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Protection of Freedoms Bill


Protection of Freedoms Bill
Part 4 — Counter-terrorism powers

42

 

43E     

Alteration or replacement of code

(1)   

The Secretary of State—

(a)   

must keep the search powers code under review, and

(b)   

may prepare an alteration to the code or a replacement code.

(2)   

Before preparing an alteration or a replacement code, the Secretary of

5

State must consult the Lord Advocate and such other persons as the

Secretary of State considers appropriate.

(3)   

Section 43D (other than subsection (4)) applies to an alteration or a

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

prepared under section 43C.

10

(4)   

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

issued under section 43D(2) (as altered or replaced from time to time).

43F     

Publication of code

(1)   

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

code) issued under section 43D(2).

15

(2)   

The Secretary of State must publish—

(a)   

any alteration issued under section 43D(2), or

(b)   

the code or replacement code as altered by it.

43G     

Effect of code

(1)   

A constable must have regard to the search powers code when

20

exercising any powers to which the code relates.

(2)   

A failure on the part of a constable to act in accordance with any

provision of the search powers code does not of itself make that person

liable to criminal or civil proceedings.

(3)   

The search powers code is admissible in evidence in any such

25

proceedings.

(4)   

A court or tribunal may, in particular, take into account a failure by a

constable to have regard to the search powers code in determining a

question in any such proceedings.

(5)   

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

30

functions exercisable by a person by virtue of paragraph 15 of Schedule

4 to the Police Reform Act 2002 or paragraph 16 of Schedule 2A to the

Police (Northern Ireland) Act 2003 (search powers in specified areas or

places for community support officers), references to that person.

(6)   

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

35

issued under section 43D(2) (as altered or replaced from time to time).”

Stop and search powers: Northern Ireland

62      

Stop and search powers in relation to Northern Ireland

Schedule 6 (which makes amendments relating to stop and search powers in

Northern Ireland) has effect.

40

 
 

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups

43

 

Part 5

Safeguarding vulnerable groups, criminal records etc.

Chapter 1

Safeguarding of vulnerable groups

Restrictions on scope of regulation

5

63      

Restriction of scope of regulated activities: children

(1)   

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

(regulated activity relating to children and the period condition) are amended

as follows.

(2)   

In paragraph 1(1)(b) (frequency and period condition for regulated activity), at

10

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

paragraph (1A),”.

(3)   

After paragraph 1(1) insert—

   “(1A)  

The following activities fall within this sub-paragraph—

(a)   

relevant personal care, and

15

(b)   

health care provided by, or under the direction or

supervision of, a health care professional.

     (1B)  

In this Part of this Schedule “relevant personal care” means—

(a)   

physical assistance given to a child in connection with—

(i)   

eating or drinking (other than the administration of

20

parenteral nutrition) where the assistance is given for

reasons other than age,

(ii)   

the administration of parenteral nutrition,

(iii)   

toileting (including in relation to the process of

menstruation),

25

(iv)   

washing or bathing, or

(v)   

dressing,

(b)   

the prompting, together with supervision, of a child (for

reasons other than age) in relation to eating or drinking

(other than the administration of parenteral nutrition) where

30

the child is unable to make a decision in relation to

performing such an activity without such prompting and

supervision, or

(c)   

the prompting, together with supervision, of a child in

relation to the performance of any of the activities listed in

35

paragraph (a)(ii) to (v) where the child is unable to make a

decision in relation to performing such an activity without

such prompting and supervision.

     (1C)  

In this Part of this Schedule —

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

40

children, whether relating to physical or mental health and

also includes palliative care for children and procedures that

 
 

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups

44

 

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 25(3)

of the National Health Service Reform and Health Care

5

Professions Act 2002.”

(4)   

In paragraph 1(2)(c) (work activities at certain establishments to be regulated

activity) for “any form of work (whether or not for gain)” substitute “any work

falling within sub-paragraph (2A) or (2B)”.

(5)   

After paragraph 1(2) insert—

10

   “(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)   

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

15

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)   

is carried out on a temporary or occasional basis, and

20

(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 day

to day supervision of another person who is engaging in

regulated activity relating to children”.

