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Lord Lester of Herne Hill: My Lords, I have not taken part in previous debates on the Bill and I hope that I will not bore the House with one or two legal points.
I should like to explain why I do not consider this amendment—or indeed some of the others we shall be considering shortly—to be necessary. In a nutshell, Clause 14 creates powers of entry, search and seizure provided that the relevant enforcement authority considers—the word "considers" is used throughout—it necessary.
It is quite clear as a matter of English administrative law that when a public authority exercises powers of this character, it must be exercised lawfully—that is, for a proper purpose—rationally and fairly. Those are the principles of English administrative law. Those principles are now buttressed by the Human Rights Act 1998, Section 6 of which imposes a duty on the enforcement authority to act in a way compatible with the right to respect for private life and correspondence at home guaranteed by Article 8 of the convention, and also the right to property guaranteed by Article 1 of the first protocol.
Effective remedies are given under the Human Rights Act by way of proceedings under Section 7 for breach, with remedies under Section 8. Therefore, as lawyers would say, with respect, the amendment is surplus or otiose.
Lord Skelmersdale: My Lords, as my noble friend Lord Howe referred to the letter that I received from the Minister on this subject, I should say that, compared to the other letter to which I referred several hours ago, it was sent remarkably promptly.
As my noble friend said, the letter was about the equivalence of powers in the Consumer Protection Act. The Minister made the point that the powers in Clause 14(1) and (2) of the Bill are all subject to the proviso that they can be used only for the purpose of the proper exercise of an enforcement officer's functions. I understand that. However, I do not understand Clause 14(2) and (5), which confer powers on an enforcement officer to be exercised when he considers it necessary. The CPA equivalents are contained in Sections 28(1) and 30(3) of that Act, but elsewhere in the Act there is a requirement for the officer to act reasonably. I cannot see, therefore, why there should not be an equivalent provision in the Bill.
Lord Filkin: My Lords, the amendments seek to put on the face of the Bill an express requirement on enforcement officers to act reasonably when they are exercising their powers to carry out inspections, to take possession, to retain items and to require information. In short, the Government's position, which has been better stated than I can by the noble Lord, Lord Lester, is that there is already adequate protection in law to prevent against the mischief about which the noble Lord is concerned.
We have considered the point raised but the Government still consider that the amendments are not necessary for the following reasons. First, there is no reason why the drafting of legislation should necessarily mirror an Act passed some 15 years previously. Secondly, in practice there will be no significant difference between the powers conferred on enforcement officers by the Bill in respect of tobacco advertisements and those which they already have under the Consumer Protection Act. The usual approach of the courts in such a case is to inquire whether a reasonable person could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. Meanwhile, where a provision requires reasonable grounds for
believing, the courts will consider not only whether there are reasonable grounds for that belief but whether the person in question actually believed them.I recognise that noble Lords are concerned to ensure that enforcement is carried out responsibly and that trading standards officers do not play fast and loose with the law. That point was discussed in Committee. However, there is no need for these amendments because the duty to act reasonably already applies very clearly. Enforcement officers can already be held to account for the exercise of their duties, and indeed any trading standards officer who misconducts himself in the execution of his duties is guilty of an offence and liable on summary conviction to a fine of up to £5,000 under the Weights and Measures Act 1985. What is of fundamental significance is the fact that no prosecution could succeed if enforcement officers were seen to have acted unreasonably.
For these reasons, the Government believe it is unnecessary to pad out the Bill with references of this kind. Moreover, the powers in Clause 14(1)(b), (d) and (e), which the noble Lord seeks to amend, are all dependent on Clause 14(1)(a), which provides that they can only be used for the proper exercise of functions under this Bill. If an enforcement officer attempted to carry out an inspection which was not for the purpose of the proper exercise of his functions he would in any case be acting in excess of his powers and any subsequent prosecution based on information obtained as a result of his inspection would be liable to fail.
We recognised in Committee that trading standards officers are a competent and professional group of people. Of course there may be exceptions, but on the whole they have a wealth of experience in working in the community and tend to approach the exercise of their responsibilities in a prudent and proportionate manner. As we have said, their approach is aimed more at education than prosecution, which is viewed as a last resort. Therefore I do not believe that the dangers which have been pointed to will occur in the Bill as it stands.
Lord Clement-Jones: My Lords, I do not propose to add very much to what the Minister has said. Indeed, having had the benefit of the very succinct statement of my noble friend Lord Lester about the position, far be it from me to add to that. I shall obviously have to hire him again in the future—I cannot afford him: quite right!
The Minister has set out very clearly that decisions, both in terms of civil and criminal law, would be open to challenge and fine if a trading standards officer did not act reasonably or did not have reasonable grounds. I agree with the Minister that it is not necessary to include references of this kind in the Bill, and that to do so would be inconsistent since this amendment would apply only to some references and not to others. How would that be applied consistently? I urge your Lordships not to support this amendment.
Earl Howe: My Lords, I am grateful to the Minister and to the noble Lords, Lord Lester and Lord Clement-Jones, for their helpful explanations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55 and 56 not moved.]
