Protection of Freedoms Bill (HC Bill 189)

Section 62

SCHEDULE 6 Stop and search powers: Northern Ireland

1 (1) Paragraph 4 of Schedule 3 to the Justice and Security (Northern Ireland) Act

2007 (stopping and searching persons in relation to unlawful munitions and

5wireless apparatus) is amended as follows.

(2) In sub-paragraph (1) (power to stop and search without reasonable

suspicion) for “An officer” substitute “A member of Her Majesty’s forces

who is on duty”.

(3) In sub-paragraph (2)—

(a) 10for “officer”, in the first place where it appears, substitute “member

of Her Majesty’s forces who is on duty”, and

(b) for “officer”, in the second place where it appears, substitute

“member concerned”.

(4) After sub-paragraph (3) insert—

“(4) 15A constable may search a person (whether or not that person is in

a public place) whom the constable reasonably suspects to have

munitions unlawfully with him or to have wireless apparatus with

him.”

(5) In the italic cross-heading before paragraph 4, at the end, insert “: general”.

2 20After paragraph 4 of that Schedule to that Act insert—

“Stopping and searching persons in specified locations

4A (1) A senior officer may give an authorisation under this paragraph in

relation to a specified area or place if the officer—

(a) reasonably suspects (whether in relation to a particular

25case, a description of case or generally) that the safety of

any person might be endangered by the use of munitions

or wireless apparatus, and

(b) considers that—

(i) the authorisation is necessary to prevent such

30danger,

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

necessary to prevent such danger, and

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

is necessary to prevent such danger.

(2) 35An authorisation under this paragraph authorises any constable to

stop a person in the specified area or place and to search that

person.

(3) A constable may exercise the power conferred by an authorisation

under this paragraph only for the purpose of ascertaining whether

40the person has munitions unlawfully with that person or wireless

apparatus with that person.

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

exercised whether or not the constable reasonably suspects that

there are such munitions or wireless apparatus.

(5) A constable exercising the power conferred by an authorisation

under this paragraph may not require a person to remove any

clothing in public except for headgear, footwear, an outer coat, a

jacket or gloves.

(6) 5Where a constable proposes to search a person by virtue of an

authorisation under this paragraph, the constable may detain the

person for such time as is reasonably required to permit the search

to be carried out at or near the place where the person is stopped.

(7) A senior officer who gives an authorisation under this paragraph

10orally must confirm it in writing as soon as reasonably practicable.

(8) In this paragraph and paragraphs 4B to 4I—

• “senior officer” means an officer of the Police Service of
  
  Northern Ireland of at least the rank of assistant chief
  
  constable,

• 15“specified” means specified in an authorisation.

4B (1) An authorisation under paragraph 4A has effect during the

period—

(a) beginning at the time when the authorisation is given, and

(b) ending with the specified date or at the specified time.

(2) 20This paragraph is subject as follows.

4C The specified date or time must not occur after the end of the

period of 14 days beginning with the day on which the

authorisation is given.

4D (1) The senior officer who gives an authorisation must inform the

25Secretary of State of it as soon as reasonably practicable.

(2) An authorisation ceases to have effect at the end of the period of

48 hours beginning with the time when it is given unless it is

confirmed by the Secretary of State before the end of that period.

(3) An authorisation ceasing to have effect by virtue of sub-paragraph

30(2) does not affect the lawfulness of anything done in reliance on

it before the end of the period concerned.

(4) When confirming an authorisation, the Secretary of State may—

(a) substitute an earlier date or time for the specified date or

time;

(b) 35substitute a more restricted area or place for the specified

area or place.

4E The Secretary of State may cancel an authorisation with effect from

a time identified by the Secretary of State.

4F (1) A senior officer may—

(a) 40cancel an authorisation with effect from a time identified

by the officer concerned;

(b) substitute an earlier date or time for the specified date or

time;

(c) substitute a more restricted area or place for the specified

45area or place.

(2) Any such cancellation or substitution in relation to an

authorisation confirmed by the Secretary of State under paragraph

4D does not require confirmation by the Secretary of State.

4G The existence, expiry or cancellation of an authorisation does not

5prevent the giving of a new authorisation.

4H (1) An authorisation under paragraph 4A given by a senior officer

may specify—

(a) the whole or part of Northern Ireland,

(b) the internal waters or any part of them, or

(c) 10any combination of anything falling within paragraph (a)

and anything falling within paragraph (b).

(2) In sub-paragraph (1)(b) “internal waters” means waters in the

United Kingdom which are adjacent to Northern Ireland.

(3) Where an authorisation specifies more than one area or place—

(a) 15the power of a senior officer under paragraph 4B(1)(b) to

specify a date or time includes a power to specify different

dates or times for different areas or places (and the other

references in this Schedule to the specified date or time are

to be read accordingly), and

(b) 20the power of the Secretary of State under paragraph

4D(4)(b), and of a senior officer under paragraph 4F(1)(c),

includes a power to remove areas or places from the

authorisation.

