Criminal Justice and Immigration Bill

House of Commons

Session 2007 - 08
Internet Publications
Other Bills before Parliament

Criminal Justice and Immigration Bill

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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General powers and duties
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Powers of Commissioner to obtain information etc.
(1)
This section confers powers on the Commissioner for the purposes of any
investigation under this Part.
(2)
The Commissioner may require a person the Commissioner thinks is able to
5
provide information or produce a document relevant to the investigation to do
so.
(3)
The Commissioner has the same powers as the High Court in relation to—
(a)
the attendance and examination of witnesses (including the
administration of oaths and affirmations and the examination of
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witnesses abroad); and
(b)
the production of documents.
(4)
The Commissioner may also require a person to secure that access to any
premises (other than premises used solely as a dwelling) is given to the
Commissioner or members of the Commissioner’s staff for the purpose of
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inspecting the premises or any documents or other things situated on them.
(5)
Such access must be given at such reasonable times as the Commissioner may
specify.
(6)
The Commissioner may require any person who is at the premises at those
times to provide such reasonable assistance as the Commissioner may specify.
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40
Exceptions etc. to Commissioner’s powers under section 39
(1)
Subject to subsection (3), no person shall be compelled by virtue of this Part to
give any evidence or do any other thing which that person could not be
compelled to do in civil proceedings before the High Court.
(2)
No obligation to maintain secrecy or other restriction on the disclosure of
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information obtained by or provided to persons in Her Majesty’s service,
whether imposed by or under any enactment or by any rule of law, applies in
relation to an investigation.
(3)
The Crown is not entitled in relation to an investigation to any privilege in
respect of the production of documents or of the giving of evidence as would
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otherwise be allowed in legal proceedings.
(4)
No person shall be compelled or authorised by virtue of this Part—
(a)
to provide any information relating to proceedings of the Cabinet or of
any Committee of the Cabinet; or
(b)
to produce any document relating to such proceedings.
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(5)
For this purpose a certificate which—
(a)
is issued by the Secretary of the Cabinet with the approval of the Prime
Minister, and
(b)
certifies that any information or document (or part of a document)
relates to any proceedings mentioned in subsection (4),
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is conclusive of the matters certified.
(6)
In this section “investigation” means any investigation under this Part.

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Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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Obstruction and contempt
(1)
The Commissioner may, if satisfied that the condition in subsection (2) is met
in relation to a person, refer the matter to the High Court.
(2)
The condition is that the person—
(a)
has failed to comply with a requirement imposed by virtue of section
5
39 or has otherwise, without lawful excuse, obstructed the performance
of any of the Commissioner’s functions; or
(b)
has committed an act or omission in relation to an investigation which,
if the investigation were proceedings in the High Court, would
constitute contempt of court.
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(3)
The High Court may inquire into the matter referred by the Commissioner and,
if satisfied that the condition in subsection (2) is met, may deal with the person
concerned as if that person were in contempt of court.
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Working with other ombudsmen etc.
(1)
This section applies where the Commissioner—
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(a)
forms the opinion that a matter being considered, investigated or
otherwise dealt with by the Commissioner relates (in whole or part) to
a matter that has been or could be dealt with by a listed person; and
(b)
consults that person about that matter.
(2)
This section also applies where a listed person—
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(a)
forms the opinion that a matter being considered or dealt with by that
person relates (in whole or in part) to a matter that has been or could be
dealt with by the Commissioner; and
(b)
consults the Commissioner about that matter.
(3)
The Commissioner and the listed person may co-operate with each other in
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relation to the matter.
(4)
That co-operation may include (among other things)—
(a)
carrying out a joint investigation;
(b)
preparing a joint report;
(c)
publishing such a report.
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(5)
But that co-operation may not include any of the things mentioned in
subsection (4) where the listed person is the Scottish Public Services
Ombudsman.
(6)
In this section “listed person” means—
The Parliamentary Commissioner for Administration
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A Local Commissioner under Part 3 of the Local Government Act 1974
(c. 7))
The Health Service Commissioner for England
The Scottish Public Services Ombudsman
The Children’s Commissioner for Wales
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The Public Services Ombudsman for Wales.
(7)
The consent of the complainant (or a representative of the complainant acting
in accordance with section 43) must be obtained before the Commissioner

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Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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agrees to carry out a joint investigation of a complaint made under this Part
with any of the following—
The Parliamentary Commissioner for Administration
A Local Commissioner under Part 3 of the Local Government Act 1974
(c. 7)
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The Health Service Commissioner for England.
(8)
The Secretary of State may by order amend subsection (6) or (7) by—
(a)
adding or omitting a person or body;
(b)
changing an entry for a person or body for the time being specified
there.
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(9)
Such an order may make consequential provision (including provision
amending this Act, any other Act or subordinate legislation, Northern Ireland
legislation or an Act of the Scottish Parliament).
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Legal and other representation
The Commissioner may determine the circumstances under which and the
15
extent to which persons may be represented by lawyers or other persons in
connection with complaints or with investigations under section 35 or 37.
.
Disclosure of information
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Disclosure of information etc.
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(1)
For the purposes of this section information is protected information if it is
obtained by the Commissioner (or a member of the Commissioner’s staff)—
(a)
in carrying out functions in relation to, or otherwise in connection with,
a complaint;
(b)
in carrying out or otherwise in connection with an investigation under
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section 35 or 37;
(c)
from the Information Commissioner by virtue of section 76 of the
Freedom of Information Act 2000 (c. 36); or
(d)
from a listed person (within the meaning of section 42) in connection
with any consultation or co-operation mentioned in that section.
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(2)
Such information ceases to be protected information 70 years after it is first
obtained as mentioned in subsection (1).
(3)
Protected information shall not be disclosed except—
(a)
for the purposes of any of the Commissioner’s functions in relation to
a complaint or to matters arising in connection with it;
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(b)
in the case of information obtained in connection with an investigation,
for the purposes of—
(i)
an investigation under section 35 or 37, or
(ii)
any of the Commissioner’s functions in relation to such an
investigation or to matters arising in connection with it;
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(c)
for the purposes of any provision of section 42;
(d)
for the purposes of proceedings for—

