SUPPLEMENTAL PROVISIONS FOR SECTIONS 1 TO 8 (Hansard, 28 November 1974)

§ Mr. Powell
I beg to move, Amendment No. 52, in page 11, line 19, leave out sub-paragraph (4).

§ Mr. Fitt
What has happened to Schedule 1?

§ Mr. Powell
We have just agreed to Schedules 1 and 2. The hon. Member for Belfast, West (Mr. Fitt) must have been asleep at the time.

§ Mr. Fitt
On a point of order, Mr. Thomas. I have an amendment to Schedule 1, and you will recall that I attempted to draw your attention to it.

§ The Chairman
The hon. Gentleman is quite right. I am afraid that I was going by the numbers on the Notice Paper——

§ Mr. McNamara
It seems to me that this is more a Welsh situation.

§ The Chairman
Order. With the permission of the Committee, we will undo that which we have just done—and, of course, with the permission of the right hon. Member for Down, South (Mr. Powell), whom I had called.

§ Mr. Powell
On a further point of order, Mr. Thomas. Are you sure that it does not require a resolution of the House to undo schedules which we have already added to the Bill?

§ The Chairman
Fortunately, the rules of the House provide for such circumstances. There will be a Report stage when, I hope, the hon. Member for Belfast, West may be heard. Mr. Powell.

§ Mr. Powell
I am much obliged, Mr. Thomas. I am sure that we shall all wait for the Report stage to hear the comments of the hon. Member for Belfast. West.

§ Mr. McNamara
Are we to assume, Mr. Thomas, that you are now drafting the amendment for my hon. Friend the Member for Belfast, West (Mr. Fitt) in readiness for the Report stage?

§ The Chairman
It is clear that I shall accept, as a manuscript amendment, the amendment which the hon. Gentleman was to have moved in Committee. It will be for Mr. Speaker to deal with.

§ Mr. Powell
Reverting forward to the Third Schedule, sub-paragraph (4) contains a rather surprising and, if I understand it correctly, objectionable provision. The previous sub-paragraphs provide for the appointment of examining officials. Sub-paragraph (2) sets out the various classes of persons who may be appointed as examining officers.
When we come to sub-paragraph (4), we find that the order which appoints these officers and confers powers upon them also confers upon them the power … to authorise any other person to exercise, on his behalf, any of the powers conferred by virtue of that subsection. On the face of it, this appears to be a breach of the fundamental rule delegatus non potest delegare, for here are persons who have been given powers to exercise themselves, but the order goes on to enable them, in their own apparently unfettered discretion, to transfer the exercise of those powers to other persons.
There may be limitations on those powers more than appear on the face of the schedule, but, if there are not, it it would seem undesirable that examining officers should have carte blanche to delegate their powers of search and detaining articles to other persons.
935 It is not acceptable that an examining officer meeting half a dozen people on his way should say to them, "I hereby authorise you to exercise the powers of search on my behalf." I cannot believe that this can be the intention of the paragraph, but that is what appears on the face of it. I have moved the amendment to obtain clarification.

§ Mr. Alexander W. Lyon
I assure the right hon. Gentleman that there is nothing sinister in this paragraph. It is similar to a paragraph in the second schedule to the Immigration Act.
First, the order provides that a woman cannot be searched except by a woman. If no woman police officer or woman immigration officer is available, it may be necessary for a nurse or some other female member of the medical staff in the port to act in that capacity.
Secondly, it is sometimes necessary, if there is a rush, for an examining officer to ask a customs officer, who has not formally been appointed as an immigration officer, to search packages or a vehicle.
The power exists for that reason, and it has been used in relation to the Immigration Act. I hope that in the circumstances the right hon. Gentleman will feel reassured.

§ Mr. Powell
I can see that the reasons for delegation, as the Minister of State has explained them, are right and proper, but this seems to be the second instance at least during this sitting—I think more than that—when we have discovered a precedent for a wider and less satisfactory drafting than we would have preferred. Surely if the purposes are as the Minister explained, it would not be beyond the powers of draftsmen to specify limitations wide enough for those purposes, but not at large, as they stand in the schedule at the moment.
Those of us who take an interest in this legislation will make a record of this as yet another aspect which, when there is more time, will require more mature consideration and improvement. With that reflection, I beg to ask leave to withdraw the amendment.

§ Mr. Alexander W. Lyon
I beg to move Amendment No. 69, in page 11, line 39, after 'Great Britain' insert 'or Northern Ireland'.
I think that it might be convenient if with this we take Amendment No. 70.

