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Miss Widdecombe: 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
6 May 2008 : Column 624
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 couple’s 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 Minister’s 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 Minister’s 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.

7.15 pm

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 believe—I 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.

6 May 2008 : Column 625

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.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 338, Noes 136.
Division No. 168]
[7.15 pm


Abbott, Ms Diane
Ainger, Nick
Ainsworth, rh Mr. Bob
Alexander, Danny
Alexander, rh Mr. Douglas
Anderson, Mr. David
Armstrong, rh Hilary
Atkins, Charlotte
Austin, Mr. Ian
Bailey, Mr. Adrian
Baird, Vera
Baker, Norman
Balls, rh Ed
Banks, Gordon
Barrett, John
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Beckett, rh Margaret
Begg, Miss Anne
Bell, Sir Stuart
Benn, rh Hilary
Benton, Mr. Joe
Bercow, John
Berry, Roger
Betts, Mr. Clive
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
Blizzard, Mr. Bob
Bradshaw, Mr. Ben
Brake, Tom
Breed, Mr. Colin
Brooke, Annette
Brown, Lyn
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Browne, Mr. Jeremy
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Burnham, rh Andy
Burstow, Mr. Paul
Burt, Lorely
Butler, Ms Dawn
Byers, rh Mr. Stephen
Byrne, Mr. Liam
Caborn, rh Mr. Richard
Cairns, David
Campbell, Mr. Alan
Campbell, rh Sir Menzies
Campbell, Mr. Ronnie
Carmichael, Mr. Alistair
Caton, Mr. Martin
Cawsey, Mr. Ian
Challen, Colin
Clapham, Mr. Michael
Clark, Ms Katy
Clark, Paul
Clarke, rh Mr. Charles
Clarke, rh Mr. Tom
Clelland, Mr. David
Coaker, Mr. Vernon
Coffey, Ann
Cohen, Harry
Cook, Frank
Cooper, Rosie
Cooper, rh Yvette
Corbyn, Jeremy
Cousins, Jim
Crausby, Mr. David
Cruddas, Jon
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
Davey, Mr. Edward
David, Mr. Wayne
Davidson, Mr. Ian
Davies, Mr. Quentin
Dean, Mrs. Janet
Denham, rh Mr. John
Devine, Mr. Jim
Dhanda, Mr. Parmjit
Dismore, Mr. Andrew
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Drew, Mr. David
Eagle, Angela
Eagle, Maria
Efford, Clive
Ellman, Mrs. Louise
Ennis, Jeff
Farrelly, Paul
Farron, Tim
Featherstone, Lynne
Fisher, Mark
Flint, rh Caroline
Flynn, Paul
Follett, Barbara
Foster, Mr. Don
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Gapes, Mike
Gardiner, Barry
George, Andrew
George, rh Mr. Bruce
Gibson, Dr. Ian

Gidley, Sandra
Gilroy, Linda
Goldsworthy, Julia
Goodman, Helen
Gove, Michael
Greenway, Mr. John
Griffith, Nia
Gwynne, Andrew
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. David
Hamilton, Mr. Fabian
Hancock, Mr. Mike
Hanson, rh Mr. David
Harman, rh Ms Harriet
Harris, Dr. Evan
Harris, Mr. Tom
Harvey, Nick
Havard, Mr. Dai
Healey, John
Heath, Mr. David
Hemming, John
Hendrick, Mr. Mark
Hepburn, Mr. Stephen
Heppell, Mr. John
Hesford, Stephen
Heyes, David
Hill, rh Keith
Hillier, Meg
Hodge, rh Margaret
Hodgson, Mrs. Sharon
Holmes, Paul
Hood, Mr. Jim
Hoon, rh Mr. Geoffrey
Hope, Phil
Hopkins, Kelvin
Horwood, Martin
Hosie, Stewart
Howarth, David
Howarth, rh Mr. George
Howells, Dr. Kim
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Hughes, Simon
Huhne, Chris
Humble, Mrs. Joan
Hunter, Mark
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
Irranca-Davies, Huw
Jackson, Glenda
James, Mrs. Siân C.
Jenkins, Mr. Brian
Johnson, rh Alan
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Kevan
Jones, Lynne
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeley, Barbara
Keen, Alan
Keen, Ann
Keetch, Mr. Paul
Kelly, rh Ruth
Kemp, Mr. Fraser
Kennedy, rh Jane
Khan, Mr. Sadiq
Kidney, Mr. David
Kramer, Susan
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lamb, Norman
Lammy, Mr. David
Laxton, Mr. Bob
Lazarowicz, Mark
Leech, Mr. John
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Linton, Martin
Lloyd, Tony
Llwyd, Mr. Elfyn
Love, Mr. Andrew
Lucas, Ian
Mackinlay, Andrew
Mallaber, Judy
Mann, John
Marris, Rob
Marsden, Mr. Gordon
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCafferty, Chris
McCarthy, Kerry
McCarthy-Fry, Sarah
McDonagh, Siobhain
McDonnell, John
McFadden, Mr. Pat
McFall, rh John
McGovern, Mr. Jim
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
McNulty, rh Mr. Tony
Meale, Mr. Alan
Michael, rh Alun
Milburn, rh Mr. Alan
Miliband, rh Edward
Miller, Andrew
Mitchell, Mr. Austin
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
Moran, Margaret
Morden, Jessica
Morgan, Julie
Morley, rh Mr. Elliot
Mountford, Kali
Mudie, Mr. George
Mulholland, Greg
Mullin, Mr. Chris
Murphy, Mr. Denis
Murphy, rh Mr. Paul
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
Oaten, Mr. Mark
Öpik, Lembit
Osborne, Sandra
Owen, Albert
Palmer, Dr. Nick
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Mr. Gordon
Prescott, rh Mr. John
Price, Adam
Primarolo, rh Dawn
Prosser, Gwyn
Purchase, Mr. Ken
Purnell, rh James

