PROTECTION OF FREEDOMS BILL

These notes refer to the Protection of Freedoms Bill

as brought from the House of Commons on 12th October 2011 [HL Bill 99]

Explanatory Notes

INTRODUCTION

1. These explanatory notes relate to the Protection of Freedoms Bill that was brought from the House of Commons on 12th October 2011. They have been prepared by the Home Office in order to assist the reader in understanding the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

3. A glossary of abbreviations and terms used in these explanatory notes is contained in Annex A of these notes.

SUMMARY

4. The Bill consists of seven Parts.

5. Chapter 1 of Part 1 makes provision in respect of the retention and destruction of fingerprints, footwear impressions and DNA samples and profiles taken in the course of a criminal investigation. In particular, it replaces the existing framework, set out in Part 5 of the Police and Criminal Evidence Act 1984 ("PACE"), whereby fingerprints and DNA profiles taken from a person arrested for, charged with or convicted of a recordable offence may be retained indefinitely. Under the new scheme provided for in this Chapter, the fingerprints and DNA profiles taken from persons arrested for or charged with a minor offence will be destroyed following either a decision not to charge or following acquittal. In the case of persons charged with, but not convicted of, a serious offence, fingerprints and DNA profiles may be retained for three years, with a single two-year extension available on application by a chief officer of police to a District Judge (Magistrates’ Courts). The police will also be able to seek permission from the new independent Commissioner for the Retention and Use of Biometric Material to retain material for the same period (three plus two years) in cases where

a person has been arrested for a qualifying offence but not charged. In addition, provision is made for the retention of fingerprints and DNA profiles in the case of persons convicted of an offence or given a fixed penalty notice and for extended retention on national security grounds.

6. Chapter 2 of Part 1 imposes a requirement on schools and further education colleges to obtain the consent of each parent of a child under 18 years of age attending the school or college, before the school or college can process the child’s biometric information.

7. Chapter 1 of Part 2 makes provision for the further regulation of Closed Circuit Television ("CCTV"), Automatic Number Plate Recognition ("ANPR") and other surveillance camera technology operated by the police and local authorities. The provisions will require the Secretary of State to publish a code of practice in respect of the development and use of surveillance camera systems and provide for the appointment of a Surveillance Camera Commissioner to monitor the operation of the code.

8. Chapter 2 of Part 2 amends the Regulation of Investigatory Powers Act 2000 ("RIPA") so as to require local authorities to obtain judicial approval for the use of any one of the three covert investigatory techniques available to them under the Act, namely the acquisition and disclosure of communications data, and the use of directed surveillance and covert human intelligence sources ("CHIS").

9. Chapter 1 of Part 3 makes provision in respect of powers to enter land or other premises. The provisions enable a Minister of the Crown (or the Welsh Ministers), by order, to repeal unnecessary powers of entry, to add safeguards in respect of the exercise of such powers, or to replace such powers with new powers subject to additional safeguards. Each Cabinet Minister is placed under a duty to review existing powers of entry with a view to considering whether to exercise any of the aforementioned order-making powers. Provision is also made for the exercise of powers of entry to be subject to the provisions of a code of practice.

10. Chapter 2 of Part 3 makes provision in respect of parking enforcement. It makes it a criminal offence to immobilise a vehicle, move a vehicle or restrict the movement of a vehicle without lawful authority. Further provision is made to extend the power to make regulations for the police and others to remove vehicles that are illegally, dangerously or obstructively parked. Provision is also made so that the keeper (or in some circumstances the hirer) of a vehicle can be held liable for unpaid parking charges where the identity of the driver is not known.

11. Part 4 makes provision in respect of counter-terrorism powers. Clauses 57 and 58 reduce the maximum period of pre-charge detention for terrorist suspects from 28 to 14 days whilst introducing a power for the Secretary of State to increase the limit to 28 days for a period of three months in circumstances where Parliament is dissolved or in the period before the first Queen’s Speech of the new Parliament. Clauses 59 to 63 relate to stop and search powers. They confer a power on a constable to search a vehicle if he or she reasonably suspects that a vehicle is being used for the purposes of terrorism; replaces the powers to stop and search persons and vehicles without reasonable suspicion in sections 44 to 47 of the Terrorism Act 2000 ("the 2000 Act") with a power that is exercisable in more restricted circumstances; and similarly restricts the operation of the power to search persons and vehicles for munitions and transmitters without reasonable suspicion in Schedule 3 to the Justice and Security (Northern Ireland) Act 2007.

12. Chapter 1 of Part 5 amends the Safeguarding of Vulnerable Groups Act 2006 ("SVGA") which provides the framework for the vetting and barring scheme operated by the Independent Safeguarding Authority ("ISA"). The amendments, in particular, repeal the provisions of the SVGA which provide for the monitoring by the Secretary of State of persons engaging in regulated activity. This Chapter also provides for broadly similar changes to the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 ("SVGO") which provides the framework for the vetting and barring scheme in Northern Ireland.

13. Chapter 2 of Part 5 makes amendments to Part 5 of the Police Act 1997 ("the 1997 Act") which sets out the framework for the disclosure of criminal convictions and other relevant information in certificates issued by the Criminal Records Bureau ("CRB") to support the assessment of a person’s suitability for employment and other roles.

14. Chapter 3 of Part 5 establishes a new organisation, to be known as the Disclosure and Barring Service ("DBS"), which will replace and combine the functions of the ISA and the CRB.

15. Chapter 4 of Part 5 provides for a person to apply to the Secretary of State for a conviction or caution for an offence under section 12 or 13 of the Sexual Offences Act 1956 ("the 1956 Act"), and associated offences, involving consensual gay sex with another person aged 16 or over, to become a disregarded conviction or caution. This Chapter further provides for such disregarded convictions and cautions to be deleted from the Police National Computer ("PNC") and other police records so that they no longer show up on criminal record checks.

16. Part 6 makes amendments to the Freedom of Information Act 2000 ("FOIA") and the Data Protection Act 1998 ("DPA"). The changes are fourfold. First, they amend the FOIA to make provision for the re-use of datasets by public authorities subject to that Act. Second, they amend the definition of a publicly owned company for the purposes of the FOIA so that it includes companies owned by two or more public authorities. Third, they extend to Northern Ireland amendments made to the FOIA by the Constitutional Reform and Governance Act 2010. Finally, they amend the FOIA and DPA to revise the arrangements in respect of the appointment and tenure of the office of the Information Commissioner and to make changes to the role of the Secretary of State in relation to the exercise of certain functions by the Information Commissioner.

17. Part 7 contains two repeals of enactments. It repeals section 43 of the Criminal Justice Act 2003 ("the 2003 Act"), which makes provision for certain fraud trials to be conducted without a jury, and removes the restrictions on the times when a marriage or civil partnership can take place. This Part also contains consequential amendments and repeals, makes provision for transitional arrangements, determines the extent of the provisions in the Bill and provides for commencement.

BACKGROUND

18. The Coalition’s Programme for Government1, launched by the Prime Minister and Deputy Prime Minister on 20th May 2010, included a commitment to introduce a ‘Freedom’ Bill. What is now the Protection of Freedoms Bill contributes to the implementation of 12 other specific commitments in the Programme for Government.


1 http://webarchive.nationalarchives.gov.uk/20100526084809/http://programmeforgovernment.hmg.gov.uk

Part 1: Regulation of biometric data

Chapter 1: Destruction, retention and use of fingerprints etc.

19. The Programme for Government (section 3: civil liberties) states that the Government "will adopt the protections of the Scottish model for the DNA database".

20. The existing framework for the taking, retention and destruction of fingerprints, footwear impressions, DNA samples and the profiles derived from such samples is set out in Part 5 of Police and Criminal Evidence Act 1984 ("PACE"). The amendments to PACE made by the Criminal Justice and Public Order Act 1994 ("the 1994 Act") enabled DNA samples to be taken from anyone charged with, reported for summons, cautioned or convicted of a recordable offence; and allowed profiles obtained from such samples to be retained and speculatively searched against other profiles obtained from victims or scenes of crime. A recordable offence is defined in section 118 of PACE. In practice, all offences which are punishable with imprisonment are recordable offences, as are around 60 other non-imprisonable offences that are specified in regulations made under section 27 of PACE. If the person was acquitted, samples and profiles were required to be destroyed. The passage of the 1994 Act led to the creation, in April 1995, of the National DNA Database in England and Wales.

21. The Criminal Justice and Police Act 2001 further amended PACE so as to remove the obligation to destroy a DNA sample or profile when a suspect was not prosecuted for or was acquitted of the offence with which he or she was charged. The power to take and retain DNA samples and profiles was further widened by the Criminal Justice Act 2003 ("the 2003 Act") which enabled a DNA sample to be taken from any person arrested for a recordable offence and detained in a police station, whether or not they are subsequently charged. Any such sample, and the profile derived from it, could be retained indefinitely.

22. In December 2008, in the case of S and Marper v United Kingdom [2008] ECHR 15811 the European Court of Human Rights ("ECtHR") ruled that the provisions in PACE (and the equivalent legislation in Northern Ireland), permitting the ‘blanket and indiscriminate’ retention of DNA from unconvicted individuals violated Article 8 (right to privacy) of the European Convention on Human Rights ("ECHR"). In response to this judgment, the then Government brought forward provisions in what are now sections 14 to 23 of the Crime and Security Act 2010 ("the 2010 Act") which, amongst other things, allowed for the retention of fingerprints and DNA profiles of persons arrested for, but not convicted of, an offence for six years. Sections 14 to 18, 20 and 21 of the 2010 Act established a separate approach to the retention of DNA profiles and fingerprints by the police for national security purposes and made provisions for the extended retention of DNA and fingerprints on national security grounds. The provisions of the 2010 Act have not been brought into force and Part 1 of Schedule 10 to this Bill repeals them.


1 http://www.bailii.org/eu/cases/ECHR/2008/1581.html

23. The equivalent legislation in Scotland is contained in sections 18 to 20 of the Criminal Procedure (Scotland) Act 1995 (as amended). A table comparing the retention rules in respect of fingerprints and DNA samples and profiles as they are now, as they would have been under the provisions of the 2010 Act, as they currently operate in Scotland and as they would be under the provisions of the Bill is at Annex B.

Chapter 2 of Part 1: Protection of biometric information of children in schools etc.

24. The Programme for Government (section 3: civil liberties) states that the Government "will outlaw the finger-printing of children at school without parental permission".

25. A number of schools in England and Wales currently use automated fingerprint recognition systems for a variety of purposes including controlling access to school buildings, monitoring attendance, recording the borrowing of library books and cashless catering. Iris, face and palm vein recognition systems are also in use or have been trialled. The processing of biometric information is subject to the provisions of the Data Protection Act 1998 ("DPA"), but whilst the DPA requires the data subject to be notified about the processing of his or her personal data and in most cases, to consent to such processing, there is no requirement, in the case of a person aged under 18 years, for consent also to be obtained from the data subject’s parents. In August 2008 the Information Commissioner issued a statement on the use of biometric technologies in schools1. Guidance has also been issued, in July 2007, by the British Educational Communications and Technology Agency2.


1 http://www.ico.gov.uk/upload/documents/library/data_protection/detailed_specialist_guides/fingerprinting_final_view_v1.11.pdf

2http://schools.becta.org.uk/upload-dir/downloads/becta_guidance_on_biometric_technologies_in_schools.doc

Part 2: Regulation of surveillance

Chapter 1: Regulation of CCTV and other surveillance camera technology

26. The Programme for Government (section 3: civil liberties) states that the Government "will further regulate CCTV".

27. CCTV systems (including ANPR systems) are not currently subject to any bespoke regulatory arrangements. However, the processing of personal data captured by CCTV systems (including images identifying individuals) is governed by the DPA and the Information Commissioner’s Office ("ICO") has issued guidance to CCTV operators on compliance with their legal obligations under the DPA1. In addition, the covert use of CCTV systems is subject to the provisions of the Regulation of Investigatory Powers Act ("RIPA") and the Code of Practice on ‘Covert Surveillance and Property Interference’ issued under section 71 of that Act (see in particular paragraphs 2.27 to 2.28)2 . On 15th December 2009, the previous Government announced the appointment of an interim CCTV Regulator (Hansard, House of Commons, columns 113WS-114WS).


1 http://www.ico.gov.uk/for_organisations/data_protection/topic_guides/cctv.aspx

2 http://www.homeoffice.gov.uk/publications/counter-terrorism/ripa-forms/code-of-practice-covert

Chapter 2 of Part 2: Safeguards for certain surveillance under RIPA

28. The Programme for Government (section 3: communities and local government) states that the Government "will ban the use of powers in the Regulation of Investigatory Powers Act (RIPA) by councils, unless they are signed off by a magistrate and required for stopping serious crime".

29. RIPA was designed to regulate the use of investigatory powers and to satisfy the requirements of the ECHR on its incorporation into UK law by the Human Rights Act 1998. RIPA regulates the use of a number of covert investigatory techniques, not all of which are available to local authorities. The three types of technique available to local authorities are: the acquisition and disclosure of communications data (such as telephone billing information or subscriber details); directed surveillance (covert surveillance of individuals in public places); and covert human intelligence sources ("CHIS") (such as the deployment of undercover officers). Local authorities sometimes need to use covert techniques in support of their statutory functions. They, not the police, are responsible for enforcing the law in areas such as: environmental crime; consumer scams; loan sharks; taxi cab regulation; underage sales of knives, alcohol, solvents and tobacco; and the employment of minors. The communications data powers are primarily used by local authorities to target rogue traders (where a mobile phone number can be the only intelligence lead). Directed surveillance powers are used in benefit fraud cases and to tackle anti-social behaviour (in partnership with the police), while CHIS and directed surveillance techniques are used in test purchase operations to investigate the sale of tobacco, alcohol and other age-restricted products.

30. Chapter 2 of Part 1 of RIPA sets out the specified grounds for authorising the acquisition and disclosure of communications data and Part 2 specifies the grounds for which authorisations can be granted for carrying out directed surveillance and for the use of CHIS. At present, authorisations for the use of these techniques are granted internally by a member of staff in a local authority (who must be of at least Director, Head of Service, Service Manager or equivalent grade), and are not subject to any independent approval mechanism. The use of these covert techniques under RIPA is subject to codes of practice made by the Home Secretary. The Chief Surveillance Commissioner is responsible for overseeing local authorities’ use of directed surveillance and CHIS, whilst the Interception of Communications Commissioner has similar responsibilities in respect of local authorities’ use of their powers in respect of the acquisition and disclosure of communications data. The Investigatory Powers Tribunal, established under section 65 of RIPA, investigates complaints about anything that a complainant believes has taken place against them, their property or communications which would fall to be regulated under RIPA.

31. The review of counter-terrorism and security powers (see paragraph 37) considered the use of RIPA powers by local authorities following concerns that they have been using directed surveillance techniques in less serious investigations, for example, to tackle dog fouling or checking an individual resides in a school catchment area. The review concluded (see paragraph 13, page 27 of the report1), that the use of directed surveillance powers by local authorities should be subject to a seriousness threshold and that the use of all three techniques by local authorities should be subject to a Magistrate’s approval mechanism. The seriousness threshold will restrict local authority use of directed surveillance to the investigation of offences which attract a maximum custodial sentence of six months or more or which involve underage sales of alcohol and tobacco. The threshold will be introduced, in parallel with the Protection of Freedoms Bill, through an order made under section 30(3)(b) of RIPA; Chapter 2 of Part 2 of the Bill gives effect to the Magistrate’s approval mechanism (in Scotland approval will be granted by a sheriff’s court).


1 http://www.homeoffice.gov.uk/publications/counter-terrorism/review-of-ct-security-powers/review-findings-and-rec?view=Binary

Part 3: Protection of property from disproportionate enforcement action

Chapter 1: Powers of Entry

32. A power of entry is a right for a person (usually a state official of a specified description, for example, police officers, local authority trading standards officers, or the enforcement staff of a regulatory body) to enter into a private dwelling, business premises, land or vehicles (or a combination of these) for defined purposes (for example, to search for and seize evidence as part of an investigation, or to inspect the premises to ascertain whether regulatory requirements have been complied with). There are around 1200 separate powers of entry contained in both primary and secondary legislation1. A Home Office-led review of powers of entry, initiated by the previous Administration in October 2007, was on-going at the time of the 2010 general election; background information about that review is archived on the Home Office website2.


1 http://www.homeoffice.gov.uk/publications/legislation/protection-freedoms-bill/

2http://tna.europarchive.org/20100419081706/http:/www.police.homeoffice.gov.uk/operational-policing/powers-pace-codes/powers-of-entry-review/index67d9.html?version=2

Chapter 2 of Part 3: Vehicles left on land

33. The Programme for Government (section 30: transport) states that the Government "will tackle rogue private sector wheel clampers".

34. Under the provisions of the Private Security Industry Act 2001 ("the 2001 Act") persons engaged in parking control on private land by means of the immobilisation (wheel clamping), moving or otherwise restricting the movement of a vehicle are required to be licensed by the Security Industry Authority ("SIA"). Continued concerns about the practices adopted by vehicle immobilisation businesses led the previous Government to publish, in April 2009, a consultation on options for improving the regulation of the clamping industry, including a voluntary code of practice and compulsory membership of a business licensing scheme for all clamping companies. The Crime and Security Act 2010 ("the 2010 Act"), which received Royal Assent on 8th April 2010, contains provisions for the licensing of businesses that undertake vehicle immobilisation activities (see sections 42 to 44 of and Schedule 1 to that Act). The provisions of the 2010 Act have not been commenced.

35. On 17th August 2010 the Government announced proposals to prohibit the wheel clamping of vehicles on private land1. The prohibition would take the place of the current licensing of individual operatives engaged in wheel clamping and of the prospective licensing of wheel clamping businesses.


1 http://www.homeoffice.gov.uk/media-centre/press-releases/ban-on-wheel-clamping

Part 4: Counter-terrorism powers

36. The Programme for Government (section 3: civil liberties) states that the Government "will introduce safeguards against the misuse of anti-terrorism legislation".

37. The Home Secretary announced a review of counter-terrorism and security powers in an oral statement to Parliament on 13th July 2010 (Hansard, House of Commons, columns 797 to 809; the statement was repeated in the House of Lords at columns 644 to 652). The terms of reference of the review were published on 29th July 20101, these set out the six key counter-terrorism and security powers to be considered by the review, namely:


1http://www.homeoffice.gov.uk/publications/counter-terrorism/ct-terms-of-ref/counter-terrorism-terms-of-ref?view=Html

  • Control orders (including alternatives);
  • Section 44 stop and search powers and the use of terrorism legislation in relation to photography;
  • The use of the R IPA by local authorities and access to communications data more generally;
  • Extending the use of ‘Deportation with Assurances’ in a manner that is consistent with our legal and human rights obligations;
  • Measures to deal with organisations that promote hatred or violence; and
  • The detention of terrorist suspects before charge, including how we can reduce the period of detention below 28 days.

38. The Home Secretary reported the outcome of the review1 on 26th January 2011 in a further oral statement to Parliament (Hansard, House of Commons, columns 306 to 326; the statement was repeated in the House of Lords at columns 965 to 978). Lord Macdonald of River Glaven, who provided independent oversight of the review, published a separate report of his findings2. Chapter 2 of Part 2 and Part 4 of the Bill give effect to the review’s conclusions in respect of the use of RIPA powers by local authorities, stop and search powers, and the maximum period of pre-charge detention for terrorist suspects.


1http://www.homeoffice.gov.uk/publications/counter-terrorism/review-of-ct-security-powers/review-findings-and-rec?view=Binary

2 http://www.homeoffice.gov.uk/publications/counter-terrorism/review-of-ct-security-powers/report-by-lord-mcdonald?view=Binary

39. Part 5 of the Terrorism Act 2000 ("the 2000 Act") contains ‘counter-terrorist powers’ including two police stop and search powers. Section 43 of the 2000 Act enables a constable to stop and search a person they reasonably suspect to be a terrorist to discover whether that person has in his or her possession anything that may constitute evidence that they are a terrorist (this power extends to stopping but not to searching a vehicle). Section 44 (together with the associated provisions in sections 45 to 47) of the 2000 Act enables a constable to stop and search any person or any vehicle within an authorised area for the purposes of searching for articles of a kind that could be used in connection for terrorism; this power does not require any grounds for suspicion that such articles will be found.

40. Following a challenge by two individuals stopped and searched under the section 44 powers in 2003, the ECtHR held on 12th January 2010, in the case of Gillan and Quinton v UK (Application no. 4158/05) , that the stop and search powers in section 44 violated Article 8 of the ECHR because they were insufficiently circumscribed and therefore not ‘in accordance with the law’. This judgment became final on 28th June 2010 when the UK’s request for the case to be referred to the Grand Chamber of the ECtHR was refused.

41. On 8th July 2010, the Home Secretary made a statement in the House of Commons (Hansard, House of Commons, columns 540 to 548; the statement was repeated in the House of Lords at columns 378 to 386) setting out how the powers in section 44 were to operate pending the outcome of the review of counter-terrorism and security powers and subsequent enactment of replacement legislation. In particular, the Home Secretary indicated that terrorism-related stops and searches of individuals were to be conducted under section 43 of the 2000 Act on the basis of reasonable suspicion that the individual is a terrorist and that section 44 (no suspicion) was no longer to be used for the searching of individuals. The Home Office publishes annual statistics on the operation of police powers under the 2000 Act; statistics covering the period 2009/10 were published on 28th October 20101.


1 http://rds.homeoffice.gov.uk/rds/pdfs10/hosb1810.pdf

42. Section 41 of and Schedule 8 to the 2000 Act brought into effect permanent legislation on pre-charge detention which allowed the police to detain a terrorist suspect for up to seven days without charge (the maximum period of pre-charge detention for non-terrorist cases is four days). This period was increased to 14 days by section 306 of the Criminal Justice Act 2003 ("the 2003 Act"). The Terrorism Bill introduced in the 2005-06 Session by the then Government included amendments to Schedule 8 to the 2000 Act to extend the maximum period of pre-charge detention from 14 to 90 days. An amendment to that Bill to set the maximum period of pre-charge detention at 28 days was agreed by the House of Commons at Report Stage of the Bill on 9th November 2005 (Hansard, columns 325 to 387).

43. Under what is now section 25 of the Terrorism Act 2006 the 28 day maximum period of pre-charge detention is subject to renewal by affirmative order for periods of up to a year at a time, failing which the maximum period reverts to 14 days. Successive twelve-month orders were made in 2007, 2008 and 2009. The Counter-Terrorism Bill introduced in the 2007-08 session included provisions to extend the maximum period of pre-charge detention to 42 days. The relevant clauses were rejected by the House of Lords at Committee Stage of the Bill on 13th October 2008 (Hansard, column 491 to 545), therefore preserving the 28 day maximum put in place by the Terrorism Act 2006.

44. Following debates in both the House of Commons1 and the House of Lords2, a new order (SI 2010/645) was made on 25th July 2010 retaining the 28 day maximum for a further six months pending the outcome of the review of counter-terrorism and security powers. That order expired on 24th January 2011.


1 House of Commons Hansard Debates for 14 July 2010 (pt 0003)

2 Lords Hansard text for 19 Jul 201019 July 2010 (pt 0001)

45. In her oral statement on 26th January 2011, the Home Secretary indicated that the Government would place in the Library of the House of Commons draft emergency legislation which would, if enacted, extend the maximum period of pre-charge detention to 28 days for a period of three months. The Government would bring forward such legislation if there were exceptional circumstances where this longer period may be required. Two versions of the draft Counter-Terrorism (Temporary Provisions) Bill were published on 11th February 2011 and are available at the Home Office website: Home Office. The draft Bills were subject to pre-legislative scrutiny by a Joint Committee of both Houses of Parliament which reported on 23rd June 2011.

Part 5: Safeguarding vulnerable groups, criminal records etc.

Chapters 1 to 3: Safeguarding of vulnerable groups and criminal records

46. The Programme for Government (section 14: families and children) said "we will review the criminal records and vetting and barring regime and scale it back to common sense levels".

47. The vetting and barring scheme was established in response to a recommendation made by Sir Michael (now Lord) Bichard in his June 2004 report following an inquiry into the information management and child protection procedures of Humberside Police and Cambridgeshire Constabulary1; the Bichard Inquiry was established in response to the conviction of Ian Huntley, a school caretaker, for the murders of Holly Wells and Jessica Chapman. The Inquiry Report recommended, amongst other things, that a registration scheme should be established for those wishing to work with children or vulnerable adults.


1 http://www.bichardinquiry.org.uk/10663/report.pdf

48. The Safeguarding Vulnerable Groups Act 2006 ("SVGA") and the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 ("SVGO") provided for such a scheme maintained by the Independent Safeguarding Authority ("ISA")1. Originally some 11 million people working with children or vulnerable adults would have been required to be monitored under the Scheme. In response to concerns about the scope of the Scheme, the then Government commissioned its Chief Adviser on the Safety of Children, Sir Roger Singleton, to conduct a review of the Scheme. Sir Roger Singleton’s report2 and the Government’s response were published on 14th December 2009 (Hansard, House of Commons, column 50WS to 53WS).


1 The ISA was originally known as the Independent Barring Board; the change of name was made by section 81 of the Policing and Crime Act 2009.

2 ‘Drawing the Line’ – A Report on the Government’s Vetting and Barring Scheme, available at: https://www.education.gov.uk/publications/eOrderingDownload/DCSF-01122-2009.pdf

49. The revised vetting and barring scheme, as recommended by Sir Roger Singleton, would have involved some 9.3 million individuals. On 15th June 2010 the Home Secretary announced that voluntary applications to be monitored under the Scheme, which was due to begin on 26th July 2010, would be suspended pending a further review and remodelling of the Scheme (Hansard, House of Commons, column 46WS to 47WS). The Home Secretary announced the terms of reference of the remodelling review on 2nd October 2010 (Hansard, House of Commons, column 77WS to 78WS), as follows:

"In order to meet the coalition's commitment to scale back the vetting and barring regime to common-sense levels, the review will:

Consider the fundamental principles and objectives behind the vetting and barring regime, including;

Evaluating the scope of the scheme's coverage;

The most appropriate function, role and structures of any relevant safeguarding bodies and appropriate governance arrangements;

Recommending what, if any, scheme is needed now; taking into account how to raise awareness and understanding of risk and responsibility for safeguarding in society more generally."

50. The report of the remodelling review was published on 11th February 20111. Amongst other things, the report recommended that the requirement on those working with children and vulnerable adults to be monitored under the Scheme should be dropped and that the functions of the ISA and the Criminal Records Bureau ("CRB") should be brought together into a single new organisation. Chapters 1 and 3 of Part 5 of the Bill give effect to the report’s recommendations.


1 http://www.homeoffice.gov.uk/publications/legislation/protection-freedoms-bill/

51. Part 5 of the Police Act 1997 ("the 1997 Act") makes provision for the Secretary of State (in practice, the Home Secretary) to issue certificates to applicants containing details of their criminal records and other relevant information. In England and Wales this function is exercised on behalf of the Secretary of State by the CRB, an executive agency of the Home Office. These certificates are generally used to enable employers and prospective employers or voluntary organisations to assess a person’s suitability for employment or voluntary work, particularly where this would give the person access to children or vulnerable adults. The CRB has operated since March 2002.

