Protection of Freedoms Bill

Public Bill Committee, 12 May 2011.

Vernon Coaker (Labour, Gedling)

On a point of order, Mr Caton. May I ask whether you or, indeed, the Minister have any comment to make on this issue? You will not know this, but we received an e-mailed letter from the Minister on Monday; mine came at 7.35 in the evening, and I believe that is when other Members received theirs. It informed members of the Committee that the Government would submit a wide range of amendments on vetting and barring and criminal records, effectively merging the Independent Safeguarding Authority and the Criminal Records Bureau. To be honest, the Opposition would not necessarily disagree with that, but we discussed vetting and barring, the ISA and criminal records at our sitting on Tuesday, yet on that day we had pages of fairly significant Government amendments. Although we had had the letter telling us that those amendments would be tabled, none of us on the Committee had seen them. They could, and do, have a huge impact on the clauses they relate to. Although we may agree on a principle, the purpose of Committees for Members on both sides is to scrutinise Bills and to ensure that even where we agree, we, and indeed those who read the record of our proceedings, fully understand proposals, but that cannot happen if we do not have proper time to look at amendments.

Secondly, having read the amendments, as others did, I was surprised that no mention was made of any of them during any of Tuesday’s debates on the clauses on vetting and barring or the Criminal Records Bureau, despite the fact there was a huge number of amendments. I want to put on the record that I was, to be frank, upset about that, and I would like to hear any comment you may have, Mr Caton. The situation made it impossible for us to do as effective a job as we would have liked of scrutinising the Government’s proposals.

To be fair to the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup, he has been in my position, and he has berated me once or twice for doing exactly the same thing. I know that he will take this on board, but what has happened is a reminder to us all that, without the necessary time, it is virtually impossible to scrutinise legislation, particularly in opposition; it is hard enough in government to understand exactly what is being proposed. To be fair to her, my hon. Friend the Member for Kingston upon Hull North did an excellent job on Tuesday, but having read the amendments, we might have amended some of the things that we said and asked different questions. I have calmed down a bit now, but I was extremely annoyed and angry at the time. The Government need to reflect on the situation, because what happened really was not good enough.

Martin Caton (Labour, Gower)

Thank you, Mr Coaker.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Further to that point of order, Mr Caton. Perhaps I can respond to assist you on the point of order raised by the hon. Member for Gedling. I know him well, and he does not raise issues capriciously. I thank him for alerting me to this issue outside the Committee in the normal way. I certainly hear the points that he has made.

Before proceedings on the Bill, we obviously telegraphed the fact that we were minded to take forward the merger of the Independent Safeguarding Authority and the Criminal Records Bureau in the Bill. Obviously, we could have waited to table amendments on Report, but we felt that it was appropriate to table them in Committee to give the House as a whole as much time as possible to examine the new schedules, new clauses and amendments. As the hon. Gentleman rightly said, I believe in scrutiny and Parliament’s ability to examine Government proposals. We wished to table amendments earlier in the process, but that was not possible, so we tabled them as early as we could. That was reflected in the marshalled list that appeared on Tuesday morning and the letter on Monday evening.

We have about 23 clauses to get through today. I understand that a discussion has taken place through the usual channels to consider timing the Bill to allow for proper debate and discussion and for Opposition consideration of the new clauses and new schedules. If time is allowed, I hope that that will give the Opposition the opportunity to examine the new provisions and debate them more slowly, so that they can assess them. However, we have the opportunity to come back on Report should any further issues or thoughts arise on the new provisions.

John Robertson (Labour, Glasgow North West)

Further to that point of order, Mr Caton. I seek guidance. As a mere Back Bencher with a lot of work to do other than the Bill, I find it incredible that despite all the help that Government Front-Bench Members get from civil servants, and the fact that they obviously knew that they were going to introduce the provisions, as the Minister said, they did so at such short notice. Will you ask the Speaker about the situation, Mr Caton? Back-Bench Members, in particular, are being put in the incredible position of not being able to look at amendments. This is the first time that I have really had a look at them, and the number is incredible. There is no way that a mere Back Bencher with other work to do could consider them. I seek your guidance.

Diana Johnson (Labour, Kingston upon Hull North)

Further to that point of order, Mr Caton. The Minister said that the vetting and barring review flagged up that the Government were minded to introduce this change. That is absolutely correct, but when the Bill was published and on Second Reading, the change was not included. There has been no indication at all throughout our extensive deliberations that the matter would be addressed in the Bill. I am particularly concerned that on Tuesday we spent a great deal of time considering the provisions relating to vetting and barring, and no indication was given of this structural change, which might have had implications for some of the Opposition’s amendments.

I seek your guidance, Mr Caton, on whether you could rule, for our upcoming deliberations on the Bill, that the Minister must reflect fully on the clauses on vetting and barring with which the Committee has already dealt and make it clear what effect the changes in this further group of amendments will have on the discussions that we have already had. Further and fuller explanations need to be given. At the moment, having led on the clauses on Tuesday, I feel that I have missed an opportunity due to the Government’s failure to make clear what they planned to do.

James Brokenshire (Conservative, Old Bexley and Sidcup)

Further to that point of order, Mr Caton. If it will assist the hon. Lady, I will be happy to talk to my officials to see whether we can arrange an informal briefing to take her through the new clauses and schedules in time for Tuesday’s deliberations.

Vernon Coaker (Labour, Gedling)

Further to that point of order, Mr Caton. It would be churlish not to thank the Minister for responding as he has. He mentioned the discussions that have taken place about timing, so that we can perhaps discuss the matter next Tuesday—wherever we get to today—to ensure that we can cut off then, and my hon. Friend the Member for Kingston upon Hull North will deal with that. I appreciate the Minister’s tone, the points that he has made about timing and his offer of a briefing for my hon. Friend. I know that he takes these things seriously, but it is a reminder to us all that the process is important, especially from our point of view, so that we can understand what is going on. The whole purpose of Committees is to hold the Government to account properly, rather than just ranting as we all do sometimes. The Minister’s point was well made, and I wish to put on record again my thanks to him, as well as to the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Kenilworth and Southam, who also helped with the matter.

