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Part 1Border security

Chapter 1The Border Security Commander

1The Border Security Commander

(1)

The Secretary of State must designate a civil servant as the Border Security Commander (“the Commander”).

(2)

The Commander is to carry out the functions of that office on behalf of the Crown.

(3)

Service as the Commander is service in the civil service of the State.

(4)

The Secretary of State must make arrangements for the provision to the Commander by civil servants or other persons (or both) of such assistance as the Secretary of State considers appropriate.

2Terms and conditions of designation etc

(1)

The Commander is to hold and vacate office in accordance with the terms and conditions of the Commander’s designation, subject to subsections (3) to (5).

(2)

The terms and conditions of a designation as Commander are to be determined by the Secretary of State.

(3)

In addition to any terms and conditions about termination determined under subsection (2), the Secretary of State may terminate a person’s designation as the Commander—

(a)

in the interests of efficiency or effectiveness,

(b)

because of misconduct by the Commander, or

(c)

because of failure by the Commander to comply with the terms and conditions of the designation.

(4)

Before terminating a person’s designation as the Commander, the Secretary of State must—

(a)

give the Commander a written explanation of the reasons why the Secretary of State is proposing to do so,

(b)

give the Commander the opportunity to make written representations about the proposal to do so, and

(c)

consider any written representations made by the Commander.

(5)

If, having complied with subsection (4), the Secretary of State determines that a person’s designation as Commander should be terminated, the Secretary of State may terminate that designation—

(a)

with immediate effect, or

(b)

on such date or at the end of such period as the Secretary of State may determine.

3Functions of the Commander

(1)

In exercising the Commander’s functions, the Commander must have regard to the objectives of—

(a)

maximising the effectiveness of the activities of partner authorities relating to threats to border security, for the purpose of minimising such threats, and

(b)

maximising the coordination of those activities for that purpose.

(2)

The Commander must from time to time issue a document (a “strategic priority document”) which sets out what, in the Commander’s view, are—

(a)

the principal threats to border security when the document is issued, and

(b)

the strategic priorities to which partner authorities should have regard in exercising their functions in relation to any of the threats identified under paragraph (a).

(3)

A partner authority must have regard to the strategic priority document in exercising its functions in relation to threats to border security.

(4)

Before issuing a strategic priority document the Commander must—

(a)

consult the Board at a meeting of the Board, and

(b)

obtain the consent of the Secretary of State to issue the document.

(5)

In this Chapter—

“border security” means the security of the United Kingdom’s borders;

“partner authority” means, subject to subsection (6) and section 10, a public authority with functions in relation to threats to border security (whether exercisable in the United Kingdom or elsewhere);

“public authority” means a person with functions of a public nature.

(6)

The following are not partner authorities for the purposes of this Chapter—

(a)

the Security Service;

(b)

the Secret Intelligence Service;

(c)

GCHQ.

(7)

For the purposes of this Chapter (but subject to subsection (9)), threats to border security include the passage or conveyance of any person or thing towards, into or out of the United Kingdom, or the organisation of or preparation for such passage or conveyance, in circumstances mentioned in subsection (8).

(8)

Those circumstances are where such passage or conveyance, or the organisation of or preparation for such passage or conveyance—

(a)

constitutes an offence under the law of any part of the United Kingdom,

(b)

creates a risk of the commission of an offence under the law of any part of the United Kingdom, or

(c)

threatens harm of any kind to persons or property in the United Kingdom.

(9)

For the purposes of this Chapter, threats to border security do not include threats relating to a customs revenue matter within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009 (see section 7(2) of that Act).

4Duty to prepare annual reports

(1)

As soon as reasonably practicable after the end of each financial year, the Commander must prepare an annual report for the financial year.

(2)

The annual report must—

(a)

state how the Commander has carried out the functions of the Commander in the financial year, and

(b)

set out the Commander’s views on the performance in the financial year of the border security system, with particular reference to any strategic priorities specified by the Commander in relation to that year under section 3(2)(b).

(3)

The Commander must send a copy of the report to the Secretary of State.

(4)

The Secretary of State must—

(a)

lay a copy of the report before Parliament, and

(b)

arrange for it to be published.

(5)

In this section—

“the border security system” means the systems and processes for minimising threats to border security;

“financial year” means—

(a)

the period beginning on the day on which this section comes into force and ending on the following 31 March, and

(b)

each successive period of 12 months.

5Duties of cooperation etc

(1)

A partner authority must, so far as appropriate and reasonably practicable, cooperate with the Commander in the carrying out of the Commander’s functions.

