Higher Education and Research Bill — House of Lords, 2017-04-04
Topic: Education
James Peter Hymers Mackay (Conservative, Centre-right): My Lords, this amendment has a rather interesting history. It arose from my reaction in Committee to an amendment in the name of the noble Baroness, Lady Brown, in connection with this schedule, which contains a power of search that is absolutely new to the academic community. It therefore required very careful consideration, which the noble Baroness’s amendment provided. In addition, she pointed out that this power had created anxiety in the academic community, as noble Lords might expect. Apart from what it might achieve, one thing is certain: if it were ever carried out, it would do very serious damage to the reputation of a higher education provider whose premises were the subject of a search Having listened to this, I suggested that it might be a good idea for the magistrate granting the warrant to indicate that he or she was satisfied that the conditions had been applied and satisfied. These conditions are extremely strong and very useful. When the point was raised by the noble Baroness, Lady Brown, my noble friend the Minister read out the conditions and said that they would certainly be satisfied, and that that was implied in the statutory provision After raising in response to that the idea that the magistrate might indicate by signature that he or she had been satisfied that the conditions had been met, I quite quickly received a letter to say that the idea of a separate signature was unheard of and that it would be a quite startling innovation. Well, the search warrant itself was something of an innovation, so I was not particularly disturbed by that—but I thought that I had better meet that and deal with it by suggesting an amendment to the form of the warrant specified in statute and put into the warrant that the magistrate was satisfied that the conditions for the grant set out in the schedule had been met Noble Lords who are interested will remember that ultimately this came to Report, when my noble friend Lord Young of Cookham dealt with the amendment. In the course of his observations he referred to two statutes that were supposed to indicate a form of warrant that would exclude my idea. Needless to say, I examined both of those and neither of them seemed to support the proposition for which they were cited. Eventually, my noble friend kindly agreed that the Government would consider the matter further—which is why it is competent for me to raise it at Third Reading. I had permission, as it were Since Report, I have had a meeting with the Minister—this time, the noble Viscount, Lord Younger of Leckie—officials from the Department for Education as well as, and this is the vital information, an official from Her Majesty’s courts service. It was not clear from the previous meeting exactly what the objection was to my amendment. It was thought that his department was carrying out an operation to simplify all warrants and make them pretty well the same. It turned out at the meeting that these were related to the criminal procedure and the operations of the committee concerned with the revision of criminal procedure matters. I continued to think that this was not a criminal matter and therefore did not preclude what I wanted I was fairly insistent that this should happen, so we had a meeting this afternoon. It transpires that the idea of it being unheard of to have a separate signature is without foundation, because the criminal procedure committee and the Lord Chief Justice, who is no doubt an implement of that, have approved a form of warrant in criminal procedures which includes at the end of the application a space for the magistrate to sign to the effect that he or she has granted a warrant and to give the reasons for it It is apparent that this is not a criminal warrant; it is much more general than that. The official from the courts service kindly gave me a copy today of the form of warrant in criminal matters. It refers to the Criminal Procedure Rules and the Police and Criminal Evidence Act 1984, but it also says: "Use this form ONLY for an application for a search warrant under a power to which sections 15 & 16 of the Police and Criminal Evidence Act 1984 … apply, other than section 8" There is a different form for Section 8. So whatever you say about the form, it does not seem expressly to apply to one type of warrant. The official undertook to confirm whether this procedure applies generally as a matter of practice to other warrants—and he rather thought that it did I would be content if this form of warrant or something like it was agreed to be applied to the warrants under Schedule 5 to the Act, because it is a form of what I originally suggested. If that is correct, it is a perfectly reasonable way of allaying the concern of the academic community that the warrant would be too readily granted and that the very strict conditions laid down in the schedule might not be fully understood by the magistrate who had the obligation in connection with the warrant I think it right that I should move my amendment but explain that, in light of the rather tortuous history that it has had, I would be content if the Minister confirmed that the practice of magistrates’ courts generally in relation to all the warrants that they deal with is to contain in the application a form for the signature of the magistrate confirming that he or she has issued the warrant for the reasons that are summarised.