(b) the terms of the individual’s employment in the civil service are to be

regarded as constituting the terms of the contract of employment.

(8) In this section—

• “civil service” means the civil service of the State,

• 5“ISA” means the Independent Safeguarding Authority,

• “TUPE regulations” means the Transfer of Undertakings (Protection of
  
  Employment) Regulations 2006 (S.I. 2006/246S.I. 2006/246),

• references to rights and liabilities include rights and liabilities relating to
  
  a contract of employment,

• 10references to the transfer of property include the grant of a lease.

CHAPTER 4 Disregarding certain convictions for buggery etc.

General

88 Power of Secretary of State to disregard convictions or cautions

(1) A person who has been convicted of, or cautioned for, an offence under—

(a) 15section 12 of the Sexual Offences Act 1956 (buggery),

(b) section 13 of that Act (gross indecency between men), or

(c) section 61 of the Offences against the Person Act 1861 or section 11 of

the Criminal Law Amendment Act 1885 (corresponding earlier

offences),

20may apply to the Secretary of State for the conviction or caution to become a

disregarded conviction or caution.

(2) A conviction or caution becomes a disregarded conviction or caution when

conditions A and B are met.

(3) Condition A is that the Secretary of State decides that it appears that—

(a) 25the other person involved in the conduct constituting the offence

consented to it and was aged 16 or over, and

(b) any such conduct now would not be an offence under section 71 of the

Sexual Offences Act 2003 (sexual activity in a public lavatory).

(4) Condition B is that—

(a) 30the Secretary of State has given notice of the decision to the applicant

under section 90(4)(b), and

(b) the period of 14 days beginning with the day on which the notice was

given has ended.

(5) Sections 91 to 94 explain the effect of a conviction or caution becoming a

35disregarded conviction or caution.

89 Applications to the Secretary of State

(1) An application under section 88 must be in writing.

(2) It must state—

(a) the name, address and date of birth of the applicant,

(b) the name and address of the applicant at the time of the conviction or

caution,

(c) so far as known to the applicant, the time when and the place where the

conviction was made or the caution given and, for a conviction, the case

5number, and

(d) such other information as the Secretary of State may require.

(3) It may include representations by the applicant or written evidence about the

matters mentioned in condition A in section 88.

90 Procedure for decisions by the Secretary of State

(1) 10In considering whether to make a decision of the kind mentioned in condition

A in section 88, the Secretary of State must, in particular, consider—

(a) any representations or evidence included in the application, and

(b) any available record of the investigation of the offence and of any

proceedings relating to it that the Secretary of State considers to be

15relevant.

(2) The Secretary of State may not hold an oral hearing for the purpose of deciding

whether to make a decision of the kind mentioned in condition A in section 88.

(3) Subsection (4) applies if the Secretary of State—

(a) decides that it appears as mentioned in condition A in section 88, or

(b) 20makes a different decision in relation to the matters mentioned in that

condition.

(4) The Secretary of State must—

(a) record the decision in writing, and

(b) give notice of it to the applicant.

25Effect of disregard

91 Effect of disregard on police and other records

(1) The Secretary of State must by notice direct the relevant data controller to

delete details, contained in relevant official records, of a disregarded

conviction or caution.

(2) 30A notice under subsection (1) may be given at any time after condition A in

section 88 is met but no deletion may have effect before condition B in that

section is met.

(3) Subject to that, the relevant data controller must delete the details as soon as

reasonably practicable.

(4) 35Having done so, the relevant data controller must give notice to the person

who has the disregarded conviction or caution that the details of it have been

deleted.

(5) In this section—

• “delete”, in relation to such relevant official records as may be prescribed,
  
  40means record with the details of the conviction or caution concerned—

  (a)

  the fact that it is a disregarded conviction or caution, and

  (b)

  the effect of it being such a conviction or caution,

Protection of Freedoms BillPage 72

• “the names database” means the names database held by the National
  
  Policing Improvement Agency for the use of constables,

• “official records” means records containing information about persons
  
  convicted of, or cautioned for, offences and kept by any court, police
  
  5force, government department or local or other public authority in
  
  England and Wales for the purposes of its functions,

• “prescribed” means prescribed by order of the Secretary of State,

• “relevant data controller” means—

  (a)

  in relation to the names database, any chief officer of police of a
  
  10police force in England and Wales who is a data controller in
  
  relation to the details concerned,

  (b)

  in relation to other relevant official records, such person as may
  
  be prescribed,

• “relevant official records” means—

  (a)

  15the names database, and

  (b)

  such other official records as may be prescribed.

