Protection of Freedoms Bill

SECOND
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
IN COMMITTEE
OF THE WHOLE HOUSE

The amendments have been marshalled in accordance with the Instruction of 8th November 2011, as follows—

Clauses 64 to 78
Schedule 7
Clauses 79 to 84

Amendments to the following Clauses and Schedules will be marshalled separately for consideration in Grand Committee—

Clauses 26 to 39
Schedule 2
Clauses 40 to 53
Schedule 3
Clauses 57 to 61
Schedule 5
Clauses 62 and 63
Schedule 6
Clause 85
Schedule 8
Clauses 86 to 109
Schedules 9 and 10
Clauses 110 to 115

[Amendments marked * are new of have been altered]

Clause 64

BARONESS HEYHOE FLINT

LORD ADDINGTON

BARONESS GREY-THOMPSON

58

Page 50, line 43, after “(2B)” insert “or (2C)”

BARONESS ROYALL OF BLAISDON

LORD ROSSER

LORD TUNNICLIFFE

59

Page 51, leave out lines 9 to 11

60

Page 51, line 9, leave out “day to day” and insert “close and constant”

BARONESS HEYHOE FLINT

LORD ADDINGTON

BARONESS GREY-THOMPSON

61

Page 51, line 11, at end insert—

“(2C) Work falls within this sub-paragraph if it is any form of work (whether or not for gain) undertaken as part of an organised sport or recreational activity.”

LORD ADDINGTON

62

Page 51, line 11, at end insert—

“( ) Sub-paragraph 1(2B)(b) does not apply to any work which includes the teaching, training or instruction of physical skill or endurance.”

BARONESS WALMSLEY

BARONESS RANDERSON

63

Page 52, line 7, at end insert—

“( ) in sub-paragraph (1) after paragraph (f) insert—

“(g) any work in a further education college, as defined under the Further and Higher Education Act 1992, where the normal duties of that work involve regular contact with children.””

BARONESS ROYALL OF BLAISDON

LORD ROSSER

LORD TUNNICLIFFE

63A

Page 52, leave out lines 12 to 15

64

Page 52, line 14, leave out “day to day” and insert “close and constant”

65

Page 52, line 24, leave out “day to day” and insert “close and constant”

BARONESS WALMSLEY

66

Page 52, line 27, at end insert—

“( ) After paragraph 2 insert—

“Activities analogous to regulated activities

2A (1) A regulated activity provider may designate activities it carries out as being analogous to the regulated activities in paragraphs 1 and 2.

(2) Where a regulated activity provider has designated an activity as being analogous to a regulated activity, it may inform the Disclosure and Barring Service (“DBS”) in order to obtain such information as the DBS would provide in relation to a regulated activity.

(3) Where the DBS is informed that a regulated activity provider has designated an activity as being analogous to a regulated activity, it shall provide such information as it would provide in relation to a regulated activity.””

Clause 66

LORD HENLEY

67

Page 54, line 3, leave out from “nails” to end of line 4

Clause 67

BARONESS ROYALL OF BLAISDON

LORD ROSSER

LORD TUNNICLIFFE

68

Leave out Clause 67 and insert the following new Clause—

“Alteration of test for barring decisions

(1) In sub-paragraph (3) of paragraph 2 of Schedule 3 to the Safeguarding Vulnerable Groups Act (inclusion subject to consideration of representations), after paragraph (b) insert—

“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.

(2) After sub-paragraph (2) of paragraph 3 of that Schedule (behaviour) insert—

“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.

(3) After sub-paragraph (2) of paragraph 5 of that Schedule (risk of harm) insert—

“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.

(4) After sub-paragraph (3) of paragraph 8 of that Schedule (inclusion subject to consideration of representations) after paragraph (b) insert—

“(c) give the person the opportunity to present evidence and call witnesses at an oral hearing in front of a panel of at least two persons.”.

(5) After sub-paragraph (2) of paragraph 9 of that Schedule (behaviour) insert—

“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.”.

(6) After sub-paragraph (2) of paragraph 11 of that Schedule (risk of harm) insert—

“(2A) The right to representation must include the right to present evidence and call witnesses at an oral hearing in front of at least two persons.””

After Clause 70

BARONESS ROYALL OF BLAISDON

LORD ROSSER

LORD TUNNICLIFFE

69

Insert the following new Clause—

“Access to information on barring decisions

(1) The Police Act 1997 is amended as follows.

(2) In section 113B, after subsection (3)(b) insert—

“(c) states whether the applicant is on a barred list maintained by the Independent Safeguarding Authority in relation to work with vulnerable adults or children (whichever is appropriate).””

Clause 72

BARONESS HAMWEE

69A*

Page 60, line 28, after “consent” insert “(provided it has not been withdrawn)”

After Clause 78

BARONESS ROYALL OF BLAISDON

LORD ROSSER

70

Insert the following new Clause—

“Protection from stalking

(1) The Protection from Harassment Act 1997 is amended as follows.

(2) In section 2 (offence of harassment) for subsection (2) substitute—

“(2) A person guilty of an offence under this section is liable to imprisonment for a term not exceeding five years, or a fine not exceeding the statutory maximum.”