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(i)
an offence under the Official Secrets Act 1989 (c. 6) alleged to
have been committed in relation to protected information; or
(ii)
an offence of perjury alleged to have been committed in relation
to anything being done in connection with the Commissioner’s
functions;
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or for the purposes of an investigation with a view to the taking of such
proceedings;
(e)
for the purposes of proceedings under section 41;
(f)
to a coroner (or a person acting on behalf of a coroner) for the purposes
of an inquest;
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(g)
for the purposes of an investigation of the Lord Advocate or a
procurator fiscal;
(h)
to Her Majesty’s Chief Inspector of Prisons for England and Wales or
Her Majesty’s Chief Inspector of Probation for England and Wales, for
the purposes of the exercise of any of the functions of that office;
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(i)
in the case of information to which subsection (4) applies, to the
Information Commissioner;
(j)
in the case of information to which subsection (7) applies, to any person
to whom the Commissioner thinks it should be disclosed in the public
interest.
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(4)
This subsection applies to information if it appears to the Commissioner to
relate to—
(a)
a matter in respect of which the Information Commissioner could
exercise a power conferred by an enactment mentioned in subsection
(5); or
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(b)
the commission of an offence mentioned in subsection (6).
(5)
Those enactments are—
(a)
Part 5 of the Data Protection Act 1998 (c. 29);
(b)
section 48 of the Freedom of Information Act 2000 (c. 36);
(c)
Part 4 of that Act.
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(6)
Those offences are offences under—
(a)
any provision of the Data Protection Act 1998 other than paragraph 12
of Schedule 9;
(b)
section 77 of the Freedom of Information Act 2000.
(7)
This subsection applies to information if—
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(a)
in the opinion of the Commissioner it reveals or otherwise relates to a
serious threat to the health or safety of a person; or
(b)
it does not fall within paragraph (a) but the Commissioner is
nevertheless of the opinion that it should be disclosed for the purpose
of enabling such a threat to be dealt with.
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(8)
Protected information within subsection (1)(d) may not be disclosed for the
purposes of a notification under section 46 unless the Commissioner has
consulted the listed person in question about the making of the disclosure.
(9)
No person mentioned in subsection (11) may be called upon in any
proceedings to give evidence of protected information within subsection (1)(a),
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(b) or (d).
(10)
Subsection (9) does not apply in relation to proceedings mentioned in
subsection (3)(d) to (g).

Criminal Justice and Immigration Bill
Part 4 — Her Majesty’s Commissioner for Offender Management and Prisons
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(11)
Those persons are—
(a)
the Commissioner;
(b)
a member of the Commissioner’s staff;
(c)
a person from whom advice is obtained by virtue of paragraph 11 of
Schedule 6.
5
(12)
For the purposes of the law of defamation the publication of any matter by the
Commissioner for purposes connected with his functions (including functions
under this section) shall be absolutely privileged.
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Disclosure prejudicial to national security or contrary to public interest
(1)
The Secretary of State may give a notice to the Commissioner stating that the
10
disclosure of—
(a)
any document or information specified in the notice, or
(b)
any description of document or information so specified,

would, in the opinion of the Secretary of State, prejudice national security or
would otherwise be contrary to the public interest.
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(2)
Nothing in this Part authorises or requires the Commissioner (or any member
of the Commissioner’s staff) to disclose to any person or for any purpose any
document or information covered by a current notice under subsection (1).
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Notification of matters of potential concern to the police or other authorities
(1)
If while performing any functions the Commissioner forms the opinion—
20
(a)
that there should be a criminal investigation into any matter, or
(b)
that a controlling authority should, as a matter of urgency, take action
in relation to any matter,

the Commissioner may notify the police or that authority (as the case may be)
of the matter as soon as is practicable.
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(2)
A notification under subsection (1) may include such information relating to
the matter in question as the Commissioner thinks fit.
General
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Power to pay expenses
(1)
Subject to subsection (3), the Commissioner may make payments (of such
30
amounts as the Commissioner thinks fit) towards the expenses of—
(a)
a person who has made an eligible complaint; or
(b)
a person who provides the Commissioner with information or other
assistance in relation to an eligible complaint or to an investigation
under section 35 or 37.
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(2)
The Treasury may issue guidelines in relation to—
(a)
the circumstances under which payments under this section may be
made; and
(b)
the amounts of such payments.
(3)
The Commissioner must comply with any guidelines so issued.
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