Protection of Freedoms Bill (HC Bill 146)

(5) In this section “driver”, in relation to an aircraft, hovercraft or vessel,

means the captain, pilot or other person with control of the aircraft,

hovercraft or vessel or any member of its crew and, in relation to a train,

includes any member of its crew.”

60 5Replacement powers to stop and search in specified locations

(1) After section 43A of the Terrorism Act 2000 (for which see section 59(3))

insert—

“43B Searches in specified areas or places

(1) A senior police officer may give an authorisation under subsection (2)

10or (3) in relation to a specified area or place if the officer—

(a) reasonably suspects that an act of terrorism will take place; and

(b) considers that—

(i) the authorisation is necessary to prevent such an act;

(ii) the specified area or place is no greater than is necessary

15to prevent such an act; and

(iii) the duration of the authorisation is no longer than is

necessary to prevent such an act.

(2) An authorisation under this subsection authorises any constable in

uniform to stop a vehicle in the specified area or place and to search—

(a) 20the vehicle;

(b) the driver of the vehicle;

(c) a passenger in the vehicle;

(d) anything in or on the vehicle or carried by the driver or a

passenger.

(3) 25An authorisation under this subsection authorises any constable in

uniform to stop a pedestrian in the specified area or place and to

search—

(a) the pedestrian;

(b) anything carried by the pedestrian.

(4) 30A constable in uniform may exercise the power conferred by an

authorisation under subsection (2) or (3) only for the purpose of

discovering whether there is anything which may constitute evidence

that the vehicle concerned is being used for the purposes of terrorism

or (as the case may be) that the person concerned is a person falling

35within section 40(1)(b).

(5) But the power conferred by such an authorisation may be exercised

whether or not the constable reasonably suspects that there is such

evidence.

(6) A constable may seize and retain anything which the constable—

(a) 40discovers in the course of a search under such an authorisation;

and

(b) reasonably suspects may constitute evidence that the vehicle

concerned is being used for the purposes of terrorism or (as the

case may be) that the person concerned is a person falling

45within section 40(1)(b).

(7) Schedule 6B (which makes supplementary provision about

authorisations under this section) has effect.

(8) In this section—

• “driver” has the meaning given by section 43A(5);

• 5“senior police officer” has the same meaning as in Schedule 6B (see
  
  paragraph 14(1) and (2) of that Schedule);

• “specified” means specified in an authorisation.”

(2) Schedule 5 (which inserts a new Schedule making supplementary provision

about powers to stop and search in specified locations into the Terrorism Act

102000) has effect.

61 Code of practice

After section 43B of the Terrorism Act 2000 (for which see section 60) insert—

“43C Code of practice relating to sections 43 to 43B

(1) The Secretary of State must prepare a code of practice containing

15guidance about—

(a) the exercise of the powers conferred by sections 43 and 43A,

(b) the exercise of the powers to give an authorisation under section

43B(2) or (3),

(c) the exercise of the powers conferred by such an authorisation

20and section 43B(6), and

(d) such other matters in connection with the exercise of any of the

powers mentioned in paragraphs (a) to (c) as the Secretary of

State considers appropriate.

(2) Such a code may make different provision for different purposes.

(3) 25In the course of preparing such a code, the Secretary of State must

consult the Lord Advocate and such other persons as the Secretary of

State considers appropriate.

43D Issuing of code

(1) The Secretary of State must lay before Parliament—

(a) 30a code of practice prepared under section 43C, and

(b) a draft of an order providing for the code to come into force.

(2) The Secretary of State must make the order and issue the code if the

draft of the order is approved by a resolution of each House of

Parliament.

(3) 35The Secretary of State must not make the order or issue the code unless

the draft of the order is so approved.

(4) The Secretary of State must prepare another code of practice under

section 43C if—

(a) the draft of the order is not so approved, and

(b) 40the Secretary of State considers that there is no realistic prospect

that it will be so approved.

(5) A code comes into force in accordance with an order under this section.

43E Alteration or replacement of code

(1) The Secretary of State—

(a) must keep the search powers code under review, and

(b) may prepare an alteration to the code or a replacement code.