(6) An order under this section—

(a) may make different provision for different purposes,

(b) is to be made by statutory instrument which is subject to annulment in

20pursuance of a resolution of either House of Parliament.

92 Effect of disregard for disclosure and other purposes

(1) A person who has a disregarded conviction or caution is to be treated for all

purposes in law as if the person has not—

(a) committed the offence,

(b) 25been charged with, or prosecuted for, the offence,

(c) been convicted of the offence,

(d) been sentenced for the offence, or

(e) been cautioned for the offence.

(2) In particular—

(a) 30no evidence is to be admissible in any proceedings before a judicial

authority exercising its jurisdiction or functions in England and Wales

to prove that the person has done, or undergone, anything within

subsection (1)(a) to (e), and

(b) the person is not, in any such proceedings, to be asked (and, if asked, is

35not to be required to answer) any question relating to the person’s past

which cannot be answered without acknowledging or referring to the

conviction or caution or any circumstances ancillary to it.

(3) Where a question is put to a person, other than in such proceedings, seeking

information with respect to the previous convictions, cautions, offences,

40conduct or circumstances of any person—

(a) the question is to be treated as not relating to any disregarded

conviction or caution, or any circumstances ancillary to it (and the

answer to the question may be framed accordingly), and

(b) the person questioned is not to be subjected to any liability or otherwise

45prejudiced in law by reason of any failure to acknowledge or disclose

that conviction or caution or any circumstances ancillary to it in

answering the question.

(4) Any obligation imposed on any person by any enactment or rule of law or by

the provisions of any agreement or arrangement to disclose any matters to any

other person is not to extend to requiring the disclosure of a disregarded

conviction or caution or any circumstances ancillary to it.

(5) 5A disregarded conviction or caution, or any circumstances ancillary to it, is not

a proper ground for—

(a) dismissing or excluding a person from any office, profession,

occupation or employment, or

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

10or employment.

(6) This section is subject to section 93 but otherwise applies despite any

enactment or rule of law to the contrary.

(7) See also section 94 (meaning of “proceedings before a judicial authority” and

“circumstances ancillary to a conviction or caution”).

93 15Saving for Royal pardons etc.

Nothing in section 92 affects any right of Her Majesty, by virtue of Her Royal

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

sentence, or to commute any sentence.

94 Section 92: supplementary

(1) 20In section 92 “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) by virtue of any enactment, law, custom or practice,

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

25occupation or employment, or

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

respect to questions arising under that agreement,

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

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

30any such question.

(2) For the purposes of section 92, circumstances ancillary to a conviction are any

circumstances of—

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

(b) the conduct constituting the offence;

(c) 35any 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

reviewing the conviction or any such sentence;

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

40such sentence.

(3) For the purposes of section 92, circumstances ancillary to a caution are any

circumstances of—

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

5given;

(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;

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

101998 (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

Act.

Appeals and other supplementary provision

95 15Appeal 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

90(3)(b), and

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

(2) 20On 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

88, it must make an order to that effect.

(4) Otherwise it must dismiss the appeal.

(5) 25A 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) There is no appeal from a decision of the High Court under this section.

96 Advisers

(1) 30The 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 88.

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

(including anything within section 90(1)(a) or (b)) as the Secretary of State

35considers relevant to the provision of such advice.

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

appointed.

97 Interpretation: Chapter 4

(1) In this Chapter—

• 40“caution” means—

  Protection of Freedoms BillPage 75

  (a)

  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

  (b)

  a reprimand or warning given under section 65 of the Crime
  
  5and Disorder Act 1998 (reprimands and warnings for persons
  
  aged under 18),

• “conviction” includes—

  (a)

  a finding that a person is guilty of an offence in respect of
  
  conduct which was the subject of service disciplinary
  
  10proceedings,

  (b)

  a conviction in respect of which an order has been made
  
  discharging the person concerned absolutely or conditionally,
  
  and

  (c)

  a finding in any criminal proceedings (including a finding
  
  15linked 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
  
  20conviction 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,

• 25“information” includes documents,

• “notice” means notice in writing,

• “official records” has the meaning given by section 91(5),

• “sentence” includes—

  (a)

  any punishment awarded, and

  (b)

  30any 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,

• 35“service disciplinary proceedings” means any proceedings (whether in
  
  England and Wales or elsewhere)—

  (a)

  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
  
  40before any other court or person authorised under the
  
  enactment concerned to award a punishment in respect of an
  
  offence), or

  (b)

  before a Standing Civilian Court established under the Armed
  
  Forces Act 1976.

