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Clause 24: Power to confer additional functions on Chief Inspector
249. This clause deals with the power of the ministers to add or remove functions of the Chief Inspector. It will enable Ministers to add to the inspectorate's remit to accommodate any non-inspection functions required, for example providing specialist advice to institutions performing functions subject to inspection.
250. Subsection (1) provides the responsible ministers with an order-making power to confer additional functions on the Chief Inspector in relation to matters in respect of which the Chief Inspector has a duty under this Part to carry out inspections. An additional function so conferred may likewise be removed (subsection (2)).
251. Subsections (4), (5) and (6) provide that before making an order under this section ministers shall consult the Chief Inspector, the Lord Chief Justice of England and Wales and other Inspectorates as appropriate. Subsection (8) provides that when such an order relates (to any extent) to devolved Welsh matters (as defined in clause
32) ministers need the agreement of the National Assembly for Wales before making such an order.
Clause 25: Ministerial directions
252. The legislation governing the existing justice inspectorates provides for powers of direction by ministers. This clause gives ministers similar powers in respect of the Chief Inspector.
253. Subsection (1) gives ministers the power to direct the Chief Inspector to inspect and report on any matter relating to any matter he is entitled to inspect under this Part. This might be used, for example, to direct the inspectorate to investigate a particular theme or incident of special concern that arose outside the course of a planned inspection programme.
254. Subsection (2) gives the responsible ministers the power to direct the Chief Inspector to give them advice on any matter on which he has a duty to carry out inspections. This is intended to enable ministers to draw on the expertise and independence of the inspectorate as necessary when formulating and evaluating policy and setting standards.
255. Subsection (3) makes clear that when the Chief Inspector is exercising his functions he must have regard to any aspect of government policy that the responsible ministers may direct. This will be used to ensure that the Chief Inspector has regard to the Government's principles of inspection ("The Government's Policy on Inspection of Public Services", Office of Public Services Reform, July 2003).
256. Subsections (4) and (5) require that before giving a direction under subsection (1) ministers must consult such of the people and bodies listed as appears to the responsible ministers to be appropriate. Under subsection (7) they must also always consult the Chief Inspector. Subsection (8) requires the agreement of the National Assembly for Wales if the direction relates to a matter in respect of which the Assembly has functions.
257. However, subsection (9) provides that subsections (4) and (8) do not apply where the responsible ministers consider it necessary for reasons of urgency, for example, where an incident requires urgent investigation.
Clause 26: Powers of persons carrying out inspections
258. Some but not all of the existing justice inspectorates have express powers of entry and information gathering. This clause gives the new Chief Inspector similar powers.
259. Subsection (1) provides that these powers can be used by a person involved in the carrying out of an inspection by the Chief Inspector (for example, a person employed by the Chief Inspector).
260. Subsection (2) gives power to those carrying out inspections to enter premises for the purposes of carrying out an inspection and subsection (3) gives them powers to obtain documents and other information.
261. Subsection (4) makes clear that these powers do not permit a person conducting an inspection to be present when a court is hearing proceedings in private, or to attend any private deliberations of persons having jurisdiction to hear or determine any proceedings (for example judges).
262. Subsection (5) ensures that where documents must be produced, the information they contain must be made legible and intelligible, or be capable of being made so, so for example permitting the provision of documents in a computer file.
263. Subsection (6) entitles a person conducting an inspection to have access to, inspect and check the operation of any computer or related apparatus and materials and to require assistance in doing so.
Clause 27: Reports by Chief Inspector
264. Subsection (1) of this clause requires the Chief Inspector to produce an annual report on the discharge of his duties under this Part. It will be for the Chief Inspector to determine the format of such reports. They may, as now, contain an overview of the performance of the service inspected as well as an overview of the performance of the inspectorate.
265. Subsection (2) requires ministers to lay before Parliament the Chief Inspector's annual and any other report submitted to them that the Chief Inspector requests be laid before Parliament and subsection (3) requires the Chief Inspector to publish all reports. However, subsection (4) gives Ministers the power to exclude material from reports laid before Parliament and published reports where such material might jeopardise national security or the safety of any person.
