|
| |
|
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) | An order under section 39(1), 40 or 41 may not make provision which, if it were |
| 5 |
contained in an Act of the Northern Ireland Assembly, would be within the |
| |
legislative competence of the Northern Ireland Assembly because it deals with |
| |
| |
(3) | In subsection (2) “transferred matter” has the meaning given by section 4(1) of |
| |
the Northern Ireland Act 1998. |
| 10 |
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 |
| |
within the legislative competence of the National Assembly for |
| 15 |
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) | is connected with a power of entry, and |
| 20 |
| |
(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, |
| |
found on the land or other premises entered in |
| 25 |
pursuance of the power of entry, or |
| |
(iii) | otherwise to do anything in connection with the power |
| |
| |
and includes any safeguard which forms part of the associated power; |
| |
| 30 |
(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) | Northern Ireland legislation, or |
| 35 |
(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 |
| |
| |
“modify” includes amend or repeal (and “modifications” is to be read |
| |
| 40 |
“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 |
| |
| 45 |
“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) | any 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), |
| 5 |
“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 |
| |
about the exercise of powers of entry and associated powers. |
| 10 |
(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 |
| |
| 15 |
| |
(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 |
| |
| 20 |
(c) | may make different provision for different purposes. |
| |
(4) | In the course of preparing such a code in relation to any powers, the Secretary |
| |
| |
| |
(b) | such persons appearing to the Secretary of State to be representative of |
| 25 |
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” |
| |
means powers of entry and associated powers— |
| 30 |
(a) | in relation to which the Welsh Ministers may issue a code under |
| |
| |
(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, |
| 35 |
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). |
| |
| |
(1) | The Secretary of State must lay before Parliament— |
| 40 |
(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) | The 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 |
| 5 |
| |
(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 |
| |
| |
(5) | A code comes into force in accordance with an order under this section. |
| 10 |
| |
(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 |
| |
from this subsection, be treated as a hybrid instrument for the purposes of the |
| 15 |
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 |
| 20 |
(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— |
| |
| |
(b) | such persons appearing to the Secretary of State to be representative of |
| 25 |
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 |
| |
replacement code prepared under this section. |
| 30 |
(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 |
| |
issue the alteration or replacement code. |
| 35 |
(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 |
| |
alteration or replacement code before Parliament. |
| 40 |
(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 |
| |
|
| |
|
| |
|
laid before each House of Parliament on the same day, the later of the two days |
| |
| |
(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 |
| |
adjourned for more than four days. |
| 5 |
(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). |
| |
| |
(1) | The Secretary of State must publish the code issued under section 48(2). |
| |
(2) | The Secretary of State must publish any replacement code issued under section |
| 10 |
| |
(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. |
| |
| 15 |
(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 |
| |
| 20 |
(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 |
| |
| |
(5) | In this section “relevant person” means any person specified or described by |
| 25 |
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 |
| |
| 30 |
(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 |
| |
relation to those functions. |
| 35 |
(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 |
| |
of State considers appropriate. |
| 40 |
(9) | An instrument containing an order under subsection (5) is subject to |
| |
annulment in pursuance of a resolution of either House of Parliament. |
| |
|
| |
|