Protection of Freedoms Act 2012

Repealing, adding safeguards or rewriting powers of entry

39Repealing 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.

40Adding 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)restrictions 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)a 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)other 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 exercising 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.

41Rewriting powers of entry

(1)The appropriate national authority may by order rewrite, with or without modifications—

(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)a 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 to 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.

42Duty to review certain existing powers of entry

(1)Each Minister of the Crown who is a member of the Cabinet must, within the relevant 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)lay 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—

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

43Consultation 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 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 appropriate.

44Procedural 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 Crown 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 Parliament, 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)In 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)Subject 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 which neither amends nor repeals any provision of primary legislation is subject to annulment in pursuance of a resolution of the National Assembly for 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.

45Devolution: 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 contained in an Act of the Northern Ireland Assembly, would be within the legislative 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 1998.

46Sections 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 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

  (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 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—

  (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

  (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),

• “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,

• “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),

• “repeal” includes revoke.