Clause 28: Further provision
266. This clause introduces Schedule 8, which makes further provision about the Chief Inspector.
Schedule 8: Her Majesty's Chief Inspector for Justice, Community Safety and Custody
267. Paragraph 1 makes provision for the tenure of the Chief Inspector. He will be appointed for not more than five years at a time. The paragraph also lists the circumstances under which the responsible ministers may remove the Chief Inspector from office.
268. Paragraph 2 makes provision for the ministers to designate a person to discharge the functions of the Chief Inspector while the office is vacant. This designation may be for a maximum of two years.
269. Paragraph 3 gives power to the Chief Inspector (or Ministers if he cannot) to designate a person to discharge his functions while he is absent or unable to act.
270. Paragraph 4 makes provision for the salary and benefits of the Chief Inspector.
271. Paragraph 5 enables the Chief Inspector to employ staff and make other arrangements to obtain assistance, subject to the approval of the responsible ministers. The Chief Inspector will be under a duty to use these powers to ensure that he has access to the necessary expertise to enable him to fulfil his inspection functions.
272. Paragraph 6 provides that the responsible ministers will make such payments as are necessary in respect of expenses incurred by the Chief Inspector.
273. Paragraph 7 provides that the Chief Inspector may do anything that he considers necessary for the purpose of carrying out his functions.
274. Paragraph 8 enables the Chief Inspector to delegate his functions to any member of his staff, to any person providing assistance by virtue of paragraph 5(2), and to another public authority. For example, the inspectorate may need to delegate functions to another inspectorate to enable efficient management of a joint inspection, by asking the staff of the other inspectorate to obtain information in the course of an interview or visit to an institution, thus removing the need for staff from both inspectorates to attend.
275. Paragraphs 9 and 10 are designed to ensure that the inspectorates co-operate, work efficiently together and do not duplicate inspections so as to place unnecessary burdens on the services inspected. In addition to being under a duty to inspect the public services that fall within its area, each inspectorate will also be given a role to monitor, challenge and, if necessary, seek to prevent inspections by the other inspectorates within that area. For example, the Chief Inspector for Justice, Community Safety and Custody would have a role in preventing unnecessary inspections of bodies in the criminal justice system by the other inspectorates.
276. Paragraph 9 provides that the Chief Inspector shall prepare an inspection programme and an inspection framework and offers definitions for those terms. Before preparing such he is required to consult and send copies of the inspection programme or framework to the persons and bodies listed at paragraph 9(2) (a)-(f).
277. Paragraph 10 provides that if another inspectorate listed in sub-paragraph (2) proposes to carry out an inspection of a specified organisation and the Chief Inspector considers that the proposed inspection would impose an unreasonable burden on that organisation then the Chief Inspector shall give notice to that other inspectorate not to carry out that inspection.
278. Sub-paragraph (4) provides that ministers will specify by order who is a "specified organisation" for the purposes of paragraph 10 and so who the Chief Inspector has a duty to protect from unreasonable inspection. Sub-paragraph (5) provides that only bodies the Chief Inspector has a duty to inspect himself can be specified for these purposes and sub-paragraph (6) provides that Ministers may use this power to specify bodies only in respect of particular functions of those bodies.
279. Sub-paragraph (7) provides that ministers may specify by order circumstances where the notice procedure under this paragraph shall not apply. For example, Ministers may wish to specify that the procedure shall not apply to urgent inspections.
280. Sub-paragraph (8) provides that where notice is given under this paragraph the proposed inspection should not take place subject to the provisions in sub-paragraph (9), which gives responsible ministers the power to give consent to carry out the inspection or inspect in a particular manner if satisfied that the inspection would not impose an unreasonable burden.
281. Sub-paragraph (10) gives responsible ministers power, by order, to supplement provisions made in this paragraph.
282. Paragraph 11 imposes a duty on the Chief Inspector to co-operate with the other inspectorates, public authorities, the Auditor General for Wales (where the discharge of his functions relate to Welsh matters), and the Independent Police Complaints Commission where it is appropriate to do so for the efficient and effective discharge of his functions.
283. Paragraph 12 enables the Chief Inspector to act jointly with other public authorities, including the Auditor General for Wales where appropriate, and it requires him to act jointly with the Audit Commission when inspecting police authorities and certain crime and disorder functions.
284. Paragraph 13 enables the Chief Inspector to provide assistance to another public authority, on such terms as he thinks fit.
