information Commissioner has expressed concern that ‘it may be difficult to reconcile different legislative approaches within one document, especially where there are differences in territorial scope, sectors covered, compliance obligations and enforcement mechanisms’.” 

That was the reason for the Opposition amendments; we are trying to push the Minister to give some clarification about how he sees things developing. 

The Minister will correct me if I am wrong, but it was interesting that he thought that one code might be preferable, and that will perhaps have to be determined in the future. I think that one code would be preferable. I take the point that the Information Commissioner’s code of practice is not a legally enforceable document and that the commissioner’s legal powers come from the Data Protection Act 1998. I understand that, but people will still be confused about whether they are seeking to comply with legal obligations under the Act or simply a voluntary code monitored by the surveillance camera commissioner. 

As I say, therefore, possible areas of confusion remain, notwithstanding the Minister’s comments. However, he has said that he will keep the matter under review and reflect on the comments that have been made. That will help not only the Committee, but those who follow our proceedings. We all want the Bill to be improved as it goes through the House and to work. Some further reflection and thought on how to proceed are necessary. However, on that basis, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  I have a couple of questions about the commissioner. Clause 34(1) says that the Secretary of State “must appoint a person”. The impact assessment said that the cost would be about £250,000. What does the Minister expect the surveillance camera commissioner’s

Column number: 363 
salary to be, how many staff does he expect the commissioner to have and how much will they be paid? Where will the office be based, and how much does he expect the office costs will be for the post? 

James Brokenshire:  We have sought to mitigate costs relating to the surveillance camera commissioner by telegraphing clearly that we expect the role to be fulfilled by the forensics commissioner. That is the current intention. We examined the matter carefully to decide the most suitable way forward. 

The hon. Member for Gedling is right that the explanatory notes and the impact assessment indicate that the cost of the role of surveillance camera commissioner is expected to be about £250,000 per annum. That is intended to cover all the costs of the office: in other words, staffing and any other related costs. I am certainly happy to consider whether we can provide more detail in the form of a further breakdown, if one is available, of how the £250,000 will be made available. As I said, the £250,000 is the current cost of the interim CCTV regulator under existing arrangements. My understanding is that we are not seeking to extend that and that it will be captured within the existing remit. That is effectively where the number came from and how it has been calculated. If I have any further detail, I would be pleased to provide the hon. Gentleman with more information, but as I understand it, that is the cost of the existing, interim CCTV regulator, and it is reflected in the cost of the new post of surveillance camera commissioner. In other words, we are putting the interim into the form contemplated for the purposes of the Bill. 

Question put and agreed to.  

Clause 34 accordingly ordered to stand part of the Bill.  

Clause 35 

Reports by Commissioner 

Vernon Coaker:  I beg to move amendment 84, in clause 35, page 23, line 42, after ‘commissioner’, insert 

‘to include an assessment of whether the code of practice should be extended to apply to all operators of surveillance camera systems’.

This is a simple amendment dealing with the commissioner’s reports. It is laid out in the clause what the commissioner must produce in their reports. The amendment seeks to clarify the Government’s thoughts about what role the commissioner will have with respect to any extension of the code of practice on surveillance cameras. As we heard this morning, the Bill deals only with police and local authority cameras, which excludes about 1.6 million or 1.7 million cameras. At some point, no doubt, the Government will assess whether the code of practice should be extended to apply to other cameras. 

I am interested to know what role the Minister sees for the surveillance camera commissioner in that. Obviously, the Secretary of State will have an order-making power, but the surveillance camera commissioner is clearly somebody we would want involved. Will that be done through the report? Clearly, there will be consultation and liaison with the surveillance camera commissioner; I cannot imagine that happening without it. What are the Minister’s thoughts on the role of the commissioner in extending his or her remit with respect to the surveillance camera code? As I say, it is a simple amendment that seeks to obtain some clarification from the Minister about his intention with respect to the code. 

Column number: 364 

James Brokenshire:  I am grateful to the hon. Gentleman for the probing nature of his amendment, because as it is drafted the amendment probably seeks to have a different effect in seeking to make all operators of such systems come within the ambit of the code. I do not think that that was his intention. I think that his intention was more to test out the role of the commissioner. 

Clearly the annual report that the surveillance camera commissioner provides will be important and the commissioner will determine the content of the report. The Bill provides that the commissioner may give advice about the code, including changes to it, and we will certainly value the commissioner’s views about how the code may be developed. The commissioner’s reports will be one of the principal means by which Ministers and other interested parties can assess the impact of the code of practice. They will enable the Government to keep the code under review and to determine whether changes to it—wider changes such as adding organisations that are required to have regard to the code, or changes to other legislation that might be needed—can be properly informed by the report and the analysis of the camera commissioner in the operation of the code, including how it is working and how its reach and ambit are being applied. 

The report will be an instructive and formal means for the commissioner to telegraph clear recommendations about the code, its application and whether it is achieving its intended objectives. Clearly Ministers will give careful consideration to any recommendations that might be made. Indeed, that is why we have not been prescriptive and said that the Bill will contain this or that. It is very much for the commissioner to determine what should be incorporated within the code. 

The answer to the hon. Gentleman’s question about the code is that, yes, it will help to inform consideration of any extension of the powers in the Bill and of the order-making powers specifically, and more generally it will help to inform consideration of regulation in this field. 

It is important that the surveillance commissioner has the formal route to do that, although as the hon. Gentleman rightly pointed out there is likely to be ongoing dialogue and engagement, as I have already seen for myself, in the form of discussions with the interim CCTV regulator and other commissioners in this field. I anticipate that that will continue, albeit that the reports will be a formal means of putting issues on the record that will be useful to inform debates in this House and elsewhere about the development of policy. 

Vernon Coaker:  After those comments from the Minister, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  I will speak briefly on this clause, as I want to speak at greater length on one or two of the clauses that we will debate later. Regarding these reports from the commissioner, which will be laid before Parliament, does the Minister think that it would be helpful if they were debated by Parliament? Given the importance of the measures in the Bill, does he think that it would be helpful for these particular reports to be debated by

Column number: 365 
Parliament rather than just being laid before Parliament? I do not want or expect a provision for that to be in the Bill. I just wonder whether the Minister has a view about whether it would be helpful if the reports were debated by Parliament. 

James Brokenshire:  Certainly, I very much welcome debates about the issue of privacy and how we can safeguard privacy further. Obviously, as a member of the Executive I would not wish to prescribe to Parliament how it should conduct its affairs and I am sure that the hon. Gentleman would understand the reasons for that and why Parliament rightly asserts its own views in relation to a number of the issues, with Back-Bench debates and everything like that. However, he raises a fair point about debates and discussions. 

4.15 pm 

Vernon Coaker:  Has the Minister never supported a guillotine? 

James Brokenshire:  I am sure that the hon. Gentleman has done so. [ Laughter. ] I will not tempt either of us to go down that route. It is important that we continue to have debate and discussion in this House and elsewhere on the application of codes of practice and on privacy issues more generally. It will be for Parliament, however, to decide what it considers appropriate in terms of formal debate. I am sure that members of the Committee and other hon. Members will determine what they would like to do in response to the reports that will be provided to Parliament by the surveillance camera commissioner. It is important for Parliament to be properly informed in that way. 

Question put and agreed to.  

Clause 35 accordingly ordered to stand part of the Bill.  

Clause 36 ordered to stand part of the Bill.  

Clause 37 

Judicial approval for obtaining or disclosing communications data 

Amendment made: 4, in clause 37, page 26, line 38, leave out ‘because it deals’ and insert ‘and would deal’.—(James Brokenshire.)  

Question proposed, That the clause, as amended, stand part of the Bill. 

Vernon Coaker:  We move to an important part of the Bill, which deserves careful consideration by the Committee. We will reserve judgment until after Report, because we want to hear how the Government see the mechanism working before we consider how we might best respond to it. Even if the measures are the right thing to do, it would be interesting, as I have said before, to know what evidence the Government are using to take the business forward, so that we have judicial approval for obtaining and disclosing communications data. 

Column number: 366 

I cannot remember whether you were in the Chair, Mr Caton, or whether it was Mr Streeter, during one of the most entertaining witness sessions that I have been privileged to attend. I do not know whether my hon. Friends agree, but I thought that Sir Paul Kennedy was an outstanding witness. He was not afraid to stand up for and say what he thought, or to take on the massed ranks of the state when they tried to encourage him to believe that he had got it completely wrong. We shall come on to discuss the interception of communications commissioner; I hope that all hon. Members have read his submission, because it is extremely interesting. As we will see when we debate the next clause, he is not the only commissioner who has some interesting comments to make. 

I was interested to read the Government’s impact assessment relating to the Regulation of Investigatory Powers Act 2000 and local authorities, which was signed off by the Minister. Frankly, I was astounded by the first couple of sentences. The impact assessment lays out why the Government are changing the legislation, why they believe that the current RIPA arrangements are wrong and the system needs judicial approval, and why improvements must be made in the system. In case people have not had the opportunity to see the assessment for themselves, in answer to the questions, 

“What is the problem under consideration? Why is government intervention necessary?”,

it states: 

“The coalition is committed to stop local authority use of RIPA…unless it is for serious crime and approved by a magistrate.” 

This is the important sentence: 

“This stems from perceptions that local authorities have misused RIPA powers particularly in relation to low level issues.” 

Where on earth have any Government started to legislate in such a serious area on the basis of perception? It is astonishing that the Government believe that because there is a perception that there is a problem, they must legislate. There is no evidence of a problem, but the assessment states that there is a perception of one, so the Government have chosen to legislate. 

John Robertson (Glasgow North West) (Lab):  Does my hon. Friend not find this somewhat confusing? When we talked about CCTV this morning, Government Members were totally against perception. Now they are talking about writing the Bill on perception. 

Vernon Coaker:  My hon. Friend makes the point well. We are talking about legislating on the basis of perception. It is in the second sentence of the impact assessment. The Minister is a capable and good Minister, and I suspect that if he read that word again, he would change it. Has the hon. Member for Northampton North ever said to a judge in court, “Look, your Honour, the perception is this.” He may have said it, but the judge would have said, “This court makes its judgments on the basis of evidence, my learned friend.” Yet here we are, discussing one of the most serious pieces of legislation in one of the most serious areas of work for the local authorities, and we are legislating on the basis of perception. Frankly, I find that astonishing. I am labouring the point, because I was so incredulous when I read those words a few days ago. 

Column number: 367 

Then we come to the interception of communications commissioner. The Government have just totally ignored what he said. He may be wrong, but it is quite incredible to see the interception of communications commissioner completely and utterly drive a coach and horses through the Government’s proposals. I do not know when his term comes up. Hopefully, he will be reappointed on the basis that he is an honest and independent judge who is not afraid to tell the Government what he thinks even if it is not what the Government want to hear. 

It is worth going through some of the points that the commissioner makes. Again, with respect to communications data and local authorities, the Government are legislating because the perception is that these powers are misused. We are talking about communications data now, but in the next clause we come to directed surveillance. The interception of communications commissioner says: 

“I am aware that some sections of the media continue to be very critical of local authorities and there are allegations that they often use the powers which are conferred upon them under RIPA inappropriately.” 

Just listen to the language. 

“However, I can categorically state that no evidence has emerged from our inspections that have taken place between 2005 and 2010, which indicates that communications data is being used to investigate offences of a trivial nature, such as dog fouling or littering.” 

We have the perception and then we have the interception of communications commissioner saying that there is no evidence for a change. We may have read the media stories, but we should legislate on the basis of evidence. 

The commissioner goes on to talk about judicial approval. There is a case for introducing judicial approval. What I am concerned about is that it is being done on the basis of a perception rather than on the basis of evidence or anything else. The commissioner says that he believes that introducing judicial approvals will result in a reduction in the number of requests that local authorities make. Does the Minister agree? Does he think that the interception of communications commissioner is right or wrong? Does he think that the provision will undermine local authorities? We talk about confidence. Local authorities must continue to have the confidence to use this tool, because many of them find it useful in tackling things that bother local people, local communities and local groups. No one wants to see the powers abused or inappropriately applied for. On the other hand, our constituents benefit from the use of such tools as the interception of communications data. We have to be careful that in legislating to improve the process, we do not cause local authorities to simply lose confidence and not use the powers even when they believe them to be appropriate. 

