Section 29A Power to refer disputes to Secretary of State

419.     This section stipulates the types of circumstances which may properly be treated as a dispute.

420.     The requirement referred to in subsection 29A(2)(a) is the requirement to have a PSA in place where an ASP contains policing measures.

421.     Subsection 29A(2)(d) refers to payments to be made or accommodation and facilities to be provided under subsection 26(2C). Subsection 26(2C) stipulates that, where no PSA is in force in relation to an aerodrome, the manager of the aerodrome shall:

a)     make to the police authority such payments as are necessary to reimburse the authority in respect of the costs reasonably incurred by it in connection with the policing of the aerodrome and

b)     secure that suitable accommodation and facilities are provided for use in connection with that policing.

Section 29B Powers of Secretary of State in relation to disputes

422.     Subsection 29B(2) provides the Secretary of State with powers to compel parties to take such actions as he considers will assist in the resolution of a dispute. These powers provide the Secretary of State with a means of acting to resolve a dispute without providing a full determination as provided for under the terms of section 29C.

423.     In practice, it is likely that the requirements imposed under subsection 29B(2) will primarily be used to ensure that participants in a dispute take out action that might assist in the resolution of a dispute. These might include actions such as completing the required security analysis, and attending meetings with supporting materials so that officials can facilitate agreement over the levels of policing resources required at an airport. However, the nature of the provision means that the examples set out above are not exhaustive.

424.     Subsections (3) and (4) provide the Secretary of State with a power to require parties involved in a dispute over a PSA to make payments in respect of costs incurred through use of the mechanism described in paragraphs 421 and 422 above. In practice, persons who might be employed by the Secretary of State to facilitate the resolution of a dispute in this regard might include legal professionals, or Her Majesty’s Inspectorate of Constabulary. Subsection (4) also provides the Secretary of State with a power to recover costs incurred through officials’ involvement in attempts to resolve a dispute. 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 the determination of the dispute to fall to the public purse.

Section 29C Dispute resolution: procedure

425.     This section stipulates some procedures that the Secretary of State must always undertake when providing a determination in relation to a dispute. With the exception of the minimum requirements stipulated in this section, the Secretary of State is provided with broad powers to determine how a dispute should be determined.

426.     In relation to subsection (3) the matters to which the Secretary of State must have regard are, as a minimum, as follows:

• —     Any ASP in force during the proposed period of the PSA;

• —     Any information given to the aerodrome manager, the Chief Officer of Police or his representative or the representative for the relevant Police Authority which is relevant to the PSA;

• —     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, and

• —     Any guidance given by the Secretary of State which is relevant to the discharge by the relevant persons of their functions in relation to PSAs.

Section 29D Dispute resolution: powers

427.     This section sets out the powers and duties 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 a PSA as well as its implementation.

Section 29E Dispute resolution: appeals and enforcement etc.

428.     This section provides any party to a dispute on which the Secretary of State has made a determination with a right to appeal that determination to the High Court.

429.     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.

Paragraph 13 of Schedule 5: Transitional Provision

430.     Under the existing terms of the ASA, there are presently nine aerodromes “designated” for policing purposes. Aerodrome operators at these aerodromes are already required to pay for qualifying police services provided in respect of their aerodromes, and PSAs are therefore already in place. This paragraph will ensure that any existing PSAs will cease to have effect immediately before the new requirement to have a PSA as provided for in section 25B(1) takes effect. In practical terms, this means that new PSAs will be introduced once the new ASPs are in place. Until such time as ASPs are agreed, existing PSAs will remain in force.

PART 7 - MISCELLANEOUS

Criminal Records etc

Clause 62: Renaming of Independent Barring Body

431.     This Clause amends provisions in the Safeguarding Vulnerable Groups Act 2006 (“SVGA”) to change the name of the Independent Barring Board (IBB) to the Independent Safeguarding Authority (ISA). The IBB was established under section 1 of the SVGA as a body corporate to consider the suitability of persons seeking to work with children or vulnerable adults, and empowered to bar from such work those considered unsuitable. Bars are based on an assessment by the Board of any possible risk of harm posed to children or vulnerable adults by persons working, or seeking to work, with these groups in either a paid or voluntary capacity.

432.     Clause 62 amends sections of the SVGA where references to the IBB appear in that Act, in order to change the name of the Board by substituting the name Independent Safeguarding Authority. It similarly amends references to the abbreviations “IBB” with “ISA”, and other enactments and documents in place prior to the passage of this Bill where references to the Independent Barring Board or “IBB” appear. The change applies to subordinate legislation as defined by the Interpretation Act 1978.

