New
Clause
15
Powers
to wind up:
supplementary
‘(1) The
Secretary of State may by order make such modifications as he considers
appropriate to the application
of—
(a) the Insolvency
Act 1986 (c. 45) by virtue of section 28(2);
or
(b) the Insolvency (Northern
Ireland) Order 1989 (S.I. 1989/2405 (N.I.19)) by virtue of section
29(2).
(2) Any modifications made by virtue of subsection
(1) are in addition to the modifications made by section 28(3) and (4)
or (as the case may be) section 29(3) and
(4).
(3) The Secretary of State
may by order make such consequential or supplementary provision,
applying with or without modifications any provision made by or under
an enactment, as he considers appropriate in connection with section
28(2) to (4) or 29(2) to
(4).
(4) An order made by
virtue of section 28(5) or (6), section 29(5) or (6) or subsection (1)
above may, in particular, contain consequential or supplementary
provision applying, with or without modifications, any provision made
by or under an enactment.’.—[Mr.
Coaker.]
Brought
up, read the First and Second time, and added to the
Bill.
New
Clause
16
Providers
of information society
services
‘(1) A serious crime
prevention order may not include terms which restrict the freedom of a
service provider who is established in an EEA state other than the
United Kingdom to provide information society services in relation to
an EEA state unless the conditions in subsections (2) and (3) are
met.
(2) The condition in this
subsection is that the court concerned considers that the
terms—
(a) are necessary
for the objective of protecting the public by preventing, restricting
or disrupting involvement
in—
(i) in the case of
an order in England and Wales, serious crime in England and Wales;
and
(ii) in the case of an
order in Northern Ireland, serious crime in Northern
Ireland;
(b) relate to an
information society service which prejudices that objective or presents
a serious and grave risk of prejudice to it;
and
(c) are proportionate to
that objective.
(3) The
conditions in this subsection are
that—
(a) a law
enforcement officer has requested the EEA state in which the service
provider is established to take measures which the law enforcement
officer considers to be of equivalent effect under the law of the EEA
state to the terms and the EEA state has failed to take the measures;
and
(b) a law enforcement
officer has notified the Commission of the European Communities and the
EEA state of—
(i) the
intention to seek an order containing the terms;
and
(ii) the
terms.
(4) It does not matter
for the purposes of subsection (3) whether the request or notification
is made before or after the making of the application for the
order.
(5) A serious crime
prevention order may not include terms which impose liabilities on
service providers of intermediary services so far as the imposition of
those liabilities would result in a contravention of Article 12, 13 or
14 of the E-Commerce Directive (various protections for service
providers of intermediary
services).
(6) A serious crime
prevention order may not include terms which impose a general
obligation on service providers of intermediary services covered by
Articles 12, 13 and 14 of the E-Commerce
Directive—
(a) to
monitor the information which they transmit or store when providing
those services; or
(b) actively
to seek facts or circumstances indicating illegal activity when
providing those services.
(7) For the purposes of this
section—
(a) a service
provider is established in a particular EEA state if he effectively
pursues an economic activity using a fixed establishment in that EEA
state for an indefinite period and he is a national of an EEA state or
a company or firm mentioned in Article 48 of the EEC
Treaty;
(b) the presence or use
in a particular place of equipment or other technical means of
providing an information society service does not, of itself,
constitute the establishment of a service
provider;
(c) where it cannot
be determined from which of a number of establishments a given
information society service is provided, that service is to be regarded
as provided from the establishment where the service provider has the
centre of his activities relating to the
service;
and
references to a person being established in an EEA state are to be read
accordingly.
(8) In this
section—
“the
E-Commerce Directive” means Directive 2000/31/EC of the European
Parliament and of the Council of 8 June 2000 on certain legal aspects
of information society services, in particular electronic commerce, in
the Internal Market (Directive on electronic
commerce);
“information
society
services”—
(c)
has the meaning given in Article 2(a) of the E-Commerce Directive
(which refers to Article 1(2) of Directive 98/34/EC of the European
Parliament and of the Council of 22 June 1998 laying down a procedure
for the provision of information in the field of technical standards
and regulations);
and
(d) is
summarised in recital 17 of the E-Commerce Directive as covering
“any service normally provided for remuneration, at a distance,
by means of electronic equipment for the processing (including digital
compression) and storage of data, and at the individual request of a
recipient of a
service”;
“intermediary
services” means an information society service
which—
(e)
consists in the provision of access to a communication network or the
transmission in a communication network of information provided by a
recipient of the
service;
(f)
consists in the transmission in a communication network of information
which—
(i) is
provided by a recipient of the service;
and
(ii) is the subject of
automatic, intermediate and temporary storage which is solely for the
purpose of making the onward transmission of the information to other
recipients of the service at their request more efficient;
or
(g) consists in
the storage of information provided by a recipient of the
service;
“recipient”,
in relation to a service, means any person who, for professional ends
or otherwise, uses an information society service, in particular for
the purposes of seeking information or making it accessible;
and
“service
provider” means a person providing an information society
service.