Martin Caton (Labour, Gower)

As I think you realise, Mr Coaker, because the amendments were tabled within the deadline, it is perfectly in order to debate them when we reach them. Having said that, I understand your concern and the Government have clearly indicated that they do, too, and it looks as though the usual channels have found a way forward. Perhaps I should remind the Opposition that until the rise of the House today, they can table amendments for consideration next week.

Vernon Coaker (Labour, Gedling)

We still have to understand them.

Martin Caton (Labour, Gower)

Point taken.

Clause 82

Diana Johnson (Labour, Kingston upon Hull North)

We now move on to chapter 3 of part 5 of the Bill. The purpose of the group of clauses is to enable men with old convictions for certain gay sex offences that are now decriminalised to apply to the Home Secretary for the deletion of such convictions. As a result, the offences would no longer be disclosed on criminal record checks and the individuals concerned would be treated as if they had never committed or been convicted of the offence in question.

We welcome the clauses. Such measures are right and appropriate, but we want to make sure that they will do what the Government intend them to do. Subsection (1) lists the offences that can be overturned, such as section 12 of the Sexual Offences Act 1956 on buggery, section 13 of that Act relating to gross indecency between men, section 61 of the Offences against the Person Act 1861 or section 11 of the Criminal Law Amendment Act 1885. Under subsection (2), for the clause to have effect, matters have to be compliant with subsections (3) and (4).

If it seems to the Secretary of State that the offence being put forward related to consensual sex between two people over the age of 16 and not committed in a public toilet, which is still an offence under section 71 of the Sexual Offences Act 2003, the procedure under the clause will apply. Section 12 of the Sexual Offences Act 1956 also covers other offences, such as bestiality, non-consensual buggery and under-age buggery. I want confirmation from the Minister that such convictions will not be overturned, leaving a narrow group of offences that can be dealt with under the procedure.

Stonewall gave evidence to the Committee at the outset of our deliberations and referred to the number of individuals who might be covered by the provisions. It spoke of 16,000 relevant convictions on the public record at the moment that might be suitable for the Secretary of State to take into consideration in the changing of records. Although that was welcomed, much was made in the debate on criminal record checks about how convictions—even irrelevant ones—can put off people from volunteering.

Stonewall said that a large group of men in the past might have felt very uneasy about putting themselves forward for positions that might need criminal record checks. Hopefully, the provisions will go some way towards allowing that group to pursue volunteer positions. It is right that, in future, people will not be deterred from volunteering or taking on roles requiring such checks.

Up to 16,000 offences might be considered, so what is the Home Office doing to prepare for receiving what might be many applications initially? What resources are being put into dealing with that? Will a special part of the Home Office focus on dealing with it? Most people who go through the procedure will want their case to be dealt with quickly. Will the Minister discuss the time scale for dealing with the applications and processes?

Other offences are set out in section 12 of the 2003 Act. Does the Minister think that there will be any practical difficulties in recognising the ones that relate to consensual sex between adults? I mention that because some applications might relate to very old offences and I wonder about the level of evidence or documentation that might still be available. How much of a problem might that cause in dealing with historical offences? Those are my major concerns about the clause, but broadly I welcome it.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the hon. Lady for her comments. The clause is significant and important, because it begins the process of removing convictions. It puts power into the Secretary of State’s hands to disregard convictions and cautions for offences between consensual adults. The measure will be broadly welcomed across the country by those who are affected and by those who are not, because it rights a wrong and a discriminatory practice that has a significant effect on many people’s lives.

As the hon. Lady said, such incidents may have happened a long time ago and may or may not be relevant today. If they came up on a CRB certificate, however, they might be of great significance. I shall deal with the specific points that she has made as I discuss the power that is set out under the clause.

The clause, together with the others in chapter 3 of part 5, brings into effect the Government’s commitment to

“change the law so that historical convictions for consensual gay sex with over 16s will be treated as spent and will not show up on criminal record checks.”

It will be as though the convictions never happened, which is most important because the world has moved on. The measure will not result in a spent conviction or caution, which is always on one’s record; it will be as though it never happened—or as near as we can get to that in physical record. It certainly can never be disclosed.

The Government are committed to equality and we believe that one of the most unfair and unjust historical inequalities is the discrimination against men who have a conviction for something that has, for a long time, not been illegal, but which can, nevertheless, show up on a criminal record check. That situation might prevent an individual from taking up certain opportunities in life, such as applying for particular occupations, or volunteering—not because they present a risk, but simply because they do not want to risk anyone finding out about their past. They may not have told their family or partner about the matter, and allowing that history to be revealed can have devastating effects on lives.

The clause sets out the conditions that must be met before the Secretary of State may disregard the caution or conviction. It provides that someone with a conviction or caution for an offence of buggery or gross indecency between men, under sections 12 and 13 of the 1956 Act, may apply to the Home Office to have the conviction or caution disregarded.

As the hon. Lady rightly said, because the scope of sections 12 and 13 was wide, they cover situations where the offence involved conduct that was non-consensual or involved an under-age person. The section 12 offence also covered bestiality. There is a total of about 50,000 records involving section 12 or 13 offences. Unless the police look into each and every case, it is hard to establish all the facts. It would be difficult to look back through every single one of the 50,000 cases to establish whether the individuals involved were over 16 or whether there are any consent issues. As we shall see on later clauses, that is why it is up to the applicant to come forward.

Michael Ellis (Conservative, Northampton North)

May I take this opportunity to welcome the measure? I consider it an historic act of sensitivity. It was under the 1885 legislation, which will effectively be expunged, that Oscar Wilde was prosecuted and sentenced to two years’ hard labour. The measure is an historic and rare act. Will the Minister confirm that it will not only affect the convictions of elderly people? Some convictions for the offences that we are seeking to disregard are much less than a decade old, perhaps dating from as recently as 2002.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank my hon. Friend for his intervention, and he is correct. When he gave evidence, Ben Summerskill of Stonewall said:

“I would just say that this has been characterised as a measure that will affect only elderly people who want to work or volunteer, but that is not true. We are aware of the case of a 17-year-old who was prosecuted in 1998 for having unlawful sex; he was below the age of consent, and had sex with someone who was above it. That, of course, gives the lie to the notion that these protections were ever there to protect young people. He will be only 30 now.”––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 130, Q383.]