25

(6)   

Also in paragraph 1—

(a)   

in sub-paragraph (7) (meaning of “acting as a child minder”) for

“section 79A of that Act” substitute “section 19 of the Children and

Families (Wales) Measure 2010”,

(b)   

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

30

regulated activity),

(c)   

in sub-paragraph (9) (exercise of functions of persons mentioned in

paragraph 4(1) to be regulated activity) for “a person mentioned in

paragraph 4(1)” substitute “the Children’s Commissioner for Wales or

the deputy Children’s Commissioner for Wales”,

35

(d)   

in sub-paragraph (9B) (exercise of certain inspection etc. functions to be

regulated activity)—

(i)   

omit paragraph (a),

(ii)   

in paragraph (b) for “section 79U(3) of the Children Act 1989”

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

40

Measure 2010”,

(iii)   

in paragraph (c) after “taken” insert “in relation to Wales” and

for “that Act” substitute “the Children Act 1989”,

(iv)   

in paragraph (d) after “inspection”, where it first appears, insert

“in Wales”,

45

(v)   

in paragraph (e) after “taken” insert “in relation to Wales”,

(vi)   

in paragraph (f) omit “18B or”,

(vii)   

in paragraph (h), after “inspection”, where it first appears, insert

“in Wales”,

 
 

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups

45

 

(viii)   

in paragraph (m) omit “48 or”,

(ix)   

in paragraph (n) after “inspection” insert “in Wales”, and

(x)   

omit paragraphs (p) to (t),

(e)   

in sub-paragraph (10) (inspectors) omit paragraphs (a), (ba), (d) and (e),

(f)   

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

5

activity),

(g)   

omit sub-paragraph (13A) (exercise of certain functions of Care Quality

Commission to be regulated activity),

(h)   

in sub-paragraph (14) (day to day management or supervision of a

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

10

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

(i)   

after sub-paragraph (14) insert—

   “(15)  

Any activity which consists in or involves on a regular basis

the day to day management or supervision of a person who

would be carrying out an activity mentioned in sub-

15

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

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

(2B)(b) is a regulated activity relating to children.”

(7)   

In paragraph 2 (activities referred to in paragraph 1(1))—

(a)   

in sub-paragraph (1) omit paragraph (d) (treatment and therapy

20

provided for a child),

(b)   

in sub-paragraph (2)—

(i)   

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

(ii)   

omit paragraph (d), and

(c)   

after sub-paragraph (3) insert—

25

   “(3A)  

Sub-paragraph (1)(a) does not include any form of teaching,

training or instruction of children which is, on a regular basis,

subject to the day to day supervision of another person who

is engaging in regulated activity relating to children.

     (3B)  

Sub-paragraph (1)(b)—

30

(a)   

does not include any health care provided otherwise

than by (or under the direction or supervision of) a

health care professional, and

(b)   

does not, except in the case of relevant personal care

or of health care provided by (or under the direction

35

or supervision of) a health care professional, include

any form of care for or supervision of children which

is, on a regular basis, subject to the day to day

supervision of another person who is engaging in

regulated activity relating to children.

40

     (3C)  

Sub-paragraph (1)(c) does not include any legal advice.”

(8)   

In paragraph 3(1) (list of establishments referred to in paragraph 1(2) and (9C))

omit paragraph (c).

(9)   

Omit paragraph 4 (list of persons referred to in paragraph 1(9)).

(10)   

Before paragraph 6 (exceptions), and after the italic cross-heading before it,

45

 
 

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups

46

 

insert—

“5A   (1)  

Subject as follows, an activity is not a regulated activity relating to

children if it is an activity which—

(a)   

relates to a child who has attained the age of 16 but not 18,

and

5

(b)   

is not—

(i)   

relevant personal care, or

(ii)   

health care provided by, or under the direction or

supervision of, a health care professional.

      (2)  

Sub-paragraph (1) does not apply in relation to an activity which—

10

(a)   

relates to a child who has attained the age of 16 but not 18,

(b)   

would otherwise be a regulated activity relating to children

by virtue of paragraph 1(1) or (2), and

(c)   

is carried out in an establishment mentioned in paragraph

3(1)(e) or (f).

15

      (3)  

Sub-paragraph (1) does not apply in relation to an activity which—

(a)   

relates to a child who has attained the age of 16 but not 18,

and

(b)   

would otherwise be a regulated activity relating to children

by virtue of paragraph 1(5).

20

      (4)  

Sub-paragraph (1) does not apply in relation to any activity of a

prescribed description.”

