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Draft Bill (29.12.20)
A
BILL
TO
Implement, and make other provision in connection with, the Trade and Cooperation
Agreement; to make further provision in connection with the United Kingdom’s future
relationship with the EU and its member States; to make related provision about
passenger name record data, customs and privileges and immunities; and for
connected purposes.
BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
PART 1
SECURITY
Criminal records
1 Duty to notify member States of convictions.
(1) This section applies where—
(a) an individual who is a national of a member State has been convicted
by or before a court in a part of the United Kingdom, and
(b) the conviction is recorded in the criminal records database for that part.
(2) This section also applies where—
(a) an individual who is a national of a member State has been convicted
in UK service disciplinary proceedings (whether or not in a part of the
United Kingdom), and
(b) the conviction is recorded in the criminal records database for any part
of the United Kingdom.
(3) The designated UK authority must notify the central authority of the member State of the conviction.
(4) If the individual is a national of more than one member State, the designated
UK authority must notify the central authority of each of those member States
of the conviction.
(5) Notification under this section must be given before the end of the period of 28
days beginning with the day on which the conviction is recorded in the
criminal records database.
(6) A notification under this section—
(a) must include the information listed in Schedule 1, and
(b) may include any other information that the designated UK authority
considers appropriate.
(7) If the record of the conviction is amended so as to alter or delete any of the
information mentioned in paragraph 13, 14, 16, 17, 19 or 20 of Schedule 1
(information about the conviction), subsections (3) to (6) apply in relation to the
amendment as they apply in relation to the conviction.
(8) Nothing in this section requires the designated UK authority to disclose any
information if the disclosure would contravene the data protection legislation
(but, in determining whether the disclosure would contravene that legislation,
the duties imposed by this section are to be taken into account).
(9) For the purposes of this section it does not matter if the individual is a national
of the United Kingdom as well as a national of a member State.
2 Retention of information received from member States
(1) This section applies where—
(a) an individual who is a UK national has been convicted under the law
of a member State, and
(b) the central authority of the member State notifies the designated UK
authority of the conviction.
(2) The designated UK authority must retain a record of—
(a) the conviction, and
(b) any other information listed in Schedule 1 that is included in the
notification.
(3) The record may be retained in whatever way the designated UK authority
considers appropriate.
(4) If the designated UK authority is notified by the central authority of any
amendment or deletion relating to the information contained in the record, the
designated UK authority must amend the record accordingly.
(5) Nothing in this section requires the designated UK authority to retain any
information if the retention would contravene the data protection legislation
(but, in determining whether the retention would contravene that legislation,
the duty imposed by subsection (2) is to be taken into account).
3 Transfers to third countries of personal data notified under section 2
(1) Personal data notified to the designated UK authority as mentioned in section
2 may not be transferred to a third country unless conditions A and B are met.
(2) Condition A is that the transfer—
(a) is based on adequacy regulations, or
(b) is based on there being appropriate safeguards.
(3) For the purposes of subsection (2)—
(a) the reference to a transfer being based on adequacy regulations has the
same meaning as it has for the purposes of Part 3 of the Data Protection
Act 2018;
(b) the reference to a transfer being based on there being appropriate
safeguards is to be read in accordance with section 75 of that Act.
(4) Condition B is that the intended recipient has functions relating to the
prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, including the safeguarding against and the
prevention of threats to public security.
(5) See also section 73 of the Data Protection Act 2018 for additional conditions
that must be met before personal data may be transferred to a third country (in
particular, that the transfer must be necessary for any of the law enforcement
purposes).
(6) Where personal data within subsection (1) is transferred to a third country, the
person making the transfer must make it a condition of the transfer that the
data may be used only for the purpose for which it is being transferred.
(7) In this section—
“personal data” has the same meaning as in the Data Protection Act 2018
(see section 3(2) of that Act);
“third country” means a country or territory other than—
(a) the United Kingdom, or
(b) a member State.
4 Requests for information from member States
(1) The designated UK authority may, for any of the law enforcement purposes,
make a request to the central authority of a member State for information
relating to any overseas convictions of an individual recorded in a criminal
records database of the member State.
