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308. Clause 60 amends Part 2 of the ASA by inserting a new Part 2A. Part 2 of the ASA deals with arrangements for the protection of aircraft, aerodromes and air navigation installations from acts of violence.
309. Part 2 of the ASA provides the Secretary of State with powers to request information; impose restrictions in relation to the persons and materials permitted on board aircraft; require modifications to aircraft; require searches of aerodromes, aircraft, persons and property; require that aerodromes and aircraft be guarded and to arrange for the inspection of aircraft and aerodromes. Part 2 also sets out those circumstances in which compensation can be claimed in respect of loss arising from measures taken under Part 2 of the ASA.
310. This section sets out which aerodromes will be subject to the new provisions. Subsection 1(a) provides that any aerodrome which is the subject of a direction under section 12, 13, or 14 of the ASA will be subject to the new provisions. In practice, a directed aerodrome will be one that is subject to the NASP.
311. Sections 12, 13, 13A and 14 of the ASA provide the Secretary of State with powers to direct those security measures which must, as a minimum, be carried out at an aerodrome. Broadly, directions made under these sections are made for the purposes of mitigating threat to aviation from acts of violence. Parties generally directed under these sections include aerodrome managers, airline operators, cargo and catering companies. The police may not be directed.
312. Section 12 of the ASA permits the Secretary of State to require aircraft operators or the managers of aerodromes not to allow unsearched persons or property to go on board or to be brought within proximity of any such aircraft specified in a direction. Under this section the Secretary of State may also stipulate modifications that must be made to an aircraft or its equipment before it is permitted to fly.
313. Section 13 of the ASA allows the Secretary of State to require a manager of an aerodrome to ensure that searches of the aerodrome, aircraft, persons or property are conducted in such fashion as stipulated by the direction. Section 13A provides the Secretary of State with powers to require other persons occupying land at an aerodrome or having access to a restricted zone for the purposes of business to ensure that such searches as stipulated in the direction are carried out.
314. Section 14 provides the Secretary of State with a general power to require aircraft operators, aerodrome managers, persons occupying land at an aerodrome or persons permitted to access a restricted zone to take measures necessary to guard against acts of violence.
315. All directions issued under the ASA are brought together, with guidance, to form the NASP. The NASP is concerned with aviation generally and has a primary aim to safeguard passengers, crew, ground personnel and the general public against acts of unlawful interference perpetrated in flight or within the confines of an aerodrome.
316. The number of UK aerodromes directed in accordance with these sections will vary in accordance with day to day operations, but presently this amounts to around 60 UK aerodromes.
317. It is open to the Secretary of State to make additional aerodromes that do not meet these qualifying criteria subject to the new provisions by means of the power contained in subsection (1)(b). This power is subject to negative resolution procedure. In practical terms, this power might be used in the event of intelligence suggesting that other, non-directed aerodromes might benefit from the security planning provisions contained in the Bill. Non-directed aerodromes which could, for example, be made subject to the provisions might include those dealing solely with general aviation. In this context, general aviation refers to a civil aircraft operation other than a military, scheduled or charter public transport service. Examples of general aviation would include private aircraft and microlights.
318. Section 38(1) of the ASA defines the term aerodrome for the purposes of the ASA. Any use of the word aerodrome in the amendments to the ASA proposed by clause 60 is therefore subject to the same definition. The effect of the definition contained at 38(1) is that aerodrome means the following:
319. Section 24AB creates a statutory requirement that qualifying Aerodromes must establish RAGs and sets out provisos for the membership for the groups. There are currently in excess of 35 aerodromes presently operating groups on a voluntary basis that carry out risk assessment. These are commonly known as MATRA groups and these resemble the proposed RAGs. As a minimum, a RAGs membership must contain a representative of the aerodrome manager and a representative of the chief officer of police for the relevant area.
320. Subsection (3) provides the manager of the aerodrome with a power to appoint additional persons to the RAG as he or she sees fit. It is expected that the aerodrome manager will use this power to ensure that the Groups membership contains the necessary expertise to be able to properly advise on the threats to the aerodrome identified. Persons that may be appointed by the aerodrome manager could include, but need not be limited to, representatives of airlines, cargo and catering concerns with a presence at the airport.
321. The Chief Officer of police may use the power contained in subsection (4) to appoint a second representative to the RAG. The Chief Officer, could, for example, use this power to appoint a representative of Special Branch where Special Branch has a presence at the airport.
