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Lord Cope of Berkeley: My Lords, I do not take the view taken by the noble Lord, Lord Thomas, that it is essential for any firm contracting to a public authority or acting as a public authority to be approved. I am concerned, as I have expressed on other occasions and in other contexts, that this new authority will have an awful lot to do and will have great responsibilities in its early stages. To make it essential on the face of the Bill that everyone acting as a public authority should have to be an approved contractor would add to the work of the authority in the early stages very considerably. It could make for inflexibility in the whole scheme. For that reason, I do not at the moment find myself in support of what is proposed. I am not necessarily against the idea that once all this is up and running and has been going for a little while public authorities should require in their tendering mechanism that only approved contractors can tender for the appropriate contracts. I think that that might be a better way of doing it.
Lord Bassam of Brighton: My Lords, this amendment seeks to ensure that those contractors applying for approved contractor status would be deemed to be acting as a public authority under the Human Rights Act 1998. Clause 15 establishes a duty on the authority to make arrangements for granting approvals to the providers of security services who
The noble Lord's amendment would mean that each provider of security services seeking approval would be deemed to be a public authority under the provisions of the Human Rights Act. Although the Act does not give a precise definition of a public authority, it does cover all central and local government bodies, the courts, the police, all government agencies, non-departmental public bodies, and the like. It may be helpful if I take this opportunity to confirm that the security industry authority itself, as an NDPB, would be covered by the provisions of the Act. It would be under a duty to act compatibly with rights provided for by the European Convention on Human Rights. If a person's rights were harmed, they could instigate legal proceedings against the security industry authority.
The provisions of the Act can also extend to a private body when it carries out a public function. If they regulate, direct or affect the public, or a group of the public, then they are likely to be covered by the Act. The Human Rights Act deliberately does not explain the meaning of a public authority or a public function in detail. Of course it is for the courts to interpret the Act and to decide what are "public authorities" and "public functions", and what are not. We consider it important that this discretion is left as it is, with the courts; and for that reason we cannot accept the noble Lord's amendment. I hope that, having heard this explanation, he will feel able to withdraw it.
The noble Lord said: My Lords, I beg to move this amendment, which goes to the question of powers of entry into domestic premises. I raised the possibility that there might be a house where the wife ran an unrelated business, and this might open up their home to the authority's private powers of entry. In his letter to me of 13th March the noble Lord, Lord Bassam, conceded that a narrow reading of Clause 19(1) might yield this interpretation. Nevertheless, he thought that the authority should not exercise its powers in such circumstances. I am paraphrasing what he said. He suggested that he might put the matter on record at Third Reading. It would be most helpful if he did.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for giving me the opportunity to put the matter on record. As the noble Lord said, the amendment follows a concern that was also raised at an earlier stage.
It is a helpful amendment which perhaps seeks to clarify policy in the area. The noble Lord expressed his concern earlier about the position of premises occupied by a licence holder from which his partner or wife might operate a completely unrelated business. He was concerned that this set of circumstances might bring it within the scope of the Bill. The amendment seeks to clarify that the powers of entry and inspection would only apply to premises owned or occupied by a person appearing to be a regulated person and used by them for the purposes of business.
There are no differences between our views on the issue. I agree that premises which are used exclusively for residential purposes or used by a non-licence holder to run an unrelated business should not be subject to inspections. The amendment already approved by your Lordships on Report achieves that aim and objective.
Premises used exclusively for residential purposes are excluded. Inspectors would have no cause to enter premises used for the running of a completely and totally unrelated business. The authority's duties and powers are limited to private security activities. Consequently, inspectors operating on behalf of the authority would not be able to justify entering residential premises used for an entirely different business.
Lord Cope of Berkeley: My Lords, I should have made clear that it is not only a wife or partner, it could be anyone who was running the unrelated business. In the light of the Minister's remarks, I beg leave to withdraw the amendment.
Lord Davies of Oldham: My Lords, on Report, I listened to the noble Lord, Lord Swinfen, when he presented his argument. During the course of those proceedings some changes were made to the clause. Without the aid of a dictionary immediately to hand, I am loath to remotely challenge his definitions in the Oxford English Dictionary of the word "conduct". But I hope to be able to persuade him that the provisions in the Bill accurately cover the issues over which he has expressed concern.
Clause 19(4) places a number of requirements on a person carrying out an inspection on behalf of the security industry authority. On Report, after helpful debate in Committee, these requirements were added to Clause 19. They seek to balance the authority's ability to enforce its licensing regime with a proper respect for the civil liberties of persons regulated by the Bill.
The noble Lord is concerned about one particular aspect; namely, the requirement in the clause for persons undertaking inspections to make a record of their "conduct", as opposed to his preferred formulation--a record of their "actions". He is concerned that the current wording of the clause limits the subject matter of the inspection record to one relating to the way in which the inspector behaves himself. That is--the noble Lord referred to it again--whether he did so well and honourably. His fear is that a clever lawyer may seek to get a client off the hook by misconstruing that word. I am all for making sure that we have clear legislation to ensure that people do not evade their responsibilities through what might be regarded as an unfair legal process.
I am grateful for the amendment of the noble Lord. We have looked again at the word in question in the light of his representations on Report. I hope to reassure the House, however, by saying that I do not believe that his fears are justified. As my noble friend explained on Report, the intention of Clause 19(4) is to require the details of what occurred during an inspection visit to be placed on record--when the inspector arrived; for what purpose; how long he stayed; what he did while there; and other relevant facts. It should be a full record of the inspection and a copy should be made available to the regulated person.
Perhaps I may also point to the requirement in Clause 20 for the authority to prepare and publish guidance on the manner in which the important powers of entry and inspection are to be used. I am quite sure that the guidance will go into further detail about the nature of the record of inspection that is to be made.
I hope, therefore, that the noble Lord will recognise that we have taken very seriously his representations on this point. We believe that the word "conduct" covers the whole aspect of actions during the course of such an inspection. On that basis, I hope that he will feel able to withdraw his amendment.
Lord Swinfen: My Lords, the noble Lord has not wholly convinced me with his response. Can he tell me whether any other piece of legislation uses the word "conduct" when a report on the search of premises has to be made, rather than "actions" or, indeed, another more suitable word?
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