If Oscar Wilde was out there, he would be very pleased to see this wrong finally put right.

On the broadness of offences that can be captured under sections 12 and 13, which was raised by the hon. Member for Kingston upon Hull North, it would clearly be wrong to disregard any conviction or caution for conduct that remains unlawful today. Non-consensual acts are still illegal, regardless of the sexual orientation of the individuals concerned, so those convictions or cautions will stand and will not be covered by the provisions.

As 50,000 cases would have to be re-examined to see which were appropriate for a disregard, we have provided for a pragmatic solution whereby individuals may apply to the Secretary of State to have their records disregarded. The scheme will allow the individual to choose what to do. If they want to pursue that course of action they can but, equally, if they do not want to they do not have to.

An application will be granted only if certain conditions are met. In particular, the Secretary of State must be satisfied that the conduct that led to the conviction or caution was consensual and involved a person aged over 16—that is, over the current age of consent. If the conduct is still covered by the offence specified in section 71 of the Sexual Offences Act 2003—sexual activity in a public lavatory, which the hon. Lady mentioned—an application would not be successful. Once an application has been granted, a notice to that effect will be sent to the applicant. The relevant conviction or caution will be treated as a disregarded conviction or caution 14 days thereafter, which will allow time for the conviction or caution to be removed from police records.

The hon. Lady asked about the practical difficulties of going back over cases and about what information will be available. We will come on to more detail about that in later clauses, but there are issues about where information comes from and what is available. The process is not a re-hearing of the case; it is simply an administrative operation to elicit the disregard for those who apply. The information available will therefore depend on how long ago the case was, whether the records can be found and how clear they are.

There is a whole range of practical issues, but only when we start to look into each case will we see what official records are available as evidence. The facts—such as name, address and date of conviction—produced by the applicant and what is available in the official records are the two sources of information on which the Secretary of State will make her judgment. I have dealt with the narrow focus.

I appreciate what the hon. Lady said about the potential number involved. We at the Home Office are working through how the process will work, in terms of what the Home Office can make available, what resources will be made available and how to make the whole procedure as smooth, informal and easy as possible—even if 16,000 people come forward, which the hon. Lady cited as being the number for whom the disregard might be relevant.

It is unlikely that all 16,000 would come forward on day one, but we are looking to see how, were they to do so, all of that could be processed and what resources could be made available. Later we will come on to the issues around the Home Secretary, who will have an expert panel who can help her in that. We are working through what will be involved and what resources will be needed as we go through the process. We will come back to it in more detail.

Diana Johnson (Labour, Kingston upon Hull North)

Will the Minister say something about how long it will take the Home Office to deal with this kind of application and what resources will be made available?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

We do not have an answer on how long, but the ambition is that it should be as quick, easy and smooth as possible.

Nicola Blackwood (Conservative, Oxford West and Abingdon)

Obviously we are talking about sensitive issues, which often involve painful episodes from an individual’s past. What measures we will be taking to ensure privacy and sensitivity towards those applicants?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The group of people who will need to know anything and will be dealing with this information is small. It will be the Home Secretary, her private office and officials as necessary. It will be kept as small and as private as is possible in effecting the remedy. On that basis, I give the assurance that the people who know about it will be kept to an absolute minimum. We well recognise the sensitivity of the situation of an applicant who comes forward, and we respect that absolutely.

Diana Johnson (Labour, Kingston upon Hull North)

Is the Minister saying that this responsibility will be exercised by the Secretary of State herself and that it will not be delegated to any other Minister?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

My understanding is that the Home Secretary has the responsibility. We will come on to her responsibility in the process when we reach those clauses and go into the detail on that point.

As I said, we are coming on to different parts of the detail in each of the pursuant clauses in the chapter. Clause 82 sets out the core of the scheme and I commend it to the Committee.

Clause 83

Diana Johnson (Labour, Kingston upon Hull North)

I have some questions for the Minister so that we can fully understand how the scheme will operate and highlight whether we have any concerns with the practicalities of the scheme at this stage. As I understand it, clause 83 sets out for the conditions for the application to be made. It has to be in writing, giving the name, address and so on of the applicant. It must give the specifics of the offence or caution that will be looked at. It must also include any other information that the Secretary of State requires to ascertain whether the conviction relates to an act between consenting adults.

How will people know about this application process? What communication strategy does the Minister envisage needs to be put in place, to ensure that everyone who may want to put an application in fully understands what the process is and what will happen? In Stonewall’s submission to the Committee, it highlighted that particular issue on the communication strategy. It said that it hopes that it will reach out to professional bodies such as the General Medical Council or the Nursing and Midwifery Council to ensure that they understand the changes and implications for their disclosure processes as well. That deals with the employer side as well. Will the Minister say a little more about how that will all work?

Will the Minister indicate just how much information will be required by an applicant? Does she believe that because there are issues of consent it would be appropriate for the Secretary of State to look for information from both parties involved in any offence, or is it just the person making the application? What happens if there is a lack of information, or records have been lost? I note that the Minister says that some cases will be more recent, but equally, there will be some much older cases. We know that records do not always stay where they are supposed to be, or they go missing, so will there be a presumption by the Secretary of State that if information is not readily available, the offence should be expunged from the record? Is that a presumption that the Secretary of State would take forward or not? The practicalities are the Opposition’s key concerns at this point.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

All the issues that the hon. Lady raises are important because the provision affects people who, because the case was long ago, may or may not be private about it. They may be anywhere in the world, so it is very important that the message gets out and people not only know about the opportunity, but know how it can be accessed and what the conditions will be.

Clause 83 sets out the process that an individual will have to follow when applying to have their conviction or caution under sections 12 or 13 of the Sexual Offences Act 1956 disregarded. The essence of the provision is that we really want to make the process as simple as possible; it is not meant to be complicated, difficult or challenging. To keep it as simple as possible, we have kept the information requirements to the minimum. The relevant records in most cases are, as we discussed, likely to relate to events that took place a long time ago—although not exclusively so—some of them perhaps, decades ago. Tracking down the records may not be straightforward. Many will exist from the time before computerised records and may be on paper or microfiche, so we shall need a certain amount of basic information—name, address and date of birth; name and address at the time of the conviction; and the time and place of the conviction, if possible. It will also be open to an applicant to supply additional information in support of their application.