(2) 45Paragraph (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) The references in section 88(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) 5section 41 of the Air Force Act 1917,

(d) section 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.

(4) 10The reference in section 88(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) In this Chapter a reference to an offence includes—

(a) 15a 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) In the case of an attempt, conspiracy or incitement, the references in this

20Chapter 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 Freedom of information and data protection

25Publication of certain datasets

98 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) after subsection (1) insert—

“(1A) 30Where—

(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) on making the request for information, the applicant

35expresses 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,

provide the information to the applicant in an electronic form

40which is capable of re-use.”

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

(1A)”.

(c) After subsection (4) insert—

“(5) In 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) 5has been obtained or recorded for the purpose of

providing a public authority with information in

connection with the provision of a service by the

authority or the carrying out of any other function of the

authority,

(b) 10is factual information which—

(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

15Registration 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) 20After 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

25by 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) 30the 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

35licence.

(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);

• 40“copyright work” has the meaning given by Part 1 of the Act of
  
  1988 (see section 1(2) of that Act);

• “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
  
  Copyright and Rights in Databases Regulations 1997 (S.I. 1997/
  
  453032);

• “owner”, in relation to a relevant copyright work, means—

  (a)

  the copyright owner, or

  (b)

  the owner of the database right in the database;

Protection of Freedoms BillPage 78

• “relevant copyright work” means—

  (a)

  a copyright work, or

  (b)

  a database subject to a database right,

  but excludes a relevant Crown work or a relevant
  
  5Parliamentary work;

• “relevant Crown work” means—

  (a)

  a copyright work in relation to which the Crown is the
  
  copyright owner, or

  (b)

  a database in relation to which the Crown is the owner
  
  10of the database right;

• “relevant Parliamentary work” means—

  (a)

  a copyright work in relation to which the House of
  
  Commons or the House of Lords is the copyright owner,
  
  or

  (b)

  15a database in relation to which the House of Commons
  
  or the House of Lords is the owner of the database right;

• “the specified licence” is the licence specified by the Secretary of
  
  State in a code of practice issued under section 45, and the
  
  Secretary of State may specify different licences for different
  
  20purposes.”

(4) In section 19 (publication schemes)—

(a) after subsection (2) insert—

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

for the public authority concerned—

(a) 25to publish—

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

which a person makes a request for information

to the authority, and

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

30such a dataset,

unless the authority is satisfied that it is not appropriate

for the dataset to be published,

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

authority publishes by virtue of paragraph (a) in an

35electronic 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

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

information available for re-use in accordance with the

40terms of the specified licence.”

(b) after subsection (7) insert—

“(8) In this section—

• “copyright owner” has the meaning given by Part 1 of the
  
  Copyright, Designs and Patents Act 1988 (see section
  
  45173 of that Act);

• “copyright work” has the meaning given by Part 1 of the
  
  Act of 1988 (see section 1(2) of that Act);

• “database” has the meaning given by section 3A of the Act
  
  of 1988;

Protection of Freedoms BillPage 79

• “database right” has the same meaning as in Part 3 of the
  
  Copyright and Rights in Databases Regulations 1997
  
  (S.I. 1997/3032S.I. 1997/3032);

• “owner”, in relation to a relevant copyright work, means—

  (a)

  5the copyright owner, or

  (b)

  the owner of the database right in the database;

• “relevant copyright work” means—

  (a)

  a copyright work, or

  (b)

  a database subject to a database right,

  10but excludes a relevant Crown work or a relevant
  
  Parliamentary work;

• “relevant Crown work” means—

  (a)

  a copyright work in relation to which the Crown
  
  is the copyright owner, or

  (b)

  15a database in relation to which the Crown is the
  
  owner of the database right;

• “relevant Parliamentary work” means—

  (a)

  a copyright work in relation to which the House
  
  of Commons or the House of Lords is the
  
  20copyright owner, or

  (b)

  a database in relation to which the House of
  
  Commons or the House of Lords is the owner of
  
  the database right;

• “the specified licence” has the meaning given by section
  
  2511A(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) the disclosure by public authorities of datasets held by

30them,”,

(b) after subsection (2) insert—

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

particular, include provision relating to—

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

(b) 35the 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) other matters relating to the making of datasets

40available 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

section”.