433.     The change applies to England, Wales and Northern Ireland and to any enactments of the Scottish Parliament and Northern Ireland legislation.

Clause 63: Educational establishments: check on members of governing body

434.     Clause 63 amends provisions in the SVGA. Its objectives are:

a)     to ensure that a person (“the appropriate officer”) who is required under section 13 of the SGVA to make a check on a member of a governing body (“governor”) of an educational establishment as defined in section 8(5) of the Act, does not commit an offence if the governor fails to consent to the check or fails to provide the appropriate officer with any information necessary to make the check; and

b)     to create a new criminal offence where a governor acts as a member of a governing body before consenting to the check or providing the appropriate officer with any information required to carry out the check.

435.     The appropriate officer is required under section 13 of the SGVA to make the check within a prescribed period. To achieve the first objective above, subsection (6) of the clause provides that the prescribed period must not start before the governor consents to the appropriate officer making the check and provides any information required to make the check.

436.     To achieve the second objective, subsection (2) of the clause provides that a governor commits an offence if he or she starts to act as a governor without first consenting to a check and providing the appropriate officer with any information required to make the check.

437.     Provisions in subsections (4) and (5) of the clause mirror the provision at sections 13(3) and (4) of the Act. Subsection 13(3) of the SGVA ensures that the appropriate officer does not commit an offence if he or she does not make a check on a governor where the governor was appointed before the commencement of section 13; subsection 13(4) of the Act allows the Secretary of State by order to set a date when the exception in subsection 13(3) comes to an end (known as “sunsetting”). These provisions relate to the Government’s announced policy of phasing in, over a few years, the Vetting and Barring Scheme’s requirements to register with the Independent Safeguarding Authority referred to as the Independent Barring Board or IBB in the Act.

Clause 64: Monitoring application

438.     Clause 64 amends provisions in section 24 of the SVGA relating to an application to become subject to monitoring. The Act provides at section 24(1) that an individual must make a monitoring application in order to become subject to monitoring (in effect register with the Vetting and Barring Scheme established by the Act). Section 24(10) currently provides that the “form and manner” of an application will be prescribed in regulations.

439.     The purpose of this amendment is to allow the Secretary of State to determine the form, manner and content of the application form. This will allow the Secretary of State to amend the application form without needing to use secondary legislation. This will allow improvements to be made to the application form quickly and efficiently.

Clause 65: Monitoring: additional fees

440.     This clause makes provision for the payment of a fee by persons who are subject to monitoring under the SVGA, and have benefited from a free application to the monitoring scheme as a volunteer, if they subsequently enter paid employment in activities regulated under the Act.

441.     Fees for applications for monitoring under the SVGA will be prescribed under powers set out in section 24. The fees will be based on cost-recovery for the scheme. It is intended that no fee will be prescribed for persons joining the scheme as unpaid volunteers. This clause makes a fee becomes payable when persons who have benefited from a free application (volunteers), undergo a change of circumstances which means that a fee would have been payable under section 24 (1)(d) (persons in paid regulated activity). This removes a loophole which would enable persons to apply solely as volunteers and avoid any fee when moving into paid activities.

442.     The clause provides a power to prescribe the change in circumstances (moving from unpaid to paid activity) and to set a fee for such persons. It also clarifies that an individual does not cease to be subject to monitoring under section 24, merely because the required fee has not been paid.

Clause 66: Vetting Information

443.     This clause amends section 30 of the SVGA.

444.     The clause changes the requirements arising from the declaration to be made by persons eligible to receive vetting information under section 30. Section 30 requires the Secretary of State to provide vetting information to certain categories of persons entitled to know the status of an individual under the Vetting and Barring Scheme established by the Act. This is information which indicates whether the individual is registered with the scheme (or “subject to monitoring” under section 24 of the Act). The persons entitled to see such information are employers, personnel suppliers, local authorities and certain other bodies set out in Schedule 7 to the 2006 Act.

445.     Section 30(2) of the 2006 Act currently requires a declaration to be made indicating within which of the “specified entries” in Schedule 7 of the Act the enquirer falls. The Government believes that this is no longer considered necessary. The amendment simplifies the declaration by removing the reference to a “specified entry” in Schedule 7, and substituting a requirement for the enquirer to indicate whether he is entitled to information relating to children, to vulnerable adults, or to both. The effect is to simplify the application procedure for those entitled to the information.

446.     Subsection (6) of the clause relates specifically to members of the governing body of an educational institution. Currently Section 30(5) aims to ensure that the appropriate officer can make an application under section 30 to receive vetting information in relation to any appointed governor without the need to obtain the consent of the governor. This provision will no longer be effective as under Clause 63, a governor must consent to a check being made under section 30 of the SVGA and must provide information enabling the appropriate officer to make such a check before the governor can legally act as a governor.