52. Part 5 of the 1997 Act provides for three types of disclosure:

  • A criminal conviction certificate (known as a ‘basic certificate’) which includes details of any convictions not “spent” under the terms of the Rehabilitation of Offenders Act 1974. Basic certificates are not yet available from the CRB ;
  • A criminal record certificate (known as a ‘standard certificate’) which includes details of all convictions and cautions h e ld on police records (principally, the P olice National Computer (“ PNC ” ) ) , whether those convictions and cautions are spent or unspent ; and
  • An enhanced criminal record certificate s (known as an ‘enhanced certificate’) which includes the same information as would appear on a standard certificate together with any other relevant, non-conviction information contained in local police records and, in appropriate cases, barred list information held by the ISA .

53. Mrs Sunita Mason was appointed by the previous Administration in September 2009 as the Government’s Independent Adviser for Criminality Information Management and was commissioned to undertake a review of the arrangements for retaining and disclosing records held on the PNC. Mrs Mason’s report1 was published on 18th March 2010 alongside the Government response set out in a Written Ministerial Statement (Hansard, House of Commons, column 73WS).


1 ‘A Balanced Approach: Safeguarding the public through the fair and proportionate use of accurate criminal record information’ available at http://library.npia.police.uk/docs/homeoffice/balanced-approach-criminal-record-information.pdf

54. On 22nd October 2010, the Home Secretary announced a further review, again by Mrs Mason, of the criminal records regime (Hansard, House of Commons, columns 77WS to 78WS). The review was to be undertaken in two phases. The questions to be addressed by Mrs Mason in the first phase were:

  • Could the balance between civil liberties and public protection be improved by scaling back the employment vetting systems which involve the Criminal Records Bureau ( CRB ) ?
  • Where Ministers decide such systems are necessary, could they be made more proportionate and less burdensome?
  • Should police intelligence form part of CRB disclosures?

55. Mrs Mason’s report on phase one of the review was published on 11th February 20111. Amongst the recommendations made in the report were:


1 http://www.homeoffice.gov.uk/publications/legislation/protection-freedoms-bill/

  • children under 16 should not be eligible for c riminal records checks (recommendation 1 );
  • criminal records checks should be portable between positions within the same employment sector (recommendation 2 );
  • the CRB to introduce an online system to allow employers to check if updated information is held on an applicant (recommendation 3 );
  • a new CRB procedure to be developed so that the criminal records certificate is issued directly to the individual applicant who will be responsible for its disclosure to potential employers and /or voluntary bodies (recommendation 4 );
  • the introduction of a package of measures to improve the disclosure of police information to employers (recommendation 6). This included -

- the test used by chief officers to make disclosure decisions under section 113B(4) of the Police Act 1997 ("the 1997 Act") to be amended from ‘might be relevant’ to ‘reasonably believes to be relevant’ (recommendation 6a);

- the development of a statutory code of practice for the police to use when deciding what information should be disclosed (recommendation 6b);

- the current ‘additional information’ provisions under section 113B(5) of the 1997 Act to be abolished so that the police use alternative methods to disclose this information outside of the criminal records disclosure process (recommendation 6e);

- to make effective use of the Police National Database so that decision making by chief officers about the relevance of information in relation to enhanced criminal records certificates can be centralised, regardless of from which police force the information originated (recommendation 6f).

  • the CRB to develop an open and transparent representations process for individuals to challenge inaccurate or inappropriate disclosures and that the disclosure of police information is overseen by an independent expert (recommendation 7 ).

56. Chapter 2 of Part 5 of the Bill gives effect to these recommendations.

Chapter 4 of Part 5: Disregarding certain convictions for buggery etc.

57. The Programme for Government (section 20: justice) said "we will change the law so that historical convictions for consensual gay sex with over 16s will be treated as spent and will not show up on criminal records checks".

58. The offences that criminalised consensual sex between men over the age of consent in England and Wales were section 12 of the Sexual Offences Act 1956 ("the 1956 Act") for the offence of buggery and section 13 of the 1956 Act for the offence of gross indecency between men. Consensual sex in private between two men over the age of 21 was decriminalised by section 1 of the Sexual Offences Act 1967; in 1994 the age of consent was lowered to the age of 18 years (by sections 143 and 145 of the Criminal Justice and Public Order Act of that year); in 2000 it was lowered again to 16 years (by section 1 of the Sexual Offences (Amendment) Act of that year). Such convictions, however, continue to be recorded in police records, principally on the names database held on the Police National Computer ("PNC"), and will appear on a standard or enhanced criminal records certificate issued by the CRB. It is estimated that there are some 16,000 such convictions recorded on the PNC.

Part 6: Freedom of information and data protection

59. The Programme for Government (section 3: civil liberties and section 16: government transparency) states that the Government will: "extend the scope of the Freedom of Information Act to provide greater transparency"; "create a new ‘right to data’ so that government-held datasets can be requested and used by the public, and then published on a regular basis"; and "ensure that all data published by public bodies is published in an open and standardised format, so that it can be used easily and with minimal cost by third parties".

60. The Office of Information Commissioner was created in January 2005 on the coming into force of the Freedom of Information Act 2000 ("FOIA"). The Information Commissioner’s role absorbed that of the Data Protection Registrar, first established by section 3 the Data Protection Act 1984 ("the 1984 Act"); the 1984 Act was repealed by the Data Protection Act 1998 ("DPA"), section 6 of which provided for the continuation of the Data Protection Registrar’s office under the new name of "the office of the Data Protection Commissioner". The Information Commissioner is the independent regulator for information rights in the UK and has responsibility for the oversight of both the DPA and FOIA. The Commissioner also has responsibility for the Environmental Information Regulations 2004 (SI 2004/3391), which implements Directive 2003/4/EC European Parliament and of the Council of 28th January 2003 on public access to environmental information, and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), which implements Directive 2002/58/EC of the European Parliament and of the Council of 12th July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.

61. The Information Commissioner’s Office ("ICO") is an executive Non-Departmental Public Body sponsored by the Ministry of Justice. The Commissioner is appointed as a corporation sole by Her Majesty by letters patent on the recommendation of the Prime Minister, who is advised by the Secretary of State for Justice following a selection process undertaken by the Ministry of Justice and validated by the Office of the Commissioner for Public Appointments. The current Commissioner, Christopher Graham, took up his five year appointment in June 2009.

62. The provisions in the DPA and FOIA cover the Commissioner’s appointment, remuneration and funding, appointment of staff and officers of the ICO, accountability and the Commissioner’s functions. Although the Commissioner operates independently in the exercise of his or her statutory functions, some issues require the approval of the Secretary of State such as funding, the level of certain fees charged by the ICO and the issue of codes of practice.

63. The FOIA confers a general right of access to information held by over 100,000 public authorities in the UK. Once a person makes an application, the public authority has 20 working days to respond to the request or notify the individual making the request why the information required is exempt. The Act recognises that there will be valid reasons why some kinds of information may be withheld, such as if its release would prejudice national security or legitimate commercial confidentiality. Public authorities can also refuse a freedom of information request if collating the information would incur disproportionate costs.

64. All public authorities, and companies wholly owned by a single public authority, have obligations under the FOIA and the Information Commissioner is responsible for issuing guidance on set procedures for responding to requests. The Commissioner also receives complaints about public authorities’ conduct of their responsibilities. After investigation the Information Commissioner makes a final assessment as to whether or not the relevant public authority has complied with the Act. Enforcement action may be taken against public authorities that repeatedly fail to meet their responsibilities under the Act.

65. The FOIA makes no express provision in respect of datasets. The Government’s proposals to make available Government data were set out in a letter, dated 31st May 2010, from the Prime Minister to Departments1. Government datasets are available at: www.data.gov.uk .


1 Letter to Government departments on opening up data | Number10.gov.uk

66. The Government’s proposals for extending the scope of the FOIA were announced on 7th January 20111.


1 Opening up public bodies to public scrutiny - Ministry of Justice

Part 7: Miscellaneous and general

Repeal of provisions for conducting certain fraud cases without jury

67. The Programme for Government (section 3: civil liberties) states that the Government "will protect historic freedoms through the defence of trial by jury".

68. Section 43 of the Criminal Justice Act 2003 ("the 2003 Act") makes provision for the prosecution to apply for a serious or complex fraud trial to proceed in the absence of a jury. The judge may order the case to be conducted without a jury if he or she is satisfied that the length or complexity (or both) of the case is likely to make the trial so burdensome upon the jury that the interests of justice require serious consideration to be given to conducting the trial without a jury.

69. Section 43 has not been implemented. By virtue of section 330(5)(b) of the 2003 Act, an order bringing section 43 into force is subject to the affirmative resolution procedure. A draft commencement order designed to bring section 43 of the 2003 Act into force was considered in standing committee in the House of Commons in November 2005. The order was then due to be debated in the House of Lords but the then Government withdrew the motion to approve it. Subsequently, in November 2006, the Government introduced the Fraud (Trials without a Jury) Bill which sought to repeal the requirement for an affirmative resolution. That Bill was defeated at Second Reading in the House of Lords on 20th March 2007 (Hansard, column 1146-1204).

TERRITORIAL EXTENT

70. The majority of the Bill’s provisions extend to England and Wales only, but certain provisions also extend to Scotland or Northern Ireland or both. In relation to Scotland, the Bill addresses non-devolved matters only; in relation to Wales and Northern Ireland the Bill addresses both devolved and non-devolved matters.

71. The following provisions in the Bill which extend to Scotland relate to reserved matters:

  • The retention of fingerprints and DNA profiles subject to the Terrorism Act 2000 ( “ the 2000 Act”) or Counter-Terrorism Act 2008 (“the 2008 Act”) or retained for national security purposes ( clauses 19 to 22 and Parts 1 and 3 to 6 of Schedule 1);
  • The requirement for local authorities to obtain judicial approval for the application and use of communications data under R egulation of Investigatory Powers (“R IPA ”) (Chapter 2 of Part 2) ;
  • T he provisions in respect of certain powers of entry insofar as such powers relate to reserved matters ( Chapter 1 of Part 3 );
  • The provisions in respect of the maximum periods of pre-charge detention for terrorist suspects (clause s 57 and 58 );
  • The changes to terrorism stop and search powers in clauses 5 9 to 6 3 and Schedule 5;
  • The amendments to the Freedom of Information Act 2000 (“FOIA”) and the Data Protection Act 1998 (“DPA”) (clause 8 4 and Part 6) ; and
  • The power of the Treasury to make provision in respect of taxation in connection with the transfer of property , rights or liabilities of the ISA and the CRB to the Disclosure and Barring Service (clause 89).

72. This Bill does not contain any provisions falling within the terms of the Sewel Convention. Because the Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament, if there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.

73. In relation to Wales, the provisions of the Bill do not relate to devolved matters or confer functions on the Welsh Ministers except for the following:

  • The requirement to obtain parental consent before processing a child’s biometric information in schools and colleges (C hapter 2 of Part 1 );
  • Powers of entry - Chapter 1 of Part 3 confers powers on the Welsh Ministers to make orders repealing, adding safeguards to or rewriting powers of entry and to make a code of practice in relation to powers of entry (and associated powers) in so far as such powers of entry relate to transferred matters;
  • The provision to make the vehicle keeper responsible in certain circumstances for unpaid parking related charges ( clause 56 and Schedule 4 ) ; and
  • The amendments to the Safeguarding Vulnerable Groups Act 2006 and the establishment of the Disclosure and Barring Service (Chapter s 1 and 3 of Part 5).

74. The National Assembly for Wales agreed a legislative consent motion in respect of these provisions on 15th March 2011 (see Official Report at The Record ). If amendments are made to the Bill that further trigger a requirement for a legislative consent motion, the consent of the National Assembly will be sought for them.

75. On 5th May 2011, the Assembly Act provisions of the Government of Wales Act 2006 came into force. Amongst other things, these provisions extended the legislative competence of the National Assembly of Wales to include matters in respect of access to information held by the National Assembly for Wales, the Assembly Commission, the Welsh Assembly Government or Welsh public authorities. Accordingly, to the extent that the provisions in Part 6 of the Bill amending the FOIA relate to such matters, those provisions now also relate to devolved matters.

76. The provisions of the Bill relating to the following excepted or reserved matters also extend to Northern Ireland:

  • The retention of fingerprints and DNA profiles subject to the 2000 Act or 2008 Act, or retained for national security purposes and for the purposes connected with the International Criminal Court ( clauses 19 to 22 and Parts 1 to 4 , 7 and 8 of Schedule 1);
  • The requirement for local authorities to obtain judicial approval for the application and use of covert surveillance powers under RIPA (Chapter 2 of Part 2) ;
  • The provisions relating to p owers of entry insofar as they relate to excepted or reserved matters ( Chapter 1 of Part 3 );
  • The provisions in respect of the maximum periods of pre-charge detention for terrorist suspects (clauses 57 and 58);
  • Changes to the terrorism stop and search powers, including amendments to the stop and search powers in Schedule 3 to the Justice and Security (Northern Ireland) Act 2007 ( Part 4);
  • The amendments to the DPA (clause 8 4 and Part 6) ; and
  • The power of the Treasury to make provision in respect of taxation in connection with the transfer of property, rights or liabilities of the ISA and the CRB to the Disclosure and Barring Service (clause 89).

77. In addition, the following provisions of the Bill relating to transferred matters will also extend to Northern Ireland:

  • The amendments to the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (“SVGO”) (clause 7 8 and Schedule 7) and the Disclosure and Barring Service (Chapter 3 of Part 5 and Schedule 8); and
  • The amendments to the FOIA (clauses 100 , 101 , 10 2 , 10 3 (5) and 10 5 (3) to (4) ).

78. As these provisions relate to transferred matters they require the consent of the Northern Ireland Assembly. The Northern Ireland Assembly agreed a legislative consent motion in respect of the amendments to the SVGO on 21st March 2011 (see Official Report at: The Assembly - Official Report Monday 21 st M a rch 2011 ). A further legislative consent motion was agreed by the Assembly on 27th June 20111 in relation to the Disclosure and Barring Service provisions in Chapter 3 of Part 5 and Schedule 8. On 26th September 20112, the Assembly also agreed a legislative consent motion in relation to the amendments to the FOIA made by Part 6. If amendments are made to the Bill that further trigger a requirement for a legislative consent motion, the consent of the Northern Ireland Assembly will be sought from them.


1 Northern Ireland Assembly minutes of proceedings 27.06.11

2 The Assembly - Official Report Monday 26 September 2011

THE Bill

COMMENTARY ON CLAUSES

Part 1: Regulation of biometric data

Chapter 1: Destruction, retention and use of fingerprints etc.

Clause 1: Destruction of fingerprints and DNA profiles

79. Clause 1 inserts new section 63D into the Police and Criminal Evidence Act 1984 ("PACE") which sets out the basic rules governing the destruction of fingerprints and DNA profiles (collectively referred to as ‘section 63D material’) taken from a person under the powers in Part 5 of PACE or given voluntarily in connection with the investigation of an offence. New section 63D(2) requires the destruction of section 63D material if it appears to the responsible chief officer of police that the material was taken unlawfully, or that the material was taken from a person following an unlawful arrest or where the arrest was as a result of mistaken identity. Any other section 63D material must be destroyed as soon as reasonably practicable, subject to the operation of the provisions in new sections 63E to 63O and 63U of PACE detailed below. It is a general feature of new sections 63D to 63O that material must be destroyed unless one or more of those sections applies to that material, in which case the section which delivers the longest retention period will determine the period of retention. New section 63U(3), as inserted by clause 17, provides that section 63D material need not be destroyed where it may be fall to be disclosed under the Criminal Procedure and Investigations Act 1996 or its attendant Code of Practice.

80. New section 63D(5) of PACE enables a person’s section 63D material, which would otherwise fall to be destroyed, to be retained for a short period until a speculative search of the relevant databases has been carried out. The fingerprints and DNA profile of an arrested person will be searched against the national fingerprint and DNA databases respectively to ascertain whether they match any other fingerprints or DNA profile on those databases. Where such a match occurs, it may serve to confirm the person’s identity, indicate that he or she had previously been arrested under a different name, or indicate that the person may be linked to a crime scene from which fingerprints or a DNA sample had been taken.

Clause 2: Material retained pending investigation or proceedings

81. Clause 2 inserts new section 63E into PACE, which enables material taken from a person in connection with the investigation of an offence to be retained until the conclusion of the investigation by the police or, where legal proceedings are instituted against the person, until the conclusion of those proceedings (for example, the point that charges are dropped or at the outcome of a trial).

Clause 3 : Persons arrested for or charged with a qualifying offence

82. Clause 3 inserts new section 63F into PACE which provides for the further retention of material taken from persons (both adults and juveniles) arrested for or charged with a qualifying offence, but not subsequently convicted. The concept of a qualifying offence is used to distinguish between serious and less serious offences for the purposes of the retention regime. A list of qualifying offences is contained in section 65A(2) of PACE (as inserted by section 7 of the Crime and Security Act 2010 ("the 2010 Act")); the list broadly covers serious violent, sexual and terrorist offences. Where a person who is arrested for, but not convicted of, a qualifying offence has previously been convicted of a recordable offence, that is not an ‘excluded offence’, his or her section 63D material may be retained indefinitely (new section 63F(2)). A recordable offence is defined in section 118 of PACE. In practice, all offences which are punishable with imprisonment are recordable offences, as are around 60 other non-imprisonable offences which are specified in regulations made under section 27 of PACE. An excluded offence for these purposes is a conviction for a minor (that is, non-qualifying) offence, committed when the person was under the age of 18, for which a sentence of less than five years imprisonment (or equivalent) was imposed (new section 63F(11)).

83. Where a person who is charged with, but not convicted of, a qualifying offence has no previous convictions, his or her section 63D material may be retained for three years (new sections 63F(3), (4) and (6)). Where a person with no previous convictions is arrested for a qualifying offence, but is not subsequently charged or convicted, his or her section 63D material may be retained for three years only if a successful application is made under new section 63G to the independent Commissioner for the Retention and Use of Biometric Material appointed under clause 20(1) of the Bill (new section 63F(5)).

84. The standard three-year retention period (whether following being charged with a qualifying offence, or arrested for such an offence and a successful application to the Commissioner) may be extended on a case by case basis with the approval of a District Judge (Magistrates’ Courts). In any particular case, the police may apply during the last three months of the three-year period to a District Judge (Magistrates’ Court) for an order extending the retention period by an additional two years (new section 63F(7), (8) and (9)). The retention period cannot be further extended under this process. The police may appeal to the Crown Court against a refusal by a District Judge (Magistrates’ Court) to grant such an order and the person from whom the material was taken may similarly appeal to the Crown Court against the making of such an order (new section 63F(10)). Separate arrangements (see new section 63M, inserted by clause 9) apply in cases where the retention period is to be extended on national security grounds.

85. New section 63G sets out the procedure for the police to apply to the independent Commissioner for the Retention and Use of Biometric Material to retain section 63D material from a person with no previous convictions who has been arrested for a qualifying offence, but not subsequently charged or convicted. Applications may be made on the basis that either the victim of the alleged offence is vulnerable (which is defined as being under the age of 18, a vulnerable adult or in a close personal relationship with the arrested person) or, in other cases, where the police consider that retention is necessary for the prevention or detection of crime (new section 63G(2) and (3)). Notice of such an application must be given to the person to whom the section 63D material relates (new section 63G(6) to (8)) and that person may make representations to the Commissioner in respect of an application (new section 63G(5)).

Clause 4: Persons arrested for or charged with a minor offence

86. Clause 4 inserts new section 63H into PACE. Where a person is arrested for or charged with a minor offence (that is, a recordable offence which is not a qualifying offence), their section 63D material must be destroyed, unless they have previously been convicted of a recordable offence that is not an ‘excluded offence’ (new section 63H(2)) in which case the material can be retained indefinitely. An excluded offence has the same meaning as in clause 3 (new section 63H(3)).

Clause 5: Persons convicted of a recordable offence

87. Clause 5 inserts new section 63I into PACE, which governs the retention period applicable where a person has been convicted of a recordable offence. Where an adult is convicted of a recordable offence, his or her section 63D material may be retained indefinitely (as now). Where a person under the age of 18 is convicted of a recordable offence, if that offence is a qualifying offence his or her fingerprints and DNA profile may also be retained indefinitely (as now). The retention period in respect of a person under 18 convicted of his or her first minor offence is governed by new section 63K (see clause 7).

Clause 6: Persons convicted of an offence outside England and Wales

88. Clause 6 inserts new section 63J into PACE. The existing sections 61 to 63 of PACE (as amended by section 3 of the 2010 Act) include provisions to take fingerprints and DNA samples from persons convicted of a qualifying offence outside England and Wales. New section 63J provides that the section 63D material of a person obtained under those provisions may be retained indefinitely.

Clause 7: Persons under 18 convicted of first minor offence

89. Clause 7, which inserts new section 63J into PACE, makes provision for the retention of section 63D material taken from persons convicted of a first minor offence, committed when they were under the age of 18. In such cases, the retention period is to be determined by the length and nature of the sentence for that minor offence. Where a custodial sentence of five or more years is imposed, the person’s section 63D material may be retained indefinitely (new section 63K(3)). Where a custodial sentence of less than five years is imposed, the person’s section 63D material may be retained until the end of the sentence (both the period spent in custody and the period of the sentence served in the community) plus a further five years (new section 63K(2)). Where a young person is given a non-custodial sentence on conviction for his or her first minor offence, his or her section 63D material may be retained for five years from the date the material was taken (new section 63K(4)). Any subsequent conviction for the recordable offence, whether before or after they turn 18, will enable the section 63D material to be retained indefinitely (new section 63J(5)).

Clause 8: Persons given a penalty notice

90. Clause 8 inserts new section 63L into PACE, which provides that, where a person is given a penalty notice under section 2 of the Criminal Justice and Police Act 2001, his or her section 63D material may be retained for two years from the date the material was taken (new section 63L(2)). Where a person opts to be tried for the offence for which the penalty notice was issued, that notice will be disregarded and the rules set out in the previous clauses will apply (new section 63L(1)(a)).

Clause 9: Material retained for purposes of national security

91. Clause 9 inserts new section 63M of PACE which makes provision for the retention of material for the purposes of national security. Where a person’s section 63D material would otherwise fall to be destroyed, it may be retained for up to two years where the responsible chief officer of police determines that it is necessary to retain it for the purposes of national security (a ‘national security determination’). A responsible chief officer may renew a national security determination in respect of the same material, thus further extending the retention period by up to two years at a time.

Clause 10: Material given voluntarily

92. Clause 10 inserts new section 63N into PACE, which contains provision for section 63D material that has been given voluntarily to be destroyed as soon as it has fulfilled the purpose for which it was taken, unless the individual is previously or subsequently convicted of a recordable offence, in which case it can be retained indefinitely (new section 63N(3)).

Clause 11: Material retained with consent

93. Clause 11 inserts new section 63O into PACE. New section 63O provides that a person’s section 63D material, which would otherwise fall to be destroyed, may be retained for as long as that person consents in writing to its retention. This provision applies both to material taken in accordance with the powers in Part 5 of PACE and to material given voluntarily. A person may withdraw his or her consent at any time (new section 63O(3)).

Clause 12: Material obtained for one purpose and used for another

94. This clause inserts new section 63P into PACE. Under new section 63P, where a person arrested for one offence is subsequently arrested for, charged with or convicted of a second unrelated offence, the retention of that person’s section 63D material will be governed by the rules applicable to the second offence for which the person is arrested, charged and/or convicted.

Clause 14: Destruction of samples

95. Clause 14 inserts new section 63R into PACE, which provides for the immediate destruction of samples if it appears to the responsible chief officer of police that the material was taken unlawfully, or where the material was taken from a person following an unlawful arrest or where the arrest was as a result of mistaken identity (that is, in the same circumstances as section 63D material (see new section 63D(2), as inserted by clause 1). In addition, DNA samples must be destroyed as soon as a DNA profile has been satisfactorily derived from the sample (including the carrying out of the necessary quality and integrity checks) and, in any event, within six months of the taking of the sample. Any other sample, such as a blood or urine sample taken to test for alcohol or drugs, must similarly be destroyed within six months of it having been taken (new section 63R(5)).

96. New section 63R(6) of PACE enables a person’s DNA or other sample, which would otherwise fall to be destroyed, to be retained until a DNA profile has been derived from the sample and a speculative search of the relevant database has been carried out (that is, in the same circumstances as section 63D material (see new section 63D(5)).

Clause 15: Destruction of impressions of footwear

97. Clause 15 inserts new section 63S into PACE, which governs the retention and destruction of impressions of footwear. Where a footwear impression has been taken under section 61A of PACE or otherwise obtained in connection with the investigation of an offence, it must subsequently be destroyed unless it is necessary to retain it for any of the purposes set out in new section 63S(3).

Clause 16: Use of retained material

98. Clause 16 inserts new section 63T into PACE which restricts the use to which fingerprints, DNA and other samples, DNA profiles and footwear impressions may be put. Such material may only be used for the purposes set out in new section 63T(1). New section 63T(2) provides that material which should otherwise have been destroyed in accordance with new sections 63D, 63R and 63S of PACE must not be used against the person to whom the material relates or for the purposes of the investigation of any offence; any evidence arising from the impermissible use of such material would therefore be likely to be ruled inadmissible in criminal proceedings.

Clause 17: Exclusions for certain regimes

99. This clause inserts new section 63U into PACE, which excludes from the PACE retention regime set out above those persons whose biometric data is held under the Terrorism Act 2000 Act ("the 2000 Act") and those whose fingerprints are held under immigration powers. A broadly equivalent retention regime for terrorist suspects is provided for in Schedule 8 to the 2000 Act, as amended by Part 1 of Schedule 1 to the Bill.

100. New section 63U(3) and (4) provide that section 63D material need not be destroyed where it may fall to be disclosed under the Criminal Procedure and Investigations Act 1996 or its attendant Code of Practice. Where section 63D material is retained in order to comply with that Act, it will be removed from the National DNA Database and held only in hard copy on the police case file, where it will be available for use only in connection with that particular case.

Clause 18: Interpretation and minor amendments of PACE

101. Subsection (2) adds definitions of a "DNA profile", "DNA sample", "responsible chief officer of police", "section 63D material" and "terrorist investigation" into the list of definitions in section 65(1) of PACE.

102. Subsection (3) inserts new subsections (2A) and (2B) into section 65 of PACE. New section 65(2A) ensures that destruction of a DNA sample under clause 14 of the Bill does not give the police grounds to take a fresh sample, while new section 65(2B) provides that, in new sections 63F, 63H, 63P and 63U, the definition of persons who are ‘charged with an offence’ includes (where Part 4 of the Criminal Justice Act 2003 is not in force) those who are informed that they will be reported to a Magistrates’ Court for the issue of a summons to begin criminal proceedings.

103. Subsection (4) adds the offences of robbery and assault with intent to rob under section 8 of the Theft Act 1968 to the definition of qualifying offences in section 65A(2) of PACE.

