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6 May 2008 : Column 631

In considering what would be an appropriate penalty, we have taken into account many factors, in particular that criminal liability is generally reserved for unlawful behaviour that is sufficiently serious to merit the most stringent liability that the law can impose. A criminal offence would be a disproportionately heavy-handed penalty where there has been no intent or wilfulness in the data controller’s non-compliance. Criminal proceedings could result in a costly and time-consuming process for data controllers and the commissioner. Penalties imposed by criminal courts, which may not have the necessary technical expertise to deal with data issues—which the Information Commissioner has—are often regarded as an inadequate deterrent to regulatory non-compliance.

For those reasons, we consider a criminal penalty inappropriate. We believe, however, that a civil monetary penalty would offer a proportionate and fair sanction for serious breaches of the data protection principles. The commissioner, with his expertise, would be best placed to determine an appropriate monetary penalty for a data controller, having regard to the particular circumstances.

In issuing the monetary penalty, the commissioner would take into account factors such as the seriousness of the breach, the behaviour of the data controller, the nature of the personal data and the extent of the harm likely to be caused. Issuing a civil monetary penalty is a comparatively efficient and quick process and keeps any additional burden on the courts to a minimum, while of course protecting the right to make representations of the person—the data controller—if he is about to have a monetary penalty imposed on him, and the right of appeal against either the notice of intent or the monetary penalty. For these reasons, the Government are firmly of the view that a civil monetary penalty will be more effective and appropriate for serious breaches of the data protection principles than a criminal offence.

On the Secretary of State’s power, to which the hon. Member for Hornchurch (James Brokenshire) referred, the Secretary of State will not have any power to override a monetary penalty set by the commissioner. There are provisions on making sure that appeals can be dealt with properly, and that is the power that the Secretary of State has.

We do not intend through this new amendment to widen the scope of the legal obligations imposed on data controllers. Data controllers are already under an obligation to comply with the data protection principles and are subject to enforcement procedures. Our aim is to focus this new monetary penalty on the most serious breaches of the data protection principles. In cases where a data controller is continuing to breach those principles, we would expect the commissioner to issue both an enforcement notice and a monetary penalty notice. The enforcement notice would require the data controller to cease his unlawful activity and to comply with the legislation in future. The monetary penalty notice would punish the data controller for his past behaviour and send a strong deterrent signal to other data controllers. We believe that this is better than the arrangements put into the Bill in the other place, and I hope that, on that basis, the House agrees that we should disagree with the Lords amendment.

Mr. Garnier: We have eight minutes before the guillotine comes clattering down, which will leave police and prison service pay and violent offender orders largely, if
6 May 2008 : Column 632
not wholly, undiscussed; this is not a good way to make legislation. This new provision has come to the Bill at this late stage, and it really does not do the Government much credit that they have—

Madam Deputy Speaker: Order. I hope that the hon. and learned Gentleman is going to address his remarks to this amendment.

Mr. Garnier: In the second half of the second sentence of my speech, Madam Deputy Speaker, I was going to deal with the alleged merits of this new set of provisions, but I think it fair to make the points I have just made, because doing so puts those provisions into context.

These provisions bear all the hallmarks of a civil procedure, but with criminal consequences. Once again, we see the Government taking a civil route to a criminal law end, and although there is an appeal to the tribunal at first instance, it is the commissioner who is the policeman, the prosecutor, the jury and the judge. It would be interesting—if we had time—to hear from the Minister to what standard of proof the commissioner has to be satisfied that there has been a contravention. What level, or levels, of penalty are we not being told about? Although the Minister has briefly given us some idea and has referred to the commissioner’s expertise, if we look at proposed new section 55C(1), we have absolutely no idea what the levels of fines—let us not beat about the bush—will be and in what circumstances they will be enforceable under the county court jurisdiction, and under the High Court jurisdiction. Why are the regulations referred to in proposed new section 55B(6) not necessarily published, even if only in draft form, so that Parliament can see what is proposed? I know that the commissioner must lay guidance; why is the Secretary of State not required to lay guidance? He is the person accountable to Parliament, not the commissioner.

