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Protection of Freedoms BillPage 70

(b) prejudicing the person in any way in any office, profession, occupation

or employment.

(6) This section is subject to section 87 but otherwise applies despite any

enactment or rule of law to the contrary.

(7) 5See also section 88 (meaning of “proceedings before a judicial authority” and

“circumstances ancillary to a conviction or caution”).

87 Saving for Royal pardons etc.

Nothing in section 86 affects any right of Her Majesty, by virtue of Her Royal

prerogative or otherwise, to grant a free pardon, to quash any conviction or

10sentence, or to commute any sentence.

88 Section 86: supplementary

(1) In section 86 “proceedings before a judicial authority” includes (in addition to

proceedings before any of the ordinary courts of law) proceedings before any

tribunal, body or person having power—

(a) 15by virtue of any enactment, law, custom or practice,

(b) under the rules governing any association, institution, profession,

occupation or employment, or

(c) under any provision of an agreement providing for arbitration with

respect to questions arising under that agreement,

20to determine any question affecting the rights, privileges, obligations or

liabilities of any person, or to receive evidence affecting the determination of

any such question.

(2) For the purposes of section 86, circumstances ancillary to a conviction are any

circumstances of—

(a) 25the offence which was the subject of the conviction;

(b) the conduct constituting the offence;

(c) any process or proceedings preliminary to the conviction;

(d) any sentence imposed in respect of the conviction;

(e) any proceedings (whether by way of appeal or otherwise) for

30reviewing the conviction or any such sentence;

(f) anything done in pursuance of, or undergone in compliance with, any

such sentence.

(3) For the purposes of section 86, circumstances ancillary to a caution are any

circumstances of—

(a) 35the offence which was the subject of the caution;

(b) the conduct constituting the offence;

(c) any process preliminary to the caution (including consideration by any

person of how to deal with the offence and the procedure for giving the

caution);

(d) 40any proceedings for the offence which take place before the caution is

given;

(e) anything which happens after the caution is given for the purpose of

bringing any such proceedings to an end;

(f) any judicial review proceedings relating to the caution;

Protection of Freedoms BillPage 71

(g) in the case of a warning under section 65 of the Crime and Disorder Act

1998 (reprimands and warnings for persons aged under 18), anything

done in pursuance of, or undergone in compliance with, a requirement

to participate in a rehabilitation programme under section 66(2) of that

5Act.

Appeals and other supplementary provision

89 Appeal against refusal to disregard convictions or cautions

(1) The applicant may appeal to the High Court if—

(a) the Secretary of State makes a decision of the kind mentioned in section

1084(3)(b), and

(b) the High Court gives permission for an appeal against the decision.

(2) On such an appeal, the High Court must make its decision only on the basis of

the evidence that was available to the Secretary of State.

(3) If the High Court decides that it appears as mentioned in condition A in section

1582, it must make an order to that effect.

(4) Otherwise it must dismiss the appeal.

(5) A conviction or caution to which an order under subsection (3) relates becomes

a disregarded conviction or caution when the period of 14 days beginning with

the day on which the order was made has ended.

(6) 20There is no appeal from a decision of the High Court under this section.

90 Advisers

(1) The Secretary of State may appoint persons to advise whether, in any case

referred to them by the Secretary of State, the Secretary of State should decide

as mentioned in condition A in section 82.

(2) 25The Secretary of State may disclose to a person so appointed such information

(including anything within section 84(1)(a) or (b)) as the Secretary of State

considers relevant to the provision of such advice.

(3) The Secretary of State may pay expenses and allowances to a person so appointed.

91 Interpretation: Chapter 3

(1) 30In this Chapter—

(2) 35Paragraph (b) of the definition of “conviction” applies despite the following

(which deem a conviction of a person discharged not to be a conviction)—

(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000, and

(b) section 187 of the Armed Forces Act 2006 or any corresponding earlier

enactment.

(3) 40The references in section 82(1) to offences under particular provisions are to be

read as including references to offences under—

(a) section 45 of the Naval Discipline Act 1866,

(b) section 41 of the Army Act 1881,

(c) section 41 of the Air Force Act 1917,

(d) 45section 70 of the Army Act 1955,

(e) section 70 of the Air Force Act 1955, or

(f) section 42 of the Naval Discipline Act 1957,

which are such offences by virtue of those provisions.

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(4) The reference in section 82(3)(b) to an offence under section 71 of the Sexual

Offences Act 2003 is to be read as including a reference to an offence under

section 42 of the Armed Forces Act 2006 which is such an offence by virtue of

section 71 of the Act of 2003.

(5) 5In this Chapter a reference to an offence includes—

(a) a reference to an attempt, conspiracy or incitement to commit that

offence, and

(b) a reference to aiding, abetting, counselling or procuring the

commission of that offence.

(6) 10In the case of an attempt, conspiracy or incitement, the references in this

Chapter to the conduct constituting the offence are references to the conduct to

which the attempt, conspiracy or incitement related (whether or not that

conduct occurred).