104. Subsection (5) inserts new section 65B into PACE, which provides that, for the purpose of the rules set out in new sections 63D to 63U of PACE (as inserted by clauses 1 to 17) governing the retention of fingerprints and DNA profiles, a person who has been given a caution (or, in the case of a person under 18, a warning or reprimand) is to be treated in the same way as a person who has been convicted of an offence. In addition, those individuals found not guilty by reason of insanity or otherwise to have committed the offence while under a disability will also be treated as having been convicted of an offence for the purpose of the retention rules as set out in those sections of PACE. New section 65B(2) provides that the retention rules in Part 5 of PACE, as amended, are to apply irrespective of the provisions of the Rehabilitation of Offences Act 1974 (under that Act certain offences are treated as being spent, and therefore to be disregarded for most purposes, after the expiry of specified rehabilitation periods). However, by virtue of new section 65B(3), a person is not to be regarded as having been convicted of or cautioned for an offence under section 12 (buggery) or 13 (gross indecency between men) of the Sexual Offences Act 1956 ("the 1956 Act") (and similar offences) if that conviction or caution is disregarded under the provisions in Chapter 4 of Part 5 of the Bill. Accordingly, if a person was arrested for an offence and that person had no previous conviction save for a disregarded conviction, his fingerprints and DNA profile taken following the arrest could not be retained indefinitely as would be the case if the previous conviction or caution for an offence under section 12 or 13 of the 1956 Act had not been disregarded.

Clause 19: Amendments of regimes other than PACE

105. Clause 19 gives effect to Schedule 1.

Schedule 1: Amendments of regimes other than PACE

Part 1: Material subject to the Terrorism Act 2000

106. Paragraph 14 of Schedule 8 to the Terrorism Act 2000 ("the 2000 Act") as originally enacted provides for the retention of fingerprints and samples (and DNA profiles derived from samples) taken from persons detained under section 41 of or Schedule 7 to the 2000 Act (that is persons arrested as a suspected terrorist or persons detained under the ports and border control provisions in Schedule 7) without reference to a retention period. Paragraph 14 also sets out the purposes for which these fingerprints, samples and profiles may be used.

107. Paragraph 14 of Schedule 8 to the 2000 Act is repealed by Part 1 of Schedule 1 to this Bill. Paragraph 1(4) inserts new paragraphs 20A to 20I into Schedule 8 of the 2000 Act, which make provision for a destruction and retention regime broadly equivalent to that set out in new sections 63D to 63T of PACE. It is a general feature that material must be destroyed unless it is retained under a power conferred under new paragraphs 20B to 20E; except in the case of samples which must be destroyed as soon as a DNA profile has been satisfactorily derived from the sample and in any event within six months of taking the sample (new paragraph 20G). The time limits for retention depend on whether the person has previous convictions or one exempt conviction (that is, a conviction for a minor offence committed when they were under 18) and whether the person has been detained under section 41 of (arrest on reasonable suspicion of being a terrorist), or under Schedule 7 to (detention at ports and borders) the 2000 Act. Where, following detention under section 41 or Schedule 7, the person is convicted of a recordable offence in England and Wales or Northern Ireland or an offence punishable by imprisonment in Scotland (or where the person already has such a conviction in England and Wales or Northern Ireland, other than an exempt conviction), the material need not be destroyed and may be retained indefinitely.

108. As is the case in relation to section 63D material in PACE, where fingerprints or DNA profiles would otherwise need to be destroyed, if a chief officer of police (or chief constable in Northern Ireland) determines that it is necessary to retain that material for the purposes of national security, that material may be further retained for up to two years (new paragraph 20E). It is open to that chief officer to renew a national security determination in respect of the same material to further extend the retention period by up to two years at a time.

109. New paragraph 20F replicates the effect of the new provisions in new section 63Q of PACE in relation to the destruction of copies of fingerprints and DNA profiles. New paragraph 20H largely replicates the provisions as originally enacted in paragraph 14 of Schedule 8 to the 2000 Act (as prospectively amended by section 16 of the Counter-Terrorism Act 2008 ("the 2008 Act") in relation to the uses to which retained material may be put; it may be used in the interests of national security, for the purposes of a terrorist investigation, for the investigation of crime or for identification-related purposes (sub-paragraph (1)). Where a responsible chief officer of police considers that a relevant search (that is, the checking of fingerprints or DNA profiles against other material held) is desirable, paragraph 20H(2) provides an express power to carry out such a search. Paragraph 20H(3) is also new, and provides that, once the new requirement to destroy material applies, the material cannot be used in evidence against the person to whom it relates or for the purposes of the investigation of any offence.

110. Paragraph 1 ( 5 ) to ( 8 ) makes further consequential amendments to Schedule 8 to the 2000 Act.

Part 2: Material subject to the International Criminal Court Act 2001

111. Fingerprints and samples may be taken from a person under Schedule 4 to the International Criminal Court Act 2001 if the International Criminal Court ("ICC") requests assistance in obtaining evidence of the identity of a person (who will usually be a person suspected of committing an "ICC crime" such as genocide or war crimes). Part 2 of Schedule 1 substitutes a new paragraph 8 of Schedule 4 to the International Criminal Court Act 2001 to make provision for the retention and destruction of material taken under that Schedule, so that all material must be destroyed within six months of it being transferred to the ICC or, if later, as soon as it has fulfilled the purposes for which it was taken.

Part 3: Material subject to section 18 of the Counter-Terrorism Act 2008

112. Part 3 inserts a new section 18 and new sections 18A to 18E into the 2008 Act (section 18 of the 2008 Act has not been brought into force). New section 18 makes provision for the destruction of material that is not subject to existing statutory restrictions.

113. New section 18 makes provision for the retention by law enforcement authorities under the law of England and Wales and Northern Ireland of fingerprints, DNA samples and profiles obtained by or supplied to the authority in the way described in section 18(3) (mostly covertly acquired material and material supplied by overseas authorities) and which is not subject to "existing statutory restrictions" such as those set out in PACE or in Schedule 8 to the 2000 Act. It is a general feature that material must be destroyed unless it is retained under a power conferred under new sections 18A and 18B; except in the case of samples which must be destroyed as soon as a DNA profile has been satisfactorily derived from the sample and in any event within six months of taking the sample.

114. New section 18A makes provision for limited retention of material taken from persons with no previous convictions. New section 18B provides for extended retention for the purposes of national security. Where fingerprints or DNA profiles would otherwise need to be destroyed (because of the expiry of a time limit set out in the new provisions), if the ‘responsible officer’ determines that it is necessary to retain that material for the purposes of national security, those fingerprints or DNA profiles may be further retained for up to two years. It is open to that chief officer to renew a national security determination in respect of the same material to further extend the retention period by up to two years at a time. ‘Responsible officer’ is defined in new section 18E.

115. New section 18C replicates the effect of the new provisions in new section 63Q of PACE (destruction of copies) and new paragraph 20F of Schedule 8 to the 2000 Act about the destruction of copies of fingerprints and DNA profiles that are held by a law enforcement agency. New section 18D makes provision about the purposes for which material may be used which are the same as those now included in new section 63T of PACE. It also includes (new section 18(2)) an express power for section 18 material to be checked it against other material (held by law enforcement authorities or the Scottish Police Services Authority). New section 18D(3) provides that, once the new requirement to destroy material applies, the material cannot be used in evidence against the person to whom it relates or for the purposes of the investigation of any offence. New section 18E provides definitions of terms used in new sections 18 to 18D.

Part 4: Material subject to the Terrorism Prevention and Investigation Measures Act 2011

116. Paragraph 5 amends Schedule 6 to the Terrorism Prevention and Investigation Measures ("TPIM") Act 2011 (as it will become) which makes provision for the taking and retention of biometric material from a person subject to a TPIM notice. This paragraph makes similar provision to new section 65B(3) of PACE (see clause 18), namely that for the purpose of the rules set down in Schedule 6 to the TPIM Act governing the retention of fingerprints and DNA profiles, a person is not to be regarded  as having been convicted of or cautioned for an  offence under section 12 (buggery) or 13 (gross indecency between men) of the Sexual Offences Act 1956 (and similar offences) if that conviction or caution is disregarded under the provisions of Chapter 4 of Part 5 of the Bill.

Part 5: Material subject to the Criminal Procedure (Scotland) Act 1995

117. Paragraph 6 (3) inserts new section 18G into the Criminal Procedure (Scotland) Act 1995 This provides that where relevant physical data, samples or information derived from samples taken under the powers mentioned in that new section would otherwise need to be destroyed because of the expiry of a time limit set out in the new provisions, if the ‘relevant chief constable’ determines that it is necessary to retain that material for the purposes of national security, those fingerprints or DNA profiles may be further retained for up to two years. The relevant chief constable may make further determinations to retain the material, which again have effect for a maximum of two years. ‘Relevant chief constable’ is defined in new section 18G(6) and paragraph 6 (2) and (4) make consequential amendments to the Criminal Procedure (Scotland) Act.

Part 6: Material subject to the Criminal Justice (Scotland) Act 2003

118. Section 56 of the Criminal Justice (Scotland) Act 2003 currently provides for the retention and use of samples or relevant physical data where that material has been given voluntarily. This Part amends section 56(2) and (8) of the Criminal Justice (Scotland) Act 2003 to allow material which is given voluntarily to also be used in the interests of national security or for the purposes of a terrorist investigation. 

Part 7: Material subject to the Police and Criminal Evidence (Northern Ireland) Order 1989

119. This Part makes provision in respect of Northern Ireland equivalent to that in clause 9 (material retained for the purposes of national security) in respect of England and Wales.

Part 8: Corresponding Northern Ireland provision for excepted or reserved matters etc.

120. Part 7 confers two order-making powers on the Secretary of State to amend the Police and Criminal Evidence (Northern Ireland) Order 1989 in respect of the retention and destruction of fingerprints and DNA for excepted or reserved purposes, that is, where retention is in the interests of national security or for the purposes of a terrorist investigation. The Police and Criminal Evidence (Northern Ireland) Order 1989 makes provision for the taking, retention and destruction of fingerprints and DNA by police in Northern Ireland for transferred purposes and closely reflects the provisions in Part 5 of PACE which operates in England and Wales. The order making powers conferred on the Secretary of State by paragraph 9 (2) and (3) are required as the Northern Ireland Assembly is expected to legislate in the near future, following public consultation, in relation to the taking and retention of fingerprints and DNA for transferred purposes (in response to the ECtHR judgment in the case of S and Marper v UK [2008] ECHR 1581]). It is only when this legislation is enacted that the Secretary of State can make certain further provision in relation to excepted and reserved matters. By virtue of paragraph 9 (6) and (7), an order made under this paragraph is subject to the affirmative resolution procedure if it amends or repeals primary legislation but is otherwise subject to the negative resolution procedure.

Clause 20: Appointment and functions of Commissioner

121. Subsection (1) places a duty on the Secretary of State to appoint a Commissioner for the Retention and Use of Biometric Material (the Commissioner). Subsection ( 10 ) makes provision for the terms of the Commissioner’s appointment and for the payment of allowances to the Commissioner and of his or her expenses. Subsection ( 11 ) enables the Secretary of State to provide staff, accommodation, equipment and other facilities to support the work of the Commissioner.

122. Subsection (2) confers on the Commissioner the function of keeping under review determinations made by chief officers of police and others that the fingerprints and DNA profiles of a person are required to be retained for national security purposes, and the use to which fingerprints and DNA profiles so retained are being put.

123. To enable the Commissioner to discharge this function, subsection (3) requires persons making national security determinations to notify the Commissioner in writing of the making of a determination, including a statement of the reasons why it was made, and to provide such other documents or information as the Commissioner may require in the exercise of his or her functions.

124. Subsections ( 4 ) and ( 5 ) enable the Commissioner, having reviewed a national security determination, to order the destruction of the fingerprints and DNA profile held pursuant to it where he or she is satisfied that a determination should not have been made. There is no appeal against such a ruling by the Commissioner save by way of judicial review. The Commissioner may not order the destruction of material that could otherwise be retained pursuant to any other statutory provision, for example under the provisions in new section 63F(5) and (9) of PACE (as inserted by clause 3).

125. Subsections (6) to (8) confer on the Commissioner a general function of keeping under review the retention and use, by the police and others, of fingerprints and DNA profiles not subject to a national security determination, whether taken under PACE, the 2000 Act, the 2008 Act or the Terrorism Prevention and Investigation Measures Act 2011.

126. Subsection (9) provides that the Commissioner also has the function of determining (in response to applications by the police) whether the fingerprints and DNA profiles of persons arrested for, but not charged with, a qualifying offence may be retained pursuant to the provisions in clause 3.

Clause 2 1 : Reports by Commissioner

127. Subsection s (1) and (2) require that the Commissioner make an annual report to the Secretary of State and enables the Commissioner to make such other reports on any matter relating to the Commissioner’s functions. The Secretary of State may also, at any time, commission a report from the Commissioner on any matter relating to the retention and use of biometric material by law enforcement authorities for national security purposes (subsection (3)). The Secretary of State is required to lay any report from the Commissioner before Parliament, but before doing so he or she may exclude from publication any part of the report which would, in his or her opinion, be contrary to the public interest or prejudicial to national security (subsections (4) and (5)).

Clause 2 2 : Guidance on making national security determination s

128. Subsection (1) places a duty on the Secretary of State to issue guidance as to the making or renewing of national security determinations. The draft of such guidance, and any revisions to it, must be laid before each House of Parliament which must approve an order giving effect to the guidance, or revised guidance, before it can come into force (subsections ( 5 ) and (6)). Chief officers of police and others who may make national security determinations are required to have regard to such guidance (subsection (2)).

Clause 23: Inclusion of DNA profiles on National DNA Database

129. Clause 23 inserts a new section 63AA into PACE which places on a statutory footing the existing National DNA Database. The new section requires DNA profiles taken under PACE or in connection with an investigation to be recorded on the relevant database. The National DNA Database is maintained and operated by the National Police Improvement Agency on behalf of the police; as at 31st December 2010 it contained 6.49 million DNA profiles (representing 5.56 million individuals).

Clause 24: National DNA Database Strategy Board

130. Clause 24 inserts new section 63AB into PACE, which provides for the Secretary of State to make arrangements for a National DNA Database Strategy Board. Such a Board already exists, and reports to the Home Secretary, providing strategic oversight of the application of powers under PACE for taking and using DNA. The principal members of the Board are the Association of Chief Police Officers, the Association of Police Authorities (in future, following the enactment of the Police Reform and Social Responsibility Bill, a representative of Police and Crime Commissioners) and the Home Office, but there is also an independent element to the Board from non-police bodies such as the Information Commissioner and the National DNA Database Ethics Group. This clause puts the Board on a statutory footing and requires the Secretary of State to lay the Board’s governance rules and annual reports before Parliament (new section 63AB(8) and (9)).

131. New section 63AB(2) requires the Board to issue guidance to chief officers on the circumstances in which DNA samples and profiles should be removed immediately from the National DNA Database. Chief officers will be required to act in accordance with the Board’s guidance (new section 63AB(3)). Following consultation with the Commissioner for the Retention and Use of Biometric Material the Board will also have the power to issue guidance to the police on the making of applications under new section 63G (inserted by clause 3) to retain material from those arrested for, but charged with, a qualifying offence (new section 63AB(4) and (5)).

Clause 25: Material taken before commencement

132. Clause 25 requires the Secretary of State to make an order (subject to the negative resolution procedure) prescribing the manner, timing and other procedures in respect of destroying relevant biometric material already in existence at the point this legislation comes into force. This will enable the Secretary of State to ensure that the retention and destruction regime set out in Chapter 1 of Part 1 of the Bill is applied to existing material, while recognising that this exercise may take some time to complete; for example, there are just over one million profiles of unconvicted persons on the National DNA Database.

Chapter 2 of Part 1: Protection of biometric information of children in schools etc.

Clause 26: Requirement for consent before processing biometric information

133. Subsections (1) and (2) provide that proprietors of schools or the governing bodies of colleges must not process a child’s biometric information unless each parent gives their consent (subject to certain limited exceptions where, in certain circumstances, the consent of only one parent may be required (see clause 27)). A child means any person under the age of 18 (see clause 28(1)). Consent under this provision is only required if the information is to be used for the purposes of an automated biometric recognition system (defined in clause 28(4)), such as a finger-print recognition system.

134. Subsection (4) provides that proprietors of schools and the governing bodies of colleges must not process, or continue to process, a child’s biometric data if that child objects to its processing, irrespective of the child’s age, maturity or ability to understand. This is the case even if each parent has consented to the information being processed.

135. Subsection (6) requires schools and colleges to provide a child with a reasonable alternative to an automated biometric system where the child objects to the processing of his or her biometric information, or where any parent does not consent to such processing. Such alternatives must allow the child to access any facility (for example, library facilities) that they would have had access to if using the biometric system, and to be subject to any monitoring or control (for example, monitoring of attendance) that they would have been subject to if using the biometric system.

Clause 27: Exceptions and further provision about consent

136. Subsection (1) sets out certain exceptions to the requirement that consent be obtained from a parent including circumstances where a parent cannot be found, a parent lacks the mental capacity to consent and where the child’s welfare requires that a parent is not contacted.

137. Subsection (2) provides that consent given by a parent to a school or college to process their child’s biometric data can be withdrawn at any time. Once consent is withdrawn, the proprietors of the school or college must stop processing the child’s biometric data. The Data Protection Act 1998 will, in such circumstances, require that any personal data held by the school or college for the purposes of a biometric identification system must be destroyed; the school or college should do so as soon as practicable.

138. Subsection (3) provides that parents’ consent must be in writing. Where consent is given verbally, the school cannot process the child’s biometric information; any withdrawal of consent must also be in writing.

Clause 28: Interpretation: Chapter 2

139. This clause defines various terms used in Chapter 2 of Part 1.

140. Subsection (2) defines ‘biometric information’ as information about a person’s physical or behavioural characteristics or features from which he or she can be identified, and which have been obtained or recorded so that it can be used for the purposes of an automated biometric recognition system. Subsection (3) provides a non-exhaustive list of biometric information that includes data pertaining to fingerprints, skin patterns, features of a person’s palm, features of a person’s eye, and information about a person’s voice or handwriting. Subsection ( 4 ) defines a biometric recognition system as a system which operates automatically and processes biometric information in order to recognise or identify an individual.

141. Subsections ( 5 ) to ( 8 ) define who is a ‘parent’ for the purpose of Chapter 2. The definition is such that under clause 26 consent must be obtained from a child’s mother, father and any other individual who has parental responsibility for the child. Subsections ( 6 ) to (8) apply where it has not been possible to obtain consent from any of these individuals; in such circumstances consent is to be sought from the child’s carers unless the child has been placed with the carer by a local authority or a voluntary organisation, in which case, parental consent must be obtained from the local authority or, as the case may be, the voluntary organisation.

Part 2: Regulation of surveillance

Chapter 1: Regulation of CCTV and other surveillance camera technology

Clause 29: Code of practice for surveillance camera systems

142. Subsection (1) requires the Secretary of State to prepare a code of practice in relation to surveillance camera systems. The term ‘surveillance camera systems’ is defined in subsection (6) and includes Closed Circuit Television ("CCTV") and Automatic Number Plate Recognition ("ANPR") systems. Subsection (2) stipulates that the code must include guidance in relation to the development or use of such systems, or the use and processing of images derived from them. The latter could include, for example, what images are retained; how they are stored and for how long; and to what uses they might subsequently be put.

143. Subsection (3) lists more detailed issues that may be included in the code. These include advice about factors to consider when deciding whether the use of such equipment is appropriate (subsection (3)(a)); standards for equipment and operators (subsection (3)(c),(f) and (g)); and the provision of information to the public about aspects of such systems, including complaints procedures (subsection (3)(e) and (i)).

144. Subsection (4) provides that the code need not provide guidance in relation to every type of surveillance camera system. This is intended primarily to avoid a requirement to provide comprehensive guidance in relation to niche or emerging technologies not yet likely to have widespread application. It further provides that the extent of any guidance provided need not be identical in respect of each type of system, or may be suitably tailored to the type and usage of the system in question.

145. Subsection (5) requires the Secretary of State when preparing a code of practice to consult certain specified bodies and office holders, namely: the representative bodies of persons required to have regard to the code (as provided for in clause 33(1)); the Association of Chief Police Officers; the Information Commissioner (responsible for the oversight of the Data Protection Act 1998; the Chief Surveillance Commissioner (appointed under Part 3 of the Police Act 1997 and responsible for oversight of the conduct of covert surveillance and covert human intelligence sources under that Act and Regulation of Investigatory Powers Act 2000; the Surveillance Camera Commissioner (see clause 34); and the Welsh Ministers. Other persons may be added to this list at the discretion of the Secretary of State.

Clause 30: Issuing of the code

146. This clause sets out the parliamentary procedure for approving the first surveillance camera code made under the preceding clause. Subsection (1) requires the Secretary of State to lay the proposed code before Parliament together with a draft order bringing the code into force. Such an order is subject to the affirmative resolution procedure (subsection (2)). If the draft order bringing into force the first code of practice is not approved the Secretary of State is required to prepare a revised code; the draft order bringing such a revised code into force is again subject to the affirmative procedure (subsection (4 )).

147. Subsection (7) disapplies the hybridity procedure should such procedure apply to the order made under this clause. Some statutory instruments which need to be approved by both Houses are ruled to be hybrid instruments because they affect some members of a group (be it individuals or bodies) more than others in the same group. Hybrid instruments are subject to a special procedure which gives those who are especially affected by them the opportunity to present their arguments against the statutory instrument to the Hybrid Instruments Committee and then, possibly, to a Select Committee charged with reporting on its merits. The hybrid instrument procedure is unique to the House of Lords and the process must be completed before the instrument can be approved by both Houses.

Clause 31: Alteration or replacement of the code

148. This clause places a duty on the Secretary of State to keep the surveillance camera code of practice under review; the Secretary of State may, in the light of such a review, amend the existing code or substitute a new code (subsection (1)). Subsection (2) requires that in making any alteration to the code or when introducing a new code the Secretary of State must again consult the persons listed in clause 29(5). Subsections (3) to ( 9 ) makes provision relating to the issuing of a replacement or amended code. In particular, either House of Parliament has 40 days (excluding any period during which Parliament is not sitting for more than four days) in which to pass a resolution refusing to approve the code. If such a resolution is passed then the Secretary of State may prepare another code of practice or amended code of practice for resubmission. Where no resolution is passed, the replacement or amended code will come into force at the end of the 40-day period.

Clause 32: Publication of code

149. This clause requires the Secretary of State to publish the surveillance camera code of practice once approved under clause 30, and any subsequent revisions to that code or any replacement code.

Clause 33: Effect of code

150. Subsection (1) provides that certain specified bodies or organisations (referred to as a "relevant authority") must have regard to the code if they operate or intend to operate any surveillance camera systems covered by the code. The bodies designated in the first instance as relevant authorities are set out in subsection (5), namely local authorities, police and crime commissioners and chief officers of police.

151. Subsection (5)(k) provides that the Secretary of State may, by order (subject to the affirmative resolution procedure (subsection (9))), designate other individuals or bodies, or descriptions thereof, as "relevant authorities" for the purposes of this clause, thus requiring such designated bodies also to have regard to the code. Such an order may provide that a person designated as a relevant authority by virtue of such order is only required to have regard to the surveillance camera code of practice when discharging specified functions or acting in a specified capacity (subsection (6) and (7)). This is intended to provide for those instances where certain bodies have dual or multiple roles or, for example, exercise both public functions and private sector functions, and where the duty to have regard to the code may therefore be limited to the exercise of one, or one part of, their functions. Before making such an order the Secretary of State must consult the persons to be affected by it, or their representative body, together with other specified persons (subsection (8)). Subsection (10) disapplies the hybridity procedure should such procedure apply to an order made under subsection (5)(k).

152. Subsection (2) provides that a failure to adhere to any aspects of the code of practice would not, of itself, render a person liable to civil or criminal proceedings. However, the surveillance camera code is admissible in criminal or civil proceedings (subsection (3)) and a court or tribunal may take into account any failure of a relevant authority to comply with the duty to have regard to the code (subsection (4)).

Clause 34: Commissioner in relation to code

153. Subsection (1) requires the Secretary of State to appoint a Surveillance Camera Commissioner. Subsection (2) sets out the Commissioner’s responsibilities, namely promoting and encouraging compliance with the surveillance camera code of practice amongst users; reviewing how the code is working; and providing advice about the code (which may include, for example, advice to users of surveillance systems, members of the public, and Ministers as necessary). Subsection (3) makes provision for the terms of the Commissioner’s appointment and for the payment of allowances to the Commissioner and of his or her expenses. Subsection (4) enables the Secretary of State to provide staff, accommodation, equipment and other facilities to support the work of the Commissioner.

Clause 35: Reports by Commissioner

154. Clause 35 requires the Commissioner to send an annual report to the Secretary of State who must, in turn, lay the report before Parliament. The Commissioner must publish the report (subsection ( 1 )).

Clause 36: Interpretation: Chapter 1

155. Clause 36 contains definitions of the terms "the Commissioner", "surveillance camera code" and "surveillance camera systems" as used in this Chapter.

Chapter 2 of Part 2: Safeguards for certain surveillance under RIPA

Clause 37: Judicial approval for obtaining or disclosing communications data

156. Clause 37 inserts new sections 23A and 23B into the Regulation of Investigatory Powers Act 2000 ("RIPA") which provide a procedure by which local authority authorisations or notices to obtain "communications data", or renewals of those authorisations or notices, can only come into effect if approved by a relevant judicial authority. In England and Wales, the judicial authority is a justice of the peace (Magistrates’ Court), in Northern Ireland it is a district judge (magistrates’ court) and in Scotland, a sheriff. The clause also provides a mechanism by which the requirement for judicial approval may be applied to authorisations or notices granted by officials in other public authorities by order made by the Secretary of State.

157. Communications data is defined in section 21 of RIPA. In summary it is information such as telephone numbers dialled, times of calls, details of callers and receivers, and website addresses. In the case of postal items, communications data includes anything written on the outside of the item. Under Chapter 2 of Part 1 of RIPA, conduct consisting in the acquisition or disclosure of communications data is rendered lawful if it is authorised or carried out pursuant to an authorisation or notice granted or given in accordance with the provisions in sections 22 and 23 of RIPA.

158. Authorisations must not be granted or renewed, and notices must not be given or renewed, save by a person of a description designated by order under section 25(2) of RIPA. The designated person must not grant or renew an authorisation, or give or renew a notice, unless they believe that it is necessary to obtain the data on grounds specified in section 22 of RIPA, and that obtaining the data in question is proportionate to what is sought to be achieved by obtaining the data. By section 25(3), the Secretary of State may by order impose restrictions on the types of authorisations or notices that may be granted by individuals within specified public authorities, and on the circumstances in which, and the purposes for which, authorisations may be granted or notices given by those individuals. In the case of local authorities, such designated persons must be staff of Director, Head of Service or Service Manager grade or equivalent. These designated persons may not grant authorisations or notices save for the purpose of preventing or detecting crime or preventing disorder (see the Regulation of Investigatory Powers (Communications Data) Order 2010 (SI 2010/480)).

