Protection of Freedoms Bill (HL Bill 99)

(3) The relevant judicial authority may give approval under this section to
the granting of an authorisation under section 28 if, and only if, the
relevant judicial authority is satisfied that—

(a) at the time of the grant—

(i) 5there were reasonable grounds for believing that the
requirements of section 28(2) were satisfied in relation to
the authorisation, and

(ii) the relevant conditions were satisfied in relation to the
authorisation, and

(b) 10at the time when the relevant judicial authority is considering
the matter, there remain reasonable grounds for believing that
the requirements of section 28(2) are satisfied in relation to the
authorisation.

(4) For the purposes of subsection (3) the relevant conditions are—

(a) 15in relation to a grant by an individual holding an office, rank or
position in a local authority in England or Wales, that—

(i) the individual was a designated person for the purposes
of section 28,

(ii) the grant of the authorisation was not in breach of any
20restrictions imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an
order made by the Secretary of State were satisfied,

(b) in relation to a grant, for any purpose relating to a Northern
Ireland excepted or reserved matter, by an individual holding
25an office, rank or position in a district council in Northern
Ireland, that—

(i) the individual was a designated person for the purposes
of section 28,

(ii) the grant of the authorisation was not in breach of any
30restrictions imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an
order made by the Secretary of State were satisfied, and

(c) in relation to any other grant by a relevant person, that any
conditions that may be provided for by an order made by the
35Secretary of State were satisfied.

(5) The relevant judicial authority may give approval under this section to
the granting of an authorisation under section 29 if, and only if, the
relevant judicial authority is satisfied that—

(a) at the time of the grant—

(i) 40there were reasonable grounds for believing that the
requirements of section 29(2), and any requirements
imposed by virtue of section 29(7)(b), were satisfied in
relation to the authorisation, and

(ii) the relevant conditions were satisfied in relation to the
45authorisation, and

(b) at the time when the relevant judicial authority is considering
the matter, there remain reasonable grounds for believing that
the requirements of section 29(2), and any requirements
imposed by virtue of section 29(7)(b), are satisfied in relation to
50the authorisation.

(6) For the purposes of subsection (5) the relevant conditions are—

(a) in relation to a grant by an individual holding an office, rank or
position in a local authority in England or Wales, that—

(i) the individual was a designated person for the purposes
5of section 29,

(ii) the grant of the authorisation was not in breach of any
prohibition imposed by virtue of section 29(7)(a) or any
restriction imposed by virtue of section 30(3), and

(iii) any other conditions that may be provided for by an
10order made by the Secretary of State were satisfied,

(b) in relation to a grant, for any purpose relating to a Northern
Ireland excepted or reserved matter, by an individual holding
an office, rank or position in a district council in Northern
Ireland, that—

(i) 15the individual was a designated person for the purposes
of section 29,

(ii) the grant of the authorisation was not in breach of any
prohibition imposed by virtue of section 29(7)(a) or any
restriction imposed by virtue of section 30(3), and

(iii) 20any other conditions that may be provided for by an
order made by the Secretary of State were satisfied, and

(c) in relation to any other grant by a relevant person, that any
conditions that may be provided for by an order made by the
Secretary of State were satisfied.

(7) 25In this section—

• “local authority in England” means—

  (a)

  a district or county council in England,

  (b)

  a London borough council,

  (c)

  the Common Council of the City of London in its
  30capacity as a local authority, or

  (d)

  the Council of the Isles of Scilly,

• “local authority in Wales” means any county council or county
  borough council in Wales,

• “Northern Ireland excepted or reserved matter” means an
  35excepted or reserved matter (within the meaning of section 4(1)
  of the Northern Ireland Act 1998),

• “Northern Ireland transferred matter” means a transferred matter
  (within the meaning of section 4(1) of the Act of 1998),

• “relevant judicial authority” means—

  (a)

  40in relation to England and Wales, a justice of the peace,

  (b)

  in relation to Scotland, a sheriff, and

  (c)

  in relation to Northern Ireland, a district judge
  (magistrates’ courts) in Northern Ireland,

• “relevant person” means—

  (a)

  45an individual holding an office, rank or position in a
  local authority in England or Wales,

  (b)

  also, in relation to a grant for any purpose relating to a
  Northern Ireland excepted or reserved matter, an
  individual holding an office, rank or position in a
  50district council in Northern Ireland, and

  Protection of Freedoms BillPage 32

  (c)

  also, in relation to any grant of a description that may be
  prescribed for the purposes of this subsection by an
  order made by the Secretary of State or every grant if so
  prescribed, a person of a description so prescribed.

(8) 5No order of the Secretary of State—

(a) may be made under subsection (7) unless a draft of the order
has been laid before Parliament and approved by a resolution of
each House;

(b) may be made under this section so far as it makes provision
10which would be within the legislative competence of the
Scottish Parliament if it were contained in an Act of the Scottish
Parliament;

(c) may be made under this section so far as it makes provision
which, if it were contained in an Act of the Northern Ireland
15Assembly, would be within the legislative competence of the
Northern Ireland Assembly and would deal with a Northern
Ireland transferred matter.

32B Procedure for judicial approval

(1) The public authority with which the relevant person holds an office,
20rank or position may apply to the relevant judicial authority for an
order under section 32A approving the grant of an authorisation.

(2) The applicant is not required to give notice of the application to—

(a) any person to whom the authorisation relates, or

(b) such a person’s legal representatives.

(3) 25Where, on an application under this section, 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) In this section “relevant judicial authority” and “relevant person” have
30the 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) The relevant judicial authority (within the meaning given by
35subsection (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) is satisfied that a review has been carried out of the
40matters 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
(6A)”.

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 36

• “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.