285. Paragraph 14 makes provision for the Chief Inspector to carry out inspections that fall outside the scope of his duty under this Part (for example, inspections of policing or prisons in the Channel Islands), by arrangement with the relevant authorities, and on such terms as he thinks fit.
286. Paragraph 15 enables the Chief Inspector, with the consent of ministers, to enter into arrangements for charges to be made when he provides assistance to other public authorities, carries out inspections outside England and Wales or other inspections or services that he is not under a duty to provide.
287. Paragraph 16 requires the Chief Inspector to obtain the agreement of the National Assembly for Wales before carrying out any inspection that relates to a matter in which the Assembly has functions, other than where that inspection has been directed by Ministers under clause 25.
Clause 29: Abolition of existing inspectorates
288. This clause makes provision for the abolition of the five existing inspectorates.
289. Subsection (1) provides that following the introduction of a single inspectorate the current five inspectorates will be abolished. They are Her Majesty's Chief Inspector of Prisons; Her Majesty's Inspectors of Constabulary; Her Majesty's Chief Inspector of the Crown Prosecution Service; Her Majesty's Inspectorate of the National Probation Service for England and Wales; and Her Majesty's Inspectorate of Court Administration. It may not be necessary to abolish all five at once; a staged process of transition could therefore be accommodated.
290. Subsection (2) accordingly repeals certain legislation relating to the existence of the bodies listed above.
Clauses 30 and 31: Transfer of staff and property and consequential amendments
291. These clauses introduce Schedules 9 and 10, which makes provision about the transfer of staff and property to the Chief Inspector and consequential amendments respectively.
Schedule 9: Transfer of staff and property and consequential amendments
292. Schedule 9 makes provision for the transfer of staff and property etc from the existing inspectorates to the Chief Inspector. It provides for staff transfer schemes and property transfer schemes to be operated by ministers for the staff and the property, rights and liabilities of the existing inspectorates, respectively.
Schedule 10: The Chief Inspector: Consequential amendments
293. Schedule 10 makes some minor and consequential amendments chiefly to enable the Chief Inspector to take over functions of the existing inspectorates in certain areas.
Clause 32: Interpretation
294. This clause defines certain terms of relevance to this part of the Bill.
Part 5: Miscellaneous
Clause 33: Increased penalty etc for offence of unauthorised access to computer material
295. Clause 33 amends the Computer Misuse Act 1990 by amending section 1 (offence of unauthorised access to computer material). Section 1 of the 1990 Act deals with the unauthorised access to computer systems or data, commonly known as 'hacking' or 'cracking'. It is an offence to cause a computer to perform any function with intent to secure unauthorised access to any program or data held in any computer (subsection (1) (a)). It is necessary to prove that the access secured is unauthorised (subsection (1) (b)) and that the suspect knew that this was the case (subsection (1) (c)).
296. The clause replaces the penalty for this offence by substituting a new subsection (3). The offence is made indictable, and the maximum sentence is increased from five years to imprisonment for ten years.
297. The European Union Framework Decision on Attacks Against Information Systems, adopted by the European Union and Justice and Home Affairs Council of Ministers on 24 February 2005, requires the approximation of Member States' criminal law (offences, penalties and jurisdiction) on attacks against information systems; this amendment will ensure compliance. The EU Framework Decision requires all Member States to give effect to its provisions in legislation by 24 February 2007. This will ensure that there are adequate and more effective penalties available for the offence of unauthorised access to computer material, to reflect the seriousness of the criminal activities which can be involved in committing this offence.
Clause 34: Unauthorised acts with intent to impair operation of computer, etc
298. Clause 34 replaces section 3 of the Computer Misuse Act 1990. The current section 3 makes unauthorised modification of computer material an offence, for which the penalty for conviction is imprisonment for a maximum of five years or a fine or both.
299. The new subsections (1) to (4) clarify that all unauthorised acts in relation to computers are criminalised provided that the individual did an unauthorised act with the intent to impair the operation of any computer, to prevent or hinder access to programs or data, or to impair the operation of programs or the reliability of data, and at the time of doing the act he knew that it was unauthorised.
300. New subsection (6) makes the offence indictable and increases the maximum penalty from five to ten years imprisonment.