4I (1) Sub-paragraph (2) applies if any decision of—

(a) 25a senior officer to give, vary or cancel an authorisation

under paragraph 4A, or

(b) the Secretary of State to confirm, vary or cancel such an

authorisation,

is challenged on judicial review or in any other legal proceedings.

(2) 30The Secretary of State may issue a certificate that—

(a) the interests of national security are relevant to the

decision, and

(b) the decision was justified.

(3) The Secretary of State must notify the person making the challenge

35(“the claimant”) if the Secretary of State intends to rely on a

certificate under this paragraph.

(4) Where the claimant is notified of the Secretary of State’s intention

to rely on a certificate under this paragraph—

(a) the claimant may appeal against the certificate to the

40Tribunal established under section 91 of the Northern

Ireland Act 1998, and

(b) sections 90(3) and (4), 91(2) to (9) and 92 of that Act (effect

of appeal, procedure and further appeal) apply but subject

to sub-paragraph (5).

(5) 45In its application by virtue of sub-paragraph (4)(b), section 90(3) of

the Act of 1998 is to be read as if for the words from “subsection”

to “that purpose,” there were substituted “paragraph 4I(4)(a) of

Schedule 3 to the Justice and Security (Northern Ireland) Act 2007

the Tribunal determines that—

“(a) the interests of national security are relevant to the decision

to which the certificate relates, and

(b) 5the decision was justified,”.

(6) Rules made under section 91 or 92 of the Act of 1998 which are in

force immediately before this paragraph comes into force have

effect in relation to a certificate under this paragraph—

(a) with any necessary modifications, and

(b) 10subject to any later rules made by virtue of sub-paragraph

(4)(b).”

3 In paragraph 9(1) of that Schedule to that Act (offence of failing to stop when

required to do so) after “paragraph 4” insert “or by virtue of paragraph 4A”.

Section 77

SCHEDULE 7 15Safeguarding of vulnerable groups: Northern Ireland

Restriction of scope of regulated activities: children

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

(Northern Ireland) Order 2007 (S.I. 2007/1351 (N.I.11)S.I. 2007/1351 (N.I.11)) (regulated activity

relating to children and the period condition) are amended as follows.

(2) 20In paragraph 1(1)(b) (frequency and period condition for regulated activity),

at the 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) 25relevant personal care, and

(b) health 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 which is given to a child who is in need

30of it by reason of illness or disability and is given in

connection with eating or drinking (including the

administration of parenteral nutrition),

(b) physical assistance which is given to a child who is in need

of it by reason of age, illness or disability and is given in

35connection with—

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

menstruation),

(ii) washing or bathing, or

(iii) dressing,

(c) 40the prompting (together with supervision) of a child, who

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

to the performance of the activity of eating or drinking

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

performing such an activity without such prompting and

supervision,

(d) the prompting (together with supervision) of a child, who

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

5relation to the performance of any of the activities listed in

paragraph (b)(i) to (iii) where the child is unable to make a

decision in relation to performing such an activity without

such prompting and supervision,

(e) any form of training, instruction, advice or guidance

10which—

(i) relates to the performance of the activity of eating

or drinking,

(ii) is given to a child who is in need of it by reason of

illness or disability, and

(iii) 15does not fall within paragraph (c), or

(f) any form of training, instruction, advice or guidance

which—

(i) relates to the performance of any of the activities

listed in paragraph (b)(i) to (iii),

(ii) 20is given to a child who is in need of it by reason of

age, illness or disability, and

(iii) does not fall within paragraph (d).

(1C) In this Part of this Schedule —

• “health care” includes all forms of health care provided for
  
  25children, whether relating to physical or mental health and
  
  also includes palliative care for children and procedures
  
  that are similar to forms of medical or surgical care but are
  
  not provided for children in connection with a medical
  
  condition,

• 30“health care professional” means 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.

(1D) Any reference in this Part of this Schedule to health care provided

35by, or under the direction or supervision of, a health care

professional includes a reference to first aid provided to a child by

any person acting on behalf of an organisation established for the

purpose of providing first aid.”

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

40regulated activity) for “any form of work (whether or not for gain)”

substitute “any work falling within sub-paragraph (2A) or (2B)”.

(5) After 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) 45is undertaken in pursuance of a contract for the provision

of occasional or temporary services, and

(b) is 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) is carried out on a temporary or occasional basis,

5and

(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

10in regulated activity relating to children”.

(6) Also in paragraph 1—

(a) after sub-paragraph (6) insert—

“(6A) The exercise of a function of a controller appointed in

respect of a child under Article 101 of the Mental Health

15(Northern Ireland) Order 1986 (NI 4) is a regulated activity

relating to children.”,

(b) omit sub-paragraph (7) (exercise of functions of persons mentioned

in paragraph 4(1) to be regulated activity), and

(c) after sub-paragraph (12) insert—

“(13) 20Any activity which consists in or involves on a regular

basis the day to day management or supervision of a

person who would 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-

25paragraph (2B)(b) above is a regulated activity relating to

children.”

