I wrote my first big column for the Times today on the Centre for Policy Studies’ report on entry powers. As part of their study, I made several freedom of information requests to try and discover the extent to which some of these entry powers are used. As a postscript, Harriet, it transpires has expired, though her High Court case goes on…
Come on, open up in the name of the cow inspector
The Times, April 23, 2007
Heather Brooke on the alarming growth of the State’s right to enter your property
Harriet the Cow must have been surprised when at 9:30am on January 10 her peaceful field in Herefordshire was invaded by ten government officials and 12 police officers. This hit squad had erected a road block to seal off the area and used bolt-cutters to force their way into the enclosure. They had not asked permission to enter, nor did they need to. Under the Transmissible Spongiform Encephalopathies Regulations 2006 – one of the State’s 266 statutory powers to enter private property – they were perfectly within their rights to force their way on to private land without the occupier’s consent and without a magistrate’s warrant.
Harriet, you see, had the misfortune to be on land where there had once been a BSE-infected cow and the Department for Environment, Food and Rural Affairs (Defra) had decided that she must be destroyed as a risk to the public. Harriet’s owners, David Price and Liz Davis, had argued that the nine-year-old Jersey cow was a pet, bought as a present for their son. They had documentation showing she did not have BSE nor was she ever going to be slaughtered for meat.
Harriet’s case is not so unusual. In a study published yesterday by the Centre for Policy Studies, Crossing the Threshold: 266 ways the State can enter your home, Harry Snook, a barrister, lays out for the first time the explosive growth in the State’s powers to enter private property forcefully and without permission. The old adage that an Englishman’s home is his castle is long dead.
Not content with spying on us as we walk the streets, drive our cars and go about our public business, the State is now intent on sticking its nose right into our living rooms. In the past few decades the number of new powers of entry becoming law has increased from fewer than ten in the 1950s to more than 60 in the 1990s. The laws are often vague, providing sweeping power to officials and little protection for private citizens.
The most recent example is a Bill that grants bailiffs the power to seize and sell debtors’ property. The law would leave it up to a minister to make regulations concerning how much notice needs to be given to enter a property, what it must state and how it must be sent.
Other examples include the Childcare Act 2006, which gives officials the power to enter your property if they suspect that childcare is taking place that is in contravention of licensing requirements. The AntiSocial Behaviour Act 2003 gives officials power to enter your home to clean up graffiti or inspect hedges that are deemed too tall.
Today we have no way of knowing the circumstances in which our home may be entered without consent, and what powers officials have. Force can be used in exercising almost all the powers. The slightest questioning of an official could be deemed as obstruction and result in a fine of up to several thousand pounds or even imprisonment.
Of course, the State must have a right to forcefully enter someone’s house in emergencies where life and limb are at stake. But the problem is that most of these powers do not deal with such emergencies. One of the most pernicious is the Writ of Assistance that allows Customs officials to break into any private house in order to seize any goods that they believe are liable for forfeiture. Here the motivation of the State is not public safety but greed.
As long ago as 1789 the Americans outlawed Writs of Assistance as unreasonable search and seizure with the Fourth Amendment in direct reaction to the Crown’s abuse:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Meanwhile, 218 years later, the British are even worse off, with an ever-growing barrage of officious laws.
One of the surprising revelations in the study was the cavalier way in which many of these powers are dispensed. I made several requests under the Freedom of Information Act to try to quantify the number of times these powers were used and made a disturbing discovery: the more draconian and arbitrary the entry power, the less it is open to independent scrutiny. So, for example, Defra admirably laid out in detail how often it had exercised power of entry under the Bees Act 1980 to ensure that bee colonies are free from disease and foreign bees. (For those with a burning interest, during 2006, 3,190 apiaries were inspected in England, and a further 940 in Wales.)
The detail of Defra’s record-keeping for this trivial power contrasts markedly with HM Revenue and Customs, who had no comprehensive record of its use of Writs of Assistance. It is utterly unacceptable that the State’s most invasive and arbitrary power is not even documented.
It transpires that magistrates’ warrants, too, have no independent scrutiny. The Department for Constitutional Affairs has no figures on the number of warrants sought, why and whether granted or rejected. And at the local level the records are kept hidden so that there is no public scrutiny through transparency – as in America.
The situation is a mess of confused and intrusive regulation. Clearly, it’s time we modernised to at least the point America reached in the 1700s. We need one law to harmonise entry powers and protect the citizen by making accountability and transparency paramount.
And what of Harriet? She was saved at the last minute when the family and a group of locals rushed to the scene after a tip-off. She is now the subject of a judicial review in the High Court.
Heather Brooke is the author of Your Right to Know
Tags: The Times