The
Committee consisted of the following
Members:
Chairman:
Mr.
Clive Betts
Blunkett,
Mr. David
(Sheffield, Brightside)
(Lab)
Clarke,
Mr. Charles
(Norwich, South)
(Lab)
Garnier,
Mr. Edward
(Harborough)
(Con)
Gray,
Mr. James
(North Wiltshire)
(Con)
Hall,
Mr. Mike
(Weaver Vale)
(Lab)
Holmes,
Paul
(Chesterfield)
(LD)
Horam,
Mr. John
(Orpington)
(Con)
Howarth,
David
(Cambridge)
(LD)
Jones,
Helen
(Vice-Chamberlain of Her Majesty's
Household)
Lepper,
David
(Brighton, Pavilion)
(Lab/Co-op)
McDonagh,
Siobhain
(Mitcham and Morden)
(Lab)
Plaskitt,
Mr. James
(Warwick and Leamington)
(Lab)
Southworth,
Helen
(Warrington, South)
(Lab)
Turner,
Mr. Andrew
(Isle of Wight)
(Con)
Ward,
Claire
(Parliamentary Under-Secretary of State for
Justice)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Rhiannon Hollis, Committee
Clerk
attended the
Committee
Seventh
Delegated Legislation Committee
Tuesday 30 June
2009
[Mr
Clive Betts in the
Chair]
Draft Data Protection (Processing of Sensitive Personal Data) Order 2009
4.30
pm
The
Parliamentary Under-Secretary of State for Justice (Claire
Ward): I beg to
move,
That
the Committee has considered the draft Data Protection (Processing of
Sensitive Personal Data) Order
2009.
The Government have introduced a number of very important
measures that are designed to protect the public from known offenders
and to improve the flow of information to the public about dangerous
offenders in the community. In 2001, the Government introduced the multi-agency
public protection arrangements, known as MAPPA. By law, the police,
the probation service and the Prison Service are now required to work
together as a responsible authority to assess and manage
the risks posed by offenders convicted of the most serious sexual and
violent offences.
When such
offenders are released from custody, either because they have completed
the custodial part of the sentence imposed by the court, or because the
Parole Board has directed their release from an indeterminate sentence,
they will be supervised in the community under MAPPA. The services will
share information on the offender in order to identify the risks that
the offender poses and then put in place a risk management plan to
control those risks. While, tragically, there can be no such thing as
zero risk when it comes to supervising known offenders in the
community, of the 13,000 offenders managed at the highest levels of
MAPPA in 2007-08, fewer than 0.5 per cent. were charged with committing
a serious further
offence.
By
virtue of section 327A of the Criminal Justice Act 2003, as
inserted by section 140 of the Criminal Justice and Immigration Act
2008, the MAPPA responsible authority must consider whether to disclose
any information that it holds about relevant previous convictions of
any child sex offender whom it manages to a particular member of the
public. Further, there is a presumption that the responsible authority
will disclose such information where the offender is assessed as posing
a risk of serious harm to any particular child or children and where
disclosure is necessary for the purpose of protecting a particular
child or children. In addition, the guidance to MAPPA responsible
authorities, which the Lord Chancellor issues under section 326 of the
Criminal Justice Act 2003, has been amended to require responsible
authorities to consider disclosure in the case of every offender
managed under
MAPPA.
The
Government have introduced changes to sentences which will make it less
likely that prisoners known to pose a current high risk of harm to the
public will be released from prison. From April 2005, the courts have
been able to impose an indeterminate sentence of
imprisonment for public protection. Where an IPP is imposed, the
offender is not eligible for release until he has completed the minimum
period set by the court for punishment and deterrence and will be
released only if the independent Parole Board determines that it is no
longer necessary for the protection of the public that the prisoner
should be confined.
We therefore
hope that the numbers of prisoners who will fall within the ambit of
this order will diminish with the passage of time. Regrettably, and
notwithstanding these changes, there are certain offenders who are
assessed as presenting a very high risk of harm to the public at the
point that they have to be released from custody. It is those offenders
who are in view as we consider this order. The purpose of this
instrument is to enable the Secretary of State for Justice to provide
information to a Member of Parliament about certain high risk prisoners
and the arrangements for the prisoners release.