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

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

provided for a child),

(b) 30in sub-paragraph (2)—

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

(ii) omit paragraph (d), and

(c) after sub-paragraph (3) insert—

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

35teaching, 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) Sub-paragraph (1)(b)—

(a) 40does 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 or of health care provided by (or under the

45direction 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 regulated activity

relating to children.

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

(8) Omit paragraph 4 (list of persons referred to in paragraph 1(7)).

(9) 5In paragraph 10(2) (the period condition) for “, (c) or (d)” substitute “or (c)”.

Restriction of definition of vulnerable adults

2 (1) In Article 2 of the Safeguarding Vulnerable Groups (Northern Ireland)

Order 2007 (interpretation of Order), in the first paragraph (2)—

(a) after the definition of “the 2003 Order” insert—

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

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

construed in accordance with Article 3” substitute “means any adult

to whom an activity which is a regulated activity relating to

15vulnerable adults by virtue of any paragraph of paragraph 7(1) of

Schedule 2 is provided”.

(2) Omit Article 3 of the Order of 2007 (definition of vulnerable adults).

Restriction of scope of regulated activities: vulnerable adults

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

20(Northern Ireland) Order 2007 (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)

substitute—

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

25adults—

(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

30work 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) any relevant assistance in the conduct of an adult’s own

35affairs,

(f) 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,

(g) such activities—

(i) 40involving, 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) Health 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

5medical condition.

(3) A 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) 10Any reference in this Part of this Schedule to health care provided

by, or under the direction or supervision of, a health care

professional includes a reference to first aid provided to an adult

by any person acting on behalf of an organisation established for

the purpose of providing first aid.

(3B) 15Relevant personal care means—

(a) physical 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) 20toileting (including in relation to the process of

menstruation),

(iii) washing or bathing,

(iv) dressing,

(v) oral care, or

(vi) 25the care of skin, hair or nails (other than nail care

provided by a chiropodist or podiatrist),

(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

30paragraph (a) where the person is unable to make a

decision in relation to performing such an activity without

such prompting and supervision, or

(c) any form of training, instruction, advice or guidance

which—

(i) 35relates to the performance of any of the activities

listed in paragraph (a),

(ii) is given to a person who is in need of it by reason of

age, illness or disability, and

(iii) does not fall within paragraph (b).

(3C) 40Relevant social work has the meaning given by section 2(4) of the

Health and Personal Social Services Act (Northern Ireland) 2001

and social care worker means a person who is a social care worker

by virtue of section 2(2)(a) of that Act.

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

45assistance in relation to the running of the household of the person

concerned where the assistance is the carrying out of one or more

of the following activities on behalf of that person—

(a) managing the person’s cash,

(b) paying the person’s bills,

(c) shopping.

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

anything done on behalf of the person by virtue of—

(a) an enduring power of attorney (within the meaning of the

5Enduring Powers of Attorney (Northern Ireland) Order

1987 (NI 16)) in respect of the person which is—

(i) registered in accordance with that Order, or

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

(b) an order made under Article 99 or 101 of the Mental Health

10(Northern Ireland) Order 1986 (NI 4) by the High Court in

relation to the person or the person’s property or affairs, or

(c) the appointment of a representative to receive payments

on behalf of the person in pursuance of regulations made

under the Social Security Administration (Northern

15Ireland) Act 1992.”

(3) Omit paragraph 7(4) (certain activities in residential care or nursing homes

to be regulated activity).

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

activities to be regulated activity) omit “, (4)”.

(5) 20Omit paragraph 7(9) (functions of certain persons to be regulated activity).

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

are to be regulated activity).

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

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

(b) 25in paragraph (b), omit “or vulnerable adults (as the case may be)”.

Alteration of test for barring decisions

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

Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (automatic

inclusion of person to whom paragraph applies in children’s barred list)

30substitute—

“(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

regulated activity relating to children,

35the 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) has reason to believe that the person is or has been, or

might in future be, engaged in regulated activity relating

40to 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 Order

(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

5regulated activity relating to children,

the Secretary of State must refer the matter to ISA.

(3) Sub-paragraph (4) applies if (whether or not on a reference under

sub-paragraph (2)) it appears to ISA that—

(a) this paragraph applies to a person, and

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

regulated activity relating to children.

(4) ISA must give the person the opportunity to make representations

as to why the person should not be included in the children’s

barred list.

(5) 15Sub-paragraph (6) applies if—

(a) the person does not make representations before the end of

any time prescribed for the purpose, or

(b) the duty in sub-paragraph (4) does not apply by virtue of

paragraph 16(2).

(6) 20If ISA—

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

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

might in future be, engaged in regulated activity relating

to children,

25it must include the person in the list.

(7) Sub-paragraph (8) applies if the person makes representations

before the end of any time prescribed for the purpose.

(8) If ISA—

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

(b) 30has reason to believe that the person is or has been, or

might in future be, engaged in regulated activity relating

to children, and

(c) is satisfied that it is appropriate to include the person in the

children’s barred list,

35it must include the person in the list.”

(3) In paragraph 3 of that Schedule to that Order (inclusion in children’s barred

list on behaviour grounds)—

(a) in sub-paragraph (1)(a) for the words from “has” to “conduct,”

substitute “—