This is a hopeless way to deal with such legislation. There is not time, I am afraid, to fillet this new proposal in a way that Parliament deserves, and although I am not going to advise my hon. and right hon. Friends to disagree with the Government’s disagreement with the Lords, I must most trenchantly register my utter dissatisfaction at the procedure that we are having to deal with in respect of the making of the criminal law.

7.45 pm

David Howarth: Lords amendment No. 115 goes back to a proposal from my hon. Friend the Member for Somerton and Frome (Mr. Heath), whom Ministers praised for his views on earlier parts of the Bill. I just want to add my tribute to his work on this part of it, because it was he, along with members of the Justice Committee, who spotted this gap in the law. When this provision was first proposed it was very apt, because it was at a time when the Government were in various ways losing vast amounts of data—data from Swansea, child benefit data, and so on—and it was clear that there was a pretty lackadaisical attitude within Government to holding the public’s personal and private information.

I accept the Minister’s point that the crime created by Lords amendment No. 115 is a pretty general one. It covers intentional and reckless behaviour, and repeated negligent activity—a controversial aspect of the crime that she did not refer to. Nevertheless, when penalties
6 May 2008 : Column 633
are imposed on people, it is important that they be put within the context of the criminal law, and the procedural protections of the criminal law are there to help them through any difficulties that the substance of the law creates.

In addition, the new crime itself did allow a number of defences, which were in the Lords’ proposed new section 55A(2); unfortunately, I do not have time to explain the merits of those. Nevertheless, like the hon. and learned Member for Harborough (Mr. Garnier), I am not going to advise my hon. Friends to vote against the Government’s replacement provisions, which do go a long way toward our goal. They do have certain difficulties, however. Using civil penalties never strikes me as anything short of a contradiction: if something is a penalty, I do not see how it is “civil”; nevertheless, the intention is there. Because it is a new procedure, a procedural clause has to be included, and it is very difficult to see at this stage precisely how that would work. However, I do welcome the Government’s willingness to move on this issue and I hope that these provisions have the desired effect.

Maria Eagle: I understand the concerns that both the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Cambridge (David Howarth) have expressed about the time limit that we have, but of course, nobody opposed the programme motion earlier, and we did take up that time discussing matters of great concern to the House. So although I understand the points that have been made, this has been agreed between the usual channels.

Let me deal with one or two of the points that have been made. The standard of proof, about which the hon. and learned Member for Harborough asked, will be a civil standard. The question of the appropriate level at which to set the monetary penalty will be subject to consultation with the Information Commissioner and on a wider basis. However, thinking back to some of the concerns that have given rise to this issue, it has to be commensurate with the seriousness of the data loss and the distress or damage caused by it. So, there will doubtless be a range of levels, but we intend to consult further in respect of precisely what that range ought to be.

I can tell the House that the Information Commissioner is pleased at this extension of his powers. It will enable him to deal more flexibly than he currently can with data loss and with breaches of the data protection principles. Such work is, of course, his basic raison d’ĂȘtre, so we appreciate—

It being four and a quarter hours after the commencement of proceedings on the consideration of Lords amendments , Madam Deputy Speaker put forthwith the Question already proposed from the Chair.

Question agreed to.

Madam Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be conclu ded at that hour, pursuant to Order [this day].

Government amendment (a) in lieu of Lords amendment No. 115 agreed to.

6 May 2008 : Column 634

New Clause

Lords amendment: No. 173

Motion made, and Question put, That this House disagrees with the Lords in the said amendment. —[Mr. Straw.]

