Protection of Freedoms Bill

The Committee consisted of the following Members:

Chairs: † Martin Caton  , Mr Gary Streeter 

† Baker, Steve (Wycombe) (Con) 

† Blackwood, Nicola (Oxford West and Abingdon) (Con) 

† Brake, Tom (Carshalton and Wallington) (LD) 

† Brokenshire, James (Parliamentary Under-Secretary of State for the Home Department)  

† Buckland, Mr Robert (South Swindon) (Con) 

Chapman, Mrs Jenny (Darlington) (Lab) 

† Chishti, Rehman (Gillingham and Rainham) (Con) 

† Coaker, Vernon (Gedling) (Lab) 

† Efford, Clive (Eltham) (Lab) 

† Ellis, Michael (Northampton North) (Con) 

† Featherstone, Lynne (Minister for Equalities)  

† Johnson, Diana (Kingston upon Hull North) (Lab) 

† Johnson, Gareth (Dartford) (Con) 

Opperman, Guy (Hexham) (Con) 

Robertson, John (Glasgow North West) (Lab) 

† Shannon, Jim (Strangford) (DUP) 

Tami, Mark (Alyn and Deeside) (Lab) 

Watson, Mr Tom (West Bromwich East) (Lab) 

† Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Annette Toft, Rhiannon Hollis, Committee Clerks

† attended the Committee

Public Bill Committee 

Thursday 12 May 2011  

(Afternoon)  

[Martin Caton in the Chair] 

Protection of Freedoms Bill

Clause 88 

Section 86: supplementary 

1 pm 

Question (this day) again proposed, That the clause stand part of the Bill. 

Diana Johnson (Kingston upon Hull North) (Lab):  My concern was about situations where there is information held by the police on their database as evidence of homosexual activity, but no conviction. Is there a mechanism for the information to be deleted, in line with the way that these clauses are designed to assist people who find themselves with convictions that are now, under the changes to the law, to be disregarded? 

The Minister for Equalities (Lynne Featherstone):  For clarity, clause 88 mirrors provisions in the Rehabilitation of Offenders Act 1974. All police information will be removed only for convictions or cautions that are disregarded. If it is not a disregarded conviction, if the police hold non-conviction information that relates to consensual gay sex, the retention of such information is governed by the provisions of the Data Protection Act itself, but where a decision is found in favour of the applicant, all the information goes. 

Diana Johnson:  What does that means with regard to information being held by the police that has not resulted in a conviction? The Minister referred to the Data Protection Act, but I want to be clear as to the actual, practical reality of what that means with regard to the information that is held. 

Lynne Featherstone:  I will come back to the hon. Lady. My understanding is that it is retained, but I need to understand that more fully. Under the Data Protection Act, there is no requirement for it to be deleted. If no disregard is granted by the Secretary of State, nothing has changed in terms of information on the police database. 

Diana Johnson:  I am interested in this point because we know that historically, information has been held around people’s sexuality by police forces and what is deemed to be relevant has varied across the country. Some might think that information on people’s homosexuality should not be on a police database. What could be done about information held by the police on homosexual activity that is not a crime? Is there any way in which that could be removed from the police database? 

Lynne Featherstone:  My understanding is that that is a different question altogether and does not relate to this Bill, which seeks to provide a remedy for offences that are no longer offences and can be deleted, in effect, by the disregard. I understand what the hon. Lady is saying, which is that there can be a mountain of information residing on police computers around the homosexual nature of an individual that has not led to a conviction at any time; but the police can hold information for lawful purposes only if it is adequate, relevant and not kept for longer than necessary. The police can and do alter their records in accordance with the management of police information and individuals can apply to the police to have information deleted from the police national computer, but that is a matter for the discretion of the Chief Police Officer and for the individual, based on whether that information is adequate, relevant and not kept for longer than necessary. It is not in direct correlation to the disregards where the conviction, caution and information is deleted. With that, I ask the Committee to let clause 88 stand part of the Bill. 

Question put and agreed to.  

Clause 88 accordingly ordered to stand part of the Bill.  

Clause 89 

Appeal against refusal to disregard convictions or cautions 

Question proposed, That the clause stand part of the Bill. 

Diana Johnson:  Clause 89 sets up the mechanism for the appeal and we have already had some discussion about the involvement of the High Court in relation to the application and its possible failure. Subsection (1) provides for that right of appeal to the High Court against a decision by the Secretary of State not to grant an application for a relevant conviction or caution to be disregarded. 

Under subsection (2), the High Court cannot hear any new evidence; it must reach a decision based on the evidence that was available to the Secretary of State. If the appeal is granted, the High Court must make an order. The relevant conviction or caution is to be treated as disregarded 14 days after such an order is made. Under subsection (6), there is no further appeal on the High Court decision. 

I do not understand why the High Court will not be able to access any further information that might come to light. If an application is unsuccessful, an applicant might make further inquiries and get together more information. How is the matter helped by not allowing the High Court to consider such new evidence? We discussed how, under clause 84, the Secretary of State may not hold an oral hearing, and the Minister said that there is a right to a review, but that is not clear in the Bill. Why is it not possible to have a safety net that allows the High Court to consider any additional information that has not been picked up before? If it is not possible for new evidence to be heard, will the Minister reconsider our amendments on the right to formalise a review in the Bill? 

As I have mentioned, the High Court is a very expensive form of redress for someone whose application to the Secretary of State has been unsuccessful. I am still

unsure why such matters will go up to the High Court. Has the Minister considered the different courts that might deal with the matter? Why go straight to the High Court? We have referred to the Stonewall amendment, which related to the organisation’s concern about appeals going to the High Court rather than to a lower court. 

Lynne Featherstone:  The hon. Member for Kingston upon Hull North has asked several questions. She seems most concerned about why the appellant cannot submit fresh evidence at the appeal. The purpose of the appeal is to test the Secretary of State’s decision about a particular application and to see whether it is upheld by the High Court; it is not to revisit the facts of the original conviction. The judgment will be on what the Secretary of State has decided given the facts before her. 

We have had a substantial discussion about the applicant’s responsibility to submit full details at the start of the application process. As I have said, new information, or information that was accidentally omitted, can be made available by the applicant during the process, and the Home Secretary will consider it. That may even negate the need to proceed to the High Court, as we discussed. 

In providing for an appeal to the High Court, we have mirrored the provisions in the Sexual Offences Act 2003, which disapplied provisions relating to the sex offenders register in the case of people with a conviction for consensual gay sex. That is one precedent set by the previous Government that we are content to adopt. An appeal considers a decision, which has been made on the basis of evidence, so it examines the rectitude or otherwise of the Secretary of State’s determination. The hon. Lady is worried about the costs of such an appeal. An individual will bring an appeal and will be expected to pay for their own representation in the first instance, but the judgment that is handed down may well give direction on who should bear the final costs. 

The hon. Lady asked why the appeal will be to the High Court and not to a lower one. The appeal would challenge a decision of the Secretary of State and it is appropriate that it be to the same judicial body that hears other appeals relating to administrative decisions of the Secretary of State, for example, in the case of judicial review. The High Court is the appropriate level at which to judge a decision made by a Secretary of State. 

Diana Johnson:  I thank the Minister for setting that out. I am a little surprised, because I thought that the purpose of the provision was to make it as easy as possible for the applicant to put forward their case and to make the process as accessible as possible. However, we seem to be straying into equating it with a judicial review proceeding, which is a serious matter and involves high costs. I am surprised that the applicant cannot make a more measured appeal than by heading off to the High Court. 

Lynne Featherstone:  I hope the hon. Lady understands that we hope and expect that the vast majority of cases will be decided without any problems whatever on first pass. If problems arise at the first stage, that can be dealt with by the applicant submitting more evidence, and if the matter is unclear it can be judged by a panel.

There are several stages before someone might want to take their case to the High Court. If they want to question the decision of the Secretary of State, the High Court is the appropriate place to hear that appeal. 

Rehman Chishti (Gillingham and Rainham) (Con):  Does the Minister agree that, given the importance of such an issue, it is only fair and proper that that decision is made by a High Court judge rather than a lower court judge to show that, in the interests of justice, the applicant has been given a fair hearing? Members of the judiciary at the High Court are some of the best regarded and respected judges. It is right for them to make the final decision, because of their significant position in the judicial hierarchy. 

Lynne Featherstone:  I thank my hon. Friend for reminding us that the issue is not minor. By the time someone wanted to appeal to the High Court, they would wish it to be judged at the highest level, just as the Home Secretary would think that that was the appropriate level at which to judge any of her decisions that had been questioned. The clause provides for the appeals process, and I ask the Committee to agree to it. 

Question put and agreed to.  

Clause 89 accordingly ordered to stand part of the Bill.  

Clause 90 

Advisers 

Question proposed, That the clause stand part of the Bill. 

Diana Johnson:  I have a few questions about the role of the special advisers whom, under the clause, the Secretary of State may appoint to assist her in making decisions. The clause refers to the payment of fees. At what level does the Minister envisage those fees would be? Who exactly will the advisers be? Will she give us examples of those whom the Government think are equipped to be special advisers in such matters? Will they be lawyers or perhaps people from campaigning and pressure groups? Will advisers be able to meet applicants or to hold oral hearings and if not, why not? 

Lynne Featherstone:  The hon. Member for Kingston upon Hull North is persistent in her determination for there to be meetings, but that is not the intention. The panel will use its judgment to provide advice to the Secretary of State. It will provide an independent opinion on a case, and it will be limited to the information available. 

On fees, subsection (3) provides that only expenses and allowances will be paid. The allowance level will be at standard civil service rates. The panel members will not be paid a salary. We expect to appoint a panel of three, consisting of a senior police officer, a member of the judiciary and a representative from one of the relevant interest groups. We have not as yet determined the process for appointing them, and at this stage we do not know how many cases will need to be referred to the panel or how often it will meet. Those matters will be determined by the number of applications submitted. 

The final decision will always be taken by the Secretary of State, but the panel will advise her should that be necessary. As we discussed earlier, that will be in cases where the details of the offence are not entirely clear or where there are significant differences between the information in the individual’s application and that held by the police. We do not envisage that advisers will listen to oral hearings, but I commend the hon. Lady for her perseverance in pressing for those hearings. 

Question put and agreed to.  

Clause 90 accordingly ordered to stand part of the Bill.  

Clause 91 ordered to stand part of the Bill.  

Clause 92 

Release and publication of datasets held by public authorities 

Lynne Featherstone:  I beg to move amendment 213, in clause 92, page 74, leave out lines 32 to 37. 

The Chair:  With this it will be convenient to discuss Government amendments 214 to 222. 

1.15 pm 

Lynne Featherstone:  We now come to the part of the Bill on datasets, freedom of information and the Information Commissioner. At Second Reading, my right hon. Friend the Home Secretary said that we would look again at the provisions in clause 92, in consultation with the House authorities, to ensure that parliamentary copyright is properly safeguarded. I am bringing forward the amendments in line with that commitment. They have been discussed and agreed with the House authorities. 

New section 11A of the Freedom of Information Act 2000, which would be inserted by clause 92, currently requires public authorities, including the House of Commons and the House of Lords, to make datasets available for reuse, in accordance with the terms of a licence specified by the Secretary of State in a code of practice under section 45 of the 2000 Act. Amendment 217 exempts Parliament from this requirement. As a point of constitutional principle, it would not be appropriate to make Parliament subject to direction by the Secretary of State, as the new section 11 would in effect do, although Parliament would still be required to provide the information, as far as reasonably practicable, in a format that is capable of reuse. Amendment 222 replicates this change by exempting relevant parliamentary works from the same requirement, when considering whether to publish a dataset on their publication scheme, to make datasets available for reuse under the terms of a licence specified by the Secretary of State. 

