§ Mr. Simon Hughes
I beg to move amendment No. 8, in page 15, line 18, at end insert—'(3A) A person exercising the power conferred by subsection (1) shall do so reasonably only in the course of his duty and only as part of a series of routine checks or as a result of reasonable suspicion of breach of regulations or commission of an offence under any provision of this Act.'.
§ Mr. Deputy Speaker (Mr. Michael Lord)
With this it will be convenient to discuss amendment No. 9, in clause 20, page 16, line 23, at end insert—'(4) No document shall be published under subsection (1) or (2) unless a draft of the document has been laid before, and approved by resolution of, each House of Parliament.'.
§ Mr. Hughes
The amendments are straightforward. They relate to clauses 19 and 20 which are among the four clauses that deal with entry, inspection and information. For various reasons, these matters were not debated at any length in Committee.
Once a regulatory authority for the security industry has been set up under the Bill and people and concerns are regulated, clauses 19 and 20 give power for the authority to go in, inspect and regulate. One cannot argue with that; a regulatory authority has to go in and see what is going on. The amendments seek to make sure that that is not done with oppression or harassment. To step back for a second, there is a difference between the way we regulate activity subject to a licensed regime and the way we regulate normal daily activity that does not need licensing.
Motoring is an obvious example: if people apply for and obtain a driving licence, they do not have to drive a car—that is optional. However, if they do, by definition they subject themselves to a regime involving both inspection of the vehicle that they drive and related controls. People do not have to run a pub, but if they apply to run one, they know that there are certain rules and conditions when the magistrates grant a licence. That is different from the way in which we should be regulated as we walk down the street or live in our homes. I am against the idea that people should be able to climb up drainpipes, climb through windows and stop someone for no good purpose, claiming that they are just carrying out a spot check to see if he is behaving himself. That applies even to controversial things; without reasonable 62 suspicion, the police and other authorities should not be able to stop people going about their lawful business just because they think that someone might be carrying a stolen item, a little cannabis or whatever. Quite rightly, criminal law states that there must be reasonable suspicion of an offence before an authority can act.
A distinction therefore has to be made when we talk about the licensing regime. People do not have to be bouncers or employ others to run a security business; they do not have to be wheelclampers or work for a wheelclamping firm. The regime is therefore an opt-in regime so, naturally and reasonably, there will be powers of entry and inspection that allow the authority to exercise its proper functions, as agreed in legislation.
§ Mr. Bercow
I hope that the hon. Gentleman is not embarrassed about what he has just said, as he certainly does not need to be. Does he accept that his objection to the idea that police officers and other agents of public authorities should be able to go marauding around private property or commercial premises without authority or good excuse should not divide the parties in any way? The argument is between those who might genuinely be considered libertarians and those who are unthinking and arrogant authoritarians.
§ Mr. Hughes
I agree. I do not want to be over-distracted, but the tension between the two tendencies is interesting. Sometimes the hon. Gentleman's party expresses excessively authoritarian sentiments which, in all probability, he does not agree with; the Labour party certainly includes libertarians, but it also has people who are clearly authoritarian.
I know that the example I am about to give is not central to the Bill, but it is a parallel. Later this evening, the House of Lords will debate DNA sampling, a matter which hon. Members have already discussed. The lords will consider whether it is appropriate for the police to take samples and keep them if people are innocent of suspected crimes. Those of us with a libertarian perspective believe that it is wrong for the state to keep acquiring possessions if that cannot be justified on the grounds of an offence against the rules of the state. That is the issue.
Amendment No. 8 would impose, at an appropriate stage, a limitation to the power exercised under clause 19. The other place accepted an amendment stating that a person exercising the power of entry and inspectionshall do so only at a reasonable hour.I am conscious of the fact that we are at the end of the parliamentary Session, but we are seeking to persuade the House to add to clause 19 a statement that a person exercising such powershall do so reasonably only in the course of his duty and only as part of a series of routine checks or as a result of reasonable suspicion of breach of regulations or commission of an offence".We are obviously trying to guard against someone in the regulatory authority calling on a certain person, company or club every Thursday simply because they have decided to do so. It is reasonable to have routine inspections, a bit like those for schools, and the odd spot check, and it is certainly reasonable for the authority to go in if it is tipped off that something funny is going on, but we must have protection against oppression.