322. The Government expects that Commissioners for Her Majestys Revenue and Customs (HMRC) will use the power contained in subsection (5) to appoint a representative to the RAG in circumstances where HMRC have a presence at the aerodrome in question
323. Subsection (6) provides the Secretary of State with a power to appoint additional persons to the RAG as he or she sees fit. The Secretary of State expects to use this power to appoint representatives of UKBA and SOCA to RAGs as may from time to time be necessary.
324. Subsection (9) also provides the Secretary of State with a power to appoint observers to the RAG. This would permit officials and experts to witness and take part in the proceedings of the group should this be considered necessary.
325. This section creates a statutory requirement that the RAG produce a risk report for the aerodrome and stipulates the nature of the information that the risk report must, as a minimum, contain. Subsection (4) does not require that the risk report be revised after a minimum period, but does require that the report be revised on such basis as to properly reflect the prevailing security position at an aerodrome.
326. Subsection (1) provides that qualifying aerodromes must prepare a risk report within two months of the day by which the RAG is required to be established. Section 24AL requires that a RAG be established at an aerodrome within one month of the aerodrome becoming subject to these provisions. The total effect is therefore that a risk report be produced for an aerodrome within three months of the commencement of these provisions.
327. This section stipulates the nature of the information that RAGs must consider when making recommendations about risks to the Aerodrome and appropriate mitigating action.
328. Subsection (1)(a) requires RAGs to have regard to any directions under section 12, 13, 13A or 14 of the ASA. RAGs must ensure any such directions continue to be met when discharging their functions under this Part.
329. In practice, the national threat assessment referred to in subsection (1)(b) and qualified by subsection (3) could comprise any information issued by a Government department, office or agency concerning threat information, and might include an amendment to threat levels.
330. The Secretary of State will be issuing guidance to support the functioning of RAGs. Guidance is likely to cover the following aspects of the groups operations:
331. Guidance will also contain model documents.
332. Subsection 24AD(1)(c) requires RAGs to have regard to this guidance.
333. This section creates a statutory requirement for qualifying aerodromes to create an ASP, and stipulates the information that must, as a minimum, be contained within that plan. This section also stipulates the persons responsible for formulation of the ASP, and requires that an ASP must be produced within nine months from the time by which the SEG is required to be established.
334. At subsection (2), the security measures specified in an ASP should not include those measures that are excluded by the interpretation of security measure described at subsection 24AT(1).
335. Subsection (1) requires that an ASP be in force at all times from nine months after the SEG is required to be established. Section 24AL requires that a SEG to be established at an aerodrome within three months of the aerodrome becoming subject to these provisions. The total effect is therefore that an ASP must be in force within 12 months from the commencement of these provisions.
336. Subsection (3) provides that the ASP may specify steps to be taken by any person or persons responsible for delivery of any measure under the terms of the ASP for the purposes of monitoring delivery of the agreed actions. A monitoring arrangement might include, for example, a requirement that a relevant party report back to the SEG on progress towards delivery of a measure.
337. The relevant persons described in subsection (4) are those persons who may be tasked with the delivery of a measure under the terms of an ASP. The requirements of an ASP will vary significantly depending on local circumstances at each aerodrome, but persons and organisations who may be required to deliver a measure included in the ASP could include the following:
338. The reference to the Secretary of State at 24AE(4)(h) is made for the purposes of permitting UKBA to be included as a relevant person (for clarity, a relevant person is a party who may be tasked with the delivery of a measure under the terms of the ASP). UKBA is not a body corporate and has no legal identity. It has therefore not been possible to treat UKBA in the same manner, say, as HMRC, by simply referring to UKBA directly. Except in relation to UKBA, which could, if having a presence at an aerodrome, be tasked with a measure under the terms of an ASP, the Government does not expect that the Secretary of State should be tasked with the delivery of measures under the terms of an ASP.
