Protection of Freedoms Bill

House of Commons

Session 2010 - 11
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Other Bills before Parliament

Protection of Freedoms Bill

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
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Amendments of regimes other than PACE
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Amendments of regimes other than PACE
Schedule 1 (which amends regimes other than the regime in the Police and
Criminal Evidence Act 1984 amended by sections 1 to 18) has effect.
National security determinations
5
20
National security: appointment of Commissioner
(1)
The Secretary of State must appoint a Commissioner to be known as the
Commissioner for the Retention and Use of Biometric Material (referred to in
this section and sections 21 and 22 as “the Commissioner”).
(2)
It is the function of the Commissioner to keep under review—
10
(a)
every national security determination made or renewed under—
(i)
section 63L of the Police and Criminal Evidence Act 1984
(section 63D material retained for purposes of national
security),
(ii)
paragraph 20E of Schedule 8 to the Terrorism Act 2000
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(paragraph 20A material retained for purposes of national
security),
(iii)
section 18B of the Counter-Terrorism Act 2008 (section 18
material retained for purposes of national security),
(iv)
section 18G of the Criminal Procedure (Scotland) Act 1995
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(certain material retained for purposes of national security), and
(v)
paragraph 7 of Schedule 1 to this Act (material subject to the
Police and Criminal Evidence (Northern Ireland) Order 1989
retained for purposes of national security),
(b)
the uses to which material retained pursuant to a national security
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determination is being put.
(3)
It is the duty of every person who makes or renews a national security
determination under a provision mentioned in subsection (2)(a) to—
(a)
send to the Commissioner a copy of the determination or renewed
determination, and the reasons for making or renewing the
30
determination, within 28 days of making or renewing it, and
(b)
disclose or provide to the Commissioner such documents and
information as the Commissioner may require for the purpose of
carrying out the Commissioner’s functions.
(4)
If, on reviewing a national security determination made or renewed under a
35
provision mentioned in subsection (2)(a), the Commissioner concludes that it
is not necessary for any material retained pursuant to the determination to be
so retained, the Commissioner may order the destruction of the material if the
condition in subsection (5) is met.
(5)
The condition is that the material retained pursuant to the national security
40
determination is not otherwise capable of being lawfully retained.
(6)
The Commissioner is to hold office in accordance with the terms of the Commissioner’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.

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
14

(7)
The Secretary of State may, after consultation with the Commissioner, provide the
Commissioner with—
(a)
such staff, and
(b)
such accommodation, equipment and other facilities,

as the Secretary of State considers necessary for the carrying out of the Commissioner’s
5
functions.
21
Reports by Commissioner
(1)
The Commissioner must make a report to the Secretary of State about the
carrying out of the Commissioner’s functions as soon as reasonably practicable
after the end of—
10
(a)
the period of 9 months beginning when this section comes into force,
and
(b)
every subsequent 12 month period.
(2)
The Commissioner may also, at any time, make such report to the Secretary of
State on any matter relating to the carrying out of those functions as the
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Commissioner considers appropriate.
(3)
The Secretary of State may at any time require the Commissioner to report on
any matter relating to the retention or use of biometric material by a law
enforcement authority for the purposes of national security.
(4)
On receiving a report from the Commissioner under this section, the Secretary
20
of State must—
(a)
publish the report, and
(b)
lay a copy of the published report before Parliament.
(5)
The Secretary of State may, after consultation with the Commissioner, exclude
from publication any part of a report under this section if, in the opinion of the
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Secretary of State, the publication of that part would be contrary to the public
interest or prejudicial to national security.
(6)
In this section “law enforcement authority” has the meaning given by section
18E(1) of the Counter-Terrorism Act 2008.
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Guidance on making a national security determination
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(1)
The Secretary of State must give guidance about making or renewing national
security determinations under a provision mentioned in section 20(2)(a).
(2)
Any person authorised to make or renew any such national security
determination must have regard to any guidance given under this section.
(3)
The Secretary of State may give different guidance for different purposes.
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(4)
In the course of preparing the guidance, or revising guidance already given,
the Secretary of State must consult the Commissioner and the Lord Advocate.
(5)
Before giving guidance under this section, or revising guidance already given,
the Secretary of State must lay before Parliament—
(a)
the proposed guidance or proposed revisions, and
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(b)
a draft of an order providing for the guidance, or revisions to the
guidance, to come into force.