When the Minister responds. 1 should be grateful—if the amendment is not accepted—for an explanation of what protection the legislation provides against the abuse
63 of power. He may deal with the drafting of clause 20, to which we tabled amendment No. 9. Clause 20 recognises that the power of entry is controversial and states that the authority shall have a dutyto prepare and publish a document containing its guidanceon how people should go about discharging their right to enter and inspect premises.
In Committee, we had a long debate about the different things that the authority will do. The Bill makes provision for guidance, and the Government may introduce secondary legislation. We are pleased that there will be management of the power of the authority by a guidance document but, because rights of entry and inspection are civil liberty issues, it is important that that document should come before Parliament for approval. Amendment No. 9 requires that the guidance document will not be published unless both Houses of Parliament have seen and approved a draft. Colleagues will know that that is a common procedure when Parliament deals with sensitive matters: we allow someone else to do the work, but want to sign off the document as appropriate, having ensured that we will protect the liberties of our citizens. I hope that the amendments appeal to the House in their detail, but certainly in their spirit; I commend them to the House.
§ Mr. Bercow
The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) has tabled a sensible set of amendments; he will be aware of the significance of our exchanges on the subject in Committee.
I am always a generous-spirited fellow, as you will readily testify, Mr. Deputy Speaker. Far be it from me to accuse the hon. Gentleman of plagiarism; he would not be guilty of any such thing because he has an original and penetrating mind. However, he would be prepared to concede that there is a commonality of spirit between his party and ours on the subject. Because of his recollection of our deliberations in Committee, he will know that my hon. Friend the Member for Surrey Heath (Mr. Hawkins) argued that the power of entry and inspection should not be exercised by an officer unless he reasonably suspects a breach of the regulations or the commission of an offence under the Act.
To his credit, the hon. Member for Southwark, North and Bermondsey has followed my hon. Friend's train of thought on that occasion, as well as before and since, in deploying the formulation "reasonable suspicion" in amendment No. 8. He makes an eminently sensible point. Nobody disputes that there should be powers of entry and inspection; the argument is about the means by which they are exercised. The hon. Gentleman chose to focus on an important point about the nature of the exercise of the power. As he put it, his concern is that, unless the power is reasonably circumscribed, not least by the use of the word "reasonable" or by a reference to ordinary hours of the day, an overly zealous officer, probably in the minority but nevertheless burdensome for the person suffering from the exercise of the power, may choose willy-nilly, almost at random and without obvious good cause or excuse, to rampage through—I accept that that is an evaluative and strong-minded term—the property of the person who, however unreasonably and without evidence, he suspects of a breach of the regulations or the commission of an offence.
64 6.30 pm
The hon. Member for Southwark, North and Bermondsey has a point—there is a danger that inspections will otherwise take place without justification. There is also a possibility, again highlighted by the hon. Gentleman, that an overly zealous officer might choose to make regular inspections at the same time on what might be regarded as such a repetitive basis that it becomes intimidating.
There are other possibilities. Far from choosing to visit at the same time for a series of weeks in succession in such a manner as to appear intimidatory, an officer might choose to visit the same property, premises or sets of premises held by a company on various days and at various times but without obvious authority or good cause. That would be equally intimidatory.
In fairness, the Government have said that there must be an element of unpredictability. If people know in advance that they are to be visited or that they can expect to be visited at exactly the same time, they are likely, particularly if they are in breach of the legislation, adequately to prepare themselves to ensure that they are not caught out. The Minister has said that on a number of occasions, and he has a fair point. However, I understand that there is to be an obligation under clause 19, in its unamended form, for the person who is conducting the inspection to be authorised in writing. If so, I assume, for the purposes of the argument and our assessment of the merits or otherwise of the clause, that that will mean not only authority in writing to make the inspection but notification in writing of the intended date and time. If I have misread the clause on that significant point, I should be happy to be corrected by the Minister and thereby reassured.
The Minister, as the hon. Member for Southwark, North and Bermondsey will have noticed, has looked eagerly in the direction of those whom I cannot name or refer to by title, but whose responsibility it is to provide the Minister with advice. They are what might be described as the nameless and faceless ones, but they sit not far from the Minister.