(2) 5Before preparing an alteration or a replacement code, the Secretary of

State must consult the Lord Advocate and such other persons as the

Secretary of State considers appropriate.

(3) Section 43D (other than subsection (4)) applies to an alteration or a

replacement code prepared under this section as it applies to a code

10prepared under section 43C.

(4) In this section “the search powers code” means the code of practice

issued under section 43D(2) (as altered or replaced from time to time).

43F Publication of code

(1) The Secretary of State must publish the code (and any replacement

15code) issued under section 43D(2).

(2) The Secretary of State must publish—

(a) any alteration issued under section 43D(2), or

(b) the code or replacement code as altered by it.

43G Effect of code

(1) 20A constable must have regard to the search powers code when

exercising any powers to which the code relates.

(2) A failure on the part of a constable to act in accordance with any

provision of the search powers code does not of itself make that person

liable to criminal or civil proceedings.

(3) 25The search powers code is admissible in evidence in any such

proceedings.

(4) A court or tribunal may, in particular, take into account a failure by a

constable to have regard to the search powers code in determining a

question in any such proceedings.

(5) 30The references in this section to a constable include, in relation to any

functions exercisable by a person by virtue of paragraph 15 of Schedule

4 to the Police Reform Act 2002 or paragraph 16 of Schedule 2A to the

Police (Northern Ireland) Act 2003 (search powers in specified areas or

places for community support officers), references to that person.

(6) 35In this section “the search powers code” means the code of practice

issued under section 43D(2) (as altered or replaced from time to time).”

Stop and search powers: Northern Ireland

62 Stop and search powers in relation to Northern Ireland

Schedule 6 (which makes amendments relating to stop and search powers in

40Northern Ireland) has effect.

Part 5 Safeguarding vulnerable groups, criminal records etc.

CHAPTER 1 Safeguarding of vulnerable groups

Restrictions on scope of regulation

63 5Restriction of scope of regulated activities: children

(1) Parts 1 and 3 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006

(regulated activity relating to children and the period condition) are amended

as follows.

(2) In paragraph 1(1)(b) (frequency and period condition for regulated activity), at

10the beginning, insert “except in the case of activities falling within sub-

paragraph (1A),”.

(3) After paragraph 1(1) insert—

“(1A) The following activities fall within this sub-paragraph—

(a) relevant personal care, and

(b) 15health care provided by, or under the direction or

supervision of, a health care professional.

(1B) In this Part of this Schedule “relevant personal care” means—

(a) physical assistance given to a child in connection with—

(i) eating or drinking (other than the administration of

20parenteral nutrition) where the assistance is given for

reasons other than age,

(ii) the administration of parenteral nutrition,

(iii) toileting (including in relation to the process of

menstruation),

(iv) 25washing or bathing, or

(v) dressing,

(b) the prompting, together with supervision, of a child (for

reasons other than age) in relation to eating or drinking

(other than the administration of parenteral nutrition) where

30the child is unable to make a decision in relation to

performing such an activity without such prompting and

supervision, or

(c) the prompting, together with supervision, of a child in

relation to the performance of any of the activities listed in

35paragraph (a)(ii) to (v) where the child is unable to make a

decision in relation to performing such an activity without

such prompting and supervision.

(1C) In this Part of this Schedule —

• “health care” includes all forms of health care provided for
  
  40children, whether relating to physical or mental health and
  
  also includes palliative care for children and procedures that

  Protection of Freedoms BillPage 44

  are similar to forms of medical or surgical care but are not
  
  provided for children in connection with a medical condition,

• “health care professional” means a person who is a member of
  
  a profession regulated by a body mentioned in section 25(3)
  
  5of the National Health Service Reform and Health Care
  
  Professions Act 2002.”

(4) In paragraph 1(2)(c) (work activities at certain establishments to be regulated

activity) for “any form of work (whether or not for gain)” substitute “any work

falling within sub-paragraph (2A) or (2B)”.

