Clause 153: Data-sharing code of practice

717.     This clause inserts new sections 52A to 52E into 1998 Act. New section 52A places the Information Commissioner under a duty to publish and keep under review a data-sharing Code of Practice.

718.     New section 52A(1) and (2) provide that the code will contain practical guidance in relation to the sharing of personal data and any other guidance that promotes good practice in the sharing of personal data. Good practice is defined as practice that appears to the Information Commissioner to be desirable including, but not limited to, compliance with the requirements of the 1998 Act. When deciding what is desirable practice the Information Commissioner must have regard to the interests of data subjects, and others who might be affected by data-sharing.

719.     New section 52A(3) requires that in preparing the code the Commissioner must consult with trade associations, data subjects and persons who represent the interests of data subjects as he or she considers appropriate.

720.     New section 52A(4) defines sharing of personal data as the disclosure of the data by transmission, dissemination or otherwise making it available. For example the sending of files, the granting of access to a database and the publication of information all amount to “sharing” under this definition.

721.     New section 52B(1) requires that once the Information Commissioner has prepared the code it must be submitted to the Secretary of State for approval.

722.     New section 52B(2) provide that approval may be withheld only if the Secretary of State is of the opinion that the Code is incompatible with any community obligations (in particular EC Directive 95/46/EC on the protections of individuals with regard to the processing of personal data and on the free movement of such data) or any international obligations of the UK (such as the Convention for the protection of individuals with regard to automatic processing of personal data: Convention 108 of the Council of Europe).

723.     If approval is withheld, new section 52B(3) requires the Secretary of State to publish the reasons for this. If approval is granted, the Secretary of State must lay the code before Parliament.

724.     New section 52B(4) to (11) makes provision relating to the issuing of the code. In particular, either House of Parliament has 40 days (excluding any period during which Parliament is not sitting for more than 4 days) in which to pass a resolution refusing to approve the code. If such a resolution is passed, or if the Secretary of State withholds approval, then the Information Commissioner is obliged to prepare another code of practice for resubmission. Where approval is granted and no resolution is passed, the Information Commissioner must issue the code. The code then comes into force 21 days later.

725.     New section 52C(1) requires the Information Commissioner to keep the code under review and empowers him or her to prepare an alteration or replacement to the code. New Section 52C(2) obliges the Information Commissioner to alter or replace the code if he or she becomes aware that application of the code could give rise to a claim that the UK was in any way in breach of its European Community or other International obligations.

726.     New section 52C(3) requires the Commissioner in preparing an alteration or replacement code to consult with trade associations, data subjects and such persons who represent the interests of data subjects, as the Commissioner considers appropriate.

727.     New section 52D makes provision for the code, any replacement code and any alteration, to be published by the Information Commissioner.

728.     New section 52E(1) to (5) provides that although the code is not legally binding, a person’s breach or compliance with the Code is to be taken into account by the courts, the Information Tribunal and the Commissioner whenever it is relevant to a question arising in legal proceedings or in connection with the exercise of the Commissioner’s functions. So, for example, the Information Commissioner is entitled to consider levels of compliance with the Data-sharing Code when evaluating whether to instigate enforcement action in relation to an instance of data-sharing. Equally a court would be entitled to have regard to levels of compliance with the code where it was attempting to resolve an issue relating to whether or not a particular person had fulfilled their legal obligations by complying with good practice and not acting negligently.

Clause 154 and Schedule 18: Further amendments of the Data Protection Act 1998

729.     This clause introduces Schedule 154. The Schedule makes amendments to the 1998 Act.

Data Controllers’ Registration

730.     Paragraph 1 of Schedule 18 amends section 16(1) of the 1998 Act. The Information Commissioner is obliged under section 19 of the 1998 Act to maintain a register of data controller notifications. Section 17(1) of the 1998 Act prohibits the processing of personal data unless the data controller has an entry recording his details in the register of data controllers. Section 18(5) of the 1998 Act provides that where a data controller notifies the Information Commissioner, the notification must be accompanied by such fee as may be prescribed by fees regulations. Under section 19(2) of the 1998 Act each register entry shall consist of the registrable particulars of the data controller and such other information as is required by the notification regulations. The term “registrable particulars” is defined in section 16(1). The amendment in paragraph 1 adds a new registrable particular to section 16(1) of the 1998 Act (new subparagraph (h)).