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
15

(6)
The Secretary of State must make the order, and issue the guidance or (as the
case may be) make the revisions to the guidance, if the draft of the order is
approved by a resolution of each House of Parliament.
(7)
Guidance, or revisions to guidance, come into force in accordance with an
order under this section.
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(8)
Such an order—
(a)
is to be a statutory instrument, and
(b)
may contain transitional, transitory or saving provision.
(9)
The Secretary of State must publish any guidance given or revised under this
section.
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Other provisions
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Inclusion of DNA profiles on National DNA Database
After section 63A of the Police and Criminal Evidence Act 1984 insert—
“63AA
Inclusion of DNA profiles on National DNA Database
(1)
This section applies to a DNA profile which is derived from a DNA
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sample and which is retained under any power conferred by any of
sections 63E to 63K (including those sections as applied by section 63O).
(2)
A DNA profile to which this section applies must be recorded on the
National DNA Database.”
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National DNA Database Strategy Board
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After section 63AA of the Police and Criminal Evidence Act 1984 (for which see
section 23) insert—
“63AB
National DNA Database Strategy Board
(1)
The Secretary of State must make arrangements for a National DNA
Database Strategy Board to oversee the operation of the National DNA
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Database.
(2)
The National DNA Database Strategy Board must issue guidance about
the destruction of DNA profiles which are, or may be, retained under
this Part of this Act.
(3)
A chief officer of a police force in England and Wales must act in
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accordance with guidance issued under this section.
(4)
The Secretary of State must publish the governance rules of the
National DNA Database Strategy Board and lay a copy of the rules
before Parliament.
(5)
The National DNA Database Strategy Board must make an annual
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report to the Secretary of State about the exercise of its functions.
(6)
The Secretary of State must publish the report and lay a copy of the
published report before Parliament.
(7)
The Secretary of State may exclude from publication any part of the
report if, in the opinion of the Secretary of State, the publication of that
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Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 1 — Destruction, retention and use of fingerprints etc.
16

part would be contrary to the public interest or prejudicial to national
security.”
25
Material taken before commencement
(1)
The Secretary of State must by order make such transitional, transitory or
saving provision as the Secretary of State considers appropriate in connection
5
with the coming into force of any provision of this Chapter.
(2)
The Secretary of State must, in particular, provide for the destruction or
retention of PACE material taken, or (in the case of a DNA profile) derived
from a sample taken, before the commencement day in connection with the
investigation of an offence.
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(3)
Such provision must, in particular, ensure—
(a)
in the case of material taken or derived 3 years or more before the
commencement day from a person who—
(i)
was arrested for, or charged with, the offence, and
(ii)
has not been convicted of the offence,
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the destruction of the material on the coming into force of the order if
the offence was a qualifying offence,
(b)
in the case of material taken or derived less than 3 years before the
commencement day from a person who—
(i)
was arrested for, or charged with, the offence, and
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(ii)
has not been convicted of the offence,

the destruction of the material within the period of 3 years beginning
with the day on which the material was taken or derived if the offence
was a qualifying offence, and
(c)
in the case of material taken or derived before the commencement day
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from a person who—
(i)
was arrested for, or charged with, the offence, and
(ii)
has not been convicted of the offence,

the destruction of the material on the coming into force of the order if
the offence was an offence other than a qualifying offence.
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(4)
An order under this section may, in particular, provide for exceptions to
provision of the kind mentioned in subsection (3).
(5)
Subsection (6) applies if an order under section 113(1) of the Police and
Criminal Evidence Act 1984 (application of that Act to Armed Forces) makes
provision equivalent to sections 63D to 63T of that Act.
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(6)
The power to make an order under section 113(1) of the Act of 1984 includes
the power to make provision of the kind that may be made by an order under
this section; and the duties which apply to the Secretary of State under this
section in relation to an order under this section apply accordingly in relation
to an order under section 113(1) of that Act.
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(7)
An order under this section is to be made by statutory instrument.
(8)
A statutory instrument containing an order under this section is subject to
annulment in pursuance of a resolution of either House of Parliament.
(9)
In this section—

