some default text...

Protection of Freedoms Bill (HL Bill 99)

Protection of Freedoms BillPage 140

includes a power to remove areas or places from the
authorisation.

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

(a) a senior officer to give, vary or cancel an authorisation
5under 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) The Secretary of State may issue a certificate that—

(a) 10the 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
(“the claimant”) if the Secretary of State intends to rely on a
15certificate 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
Tribunal established under section 91 of the Northern
20Ireland 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) In its application by virtue of sub-paragraph (4)(b), section 90(3) of
25the 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
30to which the certificate relates, and

(b) the 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) 35with any necessary modifications, and

(b) subject 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”.

Protection of Freedoms BillPage 141

Section 78

SCHEDULE 7 Safeguarding 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
5(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) In 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) 10After 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
supervision of, a health care professional.

(1B) 15In 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 parenteral nutrition),

(b) 20physical 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
menstruation),

(ii) 25washing 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 performance of the activity of eating or drinking
30where 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
35relation 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
40which—

(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) 45does not fall within paragraph (c), or

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

Protection of Freedoms BillPage 142

(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) 5does 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
    10that 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
    1525(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
by, or under the direction or supervision of, a health care
professional includes a reference to first aid provided to a child by
20any 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
regulated activity) for “any form of work (whether or not for gain)”
substitute “any work falling within sub-paragraph (2A) or (2B)”.

(5) 25After 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) 30is 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) 35is 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
40day to day supervision of another person who is engaging
in 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
45respect of a child under Article 101 of the Mental Health
(Northern Ireland) Order 1986 (NI 4) is a regulated activity
relating to children.,

Protection of Freedoms BillPage 143

(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) Any activity which consists in or involves on a regular
5basis 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-
paragraph (2B)(b) above is a regulated activity relating to
10children.

(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) in sub-paragraph (2)—

(i) 15for “, (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
teaching, training or instruction of children which is, on a
20regular 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) does not include any health care provided
25otherwise 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 or supervision of) a health care
30professional, 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) 35Sub-paragraph (1)(c) does not include any legal advice.

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

(9) In 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)
40Order 2007 (interpretation of Order), in the first paragraph (2)—

(a) after the definition of “the 2003 Order” 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
45construed in accordance with Article 3” substitute “means any adult
to whom an activity which is a regulated activity relating to

Protection of Freedoms BillPage 144

vulnerable 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) 5Parts 2 and 3 of Schedule 2 to the Safeguarding Vulnerable Groups
(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) 10Each 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) 15the provision by a social care worker of relevant social
work 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) 20any relevant assistance in the conduct of an adult’s own
affairs,

(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) 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) Any reference in this Part of this Schedule to health care provided
40by, 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) Relevant personal care means—

(a) 45physical assistance, given to a person who is in need of it
by reason of age, illness or disability, in connection with—

Protection of Freedoms BillPage 145

(i) eating or drinking (including the administration of
parenteral nutrition),

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

(iii) 5washing or bathing,

(iv) dressing,

(v) oral care, or

(vi) the care of skin, hair or nails (other than nail care
provided by a chiropodist or podiatrist),

(b) 10the 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 to performing such an activity without
15such prompting and supervision, or

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

(i) relates to the performance of any of the activities
listed in paragraph (a),

(ii) 20is 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) Relevant social work has the meaning given by section 2(4) of the
Health and Personal Social Services Act (Northern Ireland) 2001
25and 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
assistance in relation to the running of the household of the person
concerned where the assistance is the carrying out of one or more
30of 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
35anything done on behalf of the person by virtue of—

(a) an enduring power of attorney (within the meaning of the
Enduring 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) 40the subject of an application to be so registered,

(b) an order made under Article 99 or 101 of the Mental Health
(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
45on behalf of the person in pursuance of regulations made
under the Social Security Administration (Northern
Ireland) Act 1992.

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

Protection of Freedoms BillPage 146

(4) In paragraph 7(5) (day to day management or supervision of certain
activities to be regulated activity) omit “, (4)”.

(5) Omit 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
5are 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) in paragraph (b), omit “or vulnerable adults (as the case may be)”.

Alteration of test for barring decisions

4 (1) 10For 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)
substitute—

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

(a) 15this 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) If (whether or not on a reference under sub-paragraph (2)) ISA—

(a) 20is 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,

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

(2) 25For 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) 30the 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
sub-paragraph (2)) it appears to ISA that—

(a) 35this 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 to why the person should not be included in the children’s
40barred 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

Protection of Freedoms BillPage 147

(b) the duty in sub-paragraph (4) does not apply by virtue of
paragraph 16(2).