159. New section 23A(1) of RIPA provides that the provisions in new section 23A apply where a "relevant person" has granted or renewed an authorisation, or given or renewed a notice under section 24 of RIPA. New section 23A(6) defines a "relevant person" for these purposes as either a designated person within a local authority in England, Wales or Scotland, or a designated person in Northern Ireland where the grant, renewal or authorisation relates to an excepted or reserved matter. A relevant person may also be any other person of a description prescribed by order of the Secretary of State. Such an order cannot make provision in relation to a matter that has been transferred to the competence of the Northern Ireland Assembly. An order made by the Secretary of State to prescribe additional relevant persons to whom the judicial approval requirement will apply would be subject to the affirmative resolution procedure (new section 23A(7)). By this mechanism the requirement to obtain judicial approval for the use of the powers to obtain or disclose communications data will only initially apply to local authorities, but the Secretary of State will subsequently be able to extend the requirement to other public bodies able to exercise these powers.

160. New section 23A(2) provides that an authorisation or notice granted or renewed under the relevant provisions in section 22 of RIPA will not take effect until the "relevant judicial authority" has given its approval. The relevant judicial authority is defined in new section 23A(6).

161. New section 23A(3) sets out the test for the judicial approval of a local authority authorisation, or renewal of an authorisation, to obtain communications data. The relevant judicial authority must be satisfied that not only were there reasonable grounds for the designated person to believe that obtaining communications data was necessary and proportionate (subsection (3)(a)(i)), but that there also remain reasonable grounds for believing so (subsection (3)(b)). The judicial authority must also be satisfied that the "relevant conditions", which relate to the authorisation or notice, were met (subsection (3)(a)(ii)). These relevant conditions are set out at subsection (5).

162. New section 23A(4) sets out the same test for the judicial approval of the giving and renewal of notices to obtain communications data.

163. New section 23A(5) lists the relevant conditions that must be met if the relevant judicial authority is to approve the making or renewing of an authorisation or notice. For local authorities, in England, Wales and Scotland (and in Northern Ireland where the authorisation or notice is granted or given for the purpose relating to an excepted or reserved matter), these conditions are: (a) whether the person making the authorisation was of the correct office, rank or position and was accordingly a designated person within the meaning of Chapter 2 of Part 1 of RIPA; (b) whether the authorisation or notice was in breach of any other restrictions imposed by the Secretary of State by virtue of the power at section 25(3); and (c) whether the authorisation or notice satisfied any other conditions set out in an order (subject to the negative resolution procedure) made by the Secretary of State. In relation to conditions (a) and (b), the Regulation of Investigatory Powers (Communications Data) Order 2010 (SI 2010/480) applies. For authorisations or notices granted or given by public authorities other than local authorities to which the judicial approval requirement may in the future be applied, the relevant conditions are those that will be set out in an order (subject to the negative resolution procedure) made by the Secretary of State. New section 23A(6) defines various terms used in new section 23A.

164. New section 23B sets out the procedure for obtaining judicial approval for an authorisation, or notice, to obtain communications data.

165. New section 23B(1) provides that the public authority to which the relevant person (authorising officer) belongs may apply for approval from the relevant judicial authority for an authorisation or a notice to obtain communications data. The relevant person is not required to apply in person; the same procedure applies to renewals.

166. New section 23B(2) provides that notice of such applications need not be given to either the subject of the authorisation or notice or their legal representatives; this reflects the covert nature of the exercise of the investigatory powers under RIPA.

167. New section 23B(3) allows the relevant judicial authority on refusing an approval of an authorisation or a notice to quash that authorisation or notice.

Clause 38: Judicial approval for directed surveillance and covert human intelligence sources

168. Subsection (1) inserts new sections 32A and 32B into RIPA which provide a procedure by which local authority authorisations in England, Wales and Northern Ireland for the use of directed surveillance and the conduct and use of covert human intelligence sources ("CHIS") can only come into effect if approved by a relevant judicial authority. In England and Wales the judicial authority is a justice of the peace (Magistrates’ Court). In Northern Ireland it is a district judge (magistrates’ court). The requirements also apply to renewals of authorisations. The clause further provides a mechanism by which the requirement for judicial approval may be applied to authorisations granted by officials in other public authorities by order made by the Secretary of State.

169. Directed surveillance is defined in section 26(2) of RIPA as covert surveillance for the purpose of a specific investigation which is likely to obtain private information and which is not intrusive surveillance (that is, it is not surveillance carried out in relation to anything taking place on residential premises or in any private vehicle). A CHIS is defined in section 26(8) of RIPA as a person who establishes or maintains a personal or other relationship with another for, amongst other things, the covert purpose of using such a relationship to obtain or disclose information to others.

170. Under Part 2 of RIPA, directed surveillance or the conduct and use of a CHIS is rendered lawful if it is authorised and carried out pursuant to an authorisation granted under section 28 of RIPA (for directed surveillance) or section 29 of RIPA (for CHIS). An authorisation may not be granted except by a person designated by order made under section 30(1) of RIPA. The designated person must not grant or renew the authorisation unless they believe that the conduct is necessary on grounds specified in section 28(3) or section 29(3) of RIPA, and that the conduct is proportionate to what is sought to be achieved by carrying it out. By section 30(3), the Secretary of State may by order impose restrictions on the types of authorisations that may be granted by individuals within specified public authorities, and on the circumstances in which and the purposes for which authorisations may be granted or renewed by those individuals. In the case of local authorities, such designated persons must be staff of Director, Head of Service or Service Manager grade or equivalent. These designated persons must not grant or renew the authorisations save for the purposes of preventing or detecting serious crime or preventing disorder (see the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Services) Order 2010 (SI 2010/521)).

171. New section 32A(1) provides that the provisions in new section 32(A) apply where a "relevant person" has granted an authorisation under section 28 (authorisation of directed surveillance) or section 29 (authorisation of CHIS) of RIPA. New section 32A(7) defines a relevant person for these purposes as either a designated person in a local authority in England and Wales, or a designated person in Northern Ireland where the grant relates to an excepted or reserved matter. A relevant person may also be any other person of a description prescribed by order of the Secretary of State. Such an order cannot make provision in relation to a matter that has been transferred to the competence of the Northern Ireland Assembly. An order made by the Secretary of State to prescribe additional relevant persons to whom the judicial approval requirement will apply would be subject to the affirmative resolution procedure (new section 32A(8)). By this mechanism the requirement to obtain judicial approval for the use of the powers in respect of directed surveillance or CHIS will only initially apply to local authorities, but the Secretary of State will subsequently be able to extend the requirement to obtain judicial approval to other public bodies able to exercise these powers.

172. New section 32A(2) provides that an authorisation granted under the relevant provisions in section 28 or section 29 of RIPA will not take effect until the "relevant judicial authority" has given its approval. The relevant judicial authority for these purposes is defined in new section 32A(7).

173. New section 32A(3) sets out the test for the judicial approval of an authorisation in respect of directed surveillance. The relevant judicial authority must be satisfied that not only were there reasonable grounds for the designated person within the local authority to believe that using directed surveillance was necessary and proportionate (subsection (3)(a)(i)), but that there also remain reasonable grounds for believing so (subsection (3)(b)). The relevant judicial authority must also be satisfied that any other "relevant conditions" which relate to the authorisation were met (subsection (3)(a)(ii)). These relevant conditions are set out at subsection (4).

174. New section 32A(4) lists the relevant conditions which must be met if the relevant judicial authority is to approve the granting of an authorisation in respect of directed surveillance. For local authorities in England and Wales (and in Northern Ireland where the authorisation or notice is granted or given for a purpose relating to an excepted or reserved matter) the conditions are: (a) whether the person making the authorisation was of the correct office, rank or position and was accordingly a designated person for the purposes of section 29 of RIPA; (b) whether the authorisation was in breach of any other restrictions imposed by the Secretary of State by virtue of the power at section 30(3); and (c) whether the authorisation or notice satisfied any other conditions set out in an order (subject to the negative resolution procedure) made by the Secretary of State. In relation to conditions (a) and (b), the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (SI 2010/521) applies. For authorisations granted by public authorities other than local authorities to which the judicial approval requirement may in the future be applied, the relevant conditions are those that will be set out in an order (subject to the negative resolution procedure) made by the Secretary of State.

175. New section 32A(5) sets out the test that the judicial approval must meet for the granting of an authorisation to use CHIS. The relevant judicial authority must be satisfied that there were reasonable grounds for the designated person within the local authority to believe that using a CHIS was necessary and proportionate in that case, and that there remain reasonable grounds for believing so. The relevant judicial authority will also need to be satisfied that when the authorisation was granted there were reasonable grounds for believing, and there remain reasonable grounds for believing, that the arrangements for the source’s case satisfied the requirements of section 29(5) of RIPA (which includes arrangements relating to the oversight of the source, the welfare of the source and record keeping) and any additional requirements as have been imposed by order made by the Secretary of State under section 29(7)(b) of RIPA were satisfied. The judicial authority must also be satisfied that the "relevant conditions" which relate to the authorisation were met (subsection (5)(a)(ii)). These are set out at subsection (6).

176. New section 32A(6) lists the other relevant conditions that must be met if the relevant judicial authority is to approve the granting of an authorisation in respect of the use of a CHIS by a local authority. In the case of an authorisation granted by a local authority in England and Wales (and in Northern Ireland where the authorisation is granted in relation to an excepted or reserved matter), the conditions are: (a) that whether the person granting the authorisation was of the correct office, rank or position and was therefore a designated person within the meaning of section 29 of RIPA; (b) whether the authorisation was in breach of any prohibition imposed by an order made under section 29(7)(a) or any restrictions made by the Secretary of State by virtue of the power at section 30(3); and (c) whether the authorisation or notice satisfied any other conditions that may be set out in an order (subject to the negative resolution procedure) made by the Secretary of State. In respect of the second of these conditions, the Regulation of Investigatory Powers (Juveniles) Order 2010 (SI 2000/2793) imposes certain restrictions where the CHIS is under 18 years and the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2010 (SI 2010/123) imposes certain restrictions to protect information that is legally privileged. In relation to the first and second conditions, the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (SI 2010/521) applies. For public authorities other than local authorities to which the judicial approval requirement may in the future be applied, the relevant conditions are those to be set out in an order (subject to the negative resolution procedure) made by the Secretary of State.

177. New section 32A(7) defines various terms used in new section 32A.

178. New section 32B sets out the procedure for obtaining judicial approval to use directed surveillance or a CHIS.

179. New section 32B(1) provides that the authority to which the relevant person (authorising officer) belongs may apply for approval of the authorisation of the use of directed surveillance or a CHIS by the relevant judicial authority. The relevant person is not required to apply in person.

180. New section 32B(2) provides that notice of such applications for approval need not be given to either the subject of the authorisation or their legal representatives; this reflects the covert nature of the exercise of the investigatory powers under RIPA.

181. New section 32B(3) allows the relevant judicial authority on refusing an approval of an authorisation to quash that authorisation.

182. Subsection (2) amends section 43 of RIPA to make provision for renewals of authorisations for the conduct or use of a CHIS. The renewal may not be approved by the relevant judicial authority unless it is satisfied that a review of the use made of the source and the tasks given to the source has been carried out by the authority within the meaning of section 43(7) of RIPA. The relevant judicial authority must consider the results of the review before approving the renewal.

Part 3: Protection of property from disproportionate enforcement action

Chapter 1: Powers of Entry

Clause 39 and Schedule 2: Repealing etc. unnecessary or inappropriate powers of entry

183. Subsection (1) confers on the appropriate national authority a power, exercisable by order, to repeal any power to enter land or other premises in either primary or secondary legislation which the Minister considers to be either unnecessary or inappropriate. Such an order may also repeal any "associated power", for example, a power to search or inspect the premises entered into, or to seize material found in such premises; the term is defined in clause 46. The power to repeal an associated power may be exercised independently from the power to repeal a power of entry (and vice versa). The term "appropriate national authority" is defined in clause 46 as either the Welsh Ministers or a Minister of the Crown; any order made by the Welsh Ministers may only make provision which is within the legislative competence of the National Assembly for Wales.

184. Subsection (2) introduces Schedule 2 which directly repeals 15 existing powers of entry that have been identified as unnecessary or that duplicate existing laws. These repeals include a number of powers of entry relating to agriculture that are no longer required. The list of those powers being repealed also includes a handful of antiquated miscellaneous powers, such as that relating to ‘German Enemy Property’, which are no longer relevant in today’s society.

Clause 40: Adding safeguards to powers of entry

185. Subsection (1) confers on the appropriate national authority a power, exercisable by order, to add safeguards to any power of entry or associated power. Subsection (2) sets out a non-exhaustive list of the safeguards which may be included in such an order. Any such safeguards prescribed in an order would be in addition to (with or without modifications) those already contained in the legislation conferring the power of entry or any associated power. The safeguards which may be prescribed in an order made under this clause may include, amongst other things:

  • restrictions as to the types of premises in respect of which the power may be exercised . F or example, provision could be made to limit the operation of the power to commercial or business premises , or to exclude private dwellings;
  • restrictions as to the times at which the power may be exercised . F or example , provision could be made to limit the operation of the power to reasonable day time hours;
  • a requirement for the power of entry to be subject to an authorisation . T his could , for example, be an internal authorisation granted by an officer of a specified minimum seniority within the organisation concerned, or a warrant granted by a court (likely to be a m agistrates’ c ourt or, in Scotland, a s heriffs’ court), or both;
  • obligations on the person exercising the power . F or example, provision could be made to show the occupier of the premises some form of identification ; to provide a written receipt for anything taken from the premises following a search ; or to provide specified written information to the occupant ( such as in respect of the procedure for making a complaint about the way the power of entry or an associated power was exercised ) .

Clause 41: Rewriting powers of entry

186. Subsections (1) and (2) confer on the appropriate national authority a power, exercisable by order, to rewrite any powers of entry or associated powers with or without modifications. The powers extend to rewording related enactments. Such an order might consolidate a number of powers of entry exercisable for similar purposes or by a defined category of state officials. Whilst an order made under this clause may alter a power of entry or associated power and any safeguard linked to such powers, the combined effect of the changes must be to add to the level of protection afforded by the safeguards when taken together (s ubsection (3 ) ).

Clause 42: Duty to review certain existing powers of entry

187. Subsection (1) places a duty on each Cabinet Minister to conduct a review of relevant powers of entry and relevant associated powers for which the Minister is responsible. The terms ‘relevant powers of entry’ and ‘relevant associated powers’ are defined in subsection (3) as those made under a public general Act or statutory instrument made under such an Act. It would, for example, accordingly fall to the Home Secretary to review powers of entry, and associated powers, exercisable by, amongst others, the police and UK Border Agency staff. In conducting such a review the Minister must consider whether, in relation to each power of entry (and associated power), to exercise the order-making powers in clauses 39(1), 40 or 41. Each Cabinet Minister is required to prepare a report on the review and lay a copy of the report before Parliament. These reviews must be completed, and the report of each review laid before Parliament, within two years of Royal Assent to this Bill. By virtue of subsection (2) any failure to review a particular power of entry (or associated power) does not affect the validity of that power.

Clause 43: Consultation requirements before modifying powers of entry

188. Before making an order under clause 39(1), 40 or 41 the appropriate national authority must consult with the representatives of persons entitled to exercise the powers of entry (and associated powers) that are to be the subject of such an order. For example, in the case of powers of entry exercised by the police, the Home Secretary would normally consult the Association of Chief Police Officers. The Minister may consult any other persons he or she considers appropriate.

Clause 44: Procedural and supplementary provisions

189. Subsection (1) provides that an order made under clauses 39(1), 40 and 41 is to be made by statutory instrument, such an order may include any appropriate incidental, consequential, supplementary, transitory, transitional or saving provisions. The power to make consequential amendments could, for example, be used to repeal any offence which becomes redundant as a result of the repeal of a related power of entry. By virtue of subsections (2) and (4), an order made by a Minister of the Crown under clauses 39(1), 40 and 41 is subject to the affirmative resolution procedure where it amends or repeals provisions in primary legislation, but is otherwise subject to the negative resolution procedure.

190. Subsection (3) disapplies the hybridity procedure should such procedure apply to an order made by the Minister of the Crown under clauses 39(1), 40 and 41. The hybridity procedure is explained in paragraph 147.

191. Subsections (6) and (7) provide that a relevant order made by the Welsh Ministers is similarly subject to the affirmative resolution procedure in the National Assembly for Wales so far as it amends or repeals provisions in primary legislation. Otherwise it is subject to the negative resolution procedure.

Clause 45: Devolution: Scotland and Northern Ireland

192. This clause provides that an order made under clause 39(1), 40 or 41 may not make provision that would be within the legislative competence of the Scottish Parliament if it were contained within an Act made by the Scottish Parliament, or the Northern Ireland Assembly if it were contained within an Act made by the Northern Ireland Assembly in so far as it deals with a transferred matter.

Clause 46: Sections 39 to 46: interpretation

193. Clause 46 contains definitions of various terms used in clauses 39 to 46. Amongst other things, it adopts the definition of ‘premises’ used in section 23 of the Police and Criminal Evidence Act 1984 ("PACE").

Clause 47: Code of Practice in relation to non-devolved powers of entry

194. Subsection (1) places a duty on the Secretary of State to prepare a code of practice in relation to the exercise of powers of entry and associated powers. Subsection (2) sets out a non-exhaustive list of matters which may be included in such a code of practice.

195. Subsection (3) provides that a code of practice must not make provision in respect of ‘devolved powers of entry and associated powers’ (as defined in subsection (5)). A code may make different provisions for different powers of entry and need not contain provision in respect of every power of entry. This ensures that where a power of entry is already subject to an existing code of practice (for example, a code of practice issued under PACE) there is not overlapping guidance in place.

196. Subsection (4) requires the Secretary of State, in preparing a code of practice, to consult the Lord Advocate, the representatives of persons entitled to exercise the powers of entry to be covered by the code and such other persons as the Secretary of State considers appropriate.

Clause 48: Issuing of code

197. This clause sets out the parliamentary procedure for approving the first code of practice made under the clause 47. Subsection (1) requires the Secretary of State to lay before Parliament the proposed code together with a draft order bringing the code into force. Such an order is subject to the affirmative resolution procedure (subsections (2) and (3)). If the draft order bringing into force the first code of practice is not approved, the Secretary of State is required to prepare a revised code; the draft order bringing such a revised code into force is again subject to the affirmative procedure (subsection (4 )).

198. Subsection (7) disapplies the hybridity procedure should such procedure apply to the first order made under this clause. The hybridity procedure is explained in paragraph 147.

Clause 49: Alteration or replacement of code

199. Subsection (1) places a duty on the Secretary of State to keep the powers of entry code of practice under review. The Secretary of State may, in the light of such a review, amend the existing code or substitute a new code (subsection (1)(b)). Subsection (2) requires that in making any alteration to the code or when introducing a new code the Secretary of State must again consult the Lord Advocate, the representatives of persons affected by the code and such other persons as the Secretary of State considers appropriate. Subsection s (3) to (9) makes provision relating to the issuing of a replacement or amended code. In particular, either House of Parliament has 40 days (excluding any period during which Parliament is not sitting for more than four days) in which to pass a resolution refusing to approve the code. If such a resolution is passed then the Secretary of State may prepare another code of practice or amended code of practice for resubmission. Where no resolution is passed, the replacement or amended code will come into force at the end of the 40-day period.

Clause 50: Publication of code

200. This clause requires the Secretary of State to publish the powers of entry code of practice once approved under clause 48, and to publish any subsequent revisions to that code or any replacement code.

Clause 51: Effect of code

201. Subsection (1) provides that a ‘relevant person’ must have regard to the code of practice when exercising the powers of entry or associated powers to which the code relates. Subsection (5) provides that a ‘relevant person’ for these purposes is a person specified, or of a description specified, in an order made by the Secretary of State (such an order is subject to the negative resolution procedure (subsection (9))). Such an order may provide that a relevant person is only required to have regard to the powers of entry code of practice when discharging specified functions or acting in a specified capacity (subsection (6) and (7)). This is intended to provide for those instances where certain bodies have dual or multiple roles or, for example, exercise both public functions and private sector functions, and where the duty to have regard to the code may therefore be limited to the exercise of one, or one part of, their functions. Before making such an order the Secretary of State must consult the representatives of the persons to be affected by it and other persons he or she considers appropriate (subsection ( 8 )).

202. Subsection (2) provides that a failure to adhere to any aspects of the code of practice would not, of itself, render a person liable to civil or criminal proceedings. However, the code of practice code of practice is admissible in criminal or civil proceedings (subsection (3)) and a court or tribunal may take into account any failure of a relevant authority to comply with the duty to have regard to the code (subsection (4)).

Clause 52: Sections 47 to 51: interpretation

203. This clause applies the definitions of the terms ‘power of entry code’ contained in clause 49(10) and of the terms ‘power of entry’ and ‘associated power’ contained in clause 46 to the use of those terms in clauses 47 to 51.

Clause 53 and Schedule 3: Corresponding code in relation to Welsh devolved powers of entry

204. Clause 53 introduces Schedule 3 which confers a power on the Welsh Ministers to issue a code of practice about Welsh devolved powers of entry and associated powers. The Schedule makes broadly similar provisions to those contained in clauses 47 to 52. The one substantive difference between the two sets of provisions is that clause 50 places a duty on the Secretary of State to publish a powers of entry code of practice, whereas under Schedule 3 the Welsh Ministers have a discretion whether or not to issue a code in respect of devolved powers of entry.

Chapter 2 of Part 3: Vehicles left on land

Clause 54: Offence of immobilising etc. vehicles

205. Subsection (1) makes it a criminal offence to immobilise a motor vehicle by attaching to the vehicle, or to a part of the vehicle, an immobilising device (typically a wheel clamp), or to move (for example, by towing away) or to restrict the movement of a vehicle (for example, by using another vehicle to prevent it being driven away). To be guilty of the offence, a person must undertake one of these actions with the intention of preventing, or inhibiting a person entitled to move the vehicle concerned from moving the vehicle. Consequently, a person who moved an obstructively parked vehicle a short distance intending to regain access to his or her property would not be committing the offence in circumstances where he or she did not intend to prevent the driver of the vehicle from subsequently retrieving it. Similarly, the required intention would not be present in the case of a person applying a wheel clamp to his or her own vehicle to prevent theft. The offence does not apply where a person is acting with lawful authority when immobilising, moving or restricting the movement of a vehicle. There are a number of bodies with statutory powers to immobilise or remove vehicles in specified circumstances, including: local authorities when enforcing road traffic contraventions on the public highway or local authority managed car parks; the police when enforcing road traffic contraventions or otherwise removing vehicles that are illegally, obstructively or dangerously parked; the police and local authorities when exercising their powers to remove abandoned vehicles from public and private land; the Driver and Vehicle Licensing Authority ("DVLA") in respect of vehicles that have no road tax; the Department for Transport’s Vehicle and Operator Services Agency in respect of vehicles that are not roadworthy; and the police and local authorities exercising their powers to remove vehicles forming part of an unauthorised traveller encampment. In addition, bailiffs have a mix of statutory and common law powers to immobilise and tow away vehicles for the purposes of enforcing debts (including those arising out of unpaid taxes and court fines).

206. Subsection (2) provides that any consent, whether express or implied, given by a person entitled to remove the vehicle to the immobilisation, movement, or restriction of movement, does not constitute lawful authority for the purposes of subsection (1). A driver of a vehicle, by parking in a commercially run car park, may have impliedly accepted the landowner’s offer to park (or that of the parking company acting as the landowner’s agent). He or she may also, depending on what is advertised at the car park, have impliedly agreed to comply with the terms and conditions advertised, including the parking charges and the associated enforcement mechanism for those charges. However, by virtue of this subsection, the operation of the law of contract as it applies to commercially run private car parks does not confer lawful authority on the landowner or operator of a car park to clamp or tow away a vehicle parked there.

207. Subsection (2) is subject to the exception in s ubsection (3 ) the effect of which is to exclude from the ambit of the offence the case of a driver who has given express or implied consent (for example, when entering a privately operated car park) to the movement of his or her vehicle being restricted by a fixed barrier. Accordingly, no offence would be committed where a driver was prevented from leaving a car park because the vehicle’s exit was blocked by a fixed barrier which remained in place because the driver had not paid the requisite parking charges (provided the barrier was present when the vehicle was parked, whether or not it only subsequently restricted movement, for example by being lowered into place).

208. Subsection (4) contains an exception so that anyone entitled to remove a vehicle cannot commit the subsection (1) offence in respect of that vehicle. This would apply where the owner of a vehicle retrieves a vehicle being used by another person (for example, a car hire company recovering an unreturned vehicle in respect of which the care hire agreement had expired).

209. Subsection (5) sets out the maximum penalty for the offence, namely on summary conviction a fine not exceeding the statutory maximum (currently £5,000) and on conviction on indictment an unlimited fine.

Clause 55: Extension of powers to remove vehicles from land

210. This clause amends section 99 of the Road Traffic Regulation Act 1984 so as to extend the power to make regulations for the police and others to remove vehicles in certain circumstances. Section 99 of the Act enables the Secretary of State to provide in regulations for the removal of vehicles that are illegally, obstructively or dangerously parked or broken down on a road. A road is defined for these purposes as ‘any length of highway or any other road to which the public has access, and includes bridges over which a road passes’ (section 142 of the Road Traffic Regulation Act 1984). Section 99 of the Road Traffic Regulation Act also enables regulations to be made governing the removal of vehicles that have been abandoned on a road or ‘on any land in the open air’. The current regulations made under section 99 include the Removal and Disposal of Vehicles Regulations 1986 (SI 1986/183), as amended. These regulations give the police, local authorities and others the power (not a duty) to remove vehicles in the circumstances described in section 99. The effect of the amendments to section 99 will be to enable regulations to be made which confer a power on the police, local authorities or others to remove vehicles that are illegally, dangerously or obstructively parked on any land (subsections (2) and (3)). The power to remove abandoned vehicles is similarly extended so that it is no longer restricted to vehicles abandoned ‘on any land in the open air’, so ensuring that the power could cover places such as an underground car park.

Clause 56: Recovery of unpaid parking charges

211. Clause 56 gives effect to Schedule 4 which makes provision in certain circumstances for the recovery of unpaid parking related charges from the keeper or the hirer of a vehicle.

Schedule 4: Recovery of unpaid parking charges

212. Paragraph 1 introduces the scheme as provided for in Schedule 4. The scheme provides that, subject to certain conditions being met, the keeper or the hirer of a vehicle may be made liable for any unpaid parking charge that has arisen as a result of either: the driver of the vehicle having entered into a contract with a landowner and/or his or her agent; or, through the driver of the vehicle committing a trespass or other tort on land where parking is prohibited. The scheme is based on the legal analysis that a driver of a vehicle by parking on private land impliedly accepts the landowner’s offer to park (or that of a parking company acting as the landowner’s agent), or prohibition on parking and agrees to comply with any terms and conditions (including any parking charges and the associated enforcement mechanism for those charges) advertised on a notice board at the entrance to and within the land. The driver may commit a trespass by parking on private land without permission or, if the terms and conditions of any agreement which the driver has impliedly accepted are not adhered to, then the driver may be in breach of that agreement. In either situation, whether the existence of a contract can be established or, alternatively, if the driver can be shown to have committed a tort, the Schedule envisages a situation where the vehicle can be "ticketed" for charges due under the terms of that contract or for the pre-estimated damages resulting from the trespass.

