Guidance on powers of entry and how they are created or modified, using 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.
The 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 can do once they have entered the premises. This might include conducting a search, seizing relevant items or collecting samples.
Currently, there are around 900 separate powers of entry under primary and secondary legislation.
Protection of Freedoms Act 2012 (PoFA)
It is essential that powers of entry, as with any enforcement power, achieve the right balance between the need to enforce the law, ensure public protection and to provide sufficient safeguards and rights to the individual. The Protection of Freedoms Act 2012 introduced provisions to reform the powers of entry landscape.
The provisions contained in PoFA provided 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 (2013 to2014)
PoFA placed a duty on Secretaries of State to review the powers of entry they are responsible for, which led to a full review in 2013 to 14.
The purpose of that review was to examine each individual power, and see if that power:
- was still required or should be repealed
- needed further safeguards
- could be consolidated with other similar powers, to reduce the overall number
The Home Office coordinated this government-wide review, including presenting 2 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 showed that a total of 1,237 powers of entry had been subject to review. Government agreed a significant reduction in the overall number of powers at that time, reducing the total to 912. Government also ensured that, where necessary, remaining powers had sufficient additional safeguards (added via legislation) to ensure appropriate use of the powers in future.
Statutory code of practice for powers of entry
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 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. This includes, where appropriate, the need to minimise disruption to business to ensure greater consistency in the exercise of powers of entry and greater clarity for those affected by the, while upholding effective enforcement.
Introduction of new or amended powers of entry
All new, amended or re-enacted powers of entry are subject to the usual process of collective policy agreement and, if agreed, would then undergo parliamentary scrutiny.
The Home Office retains oversight on behalf of government and with responsibility for the code of practice. It will record any new powers agreed.
Theis available for all those working in central government departments and agencies, who are thinking about creating, amending or re-enacting powers of entry. This guidance sets out advice to support them in considering the creation, amendment or re-enactment of a power of entry.
When seeking clearances, there is afor use by departments in setting out their information.
For any queries about the powers of entry gateway process, please email the powers of entry gateway team.