(9) For the purposes
of paragraph (a) of the definition of “intermediary
services”, the provision of access to a communication network
and the transmission of information in a communication network includes
the automatic, intermediate and transient storage of the information
transmitted so far as the storage is for the sole purpose of carrying
out the transmission in the
network.
(10) Subsection (9) does not apply if the
information is stored for longer than is reasonably necessary for the
transmission.’.—[Mr.
Coaker.]
Brought
up, and read the First
time.
Mr.
Coaker:
I beg to move, That the clause be read a Second
time.
For the
Committee’s information, the new clause is very technical in
nature and ensures simply that part 1 is compliant with the terms of
the e-commerce
directive.
Question
put and agreed
to.
Clause read
a Second time, and added to the
Bill.
New
Clause
17
Powers
for prosecutors to appear in cash recovery
proceedings
‘(1) After
section 302 of the Proceeds of Crime Act 2002 (c. 29)
(recovery of cash in summary proceedings: compensation)
insert—
“302A
Powers for prosecutors to appear in
proceedings
(1) The Director of
Public Prosecutions or the Director of Public Prosecutions for Northern
Ireland may appear for a constable in proceedings under this Chapter if
the Director—
(a) is
asked by, or on behalf of, a constable to do so,
and
(b) considers it
appropriate to do so.
(2) The
Director of Revenue and Customs Prosecutions may appear for the
Commissioners for Her Majesty’s Revenue and Customs or an
officer of Revenue and Customs in proceedings under this Chapter if the
Director—
(a) is asked
by, or on behalf of, the Commissioners for Her Majesty’s Revenue
and Customs or (as the case may be) an officer of Revenue and Customs
to do so, and
(b) considers it
appropriate to do so.
(3) The
Directors may charge fees for the provision of services under this
section.”
(2) After
section 2C(3) of that Act (prosecuting authorities) (as inserted by
Schedule 8 to this Act)
insert—
“(3A)
Subsection (3) does not apply to the functions of the Director of
Public Prosecutions, the Director of Public Prosecutions for Northern
Ireland and the Director of Revenue and Customs Prosecutions under
section
302A.”’.
(3)
After section 38(1) of the Commissioners for Revenue and Customs Act
2005 (c. 11) (conduct of prosecutions on behalf of the Office)
insert—
“(1A) An
individual who is not a member of the Office may be appointed by the
Director to appear
in—
(a) specified
proceedings, or
(b) a specified
class or description of
proceedings,
in which the
Director or a Prosecutor would otherwise appear by virtue of section
302A of the Proceeds of Crime Act 2002 (c. 29) (cash recovery
proceedings).”
(4) After
section 39(1) of that Act (designation of non-legal staff)
insert—
“(1A) The
Director may designate a member of the Office to appear
in—
(a) specified
proceedings, or
(b) a specified
class or description of
proceedings,
in which the
Director or a Prosecutor would otherwise appear by virtue of section
302A of the Proceeds of Crime Act 2002 (c. 29) (cash recovery
proceedings).”’.—[Mr.
Coaker.]
Brought
up, read the First and Second time, and added to the
Bill.
New Clause
1
Exempted
data
‘Nothing in this Part
authorises—
(a) the
disclosure of data contained
in—
(i) the National
Identity Register (as defined in the Identity Cards Act 2006 (c. 15)),
or
(ii) any database
established pursuant to section 12 of the Children Act 2004 (c. 31)
(information databases), or
(b)
the use of such data in data matching
exercises.’.—[Mr.
Browne.]
Brought
up, and read the First
time.
Mr.
Browne:
I beg to move, That the clause be read a Second
time.
The new clause
was suggested by Liberty, so perhaps the Minister will be sympathetic
to it as he now quotes that organisation approvingly in his favour. It
is designed to ensure that data from the national identity register and
the children’s index cannot be used in data matching exercises
under the Bill. Our concern is that allowing data from those sources to
be used will lead to data mining. It is difficult to see the
justification in arguing that that type of information is needed to
detect fraud. On that basis, I put forward the new clause for the
Committee’s
consideration.
James
Brokenshire:
As the hon. Gentleman has explained, this
provision is intended to prevent data mining. The Minister was keen to
correct me as soon as I used the words data mining, saying that that
was not the intention of the Bill and that it was about data matching
rather than data mining. In the context of the remarks of the hon.
Member for Taunton and the Minister’s clear desire to ensure
that there is no confusion between mining and matching, I look forward
with interest to the Minister’s comments on the new
clause.
Mr.
Coaker:
I shall ask, at the end of my remarks, for the
hon. Member for Taunton to ask leave to withdraw the motion. He has
tabled an amendment that would prevent the use of information from the
national identity register and ContactPoint in either the data sharing
provided for in clause 63 or the data-matching exercises provided for
in schedule 7.
