Protection of Freedoms Bill

House of Commons

Session 2010 - 11
Internet Publications
Other Bills before Parliament

Protection of Freedoms Bill

Protection of Freedoms Bill
Part 6 — Freedom of information and data protection
75

(c)
a database subject to a database right,
but excludes a work in which Crown copyright subsists or a
database in which Crown database right subsists;
“the specified licence” is the licence specified by the Secretary of
State in a code of practice issued under section 45, and the
5
Secretary of State may specify different licences for different
purposes.”
(4)
In section 19 (publication schemes)—
(a)
after subsection (2) insert—
“(2A)
A publication scheme must, in particular, include a requirement
10
for the public authority concerned—
(a)
to publish—
(i)
any dataset held by the authority in relation to
which a person makes a request for information
to the authority, and
15
(ii)
any up-dated version held by the authority of
such a dataset,

unless the authority is satisfied that it is not appropriate
for the dataset to be published,
(b)
where reasonably practicable, to publish any dataset the
20
authority publishes by virtue of paragraph (a) in an
electronic form which is capable of re-use,
(c)
where any information in a dataset published by virtue
of paragraph (a) is a relevant copyright work in relation
to which the authority is the only owner, to make the
25
information available for re-use in accordance with the
terms of the specified licence.”
(b)
after subsection (7) insert—
“(8)
In this section—
“copyright owner” has the meaning given by Part 1 of the
30
Copyright, Designs and Patents Act 1988 (see section
173 of that Act);
“copyright work” has the meaning given by Part 1 of the
Act of 1988 (see section 1(2) of that Act);
“Crown copyright” has the meaning given by Part 1 of the
35
Act of 1988 (see section 163 of that Act);
“Crown database right” means a database right which
subsists in a database of which Her Majesty is the maker
(within the meaning given by regulation 14 of the
Copyright and Rights in Databases Regulations 1997
40
(S.I. 1997/3032);
“database” has the meaning given by section 3A of the Act
of 1988;
“database right” has the same meaning as in Part 3 of the
Copyright and Rights in Databases Regulations 1997
45
(S.I. 1997/3032);
“owner”, in relation to a relevant copyright work, means—
(a)
the copyright owner, or
(b)
the owner of the database right in a database;

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“Parliamentary copyright” has the meaning given by Part
1 of the Act of 1988 (see sections 165 to 167 of that Act);
“relevant copyright work” means—
(a)
a copyright work,
(b)
a work in which Parliamentary copyright
5
subsists, or
(c)
a database subject to a database right,
but excludes a work in which Crown copyright subsists
or a database in which Crown database right subsists.”
“the specified licence” has the meaning given by section
10
11A(3).”
(5)
In section 45 (issue of code of practice)—
(a)
in subsection (2), after paragraph (d) (and before the word “and” at the
end of the paragraph), insert—
“(da)
the disclosure by public authorities of datasets held by
15
them,”,
(b)
after subsection (2) insert—
“(2A)
Provision of the kind mentioned in subsection (2)(da) may, in
particular, include provision relating to—
(a)
the giving of permission for datasets to be re-used,
20
(b)
the disclosure of datasets in an electronic form which is
capable of re-use,
(c)
the making of datasets available for re-use in accordance
with the terms of a licence,
(d)
other matters relating to the making of datasets
25
available for re-use,
(e)
standards applicable to public authorities in connection
with the disclosure of datasets.”, and
(c)
in subsection (3) for “The code” substitute “Any code under this
section”.
30
(6)
In section 84 (interpretation), after the definition of “the Commissioner”,
insert—
““dataset” has the meaning given by section 11(5);”.
Other amendments relating to freedom of information
93
Meaning of “publicly-owned company”
35
(1)
Section 6 of the Freedom of Information Act 2000 (publicly-owned companies)
is amended as follows.
(2)
In subsection (1)—
(a)
omit “or” at the end of paragraph (a),
(b)
in paragraph (b) for the words from “any public authority” to
40
“particular information” substitute “the wider public sector”, and
(c)
after paragraph (b) insert “, or
(c)
it is wholly owned by the Crown and the wider public
sector.”