The interception of communications commissioner believes that judicial approval is totally unnecessary. I do not agree with him on that; I am not just agreeing with everything he says, but will the Minister explain why a judicial authority could not make a wrong decision? Magistrates are not infallible. We are talking about the small number of cases when RIPA has been misused under the existing authorisation process, and although there is another safeguard, it is perfectly possible that under the process, a magistrate may give an authorisation to an authority when it is not appropriate to do so. 

I again remind the Committee that the Bill is a public reading stage pilot, so we need to be interested in what

Column number: 368 
the public are telling us. The Government rejected concerns raised by members of the public who responded during the public reading stage about the new process being bureaucratic. Will the Minister confirm that in addition the process does not have to be approved in court and that it may be an out of court decision? The authorisation process that I thought we were agreeing to is that, because it is so serious, an interception of communications data applied for by the local authority must be signed off not only by a senior official of the authority, but by a magistrate in some sort of formal judicial process in the court. However, it seems that it may be done by a magistrate outside the court. If that is wrong, the Minister’s officials have got it wrong when replying to the public reading stage, because the public reading stage document states that the process may be an out of court disposal. How would that work? How would it happen? Who would someone go to? I find it difficult to understand how that would happen. Is there a risk that the application would just be rubber-stamped? How many magistrates does the Minister envisage would be involved? How would they be trained? Would there be special magistrates who made the authorisation? Could we go to any magistrate, or would there be a few magistrates in every area? Would there be an identified RIPA-trained, skilled and authorised magistrate, or could it be just anyone? If the process can take place out of court, would the applicant go to a magistrate’s house, or send them a letter or an e-mail? How would one get an authorisation? 

This is the point of Committees. It is all very well for us to say that judicial approval is wonderful; as I have said to the Minister, in many respects someone could say that if there was judicial authority to do something, some of the problems that have emerged might not have happened, but where is the evidence for that? What will happen? How will the process work? What will go on? What does judicial approval mean? It may mean something different in Northern Ireland and in Scotland. What is the process that will be gone through? 

The interception of communications commissioner also points out that it is quite possible that local authorities would use other laws available to them to achieve the same things, such as the Social Security and Fraud Act 2001 or the Enterprise Act 2002. Does the Minister agree that that is a risk? We have no particular evidence for that, but what monitoring would take place to see if there was a problem? We must ensure that local authorities do not circumvent the measure and use other powers that are available to them, even though they are not RIPA powers. 

4.30 pm 

Does the Minister think that judicial approval is as important for communications—a point made by the interception of communications commissioner—and that communications data should be treated in the same way as directed surveillance under clause 38? Could they be treated differently? Are communications data not as serious, or does he see both elements as serious as each other, and therefore it would be inappropriate for there to be a different regime for local authorities for communications data and directed surveillance? 

In his final sentence, the interception of communications commissioner states: 

“I regard the proposed measures in the Bill as wholly unnecessary and unjustified.” 

Column number: 369 

Whatever the rights and wrongs of what he said, and we can debate it, I have not seen anything so strongly worded from a commissioner about a piece of legislation proposed by the Government. 

Tom Brake (Carshalton and Wallington) (LD):  I agree with the hon. Gentleman on one point; the interception of communications commissioner’s evidence was certainly entertaining. Does the hon. Gentleman not acknowledge, however, that the commissioner accepted that many of the concerns around RIPA, such as dog fouling and using RIPA powers to identify whether someone lived where they claimed so that they could access a school place, were not within his area of responsibility? Also, could the hon. Gentleman explain why his right hon. Friend, formerly at the Home Office, referred to “dustbin Stasi” in relation to the use of RIPA powers? Did she not believe that there was a problem too? 

Vernon Coaker:  In answer to the first point about the use of powers that the interception of communications commissioner does not have responsibility for, I refer the hon. Gentleman to the next clause. If we go through what the chief surveillance commissioner says, he is as scathing of the Government’s proposals as the interception of communications commissioner is. Of course the interception of communications commissioner does not have responsibility for some of the things that the hon. Gentleman infers are matters of concern, but the commissioner who does have responsibility for such matters has said that he does not believe there is a problem in that respect. 

As for the comments of the former Home Secretary, I believe she was referring to an incident when she felt that the powers had been misused. I did not say that there had never been an example of the powers being misused. As I said this morning in relation to CCTV, I am sure that we could find an example of a power under clauses 37 or 38 being misused. But where is the evidence that because of one or two isolated incidents, a whole swathe of legislation needs to be swept away and changed? All I am saying is that the Government, in the second sentence of the impact assessment, talk about perception. They do not say that there is evidence of significant abuse of RIPA powers so an additional safeguard needs to be placed in primary legislation to amend RIPA to ensure that it cannot be abused in the way that significant numbers of local authorities have done. 

These matters are serious. The judicial process that needs to be gone through—a local authority applying for interception of communications data, a senior official agreeing it and then going to the magistrate—is completely unclear. The provisions are laid out in the Bill as though it is simply a case of going to a magistrate and the magistrate deals with the application. What I want from the Minister, and what the Committee deserves, is clarity about how the process will work and what an out of court disposal means. Lastly, why did the Government say in the impact assessment that they were changing the law because of a perception rather than on the basis of evidence? 

James Brokenshire:  The hon. Gentleman has taken an interesting approach given that the shadow Home Secretary said: 

Column number: 370 

“I also agree that in some cases the implementation of the Regulation of Investigatory Powers Act 2000 has gone beyond Parliament’s original intention and that further safeguards are needed.”—[Official Report, 1 March 2011; Vol. 524, c. 217.] 

Her intent was clear: the issues were important and further protections were required. The hon. Gentleman’s comments at the outset—that they would leave judgment on the matter until Report—seem to be telegraphing a movement away from that statement of clarity from the shadow Home Secretary on the provisions in RIPA. However, the hon. Gentleman made a number of relevant points and questions and it is fair that I address them. 

The point at issue, on which the hon. Gentleman is most concerned, is the underlying nature of what we seek to achieve. Ultimately, that comes down to public trust and confidence in how the system is being used. The hon. Gentleman was forthright in debates this morning about ensuring that the public were involved and that there was a sense of public engagement. It is important that the public remain confident. To return to the oft-quoted debate that he and I had two years ago, his view was that ensuring that public confidence was maintained was a key part of what was required in relation to RIPA. He said: 

“The key in the RIPA framework is the test of necessity and proportionality.”—[Official Report, 19 March 2009; Vol. 489, c. 338WH.] 

We seek to have an external safeguard to ensure that that focus on necessity and proportionality is maintained, and that the provisions in RIPA that he rightly identifies as important to local authorities—we will come to the separation of communications data and the other techniques that are available under RIPA—retain the continuing trust and confidence of the public and the confidence of local authorities in how they seek to utilise the powers that remain available to them. 

The judicial approval process will apply to local authorities carrying out each of the relevant functions under RIPA. The hon. Gentleman identified concerns that the previous Government had about the use of RIPA for directed surveillance and other techniques. He will be aware of the comments of the then Home Secretary, Jacqui Smith, and the right hon. Member for Delyn (Mr Hanson). He stated: 

“Nevertheless, a small number of local authorities have authorised techniques under RIPA in circumstances when most of us would say it was not necessary or proportionate for them to do so.”—[Official Report, 4 November 2009; Vol. 498, c. 43WS.] 

It appears that there is recognition that there is an issue. It appears, from what the hon. Gentleman’s colleagues and various others have said, that there is recognition that further checks and balances are required in order to ensure continuing trust and confidence in the fair, appropriate and proportionate use of all of the techniques under RIPA. That is precisely what the measures in clause 37, and those that we will come to in clause 38, are intended to safeguard and provide, by ending local authority self-authorisation of RIPA techniques and adding a judicial approval mechanism to the local authority use of communications data and the other techniques that are available under the Act. 

It is important to note that the proposals were carefully considered and were not introduced in isolation. They form part of the review of the broader counter-terrorism and security powers undertaken for the Government by Lord Macdonald of River Glaven, who gave evidence to the Committee at the outset. I remind hon. Members of what he said in his report: 

Column number: 371 

“The review’s conclusion that a magistrate’s approval should be required before a local authority can conduct any activity under RIPA is well evidenced. Such a reform would be a proportionate response to public concern and it would provide a necessary degree of reassurance that local authorities’ use of surveillance is at appropriate levels and properly policed.” 

That is at the heart of clause 37 and of the points at issue. 

The hon. Member for Gedling asked a number of fair questions about how the proposals would work in practice and what their likely impact would be. He highlighted the issue of whether local authorities might wish to use other legislation to skirt around or circumvent the proposals and protections being built into the Regulation and Investigatory Powers Act by virtue of the amendments. Work is being undertaken to streamline access to communications data. As the recommendations in our recent counter-terrorism review concluded, Departments, agencies, regulatory authorities and community safety partnerships should be consulted, to establish the range of non-RIPA legislative frameworks by which communications data can, in principle, be acquired, and for what purposes, and such a consultation is currently taking place. The legal frameworks should then be streamlined to ensure that as far as possible RIPA is the only mechanism by which communications data can be acquired. Any required legislative amendments will be introduced shortly, following the conclusion of the analysis and consultation. 

The hon. Gentleman’s point is fair and valid, in that there is concern that a safeguard is built into one regime but other regimes might apply. In ensuring that there is clarity and certainty and, ultimately, an assurance for the public about how the techniques are utilised, it is right and appropriate to view the context of the proposals against other potential frameworks. 

The hon. Gentleman asked how we envisage the magistrates approval mechanism working. We envisage that a representative of the local authority will attend the magistrates court, when it is not in session, for the magistrate to assess the authorisation. We are also assessing the feasibility of using electronic means for the magistrate’s approval on the authorisation of communications data alone, and are carefully considering that in conjunction with the Ministry of Justice and HM Courts Service. The shadow Home Secretary was keen to underline, and the hon. Gentleman was right to underline, that we do not want the mechanism to be overly bureaucratic but rather to provide an independent check and balance such that the powers can be utilised in a way that adds to the steps, authorisations and consideration that a local authority already undertakes in introducing one of these proposals. 

On the question of which magistrates will govern the process, there are two types of magistrate—stipendiary magistrates or district judges, and lay magistrates. There would be insufficient numbers and coverage if we were to exclude lay magistrates from the authorisation process, and with the Ministry of Justice we are carefully considering providing the necessary assurance by ensuring that comprehensive training in the process is provided to all magistrates. Having independent scrutiny of the authorisation when it happens will be an additional safeguard. We can look to the existing commissioners and the work that they undertake, but that is very much after the event. It is looking back at what has happened.

Column number: 372 
It is looking back on patterns and authorisations that have already taken place. We intend to provide a separate mechanism to ensure a check and balance as well as an independent safeguard at the time an application is being considered. 

4.45 pm 

Vernon Coaker:  Will the Minister explain how the decisions of the magistrates will be monitored? Will the commissioners have responsibility for that? 

James Brokenshire:  No, the commissioners will not have responsibility for the work of the magistrates. As the hon. Gentleman will understand, the judiciary is independent of the Government and there is an important point to make about ensuring that magistrates are kept separate and are very much seen in that judicial way, as any other judge would be. It would not be appropriate to have oversight by the commissioners in that sense of the work of the magistrates. They are fulfilling a different role and a different function. 