(5) 10After paragraph 1(2) insert—

“(2A) Work falls within this sub-paragraph if it is any form of work for

gain, other than any such work which—

(a) is undertaken in pursuance of a contract for the provision of

occasional or temporary services, and

(b) 15is not an activity mentioned in paragraph 2(1) (disregarding

paragraph 2(3A) and (3B)(b)).

(2B) Work falls within this sub-paragraph if it is any form of work which

is not for gain, other than—

(a) any such work which—

(i) 20is carried out on a temporary or occasional basis, and

(ii) is not an activity mentioned in paragraph 2(1)

(disregarding paragraph 2(3A) and (3B)(b)), or

(b) any such work which is, on a regular basis, subject to the day

to day supervision of another person who is engaging in

25regulated activity relating to children”.

(6) Also in paragraph 1—

(a) in sub-paragraph (7) (meaning of “acting as a child minder”) for

“section 79A of that Act” substitute “section 19 of the Children and

Families (Wales) Measure 2010”,

(b) 30omit sub-paragraph (8) (exercise of functions of certain persons to be

regulated activity),

(c) in sub-paragraph (9) (exercise of functions of persons mentioned in

paragraph 4(1) to be regulated activity) for “a person mentioned in

paragraph 4(1)” substitute “the Children’s Commissioner for Wales or

35the deputy Children’s Commissioner for Wales”,

(d) in sub-paragraph (9B) (exercise of certain inspection etc. functions to be

regulated activity)—

(i) omit paragraph (a),

(ii) in paragraph (b) for “section 79U(3) of the Children Act 1989”

40substitute “section 41 or 42 of the Children and Families (Wales)

Measure 2010”,

(iii) in paragraph (c) after “taken” insert “in relation to Wales” and

for “that Act” substitute “the Children Act 1989”,

(iv) in paragraph (d) after “inspection”, where it first appears, insert

45“in Wales”,

(v) in paragraph (e) after “taken” insert “in relation to Wales”,

(vi) in paragraph (f) omit “18B or”,

(vii) in paragraph (h), after “inspection”, where it first appears, insert

“in Wales”,

(viii) in paragraph (m) omit “48 or”,

(ix) in paragraph (n) after “inspection” insert “in Wales”, and

(x) omit paragraphs (p) to (t),

(e) in sub-paragraph (10) (inspectors) omit paragraphs (a), (ba), (d) and (e),

(f) 5omit sub-paragraph (12A) (accessing certain databases to be regulated

activity),

(g) omit sub-paragraph (13A) (exercise of certain functions of Care Quality

Commission to be regulated activity),

(h) in sub-paragraph (14) (day to day management or supervision of a

10person carrying out regulated activity to be regulated activity) for “(8),

(9C), (11) or (13A)” substitute “(9C) or (11)”, and

(i) after sub-paragraph (14) insert—

“(15) Any activity which consists in or involves on a regular basis

the day to day management or supervision of a person who

15would be carrying out an activity mentioned in sub-

paragraph (1) or (2) but for the exclusion for supervised

activity in paragraph 2(3A) or (3B)(b) or sub-paragraph

(2B)(b) is a regulated activity relating to children.”

(7) In paragraph 2 (activities referred to in paragraph 1(1))—

(a) 20in sub-paragraph (1) omit paragraph (d) (treatment and therapy

provided for a child),

(b) in sub-paragraph (2)—

(i) for “, (c) and (d)” substitute “and (c)”, and

(ii) omit paragraph (d), and

(c) 25after sub-paragraph (3) insert—

“(3A) Sub-paragraph (1)(a) does not include any form of teaching,

training or instruction of children which is, on a regular basis,

subject to the day to day supervision of another person who

is engaging in regulated activity relating to children.

(3B) 30Sub-paragraph (1)(b)—

(a) does not include any health care provided otherwise

than by (or under the direction or supervision of) a

health care professional, and

(b) does not, except in the case of relevant personal care

35or of health care provided by (or under the direction

or supervision of) a health care professional, include

any form of care for or supervision of children which

is, on a regular basis, subject to the day to day

supervision of another person who is engaging in

40regulated activity relating to children.

