Other amendments relating to freedom of information

99 Meaning of “publicly-owned company”

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

is amended as follows.

(2) 5In subsection (1)—

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

(b) in 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) 10it is wholly owned by the Crown and the wider public

sector.”

(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

15member is a person falling within sub-paragraph (i) or (ii)—

(i) a 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

20the Crown,

(b) a 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

25by the wider public sector, or

(ii) a 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

30sector if, and only if, condition A, B or C is met.

(2A) In 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) 35at least one member is a person falling within subsection

(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) 40at least one member is a person falling within subsection

(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

45(2)(a)(i) or (ii) or (b)(i) or (ii) or a company wholly owned

by 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
  
  5Schedule 1 other than—

  (a)

  a government department, or

  (b)

  any authority which is listed only in relation to
  
  particular information”.

100 Extension of certain provisions to Northern Ireland bodies

(1) 10Omit—

(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

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

15Governance 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

coming 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

20paragraph of that Schedule as it has effect by virtue of this section.

The Information Commissioner

101 Appointment and tenure of Information Commissioner

(1) In paragraph 2(1) of Schedule 5 to the Data Protection Act 1998 (maximum

term of appointment for the Information Commissioner) for “five years”

25substitute “seven years”.

(2) After paragraph 2(3) of that Schedule to that Act (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

30that House stating that the Minister is satisfied that one or more of

the 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

35appointment,

(c) the 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) 40the Commissioner has made an arrangement or composition

contract 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

appointment of a person as the Commissioner unless the person

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

competition.

(3C) 5A person appointed as the Commissioner may not be appointed

again for a further term of office.”

(3) Omit 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).

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

10insert “and appointment”.

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

provisions 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).

102 15Alteration 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

assessment notices: requirement for approval of Secretary of State)

substitute—

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

20the code (or an altered or replacement code).”

(2) In 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

25must—

(a) consult 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.”,

30and”

(b) in 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:

35requirement for approval of Secretary of State) substitute—

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

any guidance under this section.”

103 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

40Commissioner)—

(a) in 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) In subsection (8) “relevant services” means—

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

5of 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

medium,

(b) the provision of training, or

(c) 10the provision of conferences.

(8B) The Secretary of State may by order amend subsection (8A).”

(2) In section 67(5)(a) of that Act (orders under the Act subject to negative

procedure) after “51(3)” insert “or (8B)”.

(3) In section 47 of the Freedom of Information Act 2000 (general functions of the

15Information Commissioner)—

(a) in subsection (4) (power to charge fees, with the consent of the Secretary

of State, in relation to services provided under that section)—

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

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

(b) 20after subsection (4) insert—

“(4A) In subsection (4) “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

25which stores the material electronically or a similar

medium,

(b) the provision of training, or

(c) the provision of conferences.

(4B) The Secretary of State may by order amend subsection (4A).

(4C) 30An order under subsection (4B) may include such transitional

or saving provision as the Secretary of State considers

appropriate.

(4D) The Secretary of State must consult the Commissioner before

making an order under subsection (4B).”

(4) 35In section 82(3)(a) of that Act (orders under the Act subject to negative

procedure) after “4(1)” insert “or 47(4B)”.

104 Removal of Secretary of State approval for staff numbers, terms etc.

(1) Paragraph 4 of Schedule 5 to the Data Protection Act 1998 (appointment of

officers and staff of the Information Commissioner) is amended as follows.

(2) 40After sub-paragraph (4) insert—

“(4A) In making appointments under this paragraph, the Commissioner

must have regard to the principle of selection on merit on the basis

of fair and open competition.”

(3) Omit sub-paragraph (5) (approval of Secretary of State required for number,

and terms and conditions, of persons to be appointed).

Part 7 Miscellaneous and general

5Miscellaneous repeals of enactments

105 Repeal of provisions for conducting certain fraud cases without jury

Omit section 43 of the Criminal Justice Act 2003 (applications by prosecution

for certain fraud cases to be conducted without a jury).