The House divided: Ayes 271, Noes 215.
Division No. 169]
[7.51 pm


Abbott, Ms Diane
Ainger, Nick
Ainsworth, rh Mr. Bob
Anderson, Mr. David
Armstrong, rh Hilary
Atkins, Charlotte
Austin, Mr. Ian
Bailey, Mr. Adrian
Baird, Vera
Balls, rh Ed
Banks, Gordon
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Beckett, rh Margaret
Begg, Miss Anne
Benn, rh Hilary
Benton, Mr. Joe
Berry, Roger
Betts, Mr. Clive
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
Blizzard, Mr. Bob
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Burnham, rh Andy
Butler, Ms Dawn
Byers, rh Mr. Stephen
Byrne, Mr. Liam
Caborn, rh Mr. Richard
Cairns, David
Campbell, Mr. Alan
Campbell, Mr. Ronnie
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, rh Yvette
Corbyn, Jeremy
Cousins, Jim
Crausby, Mr. David
Cruddas, Jon
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
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
Eagle, Maria
Efford, Clive
Ellman, Mrs. Louise
Ennis, Jeff
Field, rh Mr. Frank
Fisher, Mark
Fitzpatrick, Jim
Flint, rh Caroline
Flynn, Paul
Follett, Barbara
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Gapes, Mike
George, rh Mr. Bruce
Gibson, Dr. Ian
Gilroy, Linda
Godsiff, Mr. Roger
Goodman, Helen
Griffith, Nia
Gwynne, Andrew
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. David
Hamilton, Mr. Fabian
Hanson, rh Mr. David
Harman, rh Ms Harriet
Harris, Mr. Tom
Havard, Mr. Dai
Healey, John
Hepburn, Mr. Stephen
Heppell, Mr. John
Hesford, Stephen
Heyes, David
Hill, rh Keith
Hillier, Meg
Hodge, rh Margaret
Hodgson, Mrs. Sharon
Hood, Mr. Jim
Hoon, rh Mr. Geoffrey
Hope, Phil
Howarth, rh Mr. George
Howells, Dr. Kim
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Humble, Mrs. Joan
Hutton, rh Mr. John

Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
Irranca-Davies, Huw
Jackson, Glenda
Jenkins, Mr. Brian
Johnson, rh Alan
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Kevan
Jones, Lynne
Joyce, Mr. Eric
Keeble, Ms Sally
Keeley, Barbara
Keen, Alan
Keen, Ann
Kelly, rh Ruth
Kemp, Mr. Fraser
Kennedy, rh Jane
Khan, Mr. Sadiq
Kidney, Mr. David
Kilfoyle, Mr. Peter
Knight, Jim
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lammy, Mr. David
Laxton, Mr. Bob
Lazarowicz, Mark
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Linton, Martin
Lloyd, Tony
Love, Mr. Andrew
Lucas, Ian
Mackinlay, Andrew
Mallaber, Judy
Mann, John
Marris, Rob
Marsden, Mr. Gordon
Marshall-Andrews, Mr. Robert
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCafferty, Chris
McCarthy, Kerry
McCarthy-Fry, Sarah
McDonnell, John
McFadden, Mr. Pat
McFall, rh John
McGovern, Mr. Jim
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
McNulty, rh Mr. Tony
Meacher, rh Mr. Michael
Meale, Mr. Alan
Michael, rh Alun
Milburn, rh Mr. Alan
Miliband, rh David
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
Mullin, Mr. Chris
Murphy, Mr. Denis
Murphy, rh Mr. Paul
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
Osborne, Sandra
Owen, Albert
Palmer, Dr. Nick
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Mr. Gordon
Prescott, rh Mr. John
Primarolo, rh Dawn
Prosser, Gwyn
Purchase, Mr. Ken
Purnell, rh James
Rammell, Bill
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reid, rh John
Riordan, Mrs. Linda
Robinson, Mr. Geoffrey
Rooney, Mr. Terry
Roy, Mr. Frank
Ruane, Chris
Ruddock, Joan
Russell, Christine
Salter, Martin
Sarwar, Mr. Mohammad
Sharma, Mr. Virendra
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Simon, Mr. Siôn
Skinner, Mr. Dennis
Slaughter, Mr. Andy
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, rh Jacqui
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
Taylor, Ms Dari
Taylor, David
Thomas, Mr. Gareth
Thornberry, Emily
Timms, rh Mr. Stephen
Tipping, Paddy
Todd, Mr. Mark
Touhig, rh Mr. Don
Trickett, Jon
Turner, Dr. Desmond
Walley, Joan
Waltho, Lynda
Wareing, Mr. Robert N.
Watts, Mr. Dave
Whitehead, Dr. Alan
Williams, rh Mr. Alan
Williams, Mrs. Betty
Wills, Mr. Michael

