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646. Part 1 of the Access to Justice Act 1999 contains a number of powers for the Lord Chancellor to make orders or regulations in respect of the services provided by the LSC as part of the CLS or CDS. However, the Act does not currently contain a general power, which is commonly found in primary legislation, for such secondary legislation to include consequential, incidental, supplementary transitional, transitory or saving provision.
647. Subsection (2) is a consequential amendment to section 2 of the Act (power to replace LSC with two bodies).
648. Subsection (3) inserts a new subsection (8A) into section 25 of the Access to Justice Act 1999 so that secondary legislation made by the Lord Chancellor (whether in relation to the CLS or the CDS) may include consequential, incidental, supplementary, transitional, transitory and saving provisions.
Clause 133: Exploitation proceeds orders
649. Subsection (1) provides the High Court (or the Court of Session in Scotland) with the power to make an exploitation proceeds order. This is an order made in relation to a qualifying offender who has obtained exploitation proceeds from a relevant offence. The effect of an order is to require the offender (called the respondent) to pay a sum of money to the enforcement authority in respect of those proceeds.
650. Subsection (4) explains that a person obtains exploitation proceeds from a relevant offence if he or she derives a benefit from the exploitation of any material relating to the offence or any steps taken with a view to such exploitation. So, for example, a person who receives payment for writing a book, or giving a television interview, about their crime will have obtained exploitation proceeds. A person will also have derived a benefit if he or she receives a payment but the book is not published or the interview does not go ahead.
651. Subsection (4) explains that an order must specify a recoverable amount and identify the benefits derived by respondent that the order relates to. Subsection (6) provides that if the respondent does not pay the recoverable amount by the required time he or she must pay interest at the appropriate rate for the period that the amount is unpaid. The appropriate interest rate is defined in subsection (8) as that specified in section 17 of the Judgments Act 1838 or, in the case of an order made in Scotland, the rate payable under a decree of the Court of Session.
652. An exploitation proceeds order can only be made in respect of a person who is a qualifying offender and this clause sets out who is a qualifying offender for the purposes of the provisions. A person is a qualifying offender if they have been convicted of an offence in a United Kingdom court, have been found not guilty by such a court by reason of insanity or have been found by such a court to be suffering from a disability and to have done the act charged (subsection (2)). In addition, under subsection (3) a United Kingdom national, resident or person resident in the United Kingdom at the time of an offence will be a qualifying offender if they have been convicted by a court outside the United Kingdom of a foreign offence or if that court makes a finding equivalent to a finding that the person was not guilty by reason of insanity or equivalent to a finding that the person was under a disability and did the act charged. Subsection (4), in conjunction with subsection (6), defines a foreign offence as an act, or omission, amounting to an offence under the law in force in the foreign country that, at the time it was committed, would have been an offence if committed in the United Kingdom and which would be an offence if done in the United Kingdom at the time that the application for an exploitation proceeds order is made.
653. This clause makes supplementary provision to clause 134 in respect of service offences under UK and foreign service law.
654. This clause ensures that the Rehabilitation of Offenders Act 1974 does not prevent account being taken of a conviction for the purposes of this Part, and makes equivalent provision for Northern Ireland. It also disapplies provisions which provide that an offence is not treated as a conviction where an offender is given an absolute or conditional discharge in respect of it.
655. This clause sets out what is a relevant offence for the purposes of clause 133. A relevant offence is an offence committed by a person as a result of which that person falls within the definition of a qualifying offender. In addition, an offence taken into consideration by a court when sentencing a person for the offence which results in the person being a qualifying offender is a relevant offence. Furthermore, an offence is a relevant offence if it is committed by a third party but it is associated with the offence which results in a person being a qualifying offender (or it is associated with an offence which is taken into consideration by the court when sentencing a person for an offence which results in the person being a qualifying offender). Subsections (2) and (3) set out when an offence will amount to an associated offence.
656. This clause sets out what amounts to deriving a benefit for the purposes of clause 133. Subsection (2) explains what amounts to an exploitation and provides that an exploitation can be by any means including publishing material in written or electronic form, using any media from which visual images, words or sounds can be produced and live entertainment, representation or interview.