447.     New section 24A (clause 65) provides that persons who had been entitled to a free application because they were unpaid volunteers, upon taking part in paid activities should pay a prescribed fee. This clause amends the declaration by the person seeking the information under section 30 to require them to indicate whether the application relates to paid activities.

448.     It provides a specific power for the Secretary of State to refuse to provide information under section 30 unless the relevant fee under section 24A is paid, and clarifies the meaning of paid activity. The clause further provides that the Secretary of State can clarify areas of doubt as to when an activity should, or should not, be treated as paid.

Clause 67 Notification of cessation of monitoring

449.     Clause 67 amends section 32 of the SVGA, changing the requirements arising from the declaration to be made by persons eligible to receive information about the cessation of monitoring under section 32. Section 32 requires the Secretary of State to establish a register of persons entitled to be notified when an individual ceases to be monitored in accordance with provisions in section 24 of the SVGA, that is, persons who are “registered” with the Vetting and Barring Scheme established by that Act.

450.     The current provisions require the Secretary of State to provide such persons with information when an individual in whom they have registered an interest, ceases to be monitored under the SVGA. Persons entitled to this information are those registered under section 32, who must also fall within the categories of person set out in Schedule 7. This includes employers, personnel suppliers, local authorities and certain other bodies set out in Schedule 7.

451.     Section 32(3) currently requires a declaration to be made indicating within which of the “specified entries” in Schedule 7 the applicant for registration falls. Section 32(5) indicates that the application and registration apply to those specified entries.

452.     Subsections (1) to (4) of the clause simplify the declaration by removing the references to a “specified entry” in Schedule 7, and substituting requirements for the enquirer to indicate whether he is entitled to information relating to children, to vulnerable adults, or to both. The effect is to simplify the application procedure for those registering under section 32 and entitled to the information.

453.     Subsection (5) relates specifically to members of the governing body of an educational institution. Currently Section 32(8) aims to ensure that the appropriate officer can register in relation to any appointed governor without the need to obtain the consent of the governor. This provision will no longer be effective as under clause 63 a governor must consent to a check under section 30 of the SVGA before he or she can legally act as a governor. Under section 32(9) of the SVGA, consent given for the purposes of section 30 has effect as consent to an application by the appropriate officer to register in relation to the governor under section 32.

Clause 68: Criminal conviction certificates to be given to employers

454.     Currently, section 112 of Part V of the Police Act 1997 only provides for Basic Disclosures to be sent to applicants. It is envisaged that when the Basic Disclosure service is introduced by the CRB the majority of applications will be made for the purposes of employment. Therefore, clause 68 makes amendments to 112 so that where an application is made in connection with employment or voluntary work then the CRB must also send a copy of the Disclosure to the specific employer.

Clause 69: Certificates of criminal records etc: right to work information

455.     Clause 69 inserts a new section 113CD into the 1997 Act to provide for “right to work” information to be recorded on Basic, Standard and Enhanced Disclosures where a request for such information is made. This follows a request from the Home Secretary in early 2008 to explore the possibility of incorporating “right to work” checks within the CRB service following concerns about the employment of illegal workers in sectors required to obtain a CRB disclosure. Currently, CRB certificates are issued regardless of immigration status because it is not a specific requirement under Part V to consider this information.

456.     The amendments will enable an employer to be informed, should they request it, whether prospective or current employees have a “right to work” in the UK based on the UK Border Agency (UKBA) records. This will assist employers in avoiding the employment of illegal workers which under the current legislation makes an employer liable to pay a civil penalty of up to £10,000 per person if found to be employing someone illegally. This civil penalty regime was introduced in February 2008 and is set out under sections 15 and 22 of the Immigration, Asylum and Nationality Act 2006.

457.     This will be an optional service offered by the CRB and there will remain other ways for employers to satisfy themselves of an individual’s right to work status.

458.     Where a request for a “right to work” check is made, the certificate will state whether the applicant has a right to work or not and any conditions attached to the relevant status will also be disclosed where appropriate. If an individual’s right to work status cannot be determined from UKBA records employers will be provided with further information on how to identify whether the individual has a right to work.

459.     The intention is to charge a fee to recover the development and running costs of this service and this will be in addition to the fee paid for a Disclosure. Prior to any fee being introduced, a public consultation will be carried out.