213. Under the current law, a parking provider (termed "the creditor" in this Schedule) wishing to enforce charges against a driver is able to obtain details of the vehicle keeper from the DVLA if they are able to show "reasonable cause" for wanting the information (so as to satisfy regulation 27(1)(e) of the Road Vehicles (Registration and Licensing) Regulations 2002 (SI 2002/2742)). A responsible landowner (or his or her agent) providing parking in accordance with industry best practice has reasonable cause to seek from the DVLA the keeper details of a vehicle in respect of parking related charges that have not been paid. The DVLA requires landowners or their agents requesting keeper details for parking enforcement purposes to be members of an accredited trade association (the British Parking Association’s Approved Operator Scheme is the only trade association currently so accredited). Whilst the landowner (or his or her agent) may seek to recover unpaid parking charges from the vehicle keeper, as the law is currently understood to stand, any parking contract will be between the driver of a vehicle and the parking provider and any tort is committed by the driver of the vehicle. Accordingly, the keeper may not be liable in law for the charges incurred if he or she was not the driver at the time.

214. Paragraphs 2 and 3 define various terms used in the Schedule. The scheme applies only to vehicles parked on "relevant land", the definition of which excludes a highway maintainable at public expense and a parking place provided or controlled by a traffic authority. Other land where parking is governed by a statutory scheme including that contained in Part 6 of the Traffic Management Act 2004 (which includes provision for keeper liability) is also excluded from the scheme as set out in this Schedule.

215. Paragraph 4 provides that the creditor has a right to seek to reclaim unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5 to 9, 11 and 1 2 are satisfied. The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4( 6 )), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity. The right to reclaim unpaid parking charges from the vehicle keeper does not apply in cases where the vehicle has been stolen before it was parked, (paragraphs 4( 2 ) to ( 3 )), or in certain circumstances where the vehicle in question was a hire vehicle (paragraph 4(9)). The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4( 5 )).

216. Paragraph 5 sets out the first condition which is that the creditor must have the right to enforce the requirement to pay unpaid parking charges against the driver of a vehicle but is unable to do so because the creditor does not know the name and current address of the driver.

217. Paragraph 6 sets out the second condition which is that the creditor must have served the appropriate notices as set out in paragraphs 7, 8 and 9 . Paragraph 7 sets out the requirements for a valid a notice to the driver. This must either have been given to the person in charge of the vehicle or affixed to the vehicle whilst it was still located on the land and comply with the requirements of p aragraph 7 (2) which lists the matters that must be set out in the notice, including the total amount of the parking charges payable. In the event that the notice is not settled by the driver (within the 28 day window allowed under paragraph 7), paragraph 8 sets out the requirements which must be followed in order to serve a subsequent notice on the keeper of the vehicle requiring either payment of the unpaid parking charges or the name and address of the driver of the vehicle at the relevant time. In the event that it is not possible to serve an initial notice on the driver of the vehicle (for example, if parking enforcement is carried out after the event via CCTV), paragraph 9 sets out the requirements which must be adhered to when serving a first notice directly on the keeper of the vehicle.

218. Paragraph 10 contains a power for the Secretary of State (or Welsh Ministers) to prescribe in regulations any requirements as to the evidence which must accompany a valid notice to the keeper.

219. Paragraph 11 sets out the third condition (which applies only to registered vehicles) which is that the creditor has applied to the Secretary of State (in practice, the DVLA) for the name and address of the keeper, that information has been provided and the creditor then makes a claim against the keeper.

220. Paragraph 12 sets out the fourth condition which is that any prescribed requirements under this paragraph must be complied with at the beginning of the period of parking to which the unpaid parking charges relate. These requirements, prescribed by the Secretary of State (or Welsh Ministers), may make provision in relation to any particular requirements that must be adhered to in relation to the display of notices on the relevant land.

221. Paragraph 13 contains provisions which are relevant to vehicle-hire firms who may receive notices under the Schedule as registered keepers of hire vehicles. Paragraph 13 provides that where the vehicle-hire firm provides the creditor with a statement confirming that the vehicle was hired at the relevant time, a copy of the hire agreement and a statement signed by the hirer confirming that the hirer agrees to be responsible for all parking charges incurred during the period of hire, it is the hirer of the vehicle who is liable for the unpaid parking charges and not the vehicle hire firm. Paragraph 14 sets out the procedure and requirements for the creditor to then serve a further notice on the hirer of the vehicle requesting payment of the unpaid parking charges.

222. Paragraph 15 provides that the scheme applies to Crown vehicles that are required to be registered with the DVLA and to the keeper of such vehicles. The scheme does not, however, apply to vehicles used for military purposes or that belong to visiting forces.

223. Paragraph 16 confers a power on the Secretary of State (or Welsh Ministers) to amend certain provisions in Schedule 4 by order (subject to the affirmative resolution procedure); the relevant provisions are the definition of "relevant land" in paragraph 3(1), and any of the conditions to which the right to claim unpaid parking charges is subject. Paragraph 17 provides that any regulations made by the Secretary of State (or Welsh Ministers) under the Schedule are subject to the negative resolution procedure.

Part 4: Counter-terrorism powers

Clause 57: Maximum detention period of 14 days

224. Schedule 8 to the Terrorism Act 2000 ("the 2000 Act") makes provision in respect of the treatment of terrorist suspects detained under section 41 of or Schedule 7 to that Act. Paragraph 36(3)(b)(ii) of Schedule 8 provides that the maximum period for which a terrorist suspect may be detained without charge is 28 days from the time of arrest. As originally enacted, Schedule 8 provided for a maximum period of pre-charge detention of seven days. This was increased to 14 days by section 306 of the Criminal Justice Act 2003 ("the 2003 Act") and then to 28 days by section 23 of the Terrorism Act 2006. However, in increasing the maximum period to 28 days, the Terrorism Act 2006 made this period subject to a ‘sunsetting’ provision. Section 25 of that Act provides that the maximum period of 28 days is subject to renewal by affirmative order for periods up to a year at a time, failing which the maximum period reverts to 14 days. Section 25 operates in such a way that where no order made under subsection (2) is in force, Schedule 8 is modified so as to provide for a maximum period of pre-charge detention of 14 days. The last order made under section 25(2) (The Terrorism Act 2006 (Disapplication of Section 25) Order 2010 (SI 2010/1909)) expired on 24th January 2011. Subsection (1) amends paragraph 36(3)(b)(ii) of Schedule 8 to the 2000 Act so as to make the maximum period of pre-charge detention, as provided for by that Act, 14 days. Subsection (2) repeals section 25 of the Terrorism Act 2006 so as to remove the order-making power contained in that provision and as a result, the ability to revert to a maximum period of pre-charge detention of 28 days through that mechanism.

Clause 58: Emergency power for temporary extension and review of extensions

225. Clause 58 inserts a new paragraph 38 into Schedule 8 to the 2000 Act which provides a new power for the Secretary of State to make an order that will increase the maximum period of detention under Schedule 8 to the 2000 Act, to 28 days. The power to make an order can only be used where the Secretary of State considers it necessary by reason of urgency, and can only be exercised during a period when Parliament is dissolved or in the period before the first Queen’s Speech of the new Parliament, (fast track legislation would be introduced should a longer maximum period of detention be required at any other time, see paragraph 45 above). Where an order is made, the maximum period of pre-charge detention under Schedule 8 is extended to 28 days. Any applications for warrants of further detention which would take the period of detention beyond 14 days must be made to a senior judge, and be made with the consent of the Director of Public Prosecutions (in England and Wales), or the Director for Public Prosecutions for Northern Ireland (in Northern Ireland) or the Lord Advocate (in Scotland). Subsection (2) provides that an order made under new paragraph 38 must be approved by Parliament within 20 days. By virtue of section 7(1) of the Statutory Instruments Act 1946, in calculating the 20 day period no account is to be taken of any time during which Parliament is dissolved, or prorogued, or during which both Houses are adjourned for more than four days. Subsection (3) introduces a requirement for the person appointed as Independent Reviewer of Terrorism Legislation under the Terrorism Act 2006 (or someone on his behalf), to conduct a review of any application for a warrant of further detention which takes the period of detention in respect of an individual or individuals, beyond 14 days.

Clause 59: Repeal of existing stop and search powers

226. Clause 59 repeals the stop and search powers in sections 44 to 47 of the 2000 Act.

Clause 60: Replacement powers to stop and search persons and vehicles

227. Subsection (1) repeals section 43(3) of the 2000 Act which requires that searches of persons be carried out by someone of the same sex. This requirement is being repealed to make it the same as other (both non-terrorist and terrorist) stop and search powers which do not include a same sex search requirement. This is because any search will normally be carried out on the street and it is not normally practicable to summon an officer of the appropriate gender in a reasonable time.

228. Subsection (2) supplements the existing stop and search power in section 43 of the 2000 Act, by providing that where a vehicle is stopped in the course of stopping a person under section 43 (that is, where a constable reasonably suspects a person to be terrorist), the constable may search the vehicle as well as the person. ‘Terrorist’ is defined in section 40 of the 2000 Act.

229. Subsection (3) creates a new stop and search power in respect of vehicles by inserting new section 43A into the 2000 Act. New section 43A provides a power for police to stop and search a vehicle, including its driver, any passengers and anything in or on the vehicle, if a constable reasonably suspects the vehicle is being used for the purposes of terrorism. ‘Terrorism’ is defined in section 1 of the 2000 Act, and section 1(5) provides that a reference in that Act to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation. Anything discovered during a search which the officer reasonably suspects may constitute evidence that the vehicle is being used for the purposes of terrorism, may be seized and retained.

Clause 61: Replacement powers to stop and search in specified locations

230. Subsection (1) inserts new section 47A into the 2000 Act. New section 47A replaces in part the powers in sections 44 to 46 of the 2000 Act repealed by clause 59. The new powers allow a senior police officer (defined in paragraph 14(1) and (2) of new Schedule 6B to the 2000 Act, inserted by Schedule 5 to this Bill) to give an authorisation to allow the stop and search of vehicles (including drivers of vehicles, passengers and anything found in or on a vehicle) and pedestrians (including anything carried by a pedestrian), to search for anything that may constitute evidence that a person is a terrorist, or the vehicle is being used for the purposes of terrorism. A constable in uniform may exercise the powers, once authorised, regardless of whether he or she has a reasonable suspicion that he or she will find such evidence in the course of a search. A constable includes a constable of the British Transport Police and Ministry of Defence Police, and the Civil Nuclear Constabulary where an authorisation covers an area where its members have the powers and privileges of a constable. In England and Wales and Northern Ireland, a community support officer may also exercise the powers listed in new section 47A(2)(a) and (d), (3)(b) and (6) (see paragraphs 29 and 30 of Schedule 9 to the Bill which amends the Police Reform Act 2002 and the Police (Northern Ireland) Act 2003 respectively). An authorisation can only be given if the person giving it reasonably suspects that an act of terrorism will take place and considers that the authorisation of the powers is necessary to prevent such an act and that the area or place specified in the authorisation are no greater than is necessary and the duration of the authorisation is no longer than is necessary.

231. Subsection (2) introduces Schedule 5 which inserts new Schedule 6B into the 2000 Act.

Schedule 5: Replacement powers to stop and search: Supplementary Provisions

232. Schedule 5 inserts a new Schedule 6B into the 2000 Act which makes further provision about authorisations and searches in specified areas or places, as created by the new section 47A.

233. Paragraph 1 of new Schedule 6B states that a constable searching a person in public under powers given by the new section 47A, cannot require that person to take off more than headgear, footwear, outer coat, jacket or gloves.

234. Paragraph 2 provides that a person or vehicle can be detained for as long as is reasonably required to search the person or vehicle, at or near to the place where the person or vehicle is stopped.

235. Paragraph 3 places a duty on a senior police officer who has made an authorisation orally under new section 47A, to confirm it in writing as soon as reasonably practicable.

236. Paragraph 4 requires that if a pedestrian or vehicle is stopped under new sections 47A(2) or (3) and the pedestrian or driver of the vehicle requests a statement that they were stopped by virtue of those sections, then a written statement must be provided, as long as it is requested within 12 months of the stop taking place.

237. Paragraph 5 states that an authorisation given under new section 47A has effect from the time it is given and ends at the time or date specified in the authorisation, subject to the following paragraphs of the Schedule.

238. Paragraph 6 provides that individual authorisations cannot be in place for any longer than 14 days.

239. Paragraph 7 places a requirement on the senior police officer who has given an authorisation, to inform the Secretary of State as soon as reasonably practicable (sub-paragraph (1)). If the Secretary of State does not confirm the authorisation within 48 hours, it ceases to have effect (sub-paragraph (2)). If an authorisation is not confirmed, and ceases to have effect by virtue of sub-paragraph (2), it does not affect the lawfulness of anything carried out under the authorisation before it ceased to have effect (sub-paragraph (3)), including searches and seizures. The Secretary of State may amend the authorisation before confirming it, shortening its duration or limiting the geographical extent of the authorisation (sub-paragraph (4)).

240. Paragraph 8 gives the Secretary of State a power to cancel an authorisation at any time.

241. Paragraph 9 confers a power on a senior police officer to cancel an authorisation, shorten its duration or reduce its geographical extent (sub-paragraph (1)). If an authorisation has already been confirmed by the Secretary of State under paragraph 7 when a senior police officer cancels it or amends it, the amended authorisation does not require further confirmation from the Secretary of State (sub-paragraph (2)).

242. Paragraph 10 provides that if an authorisation is given by a senior officer in the Civil Nuclear Constabulary, then the power conferred by the authorisation is only available to members of that Constabulary at times and places where they have the powers and privileges of a constable.

243. Paragraph 11 provides that a new authorisation may be given, regardless of whether a previous authorisation exists, has been cancelled or expired.

244. Paragraph 12 provides that a senior police officer (other than those of the British Transport Police, Ministry of Defence Police or Civil Nuclear Constabulary), may give an authorisation which covers internal waters adjacent to an area or place which is covered by an authorisation, or a place within those internal waters. ‘Internal waters’ means waters in the United Kingdom which are not part of a police area.

245. Paragraph 13(a) provides that where an authorisation includes more than one area or place, it may specify different end dates for those areas or places, and where it does so, the powers of the Secretary of State or the senior police officer to shorten the duration of the authorisation includes the power to shorten any one or more of those periods. Paragraph 13(b) provides that if an authorisation is given which covers more than one area or place, then the Secretary of State or senior police officer may remove areas or places from the authorisation under their powers to restrict the geographical extent of an authorisation in paragraph 7(4)(b) or 9(1)(c) respectively.

246. Paragraph 14 defines a number of terms used in new Schedule 6B.

Clause 62: Code of Practice

247. This clause, which inserts new sections 47AA to 47AE into the 2000 Act, makes provision for a code of practice for terrorism stop and search powers. New section 47AA places a duty on the Secretary of State to prepare a code of practice about the powers in sections 43 and 43A of the 2000 Act (stop and search with reasonable suspicion), and those created by new section 47A of the 2000 Act. New section 47AB makes provision for the code to be brought into force by order, subject to the affirmative resolution procedure. New section 47AC requires that the code is kept under review; any amendments to the code or replacement code are subject to the same parliamentary procedure as provided for in new section 47AB. New section 47AD requires that the code and any altered versions are published. New section 47AE(1) requires a police officer (or police community support officer) to have regard to the code when exercising the powers to which it relates and explains the effect of the code. New section 47AE(2) provides that a failure to adhere to any aspects of the code of practice would not, of itself, render a person liable to civil or criminal proceedings. However, the search powers code is admissible in criminal or civil proceedings (new section 47AE(3)) and a court or tribunal may take into account any failure by a police officer (or community support officer) to comply with the duty to have regard to the code (new section 47AE(4)).

Clause 63: Stop and search powers in relation to Northern Ireland

248. Clause 63 introduces Schedule 6 which amends the stop and search power for munitions and transmitters in relation to a constable.

Schedule 6: Stop and search powers: Northern Ireland

249. Paragraph 1 amends Paragraph 4 of Schedule 3 to the Justice and Security (Northern Ireland) Act 2007 ("the 2007 Act") which provides that a constable or member of Her Majesty’s forces on duty (an "officer") may stop a person in a public place in Northern Ireland to search persons for munitions held unlawfully and wireless apparatus. The officer does not need to have any reasonable suspicion for doing so.

250. P aragraph s 1 (2) and (3) replace the word "officer" with "a member of Her Majesty’s forces on duty". A constable can no longer stop and search a person in a public place without reasonable suspicion but the existing power for the military to stop and search a person remains unchanged.

251. P aragraph 1( 4) inserts new sub-paragraph (4) into Schedule 3 to the 2007 Act so that a constable can search a person who he or she reasonably suspects to have munitions unlawfully with him or her or to have wireless apparatus with him or her regardless of whether he or she is in a public place or not (currently the power only applies where the person is not in a public place).

252. Paragraph 2 inserts a new paragraph 4A into Schedule 3. New paragraph 4A(1) provides that a senior police officer of the Police Service of Northern Ireland may authorise the use of the stop and search without reasonable suspicion powers in a specified area if the senior police officer reasonably suspects that the safety of any person might be endangered by the use of munitions or wireless apparatus.

253. The authorisation can be given only if the senior police officer considers that it is necessary to prevent that danger and the area or place specified in the authorisation is no greater than is necessary and the duration of the authorisation is not longer than is necessary.

254. New paragraph 4A(2) states that any constable is authorised to stop and search an individual in the area or place specified in the senior police officer’s authorisation.

255. New paragraph 4A(3) specifies that the purpose of the search as covered by the authorisation will be to ascertain whether the person is carrying munitions unlawfully or wireless apparatus.

256. New paragraph 4A(4) provides that the power conferred by the authorisation may be exercised whether or not the constable reasonably suspects the person has such munitions or wireless apparatus.

257. New paragraph 4A(5) states that a constable searching a person in public under new section 4A, cannot require that person to remove clothing with the exception of headgear, footwear, outer coat, jacket or gloves.

258. New paragraph 4A(6) provides that a person can be detained for as long as is reasonably required to search the person near or where he or she was stopped.

259. New paragraph 4A(7) places a duty on a senior police officer who has made an authorisation orally under new paragraph 4A, to confirm it in writing as soon as reasonably practicable.

260. New paragraph 4B states that an authorisation given under new paragraph 4A has effect from the time it is given and ends at the time or date specified in the authorisation subject to new paragraphs 4C to 4G of the Schedule.

261. New paragraph 4C provides that an authorisation cannot specify a date or time which is more than 14 days after the date the authorisation is made.

262. New paragraph 4D places a requirement on the senior officer who has made an authorisation under new paragraph 4A to inform the Secretary of State of it as soon as reasonably practicable (sub-paragraph (1)). If the Secretary of State does not confirm the authorisation within 48 hours of it having been made, it ceases to have effect (sub-paragraph (2)). If an authorisation is not confirmed and ceases to have effect by virtue of sub-paragraph (2), it does not affect the lawfulness of anything carried out under the authorisation before it ceased to have effect (sub-paragraph (3)). The Secretary of State may, when confirming an authorisation, shorten its duration or reduce its geographical extent (sub-paragraph (4)).

263. New paragraph 4E provides that the Secretary of State may cancel an authorisation at any time.

264. New paragraph 4F confers a power on a senior police officer to cancel an authorisation, shorten its duration or reduce its geographical extent (sub-paragraph (1)). If an authorisation has already been confirmed by the Secretary of State under paragraph 4D when a senior police officer cancels it or amends it, the amended authorisation does not require further confirmation from the Secretary of State (sub-paragraph 2).

265. New paragraph 4G provides that a new authorisation can be given regardless of whether a previous authorisation continues in force, has expired or has been cancelled.

266. New paragraph 4H provides that a senior police officer may give an authorisation which covers either the whole of Northern Ireland or an area or place in Northern Ireland together with all or part of the internal waters adjacent to that area (sub-paragraph (1)). ‘Internal waters’ are defined as waters in the United Kingdom that are adjacent to Northern Ireland (sub-paragraph (2)). Sub-paragraph (3) makes provision for authorisations which specify more than one geographic area and provides that such an authorisation can specify more than one end date or time (consequently powers to substitute an earlier end date or time include powers to substitute some but not all of the end times specified in the authorisation) and that the Secretary of State and a senior officer, when substituting a smaller geographic area under new paragraphs 4D(4)(b) and 4F(1)(c) respectively, may remove an area from the authorisation.

267. New paragraph 4I deals with circumstances in which a decision of a senior officer, or the Secretary of State, in relation to an authorisation is challenged in any legal proceedings. Under sub-paragraph (2) the Secretary of State may certify that the interests of national security are relevant to the decision and the decision was justified. Such a certificate can be appealed to the tribunal established under section 91 of the Northern Ireland Act 1998 (‘the National Security Certificates Appeals Tribunal’). The Tribunal has the power to uphold or quash a certificate. The procedural rules which are currently used by the Tribunal make provision for sensitive material to be considered in closed session and for the appointment of special advocates.

Part 5: Safeguarding vulnerable groups, criminal records etc.

Chapter 1: Safeguarding of vulnerable groups

Clause 64: Restriction of scope of regulated activities: children

268. Clause 64 amends the definition of ‘regulated activity relating to children’ which is set out in Part 1 of Schedule 4 to the Safeguarding Vulnerable Groups Act 2006 ("SVGA"). Part 1 of Schedule 4 to the SVGA specifies what work a person is barred from doing if he or she is included in the children’s barred list. A person may be included in that list as a result of committing certain offences or following a decision by the Independent Safeguarding Authority ("ISA") that the individual presents a risk of harm to children. A person can be barred in England and Wales by virtue of being included in a corresponding children’s barred list in Northern Ireland or Scotland. The overall effect of clause 64 is to reduce the scope of work that barred individuals are prohibited from doing.

269. Broadly speaking, the activities specified in Part 1 of Schedule 4 to the SVGA comprise of paid and unpaid work that involves certain close interaction with or (in a specified place) the opportunity for contact with children. It also includes work carried out by individuals occupying certain positions (‘office-holders’) whose functions relate to services provided for, or in relation to, children. Any work falling within Part 1 of Schedule 4 must not be carried out by an individual who is included in the children’s barred list.

270. The amendments made to the SVGA by this clause provide that regulated activity relating to children no longer includes the following:

  • Any supervised teaching, training or instruction of children, unless any such activity takes place in a specified place such as a school, children’s home or a children’s centre (with the exception of work in specified settings carried out by supervised volunteers, which is to be removed from the scope of regulated activity);
  • The provision of any care or supervision of children by a person where the provision of such care or supervision is being supervised by another unless, once again, it takes place in a specified place (as above). Further exceptions to this are where certain types of personal care or health care are provided to children, in which case not only will such types of care fall within the definition of regulated activity (even if supervised), they will also fall within that definition if such care is provided only on occasion. This is because the requirement in Schedule 4 to the SVGA for any activity mentioned above to be undertaken regularly (for it to be a regulated activity) is removed in relation to the provision of such personal care or health care;
  • The provision of any legal advice to a child;
  • Any paid work that is carried out in a specified place, which gives the worker the opportunity to have contact with children and which is of an occasional or temporary nature (excluding any teaching, training, instruction, care for or supervision of or advice to children that is carried out on an occasional or temporary basis). This would, for example, mean that work carried out in a school by maintenance or building contractors is no longer a regulated activity relating to children but that any teaching by supply/locum teachers would continue to be a regulated activity;
  • The work of officials of the Children and Family Courts Advisory and Support Service (CAFCASS) and their Welsh equivalents and the work of office-holders in various governance-related or senior management roles, for example a school governor, a local authority director of children’s services, and the Children’s Commissioner for England;
  • The w ork of inspectorates in England , for example inspectors of schools, children’s homes and childminding in England ;
  • Accessing the ContactPoint children’s database ( which was abolished separately in 2010);
  • Inspection work by the Care Quality Commission;
  • The day-to-day management or supervision, on a regular basis, of any type of work referred to above that is removed from regulated activity;
  • Work that is a regulated activity solely because it takes place in a hospital and provides the opportunity for an individual to have contact with children .

271. This clause also brings within the meaning of ‘health care’ for the purposes of Part 1 of Schedule 4 to the SVGA, the provision of first aid to a child by anyone acting on behalf of an organisation established to provide first aid (new paragraph 1(1D) of Schedule 4). This means that the work of organisations such as St John’s Ambulance is added to the scope of regulated activity. This would not however encompass a designated first-aider in a workplace.

Clause 65: Restriction of definition of vulnerable adults

272. Section 59(1) of the SVGA currently defines vulnerable adults by reference to certain settings or by receipt of certain services and certain specific status. Regulated activity relating to vulnerable adults is currently defined in section 59 of, and Parts 2 and 3 of Schedule 4 to, the SVGA. The definition is widely drafted to cover, for example, "any form of care for or supervision for vulnerable adults" (paragraph 7(1)(b) of Schedule 4) or "any form of assistance, advice or guidance…wholly or mainly for vulnerable adults" (paragraph 7(1)(c)). The intention is that the reason for the care, supervision, assistance, advice or guidance being provided is the fact of the adult’s vulnerability. Regulated activity was also qualified by ‘a frequency condition’ (paragraph 7(1)).

273. Subsection (1) repeals section 59 of the SVGA and subsection (2) inserts a new definition into section 60(1) (interpretation) of the SVGA so that ‘vulnerable adult’ means any person aged 18 or over for whom an activity (that is, a ‘regulated activity’), as defined in paragraph 7(1) of Schedule 4 to the SVGA, is provided. Clause 66 (below) makes amendments to the definition of regulated activity relating to vulnerable adults so as to define a vulnerable adult by the activities being carried out regardless of the setting or service.

Clause 66: Restriction of scope of regulated activities: vulnerable adults

274. Clause 66 amends the definition of ‘regulated activity’ relating to vulnerable adults (paragraphs 7(1) to (3) of Schedule 4 to the SVGA. Subsection (2) replaces the existing paragraphs 7(1) to (3) of Schedule 4 with new sub-paragraphs (1) to (3E). These new sub-paragraphs redefine a regulated activity in relation to vulnerable adults to include:

  • the provision of health care treatment in any setting by a health care professional, or by a person acting under the direction or supervision of a health care professional such as a health care assistant in a hospital or care home . This includes first aid provided by organisations such as St John’s Ambulance, as is the case for children;
  • the provision of relevant personal care in any setting to a person who needs the care because of age, illness or disability. Relevant personal care is defined at new sub-paragraph (3B) of Schedule 4 to the SVGA and includes physical care such as assistance with eating, drinking, toileting, washing and dressing; prompting, together with supervision, for those activities, where such prompting and supervision are necessary for their execution; and any training, instruction, advice or guidance necessary for those activities (for example, a person given training on how to manage successfully their own chronic illness or disability);
  • the provision of relevant social work by a social worker to clients or potential clients;
  • the provision of assistance, in relation to general household matters, to a person who requires it because of age, illness or disability. This is defined as day to day assistance with paying bills, shopping or managing the person’s cash;
  • the provision of assistance to a person where there is a formal arrangement in place which allows a person to make welfare and/or financial decisions on behalf of another person ;
  • the transportation of individuals where that transport is provided because of age, health or disability. Regulations will set out the specific circumstances when this subsection applies, but broadly it is intended to cover ambulance services, transport to and from day care services where the transport is arranged by (or on behalf of) the day care provider, hospital porters and patient transport.