§ Mr. Bercow
I am very grateful for your guidance, Mr. Deputy Speaker. I was not proposing to dilate upon the point; I thought that I might get away with the occasional animadversion to them, but you have told me, with your formidable shake of the head, that I cannot, and therefore I will not try. Nevertheless, it would be helpful to have some guidance on the point I raised. [Interruption.] Does the Minister want to intervene? No, he was merely chuntering from a sedentary position—beneficially, I am sure, as far as our exchanges are concerned.
The hon. Member for Southwark, North and Bermondsey has highlighted a significant possibility, and there are others. Inspections could take place at awkward times, possibly in an over-zealous way, and in a manner that would be calculated to intimidate or would in practice do so. The hon. Gentleman, my hon. Friend the Member for Surrey Heath and I share a basic unease about the exercise of entry and inspection powers, which leads us not to dispute the need for them but to try and build in the maximum protection for those who are to be subject 65 to them. 1 make no bones about it—some of my right hon. and hon. Friends may think that I am a wet liberal on these matters—
§ Mr. Bercow
I am greatly reassured by the hon. Lady's remark, made from a sedentary position. However, I am concerned that people should be properly protected. I am always anxious about the overweening power of the state to busybody and interfere, to harass people and subject them to impertinent inquiry without good cause. In short, this is an issue of civil liberties. The hon. Member for Southwark, North and Bermondsey is a champion of civil liberties, but so are my right hon. and hon. Friends and me.
I should like to put a slightly different point on the amendments to the Minister. It is a new point in the consideration of the Bill but it is not new in the exchanges that the Minister and I have had. I have a feeling that, with his remarkable perspicacity, the Minister will have anticipated this point, which is culled from the experience that we shared in the Committee 'cage of the Vehicles (Crime) Act 2001. Unfortunately, the hon. Gentleman and I simply disagreed about this point, and we may do so again. It is this: it seems to me that under the terms of the unamended clause 19, people who are or who appear to be—I will come back to the point about appearing to be—regulated individuals under the terns of the Bill will be entitled to greater protection under its terms than people who are not registered or who do not appear to be registered.
As not everybody is familiar with this argument and as I do not want an entirely self-contained and, to everyone else, unintelligible argument with the Minister, it is worth explaining what I have in mind. Clause 19(1) provides that someone who is authorised to enter and inspect the premises of any person who appears to be a regulated person can do so if he or she has authorisation in writing. However, it specifically refers to an entitlement to enter and inspect the premises of someone who appears to be a regulated person. What about those who do not appear to be regulated persons or to have a licence to operate but who are suspected of a breach of the regulations under the legislation or the commission of an offence? Those who are not thought to be regulated—and, to put it more accurately are thought not to be regulated under the legislation but who are thought to be practising, illegally or as cowboys, and to be committing offences—should surely be subject to the not insignificant powers of entry and inspection that clause 19 is intended to confer upon officers. I am not sure what the answer is.
The Minister is a sometimes sagacious fellow but almost invariably a resourceful one I feel sure that he will have some sort of answer and that it probably will have been provided for him in advance of our debate. I will be fascinated to hear what the hon. Gentleman has to say about those who do not appear to be regulated—indeed, who appear not to be regulated—but who do not seem to be subject to the substantial power of clause 19(1).
§ Mr. Simon Hughes
I follow that point but I am not certain that everyone listening will follow the regulated and non-regulated alternatives proposed by the hon. Gentleman. Is not the logic of the conundrum or dilemma to which the hon. Gentleman refers that it is far better that 66 there is one regime and that everybody should be regulated? Otherwise, there is a two-tier system. Policing those who have opted for regulation means that when someone knocks at a door and the defence is, "Sorry, mate, I am not regulated", nothing can be done about it. That cannot be in the consumers' interest.
§ Mr. Bercow
The answer to the hon. Gentleman is that everybody who has characteristics in common in terms of job description and the functions they fulfil should be subject to equal treatment. That is a longer but, I hope, accurate way of saying that we should treat like with like. Obviously, we should not treat in exactly the same way people who are in very different categories and who are not performing similar functions, but the hon. Gentleman is otherwise right to say that people who are performing similar work should all be subject to the same regime, so that there is no scope for the inequality of treatment that would otherwise almost inevitably result.