301. This amendment ensures that adequate provision is made to criminalise all forms of Denial of Service (DoS) attacks in which the attacker denies the victim(s) access to a particular resource, typically by preventing legitimate users of a service accessing that service, for example by overloading an Internet Service Provider of a website with actions, such as emails. Article 5 of the Council of Europe Cybercrime Convention and Article 3 of the EU Framework Decision on Attacks Against Information Systems detail an offence of illegal system interference. This requires the criminalisation of the intentional serious hindering of a computer system by the inputting, transmitting, damaging, deleting, deteriorating, altering, suppressing, or rendering inaccessible of computer data. Such serious hindering is intended to cover programmes that generate DoS attacks, or malicious code such as viruses. This amendment will ensure compliance.
Clause 35: Making, supplying or obtaining articles for use in computer misuse offences
302. This clause inserts a new section 3A into the Computer Misuse Act 1990. The new section makes it an offence to make, adapt, supply or offer to supply any article designed or adapted for use in connection with an offence under section 1 or 3 intending for it to be used in connection with such an offence. It also makes it an offence to obtain such an article with the intention of supplying it for such a use. This will give effect to Article 6(1) (a) (ii) of the 2001 Council Of Europe Cybercrime Convention. This requires the criminalisation of the distribution or making available of a computer password (or similar data) by which a computer system is capable of being accessed with the intent to commit an offence. This provision recognises that the ability to hack into computer systems without permission often requires the possession of means of access ("hacker tools") or other tools, and consequently there is an incentive for individuals to acquire these on a black market in their production and distribution. As such a summary offence is to be created to criminalise the distribution or making available of a computer password, where it was produced/sold/imported etc., with the intent that it be used for committing an offence.
Clause 36: Transitional and saving provision
303. This clause makes transitional amendments for provisions of the Bill that amend the Computer Misuse Act 1990 so as to provide that the amendments do not apply in relation to offences committed before the coming into force of the amendments or acts done before that time.
Clause 37: Forfeiture of indecent photographs of children
304. This clause provides a mechanism for the forfeiture of indecent photographs of children held by the police. At the moment the law allows for the forfeiture of such material following seizure under a warrant under the Protection of Children Act 1978 and in those cases all material must be brought before the Court irrespective of whether its owner consents to its forfeiture. This clause replaces that power with one that allows forfeiture by the police irrespective of the power under which the material was seized. It allows forfeiture of such material and any other material that it is not possible to separate from it. It provides for forfeiture without the involvement of a Court unless the owner or some other person with an interest in the material objects.
305. Subsection (1) of this clause introduces the amendments to the Protection of Children Act 1978 (c.37) to bring into effect the new procedures for the forfeiture of indecent images of children.
306. Subsection (2) (a) amends section 4 (entry, search and seizure) of the Protection of Children Act 1978 by omitting subsection 3 thereby removing the mandatory production in court of articles seized under the Act to be considered for forfeiture.
307. Subsection (2)(b) substitutes section 4 subsection (4) of the 1978 Act to define "premises" in line with the definition in the Police and Criminal Evidence Act 1984 (c60) (s23).
308. Subsection (3) and subsection (4) replace section 5 (forfeiture) of the 1978 Act and brings into effect the new Schedule 1: forfeiture of indecent photographs of children set out in Schedule 12 of the Bill. The new Schedule provides the new mechanism for the forfeiture of indecent images of children and the devices that hold them regardless of the powers of seizure used.
309. Subsection (5) limits the amendments made by subsection (2) (b) to warrants issued under section 5 of the 1978 Act after the commencement of that subsection.
310. Subsections (6) and (7) ensure that the new forfeiture procedures apply to articles seized lawfully before or after these provisions come into effect provided that the property has not already been brought before the court under the 1978 Act.
Schedule 11: Schedule to be inserted into the Protection of Children Act 1978
311. Schedule 11 inserts Schedule 1 to the Protection of Children Act 1978. This Schedule creates a mechanism whereby the police can forfeit indecent images of children and the devices that hold them. For example, computer hard drives that contain indecent images where deletion of the indecent images only is not technically possible. The existing procedure applies only if such articles were seized under a warrant under the Protection of Children Act 1978 or following conviction for an offence in which the items were used. This new Schedule applies irrespective of the power the material is seized under, so will include indecent material inadvertently seized in investigations into other matters. For example, computers seized in a fraud investigation may on subsequent analysis be found to contain both the business records sought and child pornography.