Works in which the Crown is the copyright or database-right owner have also been excluded from the requirement to make datasets available for reuse under the terms of a licence specified by the Secretary of State. The controller of |Her Majesty’s Stationery Office, who is appointed by letters patent from the Queen to manage the Crown copyright and database right, already has the authority to require these works to be made available for reuse, under the terms of a licence which Her Majesty prescribes. In considering the main amendments to provide for the

handling of relevant parliamentary copyright or database material, a gap has been identified in respect of copyright and database right which is owned by the Crown but which would not be covered by the current definition of Crown copyright or Crown database right. That gap would occur in an instance when, for example, a work or database is owned by the Crown by virtue of rights assigned by a third party such as a contractor. 

Amendments 213, 215, 216, 218, 220 and 221 address that gap and make equivalent provision for Parliament by removing the existing definitions and references to “Crown copyright”, “Crown database right”, and “Parliamentary copyright” of “relevant copyright work”. A complete definition of relevant Crown and parliamentary works to reflect the policy is provided in amendments 217 and 222. In drafting the amendments we have noticed some inconsistency of language and have therefore taken the opportunity through amendments 214 and 219 of tidying up the language. I commend the amendments. 

Vernon Coaker (Gedling) (Lab):  Good afternoon to you, Mr. Caton, and to the Committee. May I indulge the Committee for one moment? It would be remiss not to congratulate the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup, on his new post on crime and security. I am sure he will do very well. I hope that he enjoys it—though not too much—and does well at it. 

I am not going to say that we should vote against, or argue in great detail about, the Minister’s amendments, but to be frank, they are extremely difficult to understand. There have been negotiations between the Department and Parliament about Crown copyright and so on. Can the Minister provide an assurance that we will not undermine the ability of individuals or groups to access information? Clearly, the Government included the original provision because they were determined to extend and develop the Data Protection Act and the role of the Information Commissioner. There is obviously a concern, therefore, that some information that would have been made available may no longer be accessible. 

What the Minister has just said is very technical. Are there things that previously could have been released, which now cannot be released? In other words, have we tightened the system in a way that is not immediately obvious? I am not saying that there was anything wrong with what the Minister said, but it was very technical. Are we achieving our objective of trying to give people access as appropriate? Does the Minister have any examples? Will the system remain exactly the same, or will things that could have been made available under the original proposals now not be accessible with the amendments? 

Lynne Featherstone:  I thank the hon. Gentleman for highlighting the issue, which is very technical. I can assure him that both the House of Commons and the House of Lords are supportive of the transparency agenda. This is not in any way to circumvent or inhibit; it is simply a matter of having identified that, for example, Parliament cannot be instructed by the Secretary of State. We will address the issue in more detail during the clause stand part debate. What is covered is covered in different ways for the Crown copyright; it is covered in different ways for Parliament. This is extending it. 

Vernon Coaker:  Under the Government’s amendments, is there a greater restriction on the ability to release information to individuals or groups than there was under the original provisions? That is the crucial point. I understand the point about protecting copyright, but I am trying to understand whether the proposals narrow the availability of informational datasets to those who wish to access them or to have them released. 

Lynne Featherstone:  My understanding is that it is already covered. There is no difference, as far as I am aware, or desire to restrict. The reason why we are redefining the provision simply relates to the copyright issue. It is not in any way intended to restrict the amount of information that can or should be made available. 

Vernon Coaker:  So the Minister is saying that it makes no difference; it is just a tidying-up exercise in relation to Crown copyright. I think that people would be interested to know whether the new proposals narrow what could have been made available under the original proposals. There might be a good reason for narrowing it, but I am trying to understand whether we are narrowing people’s ability to access information, or whether it is a tidying-up exercise to protect copyright. 

I absolutely understand the point about the Secretary of State not being able to direct Parliament. That is a good point, but I think that people would like to know whether the amendments restrict or narrow the ability under the original proposals to access some of the datasets. 

Lynne Featherstone:  Only to the extent that we are removing parliamentary works from the new duties. That means that we are, possibly, narrowing availability in relation to such issues. If that is not clear, I will return to the point again, but that is my understanding at the moment. 

Amendment 213 agreed to.  

Amendments made: 214, in clause 92, page 74, line 44, leave out ‘a’ and insert ‘the’. 

Amendment 215, in clause 92, page 74, leave out lines 45 and 46. 

Amendment 216, in clause 92, page 74, line 49, leave out from beginning to ‘or’. 

Amendment 217, in clause 92, page 75, line 2, leave out from first ‘a’ to end of line 3 and insert ‘relevant Crown work or a relevant Parliamentary work; 

“relevant Crown work” means—

(a) a copyright work in relation to which the Crown is the copyright owner, or

(b) a database in relation to which the Crown is the owner of the database right;

“relevant Parliamentary work” means—

(c) a copyright work in relation to which the House of Commons or the House of Lords is the copyright owner, or

(d) a database in relation to which the House of Commons or the House of Lords is the owner of the database right;’.

Amendment 218, in clause 92, page 75, leave out lines 35 to 41. 

Amendment 219, in clause 92, page 75, line 49, leave out ‘a’ and insert ‘the’. 

Amendment 220, in clause 92, page 76, leave out lines 1 and 2. 

Amendment 221, in clause 92, page 76, line 5, leave out from beginning to ‘or’ in line 6. 

Amendment 222, in clause 92, page 76, line 8, leave out from ‘a’ to end of line 9 and insert ‘relevant Crown work or a relevant Parliamentary work; 

“relevant Crown work” means—

(e) a copyright work in relation to which the Crown is the copyright owner, or

(f) a database in relation to which the Crown is the owner of the database right;

“relevant Parliamentary work” means—

(g) a copyright work in relation to which the House of Commons or the House of Lords is the copyright owner, or

(h) a database in relation to which the House of Commons or the House of Lords is the owner of the database right;’.—(Lynne Featherstone.)

Question proposed, That the clause, as amended, stand part of the Bill. 

Vernon Coaker:  A lot of these changes are quite technical, but regarding the Government’s direction of travel I think that they are trying to build on a very important Act under the last Government, the Data Protection Act 1998, which established the Information Commissioner. That was a very good reform, and the Government are trying to build on it in the Bill. 

Perhaps at some point the Minister might want to clarify these technical changes, because I am not sure what narrowing the definition of “Parliamentary work” means, in relation to what could have been made available before and what cannot now be made available. That seems fine, but somewhere down the road we might find that there is some huge thing. But if not, not. 

We broadly welcome many, if not all, of the provisions in clauses 92 to 98. I only have questions about the detail in some of the clauses, which I would be grateful if the Minister could answer for the benefit of the Committee, and indeed those outside who follow our proceedings. 

First, the datasets under clause 92 that must be provided obviously now have to be provided in electronic form. People can still get them as hard copy, but on request they can get them in electronic form. However, there is no absolute requirement that they can get the datasets in electronic form. I understand the amount of resources that would be used to put the information into electronic form—I understand all that—but where will the line be drawn? Given that there is no absolute requirement, can the Minister say how we will ensure that we can put the information in a reusable form or in electronic copy that could be made available to people, and that there would not be a bit of a loophole in the legislation? It would be helpful if the Minister could say something about that issue. 

What is the purpose in defining datasets to which the Freedom of Information Act 2000 applies? New subsection (5)(b)(i) of the Act refers to datasets and information that 

“is not the product of analysis or interpretation other than calculation”. 

In other words, there is a dataset but if it is analysed or interpreted and then changed, it appears that it cannot be released to the public. Why is that the case? How does new subsection (5)(b)(i) relate to new subsection (5)(c)? They seem to almost duplicate each other. 

Furthermore, can the Minister tell the Committee why datasets that have been interpreted or analysed are automatically excluded from the terms of the 2000 Act? I do not quite understand why that is the case. I will use the example that was given to the Committee by the Campaign for Freedom of Information, which makes the point much better than I can: 

“Suppose an authority holds a dataset on road traffic accidents, and suppose that it later adapts that dataset to show whether road calming measures have helped reduce accidents. The improved dataset”— 

a dataset that has obviously been analysed or interpreted— 

“might then show which accidents occurred on roads with particular types of traffic calming measures, and whether those measures had been properly implemented. The decision on whether a calming measure had been properly implemented would involve ‘analysis or interpretation’ which, under paragraph 5(b)(i), would exclude the information from the definition of dataset”, 

because it has been analysed or interpreted. I do not think we would want to exclude that type of information. It goes on: 

“The newly added data would mean that the presentation of the information would have been ‘organised, adapted or otherwise materially altered’ since it was originally recorded.” 

That would exclude the information not only under paragraph 5(b)(i), but under paragraph 5(c) as well. For the life of me, I cannot see why any of us would want to exclude a dataset that had been changed in that way, but as I read the provisions, under the terms of the Bill that type of dataset is not covered and could be excluded. That seems a bit strange. 

1.30 pm 

Subsection (4) talks about a publication scheme. It states that the public authority must publish 

“unless the authority is satisfied that it is not appropriate for the dataset to be published”. 

Will the Minister consider how wide that draft is and reflect on it, rather than saying that I am definitely right or that she is definitely right? Saying that it is “not appropriate” is a significantly wide drafting of the Bill, which gives a lot of leeway to any authority. Will the Minister have a look at that? I know she will say that there are all sorts of other things that mean that the authority has to do it under this bit of this Act and that bit of that Act, but I do not think the Minister would want the legislation to be drawn so widely that we can say to someone, “If you don’t think it is appropriate, you don’t have to draft it or publish it.” 

Why should there be a general presumption to publish datasets, regardless of whether a request has been made? Under the Freedom of Information Act 2000, a request has to be made. 

One of the submissions to the Committee, which was detailed, made an important point on how the clause was drafted: 

“It is also important the regime for accessing Environmental Information, the Environmental Information Regulations 2004, also benefits from the changes proposed in clause 92. The Commissioner considers that this is important as access to environmental information is a matter of significant public interest and these rights should not fall behind other rights. The INPSIRE Regulations, passed in 2009 do implement some obligations for public authorities to publish environmental information but not comprehensively. The Commissioner acknowledges there could

be some difficulty in aligning these two environmental regimes with the changes proposed in the Bill, as the two regimes are derived from European Directives.” 

The Information Commissioner is concerned about how clause 92 is drafted and how it relates to the 2004 regulations. Will the Minister say something about that? Will she explain the position of official statistics? I do not think there is blanket exclusion, but can she explain the position on access to and availability of official Government statistics? 

Finally, subsection 5(c) states 

“in subsection (3) for “The code” substitute “Any code under this section”. 

I understand that there is one code of practice with respect to the whole area. That seems to imply that there could be multiple codes of practice; is that what it means? We could have a code of practice for each public authority that is required to publish datasets, so there would be a significant number of codes. That would be confusing. Would it not be better, unless I have misunderstood subsection 5(c), to continue with one code of practice, and amend or adapt it? Why would we want lots of different codes of practice? I do not understand what that part of the Bill means. 

The Freedom of Information Act has been a positive and helpful step forward. There are always concerns about what is retained and not released, and so on, but the Information Commissioner is there to act, at times, as a referee. However, the devil is in the detail. Could the Minister answer my questions and give the Committee any other information that would help us to better understand how clause 92 works? 

Tom Brake (Carshalton and Wallington) (LD):  I congratulate the hon. Member for Old Bexley and Sidcup for his new responsibilities in an essential role. We are all confident that he will take on those responsibilities with great diligence. I do not doubt that. 

I start by briefly thanking Maurice Frankel, the director of the Campaign for Freedom of Information, with whom I have worked for a number of years. Thanks to his support I have presented to the House two ten-minute rule Bills relating to freedom of information. I will go over some of the ground that has already been covered, and perhaps the hon. Member for Gedling and I will between us be able to present a clear picture of the clarification we seek. The Minister may feel it appropriate to respond by writing to the Committee, because these are detailed proposals. She, or her officials, will have seen a copy of the information from Mr Frankel that might facilitate her response. 

