Protection of Freedoms Bill

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Protection of Freedoms Bill

Protection of Freedoms Bill
Part 3 — Protection of property from disproportionate enforcement action
Chapter 1 — Powers of entry
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)
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
a transferred matter.
(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
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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
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(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,
found on the land or other premises entered in
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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;
“enactment” includes—
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(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
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(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
accordingly),
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
forms part of the power,
45
“premises” includes any place and, in particular, includes—
(a)
any vehicle, vessel, aircraft or hovercraft,

Protection of Freedoms Bill
Part 3 — Protection of property from disproportionate enforcement action
Chapter 1 — Powers of entry
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
Part 2 of the Energy Act 2004 (see section 104 of that Act),
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“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.
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(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
powers).
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(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,
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(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)
such persons appearing to the Secretary of State to be representative of
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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—
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(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)
which, if it were contained in an Act of the Northern Ireland Assembly,
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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)
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.

Protection of Freedoms Bill
Part 3 — Protection of property from disproportionate enforcement action
Chapter 1 — Powers of entry
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)
The Secretary of State must prepare another code of practice under section 47
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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)
A code comes into force in accordance with an order under this section.
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(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
from this subsection, be treated as a hybrid instrument for the purposes of the
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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
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(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)
such persons appearing to the Secretary of State to be representative of
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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.
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(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.
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(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

Protection of Freedoms Bill
Part 3 — Protection of property from disproportionate enforcement action
Chapter 1 — Powers of entry
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
adjourned for more than four days.
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(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).
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Publication of code
(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
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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.
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Effect of code
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(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
or civil proceedings.
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(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)
In this section “relevant person” means any person specified or described by
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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
functions,
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(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.
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(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.
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(9)
An instrument containing an order under subsection (5) is subject to
annulment in pursuance of a resolution of either House of Parliament.