339. Subsection (5) provides that a plan may specify that security stakeholders make payments to another security stakeholder in connection with their delivery of an action specified in the plan. Although the police are not directly specified as a stakeholder to whom payments may be made, this subsection does not prevent an ASP from specifying payments to be made in respect of the polices delivery of a security measure. However, the expectation is that details of such payments will be contained within a Police Services Agreement (PSA). A PSA is an agreement made between an aerodrome manager, the Chief Officer of police and a representative of the police authority for the relevant area; and, as a minimum, will specify the following:
340. Subsection (6) provides that the plan may specify the accommodation or facilities that the aerodrome manager is responsible for providing to security stakeholders other than the police. In practice, it is likely that the UKBA and other agencies will, if present at an aerodrome, require the use of accommodation or facilities in order to deliver measures assigned to them under the terms of an ASP. As in the case of payment by security stakeholders for security measures delivered by the police, although this subsection does not prohibit the inclusion of terms in an ASP relating to use (if any) by the police of accommodation or facilities at an aerodrome, these are likely to be contained within a PSA.
341. Subsection (7) places persons who are responsible for the delivery of a measure in the plan under a statutory duty to undertake the measure, monitor its implementation and make any payments or provide accommodation as specified in the plan. A description of the persons that could be placed under a statutory duty to deliver a measure in the ASP by virtue of this subsection is contained at paragraph 337 of these notes.
342. In the event of someone failing to comply with the duty contained in subsection (7) it would be open to the Secretary of State to instigate dispute resolution process and make a determination.
343. The power contained in subsection 24(AR)(2) permits a party in a dispute that has been the subject of a determination to appeal the determination via the High Court. The High Court could enforce the determination of the Secretary of State as if it were a High Court judgement; and contempt of court proceedings would then become available.
344. This section provides that ASPs must run in accordance with the financial year. In the first year, ASPs should come into force 12 months after the commencement of the provisions in this Part. It does not specify either a minimum or maximum number of years for which an ASP may be in force. Subsection 24AH(1)(b) places the SEG under a requirement to keep the contents of an ASP under review and to decide whether and how it should be varied. The discretionary power at subsection (5) will allow the Secretary of State to direct that an ASP is to come into force at an alternative date to those provided for at subsections (2) and (3) where a dispute between parties necessitates this.
345. This section provides that qualifying Aerodromes must establish a SEG and stipulates the SEGs functions.
346. Subsections (2), (3), (4), (5) and (6) establish the persons who may be appointed as members of the SEG. As a minimum, the Group must comprise a representative of the manager of the aerodrome, a representative of the chief officer of police and a representative of the police authority for the relevant area, and a representative of airlines taking off from, or landing at, that aerodrome.
347. In relation to subsections (2)(d) and (e), HMRC and SOCA may use these powers to appoint representatives to the SEG where the agencies have a presence at the airport.
348. Subsection (4) permits the Secretary of State to appoint an official to the SEG who exercises functions relating to immigration. In practice, this power will be used to permit the appointment of a UKBA official to a SEG. As UKBA is not a body corporate and has no legal identity, it has been necessary to provide this power of appointment by reference to UKBAs functions, rather than detailing them as an entity in subsection 24AG(2) which may, if it so requests, appoint a nominee to the SEG. In practice, it is expected that UKBA nominees will only attend SEGs where UKBA has a presence at the aerodrome in question.
349. Subsection (6) provides the manager of an aerodrome and the Secretary of State with a power to nominate a representative to the SEG who appears to him to be best suited to act on behalf of a range of security stakeholders at the aerodrome. In practice, the Government expects that the aerodrome manager will use this power, where he considers it appropriate, to appoint a representative from categories of organisations who may be required to deliver a measure under the ASP and who would not otherwise have a representative on the SEG as provided for under the terms of subsection (2). Categories of organisations that may require representation on the SEG could include, but are not limited to, cargo agents and retailers. Subsection (5) provides the manager of an aerodrome and the Secretary of State with a similar power to appoint representatives of persons from such groups, although this power may be used to appoint a relevant person or representative of a single relevant person rather than a representative of a category of interests.
350. In practice, if an ASP at a larger aerodrome required an action to be taken by airline operators, it is conceivable that several hundred persons could qualify as relevant persons. This is why the provisions do not require all relevant persons to be present on the SEG.
351. The power to appoint representative members to the SEG contained in subsection (5) is also available to the Secretary of State. In practice, the Secretary of State would be unlikely to use this power unless it appeared to him that there was a need for a representative member who would not otherwise be nominated to the SEG by the aerodrome manager.
352. Subsection (8) provides the Secretary of State with a power to appoint observers to the SEG. This power would, if deemed necessary, permit the attendance of Crown officials at SEG meetings. Persons nominated under this subsection would not have voting rights as they would not be full members of the SEG, only observers.