Part 6 15Freedom of information and data protection

Publication of certain datasets

92 Release and publication of datasets held by public authorities

(1) The Freedom of Information Act 2000 is amended as follows.

(2) In section 11 (means by which communication to be made)—

(a) 20after subsection (1) insert—

(1A) Where—

(a) an applicant makes a request for information to a public

authority in respect of information that is, or forms part

of, a dataset held by the public authority, and

(b) 25on making the request for information, the applicant

expresses a preference for communication by means of

the provision to the applicant of a copy of the

information in electronic form,

the public authority must, so far as reasonably practicable,

30provide the information to the applicant in an electronic form

which is capable of re-use.

(b) In subsection (4), for “subsection (1)” substitute “subsections (1) and

(1A)”.

(c) After subsection (4) insert—

(5) 35In this Act “dataset” means information comprising a collection

of information held in electronic form where all or most of the

information in the collection—

(a) has been obtained or recorded for the purpose of

providing a public authority with information in

40connection with the provision of a service by the

authority or the carrying out of any other function of the

authority,

(b) is factual information which—

Protection of Freedoms BillPage 74

(i) is not the product of analysis or interpretation

other than calculation, and

(ii) is not an official statistic (within the meaning

given by section 6(1) of the Statistics and

5Registration Service Act 2007), and

(c) remains presented in a way that (except for the purpose

of forming part of the collection) has not been organised,

adapted or otherwise materially altered since it was

obtained or recorded.

(3) 10After section 11 (means by which communication to be made) insert—

11A Release of datasets for re-use

(1) This section applies where—

(a) a person makes a request for information to a public authority

in respect of information that is, or forms part of, a dataset held

15by the authority,

(b) any of the dataset or part of a dataset so requested is a relevant

copyright work,

(c) the public authority is the only owner of the relevant copyright

work, and

(d) 20the public authority is communicating the relevant copyright

work to the applicant in accordance with this Act.

(2) When communicating the relevant copyright work to the applicant, the

public authority must make the relevant copyright work available for

re-use by the applicant in accordance with the terms of the specified

25licence.

(3) In this section—

(4) In section 19 (publication schemes)—

(a) after subsection (2) insert—

(2A) 10A publication scheme must, in particular, include a requirement

for the public authority concerned—

(a) to publish—

(i) any dataset held by the authority in relation to

which a person makes a request for information

15to the authority, and

(ii) any up-dated version held by the authority of

such a dataset,

unless the authority is satisfied that it is not appropriate

for the dataset to be published,

(b) 20where reasonably practicable, to publish any dataset the

authority publishes by virtue of paragraph (a) in an

electronic form which is capable of re-use,

(c) where any information in a dataset published by virtue

of paragraph (a) is a relevant copyright work in relation

25to which the authority is the only owner, to make the

information available for re-use in accordance with the

terms of the specified licence.

(b) after subsection (7) insert—

(8) In this section—

(5) In section 45 (issue of code of practice)—

(a) in subsection (2), after paragraph (d) (and before the word “and” at the

end of the paragraph), insert—

(da) 15the disclosure by public authorities of datasets held by

them,,

(b) after subsection (2) insert—

(2A) Provision of the kind mentioned in subsection (2)(da) may, in

particular, include provision relating to—

(a) 20the giving of permission for datasets to be re-used,

(b) the disclosure of datasets in an electronic form which is

capable of re-use,

(c) the making of datasets available for re-use in accordance

with the terms of a licence,

(d) 25other matters relating to the making of datasets

available for re-use,

(e) standards applicable to public authorities in connection

with the disclosure of datasets., and

(c) in subsection (3) for “The code” substitute “Any code under this

30section”.

(6) In section 84 (interpretation), after the definition of “the Commissioner”,

insert—

Other amendments relating to freedom of information

93 35Meaning of “publicly-owned company”

(1) Section 6 of the Freedom of Information Act 2000 (publicly-owned companies)

is amended as follows.

(2) In subsection (1)—

(a) omit “or” at the end of paragraph (a),

(b) 40in paragraph (b) for the words from “any public authority” to

“particular information” substitute “the wider public sector”, and

(c) after paragraph (b) insert , or

(c) it is wholly owned by the Crown and the wider public

sector.

Protection of Freedoms BillPage 77

(3) For subsection (2) substitute—

(2) For the purposes of this section—

(a) a company is wholly owned by the Crown if, and only if, every

member is a person falling within sub-paragraph (i) or (ii)—

(i) 5a Minister of the Crown, government department or

company wholly owned by the Crown, or

(ii) a person acting on behalf of a Minister of the Crown,

government department or company wholly owned by

the Crown,

(b) 10a company is wholly owned by the wider public sector if, and

only if, every member is a person falling within sub-paragraph

(i) or (ii)—

(i) a relevant public authority or a company wholly owned

by the wider public sector, or

(ii) 15a person acting on behalf of a relevant public authority

or of a company wholly owned by the wider public

sector, and

(c) a company is wholly owned by the Crown and the wider public

sector if, and only if, condition A, B or C is met.