731.     The new registrable particular is such information about the data controller as is prescribed under new section 18(5A) of the 1998 Act. Section 18(5A) is inserted by paragraph 2 of Schedule 18 and provides that notification regulations may prescribe the information about the data controller that is required for the purpose of verifying the fee payable under section 18(5).

732.     The overall effect of these amendments is to provide a way for the Information Commissioner to check that a data controller has paid the correct notification fee. At the moment the Data Protection (Notification and Notification Fees) Regulations 2000 (SI 2000/188) provide that the fee payable each year is a flat amount of £35 per data controller. The intention is to modify this to provide a tiered fee scheme with different levels of fees for different data controllers. Once there are different levels of fees, the Information Commissioner will need to be able verify that the correct fee has been paid. If false information is provided in a notification then this may be an offence under section 5 of the Perjury Act 1911, Article 10 of the Perjury (Northern Ireland) Order 1979 (SI 1979/1714 (NI 19)) or section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995.

733.     Paragraph 3 of Schedule 18 amends section 19 of the 1998 Act to add a new subsection (8). It provides that the Information Commissioner will not be required to comply with section 19(6) and (7) in relation to the information that has to be supplied under new section 16(1)(h). Section 19(6) provides for the Information Commissioner to make the register of notifications available to the public for inspection and available to the public in such other ways as he or she considers appropriate. Section 19(7) requires the Information Commissioner to provide certified copies of registrable particulars in the register of notifications to members of the public.

Assessment notices

734.     Paragraphs 4 and 5 of Schedule 18 make two amendments that are consequential on the creation of new sections 41A and 41B of the 1998 Act by clause 151. Paragraph 4 amends section 48 of the 1998 Act to provide a right of appeal to the Information Tribunal against an assessment notice. Paragraph 5 inserts a new definition of government department into section 70(1) of the 1998 Act.

Power to require information

735.     Paragraph 6 of Schedule 18 amends section 43 of the 1998 Act to strengthen the Information Commissioner’s powers for inspecting a data controller’s compliance with the data protection principles, using an information notice.

736.     Paragraph 6(b) inserts two new subsections into section 43, which is the power of the Information Commissioner to issue an information notice. New section 43(1A) allows an information notice to provide that the data controller must provide (a) particular information as specified; (b) information of a particular description; or (c) information in a category as specified or described. New section 43(1B) allows an information notice to provide that the information must be provided (a) within a specified period; (b) at a specified time and place; (c) in a specified form.

737.     Paragraph 7 provides an equivalent amendment (to that made in paragraph 6 detailed above) to section 44 for special information notices (which makes special provisions in relation to the processing of personal data for journalistic, artistic and literary purposes).

Restriction on the use of information

738.     Paragraph 8 of Schedule 18 amends section 43 of the 1998 Act to place restrictions on the use of certain information obtained under the newly extended information notice power.

739.     Paragraph 8(3) inserts three new subsections into section 43 of the 1998 Act. These subsections make provision to ensure that the principle against self-incrimination is protected in relation to this section. First, the new section prohibits a data controller from being required to provide information which would incriminate him or her in relation to proceedings other than proceedings for offences under the 1998 Act and certain perjury offences. Second, statements made under the new expanded power of section 43 cannot be used as evidence against the data controller for any data protection offence (other than the offence of failing to comply with the terms of an information notice), unless the accused acts in such a way as to forfeit this particular protection. In those circumstances evidence of the original statement would be admissible in order to rebut the false assertions made by the accused.

740.     Paragraph 9 of Schedule 18 provides for an equivalent amendment (to that made in paragraph 8(3)) to be made to section 44 relating to special information notices (which makes special provisions in relation to the processing of personal data for journalistic, artistic and literary purposes).