§ Mr. Charles Clarke
Before the hon. Gentleman develops his argument, will he pause and give his attention to clause 19(8)? Will he consider paragraph (b) in particular?
§ Mr. Bercow
I am always happy to be referred to a subsection of any clause of which the Minister is the parent. I have focused my beady eye on clause 19(8), which features on page 16 of the Bill, with which I am sure all hon. Members who are present will be intimately familiar. For the avoidance of doubt, I point out that subsection (8) deals with the meaning of the term "regulated person". That seems clear, but I think that the only provision of even modest significance in the subsection—this point is important if the hon. Gentleman is trying to develop an argument—is paragraph (d), which refers toany person who is not so approved but provides security industry services which he is prohibited by any such regulations from providing.I assume that the Minister is suggesting that an individual who is not fully approved, but who is nevertheless providing services, will be subject to the entry and inspection powers contained in clause 19(1). That is not entirely clear, but if that is what the hon. Gentleman says, I shall not object. Indeed, I shall be tempted to dance around the mulberry bush in appreciation of the fact that the Government have seen the point and have incorporated it in the clause. However, although I am grateful to the Minister for moving me on from page 15 to page 16, I see no good reason why such provision should not be included in subsection (1) to ensure that the matter is clear beyond peradventure. That is my answer to him, but if he tells me that the matter is dealt with and that there is no need for any further i-dotting and t-crossing, I shall be happy to accept his assurance. I would be grateful if he made the matter clear, as it is not trivial. I hope that he will accept that civil liberties and the important issue of equality of treatment, to which the hon. Member for Southwark, North and Bermondsey and I keep returning, are of the first importance.
I should like briefly to comment on clause 20 and on the attempt of the hon. Member for Southwark, North and Bermondsey to amend it. As I understand it, amendment
67 No. 9 would ensure that no document on the guidance about the way the powers are to be exercised should take effect beforea draft of the document has been laid before, and approved by resolution of, each House of Parliament.In short, that is an argument for the affirmative method—I use that term for want of a better one, as we usually use it in relation to the statutory instrument procedure— rather than the negative one. The hon. Gentleman was slightly doubtful about whether everybody would understand the distinctions between regulated and unregulated matters. I argued only that people who are not regulated should not be treated preferentially in comparison with those who are regulated. The point is simply stated: the question of affirmative and negative procedure should be clear beyond doubt to those outside the House who take an interest in these matters. As the Minister, but not everybody, knows, the negative procedure does not allow debate. It means that measures are rammed through the House on the nod, without the opportunity for speeches or voting. However, the affirmative procedure gives hon. Members the chance to express an opinion.
My view is consistent with that of the hon. Member for Southwark, North and Bermondsey. I believe that the guidance on the exercise of entry and inspection powers is critical. Great issues are at stake. The powers of the officers must be adequate, or there will be no point in providing for them. Equally, there must also be adequate protection for those who will be subject to the exercise of those powers. It is not entirely a matter of those words that Ministers tend to use in the context of amendments to proposed legislation—our old friends "minor" and "drafting". Issues of judgment, evaluation, degree and what I might best describe as proportionality are involved. In that context, I think that the hon. Gentleman has a good point. Let us see the draft, which can be placed before this House and the other place, and let there be a debate on it in which we can offer our opinions about whether the Government have got the balance broadly correct.
Earlier, my hon. Friend the Member for Surrey Heath expressed with a world-weary cynicism born of his nine years in the House his hope that the Minister would change the habits of a lifetime and accept an Opposition amendment. I want to renew that plea in an unselfish fashion. on behalf of the hon. Member for Southwark, North and Bermondsey. The request in amendment No. 9 for an opportunity to see a draft document and to scrutinise it, as well as for an acknowledgement of hon. Members' right to speak and the possibility of a vote, is of the essence. That request is so transparently reasonable that only an extraordinarily unreasonable Minister could resist it.
The Minister is an assiduous, eager and very ambitious man, as I continually remind him. He is a man who was described by Mr. John Kampfner, the distinguished political commentator of The Guardian, as a future leader of the Labour party, and he is now under inspection.
