Protection of Freedoms Bill (HL Bill 99)

would have been able to do, or be subject to, had the child’s biometric
information been processed.

27 Exceptions and further provision about consent

(1) For the purposes of section 26(2), the consent of a parent is not required if the
5relevant authority is satisfied that—

(a) the parent cannot be found,

(b) the parent lacks capacity (within the meaning of the Mental Capacity
Act 2005) to give consent,

(c) the welfare of the child requires that the parent is not contacted, or

(d) 10it is otherwise not reasonably practicable to obtain the consent of the
parent.

(2) Consent under section 26(2) may be withdrawn at any time.

(3) Consent under section 26(2) must be given, and (if withdrawn) withdrawn, in
writing.

(4) 15Section 26 and this section are in addition to the requirements of the Data
Protection Act 1998.

28 Interpretation: Chapter 2

(1) In this Chapter—

• “biometric information” is to be read in accordance with subsections (2) to
  20(4),

• “child” means a person under the age of 18,

• “further education institution” means an institution within the further
  education sector (within the meaning given by section 91(3)(a) to (c) of
  the Further and Higher Education Act 1992),

• 25“parent” is to be read in accordance with subsections (5) to (8),

• “parental responsibility” is to be read in accordance with the Children Act
  1989,

• “processing” has the meaning given by section 1(1) of the Data Protection
  Act 1998,

• 30“proprietor”, in relation to a school or 16 to 19 Academy, has the meaning
  given by section 579(1) of the Education Act 1996, subject to the
  modification in subsection (8),

• “relevant authority” means—

  (a)

  in relation to a school, the proprietor of the school,

  (b)

  35in relation to a 16 to 19 Academy, the proprietor of the
  Academy,

  (c)

  in relation to a further education institution, the governing
  body of the institution (within the meaning given by
  paragraphs (a), (c) and (d) of the definition of “governing body”
  40in section 90(1) of the Further and Higher Education Act 1992),

• “school” has the meaning given by section 4 of the Education Act 1996,
  subject to the modification in subsection (10),

• “16 to 19 Academy” has the meaning given by section 1B of the Academies
  Act 2010.”

(2) “Biometric information” means information about a person’s physical or
behavioural characteristics or features which—

(a) is capable of being used in order to establish or verify the identity of the
person, and

(b) 5is obtained or recorded with the intention that it be used for the
purposes of a biometric recognition system.

(3) Biometric information may, in particular, include—

(a) information about the skin pattern and other physical characteristics or
features of a person’s fingers or palms,

(b) 10information about the features of an iris or any other part of the eye,
and

(c) information about a person’s voice or handwriting.

(4) In subsection (2) “biometric recognition system” means a system which, by
means of equipment operating automatically—

(a) 15obtains or records information about a person’s physical or
behavioural characteristics or features, and

(b) compares the information with stored information that has previously
been so obtained or recorded, or otherwise processes the information,
for the purpose of establishing or verifying the identity of the person,
20or otherwise determining whether the person is recognised by the
system.

(5) “Parent” means a parent of the child and any individual who is not a parent of
the child but who has parental responsibility for the child.

(6) In a case where the relevant authority is satisfied that, by virtue of section 27(1),
25the consent of no parent is required, “parent” is to be read as including each
individual who has care of the child but this is subject to subsections (7) and (8).

(7) In a case to which subsection (6) applies where the child is looked after by a
local authority (within the meaning given by section 22(1) of the Children Act
1989), “parent” is to be read as meaning the local authority looking after the
30child.

(8) In a case to which subsection (6) applies where the child is not looked after by
a local authority (within the meaning given by section 22(1) of the Children Act
1989) but a voluntary organisation has provided accommodation for the child
in accordance with section 59(1) of that Act by—

(a) 35placing the child with a foster parent, or

(b) maintaining the child in a children’s home,

“parent” is to be read as meaning the voluntary organisation that so placed or
maintains the child.