In essence, the commissioners will review the steps that the local authorities take to get to the point that the matter goes to court. The commissioners will still continue to fulfil an important role to ensure that the steps, procedures, processes and utilisation of the powers under RIPA by local authorities are used appropriately. The reports and the role of the commissioners will still absolutely stand, and they will be able to make recommendations in the same way as they do at present in respect of all the steps prior to going to court. We are just providing an additional safeguard with the magistrates being able to approve or disapprove the applications coming before them, which is the relevant point under consideration in clauses 37 and 38. It is a role distinct from that of the commissioners, but that they have continuing oversight of the adoption of the regime by local authorities will remain an essential part of the work engaged in such a way. 

It is worth reiterating that many in Parliament and outside it agree that a rebalancing at the local level needs to be effected to reflect more accurately what most people consider to be a sensible, measured and proportionate use of potentially invasive techniques. The introduction of a judicial authorisation process would help to achieve that important outcome and, accordingly, I commend the clause. 

Mr Tom Watson (West Bromwich East) (Lab):  I thank the Minister for his comprehensive answer to my colleague’s questions. The clause represents a substantial change to RIPA, action that the Minister has obviously taken on advice. He must be aware of the statements from the Director of Public Prosecutions and the assistant commissioner of the Metropolitan police that RIPA requires clarifying in the area of the illegal interception of voice mail messages. Has he received advice to amend the Bill to change that series of sections under RIPA? If not, will he consider doing so at a later stage? 

James Brokenshire:  I am certainly not aware of advice that has come forward in relation to such provisions. As the hon. Gentleman will well appreciate, there is a continuing police investigation into several issues, so I shall reserve my comments until the outcome of those investigations. I am sure that he will return to the matter later in our proceedings. I appreciate that it is sensitive. 

Column number: 373 

Mr Watson:  The DPP and the Metropolitan police are on record as saying that they require clarity, as, I think, is the Information Commissioner. That matter is not related to the criminal investigation. They have stated publicly that the Act can do with clarification. It strikes me that the clause might be the place where the Government can make such clarification. I am sure that it would receive universal acclaim, even perhaps from national newspapers. 

James Brokenshire:  I am certainly not aware of any formal request having been made to clarify RIPA, but should any such request come forward, we will obviously consider it in the usual way. 

Question put and agreed to.  

Clause 37, as amended, accordingly ordered to stand part of the Bill.  

Clause 38 

Judicial approval for directed surveillance and covert human intelligence sources 

Vernon Coaker:  I beg to move amendment 103, in clause 38, page 27, line 32, at end insert— 

‘(c) the seriousness threshold has been met, defined as offences that carry a maximum custodial sentence of at least six months and subject to limited exemptions relating to the under-age sale of alcohol and tobacco.’.

The Chair:  With this it will be convenient to discuss new clause 12—Independent inquiry into use of investigating powers under RIPA—  

‘(1) The Secretary of State must establish an independent inquiry into the use of investigatory powers under the Regulation of Investigatory Powers Act 2000.

(2) The inquiry will examine in particular the use of directed surveillance and possible limits to its use.

(3) The inquiry will examine possible exemptions to the Act relating to the under-age sale of alcohol and tobacco and anti-social behaviour.

(4) Recommendations from that enquiry shall be reported to Parliament.’.

Vernon Coaker:  This is a significant clause. We have moved on from communications data to directed surveillance. Amendment 103 deals with the seriousness threshold for the authorisation of applications for directed surveillance by a judicial authority. New clause 12 also mentions the seriousness threshold and one or two exemptions. 

The Minister’s answer on how he envisaged the judicial process working started to answer some of the questions that people will be asking—that is one reason for having a Committee—and, in that sense, what he said was helpful, because it also applies to how the judicial approval system will work in the case before us. The Minister was very careful in the words that he used when he said that the Government are considering how these measures could be used and whether they would

Column number: 374 
be appropriate, which is exactly the right thing to say, but I would be interested to see how electronic authorisation would work. 

In new clause 12, we attempt to get at the issue that my hon. Friend the Member for West Bromwich East was talking about. The clause amends the relevant parts of RIPA which deal with directed surveillance and communication data in relation to local authorities. Some of the submissions that we have received and, as my hon. Friend said, some of the comments that other people have made indicate that there is a need for a broader review of RIPA and of how this whole regulatory framework works. 

That is why we tabled new clause 12. Essentially, we need to know from the Minister why the Government seem to have ruled that review out. They seem to have said that RIPA is working very well, and it might be—I am not saying that it is or it is not. However, the purpose of the new clause is to get at why they feel that there is no need for a broader review of RIPA. Why do they feel that it works well as it stands with respect to the vast array of public authorities that can use the directed surveillance powers, but that there is a real problem with local authorities, with the result that they are going to amend the legislation in that regard? 

We have no evidence that there is a real problem. There is evidence that a limited number of authorities misuse the powers and cause a problem, but there is no evidence of widespread abuse. As I told the Minister, I agree that there is a need to look at RIPA because of the inappropriate use made of it by one or two authorities and that there is a case to be made for judicial approval. If we are going to have additional approval, that is probably a better system than some of the others that were suggested, such as one involving the commissioners. I agree with the arguments in the impact assessment that if we are to have an additional safeguard, it is probably better to have a judicial safeguard than one provided via the commissioners. However, the Government have provided limited evidence to explain why they are doing certain things, and that has been a recurring theme throughout the consideration of the Bill. An independent inquiry would make a significant difference. 

On the use of directed surveillance, the memorandum from the chief surveillance commissioner points out: 

“In relation to local authorities, the general picture over recent years has been of improving standards in and diminishing use of directed surveillance”. 

The use of communications data has increased, but the use of directed surveillance, with which clause 38 and the amendment deal, has decreased. 

The surveillance commissioner pointed out that the number of authorisations decreased from 12,000 in 2006-07 to about 8,000 in 2009-10. Fewer than half of those were authorised by local authorities, yet the Government’s proposals in the Bill and their amendments to the RIPA legislation deal specifically with local authorities. The surveillance commissioner said that much of the criticism of local authorities has been wrong and ill-informed. Will the Minister comment on the surveillance commissioner’s remarks? He said: 

“I know of no occasion when covert surveillance has been improperly used in relation to dog fouling.” 

Either the commissioner is wrong, or sometimes the way that is used is wrong. 

Column number: 375 

The commissioner went on to say that 

“isolated examples of incompetence rarely provide a sound basis for changing procedural structures.” 

He asks—this is why I think an independent inquiry is needed—why local authorities should be singled out. Do the same concerns not apply to RIPA authorisations of directed surveillance for other public authorities? Abuses of that process of which we are unaware might well be taking place. We do not know, although we do know that the surveillance commissioner said that it is 

“not obvious why local authorities should be” 

singled out. 

That is important. We can see the danger of legislating on the basis of perception. The surveillance commissioner says: 

“I know of one Government Department whose practices currently cause me more concern than any local authority”, 

yet the Bill is completely silent about that. It does not say a word about it. That is why my hon. Friend the Member for West Bromwich East asked whether a broader look at what is going on was not needed. Why does the chief surveillance commissioner say that? The Government are legislating with respect to local authorities, and we have accepted that that may well be necessary, but other abuses are causing the person who is responsible for assessing, independently of Government, whether those powers are being used properly to say that other public authorities and a Government Department cause him more concern. However, the Government do and say nothing about it. We need to understand why the Bill deals only with local authorities. The inquiry that I propose would consider the matter more broadly. 

An independent inquiry into the use of the regulatory powers would consider the use of directed surveillance and possible limits on it. The Minister and the Government have correctly said that directed surveillance needs to have a serious crime threshold, identifying six months. How did we arrive at six months as the definition of a serious crime threshold? The Police Act 1997 defines a serious crime as one carrying a three-year sentence or more. A crime is either serious or it is not. How did we arrive at six months as a definition? Why not three months, nine months or a year? The Minister is clearly worried about some of the provisions himself. The Bill as it stands will provide an exemption for alcohol, and particularly under-age sales of alcohol and tobacco, which is sensible in itself. I would be interested to hear the Minister’s justification for six months, and why that is considered to be the important threshold for the judicial authority being given to the local authority by the magistrate. 

5 pm 

Michael Ellis (Northampton North) (Con):  The maximum penalty that magistrates may impose for an offence is six months, and that may be part of the reasoning for setting that as the limit. 

Vernon Coaker:  That may well be the case. The point is whether that is appropriate. Why was it not three months? Why have the Government gone for the maximum of six months for the magistrate? Is it six months because, as the hon. Gentleman says, six months is the maximum that a magistrate may give in such circumstances, so they must have six months although we think it should be more? The justification may be as simple as

Column number: 376 
that, but why is it not less, and is there no exemption when the magistrate thinks that it is not appropriate for them to decide and that the matter should be looked at by others? 

I turn to the surveillance commissioner—this is why this Committee process is important. Is it the case that, as he says, although 30,000 magistrates will be trained, there has been no approach to the Judicial Studies Board to start to prepare for the increased responsibility that will be placed on them? If there was an inquiry, we could look at the impact on magistrates of the judicial approval requirement. 

It is clear that the clause makes significant changes to RIPA concerning the authorisation process. We still have no evidence of communications data, apart from one or two examples. We now go to directed surveillance, and again there are only one or two examples. The Government have failed to say why, because there are one or two isolated examples concerning local authorities, it is necessary to take action. The independent commissioner said that there are one or two examples in other areas, but the Government believe that it is inappropriate to take action with respect to them. That is laid out in the commissioner’s report, and is why an independent inquiry, as new clause 12 suggests, would be appropriate. That goes back to the point made by my hon. Friend the Member for West Bromwich East that many people are saying that a broader review is needed. 

The Government have put the measure in the Protection of Freedoms Bill to say, “Look at us. We are taking action to protect people’s freedom.” The judicial approval mechanism may be a way of doing that, but all sorts of other things need to be raised, which is why new clause 12 is important. 

Mr Watson:  In trying to build my earlier case to the Minister, I strongly endorse new clause 12. If RIPA is seen in the context of the past 11 years, it was incredibly controversial. Not many members of the Committee were around back in 2000, but there were demonstrations, and there were probably speeches at the Liberal Democrat conference condemning the illiberal nature of the then Blair Administration. It is not unreasonable that, 11 years into the legislation, which is receiving almost meccano-like surgery in the Bill, we take a slightly closer look at it and try to decide where it has worked and where it has not. A review would work very well, not least because the aspect of most interest is where the Government are choosing not to amend it. 

I mentioned to the Minister earlier that the Director of Public Prosecutions and the assistant commissioner of the Metropolitan police, John Yates, had said that there is a lack of clarity in the parts of the Bill that deal with phone hacking. I said I was sure that the Information Commissioner had said something on this issue. Only this morning in this House, the Information Commissioner told the Home Affairs Committee that RIPA was very unclear on the potential misuse of data, and on blagging and hacking. He went on to say that the main issue is that we have a law and a regime around hacking, blagging and interception that is very unclear and very uneven. 

It strikes me that a review would allow the Minister to read the statements of the people who work for the Government. I have slightly got him on the hop now, because I have an iPhone 4 and he has a file full of notes. 

Column number: 377 

The Chair:  Order. The hon. Gentleman should not be using a mobile telephone in Committee. 

Mr Watson:  My sincere apologies, Mr Chairman. What a ridiculous anachronism that is. However, I will respect your ruling straight away. 

I say to the Minister that if the Information Commissioner himself is saying that this law is flawed and needs to be amended, either there is a very sensible proposal from my hon. Friend the Member for Gedling to have a root and branch review, which will not do any harm, or the Minister himself could help the members of this Committee who take the Bill seriously by perhaps going away and considering whether he can at least help some of these commissioners who work for the Government. 

I understand that the Information Commissioner also said that the Ministry of Justice is considering introducing legislation to fine people £5,000 for blagging. Presumably that would be on the basis of an amendment to RIPA, which might form a Government amendment later in the stages of this Bill. These things happen in the process of debating Bills. There is a lack of clarity in this particular area. I am not trying to put the Minister on his mettle now, but I would at least like to get out of him an agreement to go away and look at what everyone has said about this material. If he thinks that it is worthy of an amendment, he can come back to us with a proposal. 