(2) If an individual who is a national of a member State makes a request to the
designated UK authority for information relating to the individual’s overseas
convictions, the designated UK authority must make a request to the central
authority of that member State for information relating to any overseas
convictions of the individual recorded in a criminal records database of the
member State.
(3) If the individual is a national of more than one member State, the designated
UK authority must make a request to the central authority of each of those
member States for the information.
(4) Any information provided to the designated UK authority in response to a
request made under this section may be used only—
(a) for the purpose or purposes for which it was requested, and
(b) in accordance with any restrictions specified by the central authority
that provided it.
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(5) But subsection (4) does not prohibit the use of such information for the purpose
of preventing an immediate and serious threat to public security.
(6) In this section “overseas conviction” means a conviction under the law of a
country or territory outside the United Kingdom.
5 Requests for information made by member States
(1) If—
(a) the central authority of a member State makes a request to the
designated UK authority for information relating to an individual’s
convictions, and
(b) conditions A and B are met,
the designated UK authority must, as soon as practicable before the end of the
relevant period, provide the information to the central authority (but see
subsection (5)).
(2) Condition A is that the request is made—
(a) for any of the law enforcement purposes, or
(b) for the purposes of enabling the central authority to comply with a
request made by an individual who is a UK national for information
relating to the individual’s convictions.
(3) Condition B is that the information—
(a) is recorded in the criminal records database for a part of the United
Kingdom, or
(b) is retained in accordance with section 2.
(4) “The relevant period” means the period of 20 working days beginning with the
day on which the designated UK authority receives the request.
(5) Subsection (1) does not require the designated UK authority to provide any
information relating to a conviction that is spent unless—
(a) the request has been made for the purposes of any criminal
investigation or criminal proceedings, or
(b) subsection (6) applies.
(6) If the request has been made for the purposes of determining the suitability of
an individual to work with children, the information to be provided under
subsection (1) must include any information relating to any conviction of the
individual for a child sexual offence (whether or not spent).
(7) Nothing in this section requires the designated UK authority to disclose any
information if the disclosure would contravene the data protection legislation
(but, in determining whether the disclosure would contravene that legislation,
the duties imposed by this section are to be taken into account).
(8) In this section—
“ancillary offence” means—
(a) an offence of attempting or conspiring to commit a child sexual
offence,
(b) an offence under Part 2 of the Serious Crime Act 2007 in relation
to a child sexual offence,
(c) an offence of inciting a person to commit a child sexual offence,
(d) an offence of aiding, abetting, counselling or procuring the
commission of a child sexual offence, or
(e) an offence of being involved art and part in the commission of
a child sexual offence;
“child” means an individual under the age of 18;
“child sexual offence” means—
(a) an offence consisting of—
(i) the sexual abuse or sexual exploitation of a child, or
(ii) conduct relating to such abuse or exploitation,
(b) an offence relating to indecent images of a child,
(c) an offence consisting of any other behaviour carried out in
relation to a child that is of a sexual nature or carried out for
sexual purposes, or
(d) an ancillary offence;
and for these purposes “offence” includes an offence under a law that
is no longer in force;
“conviction” means—
(a) a conviction by or before a court in a part of the United
Kingdom,
(b) a conviction in UK service disciplinary proceedings (whether or
not in a part of the United Kingdom), or
(c) a conviction under the law of a country or territory outside the
United Kingdom;
“criminal proceedings” means—
(a) proceedings before a court for dealing with an individual
accused of an offence, or
(b) proceedings before a court for dealing with an individual
convicted of an offence, including proceedings in respect of a
sentence or order;
“working day” means any day other than—
(a) Saturday or Sunday,
(b) Christmas Day,
(c) Good Friday, and
(d) any day which is a bank holiday in England and Wales under
the Banking and Financial Dealings Act 1971.
(9) For the purposes of this section a conviction is “spent” if—
(a) in the case of a conviction in Northern Ireland, it is a spent conviction
for the purposes of the Rehabilitation of Offenders (Northern Ireland)
Order 1978 (S.I. 1978/1908 (N.I. 27));
(b) in any other case, it is a spent conviction for the purposes of the
Rehabilitation of Offenders Act 1974.