353. This section places the SEG under a statutory duty to decide, monitor and implement an ASP, and keep it under review and vary it if necessary.
354. Subsection (2) and (3) require that the SEG unanimously agree to the terms of an ASP and any variation of an ASP respectively. In the event that unanimous agreement to a variation cannot be achieved, this may constitute a dispute as defined in subsection 24AM(3)(b), which could allow for a member of the SEG to refer the matter to the Secretary of State in accordance with the dispute proceedings specified in 24AN.
355. This provision qualifies the requirement contained in subsections (2) and (3) for unanimous agreement. This provision might, for example, be used to allow an ASP to come into force where a SEG member was unreasonably withholding consent or disagreement to the terms of an ASP so as to seek to delay the ASP from taking effect.
356. Subsection (4) permits the Secretary of State to be provided with a copy of an ASP upon request. The Secretary of State does not expect routinely to request copies of ASPs. In practice, the Secretary of State is most likely to use this power in the event of a specific concern relating to the efficacy of measures in place for the mitigation of threat.
357. This section permits security stakeholders not directly represented on the SEG with a power to object to a requirement contained in the ASP that they carry out a security measure, take a monitoring step or make any payment. Under the terms of this section, a security stakeholder who is not directly represented on the SEG may not object to a measure which does not require them to take a security measure, take a monitoring step, or make any payment.
358. Subsection (2) provides that the objections procedure as provided for in section 24AI may not be used by a member of the SEG. Members of the SEG will have the power to refer a matter to the Secretary of State as a dispute in accordance with the provisions contained in section 24AN.
359. Provision is made at section 24AI(2)(d) for the Secretary of State to make an objection unless the Secretary of State has already made a nomination under subsection 24AG(4). In practice, this means unless the Secretary of State has already appointed an official exercising functions relating to immigration. This is most likely to be a UKBA official, although it need not be.
360. The objection right at section 24AI(2)(d) has been included to allow for UKBA to object to a measure in circumstances where an ASP contains a measure for UKBA, but, due to the fact that no nomination to the SEG has been made, UKBA have been unable to object to that measure through the procedures available to SEG members at section 24AN. In practice, it is not expected that it should be necessary for the Secretary of State to object to a measure on UKBAs behalf as it should be the case that a nomination will have been made under subsection 24AG(4).
361. Subsection (7) requires that in the event of failure to agree whether the proposal that is the subject of the objection should be withdrawn or varied, the matter must be referred to the Secretary of State under section 24AN(1) by the aerodrome manager, or a person attending the SEG on his behalf. Section 24AN(1) provides that where there is a dispute, a member of the SEG may refer the matter to the Secretary of State.
362. Under the terms of this section, it would be possible for the Secretary of State to make an objection on UKBAs behalf and subsequently act as the person determining the dispute. In practice, this is unlikely to happen: as indicated above, it should not, in normal circumstances, be necessary for the Secretary of State to object to a measure on UKBAs behalf. In any event, in practice, the Secretary of State exercising functions relating to immigration is unlikely to be the same Secretary of State that would determine an ASP dispute, as this will be the Secretary of State responsible for Transport. In the unlikely event that the Secretary of State is required to determine a matter of dispute raised on behalf of UKBA, his or her decision on the matter of dispute would be taken in his or her capacity as the person responsible for determining disputes rather than in any capacity connected with immigration functions and UKBA.
363. Subsection (8) stipulates that a provision which is required to be delivered by a relevant person who is not directly represented on the SEG may not be included in an ASP until 30 days has elapsed from the point at which the persons required to deliver the measure were notified of the measure. Elements of an ASP that are required to be delivered solely by persons directly represented on the SEG may come into effect immediately.
364. This section stipulates the nature of the information that the members of the SEG, must, as a minimum, have regard to in the exercise of their functions.
365. Subsection 24AJ(1)(c) requires that the SEG have regard to any national threat assessment. In practice, a national threat assessment could comprise any information issued by a Government department, office or agency concerning threat information. This might include an amendment to threat levels.
366. The Secretary of State will be issuing guidance to support the functioning of SEGs. Guidance is likely to cover the following aspects of the groups operations.
367. Subsection 24AJ(1)(d) will require SEGs to have regard to this guidance.
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|Prepared: 19 December 2008