Clause 60

Policing and Crime Bill – in a Public Bill Committee at 5:15 pm on 24th February 2009.

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Security planning for airports

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

I beg to move amendment 292, in clause 60, page 74, line 26, after ‘officer’, insert

‘or a chief officer of another police force who has lead responsibility for security or serious and organised operations under any police force collaboration agreement relating to the area in which the aerodrome is situated’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following: amendment 293, in clause 60, page 76, line 26, at end insert

‘or a chief officer of another police force who has lead responsibility for security or serious and organised operations under any police force collaboration agreement relating to the area in which the aerodrome is situated’.

Amendment 291, in clause 60, page 78, line 3, leave out from ‘who’ to first ‘the’ in line 4 and insert ‘represents’.

Government amendment 299.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

Welcome back from Namibia, Sir Nicholas. It is a pleasure to see you looking so refreshed and chairing the Committee with your usual verve, and indeed with even more verve after your recuperatory recess break.

Clause 60 and the clauses that follow relating to aviation security are important, but they are not without controversy, for reasons I will move on to in a moment. Clause 60 provides for the establishment, crucially, of a risk advisory group and a security executive group at aerodromes. Risk advisory groups will be required to produce a comprehensive risk report at the outset that will include analysis of risks to the aerodrome and make recommendations regarding the actions necessary to mitigate such risks. The membership of that RAG will include a representative of the aerodrome manager and a representative of the chief officer of police in that area as a minimum, and the manager of the aerodrome will have discretion to appoint such additional members as he considers necessary.

A risk report will be put together by that group, which will then be considered by a security executive group. The SEG is a different body in the sense that it has a different membership. It will make judgments on the security measures to be taken for the aerodrome and decide which party should be responsible for executing that security measure. Those decisions will form the content of the aerodrome security plan—ASP—which will formally document the security measures to be taken. The SEG’s membership is different from that of the RAG and will include, as a minimum, a representative of the aerodrome manager, representatives of the chief officer of police and the police authority of the relevant area and representatives of airlines operating at the airport—such people are not within the RAG.

On the face of it, clause 60 looks a little bureaucratic. Why do we need two groups, often with overlapping membership? My understanding is that the Minister, in  drafting this, thought that there might be a conflict of interest in a body that on the one hand analyses risk and on the other hand has to pay for the measures that mitigate that risk. I assume that the reason for having two groups rather than one—the Minister may correct me if I am wrong—is that the risk analysis cannot be short-changed by the people making the decisions downgrading the risk because they do not want to pay for it. If my understanding is correct, those two groups are separate for that reason.

Photo of Jim Fitzpatrick Jim Fitzpatrick Parliamentary Under-Secretary (Department for Transport)

May I simplify the situation, at the invitation of the hon. Gentleman? The reason for the two groups is very much as he has described it. Previously, we often saw analysis and the design of a plan that was not put into action. The two separate groups have separate responsibilities: one designs the plan and the other implements it. In that instance, there is clear responsibility attributed to each.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

That was my understanding, and it is an important point to make, because members of the industry believe that it is overly bureaucratic. I can see the rationale, and the Minister has described it.

It is also important that a plan may specify that security stakeholders make payments to other security stakeholders in connection with the delivery of the plan, mitigating the risks that have been identified. That makes it a controversial clause. As most people do, I always follow the money. If one does that, one always discovers that people are sometimes loth to cough up, so there are issues that need to be teased out.

The explanatory notes on proposed new section 24AE(5) state:

“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 police’s delivery of a security measure. However, the expectation is that details of such payments will be contained within a Police Services Agreement (PSA).”

That is another agreement to which we will have to be advertent, which, the notes explain,

“is an agreement made between an aerodrome manager, the Chief Officer of police and a representative of the police authority for the relevant area”.

The agreement will include the level of policing provided at the aerodrome; any payments to be made by the aerodrome’s manager; any accommodation facilities to be provided by the manager and so on.

I have already indicated that the measures are controversial. When the aviation security provisions were aired back in spring 2008, I think that it was suggested that they would be part of a transport security Bill. At that time, the Airport Operators Association’s chief executive warned that the Government should not expect a blank cheque from business when many regional airports and low-cost airlines were struggling with the economic downturn and higher fuel prices. That has been a recurrent theme in all the representations made to members of the Committee—certainly on our side—prior to our sittings.

