Protection of Freedoms Bill (HC Bill 189)

Part 3 Protection of property from disproportionate enforcement action

CHAPTER 1 Powers of entry

Repealing, adding safeguards or rewriting powers of entry

39 5Repealing 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 10Adding 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) 15restrictions 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,

(e) 20a 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

power may be exercised,

(h) 25other 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) modifications of existing obligations which must be met by the person

30exercising 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) The appropriate national authority may by order rewrite, with or without

35modifications—

(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) The 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) 5a power of entry,

(b) any 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

10to the power of entry and associated powers connected with it, taken together,

provide 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

15relevant period—

(a) review 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) 20lay a copy of the report before Parliament.

(2) A 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—

• 25“relevant associated power” means any associated power in a public
  
  general Act or a statutory instrument made under such an Act,

• “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
  
  30Act or a statutory instrument made under such an Act.

43 Consultation 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

35representative of the views of persons entitled to exercise the power of

entry or associated power as the appropriate national authority

considers appropriate, and

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

appropriate.

44 40Procedural and supplementary provisions

(1) An 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

considers appropriate (including provision modifying any enactment).

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

5Crown 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

section 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

10Parliament, 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

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

of Parliament.

(5) 15In subsection (4) “primary legislation” means—

(a) a public general Act,

(b) an Act of the Scottish Parliament,

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

(d) Northern Ireland legislation.

(6) 20Subject 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) An 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

25Assembly 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.

45 Devolution: Scotland and Northern Ireland

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

30be within the legislative competence of the Scottish Parliament if it were

contained in an Act of the Scottish Parliament.

(2) An 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 and would deal with

35a transferred matter.

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

the Northern Ireland Act 1998.

46 Sections 39 to 46: interpretation

In sections 39 to 45 and this section—

• 40“appropriate national authority” means—

  (a)

  in relation to the making of any provision which would be
  
  within the legislative competence of the National Assembly for
  
  Wales, the Welsh Ministers,

  (b)

  in any other case, a Minister of the Crown,

Protection of Freedoms BillPage 33

• “associated power” means any power which—

  (a)

  is contained in an enactment,

  (b)

  is connected with a power of entry, and

  (c)

  is a power—

  (i)

  5to 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,
  
  found on the land or other premises entered in
  
  pursuance of the power of entry, or

  (iii)

  10otherwise to do anything in connection with the power
  
  of entry,

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

• “enactment” includes—

  (a)

  an enactment comprised in subordinate legislation (within the
  
  15meaning of the Interpretation Act 1978),

  (b)

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

  (i)

  an Act of the Scottish Parliament,

  (ii)

  Northern Ireland legislation, or

  (iii)

  a Measure or Act of the National Assembly for Wales,

• 20“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
  
  accordingly),

• “off-shore installation” has the same meaning as in the Mineral Workings
  
  25(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
  
  forms part of the power,

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

  (a)

  30any vehicle, vessel, aircraft or hovercraft,

  (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
  
  35Part 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

40about 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

45powers).

(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

associated power,

(c) 5may 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) such persons appearing to the Secretary of State to be representative of

10the 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”

means powers of entry and associated powers—

(a) 15in 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) which, if it were contained in an Act of the Northern Ireland Assembly,

20would be within the legislative competence of that Assembly and

would deal with a transferred matter (within the meaning given by

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

48 Issuing of code

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

(a) 25a code of practice prepared under section 47, and

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

(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

30draft of the order is so approved.

(4) The 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

35will be so approved.

(5) A 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) 40If a draft of an instrument containing an order under this section 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.

49 Alteration or replacement of code

(1) The Secretary of State—

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

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

(2) 5Before preparing an alteration or a replacement code in relation to any powers,

the Secretary of State must consult—

(a) the Lord Advocate,

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

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

10Secretary 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

replacement code prepared under this section.

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

15approve 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

issue the alteration or replacement code.

(6) The alteration or replacement code—

(a) 20comes 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

alteration or replacement code before Parliament.

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

25the day on which the replacement code is laid before Parliament (or, if it is not

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

30adjourned 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) 35The 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 Effect 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

5the powers of entry code does not of itself make that person liable to criminal

or 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

10any such proceedings.

(5) In 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

15when acting in a specified capacity or exercising specified or described

functions,

(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)

20applies only to the person in that capacity or (as the case may be) only in

relation 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

25person or persons in relation to whom the order may be made as the Secretary

of 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.

52 Sections 47 to 51: interpretation

30In sections 47 to 51—

• “power of entry” and “associated power” have the meaning given by
  
  section 46,

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

53 Corresponding code in relation to Welsh devolved powers of entry

35Schedule 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 Vehicles 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) 5immobilises a motor vehicle by the attachment to the vehicle, or a part

of 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) 10The express or implied consent (whether or not legally binding) of a person

otherwise 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

15restricting its movement by a fixed barrier, and

(b) the 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) 20A person guilty of an offence under this section is liable—

(a) on 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

25vehicle designed or adapted for towing by a mechanically propelled vehicle.

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)

30is 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

35land”, 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) 40at 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) 5may 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

10Schedule 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

15Pre-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) 20Omit 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).

Stop and search powers: general

58 Repeal of existing stop and search powers

25Omit 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) Omit section 43(3) of the Terrorism Act 2000 (requirement for searches of

persons to be carried out by someone of the same sex).

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

“(4A) 30Subsection (4B) applies if a constable, in exercising the power under

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

to 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

35whether there is anything which may constitute evidence that

the person concerned is a terrorist, and

(b) may 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

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

5subsection (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) Subsection (2) applies if a constable reasonably suspects that a vehicle

10is being used for the purposes of terrorism.

(2) The constable may stop and search—

(a) the vehicle;

(b) the driver of the vehicle;

(c) a passenger in the vehicle;

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

(a) 20discovers in the course of a search under this section, and

(b) reasonably suspects may constitute evidence that the vehicle is

being used for the purposes of terrorism.

(4) A person who has the powers of a constable in one Part of the United

Kingdom may exercise a power under this section in any Part of the

25United Kingdom.

(5) In this section “driver”, in relation to an aircraft, hovercraft or vessel,

means the captain, pilot or other person with control of the aircraft,

hovercraft or vessel or any member of its crew and, in relation to a train,

includes any member of its crew.”

60 30Replacement powers to stop and search in specified locations

(1) Before section 48 of the Terrorism Act 2000 (and the italic cross-heading before

it) insert—

“Powers to stop and search in specified locations

47A Searches in specified areas or places

(1) 35A senior police officer may give an authorisation under subsection (2)

or (3) in relation to a specified area or place if the officer—