Protection of Freedoms Act 2012 (Code of Practice for Powers of Entry and Description of Relevant Persons) Order 2015

Tuesday 27th January 2015 Grand Committee

Motion to Consider

16:24

Moved by

[Baroness Williams of Trafford]

That the Grand Committee do consider the Protection of Freedoms Act 2012 (Code of Practice for Powers of Entry and Description of Relevant Persons) Order 2015.

Relevant document: 17th Report from the Joint Committee on Statutory Instruments

[Baroness Williams of Trafford (Con)]

My Lords, the Government recognise the importance of respecting human rights and are committed to preserving the rights of individuals in their homes and businesses not to undergo unnecessary intrusion. The Government have consistently made very clear their intention that public authorities should have fewer powers to enter people’s homes and that the privacy and rights of home owners and businesses should be protected and strengthened wherever possible. It is essential that powers of entry, as with any enforcement power, achieve the right balance between the need to enforce the law and ensure public protection, and providing sufficient safeguards and rights for the individual.

Powers of entry are statutory powers for a person to enter land or other premises for a specific purpose. Such powers are important tools that facilitate the protection of the public from harm, enable the effective investigation of offences and allow for the necessary enforcement of regulations. It is sometimes necessary to enter premises. However, we recognise that doing so can place burdens on businesses and individuals, and we have therefore sought to correct this.

The Protection of Freedoms Act 2012 introduced a number of measures to rationalise the more than 1,200 powers of entry that were available in statute. The Act required Ministers who have responsibility for powers of entry to, for the first time, examine those powers together, consider whether they were still necessary and proportionate and, crucially, consider whether they contained sufficient safeguards. Reports laid before Parliament in November last year proposed significant reform. The Act also provided for the introduction of a code of practice containing guidance about powers of entry and associated powers.

Following the review of existing powers of entry, this order provides for such a code of practice to come into force on 6 April this year. The order also describes those who will be covered by the term “relevant person” for the purposes of entry to premises. Subject to certain exceptions, this will mean that, in future, any person exercising a power of entry will be obliged to have regard to the new code. The two exceptions to the definition of “relevant person” are that, first, the person concerned is exercising a devolved power of entry and, secondly, that the exercise of the particular power of entry is subject to a separate statutory code of practice.

The relevant code of practice to which this order relates was first published last December. It provides guidance and sets out considerations that apply before, during and after the exercise of powers of entry—for example, that an occupier needs to be provided with written notice at least 48 hours before entry and that reasonable efforts should be made to obtain the informed consent of the occupier.

Of course, many of the considerations set out in the code already exist in statute in relation to certain powers of entry. It is therefore important that the code of practice does not override existing provisions and introduce unwelcome complication. The purpose of the code is simply to provide for a minimum level of safeguards to be applied broadly across powers of entry and to increase the consistency and transparency with which they are exercised. Where particular safeguards already exist in statute, the code will not alter or replace them.

Under the recent review, we proposed significant reform to existing powers of entry under statute. This code seeks to build on that reform and ensure that all entry to premises is exercised in a more proportionate and less intrusive manner, while upholding effective enforcement where necessary. I beg to move.

[Lord Rosser (Lab)]

My Lords, I thank the Minister for explaining the purpose of and background to this order. The Explanatory Memorandum indicates that the Secretary of State has been obliged to prepare a code of practice containing guidance about the exercise of powers of entry under, I believe, Section 47 of the Protection of Freedoms Act 2012.

Why does it appear to have taken a quite considerable period of time to produce the code? The public consultation took place over some six weeks at the beginning of 2013, and it does not appear that the Government were exactly overwhelmed with responses, since there were apparently just 28. What has been happening since the beginning of March last year? Could the Minister also say who was consulted on the code? The 2012 Act places a requirement on the Secretary of State to consult various people in the course of preparing the code of practice and in relation to the description of “relevant persons”.

16:30

Paragraph 8 of the Explanatory Memorandum refers to government departments, operational and enforcement bodies, businesses that exercise powers of entry and the Association of Licensed Multiple Retailers being consulted, but this code also covers powers of entry into domestic dwellings, for example. How, and to what extent, was consultation carried out with home owners and other private citizens?

The Explanatory Memorandum refers to the review of existing powers of entry identifying 1,237 separate examples. Are all those 1,237 existing cases or examples now covered by this code? Have any of those 1,237 separate powers identified subsequently been abolished on the grounds that, on reflection, they were no longer deemed necessary or appropriate?