741.     Paragraph 10 of Schedule 18 amends paragraph 11 of Schedule 7 to the 1998 Act to make provision in relation to the principle against self-incrimination. This existing provision of the 1998 Act provides that data controllers are not obliged to satisfy subject access requests under section 7 of the 1998 Act, where to do so would reveal incriminating evidence of an offence other than an offence under the 1998 Act. It additionally provides that any information that was so disclosed under a subject access request is not admissible against the data controller in proceedings for any offence under the 1998 Act. The amendment adjusts the provisions so that neither the 1998 Act offences nor certain perjury offences are covered by this protection.

Monetary penalties: restriction on matters to be taken into account

742.     Section 55A of the 1998 Act provides for the Information Commissioner to issue a civil monetary penalty for serious breaches of the data protection principles of a kind likely to cause substantial damage or distress that are carried out either deliberately or recklessly.

743.     Under section 51(7) of the 1998 Act the Information Commissioner can, with the consent of the data controller, assess any processing of personal data for the following of good practice.

744.     Paragraph 11 of Schedule 18 amends section 55A of the 1998 Act to prevent the imposition of a civil monetary penalty based on information that has been obtained from a good practice assessment (section 51 of the 1998 Act) or the use of an assessment notice under new section 41A of the 1998 Act as inserted by clause 151.

Warrant for entry and inspection

745.     Paragraph 12 of Schedule 18 amends Schedule 9 to the 1998 Act to give broader inspection powers to the Information Commissioner in relation to warrants obtained under Schedule 9 to the 1998 Act.

746.     Paragraph 12(2) broadens the range of activities the Information Commissioner can engage in when executing a warrant granted under Schedule 9. In particular, it gives the Information Commissioner the power to require any person on the premises to provide an explanation of any document or other material found on the premises (new paragraph 1(3)(e)) and to require such a person to provide information that is reasonably required to determine whether there has been any contravention of the data protection principles (new paragraph 1(3)(f)).

747.     Paragraph 12(3) makes amendments to paragraph 12 of Schedule 9 to the 1998 Act, which provides a criminal offence for the obstruction of, or failure to assist, a person executing a warrant under that Schedule. The additional text extends the offence to cover deliberately or recklessly making false statements in response to the new powers to require information created in paragraph 12(2) detailed above.

748.     Paragraph 12(4) provides protection against self-incrimination for any person required to provide information under the extended powers created under paragraph 12(2) above. In particular, any information provided by that person in response to this new warrant power cannot be used as evidence in criminal proceedings against that person. However this protection is not absolute, and the response given can be used in evidence if the offence concerned is either the offence of obstructing or failing to assist a person executing a Schedule 9 warrant or is one of a specific group of perjury offences. Furthermore the response can be used in evidence for the prosecution of any criminal offence if the accused acts in such a way as to forfeit this particular protection. In those circumstances evidence of the original statement becomes admissible in order to rebut the false assertions made by the accused.

Part 9 - General

Clause 155: Orders, regulations and rules

749.     This clause makes provision in connection with the various powers under the Bill to make orders or regulations. The affirmative resolution applies to instruments made under the powers listed in subsection (4). The effect of subsection (3) is that all other powers are subject to the negative resolution procedure or, in the case of the power to make commencement orders, no procedure applies. Subsection (2) provides that any power under the Bill to make orders or regulations includes a power to make provision generally or only for specified purpose, cases, circumstance or areas and to make different provision for different purposes, cases, circumstances or areas. This subsection also enables orders and regulations to make incidental, supplemental, consequential, transitional, transitory or saving provisions.

Clause 156 and Schedules 19 and 20: Consequential etc. amendments and transitional and saving provisions

750.     This clause enables the Secretary of State by order to make supplementary, incidental, consequential, transitory, transitional or saving provision for the purposes of the Bill. It is a power to make consequential provisions for those purposes at any time, including amendments to primary and secondary legislation. The clause also introduces Schedule 19 (minor and consequential amendments) and Schedule 20 (transitory, transitional and saving provisions).