6 Interpretation of the criminal records provisions
(1) In the criminal records provisions—
“central authority”, in relation to a member State, means an authority
designated by the government of that member State as the appropriate
authority for requesting, receiving or providing information relating to
convictions;
“conviction”, in relation to UK service disciplinary proceedings—
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(a) in the case of proceedings in respect of a service offence,
includes anything that under section 376(1) and (2) of the
Armed Forces Act 2006 (which relates to summary hearings and
the Summary Appeal Court) is to be treated as a conviction for
the purposes of that Act;
(b) in the case of any other UK service disciplinary proceedings,
includes a finding of guilt in those proceedings;
and “convicted”, in relation to UK service disciplinary proceedings, is
to be read accordingly;
“criminal records database” means—
(a) in relation to England and Wales, the names database held by
the Secretary of State for the use of constables;
(b) in relation to Scotland, the criminal history database of the
Police Service of Scotland held for the use of police forces
generally;
(c) in relation to Northern Ireland, the names database maintained
by the Department of Justice in Northern Ireland for the
purpose of recording convictions and cautions;
(d) in relation to a member State, any database maintained in
respect of the member State that corresponds to the criminal
records database for England and Wales;
“the criminal records provisions” means sections 1 to 5, this section and
Schedule 1;
“designated UK authority” means a person designated for the purposes of
the criminal records provisions by a direction given by the Secretary of
State;
“the law enforcement purposes” means the purposes of the prevention,
investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, including the safeguarding against and
the prevention of threats to public security;
“service offence” means—
(a) a service offence within the meaning of the Armed Forces Act
2006, or
(b) an SDA offence within the meaning of the Armed Forces Act
2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);
“UK national” means an individual who is—
(a) a British citizen, a British overseas territories citizen, a British
National (Overseas) or a British Overseas citizen,
(b) a person who under the British Nationality Act 1981 is a British
subject, or
(c) a British protected person within the meaning of that Act;
“UK service disciplinary proceedings” means—
(a) any proceedings (whether or not before a court) in respect of a
service offence (except proceedings before a civilian court
within the meaning of the Armed Forces Act 2006);
(b) any proceedings under the Army Act 1955, the Air Force Act
1955, or the Naval Discipline Act 1957 (whether before a courtmartial or before any other court or person authorised under
any of those Acts to award a punishment in respect of an
offence);
(c) any proceedings before a Standing Civilian Court established
under the Armed Forces Act 1976.
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(2) The following provisions (which deem a conviction of a person discharged not
to be a conviction) do not apply for the purposes of the criminal records
provisions to a conviction of an individual for an offence in respect of which an
order has been made discharging the individual absolutely or conditionally—
(a) section 247 of the Criminal Procedure (Scotland) Act 1995;
(b) Article 6 of the Criminal Justice (Northern Ireland) Order 1996 (S.I.
1996/3160 (N.I. 24));
(c) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;
(d) section 82 of the Sentencing Code;
(e) section 187 of the Armed Forces Act 2006 or any corresponding earlier
enactment.
(3) The appropriate national authority may by regulations amend this section so
as to change the meaning of “criminal records database” in relation to a part of
the United Kingdom.
(4) For the purposes of subsection (3) the “appropriate national authority” is—
(a) in relation to England and Wales, the Secretary of State;
(b) in relation to Scotland, the Scottish Ministers;
(c) in relation to Northern Ireland, the Department of Justice in Northern
Ireland.
Passenger and vehicle registration data
7 Passenger name record data
In Schedule 2—
(a) Part 1 amends the Passenger Name Record Data and Miscellaneous
Amendments Regulations 2018 (S.I. 2018/598) (the “PNR regulations”);
(b) Part 2 makes provision for an interim period;
(c) Part 3 confers power to modify the PNR regulations to apply to sea and
rail travel.
8 Disclosure of vehicle registration data
(1) The Secretary of State may disclose vehicle registration data in accordance
with—
(a) Article LAW.PRUM.15 of the Trade and Cooperation Agreement
(automated searching of vehicle registration data), and
(b) Chapter 3 of Annex LAW-1 to that agreement (exchange of vehicle
registration data).
