5 Powers of entry and the right to
respect for private life, home and correspondence (Article 8 ECHR)
111. The English common law has long protected the
right of people to keep everyone, including the State and public
authorities, out of their home and other private premises except
in so far as the power to enter is clearly defined in law.[86]
Article 8 ECHR similarly protects the right to respect for
home and private life. Neither residential nor business premises
can be entered without permission unless a power to do so is necessary
and proportionate to the need to protect the rights of others.
Such powers must always be prescribed by law and legally certain.[87]
Unfortunately, our predecessor Committee regularly raised its
concerns about the increasing number of powers of entry being
granted to public authorities and their contractors in primary
legislation, with many details and safeguards left to regulations.
In its report on the Compensation Bill, our predecessor commented
on a number of safeguards which should generally accompany powers
of search and seizure. These included:
- Clarity over the identity of
the person or body authorised to conduct a search;
- Assurance that the person conducting the search
will be an authorised person with an adequate degree of training
and maturity to exercise this intrusive power;
- A clear procedure for the treatment of items
removed during the relevant search; and
- A process of appeal for persons whose property
is removed.[88]
112. These and other safeguards have been noted and
welcomed in connection with broader powers of entry, search and
seizure by our predecessors.[89]
113. The Home Office has published a list of around
1200 statutory powers with associated powers of entry, as part
of the background to this Bill.[90]
This list provides information about powers in primary and secondary
legislation ranging from administrative powers of entry to powers
to seek a warrant from a court. It covers regulation as diverse
as the regulation of the provision of health and social care to
the protection of trade marks. We asked officials whether this
list was a complete list of all the circumstances when the State
is authorised to enter private, residential or commercial premises.
We understand that the list is currently being revised and a final
version is expected to be published before this Bill completes
its passage through both Houses.
114. Clause 41 gives the Secretary of State a very
broad Henry VIII power to "rewrite" powers of entry
or associated powers, subject only to the requirement that the
relevant changes must "provide a greater level of protection
than any safeguards applicable immediately before the changes".
We wrote to the Minister, seeking clarification on whether this
was a reference to enhancing the protection of residential or
business properties from undue interference. The Minister explained
that the purpose of this provision was broader and could include
the introduction of supplementary powers to enhance the effectiveness
of search powers to achieve their underlying purpose (for example,
child protection or the avoidance of tax evasion). He said:
In this context, it is important to bear in mind
that many powers of entry serve to protect individuals for example
from child abuse or threats to the environment which may be injurious
to health, consequently such powers should not be viewed purely
from the perspective of the impact on the individual whose property
is being entered into. The exercise of the order-making power
in Clause 41, and the duty to review existing powers of entry
in Clause 42, need to be viewed in this wider context. In these
circumstances expressly limiting the exercise of the order-making
power in Clause 41 in the manner suggested could inadvertently
limit the use of the order-making power to strengthen both the
rights of individuals as homeowners (or as business persons) and
those of persons whose rights may be infringed by the actions
of others necessitating appropriate and proportionate enforcement
action by relevant state authorities.[91]
115. We
are deeply concerned at the proposed breadth of these proposals
in light of the Minister's indication that the Henry VIII power
in Clause 41 may be used to extend powers of entry where Ministers
consider enforcement action is appropriate. At its broadest,
following the Minister's explanation, this power could be used
to introduce a power for State agents or others to use force to
affect an entry by way of delegated legislation. Alternatively,
it could be used to create new powers of entry or to remove restrictions
on existing powers. In our view, this is an inappropriately broad
delegation of powers in connection with the individual right to
privacy and the peaceful enjoyment of possessions in connection
with residential or commercial premises. We are not satisfied
that this ambiguous proposal is found in a Bill designed to reinstate
protections for individual rights and liberties.
116. We welcome
the recognition in the Bill that powers of entry should be strictly
limited to those circumstances in which such a power is justified,
necessary and accompanied by appropriate safeguards. The decision
to review all existing powers of entry is a welcome one. Our predecessor
Committee reported on the lack of safeguards accompanying these
types of powers on a number of occasions. We consider that a review
of existing powers of entry offers a clear opportunity to identify
where powers of entry continue to be justified, proportionate
and necessary. It also provides an opportunity to promote legal
certainty by including clear, basic statutory safeguards in connection
with each such power. In our view, at a minimum, each power of
entry should be strictly defined, including clear limits on the
circumstances when the power may be exercised and the identity
of the person or body exercising the power. We regret that the
review of existing powers was not completed before this legislation
was introduced.
117. We are
particularly concerned that, at this late stage in the Bill's
progress, Parliament has not been provided with an accessible,
conclusive list of each of the existing statutory powers of entry
which may be subject to review. In our view this is testimony
to the expansion of the use of powers of entry by the State and
illustrative of the need for Parliament to examine the proportionality
of these powers and their associated safeguards closely. We recommend
that the Government publish a final list of existing statutory
powers, accompanied by a clear indication of the scope of the
relevant power and the person or persons entitled to exercise
it, together with an outline of any relevant safeguards as a precursor
to its review and preferably before the next stage of this Bill's
progress in the House of Lords.
118. We are
concerned that since this review has not yet been completed, the
legislation proposed in this Bill is overly broad and creates
a risk that delegated legislation may be used in future in a way
which may create a risk to the right to respect for private life,
without adequate opportunity for scrutiny by Parliament.