The Sheffield Telegraph reported previous difficulties between South Yorkshire police and Robin Hood airport, where the airport

“will be forced to foot the bill for its policing under a new law proposed by the Government.”

The proposed changes are, in effect, the substance of the clause under discussion, and the Yorkshire Evening Post labelled them—I am not saying that I agree with this language—“a terror tax”. It reported:

Leeds Bradford Airport will be slapped with a multi-million pound ‘terror tax’ under a new law proposed by the Government.

Legislation unveiled in yesterday’s Queen's Speech will see the airport forced to pay West Yorkshire Police for its growing policing costs.

The new law will transfer responsibility for ‘threat and risk analysis’ at regional airports—and for picking up the bill—from the local police force to the airport operator.”

I will not continue in such a critical vein, but that gives a sense of the debate taking place outside the Committee. It is a familiar debate and one expects such a set of arguments from aerodrome managers and airline operators who are worried about the transfer of cost.

In a comprehensive and balanced briefing to the Committee, Manchester Airports Group indicated three chief concerns with the proposals. One is cost, the second is value for money, and the third is the balance of strength in any ensuing negotiations between the two groups covered by the clause, namely airports and local police services.

On cost, under the current regime there are designated airports, such as that in Manchester, that already face a significant policing bill, first through business rates and secondly through direct payments to the police authority. MAG estimates that £9 million is paid to Greater Manchester police in policing costs, and a further £13 million in business rates. MAG argues that consideration should be given to the amount that airports currently cough up for policing costs at aerodromes, with business rates being an obvious example.

On value for money, MAG makes a crucial point, which is reflected in the amendments tabled by my hon. Friend the Member for Hornchurch and me. It says:

“The police do not provide an adequate breakdown of how the funding is spent, nor do they fully justify the levels of policing needed.”

That is a reference to the current regime. But following the logic of the alleged lack of transparency on the part of police forces who are currently providing policing services, the argument would seem equally valid to the new regime in the absence of assurances from the Minister and any changes to the clause. In short, the allegation is that there is a lack of transparency and accountability in current legislation, which is arguably not addressed in the Bill.

The third point that Manchester Airports Group makes is on the negotiating position of the police, which is strong vis-Ã -vis the airports, and it also relates to the second point about value for money. It states:

“When the figures are challenged by airports, the police can always cite ‘security reasons’ or ‘ACPO guidelines’ as being the rationale behind their demands, without having to fully explain or justify these.”

Before I come to the amendments, I should like to refer to one other important point raised by the Airport Operators Association. It challenges the suggestion that sometimes comes from the Government that a parallel should operate—an argument by analogy, as it were—between the policing of private property, such as a football stadium during football matches, where charges  are levied on the football club or its owners to pay for policing costs on a Saturday afternoon, and the policing of airports. The suggestion is that the airports should pay just as readily as a football club for consuming policing services.

The Airport Operators Association take issue with that:

“Airports are different. Larger ones in particular are often referred to as ‘iconic targets’ and Chief Constables, who have a legal accountability for policing in their constabulary area, often have strong views about how airports should be policed.”

The idea that airports are different in kind from football stadiums seems a very good one. The concern expressed by the Airport Operators Association is shared by, among others, Virgin Atlantic, which makes a similar point.

I turn now to amendments 292, 293 and 291. Amendment 292 relates to RAGs, which include the chief officer of the relevant force. It makes it clear that it might also be the lead officer in any collaboration agreement that is delivering policing services to an airport. We had many debates on collaboration agreements under clause 5. There will be situations where there will be level 2 and level 3 crime, which is what aviation security is all about. Policing services might not be delivered by the police authority in whose boundary the aerodrome is situated. To take an example, Greater Manchester police deliver the services in the case of Manchester airport, which may be near your fine residence, Sir Nicholas.

Under a future Government after the Bill has come into force there might be a collaboration agreement right across the north-west for delivering airport aviation security services. It might be, for the sake of argument, that the Greater Manchester police is not the lead force. The chief constable who is responsible for making the decisions, who would be on the RAG under this clause, might be a chief constable in a neighbouring area. Amendment 292 endeavours to say that the RAG should also include a chief officer of another force who has lead responsibility for security or serious organised operations under any collaboration agreement that might be enforced.