I
should like to make a general point about ContactPoint and the national
identity register in relation to the data sharing and data matching
provisions enabled by the Bill. In neither case will the public
authorities responsible for the database or register be compelled to
disclose information from them for the purpose of the prevention and
detection of fraud. Therefore, the owners of the data—the Home
Secretary in respect of the national identity register and the
Secretary of State for Children, Schools and Families for
ContactPoint—will retain absolute control over whether they
choose to disclose or
not.
The national
identity register will hold identity information relating to everyone
who is issued with an ID card. It is intended eventually to include
everyone who is aged 16 and over and resident in the UK. As my noble
and learned friend Baroness Scotland explained in the other place, the
national identity register will
comprise identity information such as name, address, date of birth and
nationality. Although it will include photographs and biometric
information, such as fingerprints, it will not comprise every single
piece of personal data held by Government. That means that it will not
contain criminal, medical or tax
records. It is
possible that, through an order under section 20 of the Identity Cards
Act 2006, information specified in an order and contained in the
national identity register could be supplied to the Audit Commission or
to a specified public authority, but only for purposes also set out in
the order. It should be noted, however, that any order made under
section 20 will be subject to the affirmative resolution procedure,
requiring debate and agreement by both Houses of Parliament. Given the
rigorous procedures that are already built into the 2006 Act, I can see
no reason why we should include in the Bill a prohibition against ever
using data from the national identity register. In the
Government’s view, it would be short-sighted not even to
contemplate the possibility that the national identity register might
help in the prevention and detection of fraud in future, particularly
given that one of the express statutory purposes of that register is
the prevention and detection of
crime.
ContactPoint
will be a national online directory that will be available in local
authorities in England by the end of 2008. It will consist of basic
demographic data relating to children and the contact details of those
who provide specialist services to them. ContactPoint has been designed
to facilitate the provision of care and services to children in a
co-ordinated way. Its purpose is expressly linked to the duties on
local authorities and their partners to co-operate in improving the
well-being of children and to safeguard and promote their welfare. The
database will be subject to restricted access, confined to those who
need it in connection with their work with children.
The Children
Act 2004 gives the Secretary of State power to make regulations
governing the disclosure of data to and from ContactPoint. Those
regulations have been laid before Parliament and are subject to the
affirmative resolution procedure. It is difficult to see how the data
contained in ContactPoint would be relevant to the specific task of
assisting in the prevention and detection of fraud. So even if the
Department for Children, Schools and Families took the decision that
data from ContactPoint should be included in data-matching exercises,
the Audit Commission would still need to decide if that was
appropriate. As things stand, the answer would be no. We cannot
envisage circumstances in which ContactPoint would wish to become a
member of a specified anti-fraud organisation under clause 63.
Nevertheless, the Government think that it is unnecessary and perhaps
would be unwise now to rule out once and for all the possibility of
using ContactPoint data in the future for preventing or detecting
fraud. I also made that point in respect of the national identity
register.
11.45
am
As with the
Identity Cards Act, important policy considerations have been carefully
balanced in the Children Act, resulting in the decision to give the
Secretary of State the task of making regulations,
subject to the approval of Parliament, which set out the circumstances
in which information from contact points may be disclosed. The
Government would be loath to fetter or undermine in the Serious Crime
Bill the way in which the provisions of the Children Act
operate. I remind the
Committee that, following a Government amendment in the other place,
the Audit Commission will not be able to undertake data matching in
order to profile the propensity of individual adults or children to
commit offences in future. The point was made by a number of Opposition
peers, and the Bill has been changed in order to take into account
their worries. That cannot, therefore, be held out as a reason for
preventing the Audit Commission from accessing contact points or the
national identity register. For those reasons, I would ask the hon.
Member for Taunton to withdraw his amendment. It might be necessary in
future to use the data, but there is nothing compulsory about it and it
would have to be done with the agreement of the appropriate Secretaries
of State.
Mr.
Hogg:
I hope that you will allow me a couple of minutes,
Mr. Benton, to talk about the particulars that will be
recorded on the national identity register. I do not want to go far
outside the scope of the debate, but perhaps you will allow me three
sentences that might do that. I have always been surprised that we have
not been prepared to consider a DNA database. Having worked in the
criminal law for many years, and been in the Home Office when DNA first
came on stream, I have always thought that a national database for DNA
would be the single most effective instrument for the prevention and
detection of crime. While I recognise that there are considerable civil
liberties issues to address, all parties should consider a DNA national
database. We need to debate that; it would be much more effective than
the identity card.
Mr.
Browne:
The Minister concluded his helpful remarks by
saying that he thought that it might be necessary in future to use the
data. That touches on a wider public concern about the increased
cross-referencing of information and data, and so-called function
creep. For that reason, I am keen to test the views of the Committee by
pressing the new clause to a vote.
Question put, That the
Clause be read a Second
time:—
The
Committee divided: Ayes 1, Noes
9.
Division
No.
26
]
Question
accordingly negatived.
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