The hon. Lady asked what would happen if the position was unclear. The Home Secretary will look at the records and at whatever the applicant can supply. There is no need for a formal process; if more information comes to light, it can be sent on, added to and included in the submission for the conviction or caution to be disregarded.

The hon. Lady asked how we will get the information out. We are working with all parties with an interest in the area—we are obviously involving Stonewall—to ensure that the provisions are well publicised. Clearly, that is very important. I take on board what she says about employers and all those who need to know that the opportunity is available. They may be able to spread the word in an informed and helpful way to people who might want to make an application.

If details are very thin on the ground, which could be the case when much time has elapsed or when records are not legible—who knows why the information may not be available—and the only available information is that supplied by the applicant, it is likely, but not yet finally decided, that the decision will be based on what the applicant provides. We will, however, keep that point under close review to ensure that only offences that fall within the scope of the proposal are deleted. It is unlikely that there would be any going back to the other party, because this is not a re-hearing; it is based on what the applicant provides and the details on record.

As part of the process in response to the application, the applicant will be encouraged to give as much information as possible, but without being made to feel that they have to give any more than is necessary. The Home Office will not seek out other parties involved to supplement the information. As I say, we will look at all official records.

In difficult cases, the Home Secretary can consult expert advisers, and we will come to the expert panel in later clauses. Clearly, it will be composed of those who can best advise her when information is unclear or it is difficult to make a decision. They will use their wisdom, experience and expertise to advise the Home Secretary in making a decision.

The hon. Lady asked whether only the Home Secretary would be involved. The Home Secretary can of course delegate her functions under the provisions, in accordance with the usual Carltona principles. Clearly, a structure will need to be in place to enable individual cases to be escalated if that is appropriate.

I hope that I have answered the hon. Lady’s queries. With that, I hope that the clause can stand part of the Bill.

Clause 84

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 204, in clause 84, page 68, leave out lines 8 and 9.

Martin Caton (Labour, Gower)

With this it will be convenient to discuss the following: amendment 205, in clause 84, page 68, line 16, at end insert—

‘(c) give reasons for the decision, and

(d) on receipt of new information, review the decision and inform the applicant of the outcome of the review.’.

Amendment 206, in clause 89, page 71, line 20, at end insert—

‘(7) An applicant may appeal to the Home Office in order to remedy minor or administrative errors in their application under section 82 without the need to appeal to the High Court.’.

Diana Johnson (Labour, Kingston upon Hull North)

As drafted, clause 84(2) rules the Secretary of State out from holding oral hearings. Amendment 204 would strike out that part of the clause. We do not quite understand why the Secretary of State would not, in some circumstances, need an oral hearing.

Striking out offences can be a difficult and delicate business, and complex and personal information might have to be sought and considered, as hon. Members have said. It may be hard to distinguish irrelevant and out-of-date information or convictions that society no longer recognises, and which can be disregarded, from offences that are still serious and need to be properly looked at. It is vital to find the right balance, and we should not rule out, as the clause does, the opportunity for the Secretary of State to hold an oral hearing in some circumstances.

Another concern is that if the applicant wishes to appeal when their application is refused, the only remedy open to them under the Bill as drafted is to go to the High Court. As we all know, going to the High Court can be an expensive business. Furthermore, it would not be appropriate if the matter could be dealt with by an oral hearing, which would obviously be a much cheaper and perhaps much quicker remedy, and would allow the Secretary of State to look at all the evidence. Amendment 204 would therefore assist applicants and give the Secretary of State the opportunity to have an oral hearing when required.

Clause 84(4) demands that the Secretary of State record her verdict in writing and give notice to the applicant. Our amendment 205 would add to the clause. We want the Secretary of State to give reasons for her decision and to be obliged to review her decision on receipt of new information. It is important to give reasons because, as we have said, the matter is sensitive, and the applicant needs to be aware of what information has been considered so that they will know if a mistake has been made. If the Secretary of State does not give reasons and does not explain the rationale for her decision, the only way to correct any mistake, as I have just set out, would be to go to the High Court. Again, the amendment would be a helpful means of dealing with problems. A mistake might have been made on the basis of information provided, but it could be picked up if the reasons for the decision were set out clearly. We believe that a right to a certain level of redress before resorting to the High Court is important, and would fit with the coalition Government’s attempt to set such redress in train and protect the rights of individuals who apply to have their convictions disregarded.

I mentioned the cost of the High Court. There are also, as we have said, potential difficulties with information not being readily available. I do not understand why the Government are saying at this stage, “We’re not going to allow any oral hearing; the only opportunity to right what might be an administrative mistake is to go to the High Court.” Amendment 204, which would provide the opportunity for an oral hearing, and amendment 205, which would require the Secretary of State to set out clearly her reasons for making a decision, would be helpful to the process of transparency, openness and clarity.

Amendment 206 is a probing amendment supported by Stonewall, which has indicated that it is interested in pursuing the Government’s thinking. The amendment relates to clause 89 and the fact that the only right of appeal is to the High Court. The amendment would give the right to access a lower court to remedy minor or administrative errors in an application under clause 82, without the need to appeal to the High Court. It is a general probing amendment. Are the Government really minded to say that an individual must go to the High Court? That seems disproportionate.

Michael Ellis (Conservative, Northampton North)

Does the hon. Lady accept that we would not want the Home Secretary to take on a judicial role? It is for the courts to decide whether something is minor or administrative in the context. After all, they are the best judges of that. Would she not be reluctant for the Home Secretary to take on such a quasi or fully judicial role?

Diana Johnson (Labour, Kingston upon Hull North)

The purpose of amendment 206 is to provide that there should be an opportunity, if the applicant wishes, to appeal the decision of the Secretary of State. We explored in the evidence sessions Stonewall’s feeling that it did not want the initial decision to be made in the courts and was happy for it to be made by the Home Secretary. However, if someone then appeals the decision, is it appropriate to go straight to the High Court? Would not some other court be more appropriate? That is the purpose of the amendment. I wanted to test whether the Government had thought through other options involving the lower courts and had disregarded them for good reason. I am not clear why they have decided to go straight to the High Court. It would be helpful to pursue that and hear an explanation why they feel that the High Court is the most appropriate remedy open to an applicant whose application has failed.

