§ Sir Elwyn Jones
I beg to move Amendment No. 4, in page 3, line 20, leave out 'anything' and insert:'any inflammable or noxious substances or any dangerous or noxious thing'.This is the most important Amendment to be proposed by us and what has gone before has paved the way for this discussion. In Clause 3 we have the wide language of "anything". That is repeated in this Clause with the consequence that wide powers of search are being given, and this causes us a great deal of concern.
§ The Amendment relates to powers to search for things used or intended to be used without lawful excuse. As the House will see, Clause 3 contains the broad provision that anything in the house will do, and we sought to restrict the scope. In our view, to grant new powers of search and seizure is of itself a very serious step, and we think that the powers 880 ought to be restricted to what is necessary for the protection of the public.
§ There is always a danger of the Executive taking on powers slightly wider than the circumstances warrant, and that process tends to grow to the detriment of the right of the subject. In this Clause we are treading on the most delicate ground—the privacy of the home. The Englishman's home in his castle, and so, for that matter, as I ventured to say in Committee, is the Welshman's.
§ The Clause extends the right of entry by the police into the home. That can be justified only in the face of the clearest need and to deal with a mischief and a problem of a serious character. It is dangerous for the law to be couched in such terms as to encourage fishing expeditions by the police into houses; enabling them to use these powers for a general look and search in the hope of finding something. That is not good enough, and it gives us great concern because that may well be a possible risk flowing from the generality of the language in the Clause.
§ It is quite true that by the Clause the police will require a warrant from a justice of the peace before they can enter premises in order to search for and seize the thing in question, but, as was said in Committee, that safeguard is not always wholly effective. Before we part with this important Clause we would like the Under-Secretary to tell us why these important new powers are thought to be necessary. In my submission, he has not yet spelt out the mischief sufficiently. We want to know why these considerable powers are sought, and why they are sought to be used.
§ It is not enough to deal with the practical inconvenience of limiting the category of things that can properly be searched for. To leave the matter in this broad way is something of concern, and it is not surprising that representations with regard to it have been made from outside the House.
§ Mr. Carlisle
I must point out that this is not a new power, in that the Clause repeats to a large extent the power that existed in Section 56 of the 1861 Act. I do not believe that that Act has led to abuse over the 110 years of its existence.
The reason for the power being repeated in the Clause is clearly spelt out 881 in the Report of the Law Commission. The very simple, logical fact is that if one decides to have an offence such as that created by Clause 3, of having in one's care or control any item with an intention to use it unlawfully to cause damage, it must be a necessary corollary, if that offence is to include items either in one's care or control in one's home, or on one's person when outside in the street, that there must be a power in the police to search. All that Clause 6 does is to give the police that power to apply for a search warrant when they believe that an offence under Clause 3 has been committed.
It is very difficult, with respect, to have different wording in Clause 3, which makes it an offence to have in one's control "anything", and then, when one comes to Clause 6, to try to define the type of things in which circumstances a search warrant can be obtained. It is necessary that the wording of the one should follow the other.
I do not consider that the right hon. and learned Gentleman's fear of a fishing expedition is justified, because it is not adequate for the police to say, "We think that he has something in his house which we wish to have a look at." They have to satisfy a justice, on oath, that they have reasonable cause to believe that the person has in his house some object which there is reasonable cause to believe he either has used or is intending to use, without lawful excuse, to destroy the property of another. Therefore, the protection, again, is the necessity to satisfy the justice, on oath, that there is reasonable cause to believe that he has it and that he has either used that article or intends to use it for an unlawful purpose.
If the right hon. and learned Gentleman considers that the use of the wordsreasonable cause to believelays this open to abuse, of course it is open to abuse, if people wish to swear informations which are not accurate; but equally, that abuse is open even if one substitutes other words for the word "anything". If it is to be said that it is open to abuse because the police officer might apply for a warrant without reasonable cause for believing that anything—the article—has in fact been used or will be used for an unlawful 882 purpose, if that is his intention, presumably he could equally apply for a search warrant on the basis that he had reasonable cause to believe that there was a noxious, a dangerous or an inflammable thing which would be used for an illegal purpose.
