|
|
| |
| |
|
| | |
| | 55A | Power of Commissioner to impose monetary penalty |
|
| | (1) | The Commissioner may serve a data controller with a monetary penalty |
|
| | notice if the Commissioner is satisfied that— |
|
| | (a) | there has been a serious contravention of section 4(4) by the data |
|
| | |
| | (b) | the contravention was of a kind likely to cause substantial |
|
| | damage or substantial distress, and |
|
| | (c) | subsection (2) or (3) applies. |
|
| | (2) | This subsection applies if the contravention was deliberate. |
|
| | (3) | This subsection applies if the data controller— |
|
| | (a) | knew or ought to have known — |
|
| | (i) | that there was a risk that the contravention would occur, |
|
| | |
| | (ii) | that such a contravention would be of a kind likely to |
|
| | cause substantial damage or substantial distress, but |
|
| | (b) | failed to take reasonable steps to prevent the contravention. |
|
| | (4) | A monetary penalty notice is a notice requiring the data controller to pay |
|
| | to the Commissioner a monetary penalty of an amount determined by the |
|
| | Commissioner and specified in the notice. |
|
| | (5) | The amount determined by the Commissioner must not exceed the |
|
| | |
| | (6) | The monetary penalty must be paid to the Commissioner within the |
|
| | period specified in the notice. |
|
| | (7) | The notice must contain such information as may be prescribed. |
|
| | (8) | Any sum received by the Commissioner by virtue of this section must be |
|
| | paid into the Consolidated Fund. |
|
| | |
| | “data controller” does not include the Crown Estate Commissioners or a |
|
| | person who is a data controller by virtue of section 63(3); |
|
| | “prescribed” means prescribed by regulations made by the Secretary of |
|
| | |
| | 55B | Monetary penalty notices: procedural rights |
|
| | (1) | Before serving a monetary penalty notice, the Commissioner must serve |
|
| | the data controller with a notice of intent. |
|
| | (2) | A notice of intent is a notice that the Commissioner proposes to serve a |
|
| | |
| | (3) | A notice of intent must— |
|
| | (a) | inform the data controller that he may make written |
|
| | representations in relation to the Commissioner’s proposal |
|
| | within a period specified in the notice, and |
|
| | (b) | contain such other information as may be prescribed. |
|
|
|
| |
| |
|
| | (4) | The Commissioner may not serve a monetary penalty notice until the |
|
| | time within which the data controller may make representations has |
|
| | |
| | (5) | A person on whom a monetary penalty notice is served may appeal to the |
|
| | |
| | (a) | the issue of the monetary penalty notice; |
|
| | (b) | the amount of the penalty specified in the notice. |
|
| | (6) | In this section, “prescribed” means prescribed by regulations made by the |
|
| | |
| | 55C | Guidance about monetary penalty notices |
|
| | (1) | The Commissioner must prepare and issue guidance on how he proposes |
|
| | to exercise his functions under sections 55A and 55B. |
|
| | (2) | The guidance must, in particular, deal with— |
|
| | (a) | the circumstances in which he would consider it appropriate to |
|
| | issue a monetary penalty notice, and |
|
| | (b) | how he will determine the amount of the penalty. |
|
| | (3) | The Commissioner may alter or replace the guidance. |
|
| | (4) | If the guidance is altered or replaced, the Commissioner must issue the |
|
| | altered or replacement guidance. |
|
| | (5) | The Commissioner may not issue guidance under this section without the |
|
| | approval of the Secretary of State. |
|
| | (6) | The Commissioner must lay any guidance issued under this section |
|
| | before each House of Parliament. |
|
| | (7) | The Commissioner must arrange for the publication of any guidance |
|
| | issued under this section in such form and manner as he considers |
|
| | |
| | (8) | In subsections (5) to (7), “guidance” includes altered or replacement |
|
| | |
| | 55D | Monetary penalty notices: enforcement |
|
| | (1) | This section applies in relation to any penalty payable to the |
|
| | Commissioner by virtue of section 55A. |
|
| | (2) | In England and Wales, the penalty is recoverable— |
|
| | (a) | if a county court so orders, as if it were payable under an order |
|
| | |
| | (b) | if the High Court so orders, as if it were payable under an order |
|
| | |
| | (3) | In Scotland, the penalty may be enforced in the same manner as an |
|
| | extract registered decree arbitral bearing a warrant for execution issued |
|
| | by the sheriff court of any sheriffdom in Scotland. |
|
| | (4) | In Northern Ireland, the penalty is recoverable— |
|
| | (a) | if a county court so orders, as if it were payable under an order |
|
| | |
| | (b) | if the High Court so orders, as if it were payable under an order |
|
| | |
|
|
| |
| |
|
| | 55E | Notices under sections 55A and 55B: supplemental |
|
| | (1) | The Secretary of State may by order make further provision in connection |
|
| | with monetary penalty notices and notices of intent. |
|
| | (2) | An order under this section may in particular— |
|
| | (a) | provide that a monetary penalty notice may not be served on a |
|
| | data controller with respect to the processing of personal data for |