In short, that amendment is a technical one for the avoidance of doubt—it does not challenge the principle of the clause. It is a belt-and-braces suggestion because a lead force collaboration chief officer would not be within the ambit of this clause. It is probing and I am sure the Minister will want to reflect on whether I am right. I drafted it rather late as it sprang out at me as I was drinking my late-night cocoa reading the Bill, as one does. I am interested in the Minister’s comments as to whether that is covered. The same argument relates to amendment 293—it is the same point.

Amendment 291 relates to a different issue, the SEG. At the moment the drafting says:

“The manager of the aerodrome must nominate as a member of the group an individual who appears to the manager to represent the interests of the operators”.

It struck me reading this late at night to ask on what basis the manager can nominate an individual who “appears” to him to represent the interests of the operator. My amendment seeks to say “represents” the interests of the operator. Why is it “appears” to represent? The drafting is a bit loose and could lead to confusion. It should be perfectly clear who the operators wish to have  as the individual nominated to represent them. I was completely mystified. I do not think the current drafting adds anything. Why can it not be cleaner with a straightforward “represents”? It is on that basis of a technical probing amendment that I will terminate my remarks.

Photo of Jim Fitzpatrick Jim Fitzpatrick Parliamentary Under-Secretary (Department for Transport) 5:30 pm, 24th February 2009

I welcome you back to the Committee, Sir Nicholas. It is good to hear you in better voice than when we broke and it is nice to see that you have recovered.

I am also pleased to make my contribution on aviation security and offer brief respite to my ministerial colleagues from the scrutiny they have been receiving from all parts of the House.

In discussing amendments 292 and 293, I will try to explain the background as the hon. Member for Bury St. Edmunds has invited me to and then reinforce some points in response to issues he has raised and, I hope, reassure him as to the drafting of the Bill. These amendments seek to amend the provisions in such a way as to allow chief officers of forces other than the local airport police force to play a role in the delivery of airport security. Amendment 291 seeks to amend the provisions relating to the representation of airlines on security executive groups, as questioned by the hon. Gentleman.

I will turn first to amendments 292 and 293. The proposed revisions to new sections 24AB and 24AE in clause 60 seek to enable the chief officer of another police force who, working in collaboration with the local police force, has lead responsibility for the security of the airport to be represented on the risk assessment group and to be responsible for delivering security measures in the airport security plan. We understand that the intention behind the amendment is essentially to allow airports to put out a contract for dedicated policing services to competitive tender, attracting bids from forces around the country. Although we agree that the requirements should provide sufficient flexibility to allow local decisions to be made about who can most effectively deliver security measures, we do not consider that that should extend to allowing any police force to deliver those measures.

There is an important security point to consider here. Whether one is thinking of airport policing in terms of terrorism, serious and organised crime or simply low-level crime, local community intelligence is key to delivering effective policing. Creating a situation in which one force polices the local community, while another polices the airport runs the risk of disrupting the policing links between airport and community, and that is not something that we consider advisable. In any event, at a practical level there are real issues with the concept of competitive tendering for airport policing. The chief officer of police is responsible for policing within that force area, and any policing undertaken by representatives of another force could take place only with his or her consent. Whether such consent is issued would be a matter for the chief officer of police concerned and there is no guarantee that such consent would be provided.

Ruling out competitive tendering for airport policing does not mean, however, that we are placing airport operators in a position where they cannot negotiate effective and efficient ways of meeting their security obligations. The provisions in the Bill do not allow the  police simply to impose the terms of airport security plans and police services agreements upon an unsuspecting and vulnerable operator—not that I have met such an animal. We expect stakeholders to think creatively about efficient and effective ways of delivering security. Dedicated policing is only one way to mitigate a threat. Employing an alternative approach may of course be entirely acceptable. Ultimately, if a matter came to dispute, the Secretary of State would issue a determination, based on the evidence presented, on the most effective way to mitigate the threat. At times, that may mean policing and at other times it may mean alternative measures.

