some default text...

Protection of Freedoms Bill (HC Bill 146)

Protection of Freedoms BillPage 30

(3) Where, on an application under section 32A, the relevant judicial

authority refuses to approve the grant of the authorisation concerned,

the relevant judicial authority may make an order quashing the

authorisation.

(4) 5In this section “relevant judicial authority” and “relevant person” have

the same meaning as in section 32A.

(2) In section 43 of that Act (general rules about grant, renewal and duration of

authorisations)—

(a) after subsection (6) insert—

(6A) 10The relevant judicial authority (within the meaning given by

subsection (7) of section 32A) shall not make an order under

that section approving the renewal of an authorisation for the

conduct or the use of a covert human intelligence source unless

the relevant judicial authority—

(a) 15is satisfied that a review has been carried out of the

matters mentioned in subsection (7) below, and

(b) has, for the purpose of deciding whether to make the

order, considered the results of that review., and

(b) in subsection (7) for “subsection (6)” substitute “subsections (6) and

20(6A)”.

Part 3 Protection of property from disproportionate enforcement action

CHAPTER 1 Powers of entry

Repealing, adding safeguards or rewriting powers of entry

39 25Repealing etc. unnecessary or inappropriate powers of entry

(1) The appropriate national authority may by order repeal any power of entry or

associated power which the appropriate national authority considers to be

unnecessary or inappropriate.

(2) Schedule 2 (which contains repeals etc. of certain powers of entry) has effect.

40 30Adding safeguards to powers of entry

(1) The appropriate national authority may by order provide for safeguards in

relation to any power of entry or associated power.

(2) Such safeguards may, in particular, include—

(a) restrictions as to the premises over which the power may be exercised,

(b) 35restrictions as to the times at which the power may be exercised,

(c) restrictions as to the number or description of persons who may

exercise the power,

(d) a requirement for a judicial or other authorisation before the power

may be exercised,

Protection of Freedoms BillPage 31

(e) a requirement to give notice within a particular period before the

power may be exercised,

(f) other conditions which must be met before the power may be exercised,

(g) modifications of existing conditions which must be met before the

5power may be exercised,

(h) other restrictions on the circumstances in which the power may be

exercised,

(i) new obligations on the person exercising the power which must be met

before, during or after its exercise,

(j) 10modifications of existing obligations which must be met by the person

exercising the power before, during or after its exercise,

(k) restrictions on any power to use force, or any other power, which may

be exercised in connection with the power of entry or associated power.

41 Rewriting powers of entry

(1) 15The appropriate national authority may by order rewrite, with or without

modifications—

(a) powers of entry, associated powers or any aspects of any such powers,

or

(b) enactments relating to, or connected with, any such powers or aspects.

(2) 20The power under subsection (1) to rewrite a power of entry or associated

power includes, in particular, the power to remove an aspect of such a power

without replacing it.

(3) But no order under this section may alter the effect of—

(a) a power of entry,

(b) 25any associated power connected with it, or

(c) any safeguard relating to, but not forming part of, the power of entry or

associated power,

unless, on and after the changes made by the order, the safeguards in relation

to the power of entry and associated powers connected with it, taken together,

30provide a greater level of protection than any safeguards applicable

immediately before the changes.

42 Duty to review certain existing powers of entry

(1) Each Minister of the Crown who is a member of the Cabinet must, within the

relevant period—

(a) 35review relevant powers of entry, and relevant associated powers, for

which the Minister is responsible with a view to deciding whether to

make an order under section 39(1), 40 or 41 in relation to any of them,

(b) prepare a report of that review, and

(c) lay a copy of the report before Parliament.

(2) 40A failure by a Minister of the Crown to comply with a duty under subsection

(1) in relation to a power of entry or associated power does not affect the

validity of the power.

(3) In this section—

  • “relevant associated power” means any associated power in a public

    45general Act or a statutory instrument made under such an Act,

  • Protection of Freedoms BillPage 32

  • “the relevant period” means the period of two years beginning with the

    day on which this Act is passed,

  • “relevant power of entry” means any power of entry in a public general

    Act or a statutory instrument made under such an Act.