The first point that I wanted to pick up was on the definition of datasets. The concern of the Campaign for Freedom of Information is that a slight change to a dataset or the processing performed on it would convert its status so that it was no longer available. I hope that the Minister will reassure us that it will not be possible to circumvent the requirements simply by concocting a minor change to a dataset that means that it cannot be released. 

The CFI highlights its belief that, in terms of copyright, all information should be released under the Act, unless the authority currently receives income from licensing the reuse of the information or has taken steps to enhance its commercial value. The drive of the CFI is to

ensure that no policy documents or information about an authority’s performance or decisions should normally be restricted on copyright grounds. Clearly, other factors will have to be taken into account, such as commercial confidentiality or data protection, but I hope that the Minister will respond to that point now, or later in writing. 

The hon. Member for Gedling referred to the format in which information will be provided. The Campaign for Freedom of Information hopes that it will be possible to ensure that documents are provided not only in hard copy but as photocopies of the original, if people request them. I assume that its concern is that if the document is provided as a print-out or a re-typed version, it might be possible to change it in some respect, whereas if a photocopy of the original is provided that cannot happen. 

The clause is about the release and publication of datasets; it does not cover the offence of deliberately shredding or altering data. Although that is not the subject of the clause, I hope that the Government will consider whether any changes need to be made to the length of time for proceedings, for instance, for the offence of shredding a dataset whose disclosure was required under FOI. Could such proceedings be extended longer than six months? Two or three years are suggested, which would be comparable with other offences. 

There is a constant problem about how quickly datasets or other types of information are released under FOI requests. Now or later, the Government might want to consider introducing a fixed time limit for responding to such requests. A matter that is completely outside the scope of the clause, although I will mention it briefly, is Ministers’ right to exercise a veto. As long as that right is maintained, there will always be a question mark over whether we have full freedom of information. A Minister can ultimately decide that in his or her view that information, although it has been cleared by the commissioner, should not be released into the public domain. 

My final point has a bearing on the NHS proposals for freedom of information and involves the impact of commissioning arrangements. Again, that is not the subject of the clause, but I am sure that the Minister will want to consider, perhaps in an amendment to this or a future Bill, how freedom of information will apply to GP commissioning, so that people can be confident of access to pertinent information about the public sector money being spent. 

Mr Caton, you have been generous in allowing me to stray slightly beyond the scope of the clause. I understand that some of my points are quite technical, so if the Minister cannot respond now, I am sure that Members will be content for her to respond later in writing. 

Lynne Featherstone:  There is a smorgasbord of points to answer. The effect of the Government amendments just agreed by the Committee is to narrow the scope of the provisions in the clause to the extent that datasets subject to parliamentary copyright will no longer be covered. However, it is likely that the House of Commons and the House of Lords will wish to comply with the spirit of the provisions on a non-statutory basis. 

I would like it to ring out loud and clear for the record that the purpose and intent, as understood by all parties, is to make raw data and information—datasets,

which I will define further in a minute—available to the public in a reusable form, both when requested, and to encourage public and local authorities to use the legislation proactively in order to be open information sources for everyone. I put that on the record for the avoidance of doubt. 

Both the hon. Member for Gedling and my hon. Friend the Member for Carshalton and Wallington asked whether the definition of datasets excludes basic organisation of the information in a dataset, such as sorting alphabetically or merging two documents. We accept that the information in many datasets may have undergone some reorganisation or change in presentation; I am talking about the minor amendments that my hon. Friend was concerned might lead to a wrong use of subsection (5)(c). The objective and intent for a change is that it is not significant or substantive, such that it still constitutes the factual source data or raw data, un-manipulated in form. The policy is that such datasets are still covered by the definition. Such minor alterations, which are not significant or substantive but involve just a reorganisation or change in how the information is presented, are still covered by the definition of “dataset”, which is a subset of “information” under freedom of information legislation. 

Tom Brake:  The Minister will know that, behind her, are normally many members of the lawyer community. Like my hon. Friend the Member for Wycombe, I used to be a member of the pointy-headed community. I think it was the hon. Member for Gedling who described people who worked in the IT industry as pointy-heads—[ Interruption. ] Well, it was a member of the Opposition who said it. 

Vernon Coaker:  I would have been ruder than that. 

1.45 pm 

Clive Efford (Eltham) (Lab):  I rest my case. 

Tom Brake:  In that capacity, I am aware that a raw dataset can be presented as literally a series of zeros and ones or a computer dump from which nothing will be intelligible. Does the Minister think that there are significant safeguards to ensure that authorities do not go down the route of providing something that is completely unintelligible, which they could argue was a raw dataset, rather than taking the first step of presenting it in a way that is of use to the person seeking the information? 

Lynne Featherstone:  I thank my hon. Friend, but I am not from the pointy-headed brigade. I want it to be clear that the intention is not for a public authority to publish gobbledegook as a way of getting out of publishing intelligent, usable and reusable raw data that will be of use to the person who has requested it or for general publication, because that is the purpose in adapting the Freedom of Information Act. Organised and adapted in such a context means that the information must have been materially organised or materially adapted for the information not to constitute a dataset. 

Vernon Coaker:  In all honesty, the Minister needs to look at how the clause is drafted. It does not say that. I am not making a point of difference or a point of

principle, nor am I angry about the matter and think that it is a disgrace. I agree with the hon. Member for Carshalton and Wallington. If the hon. Lady reads subsection (5)(b) and (c)— 

Lynne Featherstone:  I did. 

Vernon Coaker:  I know that the hon. Lady has just read out subsection (5)(c). Such provisions are a lawyer’s paradise. In calmer times, she must just check whether the clause needs to be looked at again or materially altered. I am not a lawyer, so we will no doubt have a row about the meaning of “materially”. She might want to reflect on such matters and change them. 

Lynne Featherstone:  I hear what the hon. Gentleman is saying about the concerns that the drafting of the clause does not match its intention. I am happy to have a look at it. My understanding is that the clause does say what I intend it to say, but I take such the advice in the spirit in which it was offered and will have a second look at it. I definitely would not wish to give the lawyers a feast. 

I shall define further the meaning of a dataset. It is source data, raw data or un-manipulated data that does not include records held on paper or hard files, such as files that pre-date computer systems. Official statistics are excluded from the definition of dataset, but I shall elucidate on that. The hon. Member for Gedling said that the provisions were widely drafted, and asked whether there was a presumption in favour of publication. The provisions require all public authorities under the Freedom of Information Act not only to release datasets, but to make them available for reuse and, where reasonably practicable, in a reusable format. 

Vernon Coaker:  I will be accused of being a pointy-head for other reasons in a minute, but clause 92(4)(a) states that a publication scheme must, in particular, include a requirement for the public authority concerned to publish, 

“unless the authority is satisfied that it is not appropriate for the dataset to be published”. 

To use the words “is not appropriate” makes the provision incredibly wide. The hon. Lady might say that she totally disagrees with what I have said, and that the provision is not widely drawn at all. I think that it is. It is a drafting point; it is not a point of principle. When the words “is not appropriate” are included, people will argue about their meaning. It is a get-out for people. If an authority does not wish to publish, it can say, “It is not appropriate for us to publish”. 

Lynne Featherstone:  I hear what the hon. Gentleman is saying, but I imagine that it is an interpretation in law. He is right in that there is an opportunity, if that is how he is framing this, in the words, 

“unless the authority is satisfied that it is not appropriate for the dataset to be published”. 

Clearly, that is not meant to be a get-out clause for authorities not to publish. The presumption and the message going out is that everything that can be published, should be published, but I will take that away and have a look at it. Just recently coming into my hands is the

fact that the meaning of “not appropriate” will be set out in the code of practice, that it will only apply where there is good reason not to publish, and that good reason will not be because the public authority does not wish to publish or would be embarrassed to publish. The code of practice will define what is “not appropriate” and it is statutory. 

Vernon Coaker:  My understanding is that the code of practice is statutory. If the Minister said that, it would be extremely helpful. 

Lynne Featherstone:  I did just say that. It is good that that point has been raised because it gets it on to the record with clarity. It is not put in terms of a presumption, but it is quite clear that the expectation is that a public authority will publish raw data in the forms that we have discussed. These changes support the commitment to open up Government to greater scrutiny, allow the public to hold us to account, help to deliver better value for money in public spending and bring significant social and economic benefits by enabling businesses, non-profit organisations and others to exploit Government datasets for social and commercial purposes. 

I was asked by my hon. Friend the Member for Carshalton and Wallington, around the submission in evidence, why we were not changing environmental information regulations as well. The Government consider that the environmental information regulations implement Council directive 2003/4/EC on public access to environmental information. No changes to the regulations are currently being considered. The environmental information regulations already require environmental information datasets to be proactively disseminated to the public, so there was no need for us to cover the same ground. 

On another issue of definition raised by the hon. Member for Gedling, we will provide guidance on what “reasonably practicable” and what “reusable format” mean in the code of practice which will be issued under the Freedom of Information Act. I was asked, do we intend to issue a number of codes; that is not the intention. If we want a code, there are some changes to the code, but one will suffice. There will be one code and that is certainly our intention. 

Other matters will also be covered in the code of practice issued under section 45 of the FOI Act. The code will be revised to provide guidance for public authorities on the meaning of datasets and making datasets available for reuse so that public authorities are clear on the scope of their duties; and on the terms and conditions of the specified licences for making datasets available for reuse, which will be the licences prescribed by the controller of Her Majesty’s Stationery Office—this is so we do not get a multiplicity of different licences. There will be one or two authorised, which will enable a consistency across all the local authorities that will be publishing this data, so we do not get a hotch-potch of different licensing. 

The code will also provide guidance for public authorities on the release and publication of datasets in an electronic form which is in a reuseable format; on other matters relating to the making of datasets available for reuse; and on standards applicable to public authorities in connection with the release or publication of datasets. 

My hon. Friend the Member for Carshalton and Wallington asked why the changes will apply only to datasets and not to all information covered by the FOI Act. The Government recognise, and a number of reports have argued, that great value is locked into information that is held by public authorities, which can be realised through its reuse. Particular benefit is to be gained from making datasets available for reuse, because they can be organised, interrogated and manipulated in creative and innovative ways. I believe that matter is coming up in discussion in a Select Committee shortly, when a range of freedom of information issues will be investigated. 

In answer to why not photocopies or documents, the Freedom of Information Act provides a right to information, rather than to documents per se. Section 11 of the Act allows requesters to specify which form they would prefer and the public authority should, as far as is reasonably practicable, give effect to that preference. In most cases, public authorities will provide the information in the form that has been requested. I understand the distinction between a photocopy of an original document and a reprinted one. The request, however, has to be for what is reasonably practicable and it might not be reasonably practicable for such photocopies to be made, but that will be for the authority to decide. 

Many of the points that were made by my hon. Friend the Member for Carshalton and Wallington in the latter stages of his argument fall outside the remit of the clause. However, to reiterate, he will be aware that we announced in January our intention to undertake post-legislative scrutiny of the Freedom of Information Act by a Select Committee. Such scrutiny will consider how well the Act is working in practice and whether further changes should be made. The questions that have been asked today may well be ones that the Select Committee wants to consider. I think I have answered the points. 

Question put and agreed to.  

Clause 92, as amended, accordingly ordered to stand part of the Bill.  

Clause 93 

Meaning of “publicly-owned company” 

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  That was a helpful clarification of some of the points. The issues are not ones of principle between us; they are matters of clarification. 

