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Lord Campbell of Alloway: My Lords, I support this amendment. If the provisions cannot be assimilated on the face of the Bill, I can understand that there is a case for not doing so and to avoid encumbering the Bill with a mass of detail. However, it is essential that some form of undertaking should be given by the Government to introduce the spirit of these provisions by regulation. My hope and respectful request is that this matter should not be disposed of today, but that time should be given for the Government to consider whether their substance should be incorporated in regulations.
Lord Lester of Herne Hill: My Lords, I am sympathetic to the object of this and the next amendment, which is to provide effective remedies against the arbitrary exercise of the powers to be conferred by the Bill in relation to the seizure and detention of property. I also believe that, where possible, statute law itself should explain the powers, their limits and the remedies to be provided and that one should not always have recourse—as I am about to do—to the Human Rights Act 1998 to come to the rescue of legislation. That is not wholly satisfactory for the citizen who cannot tell from a reading of the Bill exactly what the powers are and their limits.
I declare an interest. I recently professionally represented the hauliers, drivers and lorry companies who were subject to detaining and fining powers for bringing clandestine entrants into the United Kingdom. The case was decided a week or so ago by the Court of Appeal using the Human Rights Act. It decided that some of the relevant provisions were incompatible with the European Convention on Human Rights, in particular the right to a fair hearing in Article 6 and the right to the enjoyment of one's property without arbitrary interference under
Article 1 of the First Protocol. In effect, the court found that it could not read in the necessary safeguards and therefore granted what is known as a declaration of incompatibility.But in this case it does not seem to me that the Human Rights Act would lead to that result, that is to say, in the kind of situation to which the noble Earl, Lord Howe, referred. It would not be a question of the words of Clause 14 being capable of being read only in a particular way. I believe that the court would use the Human Rights Act to read in the necessary safeguards. Let us take the example of seizing property and for no good reason detaining and damaging the business of an undertaking in a serious way. That would be a classic example of proceedings for breach of the duty in Section 6 of the Human Rights Act in the way in which these powers were exercised. There is the remedy of compensation as a last resort under that Act.
I was not present at the meeting of the Joint Select Committee on Human Rights that considered the Bill, but I have read its report. We did not find it necessary to refer to this as a significant issue to draw to the attention of both Houses.
Lord Filkin: My Lords, I rise with some trepidation to respond to the noble Lords, Lord Lester and Lord Campbell of Alloway, and the noble Earl, Lord Howe, all speaking in the same area. Perhaps I may set out why I believe the dangers are not as great as has been suggested. I am certain that the noble Earl recognises that in the legislation there need to be powers of entry and seizure; otherwise prosecutions will be impossible. I am certain that the noble Earl was not seeking to argue against that.
But there is a distinction between goods and documents which is relevant to our discussion. In short, the Food Safety Act, about which we spoke in Committee, effectively gives an aggrieved person a right of redress if their goods are seized because they could be of considerable financial value. In fact, it is our interpretation that the Consumer Protection Act does not give a similar power of redress in relation to the seizure of documents—as I shall seek to illustrate—which is what we are talking about in this respect. We are basically talking about the seizure of evidence that could demonstrate that an organisation or a company had sought to promote tobacco.
Finally, perhaps I may refer to remedies and to the suggestion made by the noble Lord, Lord Campbell of Alloway. The first new clause would give any person whose goods are detained by an enforcement officer under Clause 14(1)(c) the right to apply to a court to have them returned. It repeats the wording of Section 33 of the Consumer Protection Act.
Clause 14(1)(c) gives an enforcement officer the power to take possession of any book, document, data, record or product and retain it as long as he considers it necessary for the purpose.
The second new clause would give a right to compensation to anyone whose goods are detained in connection with the provisions of the Bill where there is no culpable behaviour on his part. It follows closely the wording of the Consumer Protection Act.
Clause 14 follows closely the equivalent provisions in the draft regulations which were made in connection with European Directive 98/43/EC. We consulted widely on the regulations and received no representations to the effect that a provision for appeal similar to these new clauses might be necessary.