§ The Chairman
So be it.

§ Mr. Lyon
These are purely drafting amendments. It is clear in the second case that Northern Ireland was intended, but Great Britain somehow managed to get into the draft.

§ Mr. Clemitson
I beg to move Amendment No. 66, in page 13, line 12, leave out sub-paragraphs (4) and (5).
Those sub-paragraphs say: (4) If a member of a police force of a rank not lower than the rank of superintendent has reasonable grounds for believing that the case is one of great emergency and that in the interests of the State immediate action is necessary, he may by a written order signed by him give to any member of a police force the authority which may be given by a search warrant under this paragraph. (5) Where any authority is to given, particulars of the case shall be notified as soon as may be to the Secretary of State. That means that a policeman of superintendent rank or above can be given the same powers as a magistrate in authorising searches in certain specified circumstances, subject to a subsequent report to the Secretary of State. I propose to speak briefly to the principle involved here, and my hon. Friend the Member for Chorley (Mr. Rodgers) will deal with the practical issues that will arise if these powers are granted to the police.
It has been said on many occasions during the debates on the Bill that we must take power to combat terrorism, while at the same time keeping to a minimum the incursions into and diminutions of the rights and liberties of the individual. On Second Reading my right hon. Friend the Home Secretary spoke about steering a middle course. It seems to me that the onus of proof must be on those who wish to diminish civil liberties to show that it is necessary to do so to combat terrorism.
937 We have here an issue of some importance because, if sub-paragraph (4) is passed, the police will be exercising a power that properly belongs to magistrates—namely, the power to authorise searches. The rôles of the police and magistrates will therefore be confused, and it seems to me that in other parts of the Bill the rôles of the executive and judiciary have been confused, too.
Keeping separate the rôles of magistrate and policeman is one of the important bulwarks of our civil liberties, and sub-paragraph (4) represents a serious incursion into them. If this is to be justified, a strong case must be produced for it. It must be shown that there are special circumstances that justify this, and I do not believe that such a case is made out. I do not believe that the circumstances outlined in sub-paragraph (4) justify this kind of departure from normal practice.
My sole point is that we should realise what we are doing if we pass this sub-paragraph. We are confusing two rôles, that of the magistrate and that of the policeman, and these are rôles which, even in the exceptional and admittedly difficult times in which we live, must not be confused. The amendment will ensure that such confusion does not arise.

§ Mr. George Rodgers (Chorley)
The purpose of sub-paragraph (4) is said to be to enable the police to employ speed in emergency. It would give a police superintendent authority to issue a written order which would allow any member of the police force to conduct a search. I find it difficult to accept that there are fewer magistrates than police superintendents in any area. In times of stress I fear that the police would be overwhelmingly tempted to use such powers both hastily and even perhaps casually.
It has been said that authority for a search in the described circumstances would be permitted only if there were reasonable grounds for believing that the case was one of great emergency. But who can define "reasonable" and "great emergency"?
The sub-paragraph says that particulars must be notified "as soon as may be" to the Secretary of State. That term is 938 very vague and could mean anything at all. In any case, it is much easier to justify the action after the event. The proposed formula seems completely unnecessary and I strongly support the amendment.

§ Mr. Roy Jenkins
To appreciate the need for this sub-paragraph, it is important to remember—after a long night, we may all be in danger of forgetting it—the exact circumstances in which the Bill was introduced. The sub-paragraph is necessary and, I believe, acceptable to the Committee in those circumstances.
A superintendent of police—any police officer—has to be subject to a good deal of discipline. He has to satisfy himself here that there are reasonable grounds for believing that the case is one of great emergency and that, in the interests of the State, immediate action is necessary. He has to report his action to the Secretary of State thereafter, which is an exceptional step to take.
I believe that the safeguards here are adequate. It may be provable that in the country as a whole there are as many magistrates as there are police superintendents but it is surely not outside the bounds of the imagination of the Committee to see that there could well be circumstances of immediate emergency, in which a superintendent is far more likely to be quickly available in a police operation than a magistrate is.
I would not give, nor would I subsequently approve, powers of this sort lightly. I assure hon. Members that superintendents will not treat them lightly, especially in view of the precautions that I have described. Strong language is used here, but it is language which is necessary in the interests of the State. In the light of that assurance. I hope that my hon. Friend will not press the amendment.

§ Mr. Clemitson
I beg to ask leave to withdraw the amendment.