7 Doorstep Selling (Property Repairs)
Bill
| Date introduced to the House of Commons
Current Bill Number
Previous Reports
| 18 May 2004
House of Commons 111
None
|
7.1 This is a Private Members' Bill introduced by Mr Gordon Marsden
MP. The Bill would prohibit unsolicited household visits to sell
property repairs, maintenance and improvements (clause 3(1)).
Contravention of the prohibition would be punishable by up to
three month's imprisonment or a fine (clause 3(2)).
7.2 The Bill would allow police constables and other
authorised officers to exercise powers of entry and search of
premises other than dwellings in order to enforce the terms of
the Bill, and to require documents to be produced and to seize
them in the investigation of a suspected offence under the Bill
(clause 5(1)). Clause 5(3) provides for a warrant to be issued
by a justice of the peace for entry onto premises by force in
pursuit of an investigation of offences under the Bill.
7.3 Household visits to sell goods or services are
likely to engage the right to freedom of expression (Article 10
ECHR).[148] The ECtHR
has held that commercial information conveyed to a limited group,
intended to promote the economic interests of an undertaking,
does fall within the protection of Article 10.[149]
This includes advertising, regardless of whether it is commercial.[150]
Insofar as household visits are designed to advertise a commercial
service to householders, therefore, they are likely to fall within
protection for commercial speech under Article 10. It should be
noted, however, that states are accorded a relatively wide margin
of appreciation in the extent to which they regulate commercial
speech,[151] which
may justify the restriction on Article 10 rights imposed by the
Bill, where they can be shown to be a necessary and proportionate
response to a legitimate aim.
7.4 It must further be considered whether the offence
would have a discriminatory effect, contrary to Article 14 (the
prohibition on discrimination in the enjoyment of other Convention
rights) read in conjunction with Article 10. The Bill criminalises
a particular type of commercial activity, whilst other similar
types of commercial activity which might be considered to present
similar problems (for example selling by way of unsolicited mail)
remain permissible. Were the category of commercial behaviour
criminalised in the Bill to be found to impact disproportionately
on particular groups, for example travellers, such discriminatory
impact could lead to a breach of Article 14 read in conjunction
with Article 10.
7.5 The investigatory powers provided for in clause
5 of the Bill engage the right to respect for private life in
Article 8 ECHR. Article 8 rights may be engaged not only in searches
of the home, but also in searches of office premises.[152]
Any exercise of the powers of investigation under clause 5 would
need to be justified sufficiently determinate to be in accordance
with law, as pursuing a legitimate aim, and as necessary, proportionate
and non-discriminatory in the specific circumstances of the case.
In this regard the absence of safeguards for the exercise of investigatory
powers under clause 5, in particular the absence of a requirement
of judicial authorisation, or for a particular level of internal
authorisation for search, seizure, or the production of documents,
may lead to disproportionate interference with Article 8 rights.
7.6 This is a particular concern in regard to the
powers of entry under clause 5(1)(a) which are wide in their terms
and permit entry "for the purpose of ascertaining whether
any offence under this Act has been committed". This power,
on its face, would appear to allow wide scope for search of premises
of categories of businesses likely to be involved in door-to-door
selling. In contrast, powers to require the production of documents,
to take copies of documents, and to seize goods, are exercisable
only where there is "reasonable cause to believe that an
offence has been committed". In our view, the provisions
of clause 5 as currently drafted are likely to lead to disproportionate
interference with Article 8 rights. We draw these matters to
the attention of both Houses.
148 Markt Intern and Beerman v Germany (1989)
12 EHRR 161; Casado Coca v Spain (1994) 18 EHRR 1 Back
149
Markt Intern and Beerman v Germany, op cit Back
150
Casado Coca v Spain, op cit Back
151
Markt Intern and Beerman v Germany, op cit Back
152
Neimitz v Germany (1993) 16 EHRR 97 Back
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