(3) For section 4 (putting people in fear of violence) substitute—

“Offence of stalking

(1) A person (“A”) commits an offence to be known as the offence of stalking, where A stalks another person (“B”).

(2) For the purposes of subsection (1), A stalks B where—

(a) A engages in a course of conduct,

(b) subsection (3) or (4) applies, and

(c) A’s course of conduct causes B to suffer fear or alarm.

(3) This subsection applies where A engages in the course of conduct with the intention of causing B to suffer fear or alarm.

(4) This subsection applies where A knows, or ought in all the circumstances to have known, that engaging in the course of conduct would be likely to cause B to suffer fear or alarm.

(5) It is a defence for a person charged with an offence under this section to show that the course of conduct—

(a) was authorised by virtue of any enactment or rule of law,

(b) was engaged in for the purpose of preventing or detecting crime, or

(c) was, in the particular circumstances, reasonable.

(6) In this section—

“conduct” means inter alia—

(a) following B or any other person,

(b) contacting, or attempting to contact, B or any other person by any means,

(c) publishing any statement or other material—

(i) relating or purporting to relate to B or to any other person,

(ii) purporting to originate from B or from any other person,

(d) monitoring the use by B or by any other person of the internet, email or any other form of electronic or other communication,

(e) entering any premises,

(f) loitering in any place (whether public or private),

(g) interfering with any property in the possession of B or of any other person,

(h) giving anything to B or to any other person or leaving anything where it may be found by, given to or brought to the attention of B or any other person,

(i) watching or spying on B or any other person,

(j) acting in any other way that a reasonable person would expect would cause B to suffer fear or alarm, and

“course of conduct” involves conduct on at least two occasions.

(7) The Secretary of State may by regulations made by statutory instruments add additional forms of conduct under subsection (6).

(8) A person convicted of the offence of stalking is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both,

(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.

(9) Subsection (10) applies where, in the trial of a person (“the accused”) charged with the offence of stalking, the jury or, in the summary proceedings, the court—

(a) is not satisfied that the accused committed the offence, but

(b) is satisfied that the accused committed an offence under section 2.

(10) The jury or, as the case may be, the court may acquit the accused of the charge and, instead, find the accused guilty of an offence under section 2.””

Schedule 7

LORD HENLEY

71

Page 145, line 8, leave out from “nails” to end of line 9

Before Clause 79

LORD GOODHART

71A

Insert the following new Clause—

“Restriction on information provided about rehabilitated offenders

Section 9(3) of the Rehabilitation of Offenders Act 1974 is amended as follows—

(a) in paragraph (a) omit “or to another person at the express request of the rehabilitated person”, and

(b) in paragraph (b) omit from “or to another person” to “the rehabilitated person””

Clause 79

72

[Renumbered as Amendment 75A]

LORD HENLEY

73

Page 70, line 38, at end insert—

“(3) After section 120AB of the Police Act 1997 (procedure for certain cancellations or suspensions of registration) insert—

“120AC Registered persons: information on progress of an application

(1) The Secretary of State must, in response to a request from a person who is acting as the registered person in relation to an application under section 113A or 113B, inform that person whether or not a certificate has been issued in response to the application.

(2) Subsections (3) and (4) apply if, at the time a request is made under subsection (1), a certificate has been issued.

(3) In the case of a certificate under section 113A, if it was a certificate stating that there is no relevant matter recorded in central records, the Secretary of State may inform the person who made the request that the certificate was such a certificate.

(4) In the case of a certificate under section 113B, if it was a certificate—

(a) stating that there is no relevant matter recorded in central records and no information provided in accordance with subsection (4) of that section, and

(b) if section 113BA(1) or 113BB(1) applies to the certificate, containing no suitability information indicating that the person to whom the certificate is issued—

(i) is barred from regulated activity relating to children or to vulnerable adults, or

(ii) is subject to a direction under section 128 of the Education and Skills Act 2008 or section 167A of the Education Act 2002,

the Secretary of State may inform the person who made the request that the certificate was such a certificate.

(5) If no certificate has been issued, the Secretary of State must inform the person who made the request of such other matters relating to the processing of the application as the Secretary of State considers appropriate.

(6) Subject to subsections (2) to (4), nothing in this section permits the Secretary of State to inform a person who is acting as the registered person in relation to an application under section 113A or 113B of the content of any certificate issued in response to the application.

(7) The Secretary of State may refuse a request under subsection (1) if it is made after the end of a prescribed period beginning with the day on which the certificate was issued.

(8) In this section—

“central records” and “relevant matter” have the same meaning as in section 113A,

“suitability information” means information required to be included in a certificate under section 113B by virtue of section 113BA or 113BB.

(9) Expressions in subsection (4)(b) and in the Safeguarding Vulnerable Groups Act 2006 have the same meaning in that paragraph as in that Act.””