(3C) Sub-paragraph (1)(c) does not include any legal advice.”

(8) In paragraph 3(1) (list of establishments referred to in paragraph 1(2) and (9C))

omit paragraph (c).

(9) Omit paragraph 4 (list of persons referred to in paragraph 1(9)).

(10) 45Before paragraph 6 (exceptions), and after the italic cross-heading before it,

insert—

“5A (1) Subject as follows, an activity is not a regulated activity relating to

children if it is an activity which—

(a) relates to a child who has attained the age of 16 but not 18,

5and

(b) is not—

(i) relevant personal care, or

(ii) health care provided by, or under the direction or

supervision of, a health care professional.

(2) 10Sub-paragraph (1) does not apply in relation to an activity which—

(a) relates to a child who has attained the age of 16 but not 18,

(b) would otherwise be a regulated activity relating to children

by virtue of paragraph 1(1) or (2), and

(c) is carried out in an establishment mentioned in paragraph

153(1)(e) or (f).

(3) Sub-paragraph (1) does not apply in relation to an activity which—

(a) relates to a child who has attained the age of 16 but not 18,

and

(b) would otherwise be a regulated activity relating to children

20by virtue of paragraph 1(5).

(4) Sub-paragraph (1) does not apply in relation to any activity of a

prescribed description.”

(11) In paragraph 10(2) (the period condition) for “, (c) or (d)” substitute “or (c)”.

64 Restriction of definition of vulnerable adults

(1) 25Omit section 59 of the Safeguarding Vulnerable Groups Act 2006 (definition of

vulnerable adults).

(2) In section 60(1) of that Act (interpretation of Act)—

(a) after “In this Act—” insert—

• ““adult” means a person who has attained the age of 18;”,
  
  30and”

(b) in the definition of “vulnerable adult”, for the words “must be

construed in accordance with section 59” substitute “means any adult

to whom an activity falling within any paragraph of paragraph 7(1) of

Schedule 4 is provided”.

65 35Restriction of scope of regulated activities: vulnerable adults

(1) Parts 2 and 3 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006

(regulated activity relating to vulnerable adults and the period condition) are

amended as follows.

(2) For paragraph 7(1) to (3) (main activities which are regulated activity)

40substitute—

“(1) Each of the following is a regulated activity relating to vulnerable

adults—

(a) the provision to an adult of health care by, or under the

direction or supervision of, a health care professional,

(b) the provision to an adult of relevant personal care,

(c) the provision by a social care worker of relevant social work

5or community care services to an adult who is a client or

potential client,

(d) the provision of assistance in relation to general household

matters to an adult who is in need of it by reason of age,

illness or disability,

(e) 10the provision to an adult who is in need of them by reason of

age, illness or disability of any services for the purpose of

enabling the adult to live, or continue to live, in

accommodation independently,

(f) any relevant assistance in the conduct of an adult’s own

15affairs,

(g) any form of training, teaching or instruction which relates to

an adult’s health, care or financial affairs and is provided to

an adult who needs it by reason of age, illness or disability,

(h) any form of assistance, advice or guidance which relates to an

20adult’s health or care and is provided to an adult who needs

it by reason of age, illness or disability,

(i) the conveying by persons of a prescribed description in such

circumstances as may be prescribed of adults who need to be

conveyed by reason of age, illness or disability,

(j) 25such activities—

(i) involving, or connected with, the provision of health

care or relevant personal care to adults, and

(ii) not falling within any of the above paragraphs,

as are of a prescribed description.

(2) 30Health care includes all forms of health care provided for

individuals, whether relating to physical or mental health and also

includes palliative care and procedures that are similar to forms of

medical or surgical care but are not provided in connection with a

medical condition.

(3) 35A health care professional is a person who is a member of a

profession regulated by a body mentioned in section 25(3) of the

National Health Service Reform and Health Care Professions Act

2002.