I am interested to hear the Minister’s comments on amendment 206. I believe that amendments 204 and 205 are helpful to the Government and their proposed clauses, and I hope that I have persuaded her to accept the amendments.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

We share the same ambition of avoiding the High Court. I do not think that there is any desire on either part for things to escalate to such a level. We will come to the reason for choosing the High Court in clause 89.

To deal with the hon. Lady’s amendments in order, amendments 204 and 205 would amend clause 84 so that the Secretary of State could hold an oral hearing on an application, and to require that reasons for any decision be given to the applicant. They would also provide that any additional information must be considered and the decision reviewed if new information becomes available after the decision has been made. On oral hearings, I quote Ben Summerskill from the witness session:

“We are reasonably satisfied on the basis of what is being proposed that it is a written procedure. We are also mindful that quite a lot of people involved have difficulty talking about what actually happened to them, and that might be onerous, too.”––[Official Report, Protection of Freedoms Public Bill Committee, 24 March 2011; c. 130, Q383.]

We have deliberately taken the view that having oral hearings might send a message that the original conviction or caution for which the application was being made would be reviewed. That would be an entirely erroneous message, and it is not the intention behind the proposal. The original decision cannot be questioned or altered in any way. We are not setting up a judicial, or quasi-judicial, process to review convictions and cautions at all. That is completely outside the personal difficulties that someone might or might not have. It is simply not the purpose or intention behind the clause.

Diana Johnson (Labour, Kingston upon Hull North)

The Government are ruling out the opportunity ever to have an oral hearing, but does the Minister not envisage that it might be sensible, if evidence were difficult to understand or there was concern about it, to have the opportunity for an oral hearing? It would not be the standard procedure, but it might be sensible in certain instances to allow the opportunity for an oral hearing. The clause, as currently drafted, rules out that opportunity altogether.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That is partly because of the message that it sends out, and partly because of the sensitivities. The decision is made on factual written information, which is either supplied by the applicant—name, time, date, conviction and place of conviction—or contained in the records. As far as I can see, nothing can be added orally that can change the facts on the page, because it is not a hearing.

Michael Ellis (Conservative, Northampton North)

Clause 84(2) states:

“The Secretary of State may not hold an oral hearing”.

If the Secretary of State were to hold an oral hearing, they would be taking on a judicial role, because they might be asked to decide whether the original conduct that constituted the offence was consensual. That is not something for the Home Secretary; that would be something for the courts. As well as the question of sensitivity, which Stonewall has understandably raised, and the embarrassment factor of having a hearing, there is also the legal point that having an oral hearing would be undesirable for the reasons that I have just given.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank my hon. Friend, and indeed we would not want to put the Home Secretary in the position of making any sort of judicial decisions. Thinking more widely about whether an applicant might want to explain some piece of information, I cannot see why that could not be done in the submission of factual evidence on the page. I do not think that oral hearings would help at all in that regard. They detract from the purpose of the proposal, which is to correct a wrong—in fact, on paper, which has existed for however long it has existed—so that it may be disregarded in future. That is our aim. The Bill sets up an administrative process that allows an individual to apply to have a conviction or caution that falls within the scope of clause 82 disregarded, so that they do not have to declare it for the purpose of CRB checks. We are not revisiting the original issue at all; it is simply so that people in that situation can have such convictions disregarded.

Gareth Johnson (Conservative, Dartford)

Does the Minister agree that if we had oral hearings, there would be a further concern over what guidelines and rules would apply to them? Would they take place in private or in public, for example? If they took place in private, they might be seen to be underhand; if they took place in public, that would put a railroad through the questions of sensitivity that have been raised.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank my hon. Friend. He highlights the difficulty once we begin down a track that adds a different process that is not central to the purpose of alleviating the position of a past that is no longer criminal being exposed on the Criminal Records Bureau certificate. We would be going down the path that made matters complicated and difficult. For that reason, I hope that the hon. Lady will not press the amendment to a Division. While I understand where it is coming from, I hope that I have persuaded her that it would not be helpful to the cause and the remedy that we want.

On amendment 205, we do not consider that it is necessary to specify in the Bill that the applicant will be given the reasons behind the Secretary of State’s decision or that a decision, when new information comes to light, will be reviewed. We expect most people to be happy simply to hear from the Secretary of State that their application has been approved, but if it were refused, reasons will be given. That is implicit in clause 89, which provides for a right of appeal. If an applicant is to exercise that right, it follows that the applicant will need to know why his application has been rejected. I assure the hon. Lady that, if the applicant produces additional information that impacts on the decision, it will be considered and, when appropriate, the decision will be altered without the applicant having to go through the formalities of an appeal. That is to preclude having in most cases to go anywhere near the High Court. More information can be introduced by the applicant at any time.

Diana Johnson (Labour, Kingston upon Hull North)

Can the Minister explain where that is set out in the Bill? I might have the position wrong, but at the moment the only remedy open to someone who has received a refusal is to go to the High Court. At what point will the person receive the reasons for the refusal? If they have been refused, how will they know if the refusal is correct or not? They would not know if the reasons were not given at the decision-making stage.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I am sorry if I was unclear. The reasons for the refusal will be given in the letter from the Home Secretary. How would people be able to appeal, if they did not know the reasons? The reasons will be given. Such matters are not set out in the Bill, but it is implicit in the fact that clause 89 allows people to appeal to the High Court. Before they reach that stage, they must know the reasons for the original refusal. Such an explanation will be received in the letter as will details of what the applicant can do if he disagrees with the reasons why his application was rejected.

I want to assure the hon. Lady about matters before the position covered by clause 89 is reached. Having received the letter setting out the reasons for his refusal, if the applicant discovers extra information that he did not give in the first wave of information or certain matters lead to other information that will be helpful, he can then submit that to the Home Secretary and it will be reviewed without the need to go on to an appeal stage. Such cases are not finite. The Home Secretary would be minded to consider more information that came on the back of the first refusal.

