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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 controllers 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 issueswhich the Information Commissioner hasare 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 personthe data controllerif 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 States 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.
We have eight minutes before the guillotine comes clattering down, which will leave police and prison service pay and violent offender orders largely, if
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
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 interestingif we had timeto 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 commissioners expertise, if we look at proposed new section 55C(1), we have absolutely no idea what the levels of fineslet us not beat about the bushwill 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 Governments 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.
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 datadata from Swansea, child benefit data, and so onand it was clear that there was a pretty lackadaisical attitude within Government to holding the publics personal and private information.
I accept the Ministers point that the crime created by Lords amendment No. 115 is a pretty general one. It covers intentional and reckless behaviour, and repeated negligent activitya controversial aspect of the crime that she did not refer to. Nevertheless, when penalties
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 Governments 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 Governments 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 dêtre, so we appreciate
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
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