657. Subsection (3) provides that the offender will be deemed to have derived a benefit if he or she obtains the benefit for himself or herself or secures the benefit for another person. This ensures that a qualifying offender cannot circumvent the scheme by arranging for exploitation proceeds to be paid directly to a third party.
658. The effect of subsection (4) is that it is irrelevant whether the exploitation takes place in the United Kingdom or whether there has been a conviction for the relevant offence.. This would be relevant, for example, where an offender is paid for the story of his crime while he was standing trial and is subsequently convicted. However, where the relevant offence is an offence committed by a third party, the respondent must have committed the associated offence before deriving the benefit.
659. Subsection (5) ensures that the scheme does not apply retrospectively. The scheme applies to offences whenever committed, but benefits derived before the provisions are commenced will not be recoverable under the new scheme.
660. This clause provides that the court may only make an exploitation proceeds order on the application of an enforcement authority. Subsection (2) explains that the enforcement authority in relation to England and Wales and Northern Ireland is the Serious Organised Crime Agency or a person prescribed by order made by the Secretary of State. The Scottish Ministers are the enforcement authority for Scotland,.
661. Subsection (3) provides that an enforcement authority in England and Wales may only apply for an exploitation proceeds order with the consent of the Attorney General. An enforcement authority in Northern Ireland may apply for such an order only with the consent of the Advocate General for Northern Ireland (which, under Schedule 20) is to be read as a reference to the Attorney General for Northern Ireland until the relevant sections of the Justice (Northern Ireland) Act 2002 come into force).
662. This clause sets out a range of factors that the court must take into consideration when deciding whether to make exploitation proceeds order in respect of any benefit and, if it makes an order, the recoverable amount to be specified in the order. Subsection (3) lists the specific matters that the court must take into account but the list is not exhaustive and the court may take into account any other matters it considers relevant.
663. This clause places a limit on the amount that the court can order a person to pay (known as the recoverable amount). The recoverable amount cannot be exceed the total value of the benefits derived by the offender (including those secured for a third party) in respect of which the order is made. The order must identify the benefits it relates to. Also the recoverable amount cannot exceed the funds available to the offender (the available amount) as it is not the intention of the scheme to cause bankruptcy. Subsection (2) also provides that the recoverable amount may be a nominal amount.
664. Subsection (3) provides that the order may seek to recover any benefits derived by the offender up until the time the court makes its determination. But it cannot seek to recover benefits that have already been subject to a previous order.
665. Where the offender receives a benefit in kind rather than cash, subsections (4) and (5) set out how the value of the benefit is determined. Subsection (4) provides that where the benefit is a benefit in kind rather than cash the value of the benefit is the market value at the time the benefit is received. If a particular benefit has no market value, subsection (5) provides that the court can attribute to the benefit such value as is just and reasonable.
666. There may be circumstances where an offender receives payment from a publisher, but only a small part of the payment directly relates to material pertaining to a relevant offence. This could arise, for example, where a criminal is paid to write a series of magazine articles about his life, but only one article in the series relates to the relevant offence. Subsection (6) gives the court the discretion to decide what proportion of the benefit it is just and reasonable to attribute to the exploitation of material pertaining to the relevant offence.
667. This clause defines the available amount. This is the sum which, if lower than the total value of the benefits from exploitation included in the order, will be the maximum that a respondent can be ordered to pay. The available amount is the total of the respondents assets, any benefits secured by the respondent for a third party (for example where the respondent has asked the publisher to pay proceeds from a book to a family member); and the value of any relevant gifts that the court considers it just and reasonable to take into account. Subsection (2) defines the value of the respondents assets as the value of any free property held by the respondent, less the total amount payable in respect of obligations that have priority. Subsection (3) sets out that property is free unless it is subject to certain types of forfeiture and deprivation orders. Subsection (4) defines priority obligations. Such obligations will include court fines and liabilities such as mortgages. A relevant gift is defined in subsection (6) as a gift made on or after the time the respondent derived any of the benefits identified in the order. A gift includes transaction at a significant undervalue.