§ Mr. Bercow
I shall perorate in a moment, but how can I refuse to give way to a man who is not only older than me, but substantially bigger?
§ Mr. Soames
What my hon. Friend says about the Minister is true. Does he agree that it would be a terrible 68 shame if blind, untrammelled ambition were to stand in the way of such a reasonable request from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). and such profound and splendid oratory from my hon. Friend"
§ Mr. Bercow
I say to my hon. Friend frankly that I am in danger of becoming emotional. We had a rocky start when this Parliament began. I think he doubted whether I had any right to sit in this place at all, as I went to a state school, paid a mortgage and bought my own furniture. Since then, he has been reconciled to me, and we have what might almost be described as a symbiotic relationship, so often do we see eye to eye on matters of state, both great and small. His interventions are invariably sensible and eloquent. With his unfailing skill in hitting the proverbial nail on the head—a skill that only somebody who has spent as much time on the Clapham omnibus as he has could demonstrate—he has got it absolutely right. We are considering a question of ambition versus reasonableness. I say to the Minister, who is always anxious to throw red meat in the direction of his under-utilised and ordinarily militant Back Benchers—
§ Mr. Bercow
I say to the Minister that he should prove reason, independence of mind and generosity of spirit. I say to him that now is the opportunity to show oneself to be a man of independent mind and generous nature. Will he pass or fail the examination? I await his response and the answer as to success or failure with bated breath, eager anticipation and beads of sweat upon my brow.
§ Mr. Charles Clarke
Before I begin, let me say how glad I am to see my hon. Friend the Member for Crewe and Nantwich (Mrs. Dunwoody) in her place. I would not say that I have a symbiotic relationship with her, as I have been advised by my hon. Friend the Member for Weaver Vale (Mr. Hall) that the only known example of a symbiotic relationship in the natural world is that between a plover and the crocodile from whose tongue it plucks leeches. When the hon. Member for Buckingham (Mr. Bercow) described his symbiotic relationship with the hon. Member for Mid-Sussex (Mr. Soames), I was trying to work out which of them was the soft little bird and which was the crocodile. I think that most people would acknowledge that, at a time such as this, the hon. Member for Mid-Sussex has the more meat-eating characteristics.
I was amused that the hon. Member for Buckingham began his speech by referring to the alleged plagiarism of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). I do not think that he was correct. Plagiarism is often a two-way relationship. When we discuss the relationship between libertarianism and authoritarianism in the Conservative party, we get into deep waters. At the end of the Conservative party conference last year, everyone lined up behind their libertarian or authoritarian leadership challengers.
Some people listen to the hon. Member for Southwark, North and Bermondsey. Some libertarians in Conservative party ranks—perhaps including the hon. Member for Buckingham—may support him, but others would not.
69 The right hon. Member for Maidstone and The Weald (Miss Widdecombe) would not agree with him. In all friendship, I therefore advise the hon. Member for Buckingham not to go far down the road on which he embarked. However, it is an interesting debate. I know that the hon. Gentleman will not make the same mistake as some do of confusing civil rights and libertarianism with the rights and interests of the legal profession.
Let me consider more serious matters. I asked the hon. Gentleman to examine clause 19(8), which defines a regulated person as eitherthe holder of any licence granted under this Actorany person who engages in licensable conduct without being a holder of a licence under this Act".Licensable conduct is defined in clause 3(2). Clause 19(8) defines the powers that we are discussing as applying to licence holders and people who are engaged, without holding a licence, in the sort of activity that the Bill tries to regulate. I do not, therefore, believe that the hon. Gentleman's anxiety has substance.
Clause 19 provides the authority with an important power that will help it to enforce its licensing regime effectively. It gives it the power to enter premises and require the production of documents or other relevant information.
A person who is properly authorised by the authority will be able to enter premises owned or occupied by a regulated person. Proper authorisation is defined in clause 19(1) and in clause 20, which statesIt shall be the duty of the Authority to prepare and publish a document containing … guidanceabout the way in which authorised people will act. There is no precondition in the Bill for an authorised person to provide prior notice. In general, one would expect prior notice to be given of a visit for routine purposes. However, there is no requirement to do that. Clause 20 provides for the production of guidance, which will set out the terms for giving prior notice. That is also the burden of amendment No. 8.
