CLAUSE 70(1): POWER TO ADD ADDITIONAL POWERS TO THOSE SPECIFIED IN SCHEDULE 2 AND MAKE CONSEQUENTIAL AMENDMENTS

POWER CONFERRED ON:     THE SECRETARY OF STATE

POWER EXERCISABLE BY:    REGULATIONS MADE BY STATUTORY INSTRUMENT

PARLIAMENTARY PROCEDURE:  AFFIRMATIVE RESOLUTION

• The powers in Part 3 of the Bill can only be exercised in reliance on an existing power of seizure. The powers to which Part 3 applies are listed in Schedule 2. Clause 70(1) provides that the Secretary of State may by order provide for any power designated by an order to be added to those specified in Schedule 2 and to make such consequential modifications to Part 3 or to the powers so specified as may be required. Where the power to be specified is to apply in Scotland such regulations must be made in consultation with the Scottish Executive.
• The powers of seizure given by parliament to the police and other investigatory bodies are found in a number of different pieces of legislation. In preparing the Bill consideration has been given as to which powers of seizure the new clauses should apply to. The approach taken is that the prohibition imposed on the police and others on removing material to examine it elsewhere to determine what they are entitled to seize could apply to any existing power of seizure. Accordingly, it was decided to specifically list all such powers in Schedule 2 even though the occasions on which the new powers might be used in reliance on some such powers will be rare. However, it was decided that certain categories of seizure power should not be included in Schedule 2. First as a matter of policy, powers of stop and search such as those found in Part I of the Police and Criminal Evidence Act 1984 are not so included. The rationale for this is that the stop and search powers are conceptually different to other search powers as the stop and search process should be completed where the stop takes place. In addition, certain individual powers of seizure are not included because the new powers did not appear to be readily applicable to the property which might be seizable under such powers, for example the power of seizure found in the Deer Act 1991. Third, whilst steps have been taken to ensure that all the relevant powers of seizure are listed in Schedule 2, due to the great number of seizure powers found on the statute book it is possible that some may have been inadvertently excluded.
• In light of these factors it was considered that there should be a power to add additional powers of seizure to Schedule 2. This power is found in Clause 70(1)(a). Clause 70(1)(b) provides that if necessary consequential amendments can be made to Part III to affect the inclusion of a new power in Schedule 2. For example, the powers in clause 51 and 52 require an existing power of seizure. Some of the powers in Schedule 2 are powers to take possession which are only deemed to be powers of seizure by clause 67(5). Clause 70(1)(b) would enable a new power of possession to also be added to clause 67(5) when it was being added to Schedule 2. Similarly, some of the pieces of legislation which are found in Schedule 2 have been modified themselves by Schedule 3 to ensure that they work properly with the new powers. For example, paragraph 10 of Schedule 3 ensures that the forfeiture provisions in the Obscene Publications Act 1959 applies not only to material seized under the 1959 Act but also to material seized under clause 51 in reliance on the 1959 Act. Clause 68(1)(c) would enable similar modifications to be made to any new powers of seizure added to Schedule 2. It would also enable minor and consequential amendments of the type found in Part II of Schedule 3 to be made to any powers added to Schedule 2. Given that the power in clause 70 is quite wide the Department considers the affirmative resolution procedure is required.