668. This clause defines the meaning of property for the purposes of section 142.
669. This clause addresses the situation where an order has been made but the relevant conviction to which the order relates is quashed. In these circumstances the order ceases to have effect and, on an application by the respondent, the court must order the Secretary of State (in Scotland the Scottish Ministers) to repay to the respondent the sum that the respondent paid to satisfy the order (excluding the amount paid in respect of interest for late payment) together with interest at a rate to be determined by the court. If a relevant conviction is quashed but the order relates to exploitation proceeds from more than one offence, the court must, on an application by the respondent, determine the proportion of the recoverable amount that it is just and reasonable to attribute to the offence in respect of which the conviction has been quashed. The court must then reduce the recoverable amount by the proportion it has determined. If the respondent has paid a sum to satisfy the order (excluding interest for late payment) which exceeds this recalculated recoverable amount the court must order the Secretary of State to repay the respondent this excess (with interest).
670. This clause confers on the court certain powers where an application for an exploitation proceeds order is made in relation to a person and the court has previously made an exploitation proceeds order in respect of that person. This may arise, for example, where an offender publishes a new edition of the autobiography that led to the original order being imposed and receives a further payment for the new edition. Under this clause, the court can adopt any finding of fact made by the court in connection with the earlier order. If both orders relate to benefits derived from the same source, the court must also have regard to its previous determination of the recoverable amount specified in the earlier order.
671. This clause provides that a court making an exploitation proceeds order can also make an additional proceeds reporting order if it believes that the likelihood of the respondent obtaining further exploitation proceeds is so high as to justify making such as order. An additional proceeds reporting order works in the same way as a financial reporting order in sections 76-81 of the Serious Organised Crime and Police Act 2005. The effect is that a person subject to such an order is required to report on specified particulars of his financial affairs at specified periods. The period for such an order must not exceed 20 years. This type of order might be considered appropriate, for example, where a publisher has agreed to pay the offender in instalments or where royalties from a particular publication flow into the offenders account over a lengthy period.
672. Clause 147 and Schedule 17 amend Part 8 of POCA so as to extend the provisions relating to investigations to include exploitation proceeds investigations. This means, for example, that the enforcement authority carrying out an exploitation proceeds investigation is able to apply to a judge for a production order or search and seizure warrant.
673. This clause makes consequential changes to the functions of the Serious Organised Crime Agency.
674. Subsection (1) inserts a new section 27C into the Limitation Act 1980. Subsections (1) to (3) have the effect that an application for an exploitation proceeds order may not be made more than six years after the enforcement authoritys cause of action accrued. Subsection (4) provides that a cause of action will accrue from the time that the enforcement authority has actual knowledge that a person has obtained exploitation proceeds from a relevant offence.
675. Subsection (2) inserts new section 72C into the Limitation (Northern Ireland) Order (SI 1989/1339) which makes similar provision for Northern Ireland.
676. Subsection (3) inserts a new section 19C into the Prescription and Limitation (Scotland) Act 1973. This makes similar provision for Scotland, although in that case the limitation period is five rather than six years, in line with other provision made by that Act.
677. This clause sets out the meaning of terms used in this Part of the Bill.
Clause 151: Assessment notices
678. Clause 151inserts new sections 41A and 41B, into the 1998 Act. New section 41A(1) enables the Information Commissioner to carry out an assessment to determine whether a public body has complied or is complying with the data protection principles. The Information Commissioner is not required to seek the consent of the public authority to undertake this assessment. Under this subsection, the Information Commissioner will be able to issue an assessment notice, which will require the subject of the notice to take certain action as set out in section 41A(3).
679. New section 41A(2) provides that the data controllers that may be given an assessment notice are government departments, and public authorities designated for the purposes of this section by an order made by the Secretary of State. Section 41A(2) further provides that the powers do not apply to excluded bodies. Excluded bodies are defined in section 41A(12) as any body specified in section 23(3) of the Freedom of Information Act 2000. Those bodies are:
680. The Office for Standards in Education, Childrens Services and Skills, is also an excluded body, but only in so far as it is a data processor in respect of information processed for the purposes of functions exercisable by Her Majestys Chief Inspector of Education, Childrens Services and Skills by virtue of section 5(1)(a) of the Care Standards Act 2000, is also an excluded body.