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(3)
For subsection (2) substitute—
“(2)
For the purposes of this section—
(a)
a company is wholly owned by the Crown if, and only if, every
member is a person falling within sub-paragraph (i) or (ii)—
(i)
a Minister of the Crown, government department or
5
company wholly owned by the Crown, or
(ii)
a person acting on behalf of a Minister of the Crown,
government department or company wholly owned by
the Crown,
(b)
a company is wholly owned by the wider public sector if, and
10
only if, every member is a person falling within sub-paragraph
(i) or (ii)—
(i)
a relevant public authority or a company wholly owned
by the wider public sector, or
(ii)
a person acting on behalf of a relevant public authority
15
or of a company wholly owned by the wider public
sector, and
(c)
a company is wholly owned by the Crown and the wider public
sector if, and only if, condition A, B or C is met.
(2A)
In subsection (2)(c)—
20
(a)
condition A is met if—
(i)
at least one member is a person falling within subsection
(2)(a)(i) or (ii),
(ii)
at least one member is a person falling within subsection
(2)(b)(i) or (ii), and
25
(iii)
every member is a person falling within subsection
(2)(a)(i) or (ii) or (b)(i) or (ii),
(b)
condition B is met if—
(i)
at least one member is a person falling within subsection
(2)(a)(i) or (ii) or (b)(i) or (ii),
30
(ii)
at least one member is a company wholly owned by the
Crown and the wider public sector, and
(iii)
every member is a person falling within subsection
(2)(a)(i) or (ii) or (b)(i) or (ii) or a company wholly owned
by the Crown and the wider public sector, and
35
(c)
condition C is met if every member is a company wholly owned
by the Crown and the wider public sector.”
(4)
In subsection (3), at the end, insert—
““relevant public authority” means any public authority listed in
Schedule 1 other than—
40
(a)
a government department, or
(b)
any authority which is listed only in relation to
particular information”.
94
Extension of certain provisions to Northern Ireland bodies
(1)
Omit—
45
(a)
section 80A of the Freedom of Information Act 2000 (which modifies, in
relation to information held by Northern Ireland bodies, certain
provisions of the Act relating to historical records etc.), and

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(b)
paragraph 6 of Schedule 7 to the Constitutional Reform and
Governance Act 2010 (which inserts section 80A into the Act of 2000).
(2)
The power of the Secretary of State under section 46(2) to (5) of the Act of 2010
to make transitional, transitory or saving provision in connection with the
coming into force of paragraph 4 of Schedule 7 to that Act includes power to
5
make such provision in connection with the coming into force of that
paragraph of that Schedule as it has effect by virtue of this section.
The Information Commissioner
95
Appointment and tenure of Information Commissioner
(1)
After paragraph 2(3) of Schedule 5 to the Data Protection Act 1998 (removal of
10
the Information Commissioner from office) insert—
   “(3A)
No motion is to be made in either House of Parliament for such an
Address unless a Minister of the Crown has presented a report to
that House stating that the Minister is satisfied that one or more of
the following grounds is made out—
15
(a)
the Commissioner has failed to discharge the functions of the
office for a continuous period of at least 3 months,
(b)
the Commissioner has failed to comply with the terms of
appointment,
(c)
the Commissioner has been convicted of a criminal offence,
20
(d)
the Commissioner is an undischarged bankrupt or the
Commissioner’s estate has been sequestrated in Scotland and
the Commissioner has not been discharged,
(e)
the Commissioner has made an arrangement or composition
contract with, or has granted a trust deed for, the
25
Commissioner’s creditors,
(f)
the Commissioner is otherwise unfit to hold the office or
unable to carry out its functions.
     (3B)
No recommendation may be made to Her Majesty for the
appointment of a person as the Commissioner unless the person
30
concerned has been selected on merit on the basis of fair and open
competition.
     (3C)
A person appointed as the Commissioner may not be appointed
again for a further term of office.”
(2)
Omit paragraph 2(4) and (5) of that Schedule to that Act (termination of term
35
of office on attaining 65 years of age etc. and eligibility for re-appointment).
(3)
In the italic heading to paragraph 2 of that Schedule to that Act, after “office”
insert “and appointment”.
(4)
Omit section 18(5) to (7) of the Freedom of Information Act 2000 (spent
provisions about period of office of Data Protection Commissioner as first
40
Information Commissioner and application of paragraph 2(4)(b) and (5) of
Schedule 5 to the Act of 1998 to that person).
96
Alteration of role of Secretary of State in relation to guidance powers
(1)
For section 41C(7) of the Data Protection Act 1998 (code of practice about

Protection of Freedoms Bill
Part 6 — Freedom of information and data protection
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assessment notices: requirement for approval of Secretary of State)
substitute—
“(7)
The Commissioner must consult the Secretary of State before issuing
the code (or an altered or replacement code).”
(2)
In section 52B of that Act (data-sharing code: approval by the Secretary of
5
State)—
(a)
for subsections (1) to (3) substitute—
“(1)
When a code is prepared under section 52A, the Commissioner
must—
(a)
consult the Secretary of State, and
10
(b)
submit the final version of the code to the Secretary of
State.
(2)
The Secretary of State must lay the code before Parliament.”,
and
(b)
in subsection (6) for the words from the beginning to “the
15
Commissioner” substitute “Where such a resolution is passed, the
Commissioner”.
(3)
For section 55C(5) of that Act (guidance about monetary penalty notices:
requirement for approval of Secretary of State) substitute—
“(5)
The Commissioner must consult the Secretary of State before issuing
20
any guidance under this section.”
97
Removal of Secretary of State consent for fee-charging powers etc.
(1)
In section 51 of the Data Protection Act 1998 (general duties of the Information
Commissioner)—
(a)
in subsection (8) (power to charge fees, with the consent of the Secretary
25
of State, in relation to any Part 6 services)—
(i)
omit “with the consent of the Secretary of State”, and
(ii)
before “services” insert “relevant”, and
(b)
after subsection (8) insert—
“(8A)
In subsection (8) “relevant services” means—
30
(a)
the provision to the same person of more than one copy
of any published material where each of the copies of
the material is either provided on paper, a portable disk
which stores the material electronically or a similar
medium,
35
(b)
the provision of training, or
(c)
the provision of conferences.
(8B)
The Secretary of State may by order amend subsection (8A).”
(2)
In section 67(5)(a) of that Act (orders under the Act subject to negative
procedure) after “51(3)” insert “or (8B)”.
40
(3)
In section 47 of the Freedom of Information Act 2000 (general functions of the
Information Commissioner)—
(a)
in subsection (4) (power to charge fees, with the consent of the Secretary
of State, in relation to services provided under that section)—

