Other amendments relating to freedom of information

101 Meaning of “publicly-owned company”

(1) Section 6 of the Freedom of Information Act 2000 (publicly-owned companies)
is amended as follows.

(2) 5In subsection (1)—

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

(b) in paragraph (b) for the words from “any public authority” to
“particular information” substitute “the wider public sector”, and

(c) after paragraph (b) insert “, or

(c) 10it is wholly owned by the Crown and the wider public
sector.”

(3) For subsection (2) substitute—

“(2) For the purposes of this section—

(a) a company is wholly owned by the Crown if, and only if, every
15member is a person falling within sub-paragraph (i) or (ii)—

(i) a Minister of the Crown, government department or
company wholly owned by the Crown, or

(ii) a person acting on behalf of a Minister of the Crown,
government department or company wholly owned by
20the Crown,

(b) a company is wholly owned by the wider public sector if, and
only if, every member is a person falling within sub-paragraph
(i) or (ii)—

(i) a relevant public authority or a company wholly owned
25by the wider public sector, or

(ii) a person acting on behalf of a relevant public authority
or of a company wholly owned by the wider public
sector, and

(c) a company is wholly owned by the Crown and the wider public
30sector if, and only if, condition A, B or C is met.

(2A) In subsection (2)(c)—

(a) condition A is met if—

(i) at least one member is a person falling within subsection
(2)(a)(i) or (ii),

(ii) 35at least one member is a person falling within subsection
(2)(b)(i) or (ii), and

(iii) every member is a person falling within subsection
(2)(a)(i) or (ii) or (b)(i) or (ii),

(b) condition B is met if—

(i) 40at least one member is a person falling within subsection
(2)(a)(i) or (ii) or (b)(i) or (ii),

(ii) at least one member is a company wholly owned by the
Crown and the wider public sector, and

(iii) every member is a person falling within subsection
45(2)(a)(i) or (ii) or (b)(i) or (ii) or a company wholly owned
by the Crown and the wider public sector, and

(c) condition C is met if every member is a company wholly owned
by the Crown and the wider public sector.”

(4) In subsection (3), at the end, insert—

• ““relevant public authority” means any public authority listed in
  5Schedule 1 other than—

  (a)

  a government department, or

  (b)

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

102 Extension of certain provisions to Northern Ireland bodies

(1) 10Omit—

(a) section 80A of the Freedom of Information Act 2000 (which modifies, in
relation to information held by Northern Ireland bodies, certain
provisions of the Act relating to historical records etc.), and

(b) paragraph 6 of Schedule 7 to the Constitutional Reform and
15Governance Act 2010 (which inserts section 80A into the Act of 2000).

(2) The power of the Secretary of State under section 46(2) to (5) of the Act of 2010
to make transitional, transitory or saving provision in connection with the
coming into force of paragraph 4 of Schedule 7 to that Act includes power to
make such provision in connection with the coming into force of that
20paragraph of that Schedule as it has effect by virtue of this section.

The Information Commissioner

103 Appointment and tenure of Information Commissioner

(1) In paragraph 2(1) of Schedule 5 to the Data Protection Act 1998 (maximum
term of appointment for the Information Commissioner) for “five years”
25substitute “seven years”.

(2) After paragraph 2(3) of that Schedule to that Act (removal of the Information
Commissioner from office) insert—

“(3A) No motion is to be made in either House of Parliament for such an
Address unless a Minister of the Crown has presented a report to
30that House stating that the Minister is satisfied that one or more of
the following grounds is made out—

(a) the Commissioner has failed to discharge the functions of the
office for a continuous period of at least 3 months,

(b) the Commissioner has failed to comply with the terms of
35appointment,

(c) the Commissioner has been convicted of a criminal offence,

(d) the Commissioner is an undischarged bankrupt or the
Commissioner’s estate has been sequestrated in Scotland and
the Commissioner has not been discharged,

(e) 40the Commissioner has made an arrangement or composition
contract with, or has granted a trust deed for, the
Commissioner’s creditors,

(f) the Commissioner is otherwise unfit to hold the office or
unable to carry out its functions.