681. New section 41A(3) lists the obligations that may be included in an assessment notice. These include permitting the Commissioner to enter any specified premises, to inspect or examine any documents, information, equipment or material to which the Commissioner is directed or which the Commissioner is assisted to view, and to observe the processing of any personal data that takes place on the premises. The recipient of an assessment notice may also be obliged to direct the Commissioner to any documents on the premises that are of a specified description or to any equipment or other material on the premises that are of a specified description. The recipient of the notice may also be required to assist the Commissioner to view any information of a specified description that is capable of being viewed using equipment on the premises, and to comply with any request from the Commissioner for a copy of any of the documents to which the Commissioner is directed and a copy (in a format requested by the Commissioner) of any of the information which the Commissioner is assisted to view. Finally, the notice may require the recipient to make available for interview by the Commissioner persons who process personal data on behalf of the data controller (and are willing to be interviewed).
682. New section 41A(5) sets out that the assessment notice must specify either the time when, or the period within which, the requirements of the notice must be complied with.
683. New section 41A(6) sets out that assessment notices must contain particulars of the rights of appeal conferred by section 48 of the 1998 Act.
684. New section 41A(7) provides that the time and period given in an assessment notice must allow time for an appeal to be brought under section 48. The result of this is that the need to comply with an assessment notice will be suspended if an appeal is brought.
685. New section 41A(8) establishes an exception to the provisions of section 41A(7) by virtue of which, if there are special circumstances, the Commissioner can ask the data controller to comply with a requirement in an assessment notice as a matter of urgency. In this case the notice can take effect after seven days, beginning with the day on which the assessment noticed is served. The assessment notice in this case will need to include a statement that the Commissioner considers that the notice must be complied with as a matter of urgency and the Commissioners reasons for that conclusion.
686. New section 41A(9) ensures protection for material benefiting from legal professional privilege. An assessment notice does not have effect in relation to material that meets one of the tests set out in section 41A(9).
687. New section 41A(11) provides that the Commissioner may cancel an assessment notice by written notice to the data controller on whom it was served.
688. New section 41A(12) provides a number of definitions. It defines public authority, for the purpose of the order-making power in section 41A(2)(b), as any body, office-holder or other person in respect of which an order may be made under section 4 or 5 of the Freedom of Information Act 2000 or under section 4 or 5 of the Freedom of Information (Scotland) Act 2002. This expands on the definition of public authority in section 1(1) of the 1998 Act, which provides that public authority means a public authority as defined by the Freedom of Information Act 2000 or a Scottish public authority as defined by the Freedom of Information (Scotland) Act 2002.
689. New section 41B of the 1998 Act requires the Information Commissioner to produce a code of practice in relation to the exercise of his or her new function of issuing assessment notices. Section 41B(1) requires the Commissioner to produce the code and section 41B(2) provides a non-exhaustive list of the matters that must be covered by the Code. Section 41B(3) provides that the Code must make provision about access to health information and social care information. Section 41B (5) and (6) provide that the Commissioner may alter or replace the Code and that such a replacement or altered Code must be issued by the Commissioner. Section 41B(7) provides that any Code must be approved by the Secretary of State before being issued. Section 41B(8) requires the Commissioner to publish the Code.
690. Clause 152 inserts new sections 50A to 50F into the 1998 Act.
691. Section 50A(1) creates an order-making power to enable a person to share information that consists of, or includes, personal data. The power is conferred on a designated authority. Designated authority is defined in new section 50A(2) as the Scottish Ministers, the Welsh Ministers, a Northern Ireland Department or an appropriate Minister. Section 50C determines when each of these designated authorities is entitled to make an order. An order under section 50A is known as an information-sharing order.
692. New section 50A(3) sets out the definition of data-sharing for the purposes of this section. Sharing in this section includes both the disclosure of data between two or more persons (such as when one company provides its client list to another company for commercial purposes), as well as where a single person uses some data for a purpose other than that which it was obtained for (for example where a Government Department obtains information for the purposes of exercising one particular statutory function such as the collection of tax but then later wishes to use the same information for another statutory function such as the provision of benefits and credits).