(9) A reference to the proprietor of a school is to be read, in relation to a pupil
40referral unit for which there is a management committee established by virtue
of paragraph 15 of Schedule 1 to the Education Act 1996, as a reference to that
committee; and for this purpose “pupil referral unit” has the meaning given by
section 19(2) of that Act.

(10) A reference to a school is to be read as if it included a reference to any
45independent educational institution (within the meaning given by section 92 of
the Education and Skills Act 2008).

Part 2 Regulation of surveillance

CHAPTER 1 Regulation of CCTV and other surveillance camera technology

Code of practice

29 5Code of practice for surveillance camera systems

(1) The Secretary of State must prepare a code of practice containing guidance
about surveillance camera systems.

(2) Such a code must contain guidance about one or more of the following—

(a) the development or use of surveillance camera systems,

(b) 10the use or processing of images or other information obtained by virtue
of such systems.

(3) Such a code may, in particular, include provision about—

(a) considerations as to whether to use surveillance camera systems,

(b) types of systems or apparatus,

(c) 15technical standards for systems or apparatus,

(d) locations for systems or apparatus,

(e) the publication of information about systems or apparatus,

(f) standards applicable to persons using or maintaining systems or
apparatus,

(g) 20standards applicable to persons using or processing information
obtained by virtue of systems,

(h) access to, or disclosure of, information so obtained,

(i) procedures for complaints or consultation.

(4) Such a code—

(a) 25need not contain provision about every type of surveillance camera
system,

(b) may make different provision for different purposes.

(5) In the course of preparing such a code, the Secretary of State must consult—

(a) such persons appearing to the Secretary of State to be representative of
30the views of persons who are, or are likely to be, subject to the duty
under section 33(1) (duty to have regard to the code) as the Secretary of
State considers appropriate,

(b) the Association of Chief Police Officers,

(c) the Information Commissioner,

(d) 35the Chief Surveillance Commissioner,

(e) the Surveillance Camera Commissioner,

(f) the Welsh Ministers, and

(g) such other persons as the Secretary of State considers appropriate.

(6) In this Chapter “surveillance camera systems” means—

(a) 40closed circuit television or automatic number plate recognition
systems,

(b) any other systems for recording or viewing visual images for
surveillance purposes,

(c) any systems for storing, receiving, transmitting, processing or checking
images or information obtained by systems falling within paragraph (a)
5or (b), or

(d) any other systems associated with, or otherwise connected with,
systems falling within paragraph (a), (b) or (c).

(7) In this section—

• “the Chief Surveillance Commissioner” means the Chief Commissioner
  10appointed under section 91(1) of the Police Act 1997,

• “processing” has the meaning given by section 1(1) of the Data Protection
  Act 1998.

Procedural requirements

30 Issuing of code

(1) 15The Secretary of State must lay before Parliament—

(a) a code of practice prepared under section 29, and

(b) a draft of an order providing for the code to come into force.

(2) The Secretary of State must make the order and issue the code if the draft of the
order is approved by a resolution of each House of Parliament.

(3) 20The Secretary of State must not make the order or issue the code unless the
draft of the order is so approved.

(4) The Secretary of State must prepare another code of practice under section 29
if—

(a) the draft of the order is not so approved, and

(b) 25the Secretary of State considers that there is no realistic prospect that it
will be so approved.

(5) A code comes into force in accordance with an order under this section.

(6) Such an order—

(a) is to be a statutory instrument, and

(b) 30may contain transitional, transitory or saving provision.

(7) If a draft of an instrument containing an order under this section would, apart
from this subsection, be treated as a hybrid instrument for the purposes of the
standing orders of either House of Parliament, it is to proceed in that House as
if it were not a hybrid instrument.

31 35Alteration or replacement of code

(1) The Secretary of State—

(a) must keep the surveillance camera code under review, and

(b) may prepare an alteration to the code or a replacement code.

(2) Before preparing an alteration or a replacement code, the Secretary of State
40must consult the persons mentioned in section 29(5).

(3) The Secretary of State must lay before Parliament an alteration or a
replacement code prepared under this section.