(11)   

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

64      

Restriction of definition of vulnerable adults

(1)   

Omit section 59 of the Safeguarding Vulnerable Groups Act 2006 (definition of

25

vulnerable adults).

(2)   

In section 60(1) of that Act (interpretation of Act)—

(a)   

after “In this Act—” insert—

““adult” means a person who has attained the age of 18;”,

and

30

(b)   

in the definition of “vulnerable adult”, for the words “must be

construed in accordance with section 59” substitute “means any adult

to whom an activity falling within any paragraph of paragraph 7(1) of

Schedule 4 is provided”.

65      

Restriction of scope of regulated activities: vulnerable adults

35

(1)   

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

(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—

40

    “(1)  

Each of the following is a regulated activity relating to vulnerable

adults—

 
 

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups

47

 

(a)   

the provision to an adult of health care by, or under the

direction or supervision of, a health care professional,

(b)   

the provision to an adult of relevant personal care,

(c)   

the provision by a social care worker of relevant social work

or community care services to an adult who is a client or

5

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)   

the provision to an adult who is in need of them by reason of

10

age, illness or disability of any services for the purpose of

enabling the adult to live, or continue to live, in

accommodation independently,

(f)   

any relevant assistance in the conduct of an adult’s own

affairs,

15

(g)   

any form of training, teaching or instruction which relates to

an adult’s health, care or financial affairs and is provided to

an adult who needs it by reason of age, illness or disability,

(h)   

any form of assistance, advice or guidance which relates to an

adult’s health or care and is provided to an adult who needs

20

it by reason of age, illness or disability,

(i)   

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,

(j)   

such activities—

25

(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)  

Health care includes all forms of health care provided for

30

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)  

A health care professional is a person who is a member of a

35

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

National Health Service Reform and Health Care Professions Act

2002.

     (3A)  

Relevant personal care means—

(a)   

physical assistance, given to a person who is in need of it by

40

reason of age, illness or disability, in connection with—

(i)   

eating or drinking (including the administration of

parenteral nutrition),

(ii)   

toileting (including in relation to the process of

menstruation),

45

(iii)   

washing 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), or

50

 
 

Protection of Freedoms Bill
Part 5 — Safeguarding vulnerable groups, criminal records etc.
Chapter 1 — Safeguarding of vulnerable groups

48

 

(b)   

the 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 such prompting and

5

supervision.

     (3B)  

Relevant social work has the meaning given by section 55(4) of the

Care Standards Act 2000 and social care worker means a person who

is a social care worker by virtue of section 55(2)(a) of that Act.

     (3C)  

Community care services has the meaning given by section 46(3) of

10

the National Health Service and Community Care Act 1990.

     (3D)  

Assistance in relation to general household matters is day to day

assistance in relation to the management of cash, the paying of bills,

shopping and other financial matters on behalf of the person

concerned.

15

     (3E)  

Relevant assistance in the conduct of a person’s own affairs is

anything done on behalf of the person by virtue of—

(a)   

a lasting power of attorney created in respect of the person in

accordance with section 9 of the Mental Capacity Act 2005,

(b)   

an enduring power of attorney (within the meaning of

20

Schedule 4 to that Act) in respect of the person which is—

(i)   

registered in accordance with that Schedule, or

(ii)   

the subject of an application to be so registered,

(c)   

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

Protection in relation to the making of decisions on the

25

person’s behalf,

(d)   

the appointment of an independent mental health advocate

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

advocate in respect of the person in pursuance of

arrangements under section 130A of the Mental Health Act

30

1983 or section 35 of the Mental Capacity Act 2005, or

(e)   

the provision of independent advocacy services (within the

meaning of section 248 of the National Health Service Act

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

2006) in respect of the person.”

35

(3)   

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

(4)   

In paragraph 7(5) (day to day management or supervision of certain activities

to be regulated activity) omit “or (4)”.

(5)   

In paragraph 7(7)(f) (inspection functions) omit “English local authority social

services or”.

40

(6)   

Omit paragraph 7(8A) (certain functions of Care Quality Commission to be

regulated activity).

(7)   

In paragraph 7(9) (functions of certain persons to be regulated activity) for “a

person mentioned in paragraph 8(1)” substitute “the Commissioner for older

people in Wales or the deputy Commissioner for older people in Wales”.

45

(8)   

Omit paragraph 8 (the persons referred to in paragraph 7(9) whose functions

are to be regulated activity).

 
 

 
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Revised 11 February 2011