We can say with pride in this House that the police do not abuse their power over search warrants in this way. I do not consider that delineating the type of article for which they can go in search would provide any defence against abuse if such abuse existed. The defence against abuse is the necessity to prove the reasonable cause of belief that the article is being used for a criminal, purpose and the trust that we put in the honesty of our police force in applications that they make to the court.
We have to have the same wording in Clause 6 as that in Clause 3, because if we accept the principle, as the Law Commission did, of the need for the offence, we must have the similar power to apply for the search warrant. The only other matter that the Law Commission mentioned about Clause 6 was that it was parallel to Section 26 of the Theft Act. This concerns the power to search for stolen goods, having sworn on information before the justices that there is a reasonable cause to believe that a person has in his custody or possession stolen goods.
This is a parallel power, so that whereas in the Theft Act we provided power to search where there was reasonable cause to believe that a person had stolen goods, this is power to seize anything which there is reasonable cause to believe is intended to be used for causing damage to property.
I have been accused of saying all along that the Clause was aimed at the petrol bomber. My point has always been that whereas the petrol bomber was a good example, in future there might be other means of causing damage. I give the example of the person who has the proverbial spanner, who may have some simple article in his hand which he intends to use as a means of disrupting the whole of a major industrial concern by damaging plant in such a way as to bring the whole of the concern to a halt. One cannot necessarily foresee the type of situation with which one may be faced, 883 and that is why it is better to leave the wording wide than to limit it by defining the type of articles concerned.
§ Mr. Clinton Davis
The hon. and learned Gentleman has merely highlighted the errors of the wording of Clause 3. It will be far too easy for a police officer to get a warrant in these circumstances, and it is not right that qualifying words would make no difference.
There is a somewhat unhealthy development in the giving of wider and wider powers of search to the Executive. It is extremely dangerous and we ought to be careful about a possible erosion of our civil liberties in this regard. The words of the Amendment would give some protection and I ask the hon. and learned Gentleman to consider his argument, which I found most unsatisfactory.
§ Mr. Jeffrey Thomas
I entirely agree with my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis). The cause of our anxieties was illustrated by the Under-Secretary's example of the spanner, of the man who in his own home is in possession of a spanner with intent eventually to use it to cause enormous damage to property. In this event, the situation is more than adequately covered. I could not imagine a case of that kind being brought up under the Bill. It is far more likely that it would be treated as a conspiracy.
We have two criticisms about the Clause: first, it is too broad; secondly, it is unnecessary. It is too broad because in the past, whenever there has been any question of police officers, the authorities, going into a man's home, the most stringent precautions have always been taken to see that it did not happen without every kind of inquiry and investigation beforehand.
Power of search is given in the Firearms Act, 1968, in Section 46. Only if the conditions specified are satisfied can police officers carry out a search of premises. The warrant has to name the police officer concerned in the search. This is an elementary safeguard which Clause 6, although far more wide-reaching than Section 46 of the Firearms Act, does not provide. In the same way, Section 65 of the Offences Against the Person 884 Act, 1861, provides for the issue of search warrants, but only in certain circumstances as envisaged in Section 64 of the Act, which deals with the possession of noxious substances.
It is quite wrong for the Under-Secretary to say that this is not a new provision and that it is in some way similar to the provision in Section 65 of the Malicious Damage Act, 1861. There, the circumstances are carefully circumscribed and laid down. The evil of the Clause is that it is far too broad. Having regard to the legislation already on the Statute Book, it is also unnecessary.
§ Amendment negatived.
§ Motion made, and Question, That the Bill be now read the Third time, put forthwith pursuant to Standing Order No. 56 (Third Reading), and agreed to.
§ Bill accordingly read the Third time, and passed, with Amendments.