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Amendment 88 would remove the proposed exemption from liability for a civil monetary penalty for serious breaches of the data protection principles in cases where information about such a breach comes to light following
the issue of an assessment notice. Those monetary penalties, which are provided for in section 55A of the Data Protection Act, will apply in cases of deliberate breach and when a data controller is aware that there is a risk of serious breach but fails to take reasonable steps to prevent it.
By contrast, as I have indicated, assessment notices are a valuable tool to raise compliance levels and to educate public bodies that are being assessed. That is why they do not require the existence of suspicion of non-compliance, or actual non-compliance, with the data protection principles. They are random spot checks. Given the nature of the assessment notice regime, we do not consider it appropriate for information gathered through that process to render a data controller liable to a civil monetary penalty. In any case, the commissioner can still employ his other enforcement tools as and when required throughout an assessment. For example, if he discovered a breach of the Data Protection Act during an assessment, he could still take enforcement action. As I have said, he could issue an enforcement notice under section 40 of that Act.
New clause 19 would limit the existing Crown immunity under the Data Protection Act so that Government Departments would be open to prosecution under it. As the hon. Member for North-West Norfolk will know, Crown immunity means that emanations from the Crown are not ordinarily liable to prosecution for offences created either in statute or in common law. That includes Government Departments, and the limitation on the prosecution of Departments includes the offences in that Act.
That is not to say, however, that Departments are not subject to adequate sanctions for breaches of data protection principles. They can still be subject to enforcement notices, claims for damages in a civil court or civil monetary penalties. That last point is particularly important because it means that financial penalties can be imposed on Government Departments. That range of other sanctions and penalties is sufficient for me to remain unconvinced that disapplying the normal rules on Crown immunity would make any material difference.
Amendments 80 to 84 would make the Information Commissioner’s codes of practice on assessment notices and data sharing subject to the affirmative resolution procedure. The assessment notice code of practice is not subject to any parliamentary procedure, whereas the data-sharing code is subject to the negative resolution procedure. Given the scope of those codes, I believe that we have probably got the level of parliamentary scrutiny right. They are not on a par with, for example, the codes of practice issued under the Police and Criminal Evidence Act 1984. However, if we have misjudged the level of scrutiny for those two codes of practice, I am pretty confident that the Delegated Powers and Regulatory Reform Committee in the other place will be quick to tell us that. We will, of course, consider carefully any recommendations that it makes.
Amendment 85 would require the Information Commissioner to conduct an annual review of the data sharing code of practice. The Bill already obliges the commissioner to keep the code under review, and he is required to update it if he becomes aware that its content could result in the UK being in breach of any of its community or international obligations. My concern is that the amendment could prevent the code from being revised quickly once a breach has been identified.
It might be a little too rigid in calling specifically for an annual review. The Bill will give the Information Commissioner scope to reconsider and review the code as and when he sees fit. We believe that that is right, given that his role as the independent data protection regulator is to provide the most up-to-date guidance to facilitate data controllers’ compliance with the Data Protection Act.
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Finally, amendments 86 and 87 deal with information notices. Section 43 of the Data Protection Act provides the Information Commissioner with the power to issue a data controller with an information notice. That can require a data controller to provide the commissioner with specified information in a specified form, to assess compliance with the data protection principles. The commissioner can issue a notice to any data controller as long as he reasonably requires information to determine their compliance. Failure to comply with an information notice is a criminal offence. The amendments would extend the commissioner’s power to issue an information notice to data processors as well as data controllers. The meaning of a data processor is limited to those handling data on behalf of Government Departments and designated public authorities.
The structure of the Data Protection Act places the responsibility for personal information on the data controller, not the data processor. Introducing a power to serve a notice on a data processor could shift the regulatory balance of the Act. All data being processed by or on behalf of an organisation must be covered by the data controller’s registration. It is the responsibility of the data controller to obtain the information that the commissioner requires. I fear that the amendments would represent a significant change to the data protection regime, so the matter might be better suited to consideration in the review of the European directive that is under way. I therefore hope that the Opposition will not press those amendments.
The hon. Member for Cambridge expressed concern about the Information Commissioner and Google Street View. I have to say that I could not find my street on it, but that might be because I am sometimes technologically illiterate when it comes to such things. I understand that the commissioner is keeping the situation under review, and of course anyone can request to have their image removed. I understand that Google is quite surprised by how few people have so far asked to have their image removed, but that is another matter.
Jenny Willott: Has the Minister asked the Information Commissioner to consider the implications for public services of some of the issues that have arisen from Google Street View? I know that it has been online for only a couple of days, and I have to confess that it is quite intriguing to play with, but I understand that in one case, a woman fleeing domestic violence was photographed outside her new house. There are therefore implications for the police, councils and so on. Has she asked the commissioner to look into that?
Bridget Prentice: The hon. Lady makes a good point, and she is quite right. Although it may be fun playing about with these things on computers, there are potentially sensitive issues attached to them. I shall certainly ensure that the Information Commissioner takes up that point when he reviews the situation.
I wish to respond to some of the points that the hon. Member for North-West Norfolk made. He asked why we needed a data-sharing code of practice if we are dropping the data sharing order-making power. Of course, the code will be wider than the order-making power and contain practical guidance on the sharing of personal data and other guidance that promotes good practice in data-sharing. It will ensure that the availability of practical and up-to-date guidance about how to share personal data is in accordance with the requirements of the Data Protection Act.