106 Removal of restrictions on times for marriage or civil partnership

(1) 10In the Marriage Act 1949—

(a) omit section 4 (solemnization of marriages to take place at any time

between 8 a.m. and 6 p.m.), and

(b) omit section 75(1)(a) (offence of solemnizing a marriage outside the

permitted hours).

(2) 15In section 16(4) of the Marriage (Registrar General’s Licence) Act 1970

(disapplication of certain provisions of the Act of 1949) for “sections 75(1)(a)

and” substitute “section”.

(3) In section 17(2) of the Civil Partnership Act 2004 (registration as civil partners

under the standard procedure to take place on any day in the applicable period

20between 8 a.m. and 6 p.m.)—

(a) for “on any day in” substitute “at any time during”, and

(b) omit “between 8 o’clock in the morning and 6 o’clock in the evening”.

(4) Omit section 31(2)(ab) of that Act (offence of officiating at the signing of a civil

partnership schedule outside the permitted hours).

25General

107 Consequential amendments, repeals and revocations

(1) Schedule 9 (consequential amendments) has effect.

(2) The provisions listed in Schedule 10 are repealed or (as the case may be)

revoked to the extent specified.

(3) 30The Secretary of State may by order make such provision as the Secretary of

State considers appropriate in consequence of this Act.

(4) The power to make an order under subsection (3)—

(a) is exercisable by statutory instrument,

(b) includes power to make transitional, transitory or saving provision,

(c) 35may, in particular, be exercised by amending, repealing, revoking or

otherwise modifying any provision made by or under an enactment

(including any Act passed in the same Session as this Act).

(5) Subject to subsection (6), a statutory instrument containing an order under this

section is not to be made unless a draft of the instrument has been laid before,

and approved by a resolution of, each House of Parliament.

(6) A statutory instrument containing an order under this section which neither

5amends nor repeals any provision of primary legislation is subject to

annulment in pursuance of a resolution of either House of Parliament.

(7) In this section—

• “enactment” includes an Act of the Scottish Parliament, a Measure or Act
  
  of the National Assembly for Wales and Northern Ireland legislation,

• 10“primary legislation” means—

  (a)

  a public general Act,

  (b)

  an Act of the Scottish Parliament,

  (c)

  a Measure or Act of the National Assembly for Wales, and

  (d)

  Northern Ireland legislation.

108 15Transitional, transitory or saving provision

The Secretary of State may by order made by statutory instrument make such

transitional, transitory or saving provision as the Secretary of State considers

appropriate in connection with the coming into force of any provision of this

Act (other than Chapter 1 of Part 1).

109 20Financial provisions

(1) There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by a Minister of the Crown by virtue of this

Act, and

(b) any increase attributable to this Act in the sums payable by virtue of

25any other Act out of money so provided.

(2) There is to be paid into the Consolidated Fund any sums received by a Minister

of the Crown by virtue of this Act.

110 Channel Islands and Isle of Man

Her Majesty may by Order in Council provide for Chapters 1 to 3 of Part 5 (and

30Parts 5 and 6 of Schedules 9 and 10) to extend, with or without modifications,

to any of the Channel Islands or to the Isle of Man.

111 Extent

(1) The following provisions extend to England and Wales only—

(a) sections 1 to 18, 23 and 24,

(b) 35Chapter 2 of Part 1,

(c) Chapter 1 of Part 2,

(d) Chapter 2 of Part 3,

(e) Chapter 1 of Part 5 (excluding section 77 and Schedule 7),

(f) Chapter 2 of Part 5 (excluding section 83),

(g) 40Chapter 4 of Part 5,

(h) sections 105 and 106,

(i) Parts 3 and 5 to 8 of Schedule 9 (subject to subsections (2), (3), (5) and

(8)(i)),

(j) Parts 3, 5, 6, 9 and 10 of Schedule 10 (subject to subsections (3), (5) and

(8)(i)), and

(k) 5any provision which extends to England and Wales only by virtue of

subsection (6) or (7).