(3B) No recommendation may be made to Her Majesty for the
appointment of a person as the Commissioner unless the person
concerned has been selected on merit on the basis of fair and open
competition.

(3C) 5A person appointed as the Commissioner may not be appointed
again for a further term of office.”

(3) Omit paragraph 2(4) and (5) of that Schedule to that Act (termination of term
of office on attaining 65 years of age etc. and eligibility for re-appointment).

(4) In the italic heading to paragraph 2 of that Schedule to that Act, after “office”
10insert “and appointment”.

(5) Omit section 18(5) to (7) of the Freedom of Information Act 2000 (spent
provisions about period of office of Data Protection Commissioner as first
Information Commissioner and application of paragraph 2(4)(b) and (5) of
Schedule 5 to the Act of 1998 to that person).

104 15Alteration of role of Secretary of State in relation to guidance powers

(1) For section 41C(7) of the Data Protection Act 1998 (code of practice about
assessment notices: requirement for approval of Secretary of State)
substitute—

“(7) The Commissioner must consult the Secretary of State before issuing
20the code (or an altered or replacement code).”

(2) In section 52B of that Act (data-sharing code: approval by the Secretary of
State)—

(a) for subsections (1) to (3) substitute—

“(1) When a code is prepared under section 52A, the Commissioner
25must—

(a) consult the Secretary of State, and

(b) submit the final version of the code to the Secretary of
State.

(2) The Secretary of State must lay the code before Parliament.”,
30and”

(b) in subsection (6) for the words from the beginning to “the
Commissioner” substitute “Where such a resolution is passed, the
Commissioner”.

(3) For section 55C(5) of that Act (guidance about monetary penalty notices:
35requirement for approval of Secretary of State) substitute—

“(5) The Commissioner must consult the Secretary of State before issuing
any guidance under this section.”

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

(1) In section 51 of the Data Protection Act 1998 (general duties of the Information
40Commissioner)—

(a) in subsection (8) (power to charge fees, with the consent of the Secretary
of State, in relation to any Part 6 services)—

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

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

(b) after subsection (8) insert—

“(8A) In subsection (8) “relevant services” means—

(a) the provision to the same person of more than one copy
5of any published material where each of the copies of
the material is either provided on paper, a portable disk
which stores the material electronically or a similar
medium,

(b) the provision of training, or

(c) 10the provision of conferences.

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

(2) In section 67(5)(a) of that Act (orders under the Act subject to negative
procedure) after “51(3)” insert “or (8B)”.

(3) In section 47 of the Freedom of Information Act 2000 (general functions of the
15Information Commissioner)—

(a) in subsection (4) (power to charge fees, with the consent of the Secretary
of State, in relation to services provided under that section)—

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

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

(b) 20after subsection (4) insert—

“(4A) In subsection (4) “relevant services” means—

(a) the provision to the same person of more than one copy
of any published material where each of the copies of
the material is either provided on paper, a portable disk
25which stores the material electronically or a similar
medium,

(b) the provision of training, or

(c) the provision of conferences.

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

(4C) 30An order under subsection (4B) may include such transitional
or saving provision as the Secretary of State considers
appropriate.

(4D) The Secretary of State must consult the Commissioner before
making an order under subsection (4B).”

(4) 35In section 82(3)(a) of that Act (orders under the Act subject to negative
procedure) after “4(1)” insert “or 47(4B)”.

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

(1) Paragraph 4 of Schedule 5 to the Data Protection Act 1998 (appointment of
officers and staff of the Information Commissioner) is amended as follows.

(2) 40After sub-paragraph (4) insert—

“(4A) In making appointments under this paragraph, the Commissioner
must have regard to the principle of selection on merit on the basis
of fair and open competition.”

(3) Omit sub-paragraph (5) (approval of Secretary of State required for number,
and terms and conditions, of persons to be appointed).

Part 7 Miscellaneous and general

5Miscellaneous repeals of enactments

107 Repeal of provisions for conducting certain fraud cases without jury

Omit section 43 of the Criminal Justice Act 2003 (applications by prosecution
for certain fraud cases to be conducted without a jury).

