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368. This section makes further provision regarding the operation and procedures of RAGs and SEGs.
369. In practice, it is likely that some smaller aerodromes may consider it appropriate for the same persons to staff both their RAG and SEG. Express permission for this is provided in subsection 24AK(1).
370. In relation to subsection (2), a person nominated under subsection 24AB(2)(a) will be the aerodrome managers representative on the RAG. A person nominated under subsection 24AG(3) is a person nominated to the SEG by the aerodrome manager on the basis that they appear to him to be a person best suited to represent the interests of airlines operating at the aerodrome. The effect of this subsection is that where a nomination is revoked under this section, an alternative nomination must be made.
371. In relation to subsection (3), a person nominated under subsection 24AB(2)(b) will be the chief officer of polices representative on the RAG. A person nominated under subsection 24AB(3), 24AB(4), 24AB(5), 24AB(6) is any person nominated by the chief officer of police, HMRC or the Secretary of State to the RAG where there is already a nominee of the chief officer of police, HMRC or the Secretary of State present at the RAG. A person nominated under subsection 24AB(9) is any person nominated by the Secretary of State to the RAG as an observer. A person nominated under section 24AG(4) is any official who exercises functions relating to immigration who is nominated to the SEG by the Secretary of State. In practice a person nominated under subsection 24AG(4) will be a UKBA official. A person nominated under subsection 24AG(5) is a person nominated by the aerodrome manager or the Secretary of State in order to represent a relevant person described in subsection 24AE(4)(c)to(e). Persons described in subsections 24AE(4)(c) to (e) may be an operator of an aircraft; a person permitted to have access to the aerodrome for the purposes of a business carried on by that person; or a person who occupies any land forming part of the aerodrome. Such persons might include, for example, retailers or cargo handlers. Persons nominated under subsection 24AG(6) are persons who are also nominated by the aerodrome manager or the Secretary of State to represent the interests described under subsections 24AE(c) to (e); but rather than representing a single relevant person, representatives nominated under this section will represent a number of similar organisations. Such a representative could, for example, represent the interests of all retailers or cargo companies operating at the aerodrome.
372. The effect of subsection (3) is that where a nomination is revoked under this section, no alternative nomination need be made.
373. Subsection 24AL(1) provides that qualifying aerodromes must have RAGs in place from one month after commencement of these provisions. In practice, many qualifying aerodromes already have RAGs in place. This subsection requires that qualifying aerodromes establish SEGs within three months of the Bills commencement. A definition of a qualifying aerodrome is contained in paragraphs 310 to 316 of these notes.
374. This section stipulates those circumstances which may be regarded as a dispute.
375. Under the terms of this section, disagreement about a security measure between a person who is not required to take the measure, take a monitoring step in relation to the measure, or make a payment in respect of the measure and the members of the SEG would not qualify as a dispute. This restriction has been implemented to ensure that only those relevant persons directly affected by a security measure may access dispute resolution proceedings since the Government wants to avoid unfounded or malicious references being made to the Secretary of State.
376. The duty contained at section 24AE(1) referred to in subsection 24AM(3)(a) is the duty for the SEG to ensure that an ASP is in place.
377. The duty contained at section 24AE(7) referred to in subsection (4) is the duty on a person responsible for taking a security measure contained in an ASP to take that measure, take a monitoring step, or make any payment or provide accommodation in accordance with the terms of the ASP.
378. This section stipulates who may refer a dispute to the Secretary of State.
379. Under the terms of this section, relevant persons not directly represented on the SEG may not refer a dispute to the Secretary of State. They may, however, make a request to a person nominated to the SEG to represent their interests to refer a dispute to the Secretary of State. In general terms, it would be a matter for the discretion of the member of the SEG in question as to whether they referred the matter or not. However, if the relevant person has used the objections procedure in relation to a measure and there has been no subsequent agreement amongst SEG members in relation to the matter, the representative of the aerodrome manager on the SEG must refer the matter to the Secretary of State.
380. This section provides the Secretary of State with a power to intervene in a dispute in order to seek to resolve it. The use of this power is at the Secretarys of States discretion. The intention is that if such intervention is successful, a determination of the dispute under section 24AP may not be necessary.