(4) If, within the 40-day period, either House of Parliament resolves not to
approve the alteration or the replacement code, the Secretary of State must not
5issue the alteration or code.

(5) If no such resolution is made within that period, the Secretary of State must
issue the alteration or replacement code.

(6) The alteration or replacement code—

(a) comes into force when issued, and

(b) 10may include transitional, transitory or saving provision.

(7) Subsection (4) does not prevent the Secretary of State from laying a new
alteration or replacement code before Parliament.

(8) In this section “the 40-day period” means the period of 40 days beginning with
the day on which the replacement code is laid before Parliament (or, if it is not
15laid before each House of Parliament on the same day, the later of the two days
on which it is laid).

(9) In calculating the 40-day period, no account is to be taken of any period during
which Parliament is dissolved or prorogued or during which both Houses are
adjourned for more than four days.

(10) 20In this Chapter “the surveillance camera code” means the code of practice
issued under section 30(2) (as altered or replaced from time to time).

32 Publication of code

(1) The Secretary of State must publish the code issued under section 30(2).

(2) The Secretary of State must publish any replacement code issued under section
2531(5).

(3) The Secretary of State must publish—

(a) any alteration issued under section 31(5), or

(b) the code or replacement code as altered by it.

Enforcement and Commissioner

33 30Effect of code

(1) A relevant authority must have regard to the surveillance camera code when
exercising any functions to which the code relates.

(2) A failure on the part of any person to act in accordance with any provision of
the surveillance camera code does not of itself make that person liable to
35criminal or civil proceedings.

(3) The surveillance camera code is admissible in evidence in any such
proceedings.

(4) A court or tribunal may, in particular, take into account a failure by a relevant
authority to have regard to the surveillance camera code in determining a
40question in any such proceedings.

(5) In this section “relevant authority” means—

(a) a local authority within the meaning of the Local Government Act 1972,

(b) the Greater London Authority,

(c) the Common Council of the City of London in its capacity as a local
5authority,

(d) the Sub-Treasurer of the Inner Temple or the Under-Treasurer of the
Middle Temple, in their capacity as a local authority,

(e) the Council of the Isles of Scilly,

(f) a parish meeting constituted under section 13 of the Local Government
10Act 1972,

(g) a police and crime commissioner,

(h) the Mayor’s Office for Policing and Crime,

(i) the Common Council of the City of London in its capacity as a police
authority,

(j) 15any chief officer of a police force in England and Wales,

(k) any person specified or described by the Secretary of State in an order
made by statutory instrument.

(6) An order under subsection (5) may, in particular—

(a) restrict the specification or description of a person to that of the person
20when acting in a specified capacity or exercising specified or described
functions,

(b) contain transitional, transitory or saving provision.

(7) So far as an order under subsection (5) contains a restriction of the kind
mentioned in subsection (6)(a) in relation to a person, the duty in subsection (1)
25applies only to the person in that capacity or (as the case may be) only in
relation to those functions.

(8) Before making an order under subsection (5) in relation to any person or
description of persons, the Secretary of State must consult—

(a) such persons appearing to the Secretary of State to be representative of
30the views of the person or persons in relation to whom the order may
be made as the Secretary of State considers appropriate,

(b) the Association of Chief Police Officers,

(c) the Information Commissioner,

(d) the Chief Surveillance Commissioner,

(e) 35the Surveillance Camera Commissioner,

(f) the Welsh Ministers, and

(g) such other persons as the Secretary of State considers appropriate.

(9) No instrument containing an order under subsection (5) is to be made unless a
draft of it has been laid before, and approved by a resolution of, each House of
40Parliament.

(10) If a draft of an instrument containing an order under subsection (5) would,
apart from this subsection, be treated as a hybrid instrument for the purposes
of the standing orders of either House of Parliament, it is to proceed in that
House as if it were not a hybrid instrument.

34 Commissioner in relation to code

(1) The Secretary of State must appoint a person as the Surveillance Camera
Commissioner (in this Chapter “the Commissioner”).

(2) The Commissioner is to have the following functions—

(a) 5encouraging compliance with the surveillance camera code,

(b) reviewing the operation of the code, and

(c) providing advice about the code (including changes to it or breaches of
it).

(3) The Commissioner is to hold office in accordance with the terms of the
10Commissioner’s appointment; and the Secretary of State may pay in respect of
the Commissioner any expenses, remuneration or allowances that the
Secretary of State may determine.

(4) The Secretary of State may, after consultation with the Commissioner, provide
the Commissioner with—

(a) 15such staff, and

(b) such accommodation, equipment and other facilities,

as the Secretary of State considers necessary for the carrying out of the
Commissioner’s functions.

35 Reports by Commissioner

(1) 20As soon as reasonably practicable after the end of each reporting period—

(a) the Commissioner must—

(i) prepare a report about the exercise by the Commissioner during
that period of the functions of the Commissioner, and

(ii) give a copy of the report to the Secretary of State,

(b) 25the Secretary of State must lay a copy of the report before Parliament,
and

(c) the Commissioner must publish the report.

(2) The reporting periods are—

(a) the period—

(i) 30beginning with the surveillance camera code first coming into
force or the making of the first appointment as Commissioner
(whichever is the later), and

(ii) ending with the next 31 March or, if the period ending with that
date is 6 months or less, ending with the next 31 March after that
35date, and

(b) each succeeding period of 12 months.

Interpretation

36 Interpretation: Chapter 1

In this Chapter—

• 40“the Commissioner” has the meaning given by section 34(1),

• “surveillance camera code” has the meaning given by section 31(10),

• “surveillance camera systems” has the meaning given by section 29(6).

CHAPTER 2 Safeguards for certain surveillance under RIPA

37 Judicial approval for obtaining or disclosing communications data

After section 23 of the Regulation of Investigatory Powers Act 2000 (form and
duration of authorisations and notices for obtaining and disclosing
5communications data) insert—

“"23A Authorisations requiring judicial approval

(1) This section applies where a relevant person has—

(a) granted or renewed an authorisation under section 22(3), (3B) or
(3F), or

(b) 10given or renewed a notice under section 22(4).

(2) The authorisation or notice is not to take effect until such time (if any)
as the relevant judicial authority has made an order approving the
grant or renewal of the authorisation or (as the case may be) the giving
or renewal of the notice.

(3) 15The relevant judicial authority may give approval under this section to
the granting or renewal of an authorisation under section 22(3), (3B) or
(3F) if, and only if, the relevant judicial authority is satisfied that—

(a) at the time of the grant or renewal—

(i) there were reasonable grounds for believing that the
20requirements of section 22(1) and (5) were satisfied in
relation to the authorisation, and

(ii) the relevant conditions were satisfied in relation to the
authorisation, and

(b) at the time when the relevant judicial authority is considering
25the matter, there remain reasonable grounds for believing that
the requirements of section 22(1) and (5) are satisfied in relation
to the authorisation.

(4) The relevant judicial authority may give approval under this section to
the giving or renewal of a notice under section 22(4) if, and only if, the
30relevant judicial authority is satisfied that—

(a) at the time of the giving or renewal of the notice—

(i) there were reasonable grounds for believing that the
requirements of section 22(1) and (5) were satisfied in
relation to the notice, and

(ii) 35the relevant conditions were satisfied in relation to the
notice, and

(b) at the time when the relevant judicial authority is considering
the matter, there remain reasonable grounds for believing that
the requirements of section 22(1) and (5) are satisfied in relation
40to the notice.

