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Protection of Freedoms Bill (HC Bill 189)

Protection of Freedoms BillPage 40

(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) the vehicle;

(b) the driver of the vehicle;

(c) 5a passenger in the vehicle;

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

passenger.

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

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

10search—

(a) the pedestrian;

(b) anything carried by the pedestrian.

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

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

15discovering 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

within section 40(1)(b).

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

20whether or not the constable reasonably suspects that there is such

evidence.

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

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

and

(b) 25reasonably 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

within section 40(1)(b).

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

30authorisations under this section) has effect.

(8) In this section—

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

  • “senior police officer” has the same meaning as in Schedule 6B (see

    paragraph 14(1) and (2) of that Schedule);

  • 35“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

2000) has effect.

61 Code of practice

40After section 47A of the Terrorism Act 2000 (for which see section 60) insert—

Code of practice relating to sections 43, 43A and 47A
47AA Code of practice relating to sections 43, 43A and 47A

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

guidance about—

Protection of Freedoms BillPage 41

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

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

47A(2) or (3),

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

5and section 47A(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) 10In 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.

47AB Issuing of code

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

(a) 15a code of practice prepared under section 47AA, 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) 20The 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 47AA if—

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

(b) 25the 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.

47AC Alteration or replacement of code

(1) The Secretary of State—

(a) 30must keep the search powers code under review, and

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

(2) Before 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) 35Section 47AB (other than subsection (4)) applies to an alteration or a

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

prepared under section 47AA.

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

issued under section 47AB(2) (as altered or replaced from time to time).

47AD 40Publication of code

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

code) issued under section 47AB(2).

(2) The Secretary of State must publish—

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(a) any alteration issued under section 47AB(2), or

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

47AE Effect of code

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

5exercising 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) The search powers code is admissible in evidence in any such

10proceedings.

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

15functions 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) In this section “the search powers code” means the code of practice

20issued under section 47AB(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

25Northern Ireland) has effect.

Part 5 Safeguarding vulnerable groups, criminal records etc.

CHAPTER 1 Safeguarding of vulnerable groups

Restrictions on scope of regulation: England and Wales

63 30Restriction 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

35the beginning, insert “except in the case of activities falling within sub-

paragraph (1A),”.

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(3) After paragraph 1(1) insert—

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

(a) relevant personal care, and

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

5supervision 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 of

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

with eating or drinking (including the administration of

10parenteral 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

connection with—

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

15menstruation),

(ii) washing or bathing, or

(iii) dressing,

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

in need of it by reason of illness or disability, in relation to the

20performance 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 relation

25to 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 which—

(i) 30relates 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) does not fall within paragraph (c), or

(f) 35any 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) is given to a child who is in need of it by reason of age,

illness or disability, and

(iii) 40does not fall within paragraph (d).

(1C) In this Part of this Schedule —

  • “health care” includes all forms of health care provided for

    children, whether relating to physical or mental health and

    also includes palliative care for children and procedures that

    45are 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)

    of the National Health Service Reform and Health Care

    50Professions Act 2002.

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(1D) Any 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 a child by any person

acting on behalf of an organisation established for the purpose of

5providing first aid.

(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) After paragraph 1(2) insert—

(2A) 10Work 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) is not an activity mentioned in paragraph 2(1) (disregarding

15paragraph 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, and

(ii) 20is 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

regulated activity relating to children.

(6) 25Also 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) omit sub-paragraph (8) (exercise of functions of certain persons to be

30regulated 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

the deputy Children’s Commissioner for Wales”,

(d) 35in 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”

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

40Measure 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

“in Wales”,

(v) 45in 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”,

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

5activity),

(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

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

10(9C), (11) or (13A)” substitute “(9A), (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

would be carrying out an activity mentioned in sub-

15paragraph (1) or (2) but for the exclusion for supervised

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

(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

20provided for a child),

(b) in sub-paragraph (2)—

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

(ii) omit paragraph (d), and

(c) after sub-paragraph (3) insert—

(3A) 25Sub-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) Sub-paragraph (1)(b)—

(a) 30does 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 direction

35or 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) 40Sub-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) In paragraph 10(2) (the period condition) for “, (c) or (d)” substitute “or (c)”.

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64 Restriction of definition of vulnerable adults

(1) Omit 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) 5after “In this Act—” insert—

  • “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 section 59” substitute “means any adult

10to whom an activity which is a regulated activity relating to vulnerable

adults by virtue of any paragraph of paragraph 7(1) of Schedule 4 is

provided”.

65 Restriction of scope of regulated activities: vulnerable adults

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

15(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

20adults—

(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

25to 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

30affairs,

(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) 35involving, 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

40individuals, 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) A health care professional is a person who is a member of a

45profession regulated by a body mentioned in section 25(3) of the

National Health Service Reform and Health Care Professions Act

2002.

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(3A) Any 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

5providing first aid.

(3B) Relevant 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

10parenteral nutrition),

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

menstruation),

(iii) washing or bathing,

(iv) dressing,

(v) 15oral care, or

(vi) the 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

20to the performance of any of the activities listed in paragraph

(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) 25relates 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) 30Relevant 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.

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

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

35concerned 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) 40Relevant 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) an enduring power of attorney (within the meaning of

45Schedule 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,

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

Protection in relation to the making of decisions on the

person’s behalf,

(d) the appointment of an independent mental health advocate

5or (as the case may be) an independent mental capacity

advocate in respect of the person in pursuance of

arrangements under section 130A of the Mental Health Act

1983 or section 35 of the Mental Capacity Act 2005,

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

10meaning of section 248 of the National Health Service Act

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

2006) in respect of the person, or

(f) the appointment of a representative to receive payments on

behalf of the person in pursuance of regulations made under

15the Social Security Administration Act 1992.

(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

20services 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

25people 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) 30in paragraph (b), omit “or vulnerable adults (as the case may be)”.

66 Alteration of test for barring decisions

(1) For 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) 35If 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,

the Secretary of State must refer the matter to ISA.

(3) 40If (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 to

children,

45it must include the person in the children’s barred list.

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

(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) 5this 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,

the Secretary of State must refer the matter to ISA.

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

10sub-paragraph (2)) it appears to ISA that—

(a) this paragraph applies to a person, and

(b) the 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

15to why the person should not be included in the children’s barred

list.

(5) Sub-paragraph (6) applies if—

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

any time prescribed for the purpose, or

(b) 20the duty in sub-paragraph (4) does not apply by virtue of

paragraph 16(2).