Protection of Freedoms Bill (HL Bill 99)

Minor amendments

14 (1) Omit section 90(2) of the Policing and Crime Act 2009 (which, if commenced,
would insert Articles 36A to 36C into the Safeguarding Vulnerable Groups
(Northern Ireland) Order 2007 in connection with the notification of
5proposals to include persons in barred lists).

(2) After Article 10(8) of the Safeguarding Vulnerable Groups (Northern
Ireland) Order 2007 (regulated activity providers) insert—

“(8A) An authority that is an authority for the purposes of section 8 of the
Carers and Direct Payments Act (Northern Ireland) 2002 (c.6)2002 (c.6) or
10Article 18C of the Children Order (direct payments) does not make
arrangements for another to engage in a regulated activity by virtue
of anything the authority does under that section or Article.”

(3) In Article 41 of the Order of 2007 (education and library boards and HSC
bodies: duty to refer)—

(a) 15in paragraph (1)—

(i) for “must” substitute “may”, and

(ii) omit “prescribed”,

(b) in paragraph (4)—

(i) in sub-paragraph (a), for “engaged or may engage” substitute
20“or has been, or might in future be, engaged”,

(ii) also in sub-paragraph (a), omit “or controlled activity”, and

(iii) in sub-paragraph (b) for “, 2, 7 or 8” substitute “or 7”,

(c) in paragraph (5) omit “prescribed”, and

(d) in the heading for “duty” substitute “power”.

(4) 25In Article 52A(1) of that Order (power for ISA to provide information to the
police for use for certain purposes)—

(a) for the words “or the chief constable of a police force in England,
Wales or Scotland” substitute “, a chief officer of police or the chief
constable of a police force in Scotland”, and

(b) 30after sub-paragraph (b), insert—

“(c) the appointment of persons who are under the
direction and control of the chief constable or (as the
case may be) chief officer;

(d) any prescribed purpose”.

(5) 35After Article 52A(1) of that Order insert—

“(1A) ISA must, for use for any of the purposes mentioned in paragraph
(1), provide to any chief constable or chief officer mentioned in that
paragraph who has requested it information as to whether a person
is barred.

(1B) 40ISA may, for use for the purposes of the protection of children or
vulnerable adults, provide to a relevant authority any information
which ISA reasonably believes to be relevant to that authority.

(1C) ISA must, for use for the purposes of the protection of children or
vulnerable adults, provide to any relevant authority who has
45requested it information as to whether a person is barred.

(1D) In this Article “relevant authority” means—

(a) the Department of Justice, exercising functions in relation to
prisons and youth justice,

(b) the Probation Board for Northern Ireland, or

(c) an HSC body.”

(6) 5After paragraph 5 of Schedule 2 to that Order (regulated activity relating to
children) insert—

“Guidance

5A (1) The Secretary of State must give guidance for the purpose of
assisting regulated activity providers and personnel suppliers in
10deciding whether supervision is of such a kind that, as a result of
paragraph 1(2B)(b), 2(3A) or 2(3B)(b), the person being supervised
would not be engaging in regulated activity relating to children.

(2) The Secretary of State must publish guidance given under this
paragraph.

(3) 15A regulated activity provider or a personnel supplier must, in
exercising any functions under this Order, have regard to
guidance for the time being given under this paragraph.”

Section 85(3)

SCHEDULE 8 Disclosure and Barring Service

20Membership

1 (1) DBS is to consist of—

(a) a person who has the function of chairing DBS, and

(b) such number of other members as the Secretary of State decides.

(2) A person falling within sub-paragraph (1)(a) or (b) (in this Schedule “an
25appointed member”) is be appointed by the Secretary of State.

(3) In appointing any such person, the Secretary of State must have regard to the
desirability of ensuring that at least some of the appointed members of DBS
are persons who appear to the Secretary of State to have knowledge or
experience of an aspect of child protection or the protection of vulnerable
30adults.