Protection of Freedoms Bill
Part 7 — Miscellaneous and general
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(i)
omit “with the consent of the Secretary of State”, and
(ii)
before “services” insert “relevant”, and
(b)
after subsection (4) insert—
“(4A)
In subsection (4) “relevant services” means—
(a)
the provision to the same person of more than one copy
5
of any published material where each of the copies of
the material is either provided on paper, a portable disk
which stores the material electronically or a similar
medium,
(b)
the provision of training, or
10
(c)
the provision of conferences.
(4B)
The Secretary of State may by order amend subsection (4A).
(4C)
An order under subsection (4B) may include such transitional
or saving provision as the Secretary of State considers
appropriate.
15
(4D)
The Secretary of State must consult the Commissioner before
making an order under subsection (4B).”
(4)
In section 82(3)(a) of that Act (orders under the Act subject to negative
procedure) after “4(1)” insert “or 47(4B)”.
98
Removal of Secretary of State approval for staff numbers, terms etc.
20
(1)
Paragraph 4 of Schedule 5 to the Data Protection Act 1998 (appointment of
officers and staff of the Information Commissioner) is amended as follows.
(2)
After sub-paragraph (4) insert—
   “(4A)
In making appointments under this paragraph, the Commissioner
must have regard to the principle of selection on merit on the basis
25
of fair and open competition.”
(3)
Omit sub-paragraph (5) (approval of Secretary of State required for number,
and terms and conditions, of persons to be appointed).
Part 7
Miscellaneous and general
30
Miscellaneous repeals of enactments
99
Repeal of provisions for conducting certain fraud cases without jury
Omit section 43 of the Criminal Justice Act 2003 (applications by prosecution
for certain fraud cases to be conducted without a jury).
100
Removal of restrictions on times for marriage or civil partnership
35
(1)
In the Marriage Act 1949—
(a)
omit section 4 (solemnization of marriages to take place at any time
between 8 a.m. and 6 p.m.), and

Protection of Freedoms Bill
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(b)
omit section 75(1)(a) (offence of solemnizing a marriage outside the
permitted hours).
(2)
In section 16(4) of the Marriage (Registrar General’s Licence) Act 1970
(disapplication of certain provisions of the Act of 1949) for “sections 75(1)(a)
and” substitute “section”.
5
(3)
In section 17(2) of the Civil Partnership Act 2004 (registration as civil partners
under the standard procedure to take place on any day in the applicable period
between 8 a.m. and 6 p.m.)—
(a)
for “on any day in” substitute “at any time during”, and
(b)
omit “between 8 o’clock in the morning and 6 o’clock in the evening”.
10
(4)
Omit section 31(2)(ab) of that Act (offence of officiating at the signing of a civil
partnership schedule outside the permitted hours).
General
101
Consequential amendments, repeals and revocations
(1)
Schedule 7 (consequential amendments) has effect.
15
(2)
The provisions listed in Schedule 8 are repealed or (as the case may be) revoked
to the extent specified.
(3)
The Secretary of State may by order make such provision as the Secretary of
State considers appropriate in consequence of this Act.
(4)
The power to make an order under subsection (3)—
20
(a)
is exercisable by statutory instrument,
(b)
includes power to make 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
(including any Act passed in the same Session as this Act).
25
(5)
Subject to subsection (6), a statutory instrument containing an order under this
section 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.
(6)
A statutory instrument containing an order under this section which neither
amends nor repeals any provision of primary legislation is subject to
30
annulment in pursuance of a resolution of either House of Parliament.
(7)
In this section—
“enactment” includes an Act of the Scottish Parliament, a Measure or Act
of the National Assembly for Wales and Northern Ireland legislation,
“primary legislation” means—
35
(a)
a public general Act,
(b)
an Act of the Scottish Parliament,
(c)
a Measure or Act of the National Assembly for Wales, and
(d)
Northern Ireland legislation.