381. In practice, the power contained at subsection (2) could be used to compel parties in a dispute to take actions that the Secretary of State considers will assist them in resolving the dispute. Directions made under this section will primarily be used to ensure that participants in a dispute take action such as completing the required security analysis, and attending meetings with supporting materials so that officials can facilitate agreement over the levels of security resources required at an airport. However, the nature of the provision means that the examples set out above are not exhaustive.
382. Subsection (3) provides the Secretary of State with a power to compel parties involved in a dispute to contribute to costs relating to the provision of services by a third party. In practical terms, the Government expects that there may be circumstances in which the Secretary of State considers it appropriate to attribute costs to the disputing parties relating to services provided by a third person for the purposes of resolving a dispute in accordance with the provision set out in subsection (2). In practice, persons who may be employed by the Secretary of State to facilitate in the resolution of a dispute could include legal professionals, Her Majestys Inspectorate of Constabulary or independent security consultants. Subsection (4) also permits the Secretary of State to recover costs relating to officials involvement in the determination of disputes. In practice, the Secretary of State might use such power to recover costs where he considered that it would be inappropriate for the full extent of costs relating to attempts to resolve the dispute made under this section to fall to the public purse.
383. This section stipulates the general procedures that the Secretary of State must, as a minimum, conduct when providing a determination in relation to a dispute.
384. Subsection (3) requires that the Secretary of State must have regard to any directions under sections 12, 13, 13A or 14 of the ASA (explanation as to the likely content of such directions is provided at paragraphs 311 to 314 of these notes); the risk report for the aerodrome produced by the RAG; any national threat assessment (see paragraph 329 of these notes for further details) and any guidance given by the Secretary of State which is relevant to the groups functions (see paragraph 366 of these notes for a description of likely contents of guidance).
385. This section sets out the powers of the Secretary of State when determining the settlement of a dispute. The Secretary of State has powers in relation to determining both the contents of an ASP as well as its implementation.
386. Subsection (4) provides the Secretary of State with a power to apportion costs between persons responsible for security measures at the aerodrome. In practice, there may be circumstances where an ASP may specify that a range of security stakeholders will make a financial contribution in respect of a security measure (such as CCTV, for example). Where appropriate, this power would permit the Secretary of State to determine that a security stakeholder should make a financial contribution to the project. Any such determination could be the subject of an appeal as provided for in section 24AR.
387. This section provides any party affected by a declaration, determination or order of the Secretary of State with a power to appeal that decision to the High Court.
388. Subsection (2) provides that, where the Secretary of State imposes a requirement in certain circumstances, or makes a declaration, determination or order then he can seek with the permission of the High Court to have any of these enforced as if they had been a High Court judgment in their own right.
389. The power to modify contained in section 24AS complements that set out in section 24AA. It is intended to be used in circumstances where intelligence suggests that it would be proportionate and/or reasonable in all the circumstances to make an aerodrome exempt from some, or all, of the security planning provisions contained in the amendments to Part 2A of the ASA. Any decision to use the power contained in this section would be based on all relevant considerations, including latest intelligence information and an assessment of local circumstances at the aerodrome in question.
390. Part 3 of the ASA presently deals with the policing of aerodromes that have been designated for policing purposes. For the purposes of Part 3, an aerodrome is one that is subject to a direction under section 12, 13 or 14 of the ASA. In practice, an aerodrome directed under these sections will be one meeting the qualifying criteria for inclusion in the UKs NASP.
391. The number of UK aerodromes meeting these criteria will vary in accordance with day to day operations, but presently around 60 UK aerodromes would meet these qualifying criteria. Of these, nine are designated for policing purposes.
392. Under the existing terms of subsections 25B(1) and (2) of the ASA, the effect of designating a UK aerodrome in accordance with section 25(1) of the ASA is that the manager of the aerodrome, the relevant police authority and the chief officer of police for the relevant area are required to enter into a PSA. A PSA is an agreement which must stipulate:
393. The ASA presently requires that if the persons responsible for the development of a PSA are unable to reach agreement in relation to its terms, the matter must be referred to an independent tribunal, who may make a determination in respect of either the terms or implementation of a PSA. In practice, this creates a requirement that designated aerodromes pay for qualifying police services provided at their aerodromes.
