PART 5 continued CHAPTER 3 continued
Contents page 30-17 40-17 50-17 60-17 70-17 80-17 90-17 100-17 110-17 120-17 130-17 140-17 150-17 160-17 170-17 180-17 190-17 200-17 210-17 220-17 Last page
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”).
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.
(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.
(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.
(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.
(1) 30In this Chapter—
“caution” means—
a caution given to a person in England and Wales in respect of
an offence which, at the time the caution is given, that person
has admitted, or
35a reprimand or warning given under section 65 of the Crime
and Disorder Act 1998 (reprimands and warnings for persons
aged under 18),
“conviction” includes—
a finding that a person is guilty of an offence in respect of
40conduct which was the subject of service disciplinary
proceedings,
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a conviction in respect of which an order has been made
discharging the person concerned absolutely or conditionally,
and
a finding in any criminal proceedings (including a finding
5linked with a finding of insanity) that a person has committed
an offence or done the act or made the omission charged,
“disregarded caution” is a caution which has become a disregarded
caution by virtue of this Chapter,
“disregarded conviction” is a conviction which has become a disregarded
10conviction by virtue of this Chapter,
“document” includes information recorded in any form and, in relation to
information recorded otherwise than in legible form, references to its
provision or production include providing or producing a copy of the
information in legible form,
15“information” includes documents,
“notice” means notice in writing,
“official records” has the meaning given by section 85(5),
“sentence” includes—
any punishment awarded, and
20any order made by virtue of Schedule 5A to the Army Act 1955,
Schedule 5A to the Air Force Act 1955 or Schedule 4A to the
Naval Discipline Act 1957,
in respect of a finding that a person is guilty of an offence in respect of
conduct which was the subject of service disciplinary proceedings,
25“service disciplinary proceedings” means any proceedings (whether in
England and Wales or elsewhere)—
under the Naval Discipline Act 1866, the Army Act 1881, the Air
Force Act 1917, the Army Act 1955, the Air Force Act 1955 or the
Naval Discipline Act 1957 (whether before a court-martial or
30before any other court or person authorised under the
enactment concerned to award a punishment in respect of an
offence), or
before a Standing Civilian Court established under the Armed
Forces Act 1976.
(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).
(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—
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(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—
(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—
“copyright owner” has the meaning given by Part 1 of the
Copyright, Designs and Patents Act 1988 (see section 173 of that
Act);
30“copyright work” has the meaning given by Part 1 of the Act of
1988 (see section 1(2) of that Act);
“Crown copyright” has the meaning given by Part 1 of the Act of
1988 (see section 163 of that Act);
“Crown database right” means a database right which subsists in
35a database of which Her Majesty is the maker (within the
meaning given by regulation 14 of the Copyright and Rights in
Databases Regulations 1997 (S.I. 1997/3032S.I. 1997/3032);
“database” has the meaning given by section 3A of the Act of 1988;
“database right” has the same meaning as in Part 3 of the
40Copyright and Rights in Databases Regulations 1997 (S.I. 1997/
3032);
“owner”, in relation to a relevant copyright work, means—
the copyright owner, or
the owner of the database right in a database;
45“Parliamentary copyright” has the meaning given by Part 1 of the
Act of 1988 (see sections 165 to 167 of that Act);
“relevant copyright work” means—
a copyright work,
a work in which Parliamentary copyright subsists, or
Protection of Freedoms BillPage 75
a database subject to a database right,
but excludes a work in which Crown copyright subsists or a
database in which Crown database right subsists;
“the specified licence” is the licence specified by the Secretary of
5State in a code of practice issued under section 45, and the
Secretary of State may specify different licences for different
purposes.”
(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—
30“copyright owner” has the meaning given by Part 1 of the
Copyright, Designs and Patents Act 1988 (see section
173 of that Act);
“copyright work” has the meaning given by Part 1 of the
Act of 1988 (see section 1(2) of that Act);
35“Crown copyright” has the meaning given by Part 1 of the
Act of 1988 (see section 163 of that Act);
“Crown database right” means a database right which
subsists in a database of which Her Majesty is the maker
(within the meaning given by regulation 14 of the
40Copyright and Rights in Databases Regulations 1997
(S.I. 1997/3032S.I. 1997/3032);
“database” has the meaning given by section 3A of the Act
of 1988;
“database right” has the same meaning as in Part 3 of the
45Copyright and Rights in Databases Regulations 1997
(S.I. 1997/3032S.I. 1997/3032);
“owner”, in relation to a relevant copyright work, means—
the copyright owner, or
the owner of the database right in a database;
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“Parliamentary copyright” has the meaning given by Part
1 of the Act of 1988 (see sections 165 to 167 of that Act);
“relevant copyright work” means—
a copyright work,
5a work in which Parliamentary copyright
subsists, or
a database subject to a database right,
but excludes a work in which Crown copyright subsists
or a database in which Crown database right subsists.”
10“the specified licence” has the meaning given by section
11A(3).”
(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—
““dataset” has the meaning given by section 11(5);”.
(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.”
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(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—
““relevant public authority” means any public authority listed in
40Schedule 1 other than—
a government department, or
any authority which is listed only in relation to
particular information”.
(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
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(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.
(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).
(1) For section 41C(7) of the Data Protection Act 1998 (code of practice about
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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.”
(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.