Aviation security
Section 78: Aviation security directions etc
246.Section 78 amends Part 2 of the ASA 1982 by inserting a number of new sections which confer various aviation security functions on the CAA. Section 78 also gives effect to Schedule 11 (aviation security directions etc: minor and consequential amendments).
247.Subsection (2) inserts new section 14A (review by CAA). The new section places a duty on the CAA to review aviation security directions that are currently in force and to make recommendations to the Secretary of State about those directions and about the giving of further directions. The Secretary of State may specify the form of the recommendations. Aviation security directions will continue to be given by the Secretary of State. The CAA’s role will be, for example, to prepare draft directions for the Secretary of State to consider and to prepare guidance on directions.
248.Subsection (3) inserts new section 16A (directions requiring national security vetting). Aviation security directions specify certain aviation security activities that can only be carried out by individuals who have been vetted. This new section places a duty on the CAA to make arrangements for carrying out that vetting, including arrangements for renewing and withdrawing clearance and arrangements for appeals. This new section enables the Secretary of State to give directions to the CAA in connection with the vetting arrangements, which the CAA must comply with. Subsection (5) of new section 16A confirms that this provision does not remove or limit any other power under which national security vetting is carried out.
249.Subsection (4) of section 78 inserts new section 23A (functions of CAA under this Part). New section 23A(1) places a duty on the CAA to carry out the functions conferred on it by or under Part 2 of the ASA 1982 with a view to achieving the purposes to which that Part applies. Part 2 of the ASA 1982 is broadly concerned with the protection of civil aviation against acts of violence: see section 10 of that Act. New section 23A(2) requires the CAA to consult the Secretary of State if it considers there to be a conflict between its duty under new section 23A(1) and its duty under section 4 of the CAA 1982, which, amongst other things, includes securing a high standard of safety. The CAA must resolve the conflict in the manner directed by the Secretary of State and, in so doing, is to be treated as being in compliance with new section 23A(1) and section 4 of the CAA 1982.
250.Subsection (5) of section 78 amends the definition of “authorised person” in section 24A(1) (interpretation of Part 2) of the ASA 1982 so that it can mean a person authorised in writing by the Secretary of State or the CAA. Authorised persons have the power to inspect aircraft and aerodromes and other connected powers as set out in Part 2 of the ASA 1982. This will mean that such persons will be able to be appointed by the CAA, as well as the Secretary of State.
251.Subsection (6) gives effect to Schedule 11.
Schedule 11: Aviation security directions etc: minor and consequential amendments
252.Schedule 11 contains amendments to Part 1 of the CAA 1982 and Part 2 of the ASA 1982.
253.Paragraph 2 amends section 11 of the CAA 1982 (charges by CAA) by inserting a new subsection (8) which provides that references in section 11 to functions of the CAA include functions conferred by or under Part 2 of the ASA 1982 on authorised persons (as defined in that Part) to the extent that the functions are carried out by persons authorised by the CAA. This enables the CAA to charge for the cost of authorised persons authorised by the CAA.
254.Paragraph 3 amends section 20 of the CAA 1982 (supplementary provisions with respect to functions of the CAA) by inserting a new subsection (5) which provides that references in section 20 to functions of the CAA include functions conferred by or under Part 2 of the ASA 1982 on authorised persons (as defined in that Part) to the extent that the functions are carried out by persons authorised by the CAA. This enables the CAA to have the power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of any of the functions of authorised persons authorised by the CAA.
255.Paragraph 6 amends section 11 of the ASA 1982 (power to require information) to provide that the Secretary of State and the CAA are a “relevant authority” for the purposes of section 11. These amendments enable the CAA, in addition to the Secretary of State, to require information be provided in connection with the exercise of its functions conferred by or under Part 2 of the ASA 1982.
256.Paragraph 8 amends section 11A of the ASA 1982 (designation of security restricted area) by inserting new subsection (4A) which requires the Secretary of State to consult the CAA before approving an application without modifications to designate a security restricted area. It also adds the CAA to the list of persons whom the Secretary of State must consult before approving an application with modifications and to whom the Secretary of State is required to give notice of any designation under section 11A.
257.Paragraph 12 inserts new section 17A (copies of directions etc for CAA) into the ASA 1982. New section 17A requires the Secretary of State to give the CAA a copy of each aviation security direction, each direction varying or revoking such a direction and each notification given by the Secretary of State, in relation to directions and notifications given on or after the coming into force of this paragraph.