394. The proposed amendments to Part 3 of the ASA will essentially remove the current system of designation. This system of designation will be replaced with a requirement that all qualifying aerodromes having an ASP which specifies that policing measures are required at the aerodrome must develop a PSA. This requirement is contained at section 25B(1) of the proposed amendments. It will continue to be the case that PSAs must specify the level of policing to be provided, must specify the amount of any payments to be made by the aerodrome manager, or the manner in which their amount is to be assessed, and the accommodation and facilities (if any) that are to be provided by the manager in connection with that policing.
395. The manager of the aerodrome, the police authority for the relevant area, and the Chief Officer of police for that area will continue to be the persons responsible for the development of PSAs in respect of the relevant aerodromes. In the event that they are unable to agree on the terms of the PSA, under the terms of the proposed amendments, the matter will be referred to the Secretary of State to provide a determination on the terms for the implementation of the PSA (sections 29A to 29E). Again, in practice this creates a requirement that aerodrome managers pay for the qualifying police services provided in respect of their aerodromes.
396. Aerodrome managers will not be required to pay for all police services provided at an aerodrome. Subsection 25E(2)(c) provides that the persons determining the terms of a PSA must have due regard to the extent, if any, to which the costs incurred by the police authority in connection with the policing provided for the aerodrome are, or are likely to be, met by any person other than the manager of the aerodrome. In practice, principal activities undertaken by police at aerodromes which, at present and in general, it would often not fall to the aerodrome operator to fund would include:
397. The nine aerodromes presently designated for policing purposes presently pay approximately £80m per annum in respect of policing services provided at these aerodromes. In the main, these nine aerodromes are some of the larger aerodromes in the UK, and all at present require a dedicated police presence. A dedicated police presence is not necessarily required at all UK aerodromes, and where such a presence is required, the Government expects that the level of policing services provided at presently non-designated aerodromes will, on average, be lower than the average level of policing services provided at designated aerodromes. It may also be the case that following introduction of the Risk Assessment and Aerodrome Security Planning processes (described at paragraphs 304 to 307 of these notes), security stakeholders at aerodromes presently designated for the purposes of policing may find their analysis suggesting that the levels of policing services provided at the aerodrome should be varied.
398. Clause 61 gives effect to the provisions of Part 1 of Schedule 5 which amends the provisions of the Part 3 of the ASA.
399. The effect of Schedule 5 will be to replace sections 25, 25A and 25B with the text contained in the Schedule. The effect of this change will, in broad terms, be to remove the system of designation whereby only some aerodrome operators pay for policing at their aerodromes; and replace this with a requirement for all airport operators requiring a dedicated police presence at their aerodrome to pay for qualifying services provided by the police (unless it has been found through the risk assessment process and is subsequently provided in an ASP that there is no need for policing at the relevant aerodrome).
400. Paragraph 2 of Schedule 5 requires that section 25 of Part 3 of the ASA is removed. Section 25 provides that the Secretary of State may, by order, require an aerodrome to be policed by constables under direction and control of the chief officer of police for the police area in which the aerodrome is situated. The practical effect of designating an aerodrome for policing purposes under this section is to provide that the costs of qualifying police services should be met by the aerodrome manager. A description of non-qualifying police services is provided at paragraph 396 of these notes.
401. Paragraph 3 of Schedule 5 requires that section 25A of Part 3 of the ASA is removed. The practical effect of this will be to remove the requirement contained in this section that the manager of the aerodrome and the chief officer of police consult with security stakeholders in relation to a range of stipulated matters. These include: measures required to be taken to comply with, or take account of, security directions taken under sections 12,13, 13A and 14 of the ASA (see paragraphs 311 to 315 of the explanatory notes for further information regarding these requirements); any national threat assessment; and guidance issued by the Secretary of State relating to the policing of the aerodrome; other measures to be taken in relation to policing of the aerodrome; the extent to which security measures are being undertaken by security stakeholders other than the police; and, the level of policing required at the aerodrome.
402. The requirement to consult on matters described at paragraph 401 of these notes is replaced by the requirement to conduct a multi agency risk assessment contained in section 24AC.