275. Subsection (3) removes from the definition of regulated activity an activity in a care home provided for vulnerable adults. Workers who provide health or personal care or any other regulated activity to care home residents will fall within the revised definition in new paragraph 7(1) of Schedule 4 to the SVGA. Save for a consequential amendment, paragraph 7(5) of Schedule 4 is retained, so line managers with regular day to day management or supervision of a person carrying out a regulated activity as mentioned in new paragraph 7(1) (for example, care home managers) are still within scope.

276. Subsection ( 6 ) removes from the definition of regulated activity certain inspection functions of the Care Quality Commission.

277. Subsections ( 7 ) and ( 8 ) remove from the definition of a regulated activity a member of a relevant local government body, local authority chief executives, charity trustees and the proprietors or managers of regulated establishments or agencies.

278. Subsection (9) removes the period condition in respect of regulated activity for vulnerable adults. This means that a person providing health or personal care for example, need only do so once to come within the scope of the revised Scheme.

Clause 67: Alteration of test for barring decisions

279. This clause amends Schedule 3 to the SVGA which sets out how someone may be referred by the Secretary of State to the ISA and included in the children’s barred list (Part 1 of Schedule 3) or the adults’ barred list (Part 2 of Schedule 3).

280. Subsection (1) relates to the children’s barred list and amends the provisions (set out in paragraphs 1(2) and (3) of Schedule 3 to the SVGA) for the automatic barring of persons who meet the prescribed criteria. The prescribed criteria are set out in regulations (the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009: SI 2009/37)1 and refer to circumstances where individuals have been convicted or cautioned for a serious criminal offence, which give rise to a clear indication of risk to children or vulnerable adults. Subsection (1) amends paragraph 1 so as to limit the requirement for the Secretary of State to make referrals to the ISA and limiting ISA bars to those engaged in ‘regulated activity’ and those who are, have been or might in future be engaged in regulated activity. For example, where an individual has committed a serious criminal offence and is no longer engaged in a regulated activity due to a prison sentence, it will still be possible to include him or her in a barred list; or where an individual has indicated on an application for an enhanced criminal record certificate that they intend to work in these activities, inclusion in a barred list will still be possible. It therefore excludes from automatic barring persons who have not worked, and have no intention of working, in regulated activity. It requires the ISA to place on the barred lists those persons who have committed such offences and are, have been or might in the future be engaged in regulated activity.


1 http://www.legislation.gov.uk/uksi/2009/37/contents/made

281. Subsection (2) substitutes new sub-paragraphs (2) to (8) of paragraph 2 of Schedule 3 to the SVGA for the existing sub-paragraphs (2) to (4) which govern "automatic bars with representations". These bars are based on criminal convictions or cautions which, whilst not providing such a clear indication of risk as the criteria falling under paragraph 1 of Schedule 3, are still serious and raise the presumption of a risk of harm to children or vulnerable adults. These offences are also set out in the Prescribed Criteria Regulations (as referenced above). New paragraphs 2(2) to (8) of Schedule 3 amend the arrangements for the referral of these cases to the ISA by the Secretary of State as in subsection (1) above and also require the ISA to seek representations from an individual who has committed such an offence, prior to reaching a decision on whether to place them on the children’s barred list. If no such representations are received within the prescribed time period, it requires the ISA to place the person on the barred list. If representations are received, then the ISA must consider whether it is appropriate to include the individual in the barred list. As with subsection (1), it also limits the application of such bars to those who are engaged, have been engaged or might be engaged in regulated activity.

282. Subsections (3) and (4) provide the same limitation of the bar to those who are engaged in, have been engaged in or might in future be engaged in, regulated activity, in respect of persons referred to the ISA on the grounds of behaviour (paragraph 3 of Schedule 3 to the SVGA) or risk of harm (paragraph 5 of Schedule 3) in relation to children. These provisions ensure that only those who are engaged in regulated activity, have been engaged in regulated activity or might in the future be engaged in such activity can be placed on the children’s barred list.

283. Subsections (5) to (8) make the same changes as subsections (1) to (4) in respect of persons referred to the ISA or placed on the barred list relating to vulnerable adults (paragraphs 7 to 11 of Schedule 3 to the SVGA).

Clause 68: Abolition of controlled activity

284. Clause 68 repeals sections 21 and 22 of the SVGA which define ‘controlled activity’ in respect of children and vulnerable adults; it also repeals section 23 of the SVGA which enables regulations to be made governing the steps that employers must take when considering allowing a person to engage in a controlled activity. Under the SVGA ‘controlled activity’ consists of specified types of activities that are ancillary in nature to work that falls within regulated activity. A person barred from engaging in regulated activity may do work that is a controlled activity. Regulations made under section 23 of the SVGA require an employer to check if a person is barred from regulated activity before permitting them to engage in a controlled activity. The purpose of this is to ensure that employers are able to assess if the individual in question is suitable for the controlled activity position and, if so, whether any safeguards need to be put in place. This clause abolishes the concept of ‘controlled activity’.

Clause 69: Abolition of monitoring

285. This clause repeals sections 24 to 27 of the SVGA which, had they been brought into force, would have made provision for the monitoring by the Secretary of State of persons engaged in regulated activity, broadly those individuals who are working closely with, or applying to work closely with, children or vulnerable adults or whose work otherwise falls within the current definition of ‘regulated activity’. The monitoring system would have required the majority of individuals engaged in or seeking to engage in regulated activity to make an application to the Secretary of State to be monitored. Applications to the Secretary of State which revealed any criminality information would have been referred to the ISA for consideration for barring and any person barred could not become or remain "subject to monitoring". Monitoring of applicants would have involved the collation of any updated material (such as new convictions or cautions) in relation to people registered with the Secretary of State for the purpose of being monitored, and referral of any new information to the ISA so that it could consider whether that person should be included on either or both of the barred lists. This clause abolishes those requirements and any other requirements relating to the proposed monitoring scheme.

Clause 70: Information for purposes of making barring decisions

286. Subsection (1) amends paragraph 19 of Schedule 3 to the SVGA which provides the ISA with the power to obtain relevant police information in relation to any individual’s case it is considering. As currently drafted, paragraph 19(1) of Schedule 3 requires the police and others to provide the ISA with information about convictions and cautions relating to a person to whom any of paragraphs 1 to 5 or 7 to 11 of Schedule 3 "applies". Subsection (1) alters this test so that the duty to provide ISA with conviction data operates where any of the relevant paragraphs of Schedule 3 "applies or appears to apply". This is because it may not be clear to the ISA at the time of the referral whether the criteria for automatic or discretionary barring have been satisfied. Subsection (1) also introduces a requirement for a "reasonable belief" test to be applied by those holding criminality information in respect of the relevance of information to be provided, consistent with the revised test to be applied in relation to police intelligence information disclosed on enhanced criminal record certificates (see clause 81).

287. Subsection (2) substitutes a new sub-paragraph (2) of paragraph 20 of Schedule 3 to the SVGA for the existing one. New paragraph 20(2) provides that when the Secretary of State refers a person to the ISA under paragraphs 1, 2, 7 or 8 of Schedule 3 (that is, because the prescribed criteria for the automatic barring provisions is triggered) and the Secretary of State has reason to believe the person is engaging in, or is likely to engage in or has engaged in, regulated activity, then the Secretary of State is also obliged to send the ISA certain information. This information will be prescribed details of a relevant matter, that is, prescribed details of convictions or cautions. This is further tempered by the ability for the type of conviction or caution information to be limited by regulations so that not all conviction or caution information will be provided by the Secretary of State to the ISA.

Clause 71: Review of barring decisions

288. Clause 71 (which inserts a new paragraph 18A into Schedule 3 to the SVGA) enables the ISA to review an individual’s inclusion in either of the barred lists and, in certain circumstances, to remove that person from the list. The circumstances are set out in new paragraph 18A(3).

Clause 72: Information about barring decisions

289. Subsection (1) replaces sections 30 to 32 of the SVGA with new sections 30A and 30B. Sections 30 and 32 would have enabled employers and others registering a legitimate interest in a person who was subject to monitoring under section 24 of the SVGA, to be informed should that person become barred. Section 24 is repealed by clause 69.

290. New section 30A introduces arrangements for an interested party to obtain from the Secretary of State, on application, information indicating whether a person is barred from regulated activity. Such information may only be provided with the person’s consent. Eligibility to apply for such information is governed by Schedule 7 to the SVGA, and includes, for example, regulated activity providers. New section 30A(5) provides for a fee in respect of such an application, and new section 30A(7) enables the Secretary of State to determine the form, manner and contents of the application. This would result in a reactive notification system where the interested party is told, upon request, whether a particular individual is barred.

291. New section 30B enables persons mentioned in Schedule 7 to the SVGA to register an interest in persons engaged in regulated activity. It requires the Secretary of State to notify the registered person should an individual become barred from regulated activity. Registration requires the consent of the individual engaged in regulated activity and, for this purpose, any consent given by an individual for a barred list check under section 30A suffices for consent for registration under new section 30B. New section 30B(8) provides for a fee to be charged for this service and new section 30B(10) enables the Secretary of State to determine the form, manner and content of any application. This fee will be set at a level necessary to recover the costs of this service. This would result in a proactive notification system whereby the interested person is automatically told when a particular individual is barred.

292. Subsection (2) amends section 33(3) of the SVGA to provide for registration to be periodically renewed and for registration to cease if it is not renewed.

293. Subsections (4) and (5) replace the existing power to add entries to the table in paragraph 1 of Schedule 7 to the SVGA with a power to amend or repeal entries in that table, or add new entries to it.

294. Subsection (6) repeals the provision set out in paragraph 3(1)(b) of Schedule 7 to the SVGA, which enables the Ministry of Defence to carry out barred list checks on those supervising persons aged under 18 working for the armed forces.

Clause 73: Duty to check whether person barred

295. This clause inserts new section 34ZA into the SVGA. New section 34ZA(1) places a duty on a ‘regulated activity provider’ to ascertain whether a person is barred before permitting that person to engage in regulated activity.

296. New section 34ZA(2) places a similar duty on a personnel supplier who provides persons to work in regulated activity (for example, a provider of agency teachers or care home workers) to ensure that any personnel they provide, knowing that they will be engaging in regulated activity, are not barred.

297. New section 34ZA(3) to (6) provide that the duties to check are met in particular where the provider has obtained information under new section 30A; obtained an enhanced criminal records certificate (under Part 5 of the Police Act 1997) in respect of regulated activity (which will indicate whether the person is barred); or checked such a certificate and received up-date information in relation to that certificate as provided for under clause 82.

298. New section 34ZA(7) enables the Secretary of State by regulations (subject to the negative resolution procedure) to disapply the duties in subsections (1) and (2) in respect of persons of a prescribed description.

Clause 74: Restrictions on duplication with Scottish and Northern Ireland barred lists

299. Clause 74 prevents duplication between the barred lists held in respect of England and Wales, Northern Ireland, and Scotland. It provides that the ISA must not include a person in the barred lists (which apply in England and Wales) if it knows that the person is included in a corresponding list. A corresponding list is one which is maintained under the law of Scotland or Northern Ireland, and which is specified by order of the Secretary of State as corresponding to either the child’s barred list or the adults barred list maintained by the ISA.

300. This clause also enables the ISA to remove a person from the barred lists if they know that a person is included in a corresponding list maintained in Northern Ireland or Scotland.

Clause 75: Professional bodies

301. This clause amends the duties on professional bodies by combining the effects of sections 43 and 44 of the SVGA.

302. Section 41 of the SVGA places an obligation upon professional bodies (also known as keepers of registers), for example the General Medical Council, to provide the ISA with information (of a prescribed sort) about a person whom it may be appropriate to include in a barred list, if certain conditions are met. Subsection (1) replaces the obligation to provide this information with a power to do so and removes the requirement that the information must be of a prescribed sort. This means that the professional body can provide any relevant information, if the referral criteria are met.

303. The changes made by subsection (3) ensure that the ISA is under an obligation to inform a professional body that someone on their register is on a barred list. The ISA must also provide the keeper of a register with any information upon which it relied in coming to that decision and which the ISA considers both to be relevant to the functions of the professional body and appropriate to disclose to that body. The amendments to the SVGA also enable a professional body to apply to the ISA for barred list information on an ad hoc basis. The ISA may provide to the professional body any information that is relevant to them; this does not have to be in relation to a barred person. The amendments further provide for a professional body to apply to the Secretary of State to be proactively notified if anyone on their register becomes barred.

304. The provisions ensure that neither the ISA nor the Secretary of State is under any obligation to provide information if the ISA (or the Secretary of State, as the case may be) is satisfied that the professional body already has that information.

Clause 76: Supervisory authorities

305. Clause 76 makes similar amendments to the provision of information to supervisory authorities (for example Her Majesty’s Chief Inspector of Schools in England). Subsection (1) replaces the duty on a supervisory authority to provide information to the ISA that may be relevant to a barring decision with a power to do so. This subsection and subsection (2) also make several amendments to section 47 of the SVGA which are consequential upon the abolition of monitoring. Subsection (3) ensures that any obligation to provide children’s barred list information to any supervisory authority does not apply if the Secretary of State is satisfied that the supervisory authority already has that information. Subsection (4) makes similar amendments in respect of individuals on the adults’ barred list. Subsection (5) alters the obligation on the ISA to provide the supervisory authority with information to a power to do so and limits the supervisory authority’s ability to request information under section 50 of the SVGA to a situation in which the information is required in connection with one of their functions.

Clause 77: Minor amendments

306. Subsection (1) repeals uncommenced amendments to the SVGA made by the Policing and Crime Act 2009 ("the 2009 Act"). Paragraph (a) omits section 87(2) of the 2009 Act, which would have required the notification to employers of an intention by the ISA to bar an individual, prior to the receipt of representations and a final decision as to whether to place a person on the barred lists. Paragraph (b) omits section 89(6) of the 2009 Act which amended the power of the Secretary of State to examine convictions or cautions in connection with criteria for the referral of individuals to the ISA under Schedule 3 to the SVGA; such referrals will now be governed by the revised arrangements in clause 67.

307. Subsection (2) amends section 39(1) of the SVGA so as to replace the duty on a local authority to provide information to the ISA which may be relevant to a barring decision with a power to do so.

308. Subsection (3) amends section 50A(1) of the SVGA which governs the provision of information to the police by the ISA. The amendment enables the ISA to provide police forces with information for the purposes of recruitment to the police service and for other reasons which may be prescribed (in addition to the existing grounds of the prevention, detection and investigation of crime, or the apprehension and prosecution of offenders).

309. Subsection (4) places on the ISA a duty to provide information, on request to any chief officer of police, as to whether a person is on a barred list. This applies for any of the reasons for which information can be provided to the police, including the new reasons introduced by subsection (3).

310. Subsection (4) also provides the ISA with a power to inform the Secretary of State, in her capacity as being responsible for Her Majesty’s Prison Service, or the Probation Service, about information which the ISA reasonably believes to be relevant, provided that it is for the purpose of protecting children or vulnerable adults. This subsection also places on the ISA a duty to provide to the Secretary of State (in practice, the Prison Service) or Probation Service, on request, information about whether a person is on a barred list, provided that it is for the purpose of protecting children or vulnerable adults.

311. Clause 64 (above) specifies that certain activities that would generally constitute regulated activity relating to children will no longer be within the scope of regulated activity if the person carrying out that activity is subject to regular, day to day supervision by another person who is carrying out regulated activity. Subsection (6) of clause 77 inserts new paragraph 5A of Schedule 4 to the SVGA, which provides that the Secretary of State must publish guidance to assist regulated activity providers and personnel suppliers in deciding whether supervision is of such a kind that the person being supervised would not be engaging in regulated activity relating to children. New paragraph 5A(2) provides that the Secretary of State must consult the Welsh Ministers before issuing that guidance; and new paragraph 5A(4) requires that regulated activity providers and personnel suppliers must, in exercising any of their functions under the SVGA, have regard to that guidance.

Clause 78: Corresponding amendments in relation to Northern Ireland

312. Clause 78 introduces Schedule 7, which amends the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 ("SVGO"). The SVGO provides the framework for the vetting and barring scheme in Northern Ireland.

Schedule 7: Safeguarding of vulnerable groups: Northern Ireland

313. Paragraph 1 replicates the provisions in clause 64, which limit the scope of regulated activity in relation to children. However, unlike in England and Wales, the following activities are retained within the scope of regulated activity:

· the work of education, health, social care and justice inspectorates;

· the activities of Guardians Ad Litem; and

· the function of a controller appointed in respect of a child under Article 101 of the Mental Health (NI) Order 1986.

314. A children’s hospital is also being retained as a specified establishment (there is only one dedicated children’s hospital in Northern Ireland) and accordingly persons working in such an establishment would come within the scope of regulated activity.

315. Paragraph 2 replicates the changes to the definition of vulnerable adults as provided for in clause 65.

316. Paragraph 3 replicates the provisions in clause 66, which limit the scope of regulated activity in relation to vulnerable adults, with some adjustment to reflect differences in Northern Ireland legislation. Paragraph 4 replicates the provisions in clause 67 (alteration of test for barring decisions) so that decision-making by the ISA will be conducted consistently across England, Wales and Northern Ireland.

317. Paragraph 5 abolishes controlled activity in Northern Ireland in line with the position in England and Wales provided for in clause 68 and paragraph 6 replicates clause 69 by abolishing monitoring under the vetting and barring scheme in Northern Ireland.

318. Paragraphs 7 and 8 replicate the provisions of clauses 70 and 71, which will alter the way barring decision-making by the ISA will be undertaken and reviewed. Paragraph 9 replicates clause 72 (information about barring decisions) by inserting new Articles 32A and 32B into the SVGO. These new Articles make statutory provision for the introduction of new proactive and reactive barred list notification mechanisms in Northern Ireland.

319. Paragraph 10 places a statutory duty on employers, volunteer managers and personnel suppliers to check whether an individual is barred prior to being permitted to engage in regulated activity with children or vulnerable adults in Northern Ireland, as is set out in clause 73.

320. Paragraph 11 makes reciprocal provision to clause 7 4 by preventing duplicate inclusion in Northern Ireland, England and Wales, and Scotland barred lists and enabling the ISA to remove a person from a barred list if it knows that a person is included in a corresponding barred list.

321. Paragraphs 12 and 13 replicate the provisions of clauses 75 and 76 respectively. These paragraphs provide for information flows between the ISA and professional bodies and regulation and inspection bodies in Northern Ireland. The requirement for professional bodies and regulation and inspection bodies to refer matters to the ISA is also replaced with a power to refer.

322. Paragraph 14 replicates clause 77 by making equivalent minor amendments to the SVGO and omitting section 90(2) of the 2009 Act. Included in the minor amendments is provision for the police, prisons and Probation Board for Northern Ireland to obtain barred list information from the ISA.

Chapter 2 of Part 5: Criminal Records

Clause 79: Restriction on information provided to certain persons

323. Subsection (1) repeals section 93 of the 2009 Act which, if commenced, would have inserted a new section 112(2A) into the 1997 Act. That section would have required the Secretary of State to send a copy of a criminal conviction certificate (which includes only any unspent convictions) to any named employer in the application. This change is in line with the changes made in subsection (2).

324. Subsection (2) repeals sections 113A(4) and 113B(5) and (6) of the 1997 Act. When a person applies for a standard certificate or an enhanced certificate, the Criminal Records Bureau ("CRB") issues the relevant certificate not only to the applicant but also, by virtue of sections 113A(4) and 113B(6) of the 1997 Act, sends a copy of the certificate to the registered body which countersigned the application. A registered body will normally be the applicant’s employer or prospective employer or other organisation acting on behalf of an employer. The simultaneous issue of the certificate to an applicant and a registered body does not afford the applicant the opportunity to review and, if necessary, challenge the information contained in a certificate before it is released to an employer. The repeal of sections 113A(4) and 113B(6) removes the provisions that require a copy of a certificate to be sent to the registered body so that the certificate is issued to the applicant only, allowing the applicant to make appropriate representations to the CRB regarding the information released without the disputed information already having been seen by the employer.

325. Section 113B(5) of the 1997 Act enables sensitive (non-conviction) information which might be relevant to an employer to be provided to a registered body without it being copied to the applicant. Such a procedure is adopted, for example, where the police are engaged in an ongoing criminal investigation and the premature release of the relevant information to an applicant for an enhanced criminal records certificate might compromise that investigation. The repeal of section 113B(5) removes the statutory obligation to disclose the relevant information to the registered body in these circumstances. However, it would remain open to the police, using their common law powers to prevent crime and protect the public, to pass such information to a potential employer where they considered it justified and proportionate.

Clause 80: Minimum age for applicants for certificates or to be registered

326. Under sections 112(1), 113A(1), 113B(1), 114(1) and 116(1) of the 1997 Act, the Secretary of State is required to issue a criminal conviction certificate, criminal record certificate, enhanced criminal record certificate, criminal record certificate (Crown employment) and enhanced criminal record certificate (judicial appointments and Crown employment) respectively to any individual who makes an application in the prescribed manner and form and pays the prescribed fee - that is, the Secretary of State has no discretion to refuse an application submitted by a person below a certain age. Subsection (1) amends the provisions of the 1997 Act so that the duty on the Secretary of State to issue the relevant certificate only applies where the applicant is aged 16 years or over.

327. Subsection (2) amends section 120(4) of the 1997 Act so that registered persons who countersign applications for criminal record certificates and enhanced criminal record certificates must be aged 18 years or over.

Clause 81: Enhanced criminal record certificates: additional safeguards

328. Under section 113B(4) of the 1997 Act an enhanced criminal records certificate may include, in addition to details of any convictions or cautions, other information which, in the opinion of a relevant chief officer of police might be relevant to an employer’s decision on whether the applicant is suitable for the role concerned. Subsection (1) of clause 81 (taken together with subsection (3)) makes two material changes to section 113B(4). First, it amends the test to be applied by a chief officer when determining whether additional, non-conviction information should be included in an enhanced criminal record certificate. In place of the current test of information which, in the opinion of the chief officer ‘might be relevant’ and ought to be included in the certificate, subsection (1) substitutes a higher test of information which the chief officer ‘reasonably believes to be relevant’ and which in the chief officer’s opinion ought to be included in the certificate.

329. The second change to section 113B(4) affected by subsection (3) relates to the chief officer of police whom the Secretary of State is required to approach to ascertain whether he or she holds any relevant non-conviction information on the applicant for a certificate. At present, such an approach must be made to the chief officer of every relevant police force. A ‘relevant police force’ is defined in Regulation 10 of the Police Act 1997 (Criminal Records) Regulations 2002 (SI 2002 233 as amended) as any police force which holds information about the applicant (whether conviction or non-conviction information); there may be two or more such police forces which will independently come to a decision about what, if any, non-conviction information about the applicant might be relevant and ought to be included in the enhanced criminal records certificate. By virtue of the amendments to section 113B(4) and (9) made by subsection (1)(a) and subsection (3) the Secretary of State will be able to approach any ‘relevant chief officer’; in this way one chief officer can be assigned to take a decision on the disclosure of non-conviction information held by any number of police forces. It would be open to the Secretary of State to appoint one chief officer to act as the relevant chief officer in respect of all applications for enhanced criminal record certificates or to appoint a small number of chief officers, for example, one per region, to undertake the role on behalf of all forces.

330. Subsection (2) inserts a new subsection (4A) into section 113B of the 1997 Act. New section 113B(4A) enables the Secretary of State to issue guidance to relevant chief officers about the discharge of their functions under section 113B(4) to provide relevant non-conviction information about an applicant for an enhanced criminal record certificate; a relevant chief officer is required to have regard to any such guidance.

331. Under section 117 of the 1997 Act, an applicant in receipt of a criminal conviction certificate, criminal record certificate or enhanced criminal record certificate who disputes the accuracy of the information contained in such a certificate may make an application in writing to the Secretary of State for a new certificate. The Secretary of State may consider the application and, if of the opinion that the information is inaccurate, will issue a new certificate. Subsection (4) of clause 81 inserts new subsection (1A) into section 117, which allows parties other than the applicant to make such an application.

332. Subsection (5) inserts new section 117A into the 1997 Act, which provides that a dispute can be raised in relation to an enhanced criminal record certificate in relation to the non-conviction information supplied by a relevant chief officer. The person may apply to the independent monitor (appointed under section 119B of the 1997 Act) to determine whether that information is relevant or ought to be included in the certificate. The independent monitor must ask an appropriate chief officer of police to review whether the information concerned is relevant and ought to be included on the certificate. If following that review, the independent monitor decides that the information either is not relevant or should not be included in the certificate, the independent monitor must inform the Secretary of State, who must issue a new certificate, which excludes that information. In exercising their review functions, both the chief officer and the independent monitor must have regard to the guidance published by the Secretary of State under section 113B(4A) of the 1997 Act.

Clause 82: Up-dating certificates

333. This clause inserts new section 116A into the 1997 Act. One of the main features of the current CRB system is that a criminal record certificate and enhanced criminal record certificate is a snapshot in time showing only what conviction and other relevant information was recorded on databases as of the date a certificate was issued. This means that the reliance an employer can place on the information contained in a certificate diminishes with the lapse of time following the issue of a certificate, which impedes the ‘portability’ of a certificate between roles (that is, the ability of an employee or volunteer to present a certificate obtained for one job or voluntary position to a second employer or voluntary organisation).

334. New section 116A of the 1997 Act introduces a procedure for updating certificates on a continuous basis. An applicant for a criminal conviction certificate, criminal record certificate or enhanced criminal record certificate may subscribe to the updating arrangements at the time an application for a certificate is submitted and thereafter re-subscribe to those arrangements on an annual basis. The update arrangements will only be put in place in respect of an applicant for a certificate and thereafter renewed on payment of an initial fee and subsequently of an annual fee to be prescribed by regulations made under new section 116A(5) (by virtue of section 125 of the 1997 Act such regulations are subject to the negative resolution procedure). The annual fee will be set at a level necessary to recover the costs of the service and will be offset by the removal of the need to make repeat applications for a criminal record certificate. Under the update arrangements the CRB will not, as such, provide any new conviction or other relevant information to the subscriber to the updating arrangements. Instead, by virtue of the definition of ‘up-date information’ in new section 116A(7), in response to a request for update information, the CRB will advise the person making the request (which can be the applicant, or any person authorised by the applicant who is entitled to see that information) either that there is no new information that would be included on a new certificate or that a new certificate should be applied for (which would imply that a new certificate would contain new information).