The Government agree with the concern behind amendment 291, namely that subjectivity might result in airlines not being fairly represented on the security executive group. In circumstances in which there is disagreement about who is best placed to represent airlines on the SEG, the airport manager may use his general power of appointment in proposed new section 24AG(5) to appoint more than one airline representative to the group. The airport manager is required to act reasonably in his use of powers of appointment, so, where there is clearly an airline interest that is not being adequately represented at SEG level, the airport manager would be obliged to make any necessary appointment. In any event, in circumstances in which there was any doubt about whether an airline was being adequately represented, it would also be open to the Secretary of State to consider making his own nomination.

In light of that, there is little to be achieved from the airport manager being compelled to go through a formal exercise to establish who is best placed to be appointed first. That could generate a great deal of work for the manager, as well as an unnecessary liability burden on the aerodrome manager to prove that the airline appointee truly speaks for all airlines at the airport. If it is unclear, the aerodrome manager will simply appoint an additional airline representative. The aviation industry has, rightly, pressed strongly for the process not to create any unnecessary bureaucratic burden and we are keen that any such burden should be avoided wherever possible.

Government amendment 299 is a minor amendment that will ensure that provisions relating to the Secretary of State’s power to appoint observers to the SEG are consistent with the Secretary of State’s other powers of appointment contained within clause 60. The amendment will ensure that express provision is made to permit the Secretary of State to revoke his nomination of observers to the SEG.

On the points that the hon. Member for Bury St. Edmunds made, it takes 15 months to do an assessment, for the SEG to prepare the airport security plan and for the police services agreement to be put in place. At the quickest, it would be at least 15 months after the Bill is enacted before airports begin to put their arrangements in place, which gives them time to plan. On value for money and a breakdown of costs, we fully agree that there must be transparency, so we would expect clear invoices and clarity in the PSA before payment. The hon. Gentleman correctly draws attention to the fact that that does not exist currently.

Parts of the critical national infrastructure, primarily power stations and railway stations as well as the football stadiums that the hon. Gentleman mentions and nuclear  power stations, pay for the police they require so that they can operate in a safe and secure environment. We therefore see no inconsistency in airports operating in the same way. Finally, at many airports, an airline operators committee already exists, and it is likely that that its principal representative will simply be asked to attend the SEG as well although, as I have outlined, if there is a requirement for additional airline representation the situation is open to a secondary appointment. I hope that in light of my reassurances the hon. Gentleman will not press amendments 292, 293 and 291.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs) 5:45 pm, 24th February 2009

The Minister has given us some useful assurances, for which I am grateful, but I wish to press him further. He started by saying that the first amendment in this group was about competitive tendering. It might be, but you will notice, Sir Nicholas, being an eagle-eyed Chairman, that there is no reference to competitive tendering and if I had meant that to be the main thrust of the amendment, being a plain-speaking Englishman I would have used the words “competitive tendering”. The amendment does not imply that from where I sit, and it is quite a weak amendment, according to the following argument. We would not suggest that competitive tendering for Manchester airport, for example, be a national tender that would allow Kent and Essex, for instance, to come up with a great bid and start policing the airport. Instead, where there is a geographically local collaboration agreement to deliver level 2 services—it might be to do with serious organised crime, or drug or people trafficking and aviation security—that might be an up-and-running collaboration agreement including a force that has the airport in its geographical boundary. That has nothing to do with, and does not imply, a competitive tendering arrangement. It might just be that the services are delivered across three, four or five forces in the collaboration agreement and that the lead chief officer is from a nearby force but is operationally, and in terms of the governance structure of the collaboration agreement, the person who makes the judgment call about security at Manchester airport.

I urge the Minister to reflect on the fact that the only person who can serve on that group is the chief officer of the force in the area where the airport is located. He might want to reflect on that with his hon. Friend the Minister for Security, Counter-Terrorism, Crime and Policing. I would understand if he were concerned about competitive tendering, but this is a technical point about collaboration agreements operating locally and about who the chief officer should be for the purposes of the group set up under the clause.