(4) The Secretary of State must consult the Welsh Ministers and a Northern
Ireland Minister before making any appointment under this paragraph.

(5) In sub-paragraph (4) “Northern Ireland Minister” includes the First Minister
and deputy First Minister in Northern Ireland.

35Terms of appointment of members

2 (1) Subject as follows, an appointed member holds and vacates office in
accordance with the terms of appointment.

(2) A period of appointment may not exceed 5 years.

(3) An appointed member may resign by giving notice in writing to the
Secretary of State.

(4) The Secretary of State may by notice in writing remove an appointed
member who—

(a) 5has, without reasonable excuse, failed, for a continuous period of
three months, to carry out the person’s functions,

(b) has been convicted (whether before or after the person’s
appointment) of a criminal offence,

(c) is an undischarged bankrupt, or whose estate has been sequestrated
10and the person has not been discharged,

(d) is the subject of a bankruptcy restrictions order or an interim order
under Schedule 4A to the Insolvency Act 1986 or an order to similar
effect made under any corresponding enactment in force in Scotland
or Northern Ireland,

(e) 15has made a composition or arrangement with, or granted a trust
deed for, the person’s creditors,

(f) has failed to comply with the terms of the person’s appointment, or

(g) is otherwise unable or unfit to carry out the person’s functions.

(5) A person who ceases to be an appointed member is eligible for re-
20appointment unless the cessation is by virtue of sub-paragraph (4).

Remuneration etc: members

3 (1) DBS may pay to the person who has the function of chairing it and each of
the other appointed members such remuneration and such allowances as the
Secretary of State may decide.

(2) 25Sub-paragraph (3) applies if—

(a) a person ceases to be an appointed member of DBS, and

(b) the Secretary of State considers that there are special circumstances
which make it right for the person to receive compensation.

(3) The Secretary of State may require DBS to pay the person such amount as the
30Secretary of State may decide.

Staff

4 (1) DBS must appoint a person to be chief executive.

(2) The period of appointment must not exceed 5 years (but a person may be re-
appointed).

(3) 35DBS must consult the Secretary of State before appointing a chief executive.

(4) The person who has the function of chairing DBS may, with the approval of
the Secretary of State, be appointed as chief executive.

(5) The chief executive is an employee of DBS.

(6) DBS may appoint such number of other staff as it considers appropriate.

(7) 40DBS may make arrangements for persons to be seconded to DBS to serve as
members of its staff.

(8) A member of a police force on temporary service with DBS is to be under the
direction and control of DBS.

Remuneration, pensions etc of staff

5 (1) DBS may pay to its staff such remuneration and such allowances as it may,
5with the approval of the Secretary of State, decide.

(2) DBS may—

(a) pay such pensions, allowances or gratuities to or in respect of any
member of staff or former member of staff, or

(b) pay such sums towards the provision for the payment of pensions,
10allowances or gratuities to or in respect of any member of staff or
former member of staff,

as it may, with the approval of the Secretary of State, decide.

(3) Employment with DBS is included among the kinds of employment to
which a scheme under section 1 of the Superannuation Act 1972 can apply,
15and accordingly in Schedule 1 to that Act (in which those kinds of
employment are listed) insert at the appropriate place—

• “Employment by the Disclosure and Barring Service.”

(4) DBS must pay to the Minister for the Civil Service, at such times as the
Minister may direct in writing, such sums as the Minister may decide in
20respect of any increase attributable to this paragraph in the sums payable
out of money provided by Parliament under the Act of 1972.

Delegation of functions

6 DBS may, to such extent as it may decide, delegate any of its functions to—

(a) any of its appointed members,

(b) 25a member of its staff,

(c) a committee consisting of any of its appointed members, members of
its staff or both appointed members and members of staff.

7 DBS may, to such extent as it may decide, delegate any of its functions, other
than a core function, to—

(a) 30a person who is neither an appointed member nor a member of staff,

(b) a committee (including a committee which comprises or includes
persons who are neither appointed members nor members of staff).