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 2 — Protection of biometric information of children in schools etc.
17

“the commencement day” means the day on which section 1 comes into
force,
“PACE material” means material that would have been material to which
section 63D or 63Q of the Police and Criminal Evidence Act 1984
applied if those provisions had been in force when it was taken or
5
derived.
Chapter 2
Protection of biometric information of children in schools etc.
26
Requirement for consent before processing biometric information
(1)
Subsection (2) applies in relation to any processing of a child’s biometric
10
information by or on behalf of the relevant authority of—
(a)
a school,
(b)
a 16 to 19 Academy, or
(c)
a further education institution.
(2)
The relevant authority must ensure that a child’s biometric information is not
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processed unless—
(a)
each parent of the child consents to the information being processed, or
(b)
such consent is not required in one or more cases and is given in any
other case.
(3)
See section 27 for further provision about consent (including when consent is
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not required).
(4)
But if, at any time, the child—
(a)
refuses to participate in, or continue to participate in, anything that
involves the processing of the child’s biometric information, or
(b)
otherwise objects to the processing of that information,
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the relevant authority must ensure that the information is not processed,
irrespective of any consent given by a parent of the child under subsection (2).
(5)
Subsection (6) applies in relation to any child whose biometric information, by
virtue of this section, may not be processed.
(6)
The relevant authority must ensure that reasonable alternative means are
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available by which the child may do, or be subject to, anything which the child
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
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relevant 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
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(d)
it is otherwise not reasonably practicable to obtain the consent of the
parent.

Protection of Freedoms Bill
Part 1 — Regulation of biometric data
Chapter 2 — Protection of biometric information of children in schools etc.
18

(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)
Section 26 and this section are in addition to the requirements of the Data
Protection Act 1998.
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Interpretation: Chapter 2
(1)
In this Chapter—
“biometric information” is to be read in accordance with subsections (2)
and (3),
“child” means a person under the age of 18,
10
“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),
“parent” is to be read in accordance with subsections (4) to (7),
“parental responsibility” is to be read in accordance with the Children Act
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1989,
“processing” has the meaning given by section 1(1) of the Data Protection
Act 1998,
“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
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modification in subsection (8),
“relevant authority” means—
(a)
in relation to a school, the proprietor of the school,
(b)
in relation to a 16 to 19 Academy, the proprietor of the
Academy,
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(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”
in section 90(1) of the Further and Higher Education Act 1992),
“school” has the meaning given by section 4 of the Education Act 1996,
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subject to the modification in subsection (9),
“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—
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(a)
is capable of being used in order to identify the person, and
(b)
is obtained for the purpose of being so used.
(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,
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(b)
information about the features of an iris or any other part of the eye,
and
(c)
information about a person’s voice or handwriting.
(4)
“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.
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Protection of Freedoms Bill
Part 2 — Regulation of surveillance
Chapter 1 — Regulation of CCTV and other surveillance camera technology
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(5)
In a case where the relevant authority is satisfied that, by virtue of section 27(1),
the 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 (6) and (7).
(6)
In a case to which subsection (5) applies where the child is looked after by a
local authority (within the meaning given by section 22(1) of the Children Act
5
1989), “parent” is to be read as meaning the local authority looking after the
child.
(7)
In a case to which subsection (5) 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
10
in accordance with section 59(1) of that Act by—
(a)
placing 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.
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(8)
A reference to the proprietor of a school is to be read, in relation to a pupil
referral 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.
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(9)
A reference to a school is to be read as if it included a reference to any
independent educational institution (within the meaning given by section 92 of
the Education and Skills Act 2008).
Part 2
Regulation of surveillance
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Chapter 1
Regulation of CCTV and other surveillance camera technology
Code of practice
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Code of practice for surveillance camera systems
(1)
The Secretary of State must prepare a code of practice containing guidance
30
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)
the use or processing of images or other information obtained by virtue
of such systems.
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(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)
technical standards for systems or apparatus,
(d)
locations for systems or apparatus,
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(e)
the publication of information about systems or apparatus,