Clause 93 makes a good change in widening the definition and meaning of a publicly owned company. However, I need the Minister to clarify the drafting. Subsection (2)(b) amends section 6(1) of the Freedom of Information Act 2000; in paragraph (b), the words from “any public authority” to “particular information” will be substituted by “the wider public sector”. I am not clear what “the wider public sector” means—apart from the obvious. Presumably, a public sector was covered, but now more of it is covered, because we have changed the definition, but that also implies that some of the sector will be left out, otherwise the clause would state, “all the public sector.” Can the Minister explain what that means and the purpose of the change? Some clarification of the term “wider public sector” would be helpful for the Committee and for me. 

Tom Brake:  I may be able to help the hon. Gentleman. Companies with a public authority owning a majority of its shares, but a private company owning a minority will not be covered by the measure; they are excluded. If the Government are unwilling to take the matter on board in an amendment, the Select Committee may want to consider it. Many people think that if a public authority owns the majority of shares in a company it is appropriate for that company to be covered by FOI. 

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Many people think that an organisation such as Network Rail, which receives all its funding from the public sector and is not within the scope of the FOI Act, should be brought within it. To give an illustration of why I agree, Network Rail has been asked for information on the number of trains that arrive on time, as we understand that phrase—within one minute, rather than within five minutes, which is its definition of being on time—but even though the company has that information, it has refused to provide it to Members of Parliament and others. As a body that receives all its funds from the public sector, Network Rail should be covered by the FOI Act, but currently it is not. The Government are aware of the issue, but they have not yet responded. When the Select Committee considers the FOI Act, I hope that it will agree that Network Rail should be brought within its scope. 

Lynne Featherstone:  My hon. Friend asks why the changes to the FOI Act do not go further. I am aware of the calls to extend the provision to companies in which the Crown or the wider public sector owns the majority of shares, but we believe that that would create uncertainty about which bodies are subject to the Act, particularly as bodies whose shares are transferred may regularly pass in and out of its scope. Should there be a strong argument for including a specific body, there remain other means of including it, such as the order-making power in section 5 of the FOI Act. 

On Network Rail, I reassure my hon. Friend that we are committed to transparency across the board and to making it more accountable to its customers. A great many people throughout the country would like the company to be accountable in the way he has described. There is a strong case for its inclusion in the FOI Act, but the Department for Transport is currently reviewing the structures and accountability of the rail industry, so we will wait until the structure of Network Rail is determined before considering whether to include it within the scope of the Act. 

Vernon Coaker:  The point that the hon. Member for Carshalton and Wallington and I made is that people will not know what is meant by the “wider public sector.” They will not know which public bodies or companies are covered by the Act and which are not. The Minister needs to look at that, because clearly the Act will not cover all such bodies, and people will not understand why that is so. 

Lynne Featherstone:  I understand the concern raised by the hon. Gentleman. The drafting is necessary because of the range of ownership scenarios. They are explained in the clause, which will amend section 6 of the FOI Act. The term “wider public sector” has no independent meaning; it is used only as part of the expressions, 

“wholly owned by the wider public sector”, 

as defined in new subsection (2)(b), and 

“wholly owned by the Crown and the wider public sector”, 

as defined in new subsection (2)(c), so there is no need for a separate definition. 

On the question about why we are including only bodies wholly owned by public authorities and not those in which a public authority holds a majority of the shares, we considered that option but concluded that it would create uncertainty over which bodies are subject to the FOI Act, particularly as they can go in and out of it. As we progress through the Bill, we will revisit the issues about wholly and partly owned companies in the public sector, and the meaning of such terms. As I said, the provisions are a means of bringing companies, which can be examined on their merits case by case, into the scope of the Act. That means that, as far as possible, bodies, organisations and companies that fund or exercise a public function, which may have a variety of ownerships, may be brought under the Freedom of Information Act. 

Tom Brake:  I welcome the fact that the provision will be kept under review. One of the logical consequences of the coalition Government’s desire for local authorities and others to outsource many of their back office functions, for example, by handing them over to organisations that might be more efficient at running them, will be greater diversity among the companies and organisations providing public services. 

I stress that those companies will be providing public services, so the Government should keep the provision under review. If there is a wider movement towards having more companies in which the public sector is a majority shareholder and the private company is a minority shareholder, perhaps the matter can be looked at again. Such companies may need to be brought more specifically within the remit of the Act. 

Lynne Featherstone:  For some time Members on both sides of the House have been raising the issue of how we commission in this country. I did not mention my hon. Friend’s reference to commissioning, which is outside the scope of the clause, but there is a subset of instances when public money is spent through mechanisms other than what were recognised in the old days as publicly owned companies. There are specific circumstances in which such organisations will be brought into the FOI circumference, but that debate will go on for some time. 

Currently, section 6 of the Freedom of Information Act covers only companies that are wholly owned by the Crown or by a single public authority listed, with limited exceptions. I am grateful to the Opposition for supporting this part of the measure in principle. 

Given the debate we have had, I want to put this on the record for clarity. Companies that are wholly owned by more than one public authority, or by the Crown and one or more of the schedule 1 public authorities, are not currently subject to the Freedom of Information Act. As we have discussed, it should not matter whether a company is wholly owned by one public authority or by more than one public authority. All such companies should be equally accountable and should, therefore, be subject to the Act. 

Clause 93 rectifies that anomaly by amending section 6 of the Freedom of Information Act to widen the definition of a publicly owned company. In effect, the Act will be extended to companies wholly owned by the wider public sector. Companies wholly owned by any combination of public authorities subject to the Act, with limited exceptions, or by one or more of those bodies and the Crown, will be brought within its scope. 

In his oral evidence the Information Commissioner told us that 

“it is welcome…if a company owned by more than one local authority is brought within freedom of information… The whole logic of back-office shared services is that a number of authorities will be using a particular vehicle.”––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 101, Q296.] 

I recall that the hon. Member for Gedling agreed that the change was welcome. 

The only exceptions to the change will be when one or more of the relevant public authorities is subject to the Freedom of Information Act only in respect of some of the information it holds, or when that public authority has been brought within the scope of the Act by designation under an order under section 5. The impact of those exceptions is likely to be negligible. 

We expect that the amendment to section 6 will extend the Act to in excess of 100 additional organisations. They will include, for example, waste disposal companies, with which I am sure we all are familiar, and purchasing organisations wholly owned by more than one local authority. 

The clause, together with secondary legislation under section 5 of the Freedom of Information Act to extend its provisions to a range of bodies performing functions of a public nature, will help meet the Government’s commitment to extend the scope of the Act and to provide greater transparency. 

Question put and agreed to.  

Clause 93 accordingly ordered to stand part of the Bill.  

Clause 94 

Extension of certain provisions to Northern Ireland bodies 

Question proposed, That the clause stand part of the Bill. 

Jim Shannon (Strangford) (DUP):  I want to ask a couple of quick questions about the clause. In Northern Ireland we have a love for the royal family and everything to do with them, to such an extent that the Republic of Ireland has extended an invitation for the Queen to visit the Republic of Ireland. It is good news that we are moving that way. 

On clause 94, however, which is the reason why we are here, rather than for me to make those comments, what is the necessity for the change? Does it bring us in line with the whole of the United Kingdom? Is the extension still for 30 years? 

Lynne Featherstone:  The clause extends the freedom of information provisions in the Constitutional Reform and Governance Act 2010 to Northern Ireland bodies. Currently, section 80A of the Freedom of Information Act 2000, which was inserted by paragraph 6 of schedule 7 to the 2010 Act, excludes Northern Ireland bodies from those provisions. The Northern Ireland Administration

have asked us to introduce these changes for Northern Ireland bodies. Clause 94 will repeal both section 80A of the 2000 Act and paragraph 6 of schedule 7 to the 2010 Act, which will mean that the reduction in the maximum duration of certain exemptions in the 2000 Act from 30 years to 20 years will, once commenced, apply to Northern Ireland bodies, as well as to bodies in England and Wales. The clause provides for transitional arrangements for the reduction to the maximum duration of exemptions under the 2000 Act for Northern Ireland bodies, in line with that already provided in England and Wales. 

In addition—the hon. Gentleman asked about this—clause 94 provides that the increased protection for certain information relating to communications with the royal family and household will also apply to material held by Northern Ireland bodies. 

Question put and agreed to.  

Clause 94 accordingly ordered to stand part of the Bill.  

Clause 95 

Appointment and tenure of Information Commissioner 

Lynne Featherstone:  I beg to move amendment 150, in clause 95, page 78, line 9, at end insert— 

‘( ) In paragraph 2(1) of Schedule 5 to the Data Protection Act 1998 (maximum term of appointment for the Information Commissioner) for “five years” substitute “seven years”.’.

The Chair:  With this it will be convenient to discuss Government amendment 151. 

Lynne Featherstone:  The clause amends the rules governing the appointment and tenure of the Information Commissioner in a number of different ways, including the introduction of a single term of office without the possibility of reappointment. 

With amendments 150 and 151, the Government want to increase the length of the single period of office from five to seven years. Both the Information Commissioner and the Campaign for Freedom of Information have welcomed the move to a single term of office. [ Interruption. ] Did I say something to cause hon. Members to leave the room? 

In oral evidence to the Committee, the Campaign for Freedom of Information suggested that a five-year term might be too short to allow the commissioner to be fully effective and could limit the field of applicants for the role. We have looked again at that point in the light of the concerns that were raised. The Government’s initial decision to propose a five-year term was finely balanced in any case. Equally, we accept that there is a case for a slightly longer term. 

When assessing the length of time a Commissioner might serve, the Public Administration Committee report, “Ethics and Standards: The Regulation of Conduct in Public Life”, recommended that appointments of this type should be for a non-renewable period of between five and seven years. The Tiner review of the post of Comptroller and Auditor General also stated that it was important that the period of appointment should not be so long that a figure becomes too personally associated with the role, but long enough for the individual to become established and accustomed to the role. 

Lengthening the term that the Information Commissioner serves to seven years is an appropriate response to the concerns expressed to the Committee, balanced against the points made by the Public Administration Committee and the Tiner review. Additionally, a seven-year term is consistent with similar appointments such as the Parliamentary and Health Service Ombudsman, who is also appointed for a single, non-renewable term of up to seven years. 

Amendment 150 agreed to.  

Amendment made: 151, in clause 95, page 78, line 10, leave out from first ‘of’ to ‘(removal’ and insert ‘that Schedule to that Act’.—(Lynne Featherstone.)  

Question proposed, That the clause, as amended, stand part of the Bill. 

2.15 pm 

Vernon Coaker:  I think it was sensible to extend the tenure of the Information Commissioner from five to seven years, and the evidence that was given to the Government and the Committee to support that change was compelling. The Government are clearly trying to strengthen the Freedom of Information Act 2000 by trying to make more information applicable under the terms of the Act. The clause is an attempt to strengthen the independence of the commissioner, which is absolutely fundamental to how freedom of information works. There will always be a debate about what that actually means. The perennial debate that Ministers will have is that everybody wants all these bodies and commissioners to be independent, but if anything goes wrong they will ask what the Government are doing about it. That will happen at some point, but that is not to say that we should not try to ensure that the commissioner and others are as independent as possible. 

A couple of parallel things are going on. My understanding—the Minister will correct me if I am wrong—is that a framework document is being discussed alongside the Bill, which relates to the Information Commissioner, the Information Commissioner’s Office and the Ministry of Justice. It is difficult to discuss these clauses without the Minister saying something about that process; what is actually going on and how does the legislation fit with that? The Information Commissioner is a Secretary of State appointment. Do the Government intend to move from the Information Commissioner’s Office being accountable to the Ministry of Justice and make it accountable to Parliament instead? That is quite a significant change. 

Alongside that, we have the question whether the Information Commissioner should be subject to a pre-appointment hearing. Some similar appointments are subject to pre-appointment scrutiny and hearings, and others are not. Why have the Government decided not to state in the Bill that a new Information Commissioner should be subject to a pre-appointment hearing? The Minister will no doubt say that it is the Government’s expectation that that will happen, but I wonder why the Government choose in some instances to do that and in others not to. 