8 (1) In this Schedule a core function is—

(a) deciding whether it is appropriate for a person to be included in a
35barred list under the Safeguarding Vulnerable Groups Act 2006 or
the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007
(S.I. 2007/1351 (N.I.11)S.I. 2007/1351 (N.I.11)),

(b) deciding whether to remove a person from such a list,

(c) considering representations made for the purposes of Schedule 3 to
40that Act or (as the case may be) Schedule 1 to that Order, or

(d) any function under, or in connection with, Part 5 of the Police Act
1997 which is specified for this purpose in an order made by the
Secretary of State.

(2) An order under sub-paragraph (1)(d) is to be made by statutory instrument
which is to be subject to annulment in pursuance of a resolution of either
House of Parliament.

Business plans

9 (1) 5As soon as possible after the beginning of each financial year, DBS must
issue a business plan in relation to the proposed exercise of its functions
during that year.

(2) DBS must consult the Secretary of State before issuing the plan.

(3) DBS must arrange for the plan to be published in such manner as it considers
10appropriate.

(4) In this Schedule “financial year” is—

(a) the period—

(i) starting with the day on which DBS is established, and

(ii) ending with the next 31st March or, if the period ending with
15that date is 3 months or less, ending with the next 31st March
after that date, and

(b) each succeeding period of 12 months.

Reports

10 (1) As soon as possible after the end of each financial year, DBS must issue a
20report on the exercise of its functions during that year.

(2) DBS must arrange for the report to be published in such manner as it
considers appropriate.

Funding

11 The Secretary of State may make payments to DBS of such amounts, at such
25times and on such conditions (if any), as the Secretary of State considers
appropriate.

Accounts

12 (1) DBS must keep its accounts in such form as the Secretary of State decides.

(2) DBS must prepare annual accounts in respect of each financial year in such
30form as the Secretary of State decides.

(3) Before the end of the specified period following the end of each financial
year to which the annual accounts relate DBS must send a copy of the
accounts to the Secretary of State and the Comptroller and Auditor General.

(4) The Comptroller and Auditor General must—

(a) 35examine, certify and report on the annual accounts, and

(b) send a copy of the certified accounts and of the report to the Secretary
of State.

(5) The Secretary of State must lay before Parliament each document received
under sub-paragraph (4)(b).

(6) The specified period is such period as the Secretary of State directs in
writing.

Guidance

13 (1) The Secretary of State may, from time to time, issue guidance in writing to
5DBS in relation to the exercise of any of its functions.

(2) DBS must have regard to any such guidance before exercising any function
to which it relates.

Directions

14 (1) The Secretary of State may give directions in writing to DBS in relation to the
10exercise of any of its functions other than a core function mentioned in
paragraph 8(1)(a), (b) or (c).

(2) The Secretary of State may vary or revoke any such directions.

(3) DBS must comply with any directions given under this paragraph.

Status

15 (1) 15DBS is not to be regarded—

(a) as a servant or agent of the Crown, or

(b) as enjoying any status, immunity or privilege of the Crown.

(2) DBS’s property is not to be regarded as property of, or property held on
behalf of, the Crown.

20Use of information

16 Information obtained by DBS in connection with the exercise of any of its
functions may be used by DBS in connection with the exercise of any of its
other functions.

Payments in connection with maladministration

17 (1) 25Sub-paragraph (2) applies if DBS considers—

(a) that action taken by or on behalf of DBS amounts to
maladministration, and

(b) that a person has been adversely affected by the action.

(2) DBS may, with the approval of the Secretary of State, make such payment (if
30any) to the person as it considers appropriate.

(3) In sub-paragraph (1) “action” includes failure to act.

Incidental powers

18 (1) In connection with the exercise of any of its functions DBS may—

(a) enter into contracts and other agreements (whether legally binding
35or not),

(b) acquire and dispose of property (including land),

(c) borrow money,

(d) do such other things as DBS considers necessary or expedient.