693. New section 50A(4) sets out a three-limb test for making an order. The first limb is that the sharing of information enabled by the order is necessary to secure a relevant policy objective. A relevant policy objective is defined in new section 50F(1) of the 1998 Act and varies depending on the identity of the designated authority making the order. For the Scottish Ministers it is a policy objective that relates to matters within the legislative competence of the Scottish Parliament or to functions conferred on the Scottish Ministers by an Act of Parliament or an instrument made under such an Act. For the Welsh Ministers it is a policy objective that relates to matters within the legislative competence of the National Assembly for Wales or to functions exercisable by the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government. For a Northern Ireland Department it is a policy objective that relates to transferred matters within the meaning of the Northern Ireland Act 1998 or functions exercisable by a Minister within the meaning of that Act or by a Northern Ireland Department. For an appropriate minister it is a policy objective of that Minster.
694. The second limb of the test is that the provisions of the order are proportionate to the policy objective. The third limb is that the provisions in the order strike a fair balance between the public interest and the interests of any person affected by it. Of relevance to this is new section 50D(2), which requires the designated authority to issue a general invitation for representations to be made by persons likely to be affected by the proposed order, and to take account of any representations made.
695. New section 50A(5) provides that an order must contain certain specific information. Firstly, the order must specify the persons enabled to share information. Secondly, the order must specify the purpose for which the information is to be shared. Lastly, it will have to include a description of the information to be shared (for example. names, address, dates of birth etc) or a description of the classes or categories of information that is to be shared. For example, this could be information held by the Revenue and Customs Prosecutions Office in connection with any of its functions; or information held by the Secretary of State for Work and Pensions as a result of, or for the purpose of, the exercise of the functions of the department in relation to social security.
696. Section 50A(6) provides that an order must not enable any sharing that would be prohibited by Part 1 of the RIPA. Part 1 of that Act relates to interception of communications. Section 50A(7) is a saving provision for powers and duties to share information that exist apart from the powers in section 50A.
697. New section 50B of the 1998 Act makes supplemental provisions in relation to the information-sharing order powers in section 50A, and includes a non-exhaustive list of the kinds of provisions that may be included in an order under section 50A. New section 50B(1) provides that an order may remove or modify any legal barrier to information-sharing. This could be by repealing or amending other primary legislation, changing any other rule of law (for example, the application of the common law of confidentiality to defined circumstances), or creating a new power to share information where that power is currently absent. This section also provides for the conferral of powers on particular persons, the imposition of prohibitions and restrictions upon disclosure or sharing, and the provisions of a power to allow persons to exercise a discretion in dealing with such matters.
698. New section 50B(2) sets out that information-sharing orders may provide for the creation of offences, and new section 50B(3) provides the maximum penalties for any offences which are created in an order under this section. A conviction for such offences may carry a maximum term of imprisonment of 2 years on conviction on indictment, and a maximum term of imprisonment of 12 months on summary conviction. This is subject to two exceptions. The maximum term of imprisonment on summary conviction is 6 months in the case of Northern Ireland. Until section 282(1) of 2003 Act is brought into force, the maximum term of imprisonment on summary conviction in England and Wales is also 6 rather than 12 months. This reflects the fact that section 282(1) of the 2003 Act (when in force) will increase the maximum term of imprisonment which may be imposed on summary conviction in England and Wales of certain either way offences to 12 months.
699. New section 50C explains the circumstances in which each of the designated authorities is entitled to make an order under section 50A. The designated authorities are an appropriate Minister, the Scottish Ministers, the Welsh Ministers, and Northern Ireland Departments.
700. New Section 50C(1) sets out when an appropriate Minister can make an information-sharing order. The Minister may be the Secretary of State, the Treasury or the Minister in charge of a department without a Secretary of State (other than the Treasury) depending on the matter to which the order relates (see section 50A(2)). Essentially the sharing of information enabled by the order must be for the purposes of a matter with which the department of the Minister is concerned. For example if an order allowed NHS Trusts in England to share patient data for the purposes of medical research, the data-sharing exercise relates to health matters, and so the appropriate Minister would be the Secretary of State for Health.
701. Under new section 50C(2), if there is more than one appropriate minister the power may be exercised by one or more of them.
702. New Section 50C(3) provides that the Scottish Ministers may exercise the powers where either:
703. For this purpose section 50F(1) defines relevant Scottish body as any part of the Scottish Administration (as defined in section 126(7) of the Scotland Act 1998), or any public body, public office or holder of such an office whose functions (in each case) are exercisable only in or as regards Scotland. Section 50F also defines devolved Scottish functions to mean functions relating to matters within the legislative competence of the Scottish Parliament or conferred on Scottish Ministers by an Act of Parliament or an instrument under an Act.
