Reform of law on powers of entry
Submitting InstitutionUniversity of Lincoln
Unit of AssessmentLaw
Summary Impact TypeLegal
Research Subject Area(s)
Law and Legal Studies: Law
Summary of the impact
The impact relates to research by Professor Richard Stone into the powers
of entry of officials other than the police. The immediate impact of the
research was in it contributing directly to law reform in this area, as
contained in the Protection of Freedoms Act 2012: see www.legislation.gov.uk/ukpga/2012/9/contents/enacted.
Following the legislation, further impact will be felt at a national
level, affecting the operation of the powers of officials working for a
wide range of government departments, local authorities and public
utilities. The legislation will make it harder for new powers to be
created, and will improve the legal rights of those whose premises are
subject to entry for the purposes of inspection or search.
This case study relates to Professor Stone's continuing research into
entry powers, and focuses on the work carried out following his
appointment as Head of the then Law Department at the University of
Lincoln in April 2003. Research carried out by Professor Stone from 2003
culminated in the publication of an updated, and significantly revised,
edition of Professor Stone's book, The Law of Entry, Search and Seizure
(4th edition, Oxford University Press, 2005). Research in this area has
continued, leading to a 5th edition of the text, published in the spring
of 2013. Professor Stone is the only UK academic currently focussing on
this specific area, and his work is regularly cited in both academic and
practitioners' texts relating to discussion of powers of entry.
The particular aspect of the research which is of greatest importance in
relation to this case study arose out of a lack of easily available
information about, and control over, the powers of entry to private
premises available to officials other than the police. Most central and
local government departments have such powers, as do officials from
companies running national utilities (electricity, gas, water). There was,
however, a lack of awareness of the existence of such powers amongst the
public, and no easy way of discovering their existence or scope.
In addition, in contrast to powers exercised by the police, there was no
code of practice governing their use. There was also a shortage of
critical analysis of such powers. The research therefore aimed to identify
and analyse these powers, and thus to provide a comprehensive survey of
them. In particular, work for the 2005 edition sought to place the area
and issues in their human rights context, following the coming into force
of the Human Rights Act 1998 in October 2000. This was important, in that
all public officials would now have to exercise the powers in a way that
was compatible with the rights contained in the European Convention on
Human Rights, and listed in the schedule to the Human Rights Act.
The research, which took place between 2003 and 2005, therefore involved
a systematic examination of all statutes and statutory instruments passed
since 1997, and identification of all powers giving a right of entry to
private premises (which are not always clearly signposted in the
legislation). All previously existing powers also needed to be checked for
repeal or amendment, using a combination of legal databases (e.g. Westlaw,
Lexis) and the provisions of subsequent legislation. Once identified, the
powers were classified and analysed according to their subject areas (e.g.
education, environmental health), or the officials who were using them
(e.g. Revenue and Customs, trading standards officers).
The analysis needed to take particular account of the impact of the Human
Rights Act, since all such powers will potentially involve a breach of
Article 8 of the European Convention on Human Rights, and will need to be
both necessary and proportionate to the objective which they are intended
to achieve, both in content and use. It also needed to consider issues of
consistency between powers (e.g. as regards the need for a warrant, or the
availability of force), and variations in the levels of intrusion allowed
(e.g. inspection or search). The research in this area is, inevitably, a
continuing process, since governments are continuously repealing or
amending old powers, or enacting new ones, in both primary and secondary
The research revealed, and continues to reveal, the lack of any coherent
policy in relation to these powers. They are enacted in different ways, to
meet the specific needs of a particular department or groups of officials,
without any reference to how such powers are provided in similar
situations. This results in differences with no clear justification as to,
for example, whether obstruction of a person exercising the power is a
specific offence, or as to who has the power to authorise the use of the
power. This is true both for those powers which have been on the statute
book for many years, and those that are newly enacted.
The result of this lack of clarity and transparency is that individuals
who are subject to these powers, and whose premises may be entered, will
have great difficulty in discovering whether the official purporting to
exercise the power is acting lawfully or not. Indeed, the officials
themselves may not always be aware of the precise extent of or limitations
on their powers, thus increasing the risk that they will be used
The research highlighted the need for the development of general
principles applying to all entry and search powers used by those other
than the police. This reform has now been achieved by means of the
Protection of Freedoms Act 2012.
References to the research
Richard Stone, The Law of Entry, Search and Seizure, 4th Ed,
Oxford University Press, 2005; 5th Ed, Oxford University Press, 2013, 486
Both 4th and 5th editions of the book have included
analysis of all statutes passed in the period since the previous edition,
and a critical review of the status of all powers previously discussed.
This process, and the inclusion of new subject areas, added significant
new material to each edition — for example, around 35,000 words in the
case of the 5th edition.