(2)

The duty under subsection (1) extends only so far as the cooperation is compatible with the exercise of the partner authority’s other functions.

(3)

The Commander and a person to whom this subsection applies must put in place arrangements governing cooperation between the Commander and that person in support of the Commander’s functions.

(4)

Subsection (3) applies to—

(a)

the Director-General of the Security Service,

(b)

the Chief of the Secret Intelligence Service, and

(c)

the Director of GCHQ.

6The Board

(1)

The Commander must establish and maintain a board to assist the Commander in the exercise of the Commander’s functions.

(2)

That board—

(a)

is to operate under such name as is specified from time to time by the Commander, but

(b)

is referred to in this Chapter as “the Board”.

(3)

The members of the Board are to be—

(a)

the Commander, who is to be the chair of the Board, and

(b)

one or more representatives nominated by each relevant partner authority.

(4)

In subsection (3)(b) “relevant partner authority” means a partner authority which the Commander has for the time being determined should nominate one or more representatives to the Board.

(5)

The Commander may invite any public authority other than a partner authority to nominate one or more representatives of that authority to attend a particular meeting of the Board.

(6)

The Commander must hold meetings of the Board at such intervals as the Commander thinks appropriate.

(7)

Where a person is required by virtue of this section to nominate a representative as a member of the Board, the person—

(a)

must take reasonable steps to ensure that the representative attends meetings of the Board, and

(b)

may, if the representative is unable to attend a particular meeting, arrange for another representative of that person to attend as a member of the Board in that representative’s place.

7Delegation by the Commander

(1)

The functions conferred on the Commander by this Chapter may be exercised by any civil servant authorised by the Commander for that purpose.

(2)

An authorisation given for the purposes of this section may provide that a function may be exercised—

(a)

wholly or to a limited extent;

(b)

generally or in particular cases or areas;

(c)

unconditionally or subject to conditions.

(3)

An authorisation given for the purposes of this section—

(a)

may specify its duration,

(b)

may specify or describe the person authorised,

(c)

may be varied or revoked at any time by the Commander, and

(d)

does not prevent the Commander from exercising the function to which the authorisation relates.

(4)

Anything done or omitted to be done by or in relation to a person authorised under this section in, or in connection with, the exercise or purported exercise of the function concerned is to be treated for all purposes as done or omitted to be done by or in relation to the Commander.

8Designation of an Interim Border Security Commander

(1)

This section applies if the Secretary of State thinks that—

(a)

the designation of a person as the Commander has terminated, or is going to terminate, and there will be a gap before a new designation is made, or

(b)

the Commander is, or is going to be, temporarily incapacitated or temporarily unavailable to exercise the Commander’s functions.

(2)

The Secretary of State may designate a civil servant as the Interim Border Security Commander to exercise the functions of the Commander under this Chapter for such period as the Secretary of State thinks appropriate.

(3)

That period may not be longer than the period for which no Commander is designated or (as the case may be) the Commander is incapacitated or unavailable.

(4)

While a designation under this section has effect, references in this Chapter (other than in this section) or in any other enactment or instrument to the Commander include a reference to the Interim Border Security Commander.

(5)

An individual is not prevented from being designated as the Commander merely because they have previously been designated as the Interim Border Security Commander.

9Directions and guidance by the Secretary of State

(1)

The Commander must comply with directions given by the Secretary of State about the exercise of the Commander’s functions under this Chapter.

(2)

The Commander must have regard to guidance issued by the Secretary of State about the exercise of those functions.

(3)

Directions and guidance under this section may be revised or withdrawn from time to time.

10Exclusion of application to the armed forces

This Chapter does not apply in relation to the naval, military or air forces of the Crown (including reserve forces); and references in this Chapter to the functions of the Commander or to partner authorities are to be read accordingly.

11Amendment of Schedule 7 to the Data Protection Act 2018

In Schedule 7 to the Data Protection Act 2018 (competent authorities for the purposes of Part 3), after paragraph 56 insert—

“57

The Border Security Commander.”

12Interpretation

In this Chapter—

“the Board” has the meaning given by section 6(2)(b);

“border security” has the meaning given by section 3(5);

“civil servant” means an individual who is employed in the civil service of the State;

“the Commander” means the Border Security Commander;

“GCHQ” has the same meaning as in the Intelligence Services Act 1994 (see section 3(3) of that Act);

“partner authority” has the meaning given by section 3(5);

“public authority” has the meaning given by section 3(5);

“threats to border security” is to be constructed in accordance with section 3(7) to (9).