Photo of Jim Fitzpatrick Jim Fitzpatrick Parliamentary Under-Secretary (Department for Transport)

I tried to respond to that point earlier. Manchester is not alone; Gatwick also straddles two constabularies and Heathrow straddles three. Our point is that somebody has to be responsible. The main constabulary should provide the appropriate responsible person, because the links with the local community and the greater area outside are an important part of policing the airport, not just from the point of view of the police services agreement but in terms of the contact between the airport and the community, the ability to determine what is appropriate through knowing what is outside as well as inside, and ultimately because the chief constable of the local constabulary has to sign off the agreement. It is therefore much more appropriate for them to be on the group. I would not for a second expect chief constables  to fail to consult with constabularies with which they have collaborative relationships and agreements because of the locations of airports. I am sure that that happens at the moment, and I would be surprised if it did not happen once the measure is passed. The new procedure will be even more transparent than the existing one.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

The Minister has given a helpful reply. I am not entirely convinced on his last point about collaboration agreements. However, we need to make progress so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

I beg to move amendment 294, in clause 60, page 78, line 33, at end insert

‘provided that such agreement required of any individual shall not be unreasonably withheld’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss amendment 295, in clause 60, page 78, line 35, at end insert

‘provided that such agreement required of any individual shall not be unreasonably withheld’.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

The amendment goes to the heart of the unanimity that will be required when a security plan is signed up to. Proposed new section 24AH(2) states:

“No provision may be included in an aerodrome security plan unless all the members of the group unanimously agree that it should be included.”

The purpose of amendments 294 and 295 is to probe the feasibility of seeking unanimity in what may be a group of as many as a dozen people. The wording of the amendments is the same, and they both suggest that rather than a provision requiring unanimity, the

“agreement required of any individual shall not be unreasonably withheld.”

There would therefore be a reasonability test when individuals make their decisions. An individual could object and thus deprive the rest of the group of the unanimity required for a plan to be signed off. They might decide, perversely, not to give their consent as a bargaining chip for another part of the negotiations. The unanimity concept in the clause is problematic. Will the Minister consider a requirement that consent should not be unreasonably withheld?

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

The question of unanimity was raised when the Committee took evidence. Bob Jones, the chair of the Association of Police Authorities said of the current system:

“Our only slight reservation, probably contrary to the airport operators, is that the current system effectively requires unanimous agreement. That is a commendable desire, but it effectively results in a position where there is an individual veto. The appeal against that...can drag on for a considerable period of time, when there may be an important security risk that needs to be addressed in the short term rather than going through such a cumbersome process. I would hope that the Committee looks at the arrangements for resolving those issues where there is not unanimous agreement.”——[Official Report, Policing and Crime Public Bill Committee, 27 January 2009; c. 20, Q18.]

On page 78 of the Bill, between lines 31 to 35, there are two specific requests for unanimity: one states that there must be unanimous agreement on the aerodrome security plan; and the other states that there must be unanimous agreement on variations to it. This is an appropriate point to ask the Minister to tease out the thinking on those provisions. I know that later clauses mention independent tribunals and the power that the Secretary of State has to step in and act as King Solomon by adjudicating, and the Minister will probably refer to those provisions when he replies to the debate.

The amendments offer one way of dealing with that, but they set up their own problem: if one is to define what is, and is not, reasonable, one has to look at statute and dig oneself into all sorts of problems trying to define it. The unanimity issue is very desirable, as Bob Jones said, but it can also be a great hindrance if people are to take effective decisions, so it would be good to hear the Minister explain how the Government propose to get around that issue in this clause and those that follow it and offer a possible break on effective decision making.

Photo of Jim Fitzpatrick Jim Fitzpatrick Parliamentary Under-Secretary (Department for Transport)

Although we agree that parties to an aerodrome security plan should not behave unreasonably when providing consent to the inclusion or variation of a provision, I regret to say that our view is that the amendment would complicate rather than clarify matters. Stipulating that consent to the inclusion or variation of a term in an aerodrome security plan may not unreasonably be withheld prompts the question of who would be entitled to make the decision about whether such consent is being unreasonably withheld. The dispute provisions, as presently drafted, ensure that it is the Secretary of State who is entitled to make such decisions. That ensures real clarity, which we consider essential to ensuring that stakeholders sign up to and deliver the measures contained in the aerodrome security plan.

If unanimous agreement to a provision cannot be reached after proper discussion and a serious attempt at compromise, the matter may be referred as a dispute. Requiring that cases in which consent is being unreasonably withheld go to dispute does not mean that we are creating a long and drawn-out process for dealing with such matters. If it is blatantly obvious that a party is being unreasonable in its refusal to provide consent, the Secretary of State can indicate that early in the proceedings and may ultimately award costs associated with the dispute process against the party concerned. We believe that that will act as a real incentive on parties not to force matters to the dispute stage unreasonably. We believe that the provisions ensure real clarity on the issue of agreement to the terms to be included in an aerodrome security plan and provide sensible and practical mechanisms for dealing with parties who seek to behave unreasonably.