108 Removal of restrictions on times for marriage or civil partnership

(1) 10In the Marriage Act 1949—

(a) omit section 4 (solemnization of marriages to take place at any time
between 8 a.m. and 6 p.m.), and

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

(2) 15In section 16(4) of the Marriage (Registrar General’s Licence) Act 1970
(disapplication of certain provisions of the Act of 1949) for “sections 75(1)(a)
and” substitute “section”.

(3) In section 17(2) of the Civil Partnership Act 2004 (registration as civil partners
under the standard procedure to take place on any day in the applicable period
20between 8 a.m. and 6 p.m.)—

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

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

(4) Omit section 31(2)(ab) of that Act (offence of officiating at the signing of a civil
partnership schedule outside the permitted hours).

25General

109 Consequential amendments, repeals and revocations

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

(2) The provisions listed in Schedule 10 are repealed or (as the case may be)
revoked to the extent specified.

(3) 30The Secretary of State may by order make such provision as the Secretary of
State considers appropriate in consequence of this Act.

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

(a) is exercisable by statutory instrument,

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

(c) 35may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under an enactment
(including any Act passed in the same Session as this Act).

(5) Subject to subsection (6), a statutory instrument containing an order under this
section is not to be made unless a draft of the instrument has been laid before,
and approved by a resolution of, each House of Parliament.

(6) A statutory instrument containing an order under this section which neither
5amends nor repeals any provision of primary legislation is subject to
annulment in pursuance of a resolution of either House of Parliament.

(7) In this section—

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

• 10“primary legislation” means—

  (a)

  a public general Act,

  (b)

  an Act of the Scottish Parliament,

  (c)

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

  (d)

  Northern Ireland legislation.

110 15Transitional, transitory or saving provision

The Secretary of State may by order made by statutory instrument make such
transitional, transitory or saving provision as the Secretary of State considers
appropriate in connection with the coming into force of any provision of this
Act (other than Chapter 1 of Part 1).

111 20Financial provisions

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

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

(b) any increase attributable to this Act in the sums payable by virtue of
25any other Act out of money so provided.

(2) There is to be paid into the Consolidated Fund any sums received by a Minister
of the Crown by virtue of this Act.

112 Channel Islands and Isle of Man

Her Majesty may by Order in Council provide for Chapters 1 to 3 of Part 5 (and
30Parts 5 and 6 of Schedules 9 and 10) to extend, with or without modifications,
to any of the Channel Islands or to the Isle of Man.

113 Extent

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

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

(b) 35Chapter 2 of Part 1,

(c) Chapter 1 of Part 2,

(d) Chapter 2 of Part 3,

(e) Chapter 1 of Part 5 (excluding section 78 and Schedule 7),

(f) Chapter 2 of Part 5 (excluding section 84),

(g) 40Chapter 4 of Part 5,

(h) sections 107 and 108,

(i) Parts 4 and 6 to 10 of Schedule 9 (subject to subsections (2), (3), (5) and
(8)(i)),

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

(k) 5any provision which extends to England and Wales only by virtue of
subsection (6) or (7).

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

(a) paragraph 111(a) of Schedule 9, and

(b) any provision which extends to England and Wales and Scotland only
10by virtue of subsection (6) or (7).

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

(a) Part 2 of Schedule 1,

(b) Chapter 3 of Part 5 (excluding paragraph 5(3) of Schedule 8 and section
1589),

(c) in Part 6 of Schedule 9 and Part 5 of Schedule 10, the amendments and
repeals in respect of the Police Act 1997 and paragraph 14(7)(c) of
Schedule 9 to the Safeguarding Vulnerable Groups Act 2006, and

(d) any provision which extends to England and Wales and Northern
20Ireland only by virtue of subsection (7).

(4) The following provisions extend to Scotland only—

(a) Parts 5 and 6 of Schedule 1, and

(b) any provision which extends to Scotland only by virtue of subsection
(7).