James Brokenshire:  Obviously a number of points arise from this debate about clause 38. One of the first points that the hon. Member for Gedling made was on the necessity, and the use of the examples relating to dog fouling and so on. I know that the previous Home Secretary, Jacqui Smith, highlighted those examples as some of the abuses of the system. Indeed, in evidence to a Lords Committee the hon. Gentleman himself highlighted a potential concern in relation to the misuse of RIPA. 

However, I can refer the hon. Gentleman to the case of Poole council, which I am sure he will be aware of. The council used directed surveillance powers to investigate whether a particular individual lived within the catchment area of a local school. In that case, the investigatory powers tribunal concluded that the surveillance was not proportionate and could not have been believed to be proportionate. The tribunal further concluded that the council had acted in a way that was incompatible with the complainant’s article 8 rights. 

That was a pretty damning verdict and when the public continue to hear about the use of surveillance in investigations of littering or other minor offences, the issue of public confidence becomes even more important. Local authorities are there to serve their communities. If they are to do that effectively, they must maintain the trust and confidence of the people that they serve. That was very much the emphasis, understanding and recognition of the Local Government Association in some of the comments that they have made. They recognised the need to take people with them in relation to the use of cameras, so that confidence in the system is maintained through this mechanism, by virtue of the oversight that we are seeking to provide with the additional interposition of the magistrate’s approval. 

When Lord Macdonald gave evidence to the Committee, he said that there had been no pattern of systematic abuse of RIPA powers by the local authorities. But it

Column number: 378 
only takes the occasional high-profile example of misuse of those powers to undermine all the many other examples of good practice. It is important to underline that in that way. 

I welcome these amendments on one level, to the extent that they recognise that there has been public concern about local authority use of RIPA techniques, particularly directed surveillance. The Government are committed to limiting local authority use of covert techniques under RIPA to serious crime, and to providing that the technique can only be used when approved by a magistrate. We want to stop local authorities being able to use these invasive techniques in trivial cases such as low-level littering, dog fouling or investigation of whether a family lives within a school catchment area. As such, we will be introducing a secondary crime threshold under secondary legislation along the lines of that proposed by amendment 103. That will limit local authority use of directed surveillance to investigations of offences that attract a maximum custodial sentence of six months or more, with the exception of offences related to under-age sales of alcohol and tobacco. 

Let me address the specific point on how the six-month period was arrived at. The hon. Member for Gedling pointed to the Police Act 1997 and asked why the definition of a sentence of three years imprisonment within that was not taken, using the parallel example there. We could have set the bar at the three-year level, rather than at the six-month level that we have in the Bill, but because of the nature of the offences and issues that local authorities face, if a three-year rule was imposed, it would rule out local authority use of RIPA techniques for any of their enforcement activities. Starting from that threshold would rule everything out. I do not think that any member of the Committee would judge that to be the appropriate way forward. 

In essence, what we have sought to do is take the alternative approach. If we want to ensure that there is not an abuse of power in using these significant invasive techniques for trivial matters—to approach it looking at it from that end of the spectrum—and given that local authorities have this responsibility for enforcing more than 100 separate Acts of Parliament, we looked at whether it should be a six-month or one-year threshold. On balance, we felt that six months was the right way to approach it in terms of dealing with the trivial. In other words, less than six months would be regarded as trivial. Rather than looking at it in the other direction, we considered the setting of the threshold in the context of the current pieces of legislation that are available to local authorities. 

We believe that that is the appropriate way to address it, albeit that arguments can be made on whether it should have been one year instead of six months. On careful reflection, we considered that the six-month threshold was the right one, with the clarification of the point on under-age sales of alcohol and tobacco and so on. The local authorities will continue to need to use some of the techniques under RIPA to crack down on what communities regard as serious, even though they may fall below the six-month threshold. 

A general point is being made on the need for a wider review. When I originally looked at new clause 12, which the hon. Member for Gedling tabled, I perhaps interpreted it in a narrow sense. I thought that it was intended to deal with the need to look at exemptions

Column number: 379 
around tobacco and alcohol. In doing that, I would have said that we should be acting upon this now and we can achieve this through an order-making power. I note, however, that his proposals seek a broad application, which in many ways mirrors the comments of the hon. Member for West Bromwich East. 

5.15 pm 

I am grateful to the hon. Member for West Bromwich East for highlighting the comments that the Information Commissioner made this morning, which the hon. Gentleman accessed via the BlackBerry. I would not have been able to access those comments myself in Committee. The Government will always look at issues that are raised by officials such as the Information Commissioner. I am not aware that a formal request has been made in relation to those points, but I understand that the Information Commissioner set out some concerns to the Home Affairs Committee this morning. I am sorry that I cannot respond more formally on that matter, not having had the benefit of looking at those comments yet. 

Mr Watson:  Will the Minister investigate and write to Committee members when he finds out what the situation is? 

James Brokenshire:  The Information Commissioner may wish to highlight his concerns in a more formal manner. He has obviously made some comments today, and the Government will always keep these issues under consideration. We have been minded to give effect to the coalition commitment to deal with concerns about local authority use of the Regulation of Investigatory Powers Act 2000, which is why the provisions have been framed as they are. It would not be appropriate for me to give a commitment today to embark on the formal review that the hon. Gentleman and the hon. Member for Gedling seek, particularly as other work is ongoing elsewhere. 

The hon. Gentleman may be aware of concerns about the use of covert human intelligence sources. The Independent Police Complaints Commission, the Serious Organised Crime Agency and Her Majesty’s inspectorate of constabulary reviews into recent covert human intelligence sources deployments by the police will help to establish the facts of what happened in those situations, and will help to identify what action should be taken to develop best practice. It would be premature to pre-empt the findings of such reviews if the argument is that we should look at RIPA in a broader way. 

It is likely that a number of reports and recommendations will be forthcoming. In the light of the evidence that has been provided to it by the Information Commissioner, the Home Affairs Committee itself might equally make recommendations to the Government. It is appropriate for Government to await those reports and recommendations before determining the correct way to respond and move forward. I would not like to pre-empt those. 

Mr Watson:  The Minister is being uncharacteristically coy on this matter. Legislation is not like buses; it only comes occasionally. If we miss our slots, change might not happen. Will he at least acknowledge that were he to consider those reviews and get his officials to brief

Column number: 380 
him, were he to consider what all the professional advisers to Government, the commissioners, the police and the Director of Public Prosecutions are saying about the use of RIPA, the Bill might be the vehicle by which to change legislation, and that it is logistically possible to do that at a later stage? 

James Brokenshire:  The hon. Gentleman will well appreciate that there are complex areas of law, and that a number of different agencies and organisations are engaged in the matter. As I have highlighted, I am not seeking to be coy; I am seeking to await the evidence and recommendations of various bodies that are looking at a number of different issues. I am sure that he would not wish to rush into legislative changes that may make the situation worse or may add less clarity to a situation and cause even more problems. It is incumbent on the Government, therefore, to consider carefully evidence that is provided to them on such matters of law before taking a pre-emptive step. I am happy to give way to the hon. Gentleman again in case he thinks that I am being too coy yet again. 

Mr Watson:  May I praise the Minister on the quality of his Bill team? They strike me as being extremely efficient, professional and able to deal at any moment with any demands that we throw at them, and they deal with such things at the last minute. I bow down to their ability. Were the Minister to listen to the Director of Public Prosecutions, who asked for RIPA to be clarified, and the Information Commissioner’s demands this morning that it needs clarity, and if the Metropolitan police had put pressure on those Bill teams, does the Minister agree that they are perfectly capable of coming up with an amendment that will stand the test of time? 

James Brokenshire:  On the proposals that we have introduced, there has been public consultation. Given that they have been part of the counter-terrorism review, we have had independent oversight of the provisions, and therefore they have been considered in a very measured and careful way. We will consider further information, requirements or requests in a careful and considered way. I can certainly give the hon. Gentleman that assurance. If requests are made by the Information Commissioner in terms of the evidence that he may have provided to the Home Affairs Committee, the Government will consider such requests in a careful and measured way to ensure that we examine how best to respond. I can certainly give the hon. Gentleman that assurance. Clearly, the Government will reflect on any formal approaches and examine the issues. 

The Regulation of Investigatory Powers Act 2000, which the hon. Gentleman has already highlight as being a sensitive piece of legislation, and as something that has various legal complexities attached to it, needs to be examined carefully and calmly. Rather than responding in a coy way, I am responding in a careful and calm way, reflecting on and respecting the issues. With those comments, I hope that the hon. Member for Gedling will be minded to withdraw the amendment. 

Vernon Coaker:  I should like to test the view of the Committee on new clause 12. It is an important amendment. In the Bill, the Minister already gives the Secretary of State the power to extend the judicial approval process

Column number: 381 
to other public authorities, should the Secretary of State in future decide that the Bill as it stands does not go far enough and the Bill should include other public authorities. I disagree with its being subject to a negative resolution procedure; it should be an affirmative resolution procedure that determines whether such judicial processes should be extended to other public authorities. If the Minister is giving himself the power to extend the judicial approval process should it be believed to be necessary in future, he must wonder whether the RIPA process as currently established is sufficient. 

As my hon. Friend the Member for West Bromwich East said, and as I said in my introductory remarks, the Government have in essence limited themselves to dealing with a specific problem on which they have felt buffeted—all Governments, including the previous one, feel buffeted—because of media pressure following one or two dreadful uses of RIPA powers by local authorities. This has been my theme all the way through the Bill—the Bill amends bits of legislation, but there is a missed opportunity. The Government are telling themselves that they need a big, fresh new look at everything, whether it is RIPA or DNA, or whether we need to establish one overarching commissioner under whom everything is brought together rather than having separate commissioners set up as laid out in the Bill. 

The amendment that I have tabled, which also stands in the names of my hon. Friends, again points out that many people believe that RIPA as it is now operating, a few years after it came into force, needs a review. Frankly, that is true of all legislation. When it operates, it has consequences that people do not always understand or that are unintended. The Bill is a missed opportunity. As my hon. Friend the Member for West Bromwich East and others pointed out, a number of people have said that now is the time to look at RIPA in the round, and not just to deal with the specific problem with local authorities. There are wider issues that need to be looked at and dealt with. New clause 12 would give the Government the opportunity to do that. Mr Caton, I would like to the press that to a Division, either now or at the appropriate time. 

The Chair:  We will deal with that at the appropriate time. You indicated that you will seek a Division on new clause 12. Do you intend to press amendment 103? 

Vernon Coaker:  No. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Amendment made: 5, in clause 38, page 29, line 40, leave out ‘because it deals’ and insert ‘and would deal’.—(James Brokenshire.)  

Question proposed, That the clause, as amended, stand part of the Bill. 

Vernon Coaker:  I would like to ask the Minister some questions regarding a couple of points raised by the Local Government Group; I could not see anywhere else to do it other than in a stand part debate. 

While the group does not object to the Government’s proposals to have councils in England and Wales apply to magistrates to get judicial approval, it believes that a

Column number: 382 
couple of issues need to be addressed. First, an officer of the council, rather than someone legally qualified, should be able to apply to the court to authorise the activity, as council officers generally can do when applying for warrants. If that is not the case, an additional cost will be imposed on councils and officers using covert surveillance, who already have the expertise and knowledge of the legislation to make the application appropriately. What is the Minister’s view of that? Secondly, what will happen when councils feel that it is appropriate to ask for an immediate response in an urgent case? Will the Minister comment on those two issues that the LGG has raised? 

James Brokenshire:  I can confirm that it is not our intention to require a solicitor or other legally qualified person to appear in court to seek the magistrate’s approval for an authorisation. The hon. Gentleman is right in saying that it is currently possible for local authorities to authorise their own officers to appear in court. We have identified that as one route of ensuring that the most appropriate person is able to seek the magistrate’s approval. As he said, the Local Government Group has raised a concern that requiring local authorities to authorise their officers to appear before magistrates will unnecessarily increase bureaucracy. I can assure him and, through him, the LGG, that we will continue to work with it to assess the likely impact, explore other methods of representation and devise an appropriate solution to the points that it has made; it has flagged a fair issue. 