312. The new Schedule gives the police the power to forfeit such articles and creates an avenue of appeal for owners and third parties. Paragraphs 1 to 4 provide that once the police no longer have a legitimate reason for possessing the articles and if they believe they are suitable for forfeiture on the grounds they are indecent photographs of children they are obliged under the Schedule to issue a notice of forfeiture to those that they believe to be owners of the articles, the occupier of the premises they were seized from and the person form whom they were seized.
313. Paragraph 4 sets out that the notice must describe the articles and explain how a notice of claim against forfeiture should be pursued. A notice of claim is made under paragraph 5 to a constable at a police station in the police area where the articles were seized. Paragraph 6 sets out what must be in a notice and that it must be made within one month from the date of the giving of the notice of forfeiture. Under paragraph 7 if no notice has been given the articles can be automatically forfeited by the police.
314. If a notice of claim is received, the constable must decide under paragraphs 7 and 8 whether to return the property or take proceedings to ask the court to condemn the property.
315. Paragraphs 10 to 12 sets out how the constable can take forfeiture proceedings, the claimant's role and allows the court, when considering an application for forfeiture from the police, to be able to condemn or return the property or a separable part of the property. The court are only allowed to give the material to the claimant if he has a legitimate reason to possess it; either because the court conclude it is not in fact an indecent photograph of a child, or because nevertheless it would not be an offence for the person to possess that material. For example, under the Criminal Justice Act 1988 it is not an offence to possess an indecent photograph of ones spouse if he or she is over 16 (see paragraph 21).
316. Under paragraph 11 the court in considering a forfeiture claim are also able to order the copying of data by the police and have the power to order payment of costs for any steps that it orders to be taken. For example, a computer hard drive may have on it both indecent photographs and business records. If it is not possible to delete one but not the other, the court can order that the business records be copied before the hard drive is forfeited and then destroyed by the police.
Clause 38: Immigration and asylum enforcement functions: complaints and misconduct
317. This clause enables the remit of the Independent Police Complaints Commission (IPCC) to be expanded to provide oversight of certain personnel in the Immigration and Nationality Directorate (IND) exercising specified enforcement functions.
318. Subsection (1) enables the Secretary of State to make regulations conferring functions on the IPCC in relation to the exercise of specified enforcement functions by immigration officers, and the exercise by officials of the Secretary of State of specified enforcement functions relating to immigration and asylum.
319. Subsection (2) provides that the reference to "enforcement functions" in subsection (1) includes reference to powers of entry, powers to search persons or property, powers to seize or detain property, powers of arrest and detention, powers of examination, and powers in connection with the removal of persons from the United Kingdom.
320. Subsection (3) provides that the regulations made under subsection (1) may not confer functions on the IPCC in relation to the exercise by any person of a function conferred on him by or under Part 8 of the Immigration and Asylum Act 1999 which relates to removal centres and detained persons.
321. Subsection (4)(a) provides for the IPCC to carry out for IND a similar role to that it performs in respect of police forces in England and Wales where it examines police complaint handling procedures and undertakes or supervises investigations of conduct and complaints. The subsection does not simply apply the relevant provisions of the Police Reform Act 2002 because the regulations will need to be tailored to the circumstances of IND. Under these regulations, the IPCC would be able to look at allegations of criminal conduct or gross misconduct within IND. Again reflecting the practice for the police, regulations could enable the IPCC to investigate directly, to supervise or manage an investigation, or to determine that there be an investigation by the appropriate authority (the IPCC may determine that there should be an internal investigation and that the IPCC may supervise of manage it), depending on the circumstances.
322. Subsection (4)(b) enables the Secretary of State to make provision under the regulations for payment by the Secretary of State to or in respect of the IPCC.
323. Subsection (5) provides that the IPCC and the Parliamentary Commissioner for Administration ("PCA") may disclose information to each other for the purposes of exercising their functions under this clause and the Parliamentary Commissioner Act 1967 respectively.
324. Subsection (6) provides that the IPCC and the PCA may jointly investigate a matter in relation to which they both have functions under this clause and under the Parliamentary Commissioner Act 1967 respectively.
325. Subsection (7) provides that regulations made under this clause may only confer functions on the IPCC in relation to the exercise of enforcement functions in or in relation to England and Wales.
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|Prepared: 25 January 2006