403. The aerodromes to which Part 2A applies will, as a minimum, be those meeting the criteria specified in paragraphs 310 to 316.
404. This section stipulates which aerodromes are required to have a PSA and what a PSA must contain.
405. The effect of subsection 25B(1) is that aerodromes having a valid ASP which does not specify that policing measures are required are exempt from the requirement to have a PSA. Although the requirement for dedicated policing will be a matter for local determination, the Government expects that a significant number of those aerodromes eligible for inclusion in the UK NASP (presently around 60) may not require a dedicated police presence.
406. Subsection 25B(3) specifies the information which, as a minimum, a PSA must contain.
407. Subsection 25B(5) provides that an aerodrome manager must supply the Secretary of State with a copy of the PSA upon request by the Secretary of State. The Secretary of State will not routinely request copies of PSAs. In practice, the Secretary of State will use this in the event of a specific concern relating to the policing of an aerodrome or associated payments.
408. This section stipulates that PSAs will run in accordance with the financial year. It does not specify a maximum period for which a PSA may operate, although section 25D does require the manager of the aerodrome, the representative of the police authority for the relevant police area and the chief officer of police for that area to keep the PSA under review.
409. The effect of subsections (4) and (5) is that if an aerodromes ASP is varied to introduce policing measures to an aerodrome, a requirement to have a PSA at that aerodrome is created. On the first occasion this happens at a qualifying aerodrome, a PSA must be brought into force within three months. This stipulation also applies to aerodromes which are no longer relevant aerodromes under the terms of section 25AA but then qualify as such again at a later date.
410. The discretionary power at subsection (6) 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) to (5) where a dispute between parties necessitates this.
411. This section provides the aerodrome manager and the representative of the chief officer of police and representative of the police authority for the relevant area with a power to vary the terms of a PSA. In practice, events which could trigger the variation of a PSA could include, for example, a sustained change in the national threat level or a change in the scale of operations at an aerodrome.
412. This section stipulates those items of information which must, as a minimum, be considered in the formulation of PSAs.
413. Subsection 25E(2)(c) requires the relevant persons to have due regard to the extent to which costs incurred by the police authority in connection with the policing of the aerodrome are likely to be defrayed from sources other than the aerodrome manager. A description of the policing activities that this subsection may relate to is provided at paragraph 396 of these notes.
414. Sections 26-29D of the ASA are slightly amended by the provisions in the Schedule.
415. Section 26 of the ASA provides that a relevant police constable shall have the same power to enter any part of the aerodrome as the aerodrome manager. The section also provides that, the chief officer of police must take into account those measures that are required to be delivered under sections 12, 13, 13A and 14 of the ASA as well as the security actions taken by immigration officers, officers of HMRC and the manager of the aerodrome when determining the levels of policing at the airport. It also provides that, in the event of there being no PSA in force, the aerodrome manager must make payments to the police authority in respect of costs reasonably incurred by the authority in connection with the policing provided by the aerodrome. However, the aerodrome manager would not be required to pay for policing services for which funding from alternative sources has been provided.
416. Subparagraph (6) of paragraph 6 would have the effect of inserting a new section 26(2CA) into Part 3. This provision requires that only those aerodromes that were designated immediately before the commencement of these provisions are required to make payments to reimburse the police authority for costs that have been reasonably incurred in connection with the policing provided at the aerodrome. For aerodromes that have not designated in this way, the requirement to reimburse the police authority does not apply until such time as the aerodrome is required to have a PSA.
417. Sections 27, 28 and 29 of the ASA do not specifically relate to security planning at aerodromes but instead relate to prevention of theft, byelaws and the control of road traffic respectively. The principal effect of the Schedule on these sections is to substitute the phrase designated airport with relevant aerodrome for the purposes of consistency.
418. Paragraph 10 of Schedule 5 provides for a new dispute resolution process consistent with that provided for under the terms of the aerodrome security planning provisions at sections 24AM to 24AR. In essence, this paragraph replaces sections 29A to 29D of the ASA to ensure that where there is a dispute about PSAs, a determination will be provided by the Secretary of State, rather than by the panel of independent experts appointed by the Secretary of State.
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|Prepared: 19 December 2008