|
| | the special purposes except in circumstances specified in the |
|
| | |
| | (b) | make provision for the cancellation or variation of monetary |
|
| | |
| | (c) | confer rights of appeal to the Tribunal against decisions of the |
|
| | Commissioner in relation to the cancellation or variation of such |
|
| | |
| | (d) | make provision for the proceedings of the Tribunal in respect of |
|
| | appeals under section 55B(5) or appeals made by virtue of |
|
| | |
| | (e) | make provision for the determination of such appeals; |
|
| | (f) | confer rights of appeal against any decision of the Tribunal in |
|
| | relation to monetary penalty notices or their cancellation or |
|
| | |
| | (3) | An order under this section may apply any provision of this Act with such |
|
| | modifications as may be specified in the order. |
|
| | (4) | An order under this section may amend this Act.” |
|
| | (2) | In section 67 (orders, regulations, rules)— |
|
| | (a) | in subsection (4) insert at the appropriate place— |
|
| | |
| | (b) | in subsection (5) after paragraph (c) insert— |
|
| | “(ca) | regulations under section 55A(5) or (7) or 55B(3)(b),”.’. |
|
| |
| | |
| Secretary Jack Straw | Agreed to on division |
|
| To move, That this House disagrees with the Lords in their Amendment. |
|
| | Lords Amendment accordingly disagreed to. |
|
| |
| | |
| Secretary Jack Straw | Agreed to |
|
| To move, That this House disagrees with the Lords in their Amendment. |
|
|
|
| |
| |
|
| | Lords Amendment accordingly disagreed to. |
|
| |
| | |
| As an Amendment to the Lords Amendment:— |
|
| |
| |
| | |
| Line 7, after ‘satisfied’, insert ‘beyond reasonable doubt’. |
|
| |
| | |
| Secretary Jack Straw | Agreed to |
|
| To move, That this House disagrees with the Lords in their Amendment. |
|
| | Lords Amendment accordingly disagreed to. |
|
| |
| To move the following Amendment to the Bill in lieu of the Lords Amendment 117 and 127:— |
|
| | |
| Page 106, line 33, after ‘conditions’, insert ‘authorised by section (Provisions that |
|
| |
| | |
| Page 109, line 20, at end insert the following new Clause:— |
|
| | | ‘Provisions that orders may contain |
|
| | (1) | A violent offender order may contain prohibitions, restrictions or conditions |
|
| | |
| | (a) | from going to any specified premises or any other specified place |
|
| | (whether at all, or at or between any specified time or times); |
|
| | (b) | from attending any specified event; |
|
| | (c) | from having any, or any specified description of, contact with any |
|
| | |
| | (2) | Any of the prohibitions, restrictions or conditions contained in a violent offender |
|
| | order may relate to conduct in Scotland or Northern Ireland (as well as to conduct |
|
| | |
| | (3) | The Secretary of State may by order amend subsection (1). |
|
| | (4) | In this section “specified” means specified in the violent offender order |
|
| | |
| | |
| Page 110, line 8, at end insert— |
|
| | ‘(5A) | References in subsection (5) to prohibitions, restrictions or conditions are to |
|
| | prohibitions, restrictions or conditions authorised by section (Provisions that |
|
| | |
|
|
| |
| |
|
| | |
| Page 110, line 32, at end insert— |
|
| | ‘(3A) | The reference in subsection (3) to prohibitions, restrictions or conditions is to |
|
| | prohibitions, restrictions or conditions authorised by section (Provisions that |
|
| | orders may contain) in the case of a violent offender order.’. |
|
| | |
| Page 141, line 23, at end insert— |
|
| | ‘( ) | an order under section (Provisions that orders may contain),’. |
|
| |
| | |
| As an Amendment to the Lords Amendment:— |
|
| |
| |
| | |
| Line 11, after ‘conditions’, insert ‘under section [Provisions that orders may |
|
| |
| |
| | Lords Amendments Nos. 118 to 126 and 128 to 149 Agreed to. |
|
| |
| | Lords Amendment No. 116 Agreed to on division. |
|
| | |
| |
| To move the following consequential Amendment to the Bill:— |
|
| | |
| Page 22 , line 25, leave out subsection (4). |
|
| |
| | |
| Mr Andrew Dismore | Not called |
|
| |
| To move, That this House disagrees with the Lords in their Amendment. |
|
| |
|
|
| |
| |
|
| | |
| As Amendments to the Lords Amendment:— |
|
| |
| |
| | |
| Line 6, before ‘if’, insert ‘Subject to subsection 3(c) below,’. |
|
| | |
| |
| | ‘(3C) | Where the force used by D was used in his or her capacity as an agent of the state, |
|
| | any mistaken belief of D’s must have been based on reasonable grounds in all the |
|
| | |
| Mr Andrew Dismore | Not called |
|
| |
| To move, That this House disagrees with the Lords in their Amendment. |
|
| |
| |
| To move the following Amendments to the Bill in lieu of the Lords Amendment:— |
|
| | |
| Page 88, line 37, after ‘D’, insert ‘reasonably’. |
|
| | |
| Page 89, line 17, leave out from ‘immaterial’ to the end of line 19 and insert ‘if any |
|
| belief of D’s was mistaken, but if the belief was mistaken the mistake must have been |
|
| |
| |
| | |
| Mr Andrew Dismore | Not called |
|
| |
| To move, That this House disagrees with the Lords in their Amendment. |
|
| | Lords Amendments Nos. 1 to 8, 10 to 85, 92 to 114, 150 to 172, 174 to 284, 286 to 300, |
|
| | 302 to 326 and 328 to 348 Agreed to. |
|
| |
| |
|