(2) The power conferred by sub-paragraph (1)(b) includes accepting—

(a) gifts of money, and

(b) gifts or loans of other property,

on such terms as DBS considers appropriate.

(3) 5But DBS may exercise the power conferred by sub-paragraph (1)(b) or (c)
only with the approval of the Secretary of State.

(4) Such approval may be given—

(a) with respect to a particular case or with respect to a class of cases,

(b) subject to such conditions as the Secretary of State considers
10appropriate.

Documents

19 A document purporting to be signed on behalf of DBS is to be received in
evidence and, unless the contrary is proved, is to be taken to be so signed.

Transitional

20 (1) 15The Secretary of State (instead of DBS) may—

(a) appoint the first chief executive, and

(b) decide the terms and conditions of service as an employee of DBS
which are applicable to the first chief executive on appointment.

(2) The period of any such appointment must not exceed 5 years (but the person
20may be re-appointed under paragraph 4).

(3) The person who has the function of chairing DBS may be appointed as chief
executive by the Secretary of State under this paragraph.

Section 109(1)

SCHEDULE 9 Consequential amendments

25Part 1 Destruction, retention and use of fingerprints etc.

House of Commons Disqualification Act 1975

1 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975
(other disqualifying offices) insert at the appropriate place—

• 30“Commissioner for the Retention and Use of Biometric
  Material”.

Northern Ireland Assembly Disqualification Act 1975

2 In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification
Act 1975 (other disqualifying offices) insert at the appropriate place—

• 35“Commissioner for the Retention and Use of Biometric
  Material”.

Police and Criminal Evidence Act 1984

3 (1) The Police and Criminal Evidence Act 1984 is amended as follows.

(2) In section 63 (non-intimate samples), in subsection (3A)(c)(i) (as amended by
section 2 of the Crime and Security Act 2010), for “64ZA” substitute “63R”.

(3) 5Omit section 64 (as not substituted by section 14(1) of the Crime and Security
Act 2010) (destruction of fingerprints and samples).

Crime and Security Act 2010

4 (1) The Crime and Security Act 2010 is amended as follows.

(2) Omit sections 14, 16 to 19, 21 and 23 (retention, destruction and use of
10fingerprints and samples etc.).

(3) In section 22 (destruction of material taken before commencement)—

(a) in subsection (1)(a), for “each of sections 14, 15 and 17 to 21”
substitute “section 15”, and

(b) omit subsection (2).

(4) 15In section 58 (extent) omit subsections (4) and (6) to (8).

Part 2 The Surveillance Camera Commissioner

House of Commons Disqualification Act 1975

5 In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975
20(other disqualifying offices) insert at the appropriate place—

• “Surveillance Camera Commissioner”.

Part 3 Safeguards for certain surveillance under RIPA

Regulation of Investigatory Powers Act 2000

6 25The Regulation of Investigatory Powers Act 2000 is amended as follows.

7 In section 22(6) (duty of postal or telecommunications operator to comply
with notice to obtain and disclose communications data) after “shall” insert
“, subject to section 23A,”.

8 After section 23(2) (form and duration of authorisations and notices relating
30to communications data) insert—

“(2A) The words in paragraph (a) of subsections (1) and (2) from “or” to the
end of the paragraph do not apply in relation to—

(a) an authorisation under section 22(3), (3B) or (3F) to which
section 23A applies, or

(b) 35a notice under section 22(4) to which section 23A applies.”

9 (1) Section 43 (general rules about grant, renewal and duration of
authorisations relating to surveillance and human intelligence sources) is
amended as follows.

(2) After subsection (1) insert—

“(1A) 5Subsection (1)(a) does not apply in relation to an authorisation under
section 28 or 29 to which section 32A applies.”

(3) In subsection (9)(c) after “section” insert “32A or”.

10 (1) Section 57 (Interception of Communications Commissioner) is amended as
follows.

