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According to the picture that the Minister is painting, a reasonable law exists, and a few over-zealous policemen who do not fully understand it
and do not deal with it very often get into a bit of a muddle. In the Lancashire case, however, senior police officers defended those who had gone into a couples home and questioned them for an hour and 20 minutes, and stood by that defence until the moment they were sued, at which point they gave way. That does not inspire confidence that senior police will govern the actions of junior police.
Maria Eagle: Every police force is different, and each has its pros and cons. We all know that from our constituencies in various parts of the country. I think the fact that the ACPO hate crime manual is being revised provides an opportunity to focus, laser-like, on issues of this kind, and to deal with the problem raised by Opposition Members at the point at which it will bite most.
I do not believe that most police officers are aware of what is in a particular statute, or of when the Attorney-General must consider whether a prosecution should take place. I think that they are much more likely to take note of ACPO guidance and the local CPS prosecutor if they are telephoned early enough to find out how they ought to deal with a particular set of circumstances in a particular context. I believe that we can respond to many of the concerns that have been expressed by ensuring that those who enforce the law across the criminal justice system are fully aware of what needs to be done and what the law says.
Sir Patrick Cormack: Did not the Ministers reply to my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) demonstrate that we need to make assurance doubly sure? What damage will be done to the Bill, and what violation will be done to the Ministers perfectly reasonable principles, if the amendment passed in the other place is incorporated in the Bill?
Maria Eagle: I said in my opening remarks that the amendment sowed confusion over what is actually a very clear offence, and that is my belief. I think that some of the points made by the hon. Member for Cambridge (David Howarth) about the precise implications of the wording had some merit. I do not believe that the amendment deals with the mischief that was the main focus of the points made by the Members who supported it.
I do not suppose that we shall secure full agreement throughout the House before the vote, but I hope Opposition Members accept that, in other legislation, I have tried to meet the concerns raised across the House about over-zealous investigations. I should also emphasise that, while we believe in the importance of freedom of speech, we also believeI hope that this, too, is accepted throughout the House; it has certainly been endorsed by the Liberal Democrats and by the hon. Member for Arundel and South Downs (Nick Herbert)that gay and lesbian people ought to be defended and protected from threatening words and behaviour intended to incite hatred against them purely on the grounds of their sexuality. That is the balance that we need to strike, and I think that the high threshold of the offence as currently drafted strikes it, although I recognise that some Members do not agree.
I have tried to make it clear that we will issue guidance from the Secretary of State, in addition to other improved guidance, and I believe that it will focus on the real mischief that has been highlighted by those who have spoken this evening much more than the Lords amendment. There is little point in my saying any more. We have had a good debate, in which all Members have expressed their views.
The House will be aware that on Report in another place their lordships proposed an amendment to provide for a new criminal offence for data controllers who intentionally or recklessly disclose personal information, repeatedly and negligently allow information to be disclosed, or intentionally or recklessly fail to comply with the data protection principles. During the debate, the Government argued that it would be premature to propose an amendment of such a nature and that a considered view should be taken on what measures are necessary to strengthen the protection of personal data once the recommendations of the various ongoing data protection reviews are published.
We believe that the Lords amendment is drafted extremely broadly and is therefore capable of penalising relatively minor infringements, just as it seeks to penalise very serious infringements, as it does not discriminate between them. For example, a person writing letters and including someones details in them repeatedly, possibly as a result of being ill-advised or ill-trained or of not looking anew at the letters they are sending out, could fall foul of the offence, but that is a lower level of infringement than some of the examples of data going missing that we have all become aware of over the past few months. That is a concern. In addition, criminal proceedings require a significant call on the public purse in terms of court and judicial resources and legal aid, and a criminal conviction is a disproportionate means of achieving the kind of behavioural change the Information Commissioner is trying to influence in information management. We therefore propose the amendment in lieu as a suitable alternative, and I want to take the House briefly through its components.
The amendment inserts new sections into the Data Protection Act 1998. Proposed new section 55A will confer on the Information Commissioner a power to impose a monetary penalty notice on a data controller. The power will be exercisable in circumstances where the Information Commissioner is satisfied that a data controller has committed a serious contravention of the data protection principles. However, the commissioner must also be satisfied that the contravention was either deliberate or that the data controller knew, or ought to have known, of the contravention risk, and that the contravention would be likely to cause substantial damage or substantial distress, but he failed to take reasonable steps to prevent that contravention. The commissioner will determine the amount of the monetary penalty.
James Brokenshire (Hornchurch) (Con): The Minister talks about substantial distress or damage. Can she explain what she means by that? She will appreciate that the provision was introduced because of concerns about identity fraud and the illegal or inappropriate use of personal data, and it is intended to send out a strong message that that kind of activity must not be condoned. Does she therefore accept that there is a risk in what she proposes, and will she explain where she is coming from, particularly in terms of what would be regarded as serious?
That is an important point. The Lords amendments in respect of this matter do not discriminate between relatively minor and quite serious breaches of the data protection principles. That is one of our concerns.
There is probably agreement across the House on some of the issues to do with data getting out that have arisen over the past few months. We would certainly want to focus on those kinds of instances, where peoples personal data have ended up in rubbish tips or in the public domain through lack of care on the part of a data controller. We would not want to focus on, for example, a new executive officer in the Department for Work and Pensions who has not finished all his courses on how best to send out letters to people on social security benefits in certain circumstances, and who has got things wrong.
This is a matter that the Information Commissioner will be well placed to have a view on, because he is the custodian of the data protection principles and he has a lot of experience in dealing with these issues. My amendments in lieu of the Lords amendments are about giving him the discretion to deal with these matters.
James Brokenshire: I hear what the Minister is saying about giving the Information Commissioner discretion, but her proposal reserves rights for the Secretary of State effectively to override a decision by the Information Commissioner to set down a penalty. Why?
The commissioner will be able to determine the amount of the monetary penalty in accordance with guidelines that he will make, albeit the maximum penalty will be set out in regulations. The power will not apply retrospectively. Sums recovered by the Information Commissioner by monetary penalties will be payable into the Consolidated Fund, so he will not have any budgetary incentive to chase after those who might have breached the data protection principles. Proposed new section 55B will make provision for procedural rights.
David Howarth: Before the Minister moves on to the procedural section, I would like her to confirm that the duties under proposed new section 55A will, with the one exception of the Crown Estate Commissioners, apply to Government Departments, because one of the problems in the previous law, which the Lords amendment attempts to deal with, was the special treatment it gave to Departments.
Proposed new section 55B will make provision for procedural rights, including a duty on the commissioner to give the data controller notice of his intention to issue a monetary penalty notice, which will inform the data controller of his right to make representations before the penalty is imposed. It also includes a right of appeal to the information tribunal against the monetary penalty notice.
New section 55C will make provision requiring the commissioner to prepare and issue guidance about how he proposes to exercise his power to impose monetary penalties. New section 55D makes provision for the enforcement of the monetary penalty. New section 55E confers a power on the Secretary of State by order to make further provision in connection with monetary penalty notices and notices of intent.
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