Schedule 19: Minor and consequential amendments

Part 1 - Coroners

751.     The 1953 Act is amended by paragraphs 6, 7, 8 and 9 of Schedule 19, changing the time within which an informant is required to provide information for the registration of a death. Time begins to run from the date of confirmation by the medical examiner of the cause of death by virtue of clause 19 of the Bill or at the date of discontinuation of a coroner’s investigation under clause 4 of the Bill, rather than at the date of death. Paragraphs 8 and 9 also extend the categories of those who have a duty to give information for the registration of a death to include the partner of the deceased and the deceased’s personal representative. These terms are defined in the same way as in the list of interested persons given in clause 37.

752.     Paragraph 13 of Schedule 19 omits section 21 of the 1953 Act so that the Registrar General no longer needs to authorise the registration of a death where this is requested more than 12 months after the death. This provision is removed because all deaths will be reviewed either by a coroner or medical examiner under the provisions of Part 1 of the Bill.

753.     Paragraph 14 of Schedule 19 substitutes a new section 22 of the 1953 Act so as to remove the provisions for issuing medical certificates of cause of death. The provisions are replaced by powers in clause 19 for the Secretary of State to make regulations for the certification of cause of death. Section 22 is also amended to require the registrar to record the cause of death where this is provided under regulations made under clause 19. References to section 22 elsewhere in the 1953 Act are amended to refer to regulations under clause 19.

754.     In paragraph 18 of Schedule 19, section 29 of the 1953 Act is amended so that an error of fact or substance in the cause of death recorded in an entry in a death register may not be corrected without the approval of the appropriate medical examiner or senior coroner where the recorded cause had been confirmed under clause 19 or on discontinuance of an investigation under clause 4 (following post-mortem).

755.     The majority of the remaining amendments relating to Part 1 pick up references to the term “inquest” in other legislation and replace these with references to “investigation” or pick up references to the 1988 Act and replace these with references to these provisions.

756.     The Treasure Act 1996 is amended by paragraphs 35 to 39 of Schedule 19, streamlining the investigation and inquest process for Northern Ireland as well as England and Wales. There is an amendment to the Human Tissue Act 2004 relating to coroners’ duties in respect of bodies prior to transplantation or other similar or related activities at paragraphs 44 to 47.

Part 7 - Disqualification for Driving

757.     Sections 34A to 34C of the Road Traffic Offenders Act 1988 provide for a reduction in the period of disqualification for offenders convicted of drink-driving offences who successfully complete an approved driver retraining course. Similarly, sections 34D to 34G and 41B the Road Traffic Offenders Act 1988, when implemented, will provide for an offender convicted of a “relevant drink offence” to obtain a reduced period of disqualification for that offence by agreeing to participate, at his own expense, in an alcohol ignition interlock programme. Section 35 of the Road Traffic Offenders Act 1988 determines the minimum period of disqualification for a repeat offender. Section 37 of that Act deals with the effect of the disqualification in terms of when the licence is revoked and comes back into effect, including disregarding any period of suspension pending an appeal. Section 42 provides for an application to be made to the court for the removal of disqualification after a certain period has expired.

758.     Paragraph 78 of Schedule 19 provides for the extension period to be disregarded in calculating any appropriate reduction in the length of the disqualification, the minimum period of disqualification and the time before an application can be made for removal of a disqualification under the Road Traffic Offenders Act 1988.

759.     Section 54 of the Crime (International Co-operation) Act 2003 gives effect to mutual recognition of disqualification for driving so that drivers normally resident in one member State of the European Union who are disqualified from driving in another member State will also be disqualified in their state of residence. Paragraph 81 of Schedule 19 inserts a new subsection, subsection (3A), into that section so that the extension period is disregarded for the purposes of the minimum period of disqualification which requires notification to a central authority.

760.     Paragraph 82 of Schedule 19 amends section 160 of the Powers of Criminal Courts (Sentencing) Act 2000. It substitutes subsection (2) of section 160 effectively repealing parts of it. But, where the Secretary of State makes an order under section 107(1)(e) specifying the types of accommodation that may be “youth detention accommodation”, this order will still be subject to the negative resolution procedure. This paragraph also substitutes subsection (5) of section 160 to provide that an order under section 107(1)(e) may make different provision for different cases or classes of case.