Rammell, Bill
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Reid, Mr. Alan
Reid, rh John
Rennie, Willie
Riordan, Mrs. Linda
Robinson, Mr. Geoffrey
Rogerson, Dan
Rowen, Paul
Roy, Mr. Frank
Ruane, Chris
Ruddock, Joan
Russell, Bob
Russell, Christine
Salter, Martin
Sanders, Mr. Adrian
Sarwar, Mr. Mohammad
Sharma, Mr. Virendra
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Short, rh Clare
Simon, Mr. Siôn
Simpson, Alan
Skinner, Mr. Dennis
Slaughter, Mr. Andy
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, rh Jacqui
Smith, Sir Robert
Snelgrove, Anne
Soulsby, Sir Peter
Southworth, Helen
Spellar, rh Mr. John
Starkey, Dr. Phyllis
Stewart, Ian
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Straw, rh Mr. Jack
Stringer, Graham
Stuart, Ms Gisela
Stunell, Andrew
Swinson, Jo
Taylor, Ms Dari
Teather, Sarah
Thomas, Mr. Gareth
Thornberry, Emily
Thurso, John
Timms, rh Mr. Stephen
Tipping, Paddy
Todd, Mr. Mark
Touhig, rh Mr. Don
Trickett, Jon
Truswell, Mr. Paul
Turner, Dr. Desmond
Turner, Mr. Neil
Vaz, rh Keith
Walley, Joan
Waltho, Lynda
Watts, Mr. Dave
Webb, Steve
Weir, Mr. Mike
Whitehead, Dr. Alan
Williams, rh Mr. Alan
Williams, Mrs. Betty
Williams, Hywel
Williams, Mark
Williams, Mr. Roger
Willis, Mr. Phil
Willott, Jenny
Wills, Mr. Michael
Wilson, Phil
Winnick, Mr. David
Winterton, rh Ms Rosie
Wishart, Pete
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Younger-Ross, Richard
Tellers for the Ayes:

Liz Blackman and
Alison Seabeck

Afriyie, Adam
Ainsworth, Mr. Peter
Ancram, rh Mr. Michael
Arbuthnot, rh Mr. James
Atkinson, Mr. Peter
Bacon, Mr. Richard
Beith, rh Mr. Alan
Bellingham, Mr. Henry
Benyon, Mr. Richard
Beresford, Sir Paul
Blunt, Mr. Crispin
Bone, Mr. Peter
Brokenshire, James
Burns, Mr. Simon
Burrowes, Mr. David
Butterfill, Sir John
Carswell, Mr. Douglas
Cash, Mr. William
Clappison, Mr. James
Clarke, rh Mr. Kenneth
Clifton-Brown, Mr. Geoffrey
Cormack, Sir Patrick
Davies, Mr. Dai
Davies, David T.C. (Monmouth)
Davies, Philip
Davis, rh David (Haltemprice and Howden)
Djanogly, Mr. Jonathan
Dobbin, Jim
Duncan Smith, rh Mr. Iain
Ellwood, Mr. Tobias
Evans, Mr. Nigel
Evennett, Mr. David
Fallon, Mr. Michael
Field, Mr. Mark
Francois, Mr. Mark
Gale, Mr. Roger
Garnier, Mr. Edward
Gauke, Mr. David
Gibb, Mr. Nick
Gillan, Mrs. Cheryl
Goodman, Mr. Paul
Gray, Mr. James
Grayling, Chris
Green, Damian
Greening, Justine