Details of the impact
The research that led to this impact has been a continuing project over a
number of years, and arose out of an absence of critical analysis of the
lack of control of powers of entry to private premises available to
officials other than the police. As noted above, the published work is the
principal reference point for both academics and practitioners in relation
to this issue.
As revealed by the research, the number of non-police entry powers is
extensive. The powers are used by:
- Central government departments — most departments employ officials
with entry powers in relating to certain of their functions. Examples
- Department for Environment, Food and Rural Affairs -animal health
and welfare, control of pests and diseases, fisheries, food standards,
archaeological sites, sites of special scientific interest
- Department of Health — sale of medicines, storage of embryos, care
- Home Office — immigration, data protection, freedom of information
- Department for Business, Innovation and Skills — financial
- Department for Work and Pensions — health and safety, social
- Local government officials — examples include:
- Environmental health — including public health, boarding kennels,
building regulations, pollution, safety of sports grounds, dangerous
- Food safety — slaughter of animals, fertilizers and feeding stuffs.
- Health and safety at work
- Highways — survey, maintenance
- Housing — vermin, overcrowding
- Planning — survey and evaluation, development, tree preservation,
- Public entertainments — cinemas, theatres, music venues, public
- Rates and council tax
- Social services
- Trading Standards
- Public utilities — all companies supplying services involving the
provision of gas, electricity, water or telecommunications have
statutory powers of entry to private premises in certain circumstances.
In 2007 Professor Stone was contacted by a member of the House of Lords,
Lord Selsdon, who was interested in producing a private member's Bill to
regulate non-police entry powers of the above types, having come across
such powers in his working life in banking and other industries, and being
concerned about the potential for their abuse. He had discovered the 2005
edition of Professor Stone's book as being the only source that provided
information about these powers. He had also found that many government
departments where unable to list the powers which they had, until directed
towards the relevant section of Professor Stone's book.
Professor Stone was then involved in the drafting of the private member's
Bill, and its associated schedule of powers. Professor Stone also drafted
the Code of Practice which was attached as a schedule to the Bill. The aim
was to produce some standardisation into the ways in which such powers
were used, and to ensure that those subject to them were given proper
information about them — wherever possible before their exercise. These
changes would have the effect of addressing some of the problems
identified in the research as regards inconsistency and lack of clarity in
the scope of such powers. The Bill was introduced in the House of Lords in
the 2007-08 session, and completed all stages there in July 2008, but at
that stage it lacked government support, and was not debated in the
The Home Office then (i.e. summer 2008) expressed interest in this
possible reform, and Professor Stone was involved with discussions with
Lord Selsdon and Home Office officials. Although still lacking government
support, Lord Selsdon reintroduced his Bill in the 2009-10 session, when
it again completed all stages in the House of Lords (concluding with its
Third Reading in April 2010).
Following the general election, later in 2010 the Coalition Government
indicated to Lord Selsdon that it intended to take over this matter, and a
reform along similar lines to the proposals contained in Lord Selsdon's
Bill and the Code of Practice was included in the Protection of Freedoms
Bill 2011. This became the Protection of Freedoms Act 2012.
The result of the new legislation is a much clearer statutory framework
of law governing the powers of entry of officials other than the police.
The Act provides for a comprehensive two-year review, carried out within
each government department, of the need for existing powers (which is
currently ongoing), and a `gateway' procedure, which is intended to make
it harder to create new powers without establishing the necessity for
them. Where such powers do continue to exist, they will be exercisable
subject to a Code of Practice, which is currently in a draft form.
Professor Stone has provided his expert comments on this draft to the Home
Office, and expects to continue to be engaged with the implementation of
the law. This work is ongoing.
As will be seen from the list of agencies exercising powers of this type
given above, the impact of this reform and the underpinning research will
be widespread, and will affect virtually all government departments, many
aspects of local government work, and all companies involved in the
provision of public utilities.
All of the many thousands of officials who use such powers will become
subject to statutory provisions and a code of practice, which will
regulate their use. This should result in improvement in their operation,
not least from the point of view of the citizen who is subject to them. As
noted in the 4th edition of The Law of Entry, Search and Seizure
(p1) `The exercise of these powers raises basic issues about the scope of
individual freedom [i.e. quiet possession of one's own property], and the
extent to which that freedom can legitimately curtailed by the exercise of
powers by the police or other central or local government officers'.
The reform that is the subject of this impact case study will therefore
have the important effect of redressing the balance between the rights of
the citizen and the powers of officialdom.
Sources to corroborate the impact
- House of Lords, Powers of Entry Bill, 2nd Reading Debate, 15 January
2010, col 717,
- House of Lords, Protections of Freedoms Bill: