Protection of Freedoms Bill (HL Bill 99)

(5) After section 50A(3) of that Act insert—

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

(a) the Secretary of State exercising functions in relation to prisons,
or

(b) 5a provider of probation services (within the meaning given by
section 3(6) of the Offender Management Act 2007).”

(6) After paragraph 5 of Schedule 4 to that Act (regulated activity relating to
children) insert—

“Guidance

5A (1) 10The Secretary of State must give guidance for the purpose of
assisting regulated activity providers and personnel suppliers in
deciding 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) 15Before giving guidance under this paragraph, the Secretary of State
must consult the Welsh Ministers.

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

(4) A regulated activity provider or a personnel supplier must, in
20exercising any functions under this Act, have regard to guidance for
the time being given under this paragraph.”

Corresponding amendments relating to Northern Ireland

78 Corresponding amendments in relation to Northern Ireland

Schedule 7 (which makes corresponding amendments in relation to Northern
25Ireland about the safeguarding of vulnerable groups) has effect.

CHAPTER 2 Criminal records

Safeguards in relation to certificates

79 Restriction on information provided to certain persons

(1) Omit section 93 of the Policing and Crime Act 2009 (which, if commenced,
30would insert section 112(2A) into the Police Act 1997 requiring copies of certain
criminal conviction certificates to be given to employers etc.).

(2) Omit—

(a) section 113A(4) of the Police Act 1997 (requirement to send copy of
criminal record certificate to registered person), and

(b) 35section 113B(5) and (6) of that Act (requirement to give relevant
information and copy of enhanced criminal record certificate to
registered person).

80 Minimum age for applicants for certificates or to be registered

(1) In sections 112(1), 113A(1), 113B(1), 114(1) and 116(1) of the Police Act 1997
(applications for certificates), before the word “and” at the end of paragraph
(a), insert—

“(aa) 5is aged 16 or over at the time of making the application,”.

(2) In section 120(4) of that Act (registered persons)—

(a) in paragraph (b)—

(i) after “person” insert “who is”, and

(ii) after “enactment” insert “and who, in the case of an individual,
10is aged 18 or over”, and

(b) in paragraph (c) after “individual” insert “aged 18 or over”.

81 Enhanced criminal record certificates: additional safeguards

(1) In subsection (4) of section 113B of the Police Act 1997 (enhanced criminal
record certificates: requests by the Secretary of State to chief officers for
15information)—

(a) for “the chief officer of every relevant police force” substitute “any
relevant chief officer”,

(b) omit “, in the chief officer’s opinion”,

(c) in paragraph (a), for “might” substitute “the chief officer reasonably
20believes to”, and

(d) in paragraph (b), at the beginning insert “in the chief officer’s opinion,”.

(2) After subsection (4) of that section of that Act insert—

“(4A) In exercising functions under subsection (4) a relevant chief officer
must have regard to any guidance for the time being published by the
25Secretary of State.”

(3) In subsection (9) of that section of that Act—

(a) before the definition of “relevant police force” insert—

• “relevant chief officer” means any chief officer of a police
  force who is identified by the Secretary of State for the
  30purposes of making a request under subsection (4).”,
  and”

(b) omit the definition of “relevant police force”.

(4) After section 117(1) of that Act (disputes about accuracy of certificates) insert—

“(1A) Where any person other than the applicant believes that the
35information contained in a certificate under any of sections 112 to 116 is
inaccurate, that person may make an application to the Secretary of
State for a decision as to whether or not the information is inaccurate.”

(5) After section 117 of that Act insert—

“117A Other disputes about section 113B(4) information

(1) 40Subsection (2) applies if a person believes that information provided in
accordance with section 113B(4) and included in a certificate under
section 113B or 116 —

(a) is not relevant for the purpose described in the statement under
section 113B(2) or (as the case may be) 116(2), or

(b) ought not to be included in the certificate.

(2) The person may apply to the independent monitor appointed under
section 119B for a decision as to whether the information is information
which falls within subsection (1)(a) or (b) above.

(3) 5The independent monitor, on receiving such an application, must ask
such chief officer of a police force as the independent monitor considers
appropriate to review whether the information concerned is
information which—

(a) the chief officer reasonably believes to be relevant for the
10purpose described in the statement under section 113B(2) or (as
the case may be) 116(2), and

(b) in the chief officer’s opinion, ought to be included in the
certificate.

(4) In exercising functions under subsection (3), the chief officer concerned
15must have regard to any guidance for the time being published under
section 113B(4A).

(5) If, following a review under subsection (3), the independent monitor
considers that any of the information concerned is information which
falls within subsection (1)(a) or (b)—

(a) 20the independent monitor must inform the Secretary of State of
that fact, and

(b) on being so informed, the Secretary of State must issue a new
certificate.

(6) In issuing such a certificate, the Secretary of State must proceed as if the
25information which falls within subsection (1)(a) or (b) had not been
provided under section 113B(4).

(7) In deciding for the purposes of this section whether information is
information which falls within subsection (1)(a) or (b), the independent
monitor must have regard to any guidance for the time being published
30under section 113B(4A).

(8) Subsections (10) and (11) of section 113B apply for the purposes of this
section as they apply for the purposes of that section.”

Up-dating and content of certificates

82 Up-dating certificates

35After section 116 of the Police Act 1997 (enhanced criminal record certificates:
judicial appointments and Crown employment) insert—

“116A Up-dating certificates

(1) The Secretary of State must, on the request of a relevant person and
subject to subsection (2), give up-date information to that person
40about—

(a) a criminal conviction certificate,

(b) a criminal record certificate, or

(c) an enhanced criminal record certificate,

which is subject to up-date arrangements.

(2) The Secretary of State may impose conditions about—

(a) the information to be supplied in connection with such a
request for the purpose of enabling the Secretary of State to
decide whether the person is a relevant person,

(b) 5any other information to be supplied in connection with such a
request.

(3) For the purposes of subsection (1) a certificate is subject to up-date
arrangements if condition A or B is met.

(4) Condition A is that—

(a) 10the individual who applied for the certificate made an
application at the same time to the Secretary of State for the
certificate to be subject to up-date arrangements,

(b) the individual has paid in the prescribed manner any
prescribed fee,

(c) 15the Secretary of State has granted the application for the
certificate to be subject to up-date arrangements, and

(d) the period of 12 months beginning with the date on which the
grant comes into force has not expired.

(5) Condition B is that—

(a) 20the individual whose certificate it is has made an application to
the Secretary of State to renew or (as the case may be) further
renew unexpired up-date arrangements in relation to the
certificate,

(b) the individual has paid in the prescribed manner any
25prescribed fee,

(c) the Secretary of State has granted the application,

(d) the grant has come into force on the expiry of the previous up-
date arrangements, and

(e) the period of 12 months beginning with the date on which the
30grant has come into force has not expired.

(6) The Secretary of State must not grant an application as mentioned in
subsection (4)(c) or (5)(c) unless any fee prescribed under subsection
(4)(b) or (as the case may be) (5)(b) has been paid in the manner so
prescribed.

(7) 35In this section “up-date information” means—

(a) in relation to a criminal conviction certificate or a criminal
record certificate—

(i) information that there is no information recorded in
central records which would be included in a new
40certificate but is not included in the current certificate, or

(ii) advice to apply for a new certificate or (as the case may
be) request another person to apply for such a certificate,

(b) in relation to an enhanced criminal record certificate which
includes suitability information relating to children or
45vulnerable adults—

(i) information that there is no information recorded in
central records, no information of the kind mentioned in
section 113B(4), and no information of the kind
mentioned in section 113BA(2) or (as the case may be)

113BB(2), which would be included in a new certificate
but is not included in the current certificate, or

(ii) advice to apply for a new certificate or (as the case may
be) request another person to apply for such a certificate,
5and

(c) in relation to any other enhanced criminal record certificate—

(i) information that there is no information recorded in
central records, nor any information of the kind
mentioned in section 113B(4), which would be included
10in a new certificate but is not included in the current
certificate, or

(ii) advice to apply for a new certificate or (as the case may
be) request another person to apply for such a certificate.

(8) In this section—

• 15“central records” has the same meaning as in section 113A,

• “criminal record certificate” includes a certificate under section
  114,

• “enhanced criminal record certificate” includes a certificate under
  section 116,

• 20“exempted question” has the same meaning as in section 113A,

• “relevant person” means—

  (a)

  in relation to a criminal conviction certificate—

  (i)

  the individual whose certificate it is, or

  (ii)

  any person authorised by the individual,

  (b)

  25in relation to a criminal record certificate—

  (i)

  the individual whose certificate it is, or

  (ii)

  any person who is authorised by the individual
  and is seeking the information for the purposes
  of an exempted question, and

  (c)

  30in relation to an enhanced criminal record certificate—

  (i)

  the individual whose certificate it is, or

  (ii)

  any person who is authorised by the individual
  and is seeking the information for the purposes
  of an exempted question asked for a purpose
  35prescribed under section 113B(2)(b).”

83 Criminal conviction certificates: conditional cautions

In section 112(2) of the Police Act 1997 (contents of a criminal conviction
certificate)—

(a) in paragraph (a) after “conviction” insert “or conditional caution”, and

(b) 40in paragraph (b) for “is no such conviction” substitute “are no such
convictions and conditional cautions”.

Other

84 Out of date references to certificates of criminal records

In section 75(4) of the Data Protection Act 1998 (commencement of section 56
45of that Act not to be earlier than the first day on which certain sections of the

Police Act 1997 relating to certificates of criminal records are all in force) for
“sections 112, 113 and 115” substitute “sections 112, 113A and 113B”.

CHAPTER 3 The Disclosure and Barring Service

General

85 5Formation and constitution of DBS

(1) There is to be a body corporate known as the Disclosure and Barring Service.

(2) In this Chapter “DBS” means the Disclosure and Barring Service.

(3) Schedule 8 (which makes further provision about DBS) has effect.

86 Transfer of functions to DBS and dissolution of ISA

(1) 10The Secretary of State may by order transfer any function of ISA to DBS.

(2) The Secretary of State may by order transfer to DBS any function of the
Secretary of State under, or in connection with—

(a) Part 5 of the Police Act 1997 (criminal records),

(b) the Safeguarding Vulnerable Groups Act 2006, or

(c) 15the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007
(S.I. 2007/1351 (N.I.11)S.I. 2007/1351 (N.I.11)).

(3) The Secretary of State may by order provide for the dissolution of ISA.

(4) In this section—

• “function” does not include any power of the Secretary of State to make
  20an order or regulations,

• “ISA” means the Independent Safeguarding Authority.

Supplementary

87 Orders under section 86

(1) Any power to make an order under section 86—

(a) 25is exercisable by statutory instrument,

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

(c) may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under an enactment
30(whenever passed or made and including this Act).

(2) Subject to subsection (3), a statutory instrument containing an order under
section 86 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.

(3) A statutory instrument containing an order under section 86 which neither
35amends nor repeals any provision of primary legislation is subject to
annulment in pursuance of a resolution of either House of Parliament.

(4) If a draft of an instrument containing an order under section 86 (alone or with
other provision) 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.

(5) 5In this section—

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

• “primary legislation” means—

  (a)

  a public general Act,

  (b)

  10a Measure or Act of the National Assembly for Wales, and

  (c)

  Northern Ireland legislation.

88 Transfer schemes in connection with orders under section 86

(1) The Secretary of State may, in connection with an order under section 86, make
a scheme for the transfer to DBS of property, rights or liabilities of ISA or the
15Secretary of State.

(2) The things that may be transferred under a transfer scheme include—

(a) property, rights and liabilities which could not otherwise be
transferred,

(b) property acquired, and rights and liabilities arising, after the making of
20the scheme.

(3) A transfer scheme may make consequential, supplementary, incidental,
transitional, transitory or saving provision and may, in particular—

(a) create rights, or impose liabilities, in relation to property or rights
transferred,

(b) 25make provision about the continuing effect of things done by, on behalf
of or in relation to the transferor in respect of anything transferred,

(c) make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in relation
to the transferor in respect of anything transferred,

(d) 30make provision for references to the transferor in an instrument or
other document in respect of anything transferred to be treated as
references to the transferee,

(e) make provision for the shared ownership or use of property,

(f) if the TUPE regulations do not apply in relation to the transfer, make
35provision which is the same or similar.

(4) A transfer scheme may provide—

(a) for modification by agreement,

(b) for modifications to have effect from the date when the original scheme
came into effect.

(5) 40A transfer scheme may confer a discretion on the Secretary of State to pay
compensation to any person whose interests are adversely affected by the
scheme.

(6) A transfer scheme may be included in an order under section 86 but, if not so
included, must be laid before Parliament after being made.

(7) 45For the purposes of this section—

(a) references to rights and liabilities of ISA include references to rights
and liabilities of ISA relating to a contract of employment, and

(b) references to rights and liabilities of the Secretary of State include
references to rights and liabilities of the Crown relating to the terms of
5employment of individuals in the civil service.

(8) Accordingly, a transfer scheme may, in particular, provide—

(a) for an employee of ISA or (as the case may be) an individual employed
in the civil service to become an employee of DBS,

(b) for the individual’s contract of employment with ISA or (as the case
10may be) terms of employment in the civil service to have effect (subject
to any necessary modifications) as the terms of the individual’s contract
of employment with DBS,

(c) for the transfer to DBS of rights and liabilities of ISA or (as the case may
be) the Crown under or in connection with the individual’s terms of
15employment.

(9) In this section—

• “civil service” means the civil service of the State,

• “ISA” means the Independent Safeguarding Authority,

• “TUPE regulations” means the Transfer of Undertakings (Protection of
  20Employment) Regulations 2006 (S.I. 2006/246S.I. 2006/246),

• references to the transfer of property include the grant of a lease.

89 Tax in connection with transfer schemes

(1) The Treasury may by order make provision varying the way in which a
relevant tax has effect in relation to—

(a) 25anything transferred under a transfer scheme, or

(b) anything done for the purposes of, or in relation to, a transfer under a
transfer scheme.

(2) The provision which may be made under subsection (1)(a) includes, in
particular, provision for—

(a) 30a tax provision not to apply, or to apply with modifications, in relation
to anything transferred,

(b) anything transferred to be treated in a specified way for the purposes
of a tax provision,

(c) the Secretary of State to be required or permitted to determine, or
35specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
anything transferred.

(3) The provision which may be made under subsection (1)(b) includes, in
particular, provision for—

(a) 40a tax provision not to apply, or to apply with modifications, in relation
to anything done for the purposes of, or in relation to, the transfer,

(b) anything done for the purposes of, or in relation to, the transfer to have
or not have a specified consequence or be treated in a specified way,

(c) the Secretary of State to be required or permitted to determine, or
45specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
anything done for the purposes of, or in relation to, the transfer.

(4) The power to make an order under this section—

(a) is exercisable by statutory instrument,

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

(c) 5may, in particular, be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under an enactment
(whenever passed or made).

(5) A statutory instrument containing an order under this section is subject to
annulment in pursuance of a resolution of the House of Commons.

(6) 10In this section—

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

• “relevant tax” means income tax, corporation tax, capital gains tax, stamp
  duty, stamp duty reserve tax or stamp duty land tax,

• 15“tax provision” means any provision—

  (a)

  about a relevant tax, and

  (b)

  made by or under an enactment,

• “transfer scheme” means a transfer scheme under section 88,

and references to the transfer of property include the grant of a lease.

CHAPTER 4 20Disregarding certain convictions for buggery etc.

General

90 Power of Secretary of State to disregard convictions or cautions

(1) A person who has been convicted of, or cautioned for, an offence under—

(a) section 12 of the Sexual Offences Act 1956 (buggery),

(b) 25section 13 of that Act (gross indecency between men), or

(c) section 61 of the Offences against the Person Act 1861 or section 11 of
the Criminal Law Amendment Act 1885 (corresponding earlier
offences),

may apply to the Secretary of State for the conviction or caution to become a
30disregarded conviction or caution.

(2) A conviction or caution becomes a disregarded conviction or caution when
conditions A and B are met.

(3) Condition A is that the Secretary of State decides that it appears that—

(a) the other person involved in the conduct constituting the offence
35consented to it and was aged 16 or over, and

(b) any such conduct now would not be an offence under section 71 of the
Sexual Offences Act 2003 (sexual activity in a public lavatory).

(4) Condition B is that—

(a) the Secretary of State has given notice of the decision to the applicant
40under section 92(4)(b), and

(b) the period of 14 days beginning with the day on which the notice was
given has ended.

(5) Sections 93 to 96 explain the effect of a conviction or caution becoming a
disregarded conviction or caution.

91 Applications to the Secretary of State

(1) An application under section 90 must be in writing.

(2) 5It must state—

(a) the name, address and date of birth of the applicant,

(b) the name and address of the applicant at the time of the conviction or
caution,

(c) so far as known to the applicant, the time when and the place where the
10conviction was made or the caution given and, for a conviction, the case
number, and

(d) such other information as the Secretary of State may require.

(3) It may include representations by the applicant or written evidence about the
matters mentioned in condition A in section 90.

92 15Procedure for decisions by the Secretary of State

(1) In considering whether to make a decision of the kind mentioned in condition
A in section 90, the Secretary of State must, in particular, consider—

(a) any representations or evidence included in the application, and

(b) any available record of the investigation of the offence and of any
20proceedings relating to it that the Secretary of State considers to be
relevant.

(2) The Secretary of State may not hold an oral hearing for the purpose of deciding
whether to make a decision of the kind mentioned in condition A in section 90.

(3) Subsection (4) applies if the Secretary of State—

(a) 25decides that it appears as mentioned in condition A in section 90, or

(b) makes a different decision in relation to the matters mentioned in that
condition.

(4) The Secretary of State must—

(a) record the decision in writing, and

(b) 30give notice of it to the applicant.

Effect of disregard

93 Effect of disregard on police and other records

(1) The Secretary of State must by notice direct the relevant data controller to
delete details, contained in relevant official records, of a disregarded
35conviction or caution.

(2) A notice under subsection (1) may be given at any time after condition A in
section 90 is met but no deletion may have effect before condition B in that
section is met.

(3) Subject to that, the relevant data controller must delete the details as soon as
40reasonably practicable.