The House of Commons research paper mentions clauses 95 to 98 as a body, stating that they 

“do not offer the Information Commissioner independence in terms of the budget for the office, and there is likely to be further pressure to achieve this during the passage of this Bill.” 

Maybe the hon. Member for Carshalton and Wallington, who is more clued up on such things than I am, understands that, but I wonder whether the Minister knows what that actually means, because I am not sure. The clauses that come after this state that the Information Commissioner will have more independence in matters such as guidance and numbers of staff. Presumably, the commissioner is given a budget and they decide how to spend it. I am sorry to stray slightly; it is difficult to talk about only one of these clauses, because they naturally come together. What does that actually mean? Can the Minister enlighten the Committee as to why that particular sentence is included in the research documents, which, as we know, are usually outstanding? 

Lynne Featherstone:  The hon. Gentleman asked what is happening with the framework document. It has been radically revised. As we speak, discussions are ongoing between the Information Commissioner and the Government on the revised document, and we hope to be able to publish it shortly. 

Vernon Coaker:  That is the point that I am trying to make. With one or two things in different Committees, there has been an issue of principle about publication, but it would be helpful, both for the House and the other place, given that this whole thing is about the independence of the commissioner, which is important, to have the framework document published as soon as possible. It would aid the debates that go on in Parliament about these clauses. If the Minister could give encouragement for the document to be published in as short a time as possible, that would be helpful. 

Lynne Featherstone:  I think when I said that it will be published shortly, that should be as shortly as possible, because it would help everyone to understand what the new framework means for the independence of the Information Commissioner. 

I will deal with one of the last points that was raised, and I will then go on to elucidate, because clause 95 begins with that extension of the independence of the Information Commissioner, which I am sure is welcomed on both sides of the Committee. When it is appropriate, I will come on to how it is possible to be independent and still scrutinise. 

The hon. Gentleman raised a further point around why the appointment of the Information Commissioner was, for this time only, being pre-scrutinised by the Justice Committee, and the appointment, unlike that of the chairman of the Office for Budget Responsibility, which has a different position—I have failed to find my place in the information, but I know that there is a good reason. I believe it was so that we did not bind future Parliaments to something that we were doing at this point in time. The ICO’s functions do not relate primarily to the business of Parliament, so it would not be appropriate for the ICO to become a Parliamentary body. 

Vernon Coaker:  I do not understand that. 

Lynne Featherstone:  I will come back to that point in due course. 

Vernon Coaker:  Unless I misheard, I did not properly understand that at all. If the Minister could come back to that or write to us, that would be helpful. 

Lynne Featherstone:  I am more than happy to do so. That was not the answer that I was hoping to give the hon. Gentleman. 

The Government issued a written ministerial statement earlier this year, stating that the Government will be bound by the Justice Committee’s view on the appointment of the next Information Commissioner, and we see no need to give that statutory force. Indeed, the usual practice is not to do so. 

As I said, the clause begins with the introduction of changes to the appointment and tenure of the Information Commissioner and forms part of the wider proposals in the Bill to enhance the independence of the office. As we discussed in relation to the amendments that increase the new single-term tenure of office from five to seven years, a strong and independent Information Commissioner is vital to ensure the openness of public bodies and to uphold information protection rights effectively for individuals. The Information Commissioner already operates with complete independence in relation to the decisions that he takes to promote and enforce the Freedom of Information Act, the Data Protection Act and the other legislation that falls within his remit. 

However, the Government believe that it is right to remove some of the unnecessary and unused legislative provisions to help guard against any perception that the commissioner is not truly independent from the Government. We are therefore taking steps to further enhance the commissioner’s independence through clauses 95 to 98. As we have discussed, the legislative changes will be underpinned by the new framework document, which will be published shortly, that sets out the day-to-day relationship between the Information Commissioner and the Government. 

Vernon Coaker:  Will the Minister let the Committee know when the framework document is published? We need it to properly understand the context for the proposals. 

Lynne Featherstone:  I am more than happy to let the Committee know as soon as that framework document is published. 

Under paragraph 2(3) of schedule 5 to the Data Protection Act 1998, the commissioner 

“may be removed from office by Her Majesty in pursuance of an Address from both Houses of Parliament.” 

Proposed new sub-paragraph (3A) sets out specific grounds for removing the Information Commissioner from his post. It also provides that an address cannot be sought unless a Minister is satisfied that at least one of the listed grounds is met, and a report is presented to that effect. 

As the Information Commissioner stated in evidence to the Committee: 

“The Information Commissioner must be in a position sometimes to tell truth to power—to say difficult things to very senior people. It is an independent position…and I can be sacked on joint resolution of both Houses of Parliament, but at the moment there is nothing in the legislation to say what the crimes would be.”––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 101, Q297.] 

I agree with him, and it is an important step to set out clearly the conditions under which the commissioner could be removed from office. It will enhance his accountability and independence, by ensuring that a commissioner could not be removed for an improper reason, such as having made a decision that the Government

did not like. Strict criteria would also provide greater transparency in the process of removing the commissioner from office, should that situation ever arise. 

Proposed new sub-paragraph (3B) provides that the commissioner must be appointed on merit and on the basis of fair and open competition. Alongside that provision Lord McNally, who is the Minister responsible in the Ministry of Justice, has issued a written ministerial statement confirming that the Government will be bound by the Justice Committee’s recommendation in relation to the appointment of the next commissioner, following the pre-appointment scrutiny hearing that the Committee will be invited to hold. Obviously, I have no doubt that both the current and previous commissioners have been appointed fairly, based on their suitability and merit for the position. The existing commissioner was subject to pre-appointment scrutiny by the Justice Committee before his appointment was confirmed. Establishing that requirement in law would avoid any perception that appointments might be made based on any other considerations. 

The clause also provides for future commissioners to be appointed for a single fixed term. Following the amendments agreed by the Committee, that will be for a period of seven years. Provision is also made, for obvious reasons, to remove the requirement that the commissioner must vacate his office on completion of the year in which he reaches his 65th birthday. 

Vernon Coaker:  There is some confusion about the budget in the research paper. 

Lynne Featherstone:  I will come back to that point. 

Question put and agreed to.  

Clause 95, as amended, accordingly ordered to stand part of the Bill.  

Clause 96 

Alteration of role of Secretary of State in relation to guidance powers 

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  The clause removes the requirement for certain guidance issued by the Information Commissioner to be approved by the Secretary of State—it talks about consultation, rather than approval. Does that relate to all the guidance that the Information Commissioner would seek to publish, or only some of it? In terms of the scrutiny role—this is why the framework document is needed—does the Secretary of State not have any power at all with respect to the Information Commissioner? That relationship is not clear from reading the clause, and I wonder whether the Minister could address that. Is it all guidance that has now gone, or only some of it? What about the Secretary of State’s ability to scrutinise? 

2.30 pm 

Lynne Featherstone:  Under the Data Protection Act 1998, there are currently three codes of practice that require approval from the Secretary of State before a new or amended version can be issued. They are the code of practice relating to assessment notices, the data sharing code of practice and the code of practice for civil

monetary penalties issued under sections 41C, 52B and 55C of the Act. The clause amends the Act to require the commissioner only to consult the Secretary of State rather than requiring approval from him. 

By removing the requirement for the Secretary of State to sign off such pieces of guidance, the ICO is required to consult on them because the Government are responsible for the overarching data protection and legal framework. It is also important that the policy intentions agreed to by Parliament are reflected in the documents. In practice, the Secretary of State relies on the expert view of the commissioner in drawing up the guidance and codes, and repealing the requirement for the Secretary of State’s approval does not reflect the actual and appropriate relationship that exists between the ICO and the Government. 

Vernon Coaker:  If there were a dispute between the Secretary of State and the Information Commissioner, what would happen? Would it be regarded as independent? What if the Secretary of State considers that actually the Information Commissioner is not conforming to the spirit? Is that covered under the Data Protection Act that allows intervention? What is the process vis-à-vis the two bodies? 

Lynne Featherstone:  The Government and the Information Commissioner have a respect for arm’s length relationships, and we are confident that any points of significance that the Government might raise or any concerns that they have will be taken into account by the ICO. I understand the hon. Gentleman’s point, but if there were a stand-off, the Information Commissioner has the final decision on such matters, as the independent regulator of legislation. 

Left in place is the Secretary of State’s power to instruct the Information Commissioner to undertake a code of practice, but in respect of interventions and disputes, that power enables the Secretary of State to ensure that the specific area of guidance is addressed when the Government consider it necessary. They have to say that action is needed rather than argue the case about a particular piece of information. The requirement that the Secretary of State lays before Parliament the code of practice on data sharing will remain, and together the changes will help to emphasise further the independence of the Information Commissioner’s guidance and his interpretation of the Data Protection Act. 

Question put and agreed to.  

Clause 96 accordingly ordered to stand part of the Bill.  

Clause 97 

Removal of Secretary of State consent for fee-charging powers etc. 

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  I know that the Minister will be coming back to the budget point from the research paper, but what is the purpose of the order-making power in respect of fees under new subsection (4B)? To be fair, it seems reasonable for the Information Commissioner to be able to charge for multiple copies. New subsection (4A) sets out the items for which a fee could be levied, but new subsection (4B) then gives the

Secretary of State the power to amend those items by order. Is that a “just in case” power or has some thinking gone into where the provision might lead? While all of us might agree with some items under new subsection (4A), we may think that some of them were not appropriate to be charged for by the Information Commissioner. The hon. Lady will say that the Government would not amend the order without Parliament’s agreement, but what is the thinking behind it? 

Lynne Featherstone:  Will the hon. Gentleman repeat which clause he is referring to? 

Vernon Coaker:  Clause 97 deals with the charging powers for the Information Commissioner. Under subsection (3), new subsection (4A) lays out the relevant services that could be charged for. For example, if somebody wants multiple copies of something from the Information Commissioner, a reasonable fee could be levied. I can understand that—there is some common sense in what is laid out in (4A). But there is an order-making power beneath that, which allows it to be amended. Why is that included? I need more than just, “Well, it is a just-in-case order. They are always put in there.” 

Lynne Featherstone:  I will come back in a moment to the rationale behind subsection (4B): 

“The Secretary of State may by order amend subsection (4A).” 

I do not think it is simply an “in case” measure—there is probably a very good reason behind it, but I have yet to give it to him. 

The order-making powers are necessary because there may be future developments in matters such as information technology that affect the way that the Information Commissioner provides services, which will require an amendment to the list of relevant services. The proposed list of services can be amended by removing or adding a service, or altering the definition of an existing one. It is in case—in case the future changes the terms of the extent of the services that are supplied by the Information Commissioner and, therefore, the range of things that might or might not be allowed in terms of recovering costs. That is the purpose of the clause. It is not about profit making, but about cost recovery. 

Vernon Coaker:  I was not clear whether the order-making power was under the negative or affirmative procedure. 

Lynne Featherstone:  Negative. 

Vernon Coaker:  I thought it was. I will come back to this important point, but I think that it should be affirmative. 

Lynne Featherstone:  I thank the hon. Gentleman for his advice. The clause purports to remove the current requirement in the Freedom of Information Act 2000 for the Information Commissioner to obtain the consent of the Secretary of State for Justice before he may charge for certain services provided under the Act. The Committee should welcome that because the commissioner can already charge for those services; it is simply the necessity to seek the consent of the Secretary of State that is being removed. We believe that the Information

Commissioner is best placed to form an assessment of the particular services for which he should recover the costs. Clearly that does not appertain to his central thrust in terms of his judgment, giving advice and writing guidance, but to recoverable costs for services such as hosting conferences and the provision of documents. In future, therefore, if the clause stands part, the commissioner will be able to charge, without consent from the Secretary of State, to recover the costs of hosting conferences, the provision of training, and providing multiple hard copies of guidance where it is available free of charge in another format, such as online. That seems a sensible change in the system. I emphasise that the Information Commissioner’s office cannot use the new provision to generate a profit. 