(3A) Relevant personal care means—

(a) 40physical assistance, given to a person who is in need of it by

reason of age, illness or disability, in connection with—

(i) eating or drinking (including the administration of

parenteral nutrition),

(ii) toileting (including in relation to the process of

45menstruation),

(iii) washing or bathing,

(iv) dressing,

(v) oral care, or

(vi) the care of skin, hair or nails (other than nail care

50provided by a chiropodist or podiatrist), or

(b) the prompting, together with supervision, of a person who is

in need of it by reason of age, illness or disability in relation

to the performance of any of the activities listed in paragraph

(a) where the person is unable to make a decision in relation

5to performing such an activity without such prompting and

supervision.

(3B) Relevant social work has the meaning given by section 55(4) of the

Care Standards Act 2000 and social care worker means a person who

is a social care worker by virtue of section 55(2)(a) of that Act.

(3C) 10Community care services has the meaning given by section 46(3) of

the National Health Service and Community Care Act 1990.

(3D) Assistance in relation to general household matters is day to day

assistance in relation to the management of cash, the paying of bills,

shopping and other financial matters on behalf of the person

15concerned.

(3E) Relevant assistance in the conduct of a person’s own affairs is

anything done on behalf of the person by virtue of—

(a) a lasting power of attorney created in respect of the person in

accordance with section 9 of the Mental Capacity Act 2005,

(b) 20an enduring power of attorney (within the meaning of

Schedule 4 to that Act) in respect of the person which is—

(i) registered in accordance with that Schedule, or

(ii) the subject of an application to be so registered,

(c) an order made under section 16 of that Act by the Court of

25Protection in relation to the making of decisions on the

person’s behalf,

(d) the appointment of an independent mental health advocate

or (as the case may be) an independent mental capacity

advocate in respect of the person in pursuance of

30arrangements under section 130A of the Mental Health Act

1983 or section 35 of the Mental Capacity Act 2005, or

(e) the provision of independent advocacy services (within the

meaning of section 248 of the National Health Service Act

2006 or section 187 of the National Health Service (Wales) Act

352006) in respect of the person.”

(3) Omit paragraph 7(4) (certain activities in care homes to be regulated activity).

(4) In paragraph 7(5) (day to day management or supervision of certain activities

to be regulated activity) omit “or (4)”.

(5) In paragraph 7(7)(f) (inspection functions) omit “English local authority social

40services or”.

(6) Omit paragraph 7(8A) (certain functions of Care Quality Commission to be

regulated activity).

(7) In paragraph 7(9) (functions of certain persons to be regulated activity) for “a

person mentioned in paragraph 8(1)” substitute “the Commissioner for older

45people in Wales or the deputy Commissioner for older people in Wales”.

(8) Omit paragraph 8 (the persons referred to in paragraph 7(9) whose functions

are to be regulated activity).

(9) In paragraph 10(2) (the period condition)—

(a) omit “or 7(1)(a), (b), (c), (d) or (g)”, and

(b) in paragraph (b), omit “or vulnerable adults (as the case may be)”.

66 Alteration of test for barring decisions

(1) 5For sub-paragraphs (2) and (3) of paragraph 1 of Schedule 3 to the

Safeguarding Vulnerable Groups Act 2006 (automatic inclusion of person to

whom paragraph applies in children’s barred list) substitute—

“(2) If the Secretary of State has reason to believe that—

(a) this paragraph might apply to a person, and

(b) 10the person is or has been, or might in future be, engaged in

regulated activity relating to children,

the Secretary of State must refer the matter to ISA.

(3) If (whether or not on a reference under sub-paragraph (2)) ISA—

(a) is satisfied that this paragraph applies to a person, and

(b) 15has reason to believe that the person is or has been, or might

in future be, engaged in regulated activity relating to

children,

it must include the person in the children’s barred list.”

(2) For sub-paragraphs (2) to (4) of paragraph 2 of that Schedule to that Act

20(inclusion of person to whom paragraph applies in children’s barred list with

right to make representation afterwards) substitute—

“(2) If the Secretary of State has reason to believe that—

(a) this paragraph might apply to a person, and

(b) the person is or has been, or might in future be, engaged in

25regulated activity relating to children,