(2) 10In subsection (2) for “subsection (4)” substitute “subsections (4) and (4A)”.

(3) After subsection (4) insert—

“(4A) It shall not be the function of the Interception of Communications
Commissioner to keep under review the exercise by the relevant
judicial authority (within the meaning of section 23A) of functions
15under that section or section 23B.”

11 After section 62(2) (functions of Chief Surveillance Commissioner) insert—

“(2A) It shall not by virtue of this section be the function of the Chief
Surveillance Commissioner to keep under review the exercise by a
judicial authority of functions under section 32A or 32B.”

12 (1) 20Section 65 (the Tribunal) is amended as follows.

(2) In subsection (7) after “but” insert “, subject to subsection (7ZA),”.

(3) After subsection (7) insert—

“(7ZA) The exception in subsection (7) so far as conduct is authorised by, or
takes place with the permission of, a judicial authority does not
25include conduct authorised by an approval given under section 23A
or 32A.”

13 In section 67(7) (powers of the Tribunal), at the end of paragraph (a) (and
before “and”), insert—

“(aa) an order quashing an order under section 23A or 32A by the
30relevant judicial authority (within the meaning of that
section);”.

14 In section 71(2) (issue and revision of codes of practice) after
“Commissioners” insert “or the relevant judicial authority (within the
meaning of section 23A or 32A)”.

15 35After section 77 (Ministerial expenditure etc.) insert—

“77A Procedure for order of sheriff under section 23A or 32A: Scotland

(1) This section applies to an application to the sheriff for an order under
section 23A or 32A.

(2) Rules of court must make provision for the purposes of ensuring that
40an application to which this section applies is dealt with in private
and must, in particular—

(a) require the sheriff to determine an application in private,

(b) secure that any hearing is to be held in private, and

(c) ensure that notice of an application (or of any order being
made) is not given to—

(i) the person to whom the authorisation or notice which
5is the subject of the application or order relates, or

(ii) such a person’s representatives.

(3) The Court of Session’s power under section 32 of the Sheriff Courts
(Scotland) Act 1971 to regulate and prescribe the procedure and
practice to be followed in relation to an application to which this
10section applies is subject to, but is not otherwise constrained by,
sections 23B and 32B and this section.

77B Procedure for order of district judge under section 23A or 32A:
Northern Ireland

(1) The Lord Chancellor may by order make further provision about the
15procedure and practice to be followed in relation to an application to
a district judge (magistrates’ courts) in Northern Ireland for an order
under section 23A or 32A.

(2) Such an order may, in particular, provide—

(a) for the manner in which, and time within which, an
20application may be made,

(b) that the district judge (magistrates’ courts) is to determine an
application—

(i) in chambers,

(ii) in the absence of the person to whom the
25authorisation or notice which is the subject of the
application relates,

(c) that any hearing is to be held in private,

(d) that notice of an order given is not to be given to—

(i) the person to whom the authorisation or notice which
30is the subject of the order relates, or

(ii) such a person’s legal representatives.

(3) An order of the Lord Chancellor under this section may not make
provision which, if it were contained in an Act of the Northern
Ireland Assembly, would be within the legislative competence of the
35Northern Ireland Assembly and would deal with a transferred
matter (within the meaning of section 4(1) of the Northern Ireland
Act 1998).

(4) The power of the Magistrates’ Courts Rules Committee under
Article 13 of the Magistrates’ Courts (Northern Ireland) Order 1981
40(S.I. 1981/1675 (N.I. 26)S.I. 1981/1675 (N.I. 26)) to regulate and prescribe the procedure and
practice to be followed in relation to an application to a district judge
(magistrates’ courts) in Northern Ireland for an order under section
23A or 32A is subject to, but is not otherwise constrained by, sections
23B and 32B and any order made under this section.”

16 45In section 78 (orders, regulations and rules)—

(a) in subsection (1) after “the Secretary of State” insert “or the Lord
Chancellor”,

(b) in subsection (3)(a)—