The hon. Member for Bury St. Edmunds said that that could offer police forces a veto on whether the plan is adequate, but it also offers the airport operators a veto. It is a double-edged sword, and that is what we believe gives protection and ensures that the process is equitable, transparent and agreeable and that it is known that costs can be awarded against someone who appears unreasonable. We will have the benchmark of other airports to show what is happening in airports of a similar size.

We believe that requiring unanimity actually places a burden on both the airport operator and the police to act reasonable because they know that the Secretary of State is waiting in the wings to act as arbitrator if a dispute arises. Where it was previously suggested that there be an independent panel to arbitrate on disputes, it was the stakeholders who said during consultation that they wanted ministerial oversight and the responsibility to rest with the Department for Transport. We accepted that suggestion and have now made the amendment to the Bill. We think that that strengthens the arrangements for workable and acceptable plans, and on that basis I ask the hon. Gentleman to withdraw the amendment.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs) 6:00 pm, 24th February 2009

I am grateful to the Minister. The last part of his remarks is interesting and important. He describes a symmetry which, in a perfect world, would operate to ensure that one part is not unreasonably vetoed, because of the knowledge that, at some later date, they could be paid back in kind. On the basis of the Minister’s explanation, the unanimity might actually have a deterrent effect. If I could use an analogy from cold war nuclear strategy, it is mutually assured destruction; that is a flight of fancy that I am importing to our debate.

On a serious point, on the basis that the Minister is right, and I think that he probably he is, I am content to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: 299, in clause 60, page 80, line 24, after ‘to (6)’ insert ‘or (8)’.—(Jim Fitzpatrick.)

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

I beg to move amendment 257, in clause 60, page 81, line 19, at end insert ‘, or

(c) a dispute about the costs of policing to be met by the aerodrome manager.’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following:

Amendment 296, in clause 60, page 82, line 3, leave out ‘thinks’ and insert ‘reasonably believes’.

Amendment 297, in clause 60, page 82, line 15, at end insert

‘provided that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances.’.

Amendment 298, in clause 60, page 83, line 27, at end insert

‘provided that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances.’.

Government amendment 300.

Amendment 255, in clause 60, page 83, line 39, at end insert

‘and, for the avoidance of doubt, any such appeal shall not be restricted to the judicial review of the Secretary of State’s decision.’.

Government amendments 301 and 302.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

The amendment seeks to clarify the drafting. In subsection(2) of the proposed new section, “24AM Meaning of dispute about security planning”, there are two examples of areas relating to disputes about security planning. Subsection(2)(a) is

“a dispute about the contents of an aerodrome security plan”, and subsection (2)(b) is

“a dispute about the implementation of an aerodrome security plan for the aerodrome.”.

However, what we do not have in subsection (2) is clarification of disputes relating to the costs of policing to be met by the aerodrome managers. Amendment 257 seeks to insert clarification, a new little (c), which makes it clear that disputes can relate, not just to the contents or the implementation of an aerodrome security plan, but to any dispute about the costs of policing to be met by the aerodrome manager. The reason that it does need to be spelt out is the real concern that we have already heard about from aerodrome operators—and even airlines, but mainly aerodrome operators—regarding the costs of policing.

The Minister might suggest that my amendment, which defines disputes and relates to costs, is actually caught by subsection 2(a)—in other words,

“a dispute about the contents of an aerodrome security plan”.

He might have a point, but I think that it is worth spelling out on the face of the Bill that disputes do, in fact, relate to the costs of policing to be borne by an aerodrome manager, because the Yorkshire Post, using rather colourful language, suggested that it was a terror tax.

The payments that this part of the Bill implies, are payments that are going to be extracted from private businesses, aerodrome operators, and in that sense it can be called a tax—it is a tax of a kind. Whenever imposts are levied on private individuals or corporate entities, we have to be careful to ensure that the extraction of money is open and transparent. I know that the Minister will want to assure us that the Bill gives more transparency than the current regime. We know that that comfort is needed because of the plethora of representations that members of the Committee—certainly on this side—have received about the lack of transparency and the apparent inability of some police forces to explain exactly what it is that they are charging for. The amendment flags up that important point.