(2) The following provisions extend to England and Wales and Scotland only—

(a) paragraph 107(a) of Schedule 9, and

(b) any provision which extends to England and Wales and Scotland only

10by virtue of subsection (6) or (7).

(3) The following provisions extend to England and Wales and Northern Ireland

only—

(a) Part 2 of Schedule 1,

(b) Chapter 3 of Part 5 (excluding paragraph 5(3) of Schedule 8),

(c) 15in Part 5 of Schedules 9 and 10, the amendments and repeals in respect

of the Police Act 1997 and paragraph 14(7)(c) of Schedule 9 to the

Safeguarding Vulnerable Groups Act 2006, and

(d) any provision which extends to England and Wales and Northern

Ireland only by virtue of subsection (7).

(4) 20The following provisions extend to Scotland only—

(a) Parts 4 and 5 of Schedule 1, and

(b) any provision which extends to Scotland only by virtue of subsection

(7).

(5) The following provisions extend to Northern Ireland only—

(a) 25Part 6 of Schedule 1,

(b) section 62 and Schedule 6,

(c) section 77 and Schedule 7,

(d) in Part 5 of Schedules 9 and 10, the amendments, repeals and

revocations in respect of—

(i) 30the Safeguarding Vulnerable Groups (Northern Ireland) Order

2007 (S.I. 2007/1351 (N.I.11)S.I. 2007/1351 (N.I.11)) and any order made under that

Order,

(ii) Part 3 of Schedule 5 to the Health Care and Associated

Professions (Miscellaneous Amendments and Practitioner

35Psychologists) Order 2009 (S.I. 2009/1182S.I. 2009/1182), and

(iii) sections 90 and 92 of the Policing and Crime Act 2009, and

(e) any provision which extends to Northern Ireland only by virtue of

subsection (7).

(6) The following provisions have the extent provided for in those provisions—

(a) 40Schedule 2 (see each paragraph), and

(b) Part 2 of Schedule 10 (see the notes to that Part).

(7) The amendments, repeals and revocations made by Parts 1 and 4 of Schedules

9 and 10 have the same extent as the enactment amended, repealed or revoked.

(8) The following provisions extend to England and Wales, Scotland and Northern

45Ireland—

(a) sections 19 to 22 (excluding Parts 2 and 4 to 6 of Schedule 1) and 25,

(b) Chapter 2 of Part 2,

(c) Chapter 1 of Part 3 (excluding Schedule 2),

(d) Part 4 (excluding section 62 and Schedule 6),

(e) section 83,

(f) paragraph 5(3) of Schedule 8,

(g) 5Part 6,

(h) sections 107 to 110 (excluding Schedules 9 and 10), this section and

sections 112 and 113,

(i) Part 2 of Schedule 9,

(j) Parts 7 and 8 of Schedule 10,

(k) 10the repeal of section 330(5)(b) of the Criminal Justice Act 2003 in Part 8

of Schedule 9 and Part 9 of Schedule 10, and

(l) any provision which extends to England and Wales, Scotland and

Northern Ireland by virtue of subsection (6) or (7).

(9) Sections 110 and 113 (and this section and section 112 so far as relating to those

15sections) also extend to the Channel Islands and the Isle of Man.

112 Commencement

(1) Subject as follows, this Act comes into force on such day as the Secretary of

State may by order made by statutory instrument appoint; and different days

may be appointed for different purposes.

(2) 20The provisions mentioned in subsection (3) come into force on such day as the

Welsh Ministers may by order made by statutory instrument appoint; and

different days may be appointed for different purposes.

(3) The provisions are—

(a) Chapter 2 of Part 1 so far as relating to schools in Wales and further

25education institutions in Wales,

(b) sections 39(1), 40, 41 and 43 to 46 so far as they confer functions on the

Welsh Ministers,

(c) section 53 and Schedule 3, and

(d) section 56 and Schedule 4 so far as relating to land in Wales.