I went through a number of the points raised by the hon. Gentleman in an earlier clause, regarding how we envisage the process of making applications to operate. We are determined to make it as least bureaucratic as possible, providing a safeguard in a sensible way. If there are issues on expedition, where an expedited application may be required, we will work with the Ministry of Justice and the Courts Service on how they may be accommodated practically. I think that the LGG has raised fair and reasonable points, and we will certainly continue to work with it on the practical implementation of the Bill and seek to address the points that it has flagged. 

Question put and agreed to.  

Clause 38 , as amended, accordingly ordered to stand part of the Bill.  

Clause 39 

Repealing etc. unnecessary or inappropriate powers of entry 

Question proposed, That the clause stand part of the Bill. 

5.30 pm 

Vernon Coaker:  This chapter of the Bill deals with powers of entry, and with the Government’s desire to show again that they are protecting freedoms by abolishing all sorts of powers of entry that have existed for years. We have all been so bothered about them, haven’t we? I do not know whether anyone’s life has been desperately affected by schedule 2, but it is an interesting reading. I think that at some point the Government said, “We’ve got to do something about powers of entry because

Column number: 383 
we’ve got a protection of freedoms Bill coming up. We want all civil servants to write around everywhere and see what anyone can come up with about powers of entry, and then see whether we can assembly a collection of them so that we can show how radical we are, and how determined we are to protect the individual liberty of the citizen in this country, who is walking around in fear of all of these various powers of entry being used against them.” That is why the powers have been repealed. 

I do not in any way want to give the Committee the view that I do not take the issue seriously, but I have to say that I did not know that there was still a power to enter property to seek out distribution of German enemy property. It is also interesting to see mention of the Hypnotism Act 1952, although I do not know how someone would know that it had happened—[ Interruption. ] Do not start doing that. I know that the Committee will have read these provisions, but they are amusing. There is a power for a constable to enter premises where entertainment is held to see if there is reasonable cause to believe that there is a contravention of the 1952 Act—but it does not say what that was. 

The serious point, however, is that some of the powers were introduced for good reason. The Government have schedule 2 in the Bill, and the provisions look reasonable, but we then make the mistake of having an evidence session and asking the Local Government Group whether it agrees that the regulations in the schedule contain unnecessary powers of entry that could be repealed without any impact. Of course, the group came back to us and said that some of the things being repealed in schedule 2 were powers of entry that were useful to it, and it asked the Government to reflect on them. In addressing clause 39, the Minister needs to explain whether he agrees with what the Local Government Group stated in its memorandum: 

“Of those powers proposed for revocation under Schedule 2 of the Bill, the LG Group believes the powers under the Older Cattle (Disposal) (England) Regulations 2005 and those under the Salmonella in Turkey Flocks and Slaughter Pigs (Survey Powers) (England) Regulations 2006, should be retained.” 

If I am really honest, and you might find this difficult to believe, Mr Caton, I have no idea what powers of entry would be used under those regulations, but I do know that the Minister has included in the fantastic list, on page 102 of the Bill, of powers of entry to be repealed, two regulations that contain powers of entry that the Local Government Group says should not be repealed. Is the Minister going to table an amendment on Report to take those regulations out of the list, or do the Government propose to disregard everything that the public have said in the Public Reading stage and plough ahead, even though the Local Government Group says that those two important powers of entry should be kept? 

Clause 39 is significant. No one in their right mind would disagree with repealing powers of entry that are no longer necessary or no longer required, but as Justice pointed out, they give the Government significant authority to revoke some powers of entry that were brought in because they were considered necessary. I highlighted what the Local Government Group said because I want to know whether there will be proper and full consultation with those who might be adversely affected by such action. I accept that we will come later to the issuing of codes and so on, but people want to know about such matters. 

Column number: 384 

Of course, it is easier to say, “Isn’t it outrageous that there are about 1,600 powers of entry? That is scandalous. In the new world that we are living in, we want to protect freedom so we shall repeal powers of entry to make us all feel free and newly liberated”, but protection of freedom is about giving the state the opportunity to enforce the law so that it protects the rights and livelihoods of the citizen, too. What process will be available to members of the public whereby their interests will be taken into account, when a Secretary of State considers that the repeal of legislation is necessary? 

James Brokenshire:  I know that the hon. Gentleman was looking to liven the mood a little this afternoon by highlighting a few examples referred to under the schedule. I was quietly wondering whether there would be a last minute, perhaps cross-party amendment from the Opposition Whips Office and the Government Whips Office for the removal of the Hypnotism Act 1952 provisions under schedule 2. [ Interruption. ] I am making a note now. I can assure the hon. Gentleman that the specific provisions under schedule 2 were considered carefully and I shall address the comments of the Local Government Group. 

At the outset, it is worth my underlining the fact that there has been a significant increase in the number of powers of entry in recent years. About 1,200 separate powers now allow officials entry into businesses or private homes, half of which have been created since 1997. That proliferation of powers of entry is not acceptable. It was interesting that the Home Office, under the previous Government, perhaps recognising that there might have been a bit of a problem, conducted a review of powers of entry in 2007-08. In 2008, the initial stage of the review process was completed by publishing—admittedly, for the first time ever—a list of powers of entry, associated statutory powers, who can exercise them and the rights and safeguards attached to them. It showed 1,208 powers of entry under 295 statutes and 286 statutory instruments but, rather than do anything about them, the then Government continued to add to them so that our current analysis now shows 1,229 powers of entry. 

After conducting the review, one might have thought that the then Government—having looked at the issue and recognised the significant number, the scope and application of them—would have done something about the problem. But they did not, and that is why we are bringing forward measures under the Bill to ensure that the powers of entry are dealt with appropriately. 

The changes we propose will require Departments to consider properly whether such powers are necessary and whether to reduce their number. We will protect the privacy of home owners by removing unjustified and unreasonable powers of entry, and ensure that the remainder are proportionate and subject to appropriate safeguards. 

Before responding to some of the detail in relation to clause 39, it may assist the Committee if I briefly overview the provisions in part 3 of chapter 1 as a whole as it is important to see the overall link between all of the relevant provisions, given that there are three main elements to the provision. First, the chapter creates the order-making powers that provide for the repeal of unnecessary powers of entry, the addition of new safeguards better to protect the rights of home owners and others, and the rewriting of powers of entry allowing for similar

Column number: 385 
powers of entry to be grouped together and replaced with a single power coupled with the inclusion of additional safeguards. In each case these powers are exercisable both by a Minister of the Crown and, in the case of powers of entry which relate to devolved matters in Wales, by the Welsh Ministers. 

Secondly, a duty is placed on Cabinet Ministers to conduct a full review of all existing powers of entry. Thirdly, provision is made for a statutory code of practice governing the exercise of powers of entry and thereby conferring further protection on householders and others. Clause 39 contains the first of the three order-making powers. This provides for the repeal of unnecessary or inappropriate powers of entry contained in either primary or secondary legislation. The power also extends to what the clause describes as associated powers, a term which is then defined in clause 46. In many cases powers of entry are only a means to an end. Once on the premises in question, state officials can exercise various associated powers, for example to search or inspect the premises or to seize material found thereon. The order-making power in clause 39 enables an associated power to be repealed independently of the power of entry to which it relates. 

As the hon. Gentleman has highlighted, the clause also introduces schedule 2 to the Bill which contains a first tranche of repeals. The 15 powers of entry repealed by schedule 2 should be viewed as a statement of intent in relation to the further work. I would be the first to recognise that in repealing 15 out of 1,200 such powers, we are just scratching the surface. There is a long way to go but it is certainly a start. My expectation is that the review required by clause 42, which we will come to shortly, will lead to many more of these powers being repealed. 

On the specifics of two of the pieces of legislation that are being repealed by the clause and schedule 2, there may have been a misunderstanding by the Local Government Group about the Salmonella in Turkey Flocks and Slaughter Pigs (Survey Powers) (England) Regulations 2006. During 2006-07, a one-off 12-month investigation of the prevalence of salmonella in turkeys and slaughter pigs was carried out to obtain relevant baseline data and the regulations provided the powers of enforcement for those one-off surveys of slaughter pigs and turkeys. The baseline surveys have been concluded and it is on that basis that the powers are no longer required. Again, given that this related to a survey in 2006-07, it may be that there has been some misunderstanding by the Local Government Group about that. 

On the Older Cattle (Disposal)(England) Regulations 2005, there were various schemes such as the over 30-month slaughter scheme. It was necessary to store some of the by-products generated from the rendering process and all of the waste material produced during the decontamination protocol needed to be incinerated under supervision by the competent authority. To ensure that this has been achieved there was a requirement to access the processing sites. We anticipated that the residual clean-down works would be completed by 31 March—so they should already have been completed—but to take into account any slippage, the powers of entry will be repealed on 31 March 2012, on the assumption

Column number: 386 
that the Bill is duly passed by this House and in the other place. By the time that the Bill comes into effect, the clear advice that I have received from colleagues elsewhere in Government is that the power will have become otiose. It is, therefore, perhaps a question of timing, but we recognise that we should not keep those powers of entry on the statute book for longer than is required. 

5.45 pm 

Michael Ellis:  I will resist the temptation to ask the Minister whether there has ever been an occasion under the Hypnotism Act 1952 of a raid on someone’s property. I understand that there are provisions still in force that provide power of entry to a property for such things as a bees’ nest. Is the Minister confident that other areas where there might be room for repeal will be looked at? 

James Brokenshire:  The hon. Member for West Bromwich East was kind enough to compliment my officials on the preparation work that they have done for the Bill. I am pleased to add my thanks for the support that they have provided, and continue to provide, to me and to my hon. Friend the Minister for Equalities. I can say to my hon. Friend the Member for Northampton North that, in relation to the powers under the 1952 Act, there is no evidence on how often the power is used, but it is thought that its exercise was very rare and that the police are content for it to be repealed. I hope that that gives him some reassurance on that specific point. 

As I think I commented on with regard to the overall structure of this part of the Bill, it is intended that there will be the continuing review process—the duty placed on the Secretary of State. I am sure that that will identify other examples of powers that should either not be there because they have fulfilled the purpose for which they were put in place, or which, on reflection, are not required. I have every confidence that further provisions and examples will be forthcoming as a result of the mechanism contained in the Bill. 

Tom Brake:  I just wanted to ask the Minister whether the review process would look at whether the powers of entry have been used appropriately. Of course, they may indeed be used occasionally, but they may have been used incorrectly and therefore should also be got rid of for that reason. 

James Brokenshire:  My hon. Friend makes a fair and valid point. There is the issue of whether powers of entry should not be there, when the judgment is taken, the review process that is contained in the Bill and the new duty that is placed on the Secretary of State. Equally, I am sure that we will come on to the publication of the code of practice in relation to clause 50 and the examination of particular powers that are there to ensure that they are used appropriately. I hope, with the provisions that we will come on to, that he will recognise that that particular concern is being addressed. With those comments, I hope that hon. Members will be minded to include the clause in the Bill. 

Question put and agreed to.  

Clause 39 accordingly ordered to stand part of the Bill.  

Schedule 2 agreed to.  

Clause 40 ordered to stand part of the Bill.  

Column number: 387 

Clause 41 

Rewriting powers of entry 

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  It should not go unremarked, in speaking to clause 41, that I remember that when in opposition the Minister, and indeed the hon. Member for Carshalton and Wallington and many others, used to talk about the undesirable nature of Henry VIII clauses—in effect, open-ended legislation allowing Government Ministers to do what they wanted—and that, even if they were subject to affirmative resolution, they were not the appropriate way forward. It has not taken the current Government long to get into the use of Henry VIII clauses—they run right the way through all of these various clauses. The Lord Chief Justice said fairly recently that all Governments should resist Henry VIII clauses. All parties when in power say how necessary they are, and when in opposition they say how unnecessary. It did not take the coalition Government long to retreat. 

