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Public Bill Committee Debates

Draft Data Protection (Processing of Sensitive Personal Data) Order 2009



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 prisoner’s 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 House’s 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 prisoner’s 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 offender’s previous offences have elected to receive information about the offender’s 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 today’s 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 Minister’s 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 basis—already subject to a confidentiality agreement—question 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 disclosure—all the problems that we discussed about Sarah’s 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 prisoner’s release from prison, for the purpose of informing a Member of Parliament about the prisoner and arrangements for the prisoner’s 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 ICO’s 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
 
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