Diana Johnson (Labour, Kingston upon Hull North)

I do not wish to make heavy weather of the issue because we all agree that such an approach is sensible. However, if we are setting up such a process, there needs to be clarity about what the process is so that everyone can understand it. Given the clauses as drafted, there will be an opportunity to make the application to the Secretary of State to make her or his decision, but nothing in the Bill refers to the review procedure. Perhaps the Minister can help me about that. It seems that the applicant would have to go straight to the High Court.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It is not in the Bill. Clause 89 sets out the ultimate appeal process, but the original issue for the applicant in terms of the publicity and the application form, all of the information about what can be done if the application is refused—[ Interruption. ] It says here that we will set out the processes in clear guidance to applicants. That is what I am saying, but in another way. Clear information will be available to those thinking of applying. Once they apply, it will be made clear what the process is, what they are likely to receive if their application is accepted or refused and what they can do if they wish to correct a point or if there is more information. The guidance will be clear. None of that is on the face of the Bill in those terms, because it is the simple side of the process.

If the ultimate process fails after all the iterative stages and guidance and there is still a dispute about the Home Secretary’s decision, that is when it will come to the High Court appeal in clause 89, which is a whole different level. Until that point, we will try to sort out between the Home Secretary and the applicant what information is needed and how it has been judged.

Diana Johnson (Labour, Kingston upon Hull North)

I understand all that. I am just concerned that we as a Committee should be clear about exactly what the process is for dealing with that sensitive issue. I am not sure that waiting for later guidance sends the right message. We might introduce a clause—we could return to this on Report—to make it clear that there will be an opportunity for review. In such matters, we need to be clear that the public will want to understand fully what they are getting themselves involved in and what the process is. I am not sure that it is clear, having listened to the Minister.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

That is why I am trying to elucidate for the hon. Lady that everything will be set out in clear guidance. However, for the avoidance of doubt, there will be a process whereby the applicant will know what information will be provided, what is happening, how to apply, what a granting of the application means, what a refusal means and that the reasons for a refusal will be included in case alterations or more information are needed. I assure her that if the applicant produces additional information affecting the decision made, it will be considered and, where appropriate, the decision will be altered, without the applicant’s having to go through the formalities of an appeal. I hope that that puts clearly on the record the intention and practice of the Government.

Amendment 206 seeks to provide for minor or administrative errors to be remedied without the need for the applicant to lodge a formal appeal to the High Court. As I said, I share the hon. Lady’s desire not to go to the High Court and to avoid unnecessary appeals. I therefore endorse the principle underpinning the amendment, although I consider the amendment unnecessary, as I have just explained that there are other administrative processes and stages through which an applicant can go before getting to the point of appeal.

As I said, if the applicant produces additional information affecting the decision, it will be considered. We also want to adopt that approach where the applicant belatedly comes up with new evidence to support his application. For example, if he has sent one lot of information and suddenly thinks, “There is something I could have added,” he is welcome to do so. As I said, it is in no one’s interest to let matters proceed to the High Court when that can be avoided.

Diana Johnson (Labour, Kingston upon Hull North)

We have not seen the guidance, so we do not know exactly what is in it. Will it include time scales for dealing with that process? The Minister says that further information can be provided later, but will there be a time limit for submitting all the evidence relating to applications? Will that be in the guidance?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I assure the hon. Lady that it will. The reasons are an important point. She is absolutely right: if an applicant receives a refusal, they will obviously want to know the reason. We envisage that the letter advising the applicant that his application has been rejected will contain a note saying that if additional information comes to light or there was an error in the original application, the application should let the Home Office know as soon as possible.

We are trying to make it informal and easy for an applicant to add things or challenge a decision at a lower, administrative level, before the matter ever gets to the High Court. I also want to put it on the record that the fact that a decision is questioned or more information is added does not mean that the refusal will be reversed, but it will ensure that all relevant information is considered without affecting the applicant’s right to appeal to the High Court should the decision to refuse the application be confirmed. Having explained our approach to applications to have a conviction or caution disregarded, I hope that the hon. Lady will withdraw the amendment.

Diana Johnson (Labour, Kingston upon Hull North)

I have listened carefully to what the Minister said and, again, we support what the clauses are doing. However, we tabled the amendments because there needs to be a clear process that everybody understands, and it would be better to have the option—the option only—available to the Home Secretary if she felt that it was appropriate to have an oral hearing. We are not saying that there should be such hearings in all cases. Clearly, the vast majority will be based on paperwork, but it would be foolish to say that there will not be those few cases where it would be helpful for the Home Secretary to have the option of some form of oral hearing.

Nicola Blackwood (Conservative, Oxford West and Abingdon)

Does the hon. Lady not think that the possibility of an oral hearing may actually put some people off applying?

Diana Johnson (Labour, Kingston upon Hull North)

That may be the case, but for instances in which information is not available or records have been lost and decisions are taken that are not favourable to the applicant, people may feel that being able to go and say exactly what happened may be helpful. It is an option; that is all we are saying. Ruling out the Secretary of State’s ever having that option is not sensible.

Rehman Chishti (Conservative, Gillingham and Rainham)

The hon. Lady says that there are oral hearings in some cases, but not in others. In the interests of fairness and consistency, should there not simply be one, written method? Otherwise, there will be an inconsistent approach, which cannot be fair.

Diana Johnson (Labour, Kingston upon Hull North)

I hear what the hon. Gentleman says, but this type of procedure is quite unusual. Given the changes that we have brought about in legislation and the going back and looking at historical offences and convictions, we probably need an element of flexibility. I know that the Minister has spoken at length about wanting to make things as accessible as possible to applicants. Categorically ruling out the option for the Home Secretary is a mistake. I want to test the Committee’s opinion on amendment 204.

Amendment 205 links in with the belief that we need to make the procedure as clear as possible to applicants, so that if they are going to start the process, they can fully appreciate and understand what will happen. Having it clearly set out that there will be an opportunity for a review and that clear reasons will be given by the Secretary of State will help the process. It will also help all applicants understand that if they are refused, there is not just the High Court, with all the costs and problems that it entails; there is a further opportunity for a review if information is forthcoming. On that basis, I want to test the Committee on amendment 205 as well. I beg to ask leave to withdraw amendment 206.