I shall turn to amendment 296. The Bill gives the Secretary of State a power to intervene in a dispute even if there has been no formal referral of that dispute to the Secretary of State by one of the parties affected. For him to intervene, the Secretary of State must only think that there is a dispute—“thinks” is the word in the clause. That is a bit weak. The Secretary of State wakes up and “thinks” that there is a dispute. It is an unusual word to find in legislation and it leapt out at me, so I proffer the deletion of “thinks” and the insertion of “reasonably believes”. That makes clear that the Secretary of State cannot skittishly or coquettishly think that there is a dispute before using his or her powers to intervene.

Broadly the same point is being made in amendments 297 and 298. The relevant proposed new subsections may require a party to take steps to resolve a dispute and clearly include a requirement to make a payment. As the amendments say, we need to be clear

“that the Secretary of State believes that the amount of such payment in respect of costs is reasonable and proportionate having regard to all the relevant circumstances.”

Finally, amendment 255, in my name and that of my hon. Friend the Member for Hornchurch, is a probing amendment to ensure that it is clear that appealing a Secretary of State’s decision will not be restricted to  judicial review. It may have been a fault on my part, but I was not clear where in the appeal mechanism a formal judicial review form of appeal would operate. I would be grateful if the Minister could clarify that for me, given my all too unforgivably hazy understanding of how that appeal mechanism would relate to judicial review. In that spirit of honest inquiry, I proffer these amendments and look forward to the Minister’s response.

Photo of Jim Fitzpatrick Jim Fitzpatrick Parliamentary Under-Secretary (Department for Transport)

Amendments 257 and 296 both relate to disputes. The first concerns the cost of policing and the other deals with the initiation of dispute proceedings. Amendment 255 considers the right of appeal. Amendments 297 and 298 both relate to how the Secretary of State apportions the costs of resolving a dispute concerning an airport security plan to those parties in dispute. Government Amendments 300 to 302 clarify, revise and ensure consistency of approach. I will look at each of those in turn.

Amendment 257 would allow disputes about the cost of policing to be raised in the context of the provisions relating to security planning. It is worth stating from the outset that the Bill already allows parties to raise disputes about the costs of policing. We recognise that it is absolutely essential for airport operators and the police to be able formally to dispute costs. This is why we have made provision for this in the Bill.

Proposed new section 29A of schedule 5 of the Bill allows airports, police forces and police authorities to dispute the terms of a police services agreement. The PSA is the document that will contain information about payments to be made by the airport to the police, and the services that the police will provide in exchange for these payments. But although we are clear that stakeholders must be able to dispute the cost of policing, we do not believe that they should be able to do this before they have agreed whether or not a dedicated police presence is actually required at the airport. This is what this amendment would require—what it is seeking—and, with respect, we do not think that it would make much sense.

The airport security provisions as drafted require stakeholders to adopt a logical process when planning and delivering security at airports. First, risks and threats to the airport are assessed and set out in a risk report. Secondly, stakeholders agree on what security measures are necessary to mitigate these threats, and these are set out in an airport security plan. Thirdly, if the airport security plan shows that a dedicated police presence is necessary to mitigate one or more of the threats to the airport, a police services agreement is drawn up.

Stakeholders are able to access dispute resolution proceedings at both stages two and three of this process. At stage two, when the airport security plan is being drawn up, the current provisions already allow stakeholders to dispute whether a dedicated police presence is actually needed to mitigate any given threat. This is provided for at subsection 24AM of clause 60. Once the airport security plan is agreed, it will be clear whether a dedicated police presence is actually required at the airport. If it is, stakeholders can proceed with stage three, which is the process of drawing up a police services agreement.

On occasion, it may not be possible to reach agreement as to policing costs. The provisions therefore allow stakeholders to dispute the costs of policing, by accessing  the dispute resolution proceedings attached to the PSA provisions. These are contained at subsection 29A of schedule 5 of the Bill.

Structuring the dispute resolution proceedings in this way ensures that parties must agree whether a dedicated police presence is actually required at the airport before parties start becoming involved in discussions about costs. I hope the hon. Member for Bury St. Edmunds will be reassured that there are provisions in the Bill that will allow stakeholders to take disagreements about the costs of policing to dispute but at the appropriate stage.