43 5Consultation requirements before modifying powers of entry

Before making an order under section 39(1), 40 or 41 in relation to a power of

entry or associated power, the appropriate national authority must consult—

(a) such persons appearing to the appropriate national authority to be

representative of the views of persons entitled to exercise the power of

10entry or associated power as the appropriate national authority

considers appropriate, and

(b) such other persons as the appropriate national authority considers

appropriate.

44 Procedural and supplementary provisions

(1) 15An order under section 39(1), 40 or 41—

(a) is to be made by statutory instrument,

(b) may modify any enactment,

(c) may include such incidental, consequential, supplementary, transitory,

transitional or saving provision as the appropriate national authority

20considers appropriate (including provision modifying any enactment).

(2) Subject to subsection (4), no instrument containing an order of a Minister of the

Crown under section 39(1), 40 or 41 is to be made unless a draft of it has been

laid before, and approved by a resolution of, each House of Parliament.

(3) If a draft of an instrument containing an order of a Minister of the Crown under

25section 39(1), 40 or 41 would, apart from this subsection, be treated as a hybrid

instrument for the purposes of the standing orders of either House of

Parliament, it is to proceed in that House as if it were not a hybrid instrument.

(4) An instrument containing an order of a Minister of the Crown under section

39(1), 40 or 41 which neither amends nor repeals any provision of primary

30legislation is subject to annulment in pursuance of a resolution of either House

of Parliament.

(5) In subsection (4) “primary legislation” means—

(a) a public general Act,

(b) an Act of the Scottish Parliament,

(c) 35a Measure or Act of the National Assembly for Wales, and

(d) Northern Ireland legislation.

(6) Subject to subsection (7), no instrument containing an order of the Welsh

Ministers under section 39(1), 40 or 41 is to be made unless a draft of it has been

laid before, and approved by a resolution of, the National Assembly for Wales.

(7) 40An instrument containing an order of the Welsh Ministers under section 39(1),

40 or 41 is subject to annulment in pursuance of a resolution of the National

Assembly for Wales if it neither amends nor repeals any of the following—

(a) any provision of a public general Act,

(b) any provision of a Measure or Act of the National Assembly for Wales.

Protection of Freedoms BillPage 33

45 Devolution: Scotland and Northern Ireland

(1) An order under section 39(1), 40 or 41 may not make provision which would

be within the legislative competence of the Scottish Parliament if it were

contained in an Act of the Scottish Parliament.

(2) 5An order under section 39(1), 40 or 41 may not make provision which, if it were

contained in an Act of the Northern Ireland Assembly, would be within the

legislative competence of the Northern Ireland Assembly because it deals with

a transferred matter.

(3) In subsection (2) “transferred matter” has the meaning given by section 4(1) of

10the Northern Ireland Act 1998.

46 Sections 39 to 46: interpretation

In sections 39 to 45 and this section—

  • “appropriate national authority” means—

    (a)

    in relation to the making of any provision which would be

    15within the legislative competence of the National Assembly for

    Wales, the Welsh Ministers,

    (b)

    in any other case, a Minister of the Crown,

  • “associated power” means any power which—

    (a)

    is contained in an enactment,

    (b)

    20is connected with a power of entry, and

    (c)

    is a power—

    (i)

    to do anything on, or in relation to, the land or other

    premises entered in pursuance of the power of entry,

    (ii)

    to do anything in relation to any person, or anything,

    25found on the land or other premises entered in

    pursuance of the power of entry, or

    (iii)

    otherwise to do anything in connection with the power

    of entry,

    and includes any safeguard which forms part of the associated power;

  • 30“enactment” includes—

    (a)

    an enactment comprised in subordinate legislation (within the

    meaning of the Interpretation Act 1978),

    (b)

    an enactment comprised in, or in an instrument made under—

    (i)

    an Act of the Scottish Parliament,

    (ii)