The Bill deals with advertising, and the type of items which might be seized would be a sample poster or magazine to produce as evidence to demonstrate that tobacco advertising was published in it. They would have little intrinsic value. By contrast, the Consumer Protection Act confers powers to take away large quantities of goods on the grounds that they are unsafe, such as toys with loose eyes, or furniture which breaches fire safety standards, which might carry a significant financial value.
Sections 33 and 34 of the Consumer Protection Act do not deal with items such as computer hard disks which form part of the evidence only. They are intended to deal with consignments of dangerous toys or inflammable furniture which are alleged to be in breach of safety regulations, but not the records detained for use as evidence. The CPA makes a clear distinction between the use of the words "goods" and "records", the latter including records in non-documentary form. Section 34 of that Act provides that the enforcement authority may be liable to pay compensation for loss or damage caused by reason of the exercise of the power to seize or detain goods,
- "if there has been no contravention in relation to the goods of any safety provision or of any provision made by or under Part III of the Act".
Nothing in the Bill prevents a person who requires the return of some detained item or who has suffered loss or damage as a result of the seizure seeking its return or seeking damages in civil proceedings. Indeed, we talked in Committee about what one would expect to be the straightforward response, and an aggrieved person would make representations that the documents were necessary for the pursuit of his or her business. One would expect in such a situation—for example, if the documents contained a computer disk containing financial accounts and the person did not have a back-up copy—that the authority would provide a copy. Indeed, it would be unreasonable for it not to do so in such circumstances.
Reference was made to remedies. There clearly would be remedies under judicial review. The noble Lord, Lord Lester, indicated that an action might infringe the human rights legislation. Clearly, in extreme circumstances, if a local authority—and that is what we are talking about—did not respond reasonably, there could be a civil action for damages against the local authority or the Department of Health, which is the other potential prosecuting and investigating body.
For those reasons, we are not talking about the loss of substantial goods. It is possible that the taking away of documentation could interfere with the functioning of the business. That is a long shot; nevertheless, it would be unreasonable not to provide a copy to allow the continuing operation of the business while allowing the prosecution to go forward.
For those reasons, we do not believe that the amendments are necessary. We believe that there is already adequate protection as regards the mischief against which they seek to protect.
3 p.m.
Lord Skelmersdale: My Lords, I am not sure whether I ought to be asking this question before the Minister sits down or whether I can do it in the normal course of debate. Thanks to my noble friend Lord Geddes, I am now somewhat confused. Be that as it may, we seem to have arrived at a position in which, rather than the words of the Bill itself, we shall have to rely on another piece of legislation—namely the Human Rights Act 1998. That cannot be very satisfactory, can it?
Lord Filkin: My Lords, I think that the human rights legislation gives very broad comfort in very many circumstances and that the House has already seen its benefit. I realise that I did not respond to the suggestion of the noble Lord, Lord Campbell of Alloway, that regulation or guidance might put beyond doubt some of the issues that I have described. Although I cannot make a guarantee or commitment on the suggestion, we shall certainly consider it.
Lord Clement-Jones: My Lords, we have had a very interesting debate on whether to import two sections from the Consumer Protection Act, and I do not propose to add a great deal to what has been said, particularly by the Minister and by my noble friend Lord Lester. We have a number of responses to the proposal to incorporate the two sections. The first is that the Bill will operate in the context of the Human Rights Act and the protection that it offers to those who believe that they have not been treated properly. Secondly, the Minister was particularly cogent on the differences between the items that will be seized by this legislation and those which are the subject of the Consumer Protection Act. As he said, documentation and disks are not covered by the Bill in the same way they are covered by the CPA.
Thirdly, the noble Earl, Lord Howe, said that the issue was not so much about the seriousness of the offence or the subject matter, but all about the potential harm. He almost made the argument against his own amendments. I also believe that—in relation to the protection offered by the CPA and the provisions of that legislation—disks and documents are treated differently in this legislation. Therefore, the potential harm is reduced.
I welcome the Minister's undertaking to consider the regulation issue, which the noble Lord, Lord Campbell of Alloway, raised. Although I realise that the Minister could not make a commitment, he has
undertaken to consider the issue as and when the Bill moves on to be considered in another place. I can understand why the noble Earl, Lord Howe, has raised these issues, but I do not believe that they are necessary in practice or that they would add greatly to the Bill.
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