Schedule 20 transitory, transitional and saving provisions

761.     Under paragraph 1 of Schedule 20, the Lord Chancellor will make an order so that all existing coroners’ districts will become coroner areas and will be known by the name by which the coroner’s district was previously known (but ending coroner area rather than coroner’s district). Paragraph 2 of Schedule 20 provides that the relevant authority for each new coroner area will be the authority which had been the relevant council for the coroner’s district from which it was derived.

762.     Paragraph 3 provides that any person who was a coroner for a district immediately before the 1988 Act was repealed will be treated as having been appointed as a senior coroner under paragraph 1 of Schedule 3 for the corresponding coroner area.

763.     Paragraph 3 also provides that any person who was a deputy coroner or assistant deputy coroner under the 1988 Act will be treated as having been appointed as an assistant coroner under paragraph 2(4) of Schedule 3 for the corresponding coroner area.

764.     Paragraphs 4 and 5 make transitional provisions in relation to clauses 11 to 13 (certification of inquests). Paragraph 4 gives the Lord Chancellor power to make an order which provides for the 1988 Act to have effect subject to provisions set out in the order which are equivalent to that made in clauses 11 and 12 of the Bill, and with any consequential modifications. An order made under this provision will apply in relation to inquests held under that Act that have begun, but have not been concluded, before the day on which the order comes into force.

765.     Paragraph 6 provides for the amendments to the Coroners Act (Northern Ireland) 1959 made by paragraph 3 to 5 of Schedule 9 (these amendments make equivalent provision to clauses 11 and 12 but in relation to Northern Ireland) to have effect in relation to inquests that have begun, but have not finished, before the day on which the section comes into force.

Clause 157 and Schedule 21: Repeals and revocations

766.     This clause introduces Schedule 21. That Schedule repeals existing legislative provisions which have been replaced by provisions in the Bill or otherwise no longer are no longer required. In particular, it repeals the whole of the 1988 Act.

Clause 159: Effect of amendments to criminal justice provisions applied for the purposes of service law.

767.     This clause provides that where criminal justice provisions are applied for the purposes of service law, they are to apply as amended by this Bill.

Clause 160: Extent

768.     This clause sets out the extent of the provisions of the Bill. This is detailed in paragraphs 55 to 61 above.

Clause 161: Commencement

769.     This clause provides for commencement. This is detailed in paragraphs 770 to 773 below.

COMMENCEMENT

770.     The following provisions of the Bill come into force on Royal Assent:

• Clauses 36 and 37, which contain the interpretation provisions for Part 1 of the Bill and the transitional provisions in Part 1 of Schedule 19;

• Clause 58 (and associated repeals) which repeals section 29JA of the Police Order Act 1986 (Protection of freedom of expression (sexual orientation));

• Clause 99 (and associated transitional provision and repeal) which removes the requirement for bills of indictment to be signed;

• Clause 123 (and associated minor amendment in paragraph 84 of Schedule 18 and repeal), which relates to the implementation of the E-Commerce and Services Directives;

• Clauses 130 and 131 and Schedule 16 which make provision in respect of criminal legal aid;

• In Part 9, clauses 155, 156(3) to (10), 158, 160, 161 and 162; and

• Paragraphs 57(3), 82, 83 and 84 of Schedule 19 (and associated repeals) contain minor drafting corrections.

771.     The following provisions of the Act will come into force two months after Royal Assent:

• Clause 120 (and associated transitional provision in paragraph 32 of Schedule 20) which adds certain terrorism offences to the list of offences in respect of which a public protection sentence may be passed in England and Wales; and

772.     Chapter 2 of Part 3, which repeals and re-enacts the provisions of the CEWAA, comes into force on 1 January 2010 (by virtue of section 14 of the CEWAA no new witness anonymity orders made be made under that Act after 31 December 2009).

773.     All other provisions will be brought in force by means of commencement orders.