Wilson, Phil
Winnick, Mr. David
Winterton, rh Ms Rosie
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Tellers for the Ayes:

Alison Seabeck and
Liz Blackman

Afriyie, Adam
Ainsworth, Mr. Peter
Ancram, rh Mr. Michael
Arbuthnot, rh Mr. James
Atkinson, Mr. Peter
Bacon, Mr. Richard
Baker, Norman
Barker, Gregory
Baron, Mr. John
Barrett, John
Beith, rh Mr. Alan
Bellingham, Mr. Henry
Benyon, Mr. Richard
Bercow, John
Beresford, Sir Paul
Blunt, Mr. Crispin
Bone, Mr. Peter
Boswell, Mr. Tim
Brady, Mr. Graham
Brake, Tom
Brazier, Mr. Julian
Breed, Mr. Colin
Brokenshire, James
Brooke, Annette
Browne, Mr. Jeremy
Burns, Mr. Simon
Burrowes, Mr. David
Burstow, Mr. Paul
Burt, Lorely
Butterfill, Sir John
Cable, Dr. Vincent
Campbell, Mr. Gregory
Campbell, rh Sir Menzies
Carmichael, Mr. Alistair
Carswell, Mr. Douglas
Cash, Mr. William
Chope, Mr. Christopher
Clappison, Mr. James
Clark, Greg
Clark, Ms Katy
Clarke, rh Mr. Kenneth
Clifton-Brown, Mr. Geoffrey
Corbyn, Jeremy
Cormack, Sir Patrick
Davey, Mr. Edward
Davies, Mr. Dai
Davies, David T.C. (Monmouth)
Davies, Philip
Davis, rh David (Haltemprice and Howden)
Dorries, Mrs. Nadine
Drew, Mr. David
Duncan Smith, rh Mr. Iain
Ellwood, Mr. Tobias
Evans, Mr. Nigel
Evennett, Mr. David
Fallon, Mr. Michael
Farron, Tim
Featherstone, Lynne
Field, Mr. Mark
Foster, Mr. Don
Francois, Mr. Mark
Fraser, Christopher
Gale, Mr. Roger
Garnier, Mr. Edward
Gauke, Mr. David
George, Andrew
Gibb, Mr. Nick
Gidley, Sandra
Gillan, Mrs. Cheryl
Goldsworthy, Julia
Goodman, Mr. Paul
Gove, Michael
Gray, Mr. James
Grayling, Chris
Green, Damian
Greening, Justine
Greenway, Mr. John
Gummer, rh Mr. John
Hague, rh Mr. William
Hammond, Mr. Philip
Hammond, Stephen
Hancock, Mr. Mike
Hands, Mr. Greg
Harris, Dr. Evan
Harvey, Nick
Hayes, Mr. John
Heald, Mr. Oliver
Heath, Mr. David
Hemming, John
Herbert, Nick
Hoban, Mr. Mark
Hoey, Kate
Hogg, rh Mr. Douglas
Hollobone, Mr. Philip
Holloway, Mr. Adam
Holmes, Paul
Hopkins, Kelvin
Horam, Mr. John
Horwood, Martin
Howarth, David
Howarth, Mr. Gerald
Hughes, Simon
Huhne, Chris
Hunt, Mr. Jeremy
Hunter, Mark
Hurd, Mr. Nick
Jack, rh Mr. Michael
Jackson, Mr. Stewart
Jenkin, Mr. Bernard
Jones, Mr. David
Kawczynski, Daniel
Keetch, Mr. Paul
Kennedy, rh Mr. Charles
Key, Robert
Kirkbride, Miss Julie
Knight, rh Mr. Greg
Kramer, Susan
Laing, Mrs. Eleanor
Lait, Mrs. Jacqui
Lamb, Norman
Leech, Mr. John
Leigh, Mr. Edward
Letwin, rh Mr. Oliver
Lewis, Dr. Julian