The National
Offender Management Service in the Ministry of Justice operates a
scheme known as the critical public protection case scheme. The scheme
applies to certain high-risk prisoners. The purpose of the scheme is to
assure Ministers that robust risk management plans are in place to
manage this category of offenders; to allow probation areas to bid for
additional funding to strengthen local risk management plans; and to
enable Ministers to notify Members of Parliament of the arrangements
that have been put in place to manage the risk which these offenders
present in order to protect the
public.
The
order will allow Ministers to provide Members of Parliament with
additional information about the offenders. We think it right that
Members of Parliament are assured that there are systems and measures
in place to protect the public from known offenders when they are
released from custody. That is why we are seeking the Houses
approval for the order. The order will allow information relating to
the release arrangements of certain high-risk prisoners from prison to
be passed to an MP. That will include prisoners released from young
offender institutions, remand centres and secure training centres. On
receipt of such information, the Member will be able to make inquiries
for further details from the local chief constable of police or chief
probation officer. In that way, the Member will be able to assure
himself that there are effective measures in place to protect his
constituents from the risk of harm posed by certain
offenders.
We
do not intend that the processing of sensitive information will apply
to all released offenders, but only to critical public protection
cases. Such offenders are assessed as presenting a high risk of serious
harm and consequently need to be managed at the highest level of MAPPA.
That also includes offenders who have been convicted of offences under
the Terrorism Act 2006, who are linked to extremist causes or who, on
account of the high-profile nature of their offences, are required to
be managed at the highest level of MAPPA. Many of the high-risk
prisoners who meet the criteria for CPPC registration were sentenced
under previous
legislation.
We
consider that the processing of sensitive personal data of this kind
and in these circumstances is necessary and proportionate. Members will
be informed of the released prisoners name and of any standard
and additional licence conditions to which he is subject, including the
address at which he must reside as a condition of his
supervision. Members will also be told whether victims of the
offenders previous offences have elected to receive information
about the offenders progress through his sentence. Finally,
Members will be given the name and contact details of the local chief
constable or chief probation officer so that they can make further
inquiries about the measures that are in place to protect their
constituents.
In
electing to receive information about CPPC offenders, Members are
required to sign an undertaking that they will not disclose the
information except in specified circumstances. Members may discuss the
offender and his supervision arrangements with the local chief
constable or chief probation officer. They may disclose the information
if it has become publicly available by some other means, if they have
the written consent of the offender, to a Department, in accordance
with an obligation to provide information under or by virtue of any
enactment, or in accordance with an order of the court. In no other
circumstances should they disclose the sensitive information, the
processing of which will be permitted by the order. They must agree to
destroy the information when they have no further use for
it.
The
order is essential if Members of Parliament are to receive
comprehensive information about certain high-risk-of-harm offenders so
that they can assure themselves that robust arrangements are in place
to protect members of the
public.
4.38
pm
Mr.
Edward Garnier (Harborough) (Con): I welcome you to the
Committee, Mr. Betts. As this is my first opportunity, I
congratulate the Minister on her promotion to the Ministry of
Justice.
I
am one of the lucky Members of Parliament who has received the letter
from the Minister of State asking me to sign the confidentiality
agreement. I have signed it because I am curious to find out what
information I might be given. Having said that, a number of questions
arise from todays statutory instrument. I cannot imagine what
practical use I could make of the information. If the confidentiality
agreement is of any legal value, I cannot do anything of practical
value with the information. I cannot warn my constituents that a
serious offender has been released from prison into their midst or what
his licence conditions are so that they can be aware of any potential
or actual
breaches.
I
will ask the Minister a number of further questions. How many
disclosures of the sort she has outlined are likely to be made each
year? In practical terms, how does the order add to the protection of
the public? We all agree with that in principle, but I question whether
this measure will provide any useful addition to it. Why is the measure
limited to the highest-level MAPPA offenders and not, in principle, to
prisoners released from custody at all MAPPA levels? How will the
confidentiality agreements be enforced?
What
consideration will pass between the Member of Parliament and the
Ministry of Justice in exchange for the receipt of the information?
Will a Member of Parliament be sued for damages if he breaches the
agreement or will he be threatened with an injunction in anticipation
of any such breach? Does not the public interest suggest that the
information should be made accessible to all, or if not, kept secret
from all? If I believe that the MAPPA
arrangements are inadequate, I cannot discuss them with anyone with a
legitimate interest in the information, save for the limited class of
people that the Minister has recited, so what is the point of the
measure?