Diana Johnson (Labour, Kingston upon Hull North)

I want to pick up on a point in Stonewall’s submission relating to making contact with the applicant at their home address, which the applicant may not always want. What thought has the Minister given to how the applicant would be informed of that decision and whether there are other methods of providing the information in a way that would help such an applicant?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Lady is absolutely right. The whole process is intended to be as easy and comfortable as possible for the applicant. Should the applicant want to give a different address for receipt of information or details of a co-recipient—someone who could receive the information on their behalf—that will be absolutely fine, and they should be able to do that. There is no hesitation in making this as easy and unembarrassing as possible to remove any difficulties that might be encountered and to ensure that the process can be followed and that the remedy is received with the least difficulty possible. On that basis, I ask the Committee to let the clause stand part of the Bill.

Clause 85

Diana Johnson (Labour, Kingston upon Hull North)

The clause deals with the technical detail of how the disregard for conviction would take place and it refers to a data controller. Will the Minister explain whether that would be a senior civil servant? Who will be the data controller? As we know, this is sensitive information, and the Minister has said that she wants a very limited number of people to have access to it. I therefore seek reassurance about who the data controller would be.

I also seek reassurance about the process. The clause says that the data controller will be responsible for deleting all records of the conviction

“as soon as reasonably practicable.”

Will the Minister give some indication of her thinking on how long that process will take? Does she feel that it should be expedited once the decision has been made? It would be helpful to know that. Does the Minister have anything to say about the impact of the amendments that have been tabled on the abolition of the ISA and the Criminal Records Bureau and on the introduction of the new body? Will they make things easier? Would the period involved be longer because the new body was being set up to deal with these matters?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The provisions are about the official records. If the records are police records, the data controller is likely to be a chief officer of police—that is the relevant point. The onus is on the police to delete their records as soon as is reasonably practicable. We will expect people to act swiftly in all regards as soon as a decision is made, so as soon as is viable.

The creation of the disclosure and barring service will have no impact on those decisions or the speed. We will come on to that, and I look forward to that debate, because in principle it is a sensible solution to the changes that have been made. In the discussions that we have had to date, no impact has been suggested from the proposed merger of the ISA and the CRB.

Michael Ellis (Conservative, Northampton North)

Does my hon. Friend acknowledge that some records may be quite elderly? If, hypothetically speaking, a person in his 80s who was convicted in his early 20s wanted to have records expunged, one might have to research back into records dating from perhaps the 1940s. We must not be too prescriptive, therefore, about record keepers, as they used to be called, or data controllers, as they seem to be called now, annulling those records.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

My hon. Friend makes a really valid point. Ultimately, even if it takes a bit longer to get to the right answer, that is absolutely the correct approach and it is the approach that the Government would take. To sum up, clause 85 sets out what happens if an application to disregard a conviction or caution is successful. It might help the Committee if I explain what is meant by “disregard”. I know that in some quarters there was a suggestion that the Government had made some sort of change, because a promise had been made to delete these records.

The purpose of the proposals is to ensure that the personal details of an individual who had been convicted or cautioned under section 12 or 13 of the Sexual Offences Act 1956 are not disclosed. Clause 85 sets out that the Secretary of State will tell the relevant data controller—or record keeper—to delete the records of the conviction or caution in question. That will apply to records that are kept on the police national computer and local police records.

Some records are kept in formats that do not allow for simple deletion, however. Those include court records, which are often kept in bound volumes containing details of thousands of convictions, and records of historical interest such as those kept by the National Archives. One cannot destroy such pages. In such cases—where it is not possible to destroy the physical record, because to do so would mean the destruction of other criminal records or the destruction of documents of historical importance—we have provided for the relevant conviction or caution to be annotated with a statement that it is a disregarded conviction or caution, and that the effect of such a disregard is that the person is to be treated for all purposes in law as though they had not committed the offence. Obviously, if it is an electronic record, it will be deleted.

Tom Watson (Labour, West Bromwich East)

My understanding is that the National Archives are going through an enormous digitisation process. Does that mean that the paper records that are so annotated could be digitised, and therefore might be electronically searchable?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will look into that point. The aim, intention and objective is to make sure that in no circumstances can the history of such a record come to light in an inappropriate manner.

Michael Ellis (Conservative, Northampton North)

I may be able to assist.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will let my hon. Friend assist me. He is, after all, in law.

Michael Ellis (Conservative, Northampton North)

In normal circumstances, criminal records ought to be secret for 100 years. They ought not to be searchable by strangers, if that is what the hon. Member for West Bromwich East is referring to, even well after the decease of the convicted person.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It is quite helpful at times to have a legal Back Bencher who can inform me of such details. Criminal records are not searchable.

Tom Watson (Labour, West Bromwich East)

Through the Minister to the legal adviser sitting at the back: that was not really the point of my question. My motive is born of a lack of faith in the electronic records that are held by central Government, because I have some experience of those. I am trying to establish whether we could inadvertently be producing a new digital record from existing paper records. I am not trying to catch the Minister out in any way; I am trying to find out whether the homework has been done on this.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The hon. Gentleman has put an important point on the record. Paper records will be annotated and National Archives may be searchable online but not necessarily show the original document online. I will write to the hon. Gentleman about this. It is right that we make it as certain as possible that accidental revelations do not occur because of our online media. We have recently seen examples of information revealed on the internet that not everyone wanted revealed.

The physical record will still exist in the National Archives, but anyone who sees the record there will be made aware of the consequences of the disregard, which I will go into under clause 86. Criminal offences exist under the Data Protection Act relating to unlawful obtaining of personal data. We will set out the records covered by this process in secondary legislation.

We are therefore delivering on our commitment to ensure that these disregarded convictions do not show up on criminal record checks. While we cannot physically delete every single record of a disregarded conviction or caution, for the reasons I have given, the fact that a physical record may still exist will not alter the fact that nothing about a disregarded conviction or caution should be disclosed.