Clause 83: Criminal conviction certificates: conditional cautions

335. Clause 83 amends section 112(2) of the 1997 Act which details the content of a criminal conviction certificate. Such a certificate includes the details of any convictions unspent under the terms of the Rehabilitation of Offenders Act 1974. The amendment to section 112(2) provides that a criminal conviction certificate must also include details of any unspent conditional cautions. A conditional caution is an out of court disposal whereby an offender avoids being prosecuted for an offence by admitting his or her guilt and agreeing to comply with certain conditions designed to rehabilitate the offender or provide reparation to the victim; under the Rehabilitation of Offenders Act a conditional caution becomes spent after three months. Section 112 of the 1997 Act is not in force in England and Wales.

Clause 84: Out of date references to certificates of criminal records

336. Clause 84 amends section 75 of the Data Protection Act 1998, which provides that section 56 of that Act, which in turn would make it an offence for an employer or prospective employer to require a person to supply details of any convictions or cautions in respect of that person held by the police (otherwise known as ‘enforced subject access’), cannot be commenced until criminal conviction certificates, criminal record certificates and enhanced criminal record certificates are all available under the 1997 Act. The amendments to section 75 replace out of date references to sections 113 and 115 of the 1997 Act (which were repealed by the Serious Organised Crime and Police Act 2005). The replacement provisions for sections 113 and 115 are now sections 113A and 113B which provide for criminal record certificates and enhanced criminal record certificates respectively.

Chapter 3 of Part 5: The Disclosure and Barring Service

Clause 85: Formation and constitution of DBS

337. Subsections (1) and (2) establish a new body, called the Disclosure and Barring Service ("DBS"). The DBS is intended to combine the current functions of the ISA, in respect of safeguarding vulnerable groups, and of the CRB in respect of providing criminal record certificates. Subsection (3) gives effect to Schedule 8, which makes further provision about the constitution and governance of the DBS.

Schedule 8: Disclosure and Barring Service

338. Paragraph 1 provides that the DBS shall consist of a chair person and other members appointed by the Secretary of State, some of whom are expected to have relevant knowledge or experience of child protection or the protection of vulnerable adults. Before appointing the chair or members of the DBS, the Secretary of State is required to consult the Welsh Minister and a Northern Ireland Minister. Paragraph 2 provides that an appointment of a member of DBS may not be for more than five years, although reappointment is possible, and sets out the procedures by which an appointed member may resign or may be removed from office. Paragraph 3 makes provision for the remuneration of members.

339. Paragraphs 4 and 5 deal with the appointment of and remuneration of the chief executive and other staff to the DBS. By virtue of paragraph 20 the Secretary of State may appoint the first chief executive of the organisation.

340. Paragraphs 6 to 8 enable the DBS to delegate any of its functions to its members, staff, or a committee of members and/or staff and to delegate non-core functions to a person who is neither an appointed member nor a member of staff. For these purposes, ‘core function’ is defined as: decisions about whether somebody should be included in or removed from a barred list; consideration of representations made by an individual under Schedule 3 to the SVGA relating to a decision to include them in a barred list; or any function falling under Part 5 of the 1997 Act which is specified in an order by the Secretary of State. Such an order is subject to the negative resolution procedure.

341. Paragraph 9 requires the DBS, following consultation with the Secretary of State, to publish a business plan at the beginning of each financial year, and paragraph 10 requires it to publish an annual report on the exercise of its functions.

342. Paragraph 11 allows for the Secretary of State to make payments to the DBS and paragraph 12 makes provisions about the annual accounts of the DBS including in respect of the auditing of such accounts by the Comptroller and Auditor General.

343. Paragraph 13 allows the Secretary of State to issue written guidance to the DBS on the exercise of its functions, to which DBS must have regard. Paragraph 14 allows the Secretary of State to issue, vary or revoke written directions to the DBS, to which the DBS must comply in relation to any of its functions, except for decisions about including a person in or removing them from a barred list, or consideration of representations from a person about their inclusion in such a list.

344. Paragraphs 15 to 1 9 make supplementary provisions covering the status of DBS as a non-Crown body; its ability to use information obtained in relation to one of its functions for others of its functions; payments made in connection with maladministration; incidental powers; and the authentication of documents to be submitted in evidence.

Clause 86: Transfer of functions to DBS and dissolution of ISA

345. Subsection (1) of clause 86 provides that the Secretary of State may, by order, transfer any function of the ISA to the DBS. Subsection (2) provides that the Secretary of State may by order transfer to the DBS any function of the Secretary of State in connection with Part 5 of the 1997 Act (the criminal record disclosure functions of the CRB); the SVGA (the CRB’s functions in connection with the safeguarding of vulnerable groups); and the SVGO (under which the CRB has equivalent functions to those under SVGA). Subsection (3) allows the Secretary of State by order to dissolve the ISA.

Clause 87: Orders under section 86

346. Subsection (1) specifies that orders made under clause 86 transferring functions to the DBS or abolishing the ISA must be made by Statutory Instrument. Such an order may make consequential amendments to any enactment; for example, the dissolution of the ISA would require the repeal of the provisions in the SVGA establishing the ISA and the replacement of legislative references to ‘ISA’ with ‘DBS’. By virtue of subsections (2) and (3) an order made under clause 86 is subject to the affirmative resolution procedure where it amends or repeals provisions in primary legislation, but is otherwise subject to the negative resolution procedure. Subsection (4) disapplies the hybridity procedure should such procedure apply to an order made under clause 86. The hybridity procedure is explained in paragraph 147.

Clause 88: Transfer schemes in connection with orders under section 86

347. Clause 88 sets out that the Secretary of State, in connection with an order made under clause 86, may make a scheme for the transfer of property, rights or liabilities of the ISA or the Secretary of State (in practice, the CRB). Subsection (3) lists supplementary, incidental and transitional provision that may be made by a transfer scheme . These include making provision the same as , or similar to , the TUPE regulations (the Transfer of Undertakings (Protections of Employment) Regulations 2006 (S.I. 2006/246)). Subsection ( 8 ) specifies that a transfer scheme may provide for an employee of the ISA or an individual employed in the civil service (in practice, the CRB) to become an employee of the DBS; and that such a scheme may provide that an individual’s contract of employment with the ISA or their terms of employment in the civil service will have effect, subject to any necessary modifications, as the terms of that person’s contract of employment with the DBS.

348. Subsection (6) provides that a transfer scheme may either be included in an order made under clause 86 or be a standalone document; in the latter case the scheme must be laid before Parliament.

Clause 89: Tax in connection with transfer schemes

349. Clause 89 provides a power for the Treasury to make an order (subject to the negative resolution procedure in the House of Commons) providing for the tax consequences of the transfer scheme set out in clause 88.

Chapter 4 of Part 5: Disregarding certain convictions for buggery etc.

Clause 90: Power of Secretary of State to disregard convictions or cautions

350. Subsection (1) provides that a person convicted of, or cautioned for, an offence under:

  • s ection 12 of the Sexual Offences Act 1956 Act “ (the 1956 Act ” ) for the offence of buggery,
  • section 13 of the 1956 Act for the offence of gross indecency between men , or
  • s ection 61 of the Offences against the Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885 (which contained the corresponding pre-1956 offences) .
  • may apply to the Secretary of State (in practice, the Home Secretary) to have the conviction or caution disregarded.

    351. By virtue of clause 99(3) and 99(5), these provisions also cover persons with a conviction for a corresponding offence under military service law, or for the inchoate offences of attempting, loitering with intent, conspiring to commit, or inciting the commission of, an offence of buggery or gross indecency; or aiding, abetting, counselling or procuring the commission of an offence of buggery or gross indecency.

    352. Subsection (2) provides that a caution or conviction can only be disregarded if the conditions set out in subsections (3) and (4) are both met.

    353. Subsection (3) sets out the first condition, which is that it appears to the Secretary of State that the other person involved in the conduct which amounted to the original offence consented to it and was aged at least 16 years at the time. The offence must also be one which would not fall within the provisions of section 71 of the Sexual Offenders Act 2003 (that is, sexual activity in a public lavatory) as the intention is that these provisions should only apply to behaviour that is no longer criminal. (As well as consensual gay sex with a person over the age of consent, the offence in section 12 of the 1956 Act also encompasses non-consensual buggery, bestiality and under-age buggery, and the section 13 offence also includes gross indecency with somebody under the age of consent, all of which remains criminal behaviour today.)

    354. Subsection (4) sets out the second condition, namely that the Secretary of State has given notice to the applicant of the decision to disregard the conviction or caution; such notice takes effect 14 days after that notice has been given.

    355. The effect of a relevant conviction or caution being designated as a disregarded conviction or caution is explained in clauses 93 to 96 (subsection (5)).

    Clause 91: Applications to the Secretary of State

    356. Subsection (1) provides that an application under clause 90 has to be made in writing.

    357. Subsection (2) sets out the information that must be contained in an application.

    358. Subsection (3) provides that an applicant may supply additional information to evidence that his conviction satisfies the first condition in clause 90, namely that the relevant offence involved consensual gay sex with another person over the age of 16.

    Clause 92: Procedure for decisions by the Secretary of State

    359. Subsection (1) requires the Secretary of State in coming to a decision on an application to consider the evidence supplied by the applicant, together with any available relevant police, prosecution or court records of the investigation and prosecution of the offence in question.

    360. Subsection (2) provides that oral hearings will not be held when deciding whether or not to accept an application; in effect the Secretary of State will come to a decision on the basis of the written information available (subject to clause 90).

    361. Subsections (3) and (4) require the Secretary of State to record in writing the decision on an application and to notify the applicant of that decision in writing.

    Clause 93: Effect of disregard on police and other records

    362. Subsection (1) provides that where a conviction or caution is disregarded, the Secretary of State must direct the relevant data controller to delete the details of the disregarded caution or conviction from all official records. The term ‘relevant data controller’ is defined in subsection (5) augmented by an order made under that subsection; in most cases this will be the chief officer of police of the force which investigated the offence.

    363. Subsection (2) provides that notice of deletion can be given at any time once the Secretary of State has made a decision to disregard a conviction or caution, but that deletion will not be effective until the applicant has been informed and 14 days have elapsed since that notification.

    364. Subsection (3) requires that, subject to subsection (2), the data controller must delete the relevant records as soon as reasonably practicable.

    365. Subsection (4) provides that the data controller must notify the applicant in writing that deletion has taken place.

    Clause 94: Effect of disregard for disclosure and other purposes

    366. Subsection (1) provides that a person with a disregarded conviction or caution is to be treated in law as if he had not committed the offence or been subject to any legal proceedings in respect of the offence (that is, he had not been charged or prosecuted for the offence or convicted, cautioned or sentenced for the offence) .

    367. Subsection (2) provides that details of disregarded cautions and convictions cannot be used in any judicial proceedings (as defined in clause 96) nor, in any such proceedings, can the individual be asked about or be required to answer questions about any disregarded conviction or caution or any circumstances ancillary to it (see clause 96).

    368. Subsection (3) provides that questions put to a person in any other context (for example, by a prospective employer) asking about that person’s past convictions or cautions are not to be treated as including any reference to a disregarded conviction or caution and that failure to provide details of such a disregarded matter will not lead to any liability on the part of the individual.

    369. Subsection (4) provides that any obligation under any law or other agreement to disclose offences will not apply to such disregarded convictions or cautions.

    370. Subsection (5) provides that a disregarded caution or conviction is not grounds for dismissal from any office, employment, occupation or profession, nor can it prejudice an individual in any such connection.

    Clause 95: Saving for Royal pardons etc.

    371. This clause preserves the power of Her Majesty, under the Royal prerogative, to issue a pardon, commute a sentence or quash a conviction. Accordingly, a person with a disregarded conviction or caution might still receive a Royal pardon in respect of the offence despite the operation of clause 94.

    Clause 96: Section 94: supplementary

    372. Subsection (1) defines the term ‘proceedings before a judicial authority’ for the purpose of clause 94.

    373. Subsections (2) and (3) define the terms ‘circumstances ancillary to a conviction’ and ‘circumstances ancillary to a caution’ respectively for the purpose of clause 94.

    Clause 97: Appeal against refusal to disregard convictions or cautions

    374. This clause provides for a right of appeal to the High Court against a decision by the Secretary of State not to grant an application for a relevant conviction or caution to become a disregarded conviction or caution (subsection (1)). On hearing such an appeal the High Court cannot hear any new evidence and must reach a decision on the basis of the evidence available to the Secretary of State (subsection (2)). If the appeal is granted, the High Court must make an order to the effect that the relevant conviction or caution is to be treated as a disregarded conviction or caution; such an order takes effect after 14 days (subsections (3) and (5)). There is no further appeal from the High Court’s decision (subsection (6)).

    Clause 98: Advisers

    375. Subsection (1) enables the Secretary of State to appoint independent advisers to advise on an application from a person under clause 91. The advisers can be supplied with such information as is relevant to enable them to undertake their function (subsection (2)). The decision on the application will rest with the Secretary of State, who can accept, or not, the advice provided. Subsection (3) provides for the payment of expenses and allowances to the advisers.

    Clause 99: Interpretation: Chapter 4

    376. This clause defines various terms used in this Chapter.

    Part 6: Freedom of information and data protection

    Clause 100: Release and publication of datasets held by public authorities

    377. Clause 100 amends the Freedom of Information Act 2000 ("FOIA") which currently provides for access to information held by public authorities.

    378. Subsection (2) amends section 11 of the FOIA (means by which communication to be made). Paragraph (a) inserts a new subsection (1A) which provides that where a request is made for information that is a dataset, or which forms part of a dataset, held by the public authority, and the applicant requests that information be communicated in an electronic form, then the public authority must, as far as is reasonably practicable, provide the information to the applicant in an electronic form that is capable of re-use, in other words a re-usable format.

    379. There is no absolute duty for datasets to be provided in a re-useable format as it is recognised that, in some instances, there may be practical difficulties in relation to costs and IT to convert the format of the information. A re-usable format is one where the information is available in machine-readable form using open standards which enables its re-use and manipulation. If the applicant does not want to have the dataset communicated in electronic form, because for example, he or she wants the dataset in hard copy only, then the new duty in section 11(1A) will not arise. However, the public authority would still need to comply with the preference expressed, by virtue of the existing duty in section 11(1)(a) of the FOIA, and must provide the dataset in hard copy so far as it is reasonably practicable to do so.

    380. Paragraph (b) amends section 11(4) by providing that the discretion which a public authority has in relation to the means by which communication of the information is to be made (which is already subject to the duty in section 11(1) of the FOIA) is now additionally subject to the new duty in section 11(1A).

    381. Paragraph (c) of subsection (2) inserts new subsection (5) and provides for the definition of "dataset" for the purposes of the Act. The definition makes it clear that a dataset is a subset of information within the meaning of the FOIA. The definition provides that a dataset is a collection of information held in electronic form where all or most of the information meets the criteria set out in the following paragraphs of the new section 11(5).

    382. The new subsection (5)(a) requires that the information in a dataset has to have been obtained or recorded by a public authority for the purpose of providing the authority with information in connection with the provision of a service by that authority or the carrying out of any other function of the authority.

    383. New subsection (5)(b) requires that the information is factual in nature and (a) is not the product of interpretation or analysis other than calculation, in other words that it is the ‘raw’ or ‘source’ data; and (b) provides that it is not an official statistic within the meaning given by the Statistics and Registration Service Act 2007 ("SRSA 2007"). Official statistics have been excluded from the definition of datasets as the production and publication of official statistics is provided for separately in the SRSA 2007.

    384. New subsection (5)(c) requires that the information within datasets has not been materially altered since it was obtained or recorded. Datasets which have had ‘value’ added to them or which have been materially altered, for example in the form of analysis, representation or application of other expertise, would not fall within the definition for the purposes of new subsection (5). Examples of the types of datasets which meet the definition, though not a comprehensive list, will include datasets comprising combinations of letters and numbers used to identify property or locations, such as postcodes and references; datasets comprising numbers and information related to numbers such as spend data; and datasets comprising text or words such as information about job roles in a public authority.

    385. Subsection (3) inserts new sections 11A and 11B into the FOIA which provide for the new duty to make a dataset available for re-use and the charging of fees. New section 11A(1) provides for the four criteria which must be met for the new section to apply: (a) that a person must have made a request for a dataset; (b) that the dataset requested includes a ‘relevant copyright work’; (c) that the public authority is the only owner of the ‘relevant copyright work’, in other words that it is not jointly owned with another party or that it is not owned in whole or in part by a third party; and (d) that the public authority is communicating the relevant copyright work to the requester under the FOIA, in other words that the dataset requested is not being withheld under one of the exemptions provided for in the FOIA.

    386. New section 11A(2) provides that when communicating such a dataset to an applicant, the public authority must make the dataset available for re-use in accordance with the terms of a specified licence. New section 11A(3) to (7) makes provision for the charging of fees by public authorities for making datasets available for re-use. New subsection (3) provides that a public authority may charge a fee by virtue of regulations made under new section 11B and new subsection (4) preserves existing statutory powers for public authorities to charge a fee. New subsection (5) provides that where a public authority intends to charge a fee, it must give the applicant a "re-use fee notice", which states the amount of the fee which must be paid before the dataset is available for re-use. New subsection (6) provides that where the public authority has given the applicant a re-use notice, it is not required to make the dataset available for re-use until the fee is paid in accordance with the notice; and new subsection (7) provides that if a public authority is exercising any existing statutory power to charge, the authority may combine the re-use fee notice with any other notice in accordance with the relevant statutory power being exercised.

    387. New section 11A(8) adds definitions of "copyright owner", "copyright work", "database", "database right", "owner", "relevant copyright work", and "the specified licence" to section 11A of the FOIA. The definition of a "relevant copyright work" excludes a "relevant Crown work" and a "relevant Parliamentary work" which are separately defined.

    388. Crown owned works are excluded from the requirement on public authorities to make datasets available for re-use under the terms of a licence specified by the Secretary of State. This is because the Controller of Her Majesty’s Stationery Office, who is appointed by letters patent from the Queen to manage Crown owned works, already has the authority to require these works and databases to be made available for re-use under the terms of a licence.

    389. Parliamentary owned works and databases are excluded from the requirement on public authorities to make such datasets available for re-use because it would not be appropriate to make Parliament subject to a direction of the Secretary of State as new section 11A of the FOIA would in effect do by way of the specified licence in the code of practice under section 45 of the FOIA.

    390. New section 11B makes further provision about the charging of fees by public authorities for making datasets (containing relevant copyright works) available for re-use. Subsection (1) confers a power on the Secretary of State to make regulations (subject to the negative resolution procedure) about the charging of fees in connection with making the datasets available for re-use in response to requests under the FOIA and publication schemes. Subsections (2) and (3) set out what the regulations may prescribe, such as when a fee may or may not be charged and how much that fee might be.

    391. Subsection (4) amends section 19 (publication schemes) of the FOIA. Paragraph (a) inserts new subsections (2A) to (2F) into section 19 of the FOIA. Under new section 19(2A), publication schemes must include a requirement for the public authority to publish any dataset it holds, which is requested by an applicant, and any updated version of a dataset, unless the authority is satisfied that it is not appropriate for the dataset to be so published (new subsection (2A)(a)). It requires public authorities, where reasonably practicable, to publish any dataset under new subsection (2A)(a) in an electronic form which is capable of re-use (new subsection (2A)(b)) Subject to new subsection(2B), it also requires public authorities to make any relevant copyright work (if the authority is the only owner) available for re-use in accordance with the terms of the specified licence. New subsections (2B) to (2F) mirror new section 11A(2A) to (2E) by making equivalent provision in respect of publication schemes for the charging of fees by public authorities for making datasets (where they contain relevant copyright works) available for re-use.

    392. Paragraph (b) of subsection (4) inserts a new subsection (8) into section 19 of the FOIA which provides definitions of "copyright owner", "copyright work", "database", "database right", "owner", "relevant copyright work" and "the specified licence". The definition of a "relevant copyright work" excludes a "relevant Crown work" and a "relevant Parliamentary work" which are separately defined.

    393. Subsection (5) amends section 45 of the FOIA (issue of code of practice). Paragraph (a) amends the list in section 45(2) of the FOIA, which sets out the matters that must be included in the code of practice made under that section, to insert a new requirement for the code of practice to include provision relating to the disclosure by public authorities of datasets held by them. Paragraph (b) sets out the different provisions relating to the re-use and disclosure of datasets that may, in particular, be included in the code of practice under section 45 of the FOIA. Paragraph (c) amends section 45(3) of the FOIA so as to provide for the possibility of making more than one code of practice under section 45, each of which makes different provision for different public authorities.

    394. Subsection (6) inserts into section 84 of the FOIA, which defines the terms used in that Act, a definition of the new term "dataset".

    Clause 101: Meaning of "publicly-owned company"

    395. This clause amends section 6 of the FOIA to widen the definition of "publicly-owned company".

    396. Subsection (2) amends section 6(1) of the FOIA to provide that, as well as companies wholly owned by the Crown, any government department or a single public authority, those wholly owned by one or more bodies from the wider public sector or owned by any such body or bodies in conjunction with the Crown or government departments are also subject to the FOIA. Currently section 6(1) of the FOIA only applies to bodies wholly owned by the Crown, any government department or another single public authority.

    397. Subsection (3) replaces the current section 6(2) of the FOIA to define when a company is owned by the Crown, the wider public sector, or a combination of both. For a company to be wholly owned by the Crown every member must be a Minister of the Crown, a government department or a company owned by the Crown; or a person acting on behalf of any of these. For a company to be wholly owned by the wider public sector every member must be a relevant public authority or company wholly owned by the wider public sector; or a person acting on behalf of either. For a company to be wholly owned by the Crown and wider public sector at least one member must be a Minister of the Crown, a government department, a company wholly owned by the Crown, or a person acting on behalf of one of these; at least one member must be a relevant public authority, a company wholly owned by the wider public sector, or a person acting on behalf of one of these; and all of its members must fall within these two categories. This has the effect that companies wholly owned by the Crown (including government departments) or any combination of public authorities listed in Schedule 1 to the FOIA (subject to subsection (4)) are subject to its provisions, as are companies owned by the Crown and any combination of relevant public authorities. Examples of bodies to which the FOIA will be extended include waste disposal companies and purchasing organisations wholly owned by a number of local authorities.

    398. Subsection (4) amends subsection 6(3) of the FOIA to define "relevant public authority". All public authorities listed in Schedule 1 to the FOIA are relevant public authorities except those listed only in relation to particular information. Companies owned entirely or in part by public authorities listed only in relation to particular information are not publicly-owned companies for FOIA purposes. Government departments are excluded from the definition of a relevant public authority on account of their being part of the Crown.

    Clause 102: Extension of certain provisions to Northern Ireland bodies

    399. Subsection (1) repeals section 80A of the FOIA and paragraph 6 of Schedule 7 to the Constitutional Reform and Governance Act 2010 which excluded Northern Ireland bodies from provisions in the FOIA relating to the disclosure of historical records and communications with the Royal Family.

    400. As a result Northern Ireland bodies will be subject to the amendments made to sections 2(3) and 37(1)(a) of the FOIA about information relating to communications with the Royal Family and Household. The Constitutional Reform and Governance Act 2010 substituted five categories of communication for those previously set out in section 37(1)(a). These are communications:

    • with the Sovereign (new paragraph (a));
    • with the heir to the Throne or the second in line to the Throne (new paragraph (aa));
    • with a person who has subsequently acceded to the Throne or become heir to, or second in line to, the Throne. This provides an exemption for information which relates to communications with such a person from the date they accede to the Throne or become heir or second in line to the Throne. The exemption also applies to all relevant information created before that date. Should that person cease to be the Sovereign, heir to or second in line to the Throne otherwise than by death and remain a member of the Royal Family then paragraph (ac) will apply to information relating to communications with that person created on or after the date of that change (new paragraph (ab));
    • with members of the Royal Family who do not themselves fall within paragraphs (a) to (ab) other than when those communications are made or received on behalf of the persons referred to in paragraphs (a) to (ab) (new paragraph (ac)); and
    • with the Royal Household other than where those communications are made or received on behalf of the persons referred to in paragraphs (a) to (ac) (new paragraph (ad)).

    401. The amendment to section 2(3) of the FOIA by which the exemptions in the new paragraphs (a) to (ab) are absolute, and those in the new paragraphs (ac) and (ad) are qualified (as they are subject to a public interest test), applies to Northern Ireland bodies.

    402. The amendments made by the Constitutional Reform and Governance Act 2010 to sections 62(1) and 63 of the FOIA relating to historical records will also apply to Northern Ireland bodies. The amended section 62(1) provides for a change in the meaning of "historical record" so that a record becomes an "historical record" at 20 years rather than 30 years as previously.

    403. The amended section 63 of the FOIA limits the exemptions from disclosure which can be applied to "historical records" so the maximum period for which information can be withheld is reduced from 30 years to 20 years for:

    • s ections 30(1) ( investigations and proceedings conducted by public authorities), 32 (court records), 33 (audit functions), 35 (formulation of government policy) and 42 (legal professional privilege); and
    • section 36 (prejudice to the effective conduct of public affairs) , except for subsection (2)(a)(ii) (information which would or would be likely to prejudice the work of the Executive Committee of the Northern Ireland Assembly) and s ection 36(2)(c), in so far as disclosure would prejudice the effective conduct of publ ic affairs in Northern Ireland where the lifespan of the exception remains at 30 years.

    404. The amended section 63 also specifies the time limit applying to subsections 37(1)(a) to (ad) (communications with Her Majesty, etc). The time limit is 20 years after the creation of the record in which the information is contained, or five years after the death of the relevant member of the Royal Family, whichever is longer. In the case of communications with the Royal Household falling within new paragraph (ad), the relevant member of the Royal Family for these purposes is the Sovereign reigning when the record in question was created.

    405. The maximum duration remains 30 years for sections 28 (relations within the UK) and 43 (commercial interests) of the FOIA.

    406. Subsection (2) ensures that the power in section 46(2) to (5) of the Constitutional Reform and Governance Act 2010 may apply to Northern Ireland bodies. Subsections 46(2) to (5) of the Constitutional Reform and Governance Act 2010 allow transitional provisions to be made in connection with the amendments to the FOIA that reduce from 30 to 20 years the period within which certain exemptions from disclosure apply; give the Secretary of State power, by order, to make transitional arrangements relating to those amendments; enable provision to be made in any such order about the time when the exemptions cease to apply; and enable different provision to be made for records of different descriptions. A statutory instrument containing such an order is subject to the negative resolution procedure.

    Clause 103: Appointment and tenure of Information Commissioner

    407. Clause 103 makes further provision about the appointment and tenure of the Information Commissioner.

    408. Subsection (1) amends paragraph 2(1) of Schedule 5 to the Data Protection Act 1998 ("DPA") with the effect that the Information Commissioner is appointed for a term not exceeding seven years. Currently the Commissioner is appointed for terms not exceeding five years.

    409. Subsection (2) inserts new sub-paragraphs (3A) to (3C) into paragraph 2 of Schedule 5 to the DPA. Under paragraph 2(3) of Schedule 5 the Commissioner may be removed from office by Her Majesty in pursuance of an Address from both Houses of Parliament. New sub-paragraph (3A) sets out grounds for removing the Commissioner from his post. It also provides that an Address cannot be sought unless a Minister is satisfied that at least one of the listed grounds is met and presents a report to this effect.