    35Northern Ireland legislation, or

    (iii)

    a Measure or Act of the National Assembly for Wales,

  • “Minister of the Crown” has the same meaning as in the Ministers of the

    Crown Act 1975,

  • “modify” includes amend or repeal (and “modifications” is to be read

    40accordingly),

  • “off-shore installation” has the same meaning as in the Mineral Workings

    (Offshore Installations) Act 1971 (see section 12 of that Act),

  • “power of entry” means a power (however expressed) in any enactment

    to enter land or other premises; and includes any safeguard which

    45forms part of the power,

  • “premises” includes any place and, in particular, includes—

    (a)

    any vehicle, vessel, aircraft or hovercraft,

    Protection of Freedoms BillPage 34

    (b)

    any off-shore installation,

    (c)

    any renewable energy installation,

    (d)

    any tent or movable structure,

  • “renewable energy installation” has the same meaning as in Chapter 2 of

    5Part 2 of the Energy Act 2004 (see section 104 of that Act),

  • “repeal” includes revoke.

Codes of practice in relation to powers of entry

47 Code of practice in relation to non-devolved powers of entry

(1) The Secretary of State must prepare a code of practice containing guidance

10about the exercise of powers of entry and associated powers.

(2) Such a code may, in particular, include provision about—

(a) considerations before exercising, or when exercising, the powers,

(b) considerations after exercising the powers (such as the retention of

records, or the publication of information, about the exercise of the

15powers).

(3) Such a code—

(a) must not contain provision about devolved powers of entry and

devolved associated powers,

(b) need not contain provision about every other type of power of entry or

20associated power,

(c) may make different provision for different purposes.

(4) In the course of preparing such a code in relation to any powers, the Secretary

of State must consult—

(a) the Lord Advocate,

(b) 25such persons appearing to the Secretary of State to be representative of

the views of persons entitled to exercise the powers concerned as the

Secretary of State considers appropriate, and

(c) such other persons as the Secretary of State considers appropriate.

(5) In this section “devolved powers of entry and devolved associated powers”

30means powers of entry and associated powers—

(a) in relation to which the Welsh Ministers may issue a code under

Schedule 3,

(b) which, if it were contained in an Act of the Scottish Parliament, would

be within the legislative competence of that Parliament, or

(c) 35which, if it were contained in an Act of the Northern Ireland Assembly,

would be within the legislative competence of that Assembly because

it deals with a transferred matter (within the meaning given by section

4(1) of the Northern Ireland Act 1998).

48 Issuing of code

(1) 40The Secretary of State must lay before Parliament—

(a) a code of practice prepared under section 47, and

(b) a draft of an order providing for the code to come into force.

Protection of Freedoms BillPage 35

(2) The Secretary of State must make the order and issue the code if the draft of the

order is approved by a resolution of each House of Parliament.

(3) The Secretary of State must not make the order or issue the code unless the

draft of the order is so approved.

(4) 5The Secretary of State must prepare another code of practice under section 47

if—

(a) the draft of the order is not so approved, and

(b) the Secretary of State considers that there is no realistic prospect that it

will be so approved.

(5) 10A code comes into force in accordance with an order under this section.

(6) Such an order—

(a) is to be a statutory instrument, and

(b) may contain transitional, transitory or saving provision.

(7) If a draft of an instrument containing an order under this section would, apart

15from this subsection, be treated as a hybrid instrument for the purposes of the

standing orders of either House of Parliament, it is to proceed in that House as

if it were not a hybrid instrument.

49 Alteration or replacement of code

(1) The Secretary of State—

(a) 20must keep the powers of entry code under review, and

(b) may prepare an alteration to the code or a replacement code.

(2) Before preparing an alteration or a replacement code in relation to any powers,

the Secretary of State must consult—

(a) the Lord Advocate,

(b) 25such persons appearing to the Secretary of State to be representative of

the views of persons entitled to exercise the powers concerned as the

Secretary of State considers appropriate, and

(c) such other persons as the Secretary of State considers appropriate.