In addition, the clause provides that the Secretary of State may by order add to the list of relevant services so that it can be updated to, for example, take account of new technologies or additional responsibilities of the Information Commissioner’s office. By virtue of subsections (2) and (4), any such order will be subject to the negative resolution procedure. I hear what the hon. Gentleman says, but I still ask that the clause stand part. 

Question put and agreed to.  

Clause 97 accordingly ordered to stand part of the Bill.  

Clause 98 

Removal of Secretary of State approval for staff numbers, terms etc. 

Question proposed, That the clause stand part of the Bill. 

Vernon Coaker:  Does the Minister have the information about the budget that was mentioned in the research paper? I would be interested in the Minister’s reply. 

Lynne Featherstone:  I thank the hon. Gentleman for reminding me of a point that I passed over. The piece of paper somehow lost itself among my other papers. The question of the budget for the Information Commissioner is being considered as part of the framework document. The Information Commissioner’s funding for data protection functions comes from annual notification fees from the data controllers, which are set in the Data Protection (Notification and Notification Fees) Regulations. The Information Commissioner’s freedom of information function is funded by grant in aid from the Government. We think it appropriate that this is set by Government rather than Parliament. I hope that that answers the hon. Gentleman’s question, if not in the way that he wished because the framework document is not yet available, but in that is the answer. 

Vernon Coaker:  I can see why there will be a debate about this now. I understand what that debate is, and I will reflect on it, but I thank the Minister for her reply because it is now clear in my mind. The Minister said that the Secretary of State will determine the budget, and there is no role for Parliament. There is debate around that. Certainly, as I understand the framework document, the issue of the independence of the commissioner would be better served if they were accountable to Parliament rather than the Secretary of State. In other words, you would not have a sponsoring

office. It is an important debate, because Parliament is seen as much more independent than, for example, an individual Secretary of State. I now see what the debate is, and many of us will want to reflect on it, but I thank the Minister for her clarification. 

Lynne Featherstone:  The hon. Gentleman may care to revisit this at another point, perhaps on Report. I would, however, ask that the clause stand part of the Bill. 

Question put and agreed to.  

Clause 98 accordingly ordered to stand part of the Bill.  

Clause 99 

Repeal of provisions for conducting certain fraud cases without jury 

Question proposed, That the clause stand part of the Bill. 

Clive Efford :   I start by offering my congratulations to the Minister, the hon. Member for Old Bexley and Sidcup. I leant across and whispered to him to ask whether he was “right honourable” and he looked very embarrassed by the question. He is a very modest man. We in south-east London follow his progress very closely. I am sure that, with his new responsibility in a very important job, we will all feel a very warm glow of comfort as his armour-plated Prius with blacked-out windows sweeps past us on the A2 back to his constituency. We all wish him the very best; he is a fine fellow. 

I do not oppose the clause, but section 43 of the Criminal Justice Act 2003 has never been enacted, so this part of the Bill deletes a provision on a freedom that has never been taken away. I noticed that the coalition Government programme says: 

“We will protect historic freedoms through the defence of trial by jury.” 

That is a very commendable objective, and we all respect trial by jury, but the attempt to bring in this particular section of the 2003 Act was motivated by the fact that many trials were falling foul of it because they were extremely complicated. There has been a big debate about the ability of juries to commit the time and to be able understand very complex cases, and about whether that is the fault of prosecutions or people being unable to understand. We all understand that that argument has gone by. However, while we do not oppose the clause at all, there is section of the 2003 Act that restricts trial by jury in relation to jury tampering. That is the only area where trial by jury is restricted at present. The Bill does not actually deal with that, which seems inconsistent with the coalition document. What are the Government’s thoughts on that? Perhaps it is part of the number two freedom Bill of the hon. Member for Carshalton and Wallington’s number two Freedom Bill—in the next Queen’s Speech, we understand—so we look forward to that. 

Nicola Blackwood (Oxford West and Abingdon) (Con):  I was very interested by the hon. Gentleman’s comment that many cases had fallen by the way. Does he know how many and why they fell by the way? 

Clive Efford:  There have been many; there was Blue Arrow and the Guinness case; there have been quite a number, not all to do with juries, I grant you. Many were to do with their complexity and there has been a long debate among people on all sides of this argument. We fully accept what the Government are doing here; we are not opposing it in any way. My comments refer to the fact that there is only one area at the moment where jury trials are restricted and that is in relation to jury tampering. I just wonder what the Government’s thoughts are and whether there is any intention to deal with that area in future. 

2.45 pm 

The Parliamentary Under-Secretary of State for the Home Department (James Brokenshire):  I start by thanking the hon. Member for Eltham, his hon. Friend the Member for Gedling and my hon. Friend the Member for Carshalton and Wallington for their very kind and generous comments in relation to my new responsibilities towards security and counter-terrorism. I look forward to the new challenges that the additional roles bring. We have already touched on some during our debates in Committee and I am sure that we will move on to some in our later consideration of the Bill. I will do my utmost to play my part in fulfilling one of the fundamental responsibilities of government, which is about protecting the public from harm and providing security to our country from the continuing threat of terrorism. 

In addressing the hon. Member for Eltham’s points on this clause, I thank him also for the welcome he has given to clause 99 and its effect on fraud trials, ensuring that the right to a jury, the right to be judged by one’s peers, is reassured, and its integrity is maintained and given effect pursuant to this clause. As he will know, this clause repeals section 43 of the Criminal Justice Act 2003, which makes provision for serious fraud cases to be tried in the Crown court by a judge sitting without a jury. 

The previous Government argued that section 43 was necessary because of concerns that some fraud trials lasted so long that they imposed an unreasonably heavy burden on those chosen to sit on the jury. The Government’s view is that such considerations are not sufficient to justify removing a fundamental right, the right to trial by jury. I welcome the comments that the hon. Gentleman has made because section 43 was opposed by both coalition parties when the Bill that became the 2003 Act was before Parliament and, as a result of this challenge, the implementation of section 43 was made subject to a requirement for an affirmative resolution of both Houses. That requirement has meant that section 43 has remained uncommenced. Meanwhile, trials for serious fraud have continued to be heard by a jury in the ordinary way. The hon. Gentleman has already noted the commitment in the coalition agreement to 

“protect historic freedoms through the defence of trial by jury”, 

and this clause gives effect to that. 

The hon. Gentleman highlighted—it was a fair point—the issue of jury tampering and the separate provisions that continue to exist. It is important to highlight a difference betweens the provision we seek to repeal in clause 99 and the separate provisions that relate to jury tampering. In fraud cases, even the longest ones, jury trial will work, albeit at the potential time it takes for

the jurors to be engaged in the consideration of the trial. Therefore, the trial will ultimately be effective and a decision can be taken by a jury in that way. Jury tampering, whether actual or potential, may well mean that jury trial is incapable of delivering justice at all. We have sought to retain that power on the statute book in this defined way, because of that important distinction, but we keep all these issues under review. This is seen as necessary, but we want to continue to assess what is appropriate. At this stage, we believe that it is important to have this reserve power available, where jury tampering may result in justice simply not being done. That was the reason why it was introduced in the first place, and why we believe that it is appropriate to retain that protection. 

Question put and agreed to.  

Clause 99 accordingly ordered to stand part of the Bill.  

Clause 100 

Removal of restrictions on times for marriage or civil partnership 

Question proposed, That the clause stand part of the Bill. 

Clive Efford:  I have only a brief question about the clause and no opposition to it whatever. My question concerns the unintended consequences of extending the hours of operation of buildings that are used for marriages. I got married 30 years ago this year—[ Interruption. ] I know it does not look like it—I welcome such compliments, because they do not come very often these days. 

I remember being charged by the Church for the bells. If I lived next to a building that could be used for such ceremonies there might be consequences, such as planning issues. Practice has established that churches and other establishments that are used for weddings do not operate outside those hours, but they may do so in the future. How are communities safeguarded from the unintended consequences of the proposal? I do not want to be a killjoy and limit people’s ability to hold weddings outside the times that are currently allowed, but I want to ask the Minister if any thought has been given to such unintended consequences. Other than that, we have no objections to the clause. 

Lynne Featherstone:  I am glad that the hon. Gentleman is not a killjoy, because this is one of the responses that came in last summer on the Your Freedom website, where the public were given an opportunity to suggest laws that they considered were unnecessary and ought to be repealed. Because of that, the provision has a special meaning, because people are exercising that opportunity in exactly the way that we envisaged. Why on earth were marriages ever restricted—I do know the answer—to between the hours of 8 am and 6 pm? 

In answer to the hon. Gentleman’s question, the proposal is permissive; it is not an instruction to all establishments to open at all hours, or to burn the midnight candles if people want to hold marriages at 3 am. He raises a fair question, but in the end the negotiation will be between the religious establishment and its environs. 

Regarding local authorities, if we allow marriages or civil partnerships—we are talking about both, I might add—to take place at night, would that mean that local authorities would require their staff to work unsociable hours, for example? This is all a matter for local authorities, churches or synagogues in their local environments to work out; it is not for the Government to legislate on. 

The hon. Gentleman asked about the impact on the local community. I hope that any establishment, religious or civil, will take the concerns of the community into their consideration. 

Question put and agreed to.  

Clause 100 accordingly ordered to stand part of the Bill.  

Clause 101 ordered to stand part of the Bill.  

Schedule 7 

Consequential amendments 

James Brokenshire:  I beg to move amendment 190, in schedule 7, page 119, line 43, at end insert— 

‘77B Procedure for order of district judge under section 23A or 32A: Northern Ireland

(1) The Lord Chancellor may by order make further provision about the procedure and practice to be followed in relation to an application to a district judge (magistrates’ courts) in Northern Ireland for an order under section 23A or 32A.

(2) Such an order may, in particular, provide—

(a) for the manner in which, and time within which, an application may be made,

(b) that the district judge (magistrates’ courts) is to determine an application—

(i) in chambers,

(ii) in the absence of the person to whom the authorisation or notice which is the subject of the application relates,

(c) that any hearing is to be held in private,

(d) that notice of an order given is not to be given to—

(i) the person to whom the authorisation or notice which is the subject of the order relates, or

(ii) such a person’s legal representatives.

(3) An order of the Lord Chancellor under this section may not make provision which, if it were contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Northern Ireland Assembly and would deal with a transferred matter (within the meaning of section 4(1) of the Northern Ireland Act 1998).

(4) The power of the Magistrates’ Courts Rules Committee under Article 13 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) to regulate and prescribe the procedure and practice to be followed in relation to an application to a district judge (magistrates’ courts) in Northern Ireland for an order under section 23A or 32A is subject to, but is not otherwise constrained by, sections 23B and 32B and any order made under this section.’.

The Chair:  With this it will be convenient to discuss Government amendments 191 and 192. 

James Brokenshire:  The amendments enable the Lord Chancellor to make rules for district judges in Northern Ireland in relation to their consideration of local authority authorisations and notices for the acquisition of communications data and authorisations for the use of covert human intelligence sources and directed surveillance under the Regulation of Investigatory Powers Act 2000. 

New sections 23A and 32A of the 2000 Act address both excepted and reserved matters in Northern Ireland. The Lord Chancellor may routinely make rules in relation to excepted matters. The amendments, to which the Northern Ireland Justice Minister has consented, allow the Lord Chancellor to make rules for both excepted and reserved matters where they relate to the practice or procedure to be followed for applications to a district judge for an order under new section 23A or 32A. 

The new order-making power, which closely mirrors existing provisions for Scotland in the Bill, is required to ensure that there are in place the necessary rules for practice and procedure before district judges in Northern Ireland during their consideration of local authority requests under the 2000 Act. 

