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Lord Mackay of Ardbrecknish moved Amendment No. 5:
- Page 5, line 26, at end insert--
The noble Lord said: This is a probing amendment in which I am again comparing Clause 4 with Clause 5. In Clause 4, for our own inspections, especially in relation to searching a person of the opposite sex, Clause 4(7) provides that:
Lord McIntosh of Haringey: There is a simple answer: the Bill does not give the agency inspectors the power to search individuals in the first place.
Lord Mackay of Ardbrecknish: There is nothing like a simple answer to satisfy a questioner! I am grateful to the Minister for that and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish moved Amendment No. 6:
Lord McIntosh of Haringey: There are a number of reasons why we do not consider this amendment desirable. The Bill permits an authorised officer to accompany an agency inspector but does not require it. It does not specify when an authorised officer should attend, leaving it in practice to the DTI safeguards
First, if the Bill were in the terms proposed by the amendment, the UK would risk being in breach of the Additional Protocol. I apologise for using the phrase again but the noble Lord now knows why we say "likely" or "at risk".
Article 4(f) provides that the UK's right to have agency inspectors accompanied must not delay or impede inspectors in exercise of their functions; and an inspector could be impeded or delayed if he or she could not act without an authorised officer being present, or if the inspector had to wait for a ruling from the Secretary of State before being able to proceed alone.
One can also see the scope for abuse if other states included such provisions. The authorities in a regime which was concealing nuclear activity--and I suppose I refer to Iraq again but I imagine there are others; North Korea, for example, or Cuba at times--could defeat the object of an inspection by requiring inspectors to wait until a state official arrived or some government minister had given a dispensation. Again, the experience with the IAEA Action Team in Iraq shows that this is a real concern. We must not include provisions in our legislation which could be copied by other countries which might use them to undermine the safeguard system, and that indeed was the answer I hoped I had made to the previous group of amendments.
In any case, it would be unnecessarily inflexible to require an authorised officer to be present on every occasion when an agency inspector proposes to exercise the rights given by Clause 5. The number of visits which will be performed under the Additional Protocol is not known but there are likely to be few, and in practice Safeguard Office officials are likely to attend many of these visits. However, in some circumstances it would only be practical to allow visits to proceed without an authorised officer present. The protocol allows in extreme cases that visits be called with two hours' notice or less. If an authorised officer were required to be present it is difficult to see how these extreme cases would work. The authorised officer might be delayed, he might be ill or called to an emergency elsewhere, or be caught up in an accident, and that would hold up the whole inspection.
The noble Lord may point to Amendment No. 7 and say that the Secretary of State could always dispense with that, but under the examples I have given it could well be impossible to obtain a direction from the Secretary of State in anything like an appropriate timescale. We would land up with the Secretary of State giving specific rulings in ordinary cases, in other words where no accompaniment by an authorised officer was required, and not being involved in emergency cases of the kind that I have described. That
Lord Mackay of Ardbrecknish: Again, I am grateful to the Minister. He has answered one of the questions which was forming in my mind. I am paraphrasing, so I hope I am right, but by and large officials of the department's inspectorate would accompany the agency's inspectors. That would be the norm. I may have lifted this wrongly from what the Minister said, but I did not say they would be with them every time; I said by and large they will be with them, and therefore the protection will be there most of the time.
Lord McIntosh of Haringey: I want only to be precise. I did not say "most of the time", I said "many of the inspectors". I would not like to mislead the noble Lord.
Lord MacKay of Ardbrecknish: I was paraphrasing. I managed just to write down "Send somebody to accompany" as the noble Lord was speaking, but I had the impression that at least on a number of occasions there would be a joint exercise to ensure that nothing untoward is happening. In those circumstances I understand why in certain circumstances the agency needs to go on its own, and I also understand that that reaches across to other countries, who might say, "If they can do it in Britain we can do it here, and you will have to wait 10 days before an agency inspector comes". I do not believe that would ever happen in this country but I understand the point, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 7 and 8 not moved.]
Lord Mackay of Ardbrecknish moved Amendment No. 9:
The noble Lord said: This is a simple amendment which almost seems to be asking about regulation and wanting more regulation, or asking how it will be done. I am asking that the certificate giving notification should be in a form that will be recognised by people who know about these matters.
I am sure the Minister knows that there are many regulations that actually set out the form in which a certificate will appear. We have almost a blank form in which the names of the people involved are not filled in, but the surrounding print is filled in and we know exactly what the form is. When someone who knows about these matters--and one presumes that the recipient of such a certificate will know about them--receives a certificate that person will be able to see at a glance that it is indeed in the form in which the certificate should be. I wonder whether we should say that the format of the certificate will in fact be published in regulation. I am sure the Minister will give
Lord McIntosh of Haringey: I hope we have a straightforward misunderstanding here. This is not a certificate to allow entry to any premises in any circumstances. An agency inspector does not need such a certificate in order to be able to exercise the rights of entry given under Clause 5. The only purpose of this certificate is to enable the Secretary of State to resolve definitively any dispute about whether a person is or is not an agency inspector, if such a dispute ever arises in court proceedings. As you can imagine, it could well be a defence in court proceedings if it is asked: "Is this person, or is he not, an agency inspector?" If you did not have a certificate by the Secretary of State, you might end up producing witnesses as to identity and all sorts of delay and complication in the court proceedings themselves, which would be quite unnecessary, whereas the Secretary of State, who knows, could give a certificate which would settle the issue conclusively. It would only be given when it was brought into question in court, and not before.
As to the form of the certificate, we do not yet know, because it has never been tried, what form the courts would demand of such a certificate. It is not like regulations, where it is desirable for the purposes of the general public, for there to be an agreed format. This is something the courts will determine for themselves in due course.
("( ) No Agency inspector shall, by virtue of this section, search a person of the opposite sex.").
"No constable shall, by virtue of subsection (6)(b), search a person of the opposite sex".
I am, therefore, wondering why there is not a similar provision in Clause 5 relating to the agency inspectors. We surely cannot have a male inspector--if he has to--searching a woman or, probably less sensitively, vice versa. If it is good enough for one clause then it should also be in the other clause which deals with agency inspectors. I beg to move.
Page 5, line 27, leave out ("may") and insert ("must").
The noble Lord said: In a way, this is a fall-back position if the Government do not--as indeed they did not--accept the need for a search warrant for the agency inspectors. My amendment suggests that those inspectors must be accompanied by an authorised officer--that is, one of our own officials--unless the Secretary of State says so. That should prevent agents of an international agency entering and searching premises and individuals without anybody present who understands the need for warrants and the tradition of personal freedom in this country. If the Government think that "may" is sufficient, there is surely nothing in principle to prevent "must", with a provision for any special circumstances; namely that the Secretary of State can authorise a situation in which they need not have a home-grown official with them. I beg to move.
Page 5, line 38, at end insert--
("( ) For the purposes of subsection (6) a certificate authorising entry by an Agency inspector shall be in a form published in regulations and of which due notification has been given in accordance with section 3 (5).").
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