(3) The Secretary of State must lay before Parliament an alteration or a

30replacement code prepared under this section.

(4) If, within the 40-day period, either House of Parliament resolves not to

approve the alteration or the replacement code, the Secretary of State must not

issue the alteration or code.

(5) If no such resolution is made within that period, the Secretary of State must

35issue the alteration or replacement code.

(6) The alteration or replacement code—

(a) comes into force when issued, and

(b) may include transitional, transitory or saving provision.

(7) Subsection (4) does not prevent the Secretary of State from laying a new

40alteration or replacement code before Parliament.

(8) In this section “the 40-day period” means the period of 40 days beginning with

the day on which the replacement code is laid before Parliament (or, if it is not

Protection of Freedoms BillPage 36

laid before each House of Parliament on the same day, the later of the two days

on which it is laid).

(9) In calculating the 40-day period, no account is to be taken of any period during

which Parliament is dissolved or prorogued or during which both Houses are

5adjourned for more than four days.

(10) In this section “the powers of entry code” means the code of practice issued

under section 48(2) (as altered or replaced from time to time).

50 Publication of code

(1) The Secretary of State must publish the code issued under section 48(2).

(2) 10The Secretary of State must publish any replacement code issued under section

49(5).

(3) The Secretary of State must publish—

(a) any alteration issued under section 49(5), or

(b) the code or replacement code as altered by it.

51 15Effect of code

(1) A relevant person must have regard to the powers of entry code when

exercising any functions to which the code relates.

(2) A failure on the part of any person to act in accordance with any provision of

the powers of entry code does not of itself make that person liable to criminal

20or civil proceedings.

(3) The powers of entry code is admissible in evidence in any such proceedings.

(4) A court or tribunal may, in particular, take into account a failure by a relevant

person to have regard to the powers of entry code in determining a question in

any such proceedings.

(5) 25In this section “relevant person” means any person specified or described by

the Secretary of State in an order made by statutory instrument.

(6) An order under subsection (5) may, in particular—

(a) restrict the specification or description of a person to that of the person

when acting in a specified capacity or exercising specified or described

30functions,

(b) contain transitional, transitory or saving provision.

(7) So far as an order under subsection (5) contains a restriction of the kind

mentioned in subsection (6)(a) in relation to a person, the duty in subsection (1)

applies only to the person in that capacity or (as the case may be) only in

35relation to those functions.

(8) Before making an order under subsection (5) in relation to any person or

description of persons, the Secretary of State must consult such persons

appearing to the Secretary of State to be representative of the views of the

person or persons in relation to whom the order may be made as the Secretary

40of State considers appropriate.

(9) An instrument containing an order under subsection (5) is subject to

annulment in pursuance of a resolution of either House of Parliament.

Protection of Freedoms BillPage 37

52 Sections 47 to 51: interpretation

In sections 47 to 51—

  • “power of entry” and “associated power” have the meaning given by

    section 46,

  • 5“the powers of entry code” has the meaning given by section 49(10).

53 Corresponding code in relation to Welsh devolved powers of entry

Schedule 3 (which confers a power on the Welsh Ministers to issue a code of

practice about Welsh devolved powers of entry and associated powers) has

effect.

CHAPTER 2 10Vehicles left on land

Offence of immobilising etc. vehicles

54 Offence of immobilising etc. vehicles

(1) A person commits an offence who, without lawful authority—

(a) immobilises a motor vehicle by the attachment to the vehicle, or a part

15of it, of an immobilising device, or

(b) moves, or restricts the movement of, such a vehicle by any means,

intending to prevent or inhibit the removal of the vehicle by a person otherwise

entitled to remove it.

(2) The express or implied consent (whether or not legally binding) of a person

20otherwise entitled to remove the vehicle to the immobilisation, movement or

restriction concerned is not lawful authority for the purposes of subsection (1).

(3) Subsection (2) does not apply where—

(a) there is express or implied consent by the driver of the vehicle to

restricting its movement by a fixed barrier, and

(b) 25the barrier was present (whether or not lowered into place or otherwise

restricting movement) when the vehicle was parked.