258.Paragraph 13 deletes subsection (3) of section 18A (enforcement notices) of the ASA 1982 and inserts new subsections (4) and (5). These new subsections require, respectively, that where a person authorised by the Secretary of State serves an enforcement notice the Secretary of State must give a copy of the notice to the CAA, and where a person authorised by the CAA serves an enforcement notice the CAA must give the Secretary of State a copy.
259.Paragraph 14 amends section 18D of the ASA 1982 (objections to enforcement notices). Paragraph 14(2) inserts new subsection (3A). New subsection (3A) requires that, where an objection to an enforcement notice has been received, the Secretary of State must give a copy of the objection to the authorised person who served the enforcement notice and the CAA, consider the objection and allow the objector and the authorised person an opportunity to make written or oral representations to the Secretary of State or a person appointed by the Secretary of State. It also requires the Secretary of State to give a decision notice (defined by section 18D(4), as amended by paragraph 14(3)) to the person who made the objection and to give a copy of the decision notice to the authorised person who served the enforcement notice and the CAA.
260.Paragraph 15 amends section 20B of the ASA 1982 (detention directions). Paragraph 15(2) inserts new subsections (2A) and (2B). These subsections require, respectively, that where a person authorised by the Secretary of State gives a detention direction the Secretary of State must give the CAA a copy and where a person authorised by the CAA gives a detention direction, the CAA must give the Secretary of State a copy. Paragraph 15(3)(a) inserts new paragraph (za) into subsection (5) which requires the Secretary of State to give a copy of an objection to a detention direction to the authorised person who gave the direction and the CAA. Paragraph 15(3)(d) adds new paragraph (e) to subsection (5) of section 20B which requires the Secretary of State to give a copy of the notice of the Secretary of State’s decision to the authorised person who gave the direction and the CAA.
261.Paragraph 16 amends subsection (7) of section 21 (application of provisions to air navigation installations) by inserting references to new sections 14A, 16A and 17A of the ASA 1982 to ensure that references to directions in these sections are construed as including references to directions that may be given in respect of air navigation installations.
262.Paragraph 17 amends subsections (1) and (2) of section 21G (duty to report certain occurrences). The amendments provide that regulations made under that section may require reports of certain occurrences to be made to the Secretary of State or the CAA. They also add the CAA to the list of persons to be consulted by the Secretary of State before making regulations requiring persons to report certain occurrences.
263.Part 3 of the RESA 2008” (civil sanctions) allows for civil sanctions to be applied to the offences in Part 2 of the ASA 1982. Paragraph 18 provides that offences under section 11 of the ASA 1982 (power to require information) as amended by this Schedule are to be treated as if they had been in force immediately before the day on which the RESA 2008” was passed, and are therefore to be capable of being dealt with by way of civil sanctions as provided for by Part 3 of that Act.
Section 79: Approved providers of aviation security services
264.Section 79 makes a number of amendments to section 20A of the ASA 1982 (aviation security services: approved providers). Section 20A confers a power enabling the Secretary of State to make regulations about approved providers of aviation security services. Subsection (2) of section 79 amends section 20A(2) so as to enable the regulations made under that section to provide for the CAA, rather than the Secretary of State, to maintain a list of persons who are approved by it for the provision of a particular aviation security service.
265.Subsection (3) of section 79 amends section 20A(3) so as to enable regulations made under section 20A to provide for approval to be given, and persons to be listed in respect of the provision of a service, either generally or only at a particular location; to make provision about factors to be taken into account when deciding whether to grant an application; to make provision for employees of listed persons to be treated as listed in respect of the provision of that service generally or at that location (as appropriate) in specified circumstances; and other conditions applying to a listing.
266.Subsection (4) inserts new subsection (3A) into section 20A, which provides that regulations must include provision for appeals against the refusal of applications for inclusion in a list and against removal from a list, and, where appropriate, for appeals against conditions.
267.Subsection (5) inserts new subsection (5A), which defines “listed person”, in relation to an aviation security service, as meaning a person who is listed in respect of the provision of that service generally or at the relevant location.
Section 80: Advice and assistance in connection with aviation security
268.Section 80 inserts new sections 21H (provision of advice and assistance to Secretary of State) and 21I (provision of advice and assistance to other persons). Subsection (1) of new section 21H places a duty on the CAA to provide such advice and assistance to the Secretary of State as the Secretary of State requires in connection with matters relevant to the purposes of Part 2 of the ASA 1982 (the protection of civil aviation against acts of violence). Subsection (2) of new section 21H provides that a requirement to provide such advice and assistance may be a continuing requirement on the CAA. Subsection (3) makes clear that nothing in new section 21H affects the general provision made by section 16 of the CAA 1982.