(2A) 20In subsection (2)(c)—

(a) condition A is met if—

(i) at least one member is a person falling within subsection

(2)(a)(i) or (ii),

(ii) at least one member is a person falling within subsection

25(2)(b)(i) or (ii), and

(iii) every member is a person falling within subsection

(2)(a)(i) or (ii) or (b)(i) or (ii),

(b) condition B is met if—

(i) at least one member is a person falling within subsection

30(2)(a)(i) or (ii) or (b)(i) or (ii),

(ii) at least one member is a company wholly owned by the

Crown and the wider public sector, and

(iii) every member is a person falling within subsection

(2)(a)(i) or (ii) or (b)(i) or (ii) or a company wholly owned

35by the Crown and the wider public sector, and

(c) condition C is met if every member is a company wholly owned

by the Crown and the wider public sector.

(4) In subsection (3), at the end, insert—

94 Extension of certain provisions to Northern Ireland bodies

(1) 45Omit—

(a) section 80A of the Freedom of Information Act 2000 (which modifies, in

relation to information held by Northern Ireland bodies, certain

provisions of the Act relating to historical records etc.), and

Protection of Freedoms BillPage 78

(b) paragraph 6 of Schedule 7 to the Constitutional Reform and

Governance Act 2010 (which inserts section 80A into the Act of 2000).

(2) The power of the Secretary of State under section 46(2) to (5) of the Act of 2010

to make transitional, transitory or saving provision in connection with the

5coming into force of paragraph 4 of Schedule 7 to that Act includes power to

make such provision in connection with the coming into force of that

paragraph of that Schedule as it has effect by virtue of this section.

The Information Commissioner

95 Appointment and tenure of Information Commissioner

(1) 10After paragraph 2(3) of Schedule 5 to the Data Protection Act 1998 (removal of

the Information Commissioner from office) insert—

(3A) No motion is to be made in either House of Parliament for such an

Address unless a Minister of the Crown has presented a report to

that House stating that the Minister is satisfied that one or more of

15the following grounds is made out—

(a) the Commissioner has failed to discharge the functions of the

office for a continuous period of at least 3 months,

(b) the Commissioner has failed to comply with the terms of

appointment,

(c) 20the Commissioner has been convicted of a criminal offence,

(d) the Commissioner is an undischarged bankrupt or the

Commissioner’s estate has been sequestrated in Scotland and

the Commissioner has not been discharged,

(e) the Commissioner has made an arrangement or composition

25contract with, or has granted a trust deed for, the

Commissioner’s creditors,

(f) the Commissioner is otherwise unfit to hold the office or

unable to carry out its functions.

(3B) No recommendation may be made to Her Majesty for the

30appointment of a person as the Commissioner unless the person

concerned has been selected on merit on the basis of fair and open

competition.

(3C) A person appointed as the Commissioner may not be appointed

again for a further term of office.

(2) 35Omit paragraph 2(4) and (5) of that Schedule to that Act (termination of term

of office on attaining 65 years of age etc. and eligibility for re-appointment).

(3) In the italic heading to paragraph 2 of that Schedule to that Act, after “office”

insert “and appointment”.

(4) Omit section 18(5) to (7) of the Freedom of Information Act 2000 (spent

40provisions about period of office of Data Protection Commissioner as first

Information Commissioner and application of paragraph 2(4)(b) and (5) of

Schedule 5 to the Act of 1998 to that person).

96 Alteration of role of Secretary of State in relation to guidance powers

(1) For section 41C(7) of the Data Protection Act 1998 (code of practice about

Protection of Freedoms BillPage 79

assessment notices: requirement for approval of Secretary of State)

substitute—

(7) The Commissioner must consult the Secretary of State before issuing

the code (or an altered or replacement code).

(2) 5In section 52B of that Act (data-sharing code: approval by the Secretary of

State)—

(a) for subsections (1) to (3) substitute—

(1) When a code is prepared under section 52A, the Commissioner

must—

(a) 10consult the Secretary of State, and

(b) submit the final version of the code to the Secretary of

State.

(2) The Secretary of State must lay the code before Parliament.”,

and

(b) 15in subsection (6) for the words from the beginning to “the

Commissioner” substitute “Where such a resolution is passed, the

Commissioner”.

(3) For section 55C(5) of that Act (guidance about monetary penalty notices:

requirement for approval of Secretary of State) substitute—

(5) 20The Commissioner must consult the Secretary of State before issuing

any guidance under this section.

97 Removal of Secretary of State consent for fee-charging powers etc.

(1) In section 51 of the Data Protection Act 1998 (general duties of the Information

Commissioner)—

(a) 25in subsection (8) (power to charge fees, with the consent of the Secretary

of State, in relation to any Part 6 services)—

(i) omit “with the consent of the Secretary of State”, and

(ii) before “services” insert “relevant”, and

(b) after subsection (8) insert—

(8A) 30In subsection (8) “relevant services” means—

(a) the provision to the same person of more than one copy

of any published material where each of the copies of

the material is either provided on paper, a portable disk

which stores the material electronically or a similar

35medium,

(b) the provision of training, or

(c) the provision of conferences.

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