House of Commons Public Bill Committee Proceedings

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Proceedings on Consideration of Lords Amendments: 6th May 2008
420

Criminal Justice And Immigration Bill, continued

“Monetary penalties

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

controller,

(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,

and

(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

prescribed amount.

(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.

(9)
In this section—

“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

State.

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

monetary penalty notice.

(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.

Proceedings on Consideration of Lords Amendments: 6th May 2008
421

Criminal Justice And Immigration Bill, continued

(4)
The Commissioner may not serve a monetary penalty notice until the

time within which the data controller may make representations has

expired.

(5)
A person on whom a monetary penalty notice is served may appeal to the

Tribunal against—

(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

Secretary of State.

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

appropriate.

(8)
In subsections (5) to (7), “guidance” includes altered or replacement

guidance.

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

of that court;

(b)
if the High Court so orders, as if it were payable under an order

of that court.

(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

of that court;

(b)
if the High Court so orders, as if it were payable under an order

of that court.

Proceedings on Consideration of Lords Amendments: 6th May 2008
422

Criminal Justice And Immigration Bill, continued

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

order;

(b)
make provision for the cancellation or variation of monetary

penalty notices;

(c)
confer rights of appeal to the Tribunal against decisions of the

Commissioner in relation to the cancellation or variation of such

notices;

(d)
make provision for the proceedings of the Tribunal in respect of

appeals under section 55B(5) or appeals made by virtue of

paragraph (c);

(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

variation.

(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—

“section 55E(1),”; and

(b)
in subsection (5) after paragraph (c) insert—

“(ca)
regulations under section 55A(5) or (7) or 55B(3)(b),”.’.

Lords Amendment No. 173

Secretary Jack Straw
Agreed to on division

To move, That this House disagrees with the Lords in their Amendment.

Lords Amendment accordingly disagreed to.

Lords Amendment No. 117

Secretary Jack Straw
Agreed to

To move, That this House disagrees with the Lords in their Amendment.

Proceedings on Consideration of Lords Amendments: 6th May 2008
423

Criminal Justice And Immigration Bill, continued

Lords Amendment accordingly disagreed to.

Lords Amendment No. 126

As an Amendment to the Lords Amendment:—

Mr Andrew Dismore

Dr Evan Harris

Not called  (a)

Line  7,  after ‘satisfied’, insert ‘beyond reasonable doubt’.

Lords Amendment No. 127

Secretary Jack Straw
Agreed to

To move, That this House disagrees with the Lords in their Amendment.

Lords Amendment accordingly disagreed to.

Secretary Jack Straw

To move the following Amendment to the Bill in lieu of the Lords Amendment 117 and 127:—

Agreed to  (a)

Page  106,  line  33,  after ‘conditions’, insert ‘authorised by section (Provisions that

orders may contain)’.

Agreed to  (b)

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

preventing the offender—

(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

specified individual.

(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

in England or Wales).

(3)
The Secretary of State may by order amend subsection (1).

(4)
In this section “specified” means specified in the violent offender order

concerned.’.

Agreed to  (c)

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

orders may contain).’.

Proceedings on Consideration of Lords Amendments: 6th May 2008
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Criminal Justice And Immigration Bill, continued

Agreed to  (d)

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.’.

Agreed to  (e)

Page  141,  line  23,  at end insert—

‘( )
an order under section (Provisions that orders may contain),’.

Lords Amendment No. 130

As an Amendment to the Lords Amendment:—

Mr Andrew Dismore

Dr Evan Harris

Not called  (a)

Line  11,  after ‘conditions’, insert ‘under section [Provisions that orders may

contain]’.

Lords Amendments Nos. 118 to 126 and 128 to 149 Agreed to.

Lords Amendment No. 116 Agreed to on division.

Lords Amendment No. 28

Secretary Jack Straw

To move the following consequential Amendment to the Bill:—

Agreed to  (a)

Page  22    ,  line  25,  leave out subsection (4).

Lords Amendment No. 108

Mr Andrew Dismore
Not called

Dr Evan Harris

To move, That this House disagrees with the Lords in their Amendment.

Proceedings on Consideration of Lords Amendments: 6th May 2008
425

Criminal Justice And Immigration Bill, continued

Lords Amendment No. 109

As Amendments to the Lords Amendment:—

Mr Andrew Dismore

Dr Evan Harris

Not called  (a)

Line  6,  before ‘if’, insert ‘Subject to subsection 3(c) below,’.

Not called  (b)

Line  12,  at end insert—

‘(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

circumstances.’.

Mr Andrew Dismore
Not called

Dr Evan Harris

To move, That this House disagrees with the Lords in their Amendment.

Mr Andrew Dismore

Dr Evan Harris

To move the following Amendments to the Bill in lieu of the Lords Amendment:—

Not called  (a)

Page  88,  line  37,  after ‘D’, insert ‘reasonably’.

Not called  (b)

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

reasonable.’.

Lords Amendment No. 112

Mr Andrew Dismore
Not called

Dr Evan Harris

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.