Tom Brake:  It didn’t take us long to adopt Labour’s ways. 

Vernon Coaker:  The hon. Gentleman is always supposed to have stood for being holier than thou on such issues. It did not take long for that to go out of the window. 

Mark Tami (Alyn and Deeside) (Lab):  Does my hon. Friend recall that the hon. Gentleman used to take the same attitude to programme motions as well? 

Vernon Coaker:  I do. I also remember saying to the hon. Gentleman who is now the Minister, with respect to Henry VIII clauses and programme motions, “You wait till you’re in government.” Now his party is in government, and they are doing exactly the same. Maybe it is just one of those things that comes with being in power: when in power, we have to use them, and when in opposition, we take a different view. 

Clause 41 allows the “appropriate national authority”, which might mean various Secretaries of State, to rewrite powers of entry, “with or without modifications”. That is laid out in subsection (1). Subsection (3) goes on to say: 

“But no order under this section may alter the effect” 

of that rewriting or modification if that would reduce the safeguards on the power of entry and associated powers and undermine the level of protection afforded to the public by the powers of entry. It is all very well to place that on the face of the Bill— 

5.51 pm 

Sitting suspended for a Division in the House.  

6.2 pm 

On resuming—  

The Chair:  The Committee will recall that Mr Coaker was speaking in the clause 41 stand part debate. 

Column number: 388 

Vernon Coaker:  Just to re-establish where we were, I was asking the Minister to clarify subsection (3) in relation to subsections (1) and (2). Clearly, no modification or change can be made if the level of protection afforded to the public is diminished as a consequence of that modification or change. If the Secretary of State decides to change the power of entry, she has to have regard to subsection (3), but it is unclear to me who will make the assessment that that action does not impact on subsection (3). If that is done by the Secretary of State, she is judge and jury of herself. How will subsection (3) work in practice? I shall be interested to hear the Minister’s reply and I may want to respond to it. 

James Brokenshire:  I note that I have been gently chided in relation to the use of Henry VIII powers. However, I say to the hon. Gentleman that the provisions in this clause and elsewhere—including clauses 39 and 40—are written to constrain the power that is capable of being utilised in the order-making provisions. He will be aware that clause 43 on consultation requirements, which we might also reach today, will equally be applicable. 

We certainly consider the order-making powers to be appropriate. As I have said, in each case the order-making power is constrained; for example, the power in clause 39 may be used only to repeal powers of entry. Any order for the use of the rewrite power must contain safeguards providing a greater level of protection than was previously the case. Accordingly, those powers will enhance civil liberties. It is therefore unnecessary to have the same degree of scrutiny as might be needed for primary legislation. Rather than taking the view suggested by the hon. Gentleman that we are going for a broad approach to order-making powers, we have not sought to do so. We have taken a more measured approach on the provisions. 

In addition, Departments are not yet in a position to identify all the powers of entry or associated powers that might be ripe for repeal or rewriting, and secondary legislation allows the flexibility to repeal or rewrite powers once the statutory duty to review has been carried out. As I have said, preliminary analysis of the 1,200 or so powers of entry indicates that many of them relate to very similar functions. For example, powers of entry to inspect animals for disease have separate powers for different animals and diseases. It might be possible to have one overarching power in relation to animal welfare. Such a process, as well as reducing the overall number of powers of entry, will provide greater clarity for those exercising the powers and greater transparency for those who may be on the receiving end. 

I recognise that this is a wide order-making power, but the driver behind all the powers in this chapter is to afford greater protection to householders and businesses. In this case, the clause expressly provides that when taken together, the provisions of any order must provide a greater level of protection than was previously the case. That is an important safeguard. We fully expect that when considering whether to bring together powers of entry under the rewrite power, we would examine critically whether the current safeguards were adequate. 

The expectation would be—the clause requires it—that, as part of the rewriting process, further safeguards would be attached either to the powers of entry or to the associated powers, which we discussed in the previous debate, or to both. The Minister making the order will

Column number: 389 
make the judgment that it is subject to review by the Joint Committee on Statutory Instruments, the Merits of Statutory Instruments Committee in another place and the courts through judicial review. This is not, as the hon. Gentleman was suggesting, a carte blanche approach. He was suggesting that a potential challenge could be brought on the improper use of the clause. Clearly, there is the opportunity for judicial review if the power is used in an inappropriate way; analysis, consideration and scrutiny can be applied. Equally, as I have already indicated, there is the need for consultation to have taken place before this power or any of the other order-making powers are exercised. 

With that reassurance, I hope that the hon. Gentleman and other members of the Committee will recognise that the Government have considered the matter carefully and that they will be minded to ensure that the clause stands part of the Bill. 

Vernon Coaker:  That was a helpful reply from the Minister. At some point, when his officials reread this short discussion and his comments that whatever the Secretary of State does will be subject to some safeguards, the Minister will have to reflect on whether that is sufficient. There will be discussion in the Department about whether there are sufficient safeguards on the Secretary of State rewriting the powers of entry, particularly in respect of subsection (3) and who monitors and judges whether it has been adhered to by the appropriate national authority. 

Question put and agreed to.  

Clause 41 accordingly ordered to stand part of the Bill.  

Clause 42 

Duty to review certain existing powers of entry 

Vernon Coaker:  The clause creates a 

“Duty to review certain existing powers of entry.” 

Can the Minister explain why the word “certain” is in the title of the clause, because it implies a limitation on the number of powers of entry that will be investigated? Why does it not just say “Duty to review existing powers of entry”? I do not understand why the word “certain” is in the title at all. 

Can the Minister also explain why it is necessary to put in clause 42(2): 

“A failure by a Minister of the Crown to comply with a duty under subsection (1)”? 

Under what circumstances does the Minister envisage a Minister of the Crown failing to comply with the law? I cannot imagine a member of this Government, the last Government or any Government wilfully failing to comply with the law. Does the measure just apply if they do it by accident? I do not know, but it is such a major duty that I do not understand how they could fail to comply if it was not a wilful failure. I would be grateful if the Minister could explain those two points about the clause. 

James Brokenshire:  As the hon. Gentleman has highlighted, we consider the clause important in terms of the safeguards that are being afforded in relation to powers of entry. The use of the term 

“certain existing powers of entry” 

Column number: 390 

is not in some way to restrict or limit the duty placed on each Cabinet Minister to review powers of entry and the associated powers for which they are responsible. Obviously there is a time period—within two years of Royal Assent of the Bill—and that is likely to be by early 2014. The use of the word “certain” was meant to be sensitive to the fact that powers of entry may relate to devolved matters. In other words, there are matters that it would not be appropriate for a UK Government Minister to review, because they had been devolved. It was simply to recognise that sensitivity that the word “certain” was used, rather than to say in some way that the duty on each Cabinet Minister is limited. The clause will provide an opportunity for the first time to analyse fully all identified powers of entry and associated powers, and to determine whether they continue to be necessary and appropriate. 

Of course we expect Ministers to comply with the duty to review. That is absolutely clear and we regard the duty as a new and significant power. Subsection (2) is a safety valve in case, for example, a power of entry is overlooked as part of the review, given that there are 1,200 of those powers and their number has grown so much, as has been said already. Subsection (2) is intended to address perhaps a technical failing or indeed an argument that the approach we are using has not properly considered one of the powers of entry, and to ensure that that of itself is not taken to undermine the continuing validity of the power at that point in time. 

The reviews will also consider whether the existing powers of entry and associated powers have adequate safeguards attached to them, or whether they need strengthening in some way. Finally the reviews will examine whether there is scope to consolidate similar powers of entry using the rewrite provisions. 

As we have already noted, there are 1,200 separate powers and the proposed review will provide an opportunity to shine a light on all of them, to question whether they are fully justified and proportionate. It will also provide an opportunity to analyse the powers, to give us a full picture of which state officials can exercise them and in what circumstances. That information will make the use of the powers more transparent to Parliament and to the general public. 

Following each review, each Minister will be required to submit a report to Parliament and I expect those reports to identify all the powers of entry and associated powers for which a Department is responsible, to show which powers are suitable for repeal or rewriting and which require additional safeguards. 

It is possible that one Department might consider that another Department has lead responsibility on an issue. As far as I am concerned, there should not be that lack of clarity. The hon. Gentleman made the point, fairly, in relation to the protective power that there may be circumstances when that might inadvertently occur. I certainly hope that is not the case, and that Secretaries of State in this and future Governments will conduct their responsibilities appropriately, but we are providing a safety net. 

6.15 pm 

It is important to highlight the fact that we have put in place a gateway mechanism to ensure that the creation of any new powers is tightly controlled. In other words,

Column number: 391 
we have the review and the provision relating to existing powers, but if new powers are sought, there is a gateway process, which is managed by the Home Office, and requires Departments seeking to introduce new powers to go through an application process to demonstrate whether they are necessary and proportionate and contain adequate safeguards. In addition, supplementing the provisions in the Bill, the Government are seeking to examine the matter internally, and because of the significance that we attach to powers of entry we are putting in place new mechanisms and gateways to provide pre-emptive protection when considering such issues. 

Vernon Coaker:  Will the Minister provide clarification to ensure that I understand him correctly? Is he saying that the Home Office acts as a gateway for all Departments if they want to introduce a power of entry with respect to their own responsibilities? Will the Home Secretary determine that, and sit in judgment on each Department? Is that how it works? 

James Brokenshire:  I am sure that the hon. Gentleman, having served as a Minister, is aware that the Government have various internal clearance processes for the introduction of new proposals and measures in a Bill. In essence, the Home Office, and the Home Secretary or a Home Office Minister, have a mechanism to assess requests for new powers of entry, so there is an internal gatekeeping role, which some Departments fulfil in other ways. He will be familiar with that from his time in government. There is an additional internal check and balance to ensure that powers of entry are considered carefully, and that their significance is given the weight that should be attached to them. 

With that explanation, I hope that I have responded to the questions that the hon. Gentleman highlighted, and provided helpful further information to the Committee on the application of the clause and, more broadly, the Government’s intention. 

Question put and agreed to.  

Clause 42 ordered to stand part of the Bill.  

Clause 43 

Consultation requirements before modifying powers of entry 

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  This is one of those clauses in which the Minister has not provided a list of who should be consulted. It merely refers to people who seem to be appropriate, and 

“such other persons as the appropriate national authority considers appropriate.” 

Will he say a little more about who such people would be, and put a little more flesh on the bones? 

I recognise that there is always a problem. If there is no list, people say, “Who do you mean?” and if you provide a list they say, “You haven’t included everyone.” Having said that, I think it is important to have further details of who should be consulted prior to some of the changes concerning powers of entry. 

Column number: 392 

James Brokenshire:  I sense that this is a continuation of discussions that the hon. Gentleman and I have had on many previous Bills about lists, their operation, and whether they capture everyone who is intended to be captured when being prescriptive in this way. There are some 1,200 powers of entry, so different Departments have different stakeholders, different interest groups and different people who may be affected. I hope that he will recognise how we have approached the drafting of clause 43(a). It would be very difficult to provide a meaningful list given that all Government Departments would need to have been engaged in it, and we would probably find that such a list would run to several pages and still somebody would be missed out. If we reflect on and respect the nature of the subject matter, the approach that we have taken in clause 43(a) is the appropriate one in the circumstances. For example, if we were talking about modifying powers of entry exercised by the police, we would certainly expect to consult the Association of Chief Police Officers or, in the case of powers exercised by trading standards officers, the responsible Department would consult the Association of Chief Trading Standards Officers. 

Being prescriptive will probably not help the hon. Gentleman in his understandable desire to ensure that appropriate people are consulted. Given the broad nature of what we are discussing, the approach taken in clause 43 is the appropriate way of dealing with what is likely to be a very complex matter. Regardless of anything that he and I have debated previously, it does not naturally lend itself to a prescriptive list in the way that other provisions might. 

Question put and agreed to.  