(5) 25The following provisions extend to Northern Ireland only—

(a) Part 7 of Schedule 1,

(b) section 63 and Schedule 6,

(c) section 78 and Schedule 7,

(d) in Part 6 of Schedule 9 and Part 5 of Schedule 10, the amendments,
30repeals and revocations in respect of—

(i) the Safeguarding Vulnerable Groups (Northern Ireland) Order
2007 (S.I. 2007/1351 (N.I.11)S.I. 2007/1351 (N.I.11)) and any order made under that
Order,

(ii) Part 3 of Schedule 5 to the Health Care and Associated
35Professions (Miscellaneous Amendments and Practitioner
Psychologists) Order 2009 (S.I. 2009/1182S.I. 2009/1182), and

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

(e) any provision which extends to Northern Ireland only by virtue of
subsection (7).

(6) 40The following provisions have the extent provided for in those provisions—

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

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

(7) The amendments, repeals and revocations made by Parts 1 and 5 of Schedule
9 and Parts 1 and 4 of Schedule 10 have the same extent as the enactment
45amended, repealed or revoked.

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

(a) sections 19 to 22 (excluding Parts 2 and 5 to 7 of Schedule 1) and 25,

(b) Chapter 2 of Part 2,

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

(d) Part 4 (excluding section 63 and Schedule 6),

(e) 5section 84,

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

(g) section 89,

(h) Part 6,

(i) sections 109 to 112 (excluding Schedules 9 and 10), this section and
10sections 114 and 115,

(j) Parts 2, 3 and 8 of Schedule 9,

(k) Parts 7 and 8 of Schedule 10,

(l) the repeal of section 330(5)(b) of the Criminal Justice Act 2003 in Part 10
of Schedule 9 and Part 9 of Schedule 10, and

(m) 15any provision which extends to England and Wales, Scotland and
Northern Ireland by virtue of subsection (6) or (7).

(9) Sections 112 and 115 (and this section and section 114 so far as relating to those
sections) also extend to the Channel Islands and the Isle of Man.

114 Commencement

(1) 20Subject as follows, this Act comes into force on such day as the Secretary of
State may by order made by statutory instrument appoint; and different days
may be appointed for different purposes.

(2) The provisions mentioned in subsection (3) come into force on such day as the
Welsh Ministers may by order made by statutory instrument appoint; and
25different days may be appointed for different purposes.

(3) The provisions are—

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

(b) sections 39(1), 40, 41 and 43 to 46 so far as they confer functions on the
30Welsh Ministers,

(c) section 53 and Schedule 3, and

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

(4) The following provisions come into force at the end of the period of two
months beginning with the day on which this Act is passed—

(a) 35section 39(2) and Schedule 2, and

(b) Part 2 of Schedule 10 (and section 109(2) so far as relating to that Part of
that Schedule).

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

(a) 40sections 86 to 89,

(b) section 107, Part 10 of Schedule 9 and Part 9 of Schedule 10 (and section
109(1) and (2) so far as relating to those Parts of those Schedules), and

(c) sections 109(3) to (7) and 110 to 113, this section and section 115.

115 Short title

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

SCHEDULES

Section 19

SCHEDULE 1 Amendments of regimes other than PACE

Part 1 5Material subject to the Terrorism Act 2000

1 (1) Schedule 8 to the Terrorism Act 2000 (treatment of persons detained under
section 41 or Schedule 7 of that Act) is amended as follows.

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

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

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

(b) omit sub-paragraph (4).

(4) After paragraph 20 insert—

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

20A (1) This paragraph applies to—

(a) fingerprints taken under paragraph 10,

(b) a DNA profile derived from a DNA sample taken under
paragraph 10 or 12,

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

(d) a DNA profile derived from a DNA sample taken by virtue
of paragraph 20.

(2) Fingerprints, relevant physical data and DNA profiles to which
25this paragraph applies (“paragraph 20A material”) must be
destroyed if it appears to the responsible chief officer of police
that—

(a) the taking or providing of the material or, in the case of a
DNA profile, the taking of the sample from which the
30DNA profile was derived, was unlawful, or

(b) the material was taken or provided, or (in the case of a
DNA profile) was derived from a sample taken, from a
person in connection with that person’s arrest under
section 41 and the arrest was unlawful or based on
35mistaken identity.