Guidance on powers of entry, and how these powers are changing under the Protection of Freedoms Act 2012.
A power of entry is a statutory right for a person (usually a state official such as a police officer, local authority trading standards officer or a member of enforcement staff of a regulatory body) to legally enter defined premises, such as businesses, vehicles or land for specific purposes.
Purposes for which a power of entry might be exercised include undertaking an inspection, dealing with an emergency or searching for evidence during an investigation. Often, a power of entry is accompanied by what are known as ‘associated powers’, which set out what an official is allowed to do once they have entered the premises. This might include conducting a search, seizing relevant items or collecting samples. Currently, there are around 1,200 separate powers of entry under primary and secondary legislation.
Protection of Freedoms Act 2012
It is essential that powers of entry, as with any enforcement power, achieve the right balance between the need to enforce the law and ensure public protection and to provide sufficient safeguards and rights to the individual. The Protection of Freedoms Act 2012 includes provisions to reform the powers of entry landscape.
The provisions contained in the act provide the ‘tools’ needed to:
- repeal unnecessary powers of entry
- add safeguards to powers where they are weak or missing
- consolidate groups of similar powers to improve transparency, heighten safeguards and remove duplication
Review of all powers of entry
The act placed a duty on secretaries of state to review the powers of entry they are responsible for. The purpose of the review was to examine each individual power, and see if that power:
- is still required or should be repealed
- should have further safeguards added to it
- can be consolidated with other similar powers, to reduce the overall number
The Home Office co-ordinated the government-wide review including presenting two progress reports to Parliament comprising information submitted by departments. The first progress report was published in January 2013. The second progress report was published in July 2013.
Ministers of each department laid their final reports in Parliament on 27 November 2014 which show that a total of 1,237 powers of entry have been subject to review. Government is proposing a significant reduction in the overall number of powers which will leave a total of 912. Government has also ensured that, where necessary, remaining powers will have additional safeguards added via legislation to ensure appropriate use of the powers. The number of powers for which it is proposed to add further safeguards is 231.
Code of practice
On 8 December 2014 the Home Secretary laid before Parliament a new code of practice on powers of entry. Following the approval of Parliament, the code came into force on 6 April 2015.
Relevant persons exercising a power of entry must have regard to this new code before, during and after exercising powers of entry (unless the exercise of that power is subject to another statutory code of practice - for example, Police and Criminal Evidence Act (PACE) Code B). The code provides guidance and sets out considerations that apply to the exercise of powers of entry including, where appropriate, the need to minimise disruption to business and will ensure greater consistency in the exercise of powers of entry and greater clarity for those affected by them while upholding effective enforcement.
Introduction of new or amended powers of entry
A Home Office-led gateway has been set up to consider proposals for new powers of entry, to prevent the creation of needless powers and to reduce unnecessary intrusion into people’s homes. All new, amended or re-enacted powers of entry must now be submitted to the Home Office for ministerial approval. If approved, the power still needs to undergo parliamentary scrutiny.
The guidance is primarily aimed at people working in central government departments and agencies, who are thinking about creating, amending or re-enacting powers of entry.
Government departments and agencies need to complete a Home Office powers of entry gateway form (ODT, 36KB) setting out the background, necessity, proportionality and safeguards attached to the powers and submit it to the powers of entry gateway team on PofEGateway@homeoffice.gsi.gov.uk.
The Home Office will then consider the application and may ask you for further clarification before recommending ministers approve or not approve the new power.
For any queries about the powers of entry gateway process, please email the powers of entry gateway team.