269.New section 21I places a duty on the CAA to provide such advice and assistance to the persons listed in subsection (3) of that section (for example, managers of UK aerodromes and operators of aircraft registered or operating in the UK) as the CAA considers appropriate having regard to the purposes to which Part 2 of the ASA 1982 applies. Subsection (4) of new section 21I ensures that the Secretary of State retains the power to provide advice and assistance to the persons listed in subsection (3) of the new section, having regard to the purposes to which Part 2 of the ASA 1982 applies and any advice and assistance provided to those persons by the CAA.
Section 81: Power to modify functions of CAA etc relating to aviation security
270.Section 81 inserts new section 21J into the ASA 1982 (power to modify functions of CAA etc relating to aviation security). The new section enables the Secretary of State to modify, by regulations, the aviation security functions of the CAA and the functions of authorised persons who are authorised by the CAA. This new section provides that before making any such regulations, the Secretary of State must consult the CAA.
Section 82: Transfer schemes
271.Section 82 enables the Secretary of State to make one or more schemes to transfer to the CAA rights, powers, duties and liabilities of the Crown in connection with individuals employed in the civil service of the Crown and other property, rights and liabilities of the Crown.
272.It provides that a scheme may transfer only such property, rights, powers, duties and liabilities as the Secretary of State considers appropriate having regard to the functions conferred on the CAA by or under Part 2 of the ASA 1982, as amended by this Act, and the functions of persons authorised by the CAA for the purposes of Part 2 of the ASA 1982, as amended by this Act.
273.Subsection (3) requires the Secretary of State to consult the CAA before making a transfer scheme.
274.Subsection (4) gives effect to Schedule 12 which makes further provision about transfer schemes, made under section 82.
Schedule 12: Aviation security: further provision about transfer schemes
275.Paragraph 1 provides that a transfer scheme may make provision for the transfer of property, rights and liabilities that would not otherwise be capable of transfer.
276.It provides that a transfer scheme may create rights or impose liabilities over property transferred by the scheme, create new rights and liabilities as between the Crown and the CAA and apportion property, rights and liabilities between the Crown and the CAA.
277.Sub-paragraph (3) allows a transfer scheme to include consequential, incidental, supplementary, transitional, transitory and saving provision.
278.Paragraph 2 makes provision in relation to rights, powers, duties and liabilities relating to an individual’s contract of employment where they are transferred by means of a transfer scheme. It provides that the continuity of the individual’s employment is not broken by the transfer of employment under a transfer scheme. The contract of employment will continue as if it had been made between the individual and the CAA, and the individual will not be regarded as having been dismissed by reason of redundancy because of the transfer.
279.Paragraph 3 sets out what happens if an individual objects to the transfer of their employment contract under a transfer scheme before it takes effect. The contract of employment will be terminated immediately before the point at which the transfer would have taken place but the employee is not to be considered to have been dismissed for any purpose. Sub-paragraph (5) preserves an individual’s right to terminate their contract of employment where there is a substantial detrimental change in the individual’s working conditions, other than the change of employer.
280.Paragraph 4 provides that a transfer scheme may include provision with respect to the individual’s eligibility to become a member of a pension scheme by virtue of employment with the CAA. The transfer scheme may include provision with respect to the rights of, or rights or liabilities in respect of, the individual under a pension scheme of which the individual may become a member by virtue of employment with the CAA, or a pension scheme of which the individual is a member by virtue of employment immediately before the transfer.
281.Paragraph 5 modifies the provisions of Schedule 12 as they apply to employment in the civil service of the Crown other than under a contract of employment. Where an individual holds such employment, the individual is deemed to be employed under a contract of employment on the terms of employment in the civil service of the Crown and reference to dismissal in paragraph 3 of the Schedule is deemed to be a reference to termination of employment in the civil service of the Crown.
282.Paragraph 6 provides that a certificate issued by the Secretary of State that any property, rights, powers, duties or liabilities have been transferred to the CAA under a transfer scheme is to be taken as conclusive evidence of that fact. The certificate is evidence that a transfer has taken place.
283.Paragraph 7 ensures that anything done by the Crown before the time of transfer is still valid after transfer.
284.Paragraph 8 ensures that things done by or in relation to the Crown with respect to anything transferred under a transfer scheme are to be treated as though they had been done by or in relation to the CAA or its members or employees, or continued by or in relation to the CAA or its members or employees. Sub-paragraph (2) provides that a transfer scheme may, in particular, make provision about the continuation of legal proceedings and for references to the Crown in documents to be treated as references to the CAA.