    410. New sub-paragraph (3B) provides that the Commissioner must be appointed on merit and on the basis of fair and open competition.

    411. New sub-paragraph (3C) provides that the Commissioner may only serve a single term of office, and cannot be reappointed. As a consequence, subsection (2) repeals paragraph 2(5) of Schedule 5 to the DPA which currently permits reappointment of the Commissioner. This subsection also repeals paragraph 2(4) of Schedule 5 which requires the Commissioner to vacate his or her office on reaching sixty-five years of age.

    412. Subsection (4) makes a consequential amendment to the heading of paragraph 2 of Schedule 5 to the DPA (‘tenure of office’ becomes ‘tenure of office and appointment’) to reflect the wider scope of this provision.

    413. Subsection (5) repeals spent transitional provisions in section 18 of the FOIA in respect of the tenure of office of the Data Protection Commissioner following the change of name of that office to that of Information Commissioner.

    Clause 104: Alteration of role of Secretary of State in relation to guidance powers

    414. Clause 104 removes the current requirement that guidance issued by the Commissioner under sections 41C, 52A and 55C of the DPA relating to assessment notices, data sharing and monetary penalty notices respectively must be approved by the Secretary of State.

    415. Subsection (1) replaces the current section 41C(7) of the DPA so as to require the Commissioner to consult the Secretary of State before issuing or amending a code of practice relating to assessment notices issued under section 41C. The current requirement for Secretary of State approval is removed.

    416. Subsection (2) replaces the current section 52B(1) to (3) and amends section 52B(6) of the DPA to require the Commissioner to consult the Secretary of State when preparing a code of practice relating to data sharing under section 52A. The current requirement for Secretary of State approval, which can only be withheld where it appears that the terms of the code could result in the UK being in breach of its EC or other international obligations, is removed. A code of practice issued under section 52A must still be laid before Parliament by the Secretary of State.

    417. Subsection (3) replaces the current section 55C(5) of the DPA to require the Commissioner to consult the Secretary of State before issuing a code of practice relating to his functions under sections 55A and 55B in respect of civil monetary penalties. The current requirement for Secretary of State approval is removed.

    Clause 105: Removal of Secretary of State consent for fee-charging powers etc.

    418. Clause 105 removes the current requirement in section 51(8) of the DPA and 47(4) of the Freedom of Information Act ("FOIA") for the Commissioner to obtain the consent of the Secretary of State before charging for services provided under section 51 of the DPA and section 47 of the FOIA.

    419. Subsections (1) and (3) amend section 51 of the DPA and section 47 of the FOIA respectively to specify the relevant services for which the Commissioner can charge under those Acts, namely the supply of multiple copies of publications (that is, those that are reasonably accessible to the public free of charge because for example they can be downloaded from the Information Commissioner’s Office ("ICO") website), and the provision of training and conferences. It does not permit the Commissioner to charge for his or her attendance (or that of his or her staff) at conferences organised by others. In each case the definition of "relevant services" may be amended by order made by the Secretary of State (by virtue of the amendments made to the DPA and the FOIA by subsections (2) and (4) such orders are subject to the negative resolution procedure).

    Clause 106: Removal of Secretary of State approval for staff numbers, terms etc.

    420. Clause 106 makes further provision about the appointment of staff by the Commissioner, and their terms and conditions.

    421. Subsection (1) amends paragraph 4 of Schedule 5 to the DPA as set out in subsections (2) and (3).

    422. Subsection (2) inserts a new sub-paragraph (4A) into paragraph 4 of Schedule 5 of the DPA. This provides that when appointing a deputy commissioner or any other officers or staff, the Commissioner must have regard to the principle of selection on merit on the basis of fair and open competition.

    423. Subsection (3) removes the existing requirement, in paragraph 4(5) of Schedule 5 to the DPA, on the Commissioner to obtain the Secretary of State’s approval for the number of staff to be appointed to the ICO and to the terms and conditions of appointment of such staff.

    Part 7: Miscellaneous and general

    Clause 107: Repeal of provisions for conducting certain fraud cases without jury

    424. Clause 107 repeals section 43 of the Criminal Justice Act 2003, which makes provision in certain serious fraud cases for the prosecution to apply to the trial judge for the trial to be conducted without a jury. Section 43 has not been commenced.

    Clause 108: Removal of restrictions on times for marriage or civil partnership

    425. This clause repeals section 4 of the Marriage Act 1949 and provisions in section 17(2) of the Civil Partnership Act 2004 which limit the time during which a marriage or civil partnership can take place to between the hours of 8am and 6pm (subsections (1)(a) and (3)). The clause also removes the associated offences in section 16(4) of the Marriage Act 1949 and section 31(2)(ab) of the Civil Partnership Act 2004 if a marriage or civil partnership takes place outside of these times (subsections (1)(b) and (4)). The effect of the clause is to allow a marriage or civil partnership to take place at any time of the day or night.

    426. Subsection (2) makes a consequential amendment to section 16(4) of the Marriage (Registrar General’s Licence) Act 1970 which disapplied the offence in section 16(4) of the Marriage Act 1949 to a marriage solemnised on the authority of the Registrar General's licence.

    Clause 109: Consequential amendments, repeals and revocations

    427. Subsections (1) and (2) introduce Schedules 9 and 10 to the Bill which make consequential amendments and list repeals and revocations respectively.

    428. Subsection (3) enables the Secretary of State, by order, to make further consequential amendments, including repeals and revocations. Where such an order does not amend primary legislation it is subject to the negative resolution procedure (subsection (6)), otherwise the affirmative resolution procedure applies (subsection (5)).

    Schedule 9: Consequential amendments

    Part 1: Destruction, retention and use of fingerprints and samples etc.

    429. Paragraph 3 makes amendments to the Police and Criminal Evidence Act 1984 ("PACE") to the powers to take DNA and fingerprints, consequential on the new retention regime set out in Chapter 1 of Part 1 of the Bill. Paragraph 4 repeals the uncommenced biometric retention provisions in sections 14, 16 to 19, 21 and 23 of the Crime and Security Act 2010.

    Part 3: Safeguards for certain surveillance under RIPA

    430. Paragraphs 10 and 11 amend sections 57 and 62 of Regulation of Investigatory Powers Act 2000 ("RIPA") so as to provide that it is not part of the functions of the Interception of Communications Commissioner or the Chief Surveillance Commissioner to review the decisions of magistrates to approve or reject authorisations or notices made by local authorities.

    431. Paragraph 12 allows the Investigatory Powers Tribunal to continue to consider complaints about the conduct by public authorities notwithstanding that the conduct has been approved by a relevant judicial authority.

    432. Paragraph 1 3 extends the powers of the Investigatory Powers Tribunal so that it may quash an order made by a relevant judicial authority under new section 23A or 32A of RIPA.

    433. Paragraph 1 4 amends section 71 of PACE so that the requirement on the Secretary of State to produce one or more codes of practice in respect of the exercise of the powers under the Act does not extend to the exercise of powers by the relevant judicial authority under new sections 23A or 32A of RIPA.

    434. Paragraph 1 5 amends RIPA to make provision in respect of the procedure which is to apply to applications to the sheriff for an order under new section 23A or 32A by specifying matters which must be secured by rules of court. These requirements are to ensure that the rules governing applications for judicial approval in Scotland will preserve the covert nature of the authorisation, notice or renewal while maintaining the power of the Court of Session to regulate and prescribe the procedure and practice to be followed in any civil proceedings in the sheriff court.    

    435. Paragraph 1 6 also amends RIPA to enable the Lord Chancellor, by order, to make procedural rules for district judges (magistrates’ courts) in Northern Ireland in relation to local authority authorisations and notices for the acquisition of communications data and authorisations for covert human intelligence sources and directed surveillance. Currently, the Lord Chancellor has powers in relation to the making of Magistrate’s Courts Rules in Northern Ireland which deal with excepted matters only. The court rules in relation to the new sections 23A and 32A of RIPA will need to deal with both reserved and excepted matters. As such, the order making power at new section 77B of RIPA allows the Lord Chancellor to make rules. New section 77B also provides that where the Magistrate’s Courts Rules Committee (the body which makes rules for magistrate’s courts in Northern Ireland) regulates and prescribes the procedure and practice to be followed in relation to an application to the district judge under new section 23A or 32A of RIPA, it is subject to, but not otherwise constrained by, the provisions relating to the judicial approval procedure in new sections 23B and 32B and any order made under new section 77B. Accordingly, if the Magistrates’ Courts Rules Committee makes new court rules for the judicial approval process, it may not make provision which is contrary to that which is made by the Lord Chancellor in an order under new section 77B.

    Part 4: Vehicles left on land

    436. Paragraph 19 makes amendments to the Private Security Industry Act 2001 ("the 2001 Act") consequential upon clause 54 which makes it an offence to immobilise, remove or restrict the movement of a vehicle without lawful authority. The 2001 Act provides for the licensing, by the Security Industry Authority ("SIA"), of individuals engaged in the immobilisation (wheel clamping) of vehicles. Sections 42 and 44 of the Crime and Security Act ("the 2010 Act") amended the 2001 Act so as to provide for the licensing of wheel clamping businesses and for an independent avenue of appeal for motorists in respect of release fees imposed by businesses carrying out wheel clamping and related activities; the provisions in the 2010 Act have not been brought into force. With the introduction of the new offence, the existing licensing regime becomes redundant, accordingly this paragraph repeals the relevant provisions of the 2001 Act, as amended, which provide for the licensing of wheel clamping operatives and companies.

    Part 7: Criminal records

    437. Paragraph 10 6 omits section 122(3A)(a) of the Police Act 1997 ("the 1997 Act") which enables the Secretary of State to refuse to issue a criminal record certificate or an enhanced criminal record certificate where the registered body that countersigned the application for the certificate has failed to comply with the code of practice issued under section 122(1) (such a code provides guidance to registered bodies on the discharge of their functions and on the use of the information contained in a certificate). This provision is redundant as a result of clause 79 which removes the requirement on the Secretary of State to send a copy of a criminal records certificate or an enhanced criminal records certificate to the registered body which countersigned the application for a certificate.

    Clause 110: Transitional, transitory or saving provision

    438. This clause enables the Secretary of State by order to make transitional, transitory or saving provisions in connection with the coming into force of the provisions in the Bill other than Chapter 1 of Part 1 (as to which, see clause 25). Such an order is not subject to any parliamentary procedure.

    Clause 112: Channel Islands and Isle of Man

    439. This clause enables the provisions in Chapters 1 to 3 of Part 5 of the Bill (which amend the Safeguarding Vulnerable Groups Act 2006 ("SVGA") and Part 5 of the Police Act 1997 ("the 1997 Act")) to be extended to the Channel Islands and Isle of Man by Order in Council; such an order is not subject to any parliamentary procedure.

    Clause 113: Extent

    440. This clause sets out the extent of the provisions of the Bill, details of which are set out in paragraphs 70 to 78.

    Clause 114: Commencement

    441. Clause 114 provides for commencement, details of which are set out in the following paragraphs:

    commencEment

    442. The following provisions of the Bill come into force on Royal Assent:

    • clauses 86 to 89 which make provision for the transfer of functions, property, rights or liabilities from the ISA and the CRB to the Disclosure and Barring Service;
    • clause 10 7 (and associated provisions in Part 10 of Schedule 9 and Part 9 of Schedule 10) repeals section 43 of the Criminal Justice Act 2003 which makes provision for certain fraud trials to be conducted without a jury; and
    • in Part 7 (miscellaneous and general), clauses 10 9(3) to (7) and 110 to 11 4 .

    443. The following provisions of the Bill come into force two months after Royal Assent:

    • clause 39(2) and Schedule 2 (and associated provisions in Part 2 of Schedule 10) which repeal a number of powers of entry.

    444. All other provisions will be brought into force by means of commencement orders made by the Secretary of State or, in the case of the provisions in Chapter 2 of Part 1 (protection of biometric information on children in schools); Chapter 1 of Part 3 (powers of entry) in so far as it relates to devolved matters in Wales; and clause 56 and Schedule 4 (keeper liability for certain parking charges) in so far as they extend to Wales, by the Welsh Ministers.

    FINANCIAL EFFECTS OF THE BILL

    445. The main financial implications of the Bill for the public sector lie in the following areas. The figures set out in the paragraphs below are based on a number of assumptions about implementation which are subject to review.

    Chapter 1 of Part 1: Destruction, retention and use of fingerprints etc.

    446. These provisions will lead to estimated average annual costs (excluding one-off costs) of £2.6M per annum in each of the financial years 2012/13, 2013/14 and 2014/15. Initial estimates suggest that the provisions would also incur one-off costs of around £10.8M across 2011/12 and 2012/13 due to the need to delete ‘orphaned’ DNA profiles and fingerprints (that is, biometric information of named persons without any associated arrest or conviction history recorded on the Police National Computer ("PNC")), re-program computer software, and destroy existing DNA samples and fingerprint records. In addition, the remuneration and expenses of the Independent Commissioner for the Retention and Use of Biometric Material are estimated to be £500K in each of the financial years 2012/13, 2013/14 and 2014/15.

    Chapter 2 of Part 1: Protection of biometric information of children in schools etc.

    447. The requirement on schools using biometric information systems to obtain and record the written consent of parents before processing their child’s biometric information, and to provide alternatives to the use of such systems where required, is estimated to cost these schools (in total, for each of the following financial years) between £60K and £300K in 2012/13; between £10K and £100K in 2013/14; and between £10K and £100K in 2014/15. No estimate has been made of the cost of the requirement for sixth form and further education colleges in the absence of centrally held data on the use of biometric systems in these institutions.

    Chapter 1 of Part 2: Regulation of CCTV and other surveillance camera technology

    448. The remuneration, expenses and other support costs of the Surveillance Camera Commissioner are estimated to be £250K per annum in each of the financial years 2012/13, 2013/14 and 2014/15. Any costs arising to police forces and local authorities as a result of the duty to have regard to the code of practice for surveillance camera systems will be assessed during the preparation of the code.

    Chapter 2 of Part 2: Safeguards for certain surveillance under RIPA

    449. The introduction of the requirement on local authorities to obtain judicial approval for the exercise of the covert investigatory powers under Regulation of Investigatory Powers Act ("RIPA") will incur additional costs for Her Majesty’s Court Service of £700K/£670K/£670K in financial years 2012/13, 2013/14 and 2014/15 respectively.

    Chapter 1 of Part 3: Powers of entry

    450. Any costs arising to public sector organisations as a result of the duty to have regard to the code of practice in relation to powers of entry or arising from an order made under clause 40 or 41 adding safeguards to powers of entry will be assessed during the preparation of the code and order respectively.

    Chapter 2 of Part 3: Vehicles left on land

    451. The impact of the new offence of immobilising vehicles on private land and the consequential repeal of offences in the 2001 Act associated with the licensing of wheel clampers is expected to be cost neutral for criminal justice agencies. The fee charged by the Security Industry Authority ("SIA") (currently £245) for the annual licensing of some 1,550 vehicle immobilisation operatives is set at the level necessary to recover the Authority’s costs, accordingly the abolition of this licensing regime will also be cost neutral.

    Part 4: Counter-terrorism powers

    452. The replacement of section 44 of the Terrorism Act 2000 ("the 2000 Act") with a new severely circumscribed stop and search power will be broadly cost neutral. The police will still need to provide on-going training to officers on the new powers and there will continue to be an authorisation process for police forces and for the Secretary of State to consider. There will be one-off costs of some £50K in 2011/12 relating to the revision of guidance and initial training.

    Chapter 1 of Part 5: Safeguarding of vulnerable groups

    453. The changes made to the Safeguarding Vulnerable Groups Act 2006 ("SVGA") and Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 ("SVGO") will impact on the vetting and barring scheme operated by the Independent Safeguarding Authority ("ISA"), a Home Office-sponsored Non-Departmental Public Body. The ISA is currently funded through grant-in-aid paid by the Home Office. In 2010/11 the cost of the ISA was £13.5M. Under the provisions of the SVGA as originally enacted, which included a requirement for persons working in certain occupations to be registered with and monitored by the Criminal Records Bureau ("CRB"), the ISA was to be funded by a registration fee of £64 (which included the then £36 cost of an enhanced criminal record certificate and £28 for monitoring). The provisions in Chapters 1 and 3 of Part 5, including the abolition of the registration and monitoring requirement, will result in the vetting and barring scheme being delivered at significantly lower cost as compared to the model currently provided for in the SVGA and SVGO. As a result, the operating costs of the ISA are now funded (from April 2011) through a £8 supplement on an enhanced criminal record certificate (in England and Wales), which now stands at £44. Clause 72 introduces two systems, one of which allows somebody to make a check on another person’s barred status (with their consent); the other allows somebody to register to be informed if another person becomes barred (again with their consent). A fee may be charged for both services; any such fee would be set at the level necessary to recover the cost of the service.

    Chapter 2 and 3 of Part 5: Criminal records

    454. The changes made to Part 5 of the Police Act 1997 will impact on the criminal records disclosure service provided by the CRB, a Home Office agency. The CRB is funded through fees charged to applicants for criminal record certificates; the cost of an enhanced certificate and standard certificate is currently £44 and £26 respectively. In 2010/11 the cost of the CRB was £133M.  The provisions in Chapter 2 of Part 5 are expected to deliver efficiency savings for the CRB; the extent of which remains to be determined as part of the design work required to implement the provisions in the Bill. The new service (see clause 82) would allow an applicant for a criminal record certificate (and through the applicant, his or her employer) to subscribe to a continuously updated system for checking whether further criminality information has been recorded since the last issued certificate. This new service will be subject to an annual fee set at the level necessary to recover the costs of the service and will be offset by the removal of the need to make repeat applications for a criminal record certificate. 

    Chapter 4 of Part 5: Disregarding certain convictions for buggery etc.

    455. The removal of disregarded convictions and cautions from police databases is estimated to cost the police service £150K/£62.5K/£37.5K in 2012/13, 2013/14 and 2014/15 respectively.

    Part 6: Freedom of information and data protection

    456. The extension of the duties on public authorities under the Freedom of Information Act 2000 ("FOIA") so as to require them, when releasing datasets either in response to a freedom of information request or for publication through their publication schemes, to make them available for re-use and, where reasonably practicable, to release datasets in a re-usable format, will give rise to compliance costs estimated at £6.3M in 2012/13. These costs will arise from a one-off increase in the volume of freedom of information requests which, thereafter, falls away as the publication of datasets becomes part of a public authority’s normal business operations.

    457. The extension of the duties on public authorities under the FOIA to cover companies wholly owned by two or more public authorities will give rise to compliance costs for such companies. Such companies would incur one-off costs of approximately £2K arising from the requirement to prepare a publication scheme under the FOIA, the training staff to respond to FOIA requests and establishing internal systems to respond to such requests. The ongoing annual costs to publicly-owned companies newly subject to the FOIA arising from the duty to respond to requests for information and any internal reviews in respect of such requests will vary according to the volume of requests made to such companies. For companies with a high volume of requests the average annual costs will be of the order of £245K; the equivalent average annual cost for those companies receiving a medium or low volume of requests will be £29K and £4K respectively.

    458. The other provisions of the Bill are expected to be cost neutral.

    EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER

    459. Public sector manpower will be affected by the reform of the vetting and barring scheme and the criminal records regime, including by combining the functions of the ISA and CRB in a single new organisation – the DBS. As at 31st March 2011, the ISA had 273 staff; during 2010/11, the CRB employed an average of 667 staff (full time equivalents). Once fully implemented, the provisions in Chapters 1 to 3 of Part 5 are expected to lead to a reduction in staffing in both organisations; the scale of these will be determined in the light of the further design work required to implement the provisions in the Bill. In addition, the CRB pays for some 1,200 staff within the police service to collate non-conviction information and assess its relevance. This figure is also expected to fall once the provisions in Chapter 2 of Part 5 are fully implemented.

    460. The Bill provides for the appointment of a Surveillance Camera Commissioner and a Commissioner for the Retention and Use of Biometric Material. These independent office holders will be supported, as necessary, by Home Office staff.

    461. As a corollary to the prohibition on the wheel-clamping of vehicles without lawful authority, the Bill repeals the provisions in the Private Security Industry Act 2001 which provide for the licensing, by the Security Industry Authority ("SIA"), of persons involved in vehicle immobilisation. The SIA employs 195 staff as at beginning of April 2011. Persons engaged in vehicle immobilisation account for less than 1% of the number of persons licensed by the Authority, and therefore the abolition of the licensing regime in respect of this sector will not impact on the Authority’s staffing complement.

    462. No other provisions of the Bill are expected to have an impact on public service manpower.

    SUMMARY OF IMPACT ASSESSMENTS

    463. The Bill will be accompanied by an overarching impact assessment and a further nine impact assessments on individual provisions. The impact assessments, signed by Ministers, will be published and placed on the Bill website1. The individual impact assessments deal with the following provisions:


    1 http://www.homeoffice.gov.uk/publications/legislation/protection-freedoms-bill/

    • the destruction , retention and use of fingerprints and DNA ;
    • the requirement for parental consent before processing biometric information of children in schools;
    • the use of RIPA powers by local authorities;
    • the prohibition on wheel-clamping vehicles without lawful authority;
    • the introduction of keeper liability for parking charges ;
    • terrorism stop and search powers;
    • the reform of the vetting and barring scheme and amendments to Part 5 of the 1997 Act (disclosure of criminal records);
    • the publication of datasets held by public authorities; and
    • amendments to the FOIA .

    464. Equality impact assessments have been produced in relation to those provisions that may have a disproportionate effect on particular groups. The equality impact assessments will also be published on the Bill website; these are:

    • the destruction , retention and use of fingerprints and DNA ;
    • the requirement for parental consent before processing biometric information of children in schools;
    • terrorism stop and search powers;
    • the reform of the vetting and barring scheme and amendments to Part 5 of the 1997 Act (disclosure of criminal records); and
    • disregarding certain convictions for buggery etc.

    465. The provisions of the Bill impact mainly on the public (for example, when coming into contact with the police having been stopped and searched under counter-terrorism powers or having had their fingerprints and a DNA sample taken following arrest, using biometric information systems in schools, seeking employment in occupations involving contact with children or vulnerable adults, or when parking on private land) and the public sector (primarily the police, schools and further education colleges, local authorities, the health service, public bodies exercising powers of entry, the ICO and public bodies subject to the FOIA). Where the private and civil society sectors will be engaged, the business sectors affected are: providers of forensic science services; private and independent schools; parking providers and parking enforcement companies; and employers and other users of the services provided by the ISA and CRB.

    EUROPEAN CONVENTION ON HUMAN RIGHTS

    466. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Minister of State for Crime Prevention and Anti-social Behaviour Reduction, Lord Henley, has made the following statement:

    "In my view the provisions of the Protection of Freedoms Bill are compatible with the Convention rights."

    467. The Government has published a separate ECHR memorandum (on the Bill as it was introduced into the House of Commons) with its assessment of the compatibility of the Bill’s provisions with the Convention rights, and a further supplementary ECHR memorandum on the Emergency power for temporary extension and review of extensions (clause 58); the memorandums are available on the Home Office website at: http://www.homeoffice.gov.uk/publications/legislation/protection-freedoms-bill/.

    ANNEX A

    GLOSSARY

    1956 Act

    Sexual Offences Act 1956

    1984 Act

    Data Protection Act 1984

    1994 Act

    Public Order Act 1994

    1997 Act

    Police Act 1997

    2000 Act

    Terrorism Act 2000

    2001 Act

    Private Security Industry Act 2001

    2003 Act

    Criminal Justice Act 2003

    2008 Act

    Counter-Terrorism Act 2008

    2010 Act

    Crime and Security Act 2010

    ANPR

    Automatic Number Plate Recognition

    CCTV

    Closed Circuit Television

    CHIS

    Covert Human Intelligence Source

    CRB

    Criminal Records Bureau

    DBS

    Disclosure and Barring Service

    DPA

    Data Protection Act 1998

    DVLA

    Driver and Vehicle Licensing Agency

    ECHR

    European Convention on Human Rights

    ECtHR

    European Court of Human Rights

    FOIA

    Freedom of Information Act 2000

    ICC

    International Criminal Court

    ICO

    Information Commissioner’s Office

    ISA

    Independent Safeguarding Authority

    PACE

    Police and Criminal Evidence Act 1984

    PNC

    Police National Computer

    RIPA

    Regulation of Investigatory Powers Act 2000

    SIA

    Security Industry Authority

    SRSA 2007

    Statistics and Registration Service Act 2007

    SVGA

    Safeguarding Vulnerable Groups Act 2006

    SVGO

    Safeguarding Vulnerable Groups (Northern Ireland) Order 2007

    TPIM

    Terrorism Prevention and Investigation Measure

    annex b

    DNA Profile Retention Periods: Comparison between current rules under PACE, the rules applicable in Scotland , and the rules that would apply under the provisions in the 2010 Act and in Chapter 1 of Part 1 of the Bill

    Occurrence

    Current System (E&W)

    Crime & Security Act 2010 – E&W

    Scottish System

    Proposed changes under the Bill

    ADULT – Conviction – All Crimes

    Indefinite

    Indefinite

    Indefinite

    Indefinite

    ADULT – Charged but not Convicted – Serious Crime

    Indefinite*

    6 Years

    3 Years + possible 2-year extension(s) by Court

    3 Years + possible single 2-Year extension by Court

    ADULT – Arrested but not Charged or Convicted – Serious Crime

    Indefinite*

    6 Years

    None

    Only where authorised by the Commissioner – 3 Years + possible single 2-year extension by Court

    ADULT – Non Conviction – Minor Crime

    Indefinite*

    6 Years

    None

    None†

    UNDER 18s – Conviction – Serious Crime

    Indefinite

    Indefinite

    Indefinite

    Indefinite

    UNDER 18s – Conviction – Minor Crime

    Indefinite

    1st Conviction – 5 Years; 2nd – Indefinite

    Indefinite

    1st Conviction – 5 Years (plus length of any custodial sentence); 2nd Conviction – indefinite

    UNDER 18s – Charged but not Convicted – Serious Crime

    Indefinite*

    3 Years

    3 Years + possible 2-year extension(s) by Court

    3 Years + possible single 2-Year extension by Court

    UNDER 18s – Arrested but not Charged or Convicted – Serious Crime

    Indefinite*

    6 Years

    None

    Only where authorised by the Commissioner – 3 Years + possible single 2-year extension by Court

    UNDER 18s – Non Conviction – Minor Crime

    Indefinite*

    3 Years

    None

    None†

    Penalty Notice for Disorder

    Indefinite*

    6 Years§

    2 Years

    2 Years

    Terrorist suspects

    Indefinite*

    6 Years plus renewable 2-year period(s) on national security grounds

    Not covered (reserved matters)

    3 Years plus renewable 2-year period(s) on national security grounds

    (Commissioner will review all determinations)

    Biological DNA Samples

    Indefinite*

    Within six months of sample being taken

    As per destruction of profiles

    Within six months of sample being taken

    † In all cases, a speculative search of the DNA and fingerprint databases may be conducted before destruction.

    § On the basis of arrest – no specific provision for PNDs.

Prepared 13th October 2011