(6) If ISA—

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

(b) 5has 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 list.

(7) Sub-paragraph (8) applies if the person makes representations
10before the end of any time prescribed for the purpose.

(8) If ISA—

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

(b) has reason to believe that the person is or has been, or
might in future be, engaged in regulated activity relating
15to children, and

(c) is satisfied that it is appropriate to include the person in the
children’s barred list,

it must include the person in the list.

(3) In paragraph 3 of that Schedule to that Order (inclusion in children’s barred
20list on behaviour grounds)—

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

(i) has (at any time) engaged in relevant
conduct, and

(ii) 25is or has been, or might in future be,
engaged in regulated activity relating to
children,,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and”
at the end of the paragraph), insert—

(aa) 30it has reason to believe that the person is or has
been, or might in future be, engaged in regulated
activity relating to children,, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(4) In paragraph 5 of that Schedule to that Order (inclusion in children’s barred
35list because of risk of harm)—

(a) in sub-paragraph (1)(a) for “falls within sub-paragraph (4)”
substitute

(i) falls within sub-paragraph (4), and

(ii) is or has been, or might in future be,
40engaged in regulated activity relating to
children,,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and”
at the end of the paragraph), insert—

(aa) it has reason to believe that the person is or has
45been, or might in future be, engaged in regulated
activity relating to children,, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(5) For sub-paragraphs (2) and (3) of paragraph 7 of that Schedule to that Order

Protection of Freedoms BillPage 148

(automatic inclusion of person to whom paragraph applies in adults’ barred
list) substitute—

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

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

(b) 5the person is or has been, or might in future be, engaged in
regulated activity relating to vulnerable adults,

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) 10has reason to believe that the person is or has been, or
might in future be, engaged in regulated activity relating
to vulnerable adults,

it must include the person in the adults’ barred list.

(6) For sub-paragraphs (2) to (4) of paragraph 8 of that Schedule to that Order
15(inclusion of person to whom paragraph applies in adults’ 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
20regulated activity relating to vulnerable adults,

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) 25the person is or has been, or might in future be, engaged in
regulated activity relating to vulnerable adults.

(4) ISA must give the person the opportunity to make representations
as to why the person should not be included in the adults’ barred
list.

(5) 30Sub-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) 35If 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 vulnerable adults,

40it 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,

Protection of Freedoms BillPage 149

(b) has reason to believe that the person is or has been, or
might in future be, engaged in regulated activity relating
to vulnerable adults, and

(c) is satisfied that it is appropriate to include the person in the
5adults’ barred list,

it must include the person in the list.

(7) In paragraph 9 of that Schedule to that Order (inclusion in adults’ barred list
on behaviour grounds)—

(a) in sub-paragraph (1)(a) for the words from “has” to “conduct,”
10substitute

(i) has (at any time) engaged in relevant
conduct, and

(ii) is or has been, or might in future be,
engaged in regulated activity relating to
15vulnerable adults,,

(b) in sub-paragraph (3), after paragraph (a) (and before the word “and”
at the end of the paragraph), insert—

(aa) it has reason to believe that the person is or has
been, or might in future be, engaged in regulated
20activity relating to vulnerable adults,, and

(c) in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

(8) In paragraph 11 of that Schedule to that Order (inclusion in adults’ barred
list because of risk of harm)—

(a) in sub-paragraph (1)(a) for “falls within sub-paragraph (4)”
25substitute

(i) falls within sub-paragraph (4), and

(ii) is or has been, or might in future be,
engaged in regulated activity relating to
vulnerable adults,,

(b) 30in sub-paragraph (3), after paragraph (a) (and before the word “and”
at the end of the paragraph), insert—

(aa) it has reason to believe that the person is or has
been, or might in future be, engaged in regulated
activity relating to vulnerable adults,, and

(c) 35in sub-paragraph (3)(b) for “appears to ISA” substitute “is satisfied”.

Abolition of controlled activity

5 Omit Articles 25 to 27 of the Safeguarding Vulnerable Groups (Northern
Ireland) Order 2007 (controlled activity).

Abolition of monitoring

6 40Omit Articles 28 to 31 of the Safeguarding Vulnerable Groups (Northern
Ireland) Order 2007 (monitoring).

Information for purposes of making barring decisions

7 (1) In paragraph 19 of Schedule 1 to the Safeguarding Vulnerable Groups
(Northern Ireland) Order 2007 (information required by ISA about persons
45to whom grounds for barring apply)—