Clause 86

Diana Johnson (Labour, Kingston upon Hull North)

In a previous contribution, the Minister said that she was going to talk about the disregard, and obviously Clause 86 deals with the effects of disregarding a conviction. As I understand it, the person will be treated as if the conviction never existed. The conviction cannot be mentioned in judicial proceedings, it will not apply to agreements demanding the disclosure of convictions and it cannot be used as grounds for dismissal. What remedy would be open to an applicant who had gone through the process of having the conviction disregarded and then found themselves in a position where that conviction was being used in an inappropriate way? Would remedies would be open to individual applicants in that case?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will come to that point. We are unable to delete every newspaper reporting of any conviction or caution happening at the time. We can be clear for the purposes of disregard for criminal records, for judicial hearings, all those purposes; however, we cannot say that the actual act never happened. Although it may be no longer relevant or disregarded, as if it never happened in criminal law, we cannot expunge it from history because it actually happened and it might have been reported on. It is possible that a newspaper article somewhere will exist.

I will come back to what remedy might be available should the conviction accidentally be exposed—for example, for the reasons mentioned by the hon. Member for West Bromwich East.

Let me put it simply. Once a conviction or caution is disregarded, the person is treated for all purposes in law as though the offence, and what followed from it, never happened. The record of the conviction or caution can never be disclosed and the person to whom the disregard applies is under no legal obligation—I want to put this on the record—to disclose it on any form of criminal record check or enquiry. A disregarded conviction or caution will not appear on any criminal record certificate issued by the Criminal Records Bureau and it cannot be revealed in any kind of judicial proceedings.

In this respect we are going beyond the provisions of the Rehabilitation of Offenders Act 1974. Under that Act, even spent convictions are disclosable in certain circumstances, and will be on CRB certificates, as we have discussed. Under the Bill, that will not be the case for disregarded convictions and cautions, and a person with such a conviction or caution will be treated for all purposes as if he had never committed the offence and therefore had never been charged, prosecuted, convicted and sentenced for the offence.

I would like to make clear an important point. The provisions will apply only when an individual has had a conviction or caution disregarded. As I explained under clause 82, an application to have a conviction or caution for an offence under section 12 or 13 of the Sexual Offences Act 1956 disregarded is at the individual’s discretion. If the individual does not apply, or applies and is not successful, the conviction or caution will remain, and can be disclosed in a CRB check. I would not like the message inadvertently to go out that there is an automatic deletion; the deletion is applicant-applied-for. That is why we will be working with interested parties, such as Stonewall, to advertise the measure and to encourage as many individuals as possible who come within its scope to apply and have their conviction or caution disregarded.

The hon. Member for Kingston upon Hull North asked about the remedy. An applicant can take legal action if their application for a conviction to be disregarded is refused inappropriately, in employment cases for example, and that can be done at an employment tribunal.

Tom Watson (Labour, West Bromwich East)

Allegations have been made against people standing in elections. Does the Minister envisage a change to electoral law to create a sanction for people illegally using such information?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

No, I do not. The same provisions will apply, in that any individual can take legal action.

Clause 87

Diana Johnson (Labour, Kingston upon Hull North)

As I understand it, nothing in the Bill alters the right of the Crown to issue pardons, so why is the clause necessary?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It is there probably because it is better to have a clear explanation in the Bill of the distinction between a royal pardon and Her Majesty’s auspices, and to state that the provisions do not change the situation with regard to Her Majesty. The clause provides that nothing in the Bill affects Her Majesty’s power to grant a free pardon, quash a conviction or sentence, or commute a sentence. The power to issue a royal pardon remains, irrespective of the operation of the provisions. Her Majesty would take precedence over any decision to disregard, or not, an individual’s record, and that needs to be made clear.

Clause 88

Diana Johnson (Labour, Kingston upon Hull North)

The clause contains a set of definitions of key terms used in the Bill, and subsection (3) states:

“For the purposes of section 86, circumstances ancillary to a caution are any circumstances of—”,

and there then follows a long list of circumstances. What happens to information held on police databases that constitutes evidence that a person has engaged in homosexual activity, when there has not necessarily been a conviction? Will the police have to take the information off their database, and is there a mechanism for such deletion? I am worried about historical information, because there has been variation around the country regarding what information forces hold and why, and sometimes they hold information that we would not expect to be held.

Diana Johnson (Labour, Kingston upon Hull North)

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?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Kingston upon Hull North)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Kingston upon Hull North)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 89

Diana Johnson (Labour, Kingston upon Hull North)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Kingston upon Hull North)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Conservative, Gillingham and Rainham)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 90

Diana Johnson (Labour, Kingston upon Hull North)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 92

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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

Martin Caton (Labour, Gower)

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

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Vernon Coaker (Labour, Gedling)

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.

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 (Liberal Democrat, Carshalton and Wallington)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Liberal Democrat, Carshalton and Wallington)

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 (Labour, Gedling)

I would have been ruder than that.

Clive Efford (Labour, Eltham)

I rest my case.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

I did.

Vernon Coaker (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 93

Vernon Coaker (Labour, Gedling)

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; inparagraph (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 (Liberal Democrat, Carshalton and Wallington)

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.

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Liberal Democrat, Carshalton and Wallington)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 94

Jim Shannon (DUP, Strangford)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 95

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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”.’.

Martin Caton (Labour, Gower)

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

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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.

Vernon Coaker (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

I do not understand that.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will come back to that point in due course.

Vernon Coaker (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

There is some confusion about the budget in the research paper.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will come back to that point.

Clause 96

Vernon Coaker (Labour, Gedling)

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?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 97

Vernon Coaker (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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

Vernon Coaker (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Negative.

Vernon Coaker (Labour, Gedling)

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

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 98

Vernon Coaker (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Gedling)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Clause 99

Clive Efford (Labour, Eltham)

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 (Conservative, Oxford West and Abingdon)

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 (Labour, Eltham)

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.

James Brokenshire (Conservative, Old Bexley and Sidcup)

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.

Clause 100

Clive Efford (Labour, Eltham)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Schedule 7

James Brokenshire (Conservative, Old Bexley and Sidcup)

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

Martin Caton (Labour, Gower)

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

James Brokenshire (Conservative, Old Bexley and Sidcup)

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 (Labour, Eltham)

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 (Conservative, Old Bexley and Sidcup)

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.

Vernon Coaker (Labour, Gedling)

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 (Conservative, Old Bexley and Sidcup)

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

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

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

Martin Caton (Labour, Gower)

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 (Liberal Democrat, Hornsey and Wood Green)

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 (Labour, Kingston upon Hull North)

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 (Liberal Democrat, Hornsey and Wood Green)

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.

Schedule 8