BARONESS DOOCEY

74

Page 70, line 38, at end insert—

“(3) In section 113B of the Police Act 1997, after subsection (4) insert—

“(4A) Prescribed purposes under subsection (2)(b) include licensing authorities determining the fitness of—

(a) taxi drivers to be licensed in London under section 8 of the Metropolitan Public Carriage Act 1869 and paragraph 25 of the London Cab Order 1934;

(b) private hire vehicle drivers to be licensed in London under section 13(2)(a) of the Private Hire Vehicles (London) Act 1998;

(c) taxi drivers to be licensed outside London under section 47 of the Town Police Clauses Act 1847 and section 59(1) of the Local Government (Miscellaneous Provisions) Act 1976; and

(d) private hire vehicle drivers to be licensed outside London under section 51(1) of the Local Government (Miscellaneous Provisions) Act 1976.””

LORD ADDINGTON

BARONESS HEYHOE FLINT

75

Leave out Clause 79 and insert the following new Clause—

“Criminal conviction certificates

After subsection (2A) of section 112 of the Police Act 1997 (criminal conviction certificates) insert—

“(2B) In carrying out the duty specified in subsection (2A), the Secretary of State must wait ten working days after sending a copy of the certificate to the applicant before sending a copy of that certificate to the registered person.””

BARONESS ROYALL OF BLAISDON

LORD ROSSER

LORD TUNNICLIFFE

75A

Leave out Clause 79 and insert the following new Clause—

“Restriction on information provided to certain persons

(1) In section 113A of the Police Act 1997 (requirement to send copy of criminal record certificate to registered person), after subsection (4) insert—

“(4A) Information supplied under subsection (6) should be provided only—

(a) after a period of 14 days from the day the information was issued, and

(b) if no appeal has been made by the applicant against information contained within that certificate.

(4B) If an appeal has been made under subsection (4A)(b), subsection (4) shall not apply for the duration of those appeal proceedings.”

(2) In section 113B after subsection (6) insert—

“(6A) Information supplied under subsection (6) should be provided only—

(a) after a period of 14 days from the day the information was issued, and

(b) if no appeal has been made by the applicant against information provided under subsection (6).

(6B) If an appeal has been made under subsection (6A)(b), subsection (6) shall not apply for the duration of those appeal proceedings.””

After Clause 80

LORD HENLEY

76

Insert the following new Clause—

“Additional grounds for refusing an application to be registered

After subsection (3) of section 120AA of the Police Act 1997 (refusal, etc. of registration on grounds not related to disclosure) insert—

“(4) Subsection (6) applies if an application is made under section 120 by an individual who—

(a) has previously been a registered person; and

(b) has been removed from the register (otherwise than at that individual’s own request).

(5) Subsection (6) also applies if an application is made under section 120 by a body corporate or unincorporate which—

(a) has previously been a registered person; and

(b) has been removed from the register (otherwise than at its own request).

(6) The Secretary of State may refuse the application.””

Clause 81

LORD GOODHART

76A

Page 71, line 32, at end insert—

“( ) Subsections (1)(f), (g), (i) and (m) shall come into effect at the end of a period of 6 months after this Act being passed.”

LORD HENLEY

77

Page 71, line 36, after “application” insert “in writing”

78

Page 72, line 2, after “apply” insert “in writing”

Clause 82

LORD HENLEY

79

Page 73, line 8, leave out “or B” and insert “, B or C”

80

Page 73, line 8, at end insert “and the arrangements have not ceased to have effect in accordance with a notice given under section 118(3B).”

81

Page 73, line 30, at end insert—

“( ) Condition C is that—

(a) the certificate was issued under section 117(2) or 117A(5)(b), and

(b) the certificate which it superseded—

(i) was subject to up-date arrangements immediately before it was superseded, and

(ii) would still be subject to those arrangements had it not been superseded.”

82

Page 74, line 13, at end insert—

“(7A) If up-date information is given under subsection (7)(a)(i), (7)(b)(i) or (7)(c)(i) and the certificate to which that information relates is one to which subsection (7B) applies, the up-date information must include that fact.

(7B) This subsection applies to a certificate which—

(a) in the case of a criminal conviction certificate, states that there are no convictions or conditional cautions of the applicant recorded in central records,

(b) in the case of a criminal record certificate, is as described in section 120AC(3), and

(c) in the case of an enhanced criminal record certificate, is as described in section 120AC(4).”

Before Clause 84

LORD HENLEY

83

Insert the following new Clause—

“Inclusion of cautions etc. in national police records

After subsection (4) of section 27 of the Police and Criminal Evidence Act 1984 (recordable offences) insert—

“(4A) In subsection (4) “conviction” includes—

(a) a caution within the meaning of Part 5 of the Police Act 1997; and

(b) a reprimand or warning given under section 65 of the Crime and Disorder Act 1998.””

After Clause 84

LORD GOODHART

84

Insert the following new Clause—

“Prohibition of requirement as to production of certain records

(1) In section 75 of the Data Protection Act 1998 (Short title, commencement and extent)—

(a) after subsection (2) insert—

“(2A) The provisions of section 56 shall come into force six months after the date of the Royal Assent of the Protection of Freedoms Act 2011 or on such earlier date as the Secretary of State may by order appoint.”; and

(b) omit subsection (4).”

Prepared 5th December 2011