Although
I understand the motive behind the Ministers remarks, the
measure looks like a ruse to bind Members of Parliament into a
Government decision and to inhibit our right and duty as Members of
Parliament to question, hold to account and criticise the Ministry of
Justice, the Prison Service and the probation service when necessary. I
am not suggesting that those who are provided with the information will
use it irresponsibly or to encourage vigilantes, but we need a more
coherent explanation of the practical consequences of the statutory
instrument, before giving it our
consent.
4.42
pm
David
Howarth (Cambridge) (LD): I too am troubled by the
statutory instrument, although from a very different perspective from
that of the hon. and learned Member for Harborough. Nevertheless, some
of his questions strike me as
important.
First,
why is the statutory instrument necessary? How does it improve the
existing arrangements? As I understand it, Members of Parliament might
be told that prisoners in a particular category are being released in
their constituency and they might then on that basisalready
subject to a confidentiality agreementquestion the chief
constable and the head of probation for their area about the MAPPA
arrangements. What additional benefit to the public or the Member of
Parliament is provided by adding the name, the address and more
specifics about the offender? I cannot see the point of that. How many
Members of Parliament have requested that extra information and been
turned down over the period leading up to the instrument being
introduced? I have not heard any great clamour among Members of
Parliament to be given that information, so what is the real origin of
the
proposal?
Secondly,
and here I have concerns that are similar to those of the hon. and
learned Member for Harborough, is the instrument a good idea? MPs are
being drawn in to an administrative process. They are effectively being
asked to assume responsibility for the safety of their constituents. If
they opt out of the system, they can be said to have opted out of that
responsibility, and if they opt in, they opt in to taking the blame if
the arrangements fail. Why is it thought to be a good idea for Members
of Parliament to be put in that position, especially when they have no
power? Members of Parliament are simply parliamentary representatives.
They are not part of the formal administrative structure. They cannot
give instructions to civil servants or police or probation officers to
do things differently. The instrument seems to be an attempt to draw
Members of Parliament into that administrative structure, so that the
Government can somehow pass on the blame if things go wrong. Further
than that, the idea that Members of Parliament will be given this
information and then told that they cannot disclose it seems to be the
beginning of pressure to allow them to disclose the information in the
end. At that point we have the problem of irresponsible and populist
disclosureall the problems that we discussed about
Sarahs law. The Government, in the end, quite rightly did not
implement that
proposal.
The MAPPA
arrangements are good; they work. It is an important reform, but if we
have irresponsible disclosure and people under pressure from the media
to disclose, those MAPPA arrangements will be under pressure and might
well collapse as offenders go underground and disappear from the system
altogether, with the result that the public will be more at risk, not
less.
Finally,
the discussion so far has been on the assumption that the order
restricts the information that may be given to the type that the
Minister described. But I am afraid that is simply not the case. The
order
says:
For
the purposes of...the Data Protection Act 1998, the circumstance
specified in paragraph (2) is a circumstance in which sensitive
personal data may be
processed.
If
we turn over the page to find out what that circumstance is, there is
no elaborate discussion of CPPC arrangements and serious offenders. It
simply
says:
The
processing of information about a
prisoner
that
is
it
including
information relating to the prisoners release from prison, for
the purpose of informing a Member of Parliament about the prisoner and
arrangements for the prisoners
release.
It
seems to have no restriction at all. Why is it so enormously broad? Of
course, the Government consulted the Information Commissioner about the
order and the consultation outcome is given in the accompanying papers.
It
says:
The
Secretary of State has consulted the Information Commissioner. The ICO
advised that the instrument should include the specific details of the
information which Ministers will provide to
Members.
Did
the Government respond to that? No. The order is still immensely broad.
All the Government say is
that
We
have considered the ICOs advice carefully and have decided to
set out the information to be provided in general terms in the
instrument and to provide further detail in this explanatory
memorandum.
But
an explanatory memorandum is not part of the law. It in no way
restricts what Ministers will be able to do lawfully under this
instrument, so it seems this is an entirely unsatisfactory instrument
about which the Government have many questions to
answer.
4.48
pm