Clause 43 accordingly ordered to stand part of the Bill.  

Clause 44 ordered to stand part of the Bill.  


Clause 45 

Devolution: Scotland and Northern Ireland 

Amendment made: 6, in clause 45, page 33, line 7, leave out ‘because it deals’ and insert ‘and would deal’.—(James Brokenshire.)  

Clause 45, as amended, ordered to stand part of the Bill.  

Clause 4 6 ordered to stand part of the Bill.  


Clause 47 

Code of practice in relation to non-devolved powers of entry 

Vernon Coaker:  I beg to move amendment 104, in clause 47, page 34, line 9, leave out subsection (1) and insert— 

‘(1) The Secretary of State must establish an independent inquiry into the exercise of powers of entry and associated powers in England and Wales.

(1A) The inquiry must in particular examine issues relating to—

(a) bailiffs;

(b) squatters.

(1B) Having considered the recommendations of that enquiry, and following a report on those recommendations to Parliament, the Secretary of State must prepare a code of practice containing guidance about powers of entry and associated powers in England and Wales.’.

Column number: 393 

The amendment is important; it is part of the ongoing theme that I have had as the Bill has progressed. It amends certain aspects of legislation, with which many of us could agree. We could have a debate about whether it goes too far or not far enough, but it has not included a whole range of issues to do with the protection of freedom, which many people would regard as important. In the previous portion of the Bill, we considered RIPA and the need for a more thorough revision of that rather than the limited amendments that the Government tabled in relation to local authorities. 

Similarly, with the powers of entry and associated powers, which are so important, the Government have put together enabling powers—Henry VIII powers— because they think there is an issue here. They make a headline with 1,600 powers of entry: “Absolutely disgraceful. It shows that the state is out of control and that something needs to be done.” There is no clear sense about that other than as a rhetorical flourish. There is no real evidence, but the Government can step in, give Secretaries of State the power over the next year or two to review, modify and change all these things, and in that sense enhance the liberty of the citizens of this country. I think the Bill misses a trick. 

As I have repeatedly said, if they had stepped back, the Government would have been able to come up with a much more radical, thorough, ongoing revision of a whole range of different things, but they have failed to do so. The Minister will say that this is just the first step, that the Government will move on from here and so on, but I think that the Bill is a missed opportunity in that sense. I encourage him to get on with it. 

I highlighted two examples of powers of entry and associated powers that people are concerned about. To answer the hon. Member for Carshalton and Wallington, people come to me consistently about those matters. A lot of people have come to me about bailiffs’ powers of entry, for example. There is not a squeak in the Bill about bailiffs. People generally are confused about what bailiffs can and cannot do. Many of us, as constituency MPs, will have had people complain to us about bailiffs. During the last Government, we considered the issue and were in the process of changing things. A Bill was introduced, some of which has been implemented and some of which has not. 

The Government talk about the protection of freedoms. One great unregulated area about which people feel disquiet, discontent, upset and concern is the operation of bailiffs. If I asked everybody here to tell us exactly what powers bailiffs have to enter a property, what their rights and entitlements are and what the law says, I wonder whether many of us could give an accurate answer. My notes from the Library say that a bailiff cannot make a forcible entry into a property. Let me start by saying that I know that there are many good bailiffs and bailiff organisations. I do not know about anybody else here, but I have heard of cases in which bailiffs have made forcible entry into a property—a door has been slightly ajar and they have put their foot in, or whatever. There are numerous examples of that happening. 

What about seizure of property by bailiffs as an associated power? What powers do they have to seize property? Again, we do not know. Are bailiffs entitled

Column number: 394 
to charge fees for what they do? Bailiffs’ powers are supposed to be limited, but again, it is unclear what those limits are. Given that disquiet has been felt for many years, and that there have been recent examples in the papers, I would have thought that if the Government were considering powers of entry and the need to change the law to make things better and protect freedoms and the rights of individuals, they would regulate properly the people who collect fines, debts, council tax, unpaid benefits and so on. The Government should legislate in that area of policy as a matter of urgency, because many people out there say that it is a problem. 

Bailiffs often deal with some of the most vulnerable people in our communities. Again, that seems to suggest the need for urgency. An inquiry into the various and associated powers of entry would have been helpful to the Government. Importantly, alongside that, an inquiry could consider what we should do about bailiffs. However, maybe the Government already have plans afoot to do something about them. If so, the Minister will be able to outline to us in great detail where we are with respect to bailiffs. What will happen? What Bill will deal with the issue of bailiffs? Will it be a Home Office or a Ministry of Justice Bill? 

Nicola Blackwood (Oxford West and Abingdon) (Con):  I wonder whether the hon. Gentleman can be of assistance to a new Member. I am struggling to follow his argument. Can he explain exactly how many inquiries he has now proposed, and how much time it might take before we would be able to pass this or a similar Bill? 

6.30 pm 

Vernon Coaker:  So far this is the third inquiry that I have asked for. I say to the hon. Lady that at least with an independent inquiry we are trying to legislate on the basis of evidence and on what we are being told. We have seen from the independent inquiries that have been rejected by the Government, that on a whole range of issues they have legislated on the basis of perception, or of what they think should be done, rather than on the basis of evidence. An independent inquiry would provide the evidence and the facts that we need in order to legislate—instead of acting in haste. Let me have a quiet bet with the hon. Lady—I predict that next year or in 18 months’ time, the Government will be back amending aspects of the Bill because it has not worked out as they thought it would and because they had not thought through all the various issues. 

The other point that I keep making about the independent inquiry—I am surprised at the Liberal members of the coalition—is that it is a missed opportunity for the Government. If they so wanted, they could have moved forward in a much more radical way. Instead of that, we have a Christmas tree Bill with huge numbers of subsections. It has a bit dealing with that and a bit dealing with this, so that the Government can say that in many respects they are dealing with the protection of freedom. Yet on a whole range of issues, the Bill is silent. We will return on Report to another matter that it is silent about—the intercept modernisation programme. That was one of the biggest things that we were criticised for, but the Government are carrying it forward apace. 

Tom Brake:  Does the hon. Gentleman agree that in the run-up to the 2010 general election—indeed, in the many years before that—both the Liberal Democrats

Column number: 395 
and the Conservatives had a great and long opportunity to assess the previous Government’s legislation across a raft of civil liberties? We had identified a large number of issues that we wanted to address, which were reflected in our respective manifestos. Those matters have therefore been considered and this is not a knee-jerk reaction; it is a considered programme that we have built up over a number of years. 

Vernon Coaker:  It might be a considered programme in the hon. Gentleman’s eyes, but I think that essentially it is an amending piece of legislation rather than a fully thought out, principled piece that brings together a range of measures in a new vision of what liberty means in the modern state. In that sense, it is a missed opportunity. 

Steve Baker (Wycombe) (Con):  Listening to the hon. Gentleman, I am struck by the number of times that we have been accused in the main Chamber of being ideological. Is it now the case that his party is appealing for us to be ideological? 

Vernon Coaker:  I am not appealing to the hon. Gentleman to be ideological; I am appealing to him to have some thorough, up-front principle that gives something on which the rest of the Bill hangs. [ Interruption. ] Does the hon. Gentleman want to intervene again? 

Steve Baker:  Again, the hon. Gentleman seems to be appealing for an ideology—marvellous, I am delighted. But let us be consistent and appeal at all times for a consistent ideology on which to base practical politics. 

Vernon Coaker:  That was the problem for the hon. Gentleman, because he could not wait until I had finished before he got over-excited and had to interrupt. The point that I was about to make was that in putting the principle into effect, a big, up-front policy is needed. I would have considered introducing something like a privacy commissioner, which would bring all the commissioners together. It would add an up-front, practical policy on which all those various other measures could rest. There is nothing ideological about that. It is a principled policy objective made possible through a legislative change. That is not ideological; ideological is when people spout beliefs and ideology with no idea about how to put them into practice. Introducing a privacy commissioner might be one of the ways to do that. 

The amendment seeks to ask the Government to do something about an aspect of powers of entry about which the Bill is completely silent—bailiffs. I hope that the Minister will inform us about the Government’s intentions with respect to that. 

An associated issue is that of squatters, which we also need to consider. Again, I would be interested in what the Minister has to say about that. We have heard concerns that squatters seem to have rights and powers of entry into certain properties, and no one seems to be able to do anything about it, even if they simply enter the property illegally, and regardless of how they illegally enter the property and how they stay there. Will the Minister explain the Government’s intention on squatters? How do they intend to do something about that? Does the Minister have plans to deal with it? 

Column number: 396 

We are seeking to address problems that our constituents in the country feel need to be dealt with. We have powers of entry and the need to tackle them. The Government have come forward with a whole range of various powers of entry that they seek to repeal, many of which have no impact at all on an individual’s liberty or on any of our constituents. However, it means that the Government can say, “We have started to do it.” We then have proposals that will give the Secretary of State virtually unlimited power to rewrite any power of entry, without consideration of the principle on which that should be based. On two or three of the issues that people face in their lives, squatters and bailiffs—one could go on to others—the Bill is completely silent. It would be interesting to see the Minister’s response to the amendment, particularly to the problem of bailiffs and squatters that I have highlighted. 

Steve Baker:  Following the exchange of interventions, which I very much enjoyed, and reflecting on the amendment, I am aware of a principle that comes out, which I think could be more deeply entrenched in the Bill. If we were to look for a principle and express it in one word, for me that word would be “property.” The amendment is quite insightful—although of course I will not be supporting it—by bringing together the questions of bailiffs and squatters. The hon. Member for Gedling has hit the nail on the head. The issue in talking about freedom is often property. However, we would struggle to be consistent about the application of property rights. Without wishing to stray out of order, Mr Caton, if we were to apply property rights to, for example, wheel clamping, we might have found ourselves obliged to continue allowing clamping on private property, which is not something that any of our constituents seem to want, unless they suffer from the problem of rogue drivers. 

Returning to the amendment, I think the hon. Gentleman has proposed an insightful amendment. The principle that he is searching for, on which all freedom could be hung, is the concept of property, and I would invite the Government to consider that concept throughout the Bill. 

Jim Shannon (Strangford) (DUP):  I would like to ask a couple of questions. I am always mindful that I am a representative from Northern Ireland, and so I am conscious when we talk about legislation that is particular to Wales. My questions are related to a debate that took place in Westminster Hall about a month ago, when squatters’ rights were debated. I want to ask the hon. Member for Gedling what consideration he has given to that debate—he probably has a copy of the Hansard of that—and the questions that were asked. 

The issue of squatters—and bailiffs—is clear. People come and take over a house. They change the locks, phone up the electricity and water companies to get electricity and water connected, and they continue to live in that house. The rights of the person who owns that house are then disadvantaged. At the same time, I get correspondence about homeless people. Where in the Bill is the balance between the rights of people who have property and the rights of those who are homeless? Does the Bill ensure that homeless people have rights when, on occasion, landlords push the law a wee bit to try to get someone out? My questions are specifically

Column number: 397 
about bailiffs and squatters. Has consideration been given to that matter in the legislation? If not, I will be disappointed, because the Under-Secretary of State for Justice, the hon. Member for Reigate (Mr Blunt), gave an undertaking about that in that Westminster Hall debate. 

James Brokenshire:  The hon. Member for Gedling exhorted me to “get on with it”—I think that was his phraseology—meaning to have another inquiry. That does not, to me, feel like “getting on with it.” Be that as it may, it has been interesting to hear the Opposition’s points; sometimes such Bills are useful for teasing out of them their policy developments. It sounds as if an overarching privacy commissioner is now Opposition policy, and we will no doubt come on to discuss that further. Equally, having an inquiry on everything appears to be Opposition policy. I respect some of the hon. Gentleman’s points, and appreciate that they might come from a mindset of going through a policy review, but I gently say to him that a respect for his desire for us to get on with it is not necessarily aided by a further inquiry that is likely to take several years and might put off the action that he reasonably challenges the Government to take. 