During the consultation that took place, which seems to have been mainly, although not exclusively, with those exercising the powers of entry rather than those on the receiving end of such powers, did any organisations or authorities currently exercising power of entry argue that the terms of the code of practice would make the operation of their powers of entry less effective or efficient in any way than is currently the case, and if so, in what regard?

A power of entry is by its very nature an intrusive device. I note that there will be an internal review of the working of the code of practice after five years. Why was five years chosen? What will happen if issues with the new code come to light early on? Will they have to wait for the end of the five-year period to be considered and addressed?

Although powers of entry and associated powers can be important in protecting the public from harm and in enabling effective investigations leading to the necessary enforcement of regulations, it is imperative that relevant persons are aware of the standards that should be met in exercising powers of entry. It is also important that there should be transparency in this area of activity in order to minimise, as far as possible and practicable, the impact of entry and intrusion into homes and businesses. We welcome the code of practice and the greater consistency of approach to the exercise of the power of entry and associated powers which it is designed to deliver, as well as the safeguards which the code contains. I hope the Minister will be able to give me a response to the points I have raised, either now or subsequently, but we support the order.

[Baroness Williams of Trafford]

My Lords, I thank the noble Lord, Lord Rosser, for his contribution and hope that I can satisfy him on some if not all of the questions that he asked.

The review of all existing powers of entry identified more than 1,200 such powers. The noble Lord, Lord Rosser, asked why it took so long. I suppose the answer is, in part, that there were more than 1,200 separate powers, exercised in a very broad range of circumstances, and the review was therefore quite a considerable and complex task. It was really the first time that the Government considered these powers of entry as a whole rather than in parts. Although it took a while, I hope the noble Lord is satisfied about why it did. The important thing is that the review was carried out.

[Lord Rosser]

I certainly do not wish to pursue this point in great detail, but the consultation on the draft code of practice finished at the beginning of 2013, so presumably the draft code of practice reflected the 1,237 separate powers and how they could be brought together into a draft code of practice to produce greater conformity and consistency. What I cannot understand is why, the consultation on the draft code of practice having ended early in 2013, it has now taken so long for us to be considering the code of practice in its final form.

[Baroness Williams of Trafford]

My Lords, I appreciate the point that the noble Lord makes. The consultation was completed in 2013, but the issue is complex. I assume that the Government had to consider the complexity of the matter as a whole. The noble Lord still does not look satisfied, so perhaps I should put it in writing in due course.

The noble Lord also asked who was consulted. We consulted widely with organisations responsible for exercising powers of entry as well as with the businesses and individuals who are subject to the powers. We believe the new code of practice will provide the much needed consistency and transparency that he talked about and will ensure that members of the public know what to expect when powers of entry are exercised without unduly restricting the ability of enforcement bodies to take necessary action.

I now have from the Box behind me another point about why it took so long to produce the code. It was in order to meet the concerns of other government departments. It was necessary to complete the review of existing powers before bringing forward the code of practice and take into account their concerns on the wording of the code. I will lay that out in writing to the noble Lord.

The code was subject to public consultation and was available on the Home Office website. Home owners at the time were able to access it. The review and the code were separate projects—that might also be helpful to the noble Lord. The review was about which existing powers should be revoked, have safeguards added or be rewritten, while the code is about what safeguards should apply to the exercise of powers of entry that remain on the statute book. I hope that helps to clarify the noble Lord’s concerns there.

The noble Lord, Lord Rosser, asked why it will be five years before an internal review takes place. Section 49 of the Protection of Freedoms Act 2012 places an obligation on the Secretary of State to keep the code under review. This obligation will bite from the point the code comes into force. I hope that explains that point.

The noble Lord also asked whether organisations say that the code will make them less effective than they are now. None of the organisations that responded to the consultation stated that the code will be less effective than the current arrangements. I hope that gives the noble Lord comfort.

The noble Lord also asked when changes proposed by the review will take effect. It is for the department to make the legislative changes that have been proposed in review reports. Timetables will take into account the wider policy context in which a particular power operates; for example, it might be appropriate to make changes to powers of entry alongside other planned reforms. The Protection of Freedoms Act 2012 provides statutory tools to repeal, add further safeguards to or consolidate powers of entry, and I am aware of a number of changes having been introduced.

I am sure that I have not answered everything that the noble Lord, Lord Rosser, asked, but I hope that gives him some satisfaction. With that, I commend the order to the Committee.

Motion agreed.