(4) 30The following provisions come into force at the end of the period of two

months beginning with the day on which this Act is passed—

(a) section 39(2) and Schedule 2, and

(b) Part 2 of Schedule 10 (and section 107(2) so far as relating to that Part of

that Schedule).

(5) 35The following provisions come into force on the day on which this Act is

passed—

(a) section 105, Part 8 of Schedule 9 and Part 9 of Schedule 10 (and section

107(1) and (2) so far as relating to those Parts of those Schedules), and

(b) sections 107(3) to (7) and 108 to 111, this section and section 113.

113 40Short title

This Act may be cited as the Protection of Freedoms Act 2011.

SCHEDULES

Section 19

SCHEDULE 1 Amendments of regimes other than PACE

Part 1 5Material subject to the Terrorism Act 2000

1 (1) Schedule 8 to the Terrorism Act 2000 (treatment of persons detained under

section 41 or Schedule 7 of that Act) is amended as follows.

(2) Omit paragraph 14 (retention of material: England and Wales and Northern

Ireland).

(3) 10In paragraph 20 (retention of material: Scotland)—

(a) in sub-paragraph (3), omit the words from “but” to the end of the

sub-paragraph, and

(b) omit sub-paragraph (4).

(4) After paragraph 20 insert—

15“Destruction and retention of fingerprints and samples etc: United Kingdom

20A (1) This paragraph applies to—

(a) fingerprints taken under paragraph 10,

(b) a DNA profile derived from a DNA sample taken under

paragraph 10 or 12,

(c) 20relevant physical data taken or provided by virtue of

paragraph 20, and

(d) a DNA profile derived from a DNA sample taken by virtue

of paragraph 20.

(2) Fingerprints, relevant physical data and DNA profiles to which

25this paragraph applies (“paragraph 20A material”) must be

destroyed if it appears to the responsible chief officer of police

that—

(a) the taking or providing of the material or, in the case of a

DNA profile, the taking of the sample from which the

30DNA profile was derived, was unlawful, or

(b) the material was taken or provided, or (in the case of a

DNA profile) was derived from a sample taken, from a

person in connection with that person’s arrest under

section 41 and the arrest was unlawful or based on

35mistaken identity.

(3) In any other case, paragraph 20A material must be destroyed

unless it is retained under any power conferred by paragraphs 20B

to 20E.

(4) Paragraph 20A material which ceases to be retained under a

5power mentioned in sub-paragraph (3) may continue to be

retained under any other such power which applies to it.

(5) Nothing in this paragraph prevents a relevant search, in relation

to paragraph 20A material, from being carried out within such

time as may reasonably be required for the search if the

10responsible chief officer of police considers the search to be

desirable.

(6) For the purposes of sub-paragraph (5), “a relevant search” is a

search carried out for the purpose of checking the material

against—

(a) 15other fingerprints or samples taken under paragraph 10 or

12 or a DNA profile derived from such a sample,

(b) any of the relevant physical data, samples or information

mentioned in section 19C(1) of the Criminal Procedure

(Scotland) Act 1995,

(c) 20any of the relevant physical data, samples or information

held by virtue of section 56 of the Criminal Justice

(Scotland) Act 2003,

(d) material to which section 18 of the Counter-Terrorism Act

2008 applies,

(e) 25any of the fingerprints, samples and information

mentioned in section 63A(1)(a) and (b) of the Police and

Criminal Evidence Act 1984 (checking of fingerprints and

samples), and

(f) any of the fingerprints, samples and information

30mentioned in Article 63A(1)(a) and (b) of the Police and

Criminal Evidence (Northern Ireland) Order 1989

(checking of fingerprints and samples).

20B (1) This paragraph applies to paragraph 20A material relating to a

person who is detained under section 41.