Liddell-Grainger, Mr. Ian
Llwyd, Mr. Elfyn
Loughton, Tim
Mackay, rh Mr. Andrew
Main, Anne
Maples, Mr. John
Mates, rh Mr. Michael
McCrea, Dr. William
McIntosh, Miss Anne
McLoughlin, rh Mr. Patrick
Mercer, Patrick
Miller, Mrs. Maria
Milton, Anne
Mitchell, Mr. Andrew
Moss, Mr. Malcolm
Mulholland, Greg
Mundell, David
Murrison, Dr. Andrew
Neill, Robert
Newmark, Mr. Brooks
Oaten, Mr. Mark
Öpik, Lembit
Osborne, Mr. George
Ottaway, Richard
Paice, Mr. James
Penning, Mike
Penrose, John
Price, Adam
Pritchard, Mark
Pugh, Dr. John
Redwood, rh Mr. John
Reid, Mr. Alan
Rennie, Willie
Robathan, Mr. Andrew
Robertson, Mr. Laurence
Robinson, rh Mr. Peter
Rogerson, Dan
Rosindell, Andrew
Rowen, Paul
Ruffley, Mr. David
Russell, Bob
Sanders, Mr. Adrian
Scott, Mr. Lee
Selous, Andrew
Shapps, Grant
Shepherd, Mr. Richard
Short, rh Clare
Simmonds, Mark
Simpson, Alan
Simpson, Mr. Keith
Smith, Sir Robert
Soames, Mr. Nicholas
Spicer, Sir Michael
Spink, Bob
Spring, Mr. Richard
Streeter, Mr. Gary
Stuart, Mr. Graham
Stunell, Andrew
Swayne, Mr. Desmond
Swinson, Jo
Swire, Mr. Hugo
Syms, Mr. Robert
Taylor, Matthew
Taylor, Dr. Richard
Teather, Sarah
Thurso, John
Turner, Mr. Andrew
Tyrie, Mr. Andrew
Vaizey, Mr. Edward
Vara, Mr. Shailesh
Vaz, rh Keith
Walker, Mr. Charles
Wallace, Mr. Ben
Wareing, Mr. Robert N.
Waterson, Mr. Nigel
Watkinson, Angela
Webb, Steve
Whittingdale, Mr. John
Widdecombe, rh Miss Ann
Wiggin, Bill
Williams, Hywel
Williams, Mark
Williams, Mr. Roger
Willis, Mr. Phil
Willott, Jenny
Wilshire, Mr. David
Wilson, Mr. Rob
Wilson, Sammy
Winterton, Ann
Young, rh Sir George
Younger-Ross, Richard
Tellers for the Noes:

James Duddridge and
Jeremy Wright
Question accordingly agreed to.
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6 May 2008 : Column 637

Nick Herbert: On a point of order, Mr. Deputy Speaker. We have just had a vote on an important matter relating to police and prison officer pay, which has not been debated in the Chamber because the knife came down. Ironically, the issue is being debated by the Prison Officers Association in Portsmouth, but not here. We had a debate of about 15 minutes on data protection, and we have had no debate on violent offender orders—

Mr. Deputy Speaker (Sir Michael Lord): Order. I am sorry to cut the hon. Gentleman off, but I see the point that he seeks to make. It has already been made this evening. I understand the point, but to repeat it at this stage is only to take time from the next debate. These matters have already been decided—

Mr. Hanson rose—

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