(5) For the purposes of subsections (3) and (4) the relevant conditions are—

(a) in relation to any grant, giving or renewal by an individual
holding an office, rank or position in a local authority in
England, Wales or Scotland, that—

(i) the individual was a designated person for the purposes
of this Chapter,

(ii) the grant, giving or renewal was not in breach of any
restrictions imposed by virtue of section 25(3), and

(iii) 5any other conditions that may be provided for by an
order made by the Secretary of State were satisfied,

(b) in relation to a grant, giving or renewal, for any purpose
relating to a Northern Ireland excepted or reserved matter, by
an individual holding an office, rank or position in a district
10council in Northern Ireland, that—

(i) the individual was a designated person for the purposes
of this Chapter,

(ii) the grant, giving or renewal was not in breach of any
restrictions imposed by virtue of section 25(3), and

(iii) 15any other conditions that may be provided for by an
order made by the Secretary of State were satisfied, and

(c) in relation to any other grant, giving or renewal by a relevant
person, that any conditions that may be provided for by an
order made by the Secretary of State were satisfied.

(6) 20In this section—

• “local authority in England” means—

  (a)

  a district or county council in England,

  (b)

  a London borough council,

  (c)

  the Common Council of the City of London in its
  25capacity as a local authority, or

  (d)

  the Council of the Isles of Scilly,

• “local authority in Scotland” means a council constituted under
  section 2 of the Local Government etc. (Scotland) Act 1994,

• “local authority in Wales” means any county council or county
  30borough council in Wales,

• “Northern Ireland excepted or reserved matter” means an
  excepted or reserved matter (within the meaning of section 4(1)
  of the Northern Ireland Act 1998),

• “Northern Ireland transferred matter” means a transferred matter
  35(within the meaning of section 4(1) of the Act of 1998),

• “relevant judicial authority” means—

  (a)

  in relation to England and Wales, a justice of the peace,

  (b)

  in relation to Scotland, a sheriff, and

  (c)

  in relation to Northern Ireland, a district judge
  40(magistrates’ courts) in Northern Ireland,

• “relevant person” means—

  (a)

  an individual holding—

  (i)

  an office, rank or position in a local authority in
  England or Wales, or

  (ii)

  45an office, rank or position in a local authority in
  Scotland (other than an office, rank or position in
  a fire and rescue authority),

  (b)

  also, in relation to a grant, giving or renewal for any
  purpose relating to a Northern Ireland excepted or

  Protection of Freedoms BillPage 29

  reserved matter, an individual holding an office, rank or
  position in a district council in Northern Ireland, and

  (c)

  also, in relation to any grant, giving or renewal of a
  description that may be prescribed for the purposes of
  5this subsection by an order made by the Secretary of
  State or every grant, giving or renewal if so prescribed,
  a person of a description so prescribed.

(7) No order of the Secretary of State—

(a) may be made under subsection (6) unless a draft of the order
10has been laid before Parliament and approved by a resolution of
each House;

(b) may be made under this section so far as it makes provision
which, if it were contained in an Act of the Northern Ireland
Assembly, would be within the legislative competence of the
15Northern Ireland Assembly and would deal with a Northern
Ireland transferred matter.

23B Procedure for judicial approval

(1) The public authority with which the relevant person holds an office,
rank or position may apply to the relevant judicial authority for an
20order under section 23A approving the grant or renewal of an
authorisation or (as the case may be) the giving or renewal of a notice.

(2) The applicant is not required to give notice of the application to—

(a) any person to whom the authorisation or notice which is the
subject of the application relates, or

(b) 25such a person’s legal representatives.

(3) Where, on an application under this section, the relevant judicial
authority refuses to approve the grant or renewal of the authorisation
concerned or (as the case may be) the giving or renewal of the notice
concerned, the relevant judicial authority may make an order quashing
30the authorisation or notice.

(4) In this section “relevant judicial authority” and “relevant person” have
the same meaning as in section 23A.”

38 Judicial approval for directed surveillance and covert human intelligence
sources

(1) 35After section 32 of the Regulation of Investigatory Powers Act 2000
(authorisation of surveillance and human intelligence sources: intrusive
surveillance) insert—

“Authorisations requiring judicial approval

32A Authorisations requiring judicial approval

(1) 40This section applies where a relevant person has granted an
authorisation under section 28 or 29.

(2) The authorisation is not to take effect until such time (if any) as the
relevant judicial authority has made an order approving the grant of
the authorisation.