The suggested wording change in amendment 296 to section 24AO implies that without the substitution of the word “thinks” with “reasonably believes”, that the Secretary of State might somehow act unreasonably in making a judgment as to whether a dispute might exist in relation to an airport security plan. With respect to colleagues opposite, this represents a misunderstanding about how the Secretary of State is required to carry out statutory responsibilities. The well established rules of natural justice already require the Secretary of State to act reasonably in using any statutory power. For this reason, the suggested amendment is unnecessary.

Amendments 297 and 298 both relate to how the Secretary of State apportions the costs of resolving a dispute concerning an airport security plan to those parties in dispute. The Government believe that it is only right that the taxpayer should not be responsible for meeting the costs of a dispute. Rather, costs associated with resolving the dispute, for example, the costs of providing experts to assist in its resolution, should be met by the parties in dispute. In apportioning costs to a party or parties, the Secretary of State will have regard to whether those involved have acted reasonably. In other words, costs will not necessarily be split equally between parties. In making any decision as to the costs that should be met by disputing parties, the Secretary of State will naturally judge whether his decision is reasonable and proportionate, having considered all of the relevant circumstances. This is the way in which any Secretary of State executes his legal responsibilities; it is unnecessary to prescribe this approach in legislation.

Amendment 300 makes express provision that the Secretary of State may not, as part of any determination on an ASP, require any other party to make payments to the chief officer of police for the relevant area. This is to ensure consistency in relation to the provisions concerning the content of ASPs. Amendment 255 to proposed section 24AR seeks to ensure that those delivering measures in an airport security plan are able to appeal any decision made by the Secretary of State in relation to a plan on the ground that it may not be a correct decision. If the right to appeal the Secretary of State’s decision were to be limited to judicial review, the decision could be challenged only on a limited basis. In the main, the factors that could be considered would be as follows: first, whether the Secretary of State was acting within his or her powers; secondly, whether fair procedure had been applied; and thirdly, whether the decision was reasonable in the sense of whether it amounted to an abuse of power. Indeed, we heard part of the definition of judicial review from the hon. Member for Oxford, West and Abingdon in relation to another part of the Bill.

The Government fully agree that the Secretary of State’s determination should be challengeable in the High Court on the grounds that, given the available evidence, a more appropriate decision about an airport security plan could have been made. That is why proposed subsection 24AR(1) is included. Without an express provision for appeal to the High Court, the right to challenge a decision by the Secretary of State would be restricted to judicial review. I am aware that some members of the Committee are far better acquainted with the law than I am; they will not need me to tell them that the amendment would result in a far more limited right of appeal than that included in the Bill.

As a matter of law, there is no doubt that the clause would not restrict appeals against the Secretary of State's decision to that of judicial review. Given that the present drafting already achieves the outcome intended by the amendment, the Government’s view is that the amendment is unnecessary.

Government amendment 301 simply revises the existing phrasing. Amendment 302 ensures that a consistent definition is applied wherever variants of dispute relating to airport security plans are referred to in clause 60. I invite the Committee not to press amendments 257, 296 to 298 and 255.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs) 6:15 pm, 24th February 2009

I am grateful to the Minister. He will understand that by their very nature the amendments are probing. Indeed, as a former lawyer in administrative law, I am aware of the Wednesbury principles on unreasonableness and the rest of it, and that Ministers have to abide by the rules of natural justice as developed in administrative case law. Through the amendments, we were seeking to get the Minister to confirm how the dispute resolution procedure and the judicial review of decisions would operate. He gave a most eloquent exposition of how the clause will operate. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 300, in clause 60, page 83, line 27, at end insert—

‘(4A) Subsection (4)(a) does not apply in relation to security measures taken by the chief officer of police for the relevant police area.’.

301, in clause 60, page 84, line 7, leave out

‘modifications specified in the order’

and insert ‘specified modifications’.

302, in clause 60, page 84, line 18, at end insert—

‘“dispute about security planning for an aerodrome”, “dispute about the contents of an aerodrome security plan” and “dispute about the implementation of an aerodrome security plan” have the meanings given by section 24AM(2) to (4);’.—(Jim Fitzpatrick.)

Clause 60, as amended, ordered to stand part of the Bill.

Clause 61 ordered to stand part of the Bill.