Clive Efford:  I have a brief question for the Minister. The amendments introduce the Lord Chancellor to the schedule. The Minister has said that the Northern Ireland Justice Minister has approved the amendments. An Assembly Member has also been involved with discussions on the amendments. I have no objection to the amendments, but were they not part of the Bill’s original drafting because they were the subject of negotiations that concluded after the introduction of the Bill, or did something else prompted them? 

James Brokenshire:  I am happy to confirm that the reason is that there were continuing negotiations when the Bill was published. Now that those issues have been resolved, we want to move the amendments in a timely fashion. 

Amendment agreed to.  

Amendments made: 191, in schedule 7, page 119, line 44, leave out from ‘section’ to end of line 45 and insert ‘78 (orders, regulations and rules)— 

(a) in subsection (1) after “the Secretary of State” insert “or the Lord Chancellor”,

(b) in subsection (3)(a)—’.

Amendment 192, in schedule 7, page 120, line 2, at end insert 

‘, and in subsection (5) after “the Secretary of State” insert “or (as the case may be) the Lord Chancellor”’. 

Amendment 114, in schedule 7, page 121, line 3, leave out 

‘, vehicles and acts of terrorism’ 

and insert ‘etc.’. 

Amendment 115, in schedule 7, page 122, line 10, after ‘paragraph (a)’ insert ‘— 

(i) ’.

Amendment 116, in schedule 7, page 122, line 10, leave out ‘43B’ and insert ‘47A’. 

Amendment 117, in schedule 7, page 122, line 10, at end insert ‘and 

(ii) after “(power to stop and search)” insert “(including that section as it had effect by virtue of the Terrorism Act 2000 (Remedial) Order 2011 (S.I. 2011/631)”,’.

Amendment 118, in schedule 7, page 122, line 14, leave out from ‘for’ to ‘, and’ and insert ‘the words from “had” to “section 44 of the Terrorism Act 2000” substitute “previously had effect for similar purposes”’. 

Amendment 119, in schedule 7, page 123, line 29, at end insert— 

‘Terrorism Act 2000 (Remedial) Order 2011 (S.I. 2011/631)

28A The Terrorism Act 2000 (Remedial) Order 2011 is revoked.’.

Amendment 193, in schedule 7, page 123, line 37, at end insert— 

31A (1) Section 119 (sources of information) is amended as follows.

(2) In subsection (2) omit “or for the purposes of section 24 of the Safeguarding Vulnerable Groups Act 2006”.

(3) In subsection (8)—

(a) omit paragraph (c), and

(b) in paragraph (d) for “that Act” substitute “the Safeguarding Vulnerable Groups Act 2006”.

31B In section 119B(5) (independent monitor) omit paragraphs (d) and (e).’.

Amendment 152, in schedule 7, page 125, line 24, at end insert— 

53A (1) Section 50A (provision of information to the police) is amended as follows.

(2) In subsection (2) for “power conferred by subsection (1) does” substitute “powers conferred by this section do”.

(3) In subsection (3) for “subsection (1)” substitute “this section”.

(4) In the heading to section 50A, and in the italic cross-heading before it, after “police” insert “etc.”.’.

Amendment 153, in schedule 7, page 125, leave out line 34 and insert— 

(a) in paragraph (a) for “45(1), (5) or (9)” substitute “45(9)”,

(aa) omit paragraph (c), and’.

Amendment 154, in schedule 7, page 126, line 17, at beginning insert— 

‘(1) Schedule 3 (barred lists) is amended as follows.

(2) In paragraph 24, omit sub-paragraphs (8) and (9).

(3) ’.

Amendment 155, in schedule 7, page 126, line 17, leave out from ‘25(1)’ to ‘for’ in line 18.—(James Brokenshire.)  

Vernon Coaker:  The hon. Member for Strangford wants to put on record his satisfaction with the amendments. He understands that they have all been agreed with the relevant authorities in Northern Ireland. Will the Minister confirm that? 

James Brokenshire:  I am happy to confirm that those negotiations and agreements have been conducted and concluded in the appropriate fashion. 

3 pm 

Lynne Featherstone:  I beg to move amendment 235, in schedule 7, page 126, line 26, at end insert— 

‘Safeguarding Vulnerable Groups (Northern Ireland) Order 2007

62A The Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (S.I. 2007/1351 (N.I.11)) is amended as follows.

62B (1) Article 2 (interpretation) is amended as follows.

(2) In the first paragraph (2)—

(a) omit the definition of “institution of further education”, and

(b) in the definition of “personnel supplier”, in sub-paragraph (b), omit “or controlled”.

(3) Renumber the second paragraph (2) as paragraph (2A).

(4) Omit paragraph (3).

62C In Article 8(1) (appeals)—

(a) omit sub-paragraph (a),

(b) in sub-paragraph (b)—

(i) after “paragraph” insert “2,”,

(ii) after “5,” insert “8,”, and

(iii) for “that Schedule” substitute “Schedule 1”, and

(c) in sub-paragraph (c) for “or 18” substitute “, 18 or 18A”.

62D In Article 9(4) (regulated activity), omit sub-paragraphs (c) and (e).

62E In Article 10(8) (regulated activity providers)—

(a) omit sub-paragraphs (a) and (c), and

(b) in sub-paragraph (d)—

(i) for “sub-paragraph (a) or (c) of Article 3(10)” substitute “paragraph 7(3E)(a) or (c) of Schedule 2”, and

(ii) for “mentioned in that paragraph” substitute “exercisable by virtue of that position”.

62F In Article 11(5) (barred person not to engage in regulated activity) omit sub-paragraphs (b) and (c).

62G Omit Article 12 (person not to engage in regulated activity unless subject to monitoring).

62H In Article 13(5) (use of barred person for regulated activity) omit sub-paragraphs (b) and (c).

62I Omit Article 14 (use of person not subject to monitoring for regulated activity).

62J Omit Article 15 and Schedule 3 (regulated activity provider: failure to check).

62K Omit Article 16 and Schedule 4 (personnel suppliers: failure to check).

62L Omit Article 17 (educational establishments: check on members of governing body).

62M Omit Article 18 (office holders: offences).

62N Omit Article 19 (Articles 17 and 18: checks).

62O Omit Article 20 (exception to requirement to make monitoring check).

62P Omit Article 21 (HSS employment).

62Q (1) Article 22 (offences: companies etc.) is amended as follows.

(2) In paragraph (1)—

(a) omit “, 14, 15, 27, 31”, and

(b) omit “or Schedule 4”.

(3) In paragraph (2)—

(a) omit “, 14, 15, 27, 31”, and

(b) omit “or Schedule 4”.

62R (1) Article 23 (offences: other persons) is amended as follows.

(2) Omit paragraph (1).

(3) Omit paragraphs (3) and (4).

(4) Omit paragraphs (6) and (7).

(5) In paragraph (8)—

(a) for “paragraphs (2)(b) and (3)(b)” substitute “paragraph (2)(b)”, and

(b) omit sub-paragraphs (b) and (c).

(6) Omit paragraph (9).

62S In Article 24 (Article 23: exclusions and defences), omit paragraphs (2) to (7).

62T In Article 37 (regulated activity providers: duty to refer)—

(a) in paragraph (1), omit sub-paragraph (b), and

(b) omit paragraph (6).

62U (1) Article 38 (personnel suppliers: duty to refer) is amended as follows.

(2) In paragraph (1) omit “or controlled activity”.

(3) In paragraph (3)(a) omit “or controlled”.

62V (1) Article 39 (regulated activity providers: duty to provide information on request etc.) is amended as follows.

(2) In paragraph (2)—

(a) omit sub-paragraph (b), and

(b) in sub-paragraph (d), omit “or controlled”.

(3) In paragraph (4) omit “or controlled”.

(4) In paragraph (5) omit “or controlled”.

62W (1) Article 52A (provision of information to the police) is amended as follows.

(2) In paragraph (2) for “power conferred by paragraph (1) does” substitute “powers conferred by this Article do”.

(3) In the heading to Article 52A, after “Police”, insert “etc.”.

62X In Article 53(5) (Crown application), omit sub-paragraph (b).

62Y (1) Article 56 (alignment with rest of UK) is amended as follows.

(2) In paragraph (2) omit sub-paragraph (a).

(3) In paragraph (3) omit sub-paragraph (b) (but not the word “or” at the end of it).

(4) In paragraph (4) omit sub-paragraph (b) (but not the word “or” at the end of it).

(5) Omit paragraph (5).

62Z In Article 57(1)(c) (damages) omit “prescribed”.

62AA (1) Schedule 1(barred lists) is amended as follows.

(2) In paragraph 24, omit sub-paragraphs (8) and (9).

(3) In paragraph 25(1) for “will” substitute “may”.

62AB (1) Schedule 5 (vetting information) is amended as follows.

(2) In paragraph 1—

(a) for “Articles 32 and 34” substitute “Articles 32A and 32B”, and

(b) omit entries 3, 4, 7, 8 and 17 in the table.

(3) Omit paragraph 3(3).

(4) In the heading to the Schedule for “VETTING INFORMATION” substitute “BARRING INFORMATION”.

62AC In Schedule 6 (transitional provisions) omit paragraph 5.’.

The Chair:  With this it will be convenient to discuss the following: Government amendments 236 to 240 and 224 to 234. 

Government new clause 18—Corresponding amendments in relation to Northern Ireland.  

Government new schedule 1—Safeguarding of vulnerable groups: Northern Ireland.  

Lynne Featherstone:  The amendments, the new clause and the new schedule simply replicate for Northern Ireland the changes to the vetting and barring scheme for England and Wales that will be made by chapter 1 of part 5 of the Bill, together with associated consequential amendments and repeals in schedules 7 and 8. 

With the full support of Northern Ireland Ministers and the Northern Ireland Assembly, the vetting and barring scheme will be implemented in Northern Ireland, as well as in England and Wales. Northern Ireland Ministers generally support the changes to the scheme that will be made as a result of the vetting and barring review. In particular, they support the abolition of controlled activity and the monitoring of the children’s and adult work forces. The Northern Ireland Assembly approved a legislative consent motion to extend to Northern

Ireland the provisions in the Bill on the safeguarding of vulnerable groups. The motion was debated and passed by Assembly Members on 21 March 2011, before the dissolution of the legislature. 

As I have said, the amendments largely replicate for Northern Ireland the changes that will be made to the Safeguarding Vulnerable Groups Act 2006 by chapter 1 of part 5 of the Bill. We have already debated those provisions at length, so I do not propose to go through the amendments in great detail. 

I should, however, draw the Committee’s attention to minor differences in the changes for Northern Ireland compared with the equivalent provisions for England and Wales. In the main, those are required to reflect differences in Northern Ireland legislation or the organisation of services there. For example, Northern Ireland Ministers have indicated that those involved in education, health, social care and justice inspection services will remain within the scope of regulated activity and therefore subject to the requirements that flow from that. The children’s hospital will be retained as a specified establishment on the grounds that Northern Ireland has only one hospital dedicated to children, so there is increased public expectation that all staff who have contact with patients are checked to the highest level prior to being employed. 

The inclusion of Northern Ireland within the vetting and barring scheme provides great safeguarding benefits for not only Northern Ireland, but other parts of the UK. For the first time, we will have a single body responsible for making barring decisions in England, Wales and Northern Ireland instead of four different departments. That makes for not only more consistent decision making on barring, but more controlled sharing of barring information and much easier recognition of barring decisions across the UK. Ultimately, it will provide greater safeguards for children and vulnerable adults by preventing the exploitation of borders by individuals who are intent on causing harm. 

