(a) 10such persons appearing to the appropriate national authority to be
representative 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
15appropriate.

44 Procedural 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) 20may 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
Crown under section 39(1), 40 or 41 is to be made unless a draft of it has been
25laid 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
Parliament, it is to proceed in that House as if it were not a hybrid instrument.

(4) 30An 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) In subsection (4) “primary legislation” means—

(a) 35a 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) Subject to subsection (7), no instrument containing an order of the Welsh
40Ministers 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 which neither amends nor repeals any provision of primary legislation
is subject to annulment in pursuance of a resolution of the National Assembly
45for Wales.

(8) In subsection (7) “primary legislation” means—

(a) a public general Act, and

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

45 Devolution: Scotland and Northern Ireland

(1) 5An 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) 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
10legislative competence of the Northern Ireland Assembly and would deal with
a transferred matter without being ancillary to other provision (whether in that
Act or previously enacted) which deals with an excepted or reserved matter.

(3) In subsection (2) “excepted matter”, “reserved matter” and “transferred
matter” have the meaning given by section 4(1) of the Northern Ireland Act
151998.

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
  20within 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)

  25is 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,
  30found 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;

• 35“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)

  40Northern 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
  45accordingly),

Protection of Freedoms BillPage 38

• “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
  5forms part of the power,

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

  (a)

  any vehicle, vessel, aircraft or hovercraft,

  (b)

  any off-shore installation,

  (c)

  any renewable energy installation,

  (d)

  10any tent or movable structure,

• “renewable energy installation” has the same meaning as in Chapter 2 of
  Part 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 15Code of practice in relation to non-devolved powers of entry

(1) The Secretary of State must prepare a code of practice containing guidance
about 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) 20considerations after exercising the powers (such as the retention of
records, or the publication of information, about the exercise of the
powers).

(3) Such a code—

(a) must not contain provision about devolved powers of entry and
25devolved associated powers,

(b) need not contain provision about every other type of power of entry or
associated 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
30of 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
Secretary of State considers appropriate, and

(c) 35such 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) in relation to which the Welsh Ministers may issue a code under
Schedule 3,

(b) 40which, 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,
would be within the legislative competence of that Assembly and
would deal with a transferred matter (within the meaning given by
45section 4(1) of the Northern Ireland Act 1998) without being ancillary to
other provision (whether in the Act of the Northern Ireland Assembly

or previously enacted) which deals with an excepted or reserved matter
(within the meaning given by section 4(1) of the Northern Ireland Act
1998).

48 Issuing of code

(1) 5The 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.

(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) 10The Secretary of State must not make the order or issue the code unless the
draft 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) 15the Secretary of State considers that there is no realistic prospect that it
will 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) 20may contain transitional, transitory or saving provision.

(7) If 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 25Alteration 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) Before preparing an alteration or a replacement code in relation to any powers,
30the 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
Secretary of State considers appropriate, and

(c) 35such 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
approve the alteration or the replacement code, the Secretary of State must not
40issue 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.