Clause 15 [Obstruction, etc. of officers]:
Lord Clement-Jones moved Amendments Nos. 57 to 59 :
- Page 9, line 1, leave out from beginning to end of line 2 and insert "A person does not commit an offence under subsection (2) if—"
- Page 9, line 3, leave out "that"
- Page 9, line 4, leave out first "that"
The noble Lord said: My Lords, I beg to move these amendments en bloc.
On Question, amendments agreed to.
2.45 p.m.
Earl Howe moved Amendment No. 60:
- After Clause 15, insert the following new clause—
The noble Earl said: My Lords, my noble friend Lady Noakes drew attention in Committee to the absence from this Bill of any statutory protection for a person who finds himself on the receiving end of an enforcement action under the powers granted to authorised officers under Clause 14. I should like to pursue that issue today by moving Amendment No. 60 and in doing so to speak also to Amendment No. 61.
Under Clause 14 an authorised officer is given the authority without notice and without further reference to anyone to enter business premises, to inspect those
That is an extremely comprehensive and authoritarian set of powers by any standards, and I have not read out all of them. It is comparable in extent and scope to the powers under other legislation of the Commission for Health Improvement or even Customs and Excise. Whereas both those bodies have the duty to investigate matters of potentially grave import for healthcare, the public purse or whatever the case may be, it is difficult to see how, in the generality of cases, issues of similar gravity arise under this Bill. I do not say that it is necessarily inappropriate to have such powers in Clause 14. But what is striking is that there is no remedy available on the face of the Bill to the person whose books or goods have been seized and taken away.
Despite the reply of the Minister in Committee when he indicated that in practice there was really nothing to worry about here, it is disquieting to me that, as the Bill stands, there is nothing that one can easily and immediately do if, for example, an enforcement officer takes away goods and then takes no further action for weeks or months. Even if the items are eventually returned, there is nothing the owner can do if his business has been grossly disrupted by the loss of them and if all along he was completely guiltless of any offence. In the first case, there is neither a way of getting the goods back short of civil action nor, in the second, a remedy for innocent parties to be compensated for the wrongful actions of the authorities. Both such remedies are available under the Consumer Protection Act. The amendments I have tabled are modelled closely on Sections 33 and 34 of that Act.
In Committee, the Minister expressed the view that there was no need for such amendments in a Bill of this kind. The first reason he gave was the gravity of the subject matter in the Consumer Protection Act where the powers are necessarily far reaching and, by implication therefore, appropriate remedies need to be built in. The second reason he gave was that under this Bill anything taken away was likely to be of small value. Thirdly, he said that he expected that common sense would prevail. With the greatest respect to the noble Lord, I suggest that he missed the point here. To say that because tobacco promotion is not as serious as, say, some of the offences listed in the Consumer Protection Act and that, therefore, equivalent protection is not needed for those on the receiving end of the enforcement powers is, I suggest, a non sequitur. In general, the subject matter of this Bill may indeed be less serious than that of the Consumer Protection Act. Nevertheless, wide-ranging and authoritarian powers are built into it. What matters is not the seriousness of the alleged offence but the potential harm that could be done to those against whom the Bill's powers will be used.
The noble Lord says that the degree of harm in such instances is likely to be small. I disagree. Any business which has its documents or records seized will necessarily be disrupted. Any business whose goods are taken away will suffer financially. It is all very well to trust to common sense in imagining the use of the enforcement powers. But, as drafted, the powers in Clause 14 are unfettered, taking into account the helpful remarks of the noble Lord, Lord Lester, on the previous group of amendments. They can be used against a wide range of businesses—printers, distributors advertisers, newsagents, specialist tobacconists and so on. We have heard that any items seized may be retained by the enforcement authority only for as long as is reasonably necessary. But we know how the system works. The Bill invites an "act first, ask questions later" approach. In that sense, it gives carte blanche. It will always be possible for an authority to present its own view of what it considers to be necessary in a given set of circumstances.
Such a Bill should protect the small man. It should provide simple, inexpensive remedies. It should provide a deterrent to any wanton misuse of the enforcement powers. That is the purpose of my amendment. I beg to move.
"APPEALS AGAINST DETENTION OF GOODS
(1) Any person having an interest in any goods which are for the time being detained under any provisions of this Act by an enforcement authority, or by a duly authorised officer of such an authority, may apply for an order requiring the goods to be released to him or another person.
(2) An application under this section may be made—
(a) to any magistrates' court in which proceedings have been brought in England and Wales or Northern Ireland; or
(b) in Scotland, by summary application to the sheriff.
(3) On application under this section to a magistrates' court or to the sheriff, an order requiring goods to be released shall be made only if the court or sheriff is satisfied—
(a) that the proceedings under this Act have not been brought; and
(b) where no such proceedings have been brought, that more than six months have elapsed since the goods were seized.
(4) Any person aggrieved by an order made under this section by a magistrates' court in England and Wales or Northern Ireland, or by a decision of such a court not to make such an order, may appeal against that order or decision—
(a) in England and Wales, to the Crown Court; or
(b) in Northern Ireland, to the county court;
and an order so made may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal (including any application under section 111 of the Magistrates' Courts Act 1980 (c. 43) or Article 146 of the Magistrates' Courts (Northern Ireland) Order 1981 (statement of case)."
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