Amendments 224 to 234 are all technical in nature and flow from other Government amendments in this and other groups. They all relate to clause 105, which sets out the territorial extent of the Bill. Unavoidably, they will create a complex matrix, which reflects the devolution settlement in each part of the United Kingdom. The key changes made by the amendments are twofold. First, as the Committee would expect, they will extend the provisions reforming the Northern Ireland vetting and barring scheme to Northern Ireland only. Secondly, they will establish the new disclosure and barring service, and provide for the dissolution of the Independent Safeguarding Authority in Northern Ireland, as well as in England and Wales. We will come to the substance of that issue under the next group of amendments; these simply extend the framework of the provisions. 

I stress that we have included the provisions in the Bill at the request of the Northern Ireland Administration and with the support of the Northern Ireland Assembly. On that basis, I commend the amendments to the Committee. 

Diana Johnson:  I was interested to note from the Minister’s comments that Northern Ireland Ministers have taken a broader approach to the definition of regulated activity. Will she comment on why she thinks that they have taken a different approach from that taken for England and Wales by the coalition Government? 

Lynne Featherstone:  As a devolved jurisdiction, it is entirely up to it what it does. During our debates, we have said that those involved know their own situation best. Northern Ireland Ministers know why the single children’s hospital should have a special status, and they have a very good reason for making that differential, if that was the point raised about our decisions. I hope that that answers the hon. Lady’s questions. 

Amendment 235 agreed to.  

Amendments made: 194, in schedule 7, page 127, line 15, leave out from beginning to ‘after’ and insert— 

(1) Section 118 (evidence of identity) is amended as follows.

(2) In subsection (1)—

(a) ’.

Amendment 195, in schedule 7, page 127, line 16, at end insert ‘, and 

(a) after “117” insert “, 117A”.

(3) In subsection (4) after “117” insert “or 117A”.’.

Amendment 196, in schedule 7, page 127, line 28, at end insert— 

‘(4) After subsection (8) insert—

(8A) The independent monitor has the functions conferred on the monitor by section 117A.”

(5) In subsection (9) after “section” insert “or section 117A”.’.

Amendment 197, in schedule 7, page 127, line 37, at end insert— 

69A Omit section 124(5) (non-application of disclosure offences to certain disclosures of information provided in accordance with section 113B(5).’.

Amendment 198, in schedule 7, page 127, line 38, leave out ‘After section 124A(6)’ and insert ‘Section 124A’. 

Amendment 199, in schedule 7, page 127, line 39, after ‘function)’ insert ‘is amended as follows. 

‘(2) In subsection (1)(c) omit “or registered person”.

(3) After subsection (6)’.

Amendment 200, in schedule 7, page 128, line 7, at end insert— 

‘Gambling Act 2005

72A In section 73(3) of the Gambling Act 2005 (procedure on consideration of application for licence)—

(a) for “section 115” substitute “section 113B”, and

(b) at the end (and on a new line below paragraph (b)) insert “or the production of up-date information (within the meaning given by section 116A(7) of that Act) in relation to such a certificate,”.

National Health Service Act 2006

72B The National Health Service Act 2006 is amended as follows.

72C In section 129(6) (regulations as to pharmaceutical services), in paragraph (i), for the words from “section 113” to the end of the paragraph substitute “section 113A of that Act, an enhanced criminal record certificate under section 113B of that Act or up-date information within the meaning given by section 116A(7) of that Act,”.

72D In section 132(4) (persons authorised to provide pharmaceutical services), in paragraph (c), for the words from “section 113” to the end of the paragraph substitute “section 113A of that Act, an enhanced criminal record certificate under section 113B of that Act or up-date information within the meaning given by section 116A(7) of that Act,”.

72E In section 147A(3) (performers of pharmaceutical services and assistants), in paragraph (i), for the words from “section 113” to the end of the paragraph substitute “section 113A of that Act, an enhanced criminal record certificate under section 113B of that Act or up-date information within the meaning given by section 116A(7) of that Act,”.

National Health Service (Wales) Act 2006

72F The National Health Service (Wales) Act 2006 is amended as follows.

72G In section 72(3) (regulations as to general opthalmic services), in paragraph (c), for the words from “section 113” to the end of the paragraph substitute “section 113A of that Act, an enhanced criminal record certificate under section 113B of that Act or up-date information within the meaning given by section 116A(7) of that Act,”.

72H In section 83(6) (regulations as to pharmaceutical services), in paragraph (i), for the words from “section 113” to the end of the paragraph substitute “section 113A of that Act, an enhanced criminal record certificate under section 113B of that Act or up-date information within the meaning given by section 116A(7) of that Act,”.

72I In section 86(4) (persons authorised to provide pharmaceutical services), in paragraph (c), for the words from “section 113” to the end of the paragraph substitute “section 113A of that Act, an enhanced criminal record certificate under section 113B of that Act or up-date information within the meaning given by section 116A(7) of that Act,”.

72J In section 105(3) (supplementary lists), in paragraph (g), for the words from “section 113” to the end of the paragraph substitute “section 113A of that Act, an enhanced criminal record certificate under section 113B of that Act or up-date information within the meaning given by section 116A(7) of that Act,”.’.—(Lynne Featherstone.)

Schedule 7, as amended, agreed to.  

Schedule 8 

Repeals and revocations 

Amendments made: 120, in schedule 8, page 133, line 30, at end insert— 

‘Terrorism Act 2000 (Remedial) Order 2011 (S.I. 2011/631)

The whole instrument.’.

Amendment 201, in schedule 8, page 133, line 35, at end insert— 

‘In section 119—  (a) in subsection (2), the words “or for the purposes of section 24 of the Safeguarding Vulnerable Groups Act 2006”, and  (b) subsection (8)(c).  Section 119B(5)(d) and (e).’.

Amendment 156, in schedule 8, page 135, line 16, leave out ‘(2)(a) and (c)’ and insert ‘(2)(c)’. 

Amendment 157, in schedule 8, page 135, line 31, leave out from ‘In’ to ‘the’ in line 33 and insert ‘Schedule 3— 

(a) paragraph 19(1)(d),

(b) in paragraph 19(6)’.

Amendment 158, in schedule 8, page 135, line 35, at end insert ‘, and 

(c) paragraph 24(8) and (9)’.

Amendment 159, in schedule 8, page 136, line 30, after ‘table,’, insert— 

‘(aa) in paragraph 3(1), paragraph (b) and the word “or” before it,’.

Amendment 202, in schedule 8, page 136, line 33, at end insert— 

‘In Schedule 9, paragraph 14(7)(c).’.

Amendment 236, in schedule 8, page 136, line 33, at end insert— 

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

In Article 2—  (a) in the first paragraph (2), the definition of “institution of further education” and, in sub-paragraph (b) of the definition of “personnel supplier”, the words “or controlled”, and  (b) paragraph (3).  Article 3.  Article 8(1)(a).  Article 9(4)(c) and (e).  Article 10(8)(a) and (c).  Article 11(5)(b) and (c).  Article 12.  Article 13(5)(b) and (c).  Articles 14 to 21.  In Article 22(1) and (2)—  (a) the words “, 14, 15, 27, 31” and  (b) the words “or Schedule 4”.  Article 23—  (a) paragraphs (1), (3), (4), (6) and (7),  (b) paragraph (8)(b) and (c), and  (c) paragraph (9).  Article 24(2) to (7).  Articles 25 to 27 (and the italic cross-heading before them).  Articles 28 to 31 (and the italic cross-heading before them).  In Article 37—  (a) paragraph (1)(b), and  (b) paragraph (6).  In Article 38—  (a) in paragraph (1), the words “or controlled activity”, and  (b) in paragraph (3)(a), the words “or controlled”.  In Article 39—  (a) paragraph (2)(b),  (b) in paragraph (2)(d), the words “or controlled”, and  (c) in paragraphs (4) and (5), the words “or controlled”.  In Article 41—  (a) in paragraphs (1) and (5), the word “prescribed”, and  (b) in paragraph (4)(a), the words “or controlled activity”.  In Article 43—  (a) in paragraphs (1) and (5), the word “prescribed”,  (b) in paragraph (4)(a), the words “or controlled activity”, and  (c) paragraphs (4A) to (4C).  Article 46.  In Article 47—  (a) in paragraphs (1) and (5), the word “prescribed”,  (b) in paragraph (4)(a), the words “or controlled activity”, and  (c) paragraph (6).  In Article 49—  (a) paragraph (2)(b) to (e),  (b) paragraph (3)(b) to (e), and  (c) paragraph (5).  In Article 50(1)—  (a) in sub-paragraph (a), the word “newly”, and  (b) sub-paragraph (c) and the word “or” before it.  In Article 51(1)—  (a) in sub-paragraph (a), the word “newly”, and

(b) sub-paragraph (c) and the word “or” before it.  Article 53(5)(b).  In Article 56—  (a) paragraph (2)(a),  (b) in paragraph (3), sub-paragraph (b) (but not the word “or” at the end of it),  (c) in paragraph (4), sub-paragraph (b) (but not the word “or” at the end of it), and  (d) paragraph (5).  In Article 57(1)(c), the word “prescribed”.  In Schedule 1—  (a) paragraph 19(1)(d),  (b) in paragraph 19(6), the words from “which” to “it is” and the words “or paragraph 20(2)”, and  (c) paragraph 24(8) and (9).  In Schedule 2—  (a) paragraph 1(7),  (b) paragraph 2(1)(d) and (2)(d),  (c) paragraph 4,  (d) paragraph 7(4),  (e) in paragraph 7(5), the word “, (4)”,  (f) paragraph 7(9),  (g) paragraph 8, and  (h) in paragraph 10(2), the words “or 7(1)(a), (b), (c), (d) or (g)” and, in paragraph (b), the words “or vulnerable adults (as the case may be)”.  Schedules 3 and 4.  In Schedule 5—  (a) in paragraph 1, entries 3, 4, 7, 8, 17 and 19 in the table,  (b) in paragraph 3(1), paragraph (b) and the word “or” before it, and  (c) paragraph 3(3).  In Schedule 6, paragraph 5 (including the italic cross-heading before it).’.

Amendment 160, in schedule 8, page 136, line 44, at the beginning insert ‘Apprenticeships, Skills, Children and Learning Act 2009’. 

Amendment 237, in schedule 8, page 137, line 9, leave out ‘Section 89’ and insert ‘Sections 89, 90 and 92’. 

Amendment 238, in schedule 8, page 137, line 18, after ‘it)’ insert ‘and Part 3’. 

Amendment 239, in schedule 8, page 137, line 26, at end insert— 

‘The Safeguarding Vulnerable Groups (Regulated Activity, Transitional Provisions and Commencement No. 4) Order (Northern Ireland) 2009 (S.R. 304/2009)	Articles 10, 24 and 25.
The Safeguarding Vulnerable Groups (Miscellaneous Provisions) Order (Northern Ireland) 2009 (S.R. 305/2009)	Article 7(4).’.

Amendment 161, in schedule 8, page 137, line 31, leave out ‘to (7)’ and insert ‘and (6)’. 

Amendment 240, in schedule 8,  page 137, line 40, at end insert— 

‘Safeguarding Vulnerable Groups (Regulated Activity, Devolution Alignment and Miscellaneous Provisions) Order (Northern Ireland) 2010 (S.R. 30/2010)

Articles 6, 9, 11, 14, 16, 17, 18, 19, 20 and 21.  Article 22(a) and the word “and” at the end of it.  Article 24.’.

Amendment 203, in schedule 8, page 138, line 12, at end insert— 

	‘Section 124(5).  In section 124A(1)(c), the words “or registered person”.
Policing and Crime Act 2009	Section 93.’.

—(James Brokenshire.)  

Schedule 8, as amended, agreed to.  

Clauses 102 and 103 ordered to stand part of the Bill.  

Ordered, That further consideration be now adjourned. —(Jeremy Wright.)  

3.7 pm 

Adjourned till Tuesday 17 May at half-past Ten o’clock.