We consider that, if a broad
power to amend and replace existing powers of entry is approved,
the Bill should be amended to limit this power to amendments which
introduce new safeguards against inappropriate use of powers of
entry or repeal existing powers. We propose an amendment for this
purpose, below.
119. The following amendment is proposed to limit
the power to rewrite powers of entry to measures which increase
protection for occupiers and to prevent the use of this power
to extend existing powers of entry.
Clause 41, page 32, line 11, insert after "protection",
"to right of the owner, tenant or occupier
of the property subject to the power to respect for private life,
home and correspondence and to the peaceful enjoyment of their
possessions, "
Clause 41, page 32, line 12, insert new subsection:
(4) No order under this section may:
(a) extend any existing power of entry or any
associated power connected with it;
(b) create any new power of entry or associated
power; or
(c) extend existing powers of entry to additional
persons or bodies.
120. The Bill also repeals a number of specific powers
of entry.[92] We wrote
to the Minister to ask why the provisions included in the Bill
for repeal should not include the power in the Tribunals, Courts
and Enforcement Act 2007 which permits the Secretary of State
to authorise by secondary legislation the use of force against
persons by bailiffs and others during civil recovery.[93]
This power has not yet been used. The Minister has explained that
the Ministry of Justice is conducting a review of the operation
of bailiffs and enforcement more widely, during which these provisions
will be considered. While we welcome the Minister's commitment
to a review of the regulation of bailiffs and the operation of
civil enforcement, we consider that the authorisation of the power
of non-State agents to use lawful force against individuals in
the course of debt recovery would introduce a significant risk
that the power could be used in a manner which could endanger
the right to life and the right to physical integrity of people
subject to enforcement action. Our predecessor Committee expressed
concern that this could be authorised by secondary legislation,
particularly when the regulation of private enforcement officers
was not significantly developed. We share those concerns.[94]
While we
welcome the wider review of the operation of enforcement measures
and the work of bailiffs, we consider that there is a particular
justification for the repeal of the power of the Secretary of
State to authorise the use of force by private operators. While
other powers of entry may also require reform or repeal, we consider
that the risks posed by this power are particularly stark.
121. This amendment would repeal the existing power
of the Secretary of State to use secondary legislation to authorise
bailiffs and their agents to use force against persons.
Schedule 2, page 110, line 14, insert following
new paragraph
Tribunals Courts and Enforcement Act 2007
(1) In Schedule 12, paragraph 4(2) of the
Tribunals Courts and Enforcement Act 2007, omit ",
except to the extent that regulations provide that it
does."
122. Earlier this year, we also reported that provisions
for all-premises and multiple-entry warrants in the Armed Forces
Bill could lead to violations of Article 8 ECHR. This reflected
the concerns raised by our predecessor Committee in connection
with similar civilian all-premises and multiple-entry warrants
in the Serious Organised Crime and Police Act 2005.[95]
Our predecessor Committee said that such broad powers to issue
warrants for entry and re-entry to multiple premises on multiple
occasions:
give justices of the peace authority to issue a general
warrant of a kind that has been anathema to the common law for
centuries on account of the very wide discretion it confers on
public officials, and the lack of effective prior judicial control
over the decision to enter (if need be, by force) private premises
including dwellings.[96]
123. The Government does not share our concern about
the operation of all-premises and multiple-entry warrants.[97]
124. We reiterate
our view that all-premises and multiple-entry warrants (civilian
and military) create new and unique risks for the right to respect
for privacy, as guaranteed by the common law and Article 8 ECHR.
86 See, for example, Entick v. Carrington (1765)
19 St Tr 102. In this leading case, the Court established as a
fundamental principle of law that the State may only act as the
law proscribes and that the individual may act freely unless otherwise
prohibited by law. However, the facts of the case involved the
inviolability of an individual's property without lawful authority.
Back
87
Article 8 ECHR protects private premises which are both residential
or commercial premises. Although Article 8 refers to protection
of home, it also protects private life, which has been interpreted
to include business premises. See for example: Niemietz v
Germany (1993) 16 EHRR 97, para 37. Back
88
Twentieth Report of 2005-06, Legislative Scrutiny: Tenth Progress
Report, HL 186/HC 1138, paras 251-261. Back
89
See, for example, Gambling Act 2006, ss316-325; Police and Criminal
Evidence Act, Part 2; Enterprise Act 2002, s194. Back
90
This is available on the Home Office website: http://www.homeoffice.gov.uk/publications/about-us/legislation/powers-entry/
Back
91
Ev 131 Back
92
Schedule 2. Back
93
Schedule 12, paragraph 24. Back
94
Fifth Report of 2006-07, Legislative Scrutiny: Third Progress
Report, HL 46/HC 303, para 2.22. Back
95
Twelfth Report of 2010-12, Armed Forces Bill, HL 145/HC
1037, paras 1.20-1.29. See also Fourth Report of 2004-05, Scrutiny:
First Progress Report, HL Paper 26, HC 224. Back
96
Fourth Report of 2004-05, Scrutiny: First Progress Report,
HL Paper 26, HC 224, para 1.91. Back
97
TheGovernmentrespondedtoourReportinAugust2011.AcopyisavailableontheCommittee'swebsite:http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/leg-scru-201011/armed-forces-bill/Paragraphs5and6dealwithpowersofentry. Back
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