Clause 70: Criminal conviction certificates: verification of identity

460.     Clause 70 will allow for other methods of identity verification to be prescribed under Section 118 of Part V of the Police Act 1997 when making an application for a certificate. The taking of fingerprints is already provided for under section 118 and any method prescribed under this clause is likely to be less intrusive than requiring fingerprints. Such requirements may include requiring evidence of identity (such as a passport, driving licence and current utility bills etc).

Clause 71: Registered persons

461.     Clause 71 will enable the CRB, when checking the suitability of individuals to be registered to countersign and receive Standard and Enhanced Disclosures in respect of applicants, to be checked against the new barred lists established under the Safeguarding Vulnerable Groups Act 2006. Such individuals are known as “Registered Persons” under the Police Act 1997. Although the Safeguarding Vulnerable Groups Act 2006 enables suitability information to be disclosed to employers, it does not amend the definition of suitability information the CRB itself should have regard to when assessing whether an individual should be registered. This was an oversight as the current provision enables checks to be undertaken against the old barring lists for this purpose.

Clause 72: Criminal Records - applications

462.     Part V of the Police Act 1997 sets out the scheme in which the Secretary of State, in the form of the “Criminal Records Bureau” (the “CRB”), must issue criminal conviction certificates (also known as Basic Disclosures) and criminal record certificates (known as Standard and Enhanced Disclosures). Clause 72 makes amendments to Part V so that the CRB may determine the “form, manner and contents” in which applications for such Disclosures are made.

463.     Currently regulations are required for any change to such applications and this provision will enable the CRB to determine administratively the way people apply, what applicants are required to disclose on the applications and how people sign and countersign them without having to make regulations each time. This will include providing for electronic or on-line applications.

464.     A similar amendment is being made for “monitoring” applications made under the “Safeguarding Vulnerable Groups Act 2006” because when the new Vetting and Barring Scheme is live many Enhanced Disclosure applications will be made jointly with applications for monitoring and the initial application will be made via the CRB.

Border controls

Clause 73 General information powers in relation to persons entering or leaving the UK

465.     This clause will amend the Customs and Excise Management Act (CEMA) 1979 by inserting new section 157A to enable an officer of Revenue and Customs to require a person entering or leaving the UK to produce their passport or travel documents and answer questions about their journey. Referring to the subsections of the new section 157A:

• Subsection (1) empowers officers to require the production of a person’s passport and travel documents and to ask questions about a person’s journey.

• Subsection (2) defines passport.

• Subsection (3) applies these powers at the final airport of destination in the UK for air transit passengers who first entered the UK at another airport.

• Subsection 4 defines a transit air passenger.

466.     Subsection 2 of this clause adds the new power to the list of powers contained in section 4(3) of the Finance (No. 2) Act 1992. This restricts the application of certain CEMA powers in relation to the movement of people or things between EU Member States.

Clause 74: Powers in relation to cash.

467.     Clause 74 deals with powers available to detect cash at the border. The aim of these clauses is the prevention of money laundering by means of movement of cash into and out of the UK.

468.     Subsection (1) inserts new section 164A into the Customs and Excise Management Act 1979 (CEMA). The new section clarifies some of the CEMA powers available to officers at the border to ask questions about, and to search for, cash that is recoverable property or is intended by any person for use in unlawful conduct (as defined at subsections 289(6) and (7) of the Proceeds of Crime Act 2002). The new section further ensures compliance with the Cash Control Regulation on controls of cash entering or leaving the Community (Regulation (EC) No. 1889/2005 of the European Parliament and of the Council).

469.     Subsection (2) amends section 4(2) of the Finance (No. 2) Act 1992 to make clear that the powers listed in section 4(3) of that Act apply to cash which is recoverable property or intended for use in unlawful conduct as well as to goods. Section 4 restricts the application of certain CEMA powers in relation to the movement of people or things between EU member States.

Clause 75: Lawful interception of postal items by Revenue and Customs

470.     Clause 75 clarifies the Regulation of Investigatory Powers Act (RIPA) 2000. The clause puts beyond doubt that the protection from interception afforded to postal communications in RIPA does not restrict Revenue and Customs powers to check international postal traffic for customs or excise purposes.

471.     The clause inserts a new subsection (3A) into section 3 of the Regulation of Investigatory Powers Act 2000 (RIPA). This makes it clear that checks on international postal traffic carried out under s159 of the Customs and Excise Management Act 1979 (as applied to postal traffic by the Postal Services Act 2000) are lawful interceptions for the purpose of RIPA.

472.     It also adds persons engaged by the Commissioners of HM Revenue and Customs to the list of persons in s17(3) of RIPA who may lawfully intercept communications and disclose the contents for the purpose of legal proceedings.