The Bill provides for guidance, and the hon. Member for Southwark, North and Bermondsey argues that Parliament should consider that guidance. The answer to his question about whether prior notice will always be given under authorisation is no. He also asked whether the notice and the operation of the authorisation would be set out in clear guidelines, which were publicly available and hopefully agreed. The answer is yes
A regulated person is defined in clause 19(8) as anyone who has or who ought normally to have a licence. Such a person may be required to produce documents or information about licensable conduct, the provision of security services or conditions attaching to approved contractor status under any compulsory scheme, should the voluntary scheme ever be converted into a compulsory one.
Amendment No. 8 would require a person who was authorised to enter premises to do that in a reasonable manner and only as part of a routine check, or as a result of reasonable suspicion of a breach of regulations or commission of an offence. The main effect of the amendment would be to limit the authority's ability to conduct random checks of regulated persons.
70 The provisions already place several requirements on any person authorised by the authority when exercising the powers. They include: exercising the power only at reasonable times; operating only in relation to persons "appearing" to be regulated—mere suspicion is not enough; and stating the purpose of the inspection. The inspector must produce evidence of identity and authorisation; a record must be made of what happens during the inspection; and a copy of that record must be given to those on the inspected premises if requested. That would form the basis of any subsequent challenge.
Those measures place several requirements on persons entering premises. They take appropriate account of civil liberties while providing a powerful and focused tool to enable the authority to enforce the licensing regime.
§ Mr. Simon Hughes
Will the Minister deal with the specific question that the hon. Member for Buckingham arid I asked? What provision protects against misuse, harassment and obsessive interest by the regulatory authority? Such behaviour could be covered by the random check, the routine check and the reasonable check but be oppressive none the less.
§ Mr. Clarke
I assure the hon. Gentleman that the guidance will include dealing with such an effect. However, I do not believe that the state of affairs that he described is likely to arise. The need to state the purpose of the inspection, for which the Bill provides, makes it difficult to make the repeated inspections that he fears.
Amendment No. 9 would require laying before Parliament the guidance, which the SIA will draw up under clause 20, on the exercise of its power of entry. The Bill already requires a significant amount of further parliamentary input to get the authority and its regimes up and running. Several clauses allow the Secretary of State to introduce statutory instruments that activate or specify in greater detail the operations of the SIA.
The content of the statutory instruments will be central in establishing the authority's detailed operating framework, and it is right that they should be brought before Parliament. I am therefore not persuaded that we need to ask Parliament to approve the detail that the amendment would require.
The Bill's main purpose is to establish the SIA and vest in it appropriate discretion to regulate the industry, backed up by specific parliamentary sanctions for its most important aspects. I believe that the authority's approach will be sound and that to require the laying of draft guidance and, perhaps more important, revised guidance—we shall conduct regular revision—before Parliament would detract from the ability to be flexible in evolving circumstances.
I therefore hope that the hon. Member for Southwark, North and Bermondsey will consider withdrawing the amendment.
§ Mr. Hughes
The debate has been important, and the Minister has given welcome assurances on the first issue that we mentioned. However, the Bill could be described as an outline measure, and we do not know the details. We cannot judge whether the guidance will be adequate until we see it later.
I was amused when the hon. Member for Mid-Sussex (Mr. Soames) had the exchange with the hon. Member for Buckingham. It was suggested that serried ranks of
71 militant Labour Back Benchers sat behind the Minister. There was a gasp of astonishment from the hon. Member for Crewe and Nantwich (Mrs. Dunwoody) because she shares the view that although the Government may want to claim much credit, claiming that their Back Benchers are militant, nearly militant or even active—let alone interested and critical—is an exaggeration well beyond the understanding of anyone who has watched our proceedings in the past four years. The Government may not have had an easy ride from the Opposition, but they have had a mighty easy ride from their Back Benchers. Whatever the result of the election, I hope that that does not continue in the next Parliament.
I sense that interest in the debate has risen to an unexpected height. The Bill has taken on a new and greater importance. For once, I shall give the Minister the benefit of the doubt. On one occasion only, and with no promise of a repeat, I beg to ask leave to withdraw an extremely good amendment.
§ Amendment, by leave, withdrawn.