I will make just one small point about the hon. Gentleman’s amendment. There was a little mumbling on the Government Benches when he talked about the reference to squatters in the amendment. His amendment and his comments seem to suggest that existing lawful powers of entry were conferred on officials. I do not think that squatters exercise those rights, and I appreciate that in some ways his amendment is more probing in nature. We would certainly not want to give squatters a power of entry in that way. The hon. Gentleman seeks to highlight two specific issues, but the broad thrust of the Bill is to provide a mechanism for the Government to review their officials’ powers of entry—the duty that is placed on each Department. The Bill is an overarching framework that we seek to put in place across a swathe of issues, and does not seek to address specific issues in the way that the hon. Gentleman and other hon. Members have sought to highlight, in connection with bailiffs and squatters. 

The hon. Member for Gedling has been asking questions about bailiffs, and the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), provided him with a reply to a parliamentary question on 22 March: 

“The Government have given a commitment to provide more protection against aggressive bailiffs. We have identified options for public consultation on this commitment including the better regulation of bailiffs, the powers of bailiffs, their costs and how complaints should be dealt with. We are currently preparing the paper and intend to publish in spring 2011.”—[Official Report, 22 March 2011; Vol. 525, c. 971W.] 

There is a desire—to return to the hon. Gentleman’s point—to get on with this, and there is that commitment from the Ministry of Justice. 

6.45 pm 

To be fair to the hon. Gentleman, the previous Government legislated in the Tribunals, Courts and Enforcement Act 2007 to codify the powers of bailiffs.

Column number: 398 
That was one of the many Public Bill Committees on which I sat when I was in opposition, and in opposition we broadly welcomed many of the provisions of that Act. But the then Government failed to bring those provisions into force. The Ministry of Justice is planning a consultation on the commencement of those provisions and, therefore, giving effect to a number of the points on which we supported the previous Government, as the previous Government recognised. The Ministry of Justice is getting on with it and bringing that into force to deal with the fair and legitimate concerns about rogue bailiffs and the practices that they undertake. I was concerned about that during our consideration of the 2007 Act, and I know it exercises the minds of my ministerial colleagues in the Ministry of Justice, too. 

The Government are committed to looking at options for strengthening the law in relation to squatters. That might be through the creation of a new offence of squatting, or by strengthening the existing laws. Again, the Ministry of Justice intends to consult publicly on that issue and hopes to be in a position to announce those plans in more detail. I fully recognise the distress that can be caused by squatters, particularly when they occupy somebody’s home. That point has been sensitively and effectively made by hon. Members during the course of this debate. It is something that we recognise, and my colleagues in the Ministry of Justice will be bringing those proposals forward to strengthen the enforcement of the current law, as well as looking at the legislative options for addressing those points. 

I would say to the hon. Member for Gedling that moving forward in that way is more appropriate than having a broader, wider inquiry into powers of entry, because it will give effect to the desires that he and other hon. Members have identified in this debate, as well as in previous debates. 

The Government take both of those issues seriously and will be bringing forward proposals on them in due course. That is the better course of action, rather than tabling an amendment that would simply add yet another inquiry to the list that the hon. Gentleman has been drawing up today. 

I hope that in the context of my response, the hon. Gentleman will be minded that that is the appropriate way forward, rather than pressing his amendment. 

Jim Shannon:  The Minister has not given an indication of when new legislation will be introduced to address squatters and bailiffs, but if we do not have a date or a time scale for that, the request for a public inquiry is legitimate. 

James Brokenshire:  I would hope that I have made it clear to the hon. Gentleman that we are proposing to act on that. My colleagues in the Ministry of Justice intend to consult publicly on that in due course. I hope that we will soon be in a position to announce plans in more detail. If the hon. Gentleman or other hon. Members are not satisfied by that announcement, no doubt they will return to the matter at a later point in our consideration of the Bill. 

I assure the hon. Gentleman that we recognise and understand his concerns. Part of the solution may be better enforcement of the existing law, as well as looking at the options for strengthening the law. I hope that the

Column number: 399 
hon. Gentleman will recognise that my colleagues at the Ministry of Justice are seized upon that, and the proposals will I hope be coming forward in the near term. 

Vernon Coaker:  It is interesting, isn’t it? We can chuck a pebble in the pond and see what happens. The comments made by the hon. Member for Wycombe were intriguing after our exchange about principle and a policy proposal that then flows from ideology. He is right about property. The defence of property is an important principle on which much of our law is based. That is why we understand that there is always a need to debate clearly from time to time how much power of entry there is for people to enter property, whether it is private property in the sense of a house or a business property. The hon. Gentleman made a helpful contribution to the debate, although I understand why he will not vote for the amendment if we pressed it to a Division. 

All I am giving is an example. I am not saying that we have agreed that a privacy commissioner is the right way forward, but that we could use a privacy commissioner as an example of the way in which we would have a flagship policy in the Bill from which everything else flowed. The Government have failed to provide that under the Bill, and what we have instead are about 10 or 11 different bits of their legislative powers by which they can make amendments. We have already discussed about five, and there are still four or five to go. As we said on Second Reading, the Bill continues to be one that amends rather than one that has at its core a flagship policy. 

I go back to what I have said before, notwithstanding the chiding from one or two members of the Committee. With respect to the clause and other parts of the Bill, all I am saying is that the Government need to come forward with more conclusive evidence about why they are legislating in such particular ways. It is easy to say that we are protecting freedom and that we are standing up for liberty. To assert that, it is fine but, to argue it, we need evidence. We need to be able to point at some research that has been done, and an independent inquiry is a good way of doing so. The Minister talked about several years. He knows that it would not take that time, but it has made a debating point for him. 

I have referred to bailiffs and squatters because they concern people. It makes no difference to the fact that people say, “Oh well, it is going happen.” The issue of bailiffs is a matter that we would have thought such a Bill could have addressed straightaway. The hon. Member for Strangford drew attention to a debate on squatters. Indeed, over the past few months there have been numerous debates about squatters, yet here we have a legislative vehicle that the Government could have used to do something about them. Under the amendment, the 

“inquiry must in particular examine issues relating to— 

(a) bailiffs; 

(b) squatters.” 

It would not just deal with powers of entry, but with associated powers. Why is it so difficult to deal with people who have illegally entered a property or, indeed, entered a property and then obtained, as the hon. Member for Strangford said, so-called squatters’ rights? No one seems to be able to do a thing about the fact that squatters are in a particular property, even the

Column number: 400 
person who owns it. That is a real problem. Of course, I am not arguing for giving squatters powers of entry. I am talking about the associated powers that mean that when people have entered a property illegally, for whatever reason it sometimes seems impossible for the police, the local authority or the state in any of its manifestations to get those people out. I could have added Travellers and others to that, where, again whatever the power of entry they do or do not have, they enter somewhere illegally and it often seems impossible for people, whether that is the police or the local authority, to do anything about it. 

I hear what the Minister said about how the Government intend to take this forward—that there will be a consultation relating to bailiffs and that the Ministry of Justice is already looking at the issue with respect to squatters—but I still want to press amendment 104 to a Division. 

Question put, That the amendment be made. 

The Committee divided: Ayes 6, Noes 10. 

Division No. 14 ]  


Chapman, Mrs Jenny   

Coaker, Vernon   

Efford, Clive   

Johnson, Diana   

Shannon, Jim   

Tami, Mark   


Baker, Steve   

Blackwood, Nicola   

Brake, Tom   

Brokenshire, James   

Buckland, Mr Robert   

Ellis, Michael   

Featherstone, Lynne   

Johnson, Gareth   

Opperman, Guy   

Wright, Jeremy   

Question accordingly negatived.  

Amendment made: 7, in clause 47, page 34, line 36, leave out ‘because it deals’ and insert ‘and would deal’.—(James Brokenshire.)  

Question proposed, That the clause, as amended, stand part of the Bill. 

Vernon Coaker:  My understanding is that PACE Code B deals with matters relating to powers of entry. How does that relate to clause 47? 

James Brokenshire:  The police powers of entry, search and seizure are governed, and will continue to be governed, by the Police and Criminal Evidence Act 1984 and the accompanying Code B. That provides the core framework for police powers and safeguards in relation to the searching of premises and the seizure of property. PACE Code B will not be affected by the code of practice provided for in the clause. Non-police agencies investigating criminal offences are required to have regard to PACE and Code B. Section 67(9) of PACE provides that: 

“Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of…a code.” 

However, Code B does not capture enforcement bodies with the power of entry in relation to non-criminal offences. We envisage that the code of practice provided for in the clause will cover similar ground to that in PACE Code B. That is to provide a consistent standard

Column number: 401 
for the use of powers of entry. It will provide transparency for the public on what they should, and should not, expect if their premises are searched. 

We propose that the code address the following points: the information enforcement bodies need to consider before applying for a warrant; what enforcement bodies need to consider before entry without a warrant; the exercise of powers of entry at a reasonable hour; the use of reasonable force to gain entry where necessary; the notice to be given to the occupier of the premises, including information about their rights; the conduct of a search; the seizure and retention of property; the actions to be taken after a search has been completed; and the maintenance of search registers. 

7 pm 

Although we will seek to make the code as comprehensive as possible, it is inevitable that given the wide range of powers of entry and associated powers, it will not be practicable to address all of them. When, however, there are associated powers specific to particular enforcement bodies, it would be open to the relevant organisations to supplement the code with their own guidance. 

The hon. Gentleman raises a relevant point in relation to PACE Code B. I hope, however, that my response has provided some clarification on the operation of the code, and equally, on the clause’s interrelationship with PACE Code B, which he is not unreasonable in raising with the Committee. 

Question put and agreed to.  

Clause 47, as amended, accordingly ordered to stand part of the Bill.  

Clauses 48 to 50 ordered to stand part of the Bill.  

Clause 51 

Effect of code 

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  May I ask a quick question to help my understanding of the effect of the code? Will the Minister explain the inclusion of subsections (2) and (3)? In effect, breaking the code does not of itself mean that a person is guilty of a criminal act, but the powers of entry code is admissible in evidence in any such proceedings. Will the Minister explain his thinking behind those two subsections? 

Column number: 402 

James Brokenshire:  We obviously want to ensure that the relevant provisions of the code will be properly observed by the relevant authorities, and we will certainly be promulgating the code to the appropriate authorities and impressing upon them the requirement to have regard to its provisions. Repeated failure on the part of any individual to act in accordance with the code’s provisions could result, for example, in disciplinary action being taken against them. Further, in all criminal and civil proceedings, the code shall be admissible in evidence, as the hon. Gentleman has highlighted. Therefore, if the court considers that the enforcement body exercised its powers in a way that was not in keeping with the code, any evidence that was gathered could be considered inadmissible. That is the approach that we are adopting on clause 51. 

A failure to adhere to aspects of the code of practice on the part of anyone exercising the power would not render them liable to criminal or civil proceedings, but the proposals ensure that there are protections on information that may be obtained in that way, and could relate to other codes of practice. In other words, it is to regulate utilisation of the power, and to ensure that information that could be obtained as a consequence may be inadmissible, rather than seeking to make the person criminally or civilly liable in such circumstances. The proposals afford that type of protection, but they act in a two-way manner. There is a protection for the individual officer, subject to the points that I have made about disciplinary and regulatory sanctions that may apply if there has been some sort of continued breach. A complaint could be made against, for example, a police officer, but without then making them criminally liable in relation to that act. 

I hope that the hon. Gentleman understands the mechanism. In other words, if information has been obtained inappropriately protection is available; equally, if the individual concerned is acting inappropriately, an employment type of sanction may apply, rather than some sort of formal civil or criminal action. 

Question put and agreed to.  

Clause 51 accordingly ordered to stand part of the Bill. 

Clause s 52 and 53 ordered to stand part of the Bill. 

Schedule 3 agreed to. 

Ordered, That further consideration be now adjourned. —( Jeremy Wright. )  

7.5 pm 

Adjou rned till Thursday 28 April at Nine o’clock.