Grieve, Mr. Dominic
Gummer, rh Mr. John
Hague, rh Mr. William
Hammond, Mr. Philip
Hammond, Stephen
Hands, Mr. Greg
Hayes, Mr. John
Heald, Mr. Oliver
Herbert, Nick
Hoban, Mr. Mark
Hogg, rh Mr. Douglas
Hollobone, Mr. Philip
Holloway, Mr. Adam
Horam, Mr. John
Howard, rh Mr. Michael
Howarth, Mr. Gerald
Hunt, Mr. Jeremy
Jack, rh Mr. Michael
Jackson, Mr. Stewart
Jenkin, Mr. Bernard
Jones, Mr. David
Kawczynski, Daniel
Key, Robert
Kilfoyle, Mr. Peter
Knight, rh Mr. Greg
Lait, Mrs. Jacqui
Leigh, Mr. Edward
Letwin, rh Mr. Oliver
Lewis, Dr. Julian
Liddell-Grainger, Mr. Ian
Lidington, Mr. David
Loughton, Tim
MacNeil, Mr. Angus
Main, Anne
Maples, Mr. John
Mates, rh Mr. Michael
May, rh Mrs. Theresa
McIntosh, Miss Anne
McLoughlin, rh Mr. Patrick
Mercer, Patrick
Miller, Mrs. Maria
Milton, Anne
Mitchell, Mr. Andrew
Moss, Mr. Malcolm
Mundell, David
Murrison, Dr. Andrew
Neill, Robert
Newmark, Mr. Brooks
Ottaway, Richard
Penning, Mike
Penrose, John
Pickles, Mr. Eric
Prisk, Mr. Mark
Pritchard, Mark
Pugh, Dr. John
Redwood, rh Mr. John
Robathan, Mr. Andrew
Robertson, Mr. Laurence
Rosindell, Andrew
Ruffley, Mr. David
Scott, Mr. Lee
Selous, Andrew
Shapps, Grant
Shepherd, Mr. Richard
Simmonds, Mark
Soames, Mr. Nicholas
Spink, Bob
Spring, Mr. Richard
Steen, Mr. Anthony
Streeter, Mr. Gary
Stuart, Mr. Graham
Swayne, Mr. Desmond
Swire, Mr. Hugo
Syms, Mr. Robert
Taylor, David
Taylor, Dr. Richard
Turner, Mr. Andrew
Tyrie, Mr. Andrew
Vara, Mr. Shailesh
Walker, Mr. Charles
Wallace, Mr. Ben
Wareing, Mr. Robert N.
Waterson, Mr. Nigel
Watkinson, Angela
Widdecombe, rh Miss Ann
Wiggin, Bill
Wilshire, Mr. David
Wilson, Mr. Rob
Wilson, Sammy
Winterton, Ann
Wright, Jeremy
Tellers for the Noes:

James Duddridge and
Mr. Nick Hurd
Question accordingly agreed to.
6 May 2008 : Column 626

6 May 2008 : Column 627

6 May 2008 : Column 628

New clause

Lords amendment: No. 115.

7.30 pm

Maria Eagle: I beg to move, That this House disagrees with the Lords in the said amendment.

Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to take Government amendment (a) in lieu thereof.

Maria Eagle: The House will be aware that on Report— [Interruption.]

Madam Deputy Speaker: Order. Please will Members who do not wish to participate in the debate leave the Chamber as quickly and quietly as possible?

6 May 2008 : Column 629

Maria Eagle: Thank you, Madam Deputy Speaker.

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 someone’s 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?

Maria Eagle: 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.
6 May 2008 : Column 630
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 people’s 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?

Maria Eagle: Let me finish my comments; I will be perfectly happy to deal with the hon. Gentleman’s point once I have set out our proposals.

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.

Maria Eagle: That is certainly the intention.

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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