(2) A disclosure under this section does not breach—
(a) any obligation of confidence owed by the Secretary of State, or
(b) any other restriction on the disclosure of data (however imposed).
(3) Nothing in this section authorises the making of a disclosure which
contravenes the data protection legislation (save that the power conferred by
this section is to be taken into account in determining whether any disclosure
contravenes that legislation).
(4) Nothing in this section limits the circumstances in which data may be disclosed
under any other enactment or rule of law.
(5) “Vehicle registration data” has the meaning given by Article LAW.PRUM.6 of
the Trade and Cooperation Agreement (definitions).
Evidence
9 Mutual assistance in criminal matters
Schedule 3 contains provision about mutual assistance in criminal matters.
10 Accreditation of forensic service providers
(1) The Accreditation of Forensic Service Providers Regulations 2018 (S.I. 2018/
1276) are amended as follows.
(2) In regulation 2 (interpretation)—
(a) in the definitions of “dactyloscopic data”, “DNA-profile” and
“laboratory activity”, for “the Framework Decision” substitute “Title II
of Part 3 of the Trade and Cooperation Agreement (exchanges of DNA,
fingerprints and vehicle registration data etc)”,
(b) omit the definition of “Framework Decision”, and
(c) after the definition of “relevant employee” insert—
““the Trade and Cooperation Agreement” has the same
meaning as in the European Union (Future
Relationship) Act 2020 (see section 37 of that Act)”.
(3) In regulation 4 (requirement to use an accredited forensic service provider) in
paragraph (2)(b) for “Article 4 of the Framework Decision” substitute
“paragraph 1 of Article LAW.PRUM.16 of the Trade and Cooperation
Agreement”.
Extradition
11 Member States to remain category 1 territories
(1) In the Extradition Act 2003 (Designation of Part 1 Territories) Order 2003 (S.I.
2003/3333) after Article 1 insert—
“1A The following territories are designated for the purposes of Part 1 of
the Extradition Act 2003—
Austria,
Belgium,
Bulgaria,
Croatia,
Cyprus,
Czech Republic,
Denmark,
Estonia,
Finland,
France,
Germany,
Greece,
Hungary,
5
10
15
20
25
30
35
40
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Ireland,
Italy,
Latvia,
Lithuania,
Luxembourg,
Malta,
The Netherlands,
Poland,
Portugal,
Romania,
Slovakia,
Slovenia,
Spain,
Sweden.”
(2) In Article 2(2) and Article 3(2) of the Extradition Act 2003 (Designation of Part
2 Territories) Order 2003 (S.I. 2003/3334) omit the entry for each territory that
is designated for the purposes of Part 1 of the Extradition Act 2003 by reason
of subsection (1) of this section.
12 Dual criminality
(1) The Extradition Act 2003 is amended as follows.
(2) In section 64 (extradition offence: persons not sentenced for offence)—
(a) in subsection (2), for “, (4) or (5)” substitute “or (4)”, and
(b) omit subsection (5).
(3) In section 65 (extradition offence: persons sentenced for offence)—
(a) in subsection (2), for “, (4) or (5)” substitute “or (4)”, and
(b) omit subsection (5).
(4) In section 142 (issue of Part 3 warrant)—
(a) in subsection (6)(a), for “European framework” substitute “Trade and
Cooperation Agreement”, and
(b) in subsection (7), in the words before paragraph (a), for “European
framework” substitute “Trade and Cooperation Agreement”.
(5) In section 215 (European framework list)—
(a) in the heading, for “European framework” substitute “Trade and
Cooperation Agreement”, and
(b) in subsection (1), for “European framework” substitute “Trade and
Cooperation Agreement”.
(6) In Schedule 2 (European framework list)—
(a) in the heading, for “European framework” substitute “Trade and
Cooperation Agreement”,
(b) in paragraph 7, after “Corruption” insert “, including bribery”, and
(c) in paragraph 31, for “aircraft/ships” substitute “aircraft/ships/
spacecraft”.
European Union
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