(4) A person who is entitled to remove a vehicle cannot commit an offence under

this section in relation to that vehicle.

(5) A person guilty of an offence under this section is liable—

(a) 30on conviction on indictment, to a fine,

(b) on summary conviction, to a fine not exceeding the statutory

maximum.

(6) In this section “motor vehicle” means a mechanically propelled vehicle or a

vehicle designed or adapted for towing by a mechanically propelled vehicle.

Protection of Freedoms BillPage 38

Alternative remedies in relation to vehicles left on land

55 Extension of powers to remove vehicles from land

(1) Section 99 of the Road Traffic Regulation Act 1984 (removal of vehicles

illegally, obstructively or dangerously parked, or abandoned or broken down)

5is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a), after “road” insert “or other land”,

(b) in paragraph (b)—

(i) after “road”, where it appears for the first time, insert “or other

10land”, and

(ii) after “road”, where it appears for the second time, insert “or

land concerned”,

(c) in paragraph (c) for “, or on any land in the open air,” substitute “or

other land”, and

(d) 15at the end insert “or other land”.

(3) In subsection (2)—

(a) in paragraph (a), after “road”, where it appears for the third time, insert

“or on land other than a road”, and

(b) after paragraph (a), insert—

(aa) 20may provide, in the case of a vehicle which may be

removed from land other than a road, for the moving of

the vehicle from one position on such land to another

position on such land or on any road;.

56 Recovery of unpaid parking charges

25Schedule 4 (which makes provision for the recovery of unpaid parking charges

from the keeper of a vehicle in cases where it is not known who was driving

the vehicle when the charges were incurred) has effect.

Part 4 Counter-terrorism powers

30Pre-charge detention of terrorist suspects

57 Permanent reduction of maximum detention period to 14 days

(1) In paragraph 36(3)(b)(ii) of Schedule 8 to the Terrorism Act 2000 (maximum

period of pre-charge detention for terrorist suspects) for “28 days” substitute

“14 days”.

(2) 35Omit section 25 of the Terrorism Act 2006 (which provides for the 28 day limit

in paragraph 36(3)(b)(ii) of Schedule 8 to the Act of 2000 to be 14 days subject

to a power to raise it to 28 days).

Protection of Freedoms BillPage 39

Stop and search powers: general

58 Repeal of existing stop and search powers

Omit sections 44 to 47 of the Terrorism Act 2000 (power to stop and search).

59 Replacement powers to stop and search persons and vehicles

(1) 5Omit section 43(3) of the Terrorism Act 2000 (requirement for searches of

persons to be carried out by some-one of the same sex).

(2) After section 43(4) of that Act insert—

(4A) Subsection (4B) applies if a constable, in exercising the power under

subsection (1) to stop a person whom the constable reasonably suspects

10to be a terrorist, stops a vehicle (see section 116(2)).

(4B) The constable—

(a) may search the vehicle and anything in or on it to discover

whether there is anything which may constitute evidence that

the person concerned is a terrorist, and

(b) 15may seize and retain anything which the constable—

(i) discovers in the course of such a search, and

(ii) reasonably suspects may constitute evidence that the

person is a terrorist.

(4C) Nothing in subsection (4B) confers a power to search any person but the

20power to search in that subsection is in addition to the power in

subsection (1) to search a person whom the constable reasonably

suspects to be a terrorist.

(3) After section 43 of that Act insert—

43A Search of vehicles

(1) 25Subsection (2) applies if a constable reasonably suspects that a vehicle

is being used for the purposes of terrorism.

(2) The constable may stop and search—

(a) the vehicle;

(b) the driver of the vehicle;

(c) 30a passenger in the vehicle;

(d) anything in or on the vehicle or carried by the driver or a

passenger;

to discover whether there is anything which may constitute evidence

that the vehicle is being used for the purposes of terrorism.

(3) 35A constable may seize and retain anything which the constable—