Powers of Entry etc. Bill [HL]

My Lords, I am nervous of discussing in depth Roman law and other law, certainly with someone as distinguished as the noble and learned Lord, Lord Scott of Foscote, to whom I apologise: I read Hansard earlier this week and I noticed that "learned" was not there, which was my error. My contact with the law possibly started when I was a young lieutenant and, with powers of summary punishment, I could imprison someone for two years at a summary court. The situation has changed dramatically since then, but I felt at the time that it was a pragmatic way of achieving discipline. I thank the noble Lord, Lord Marlesford, for giving me notice of his question on this issue and his proposal to oppose that this clause should stand part of the Bill because the debate serves to illustrate the potential difficulties in seeking to apply a common approach to all powers of entry. On the specific question concerning the difference between a court order and a magistrate’s warrant, the answer from my experts is that a court order is directed at an individual and requires them to do or not to do something. Examples would be an order under Schedule 1 to PACE for a person to produce documents for the police or a football banning order specifying that someone must not attend a certain sporting event. Failure to comply with a court order may in some cases amounts to an offence or allows further forceful action to be authorised under a warrant. A warrant authorises the person to whom it is addressed to exercise a specified coercive power, using force if necessary. The person can, for example, enter and search premises, seize specified articles or arrest a named person and bring them before the court. It may be permissive, as in the case of a search warrant, which does not require the police to execute it, or, in the case of a commitment warrant, it may direct that a person be delivered to prison and detained there or that a person who has failed to surrender to bail be arrested and delivered to the court. That is the best definition of the differences that the experts could come up with. As noble Lords are aware, each power of entry is subject to individual parliamentary scrutiny. It means that the entry power is considered within the context of the specific primary or secondary legislation that it supports, which I believe is an important safeguard. There are situations in which an enforcement agency can and does seek the authority of a court before entering premises. This may be to enter a dwelling, to enter premises where the enforcement agency has reasonable grounds to consider that entry, if sought, would be refused, or to enter premises where entry has previously been sought and refused. Determining the need for a warrant and how it is applied to each individual power of entry will depend on the nature of the breach, the type of premises being entered and the purpose of the entry. We should not seek to determine operational need in such a prescriptive way as that proposed in Clause 5. Additionally, the requirement to apply for a warrant in certain situations should be seen as a safeguard and not a limitation. At the same time, the amendment would appear sometimes to remove completely the need for a warrant. Neither option is preferable, which is why our approach is to maintain the position in which Parliament considers each power of entry on its merits. As I shall indicate when dealing with the amendments to the Bill, we propose to introduce a powers of entry code of practice for those other than police officers exercising these powers. The code will set out the criteria for consideration of all powers of entry, including setting out justification for a requirement to enter premises with or without a warrant. In the circumstances, I oppose the proposed amendment and would ask noble Lords, in considering the appropriateness of this Bill, to consider also the points that I have made.