Legislative Scrutiny: Protection of Freedoms Bill - Human Rights Joint Committee Contents


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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Prepared 7 October 2011