704. New section 50C(4) provides that the Welsh Ministers may exercise the power where:
705. For this purpose section 50F(1) defines relevant Welsh body as any public body, public office or holder of such office whose functions (in each case) are exercisable only in relation to Wales, and devolved Welsh functions as functions relating to matters within the legislative competence of the National Assembly for Wales or in relation to which functions are exercisable by the Welsh Ministers, the First Minister for Wales or the Counsel General to the Assembly.
706. Under new section 50C(5) a Northern Ireland Department may exercise the power where the purposes of the sharing relate to any matter with which that Department is concerned and either:
707. For this purpose section 50F(1) defines relevant Northern Ireland body as any public body, public office or holder of such office whose functions (in each case) are exercisable only in relation to Northern Ireland, and devolved Northern Ireland functions as functions relating to transferred matters (as defined by the Northern Ireland Act 1998).
708. In the case of Northern Ireland departments, the power will be exercisable by the Northern Ireland Department that is concerned with the matter or matters to which the sharing relates (see section 50C(5)). If more than one Department is concerned with the matter then one or more of those Departments can make the order (see section 50C(6)).
709. New section 50D requires the designated authority to invite representations by persons affected by the order, and makes provision for the Information Commissioner to be able to review and report on a draft of any order proposed to be made under this new power.
710. New section 50D(2) requires the designated authority to issue a general invitation for representations to be made by persons likely to be affected by the proposed order, and to take account of any representations made.
711. New section 50D(3) requires that the designated authority to give a copy of the draft order to the Information Commissioner.
712. New section 50D(4) and (5) provide that the Information Commissioner has 21 days in which he can submit to the designated authority a report stating whether or not he is satisfied that the effect of the proposed order would be proportionate to its policy objective, and that the order strikes a fair balance between the public interest and the interests of any person affected by it. The draft order can only be laid before Parliament after either the Commissioner has responded or the 21-day period provided for his response has ended. If the Commissioner has produced a report, the designated authority is obliged to lay a copy of the report before Parliament at the same time as the order is laid.
713. Section 50E makes provision about consent and consultation in relation to the making of orders under section 50A. New section 50E(1) provides that an order can only be made by an appropriate Minister (including the Secretary of State) if it has been approved by the Secretary of State who is primarily responsible for government policy in relation to the protection of data, this is currently the Secretary of State for Justice. This requirement does not apply if the order is to be made by the Secretary of State having that primary responsibility. Section 50E(2) makes provision for consultation with that Secretary of State where the order is to be made by the Scottish Ministers, the Welsh Ministers or a Northern Ireland Department.
714. Section 50E(3) provides that an appropriate Minister must obtain the consent of Scottish Ministers where it is proposed to modify devolved legislation and where it is proposed to authorise the sharing of information by, or disclosure of information to a body whose functions are exercisable only in or as regards Scotland in circumstances where the information is to be shared by or disclosed to that body in connection with any of its devolved Scottish functions. Section 50E(3) provides that an appropriate Minister must obtain the consent of Welsh Ministers where it is proposed to modify devolved legislation and where it is proposed to authorise the sharing of information by, or disclosure of information a body whose functions are exercisable only in or as regards Wales in connection with any of its devolved Welsh functions. Section 50E(4) provides that an appropriate Minister must obtain the consent of the appropriate Northern Ireland Department where it is proposed to modify any provision of Northern Ireland legislation which deals with a transferred matter and where it is proposed to authorise information to be shared by or disclosed to a body whose functions are exercisable only in or as regards Northern Ireland in connection with any of its devolved Northern Ireland functions.
715. Section 50F is an interpretation provision. Subsection (2) lists certain functions which are to be disregarded when determining what amounts to devolved Welsh functions as defined by section 50F(1).
716. Subsection (2) of clause 153 amends section 67 of the 1998 Act to provide that orders made under section 50A will be subject to the affirmative resolution procedure. It also provides that orders made by the Scottish Ministers will be approved in the Scottish Parliament, orders made by the Welsh Ministers will be approved in the National Assembly for Wales and orders made by a Northern Ireland Department will be by statutory rule and approved in the Northern Ireland Assembly
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|Prepared: 15 January 2009