The hon. Gentleman also asked about extending information notices to the private sector and suggested that his amendments might be seen as a compromise. Information notices already extend to private sector data controllers because they can be served on any data controller. I hope that that answers those points.
Although I cannot commend any of the amendments that my hon. Friend the Member for Hendon, and the hon. Members for North-West Norfolk and for Cambridge have tabled, I want to offer an assurance. We will continue to listen carefully to the arguments for extending the scope of assessment notices and providing some form of sanction for non-compliance. I do not want to raise expectations, but I also do not want to give the impression that clause 153, as drafted, represents the last word on the matter. I hope that, if and when we make further changes to that provision, the hon. Member for North-West Norfolk will remember that I said it here first.
Mr. Bellingham: We are sorry to learn that the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle) is not well. She has an inner ear infection—anyone who has had one knows how incredibly painful and horrible it is. We therefore wish her a speedy recovery and speedy return to her place in the Department.
The Minister has given her usual courteous and effective explanation of the Government’s position. I accept her comments about Government amendment 25 and we are grateful for her remarks. Furthermore, her response to the new clause and amendments that we tabled was reasonably encouraging. There will be ample opportunity to revert to those matters in another place. We have a top Tory legal team in the Lords and they will revert to the issues. I am sure that they will be encouraged by her comments, and I therefore beg to ask leave to withdraw the motion.
Amendment made: 25, page 101, line 12, leave out clause 154.— (Bridget Prentice.)
Amendments made: 152, page 182, line 26, at end insert—
‘4A In section 67 of that Act (general provision about orders etc under the Act) in subsection (5)(a) insert at the appropriate place— “section 41A(2)(b),”.’.Amendment 153, page 182, line 29, leave out ‘(except in Part 5A)’.— (Bridget Prentice.)
David Howarth: I beg to move amendment 20, page 61, line 37, at end insert—
‘(za) the relative effectiveness of sentences in preventing re-offending;’.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following:
Amendment 21, page 61, leave out lines 41 and 42 and insert—
‘(d) the relative cost-effectiveness of different sentences in relation to preventing re-offending;’.
Amendment 22, clause 104, page 62, line 4, leave out subsections (2) and (3) and insert—
‘( ) The guidelines must state the appropriateness of imposing different types of sentence for the offence with reference to characteristics of the offender and to characteristics of the offence, including the seriousness of the offence in terms of its effects on victims and the impact different sentences would have on victims.’.
Government amendments 144 to 146.
Amendment 43, clause 108, page 65, line 12, leave out ‘follow’ and insert ‘have regard to’.
Amendment 74, page 65, line 12, leave out ‘follow’ and insert ‘take account of’.
Amendment 75, page 65, line 15, leave out ‘follow’ and insert ‘take account of’.
Amendment 73, page 65, line 17, leave out from ‘court’ to end of line 18 and insert
‘is of the opinion that it would be unfair to the offender to do so.’.Government amendments 147 and 148.
Amendment 76, clause 110, page 67, line 14, leave out ‘must’ and insert ‘may’.
Amendment 77, page 67, line 17, at end insert—
‘(aa) the number of places available and unfilled in the prison system at the date of the assessment,’.
Amendment 44, page 67, line 28, at end insert—
‘(6) Whilst the courts may have regard to the availability of correctional resources, for the avoidance of doubt the courts must not pass a sentence that is wholly determined by resource assessments which are expressly intended for the guidance of the Secretary of State in planning for and providing such custodial or community sentences as he advises Parliament, and it considers, necessary in the light of such assessments.’.
Amendment 161, page 67, line 28, at end insert—
‘(6) The Secretary of State must monitor any resource assessment published under this section and must ensure that, so far as reasonably practicable, adequate resources as determined by the resource assessment are made available for the implementation of the guidelines.’.
Government amendments 149 and 150.
David Howarth:
We now deal with the provisions on sentencing, especially on the Sentencing Council and sentencing guidelines. I support the basic idea in the Bill. It has been a long time coming and various methods and versions were proposed, but the underlying idea was always the same: we should provide for strengthened national powers for a body that includes judges and
non-judges and lays down guidelines for sentencing. The underlying idea all along has been more consistency in sentencing and more understanding of the sentences that are passed. So far, so good. I believe that hon. Members of all parties accept that.
The difficulty has always arisen with going beyond the simple aim of extra consistency with extra understanding. The Government have got into trouble by trying to make one of the leading goals of the Sentencing Council and sentencing guidelines simply to save money by various means, including the fairly laudable one of making the criminal justice system more predictable. The problem is that that creates an incentive to make the guidelines far too rigid, to the extent that one could end up with the position in some United States jurisdictions, where the guidelines are so rigid that there is no judicial discretion. The Government have rightly moved from the rigid model, but also have to admit that the benefits that it would have brought in financial predictability have been somewhat compromised.
I am not against going beyond aiming for consistency in the sentencing guidelines. My overriding concern is not the total amount that the Government spend on sentencing, but the direction of the criminal justice system. I especially want the guidelines to help further the aim of turning the criminal justice system around so that its main purpose is to reduce reoffending by imposing sentences that work, as opposed to those that simply sound tough.
I am fortified in my view by not only members of my party, but members of other parties in the House and members of the Justice Committee. Reducing reoffending should become a central aim of sentencing. Other matters cannot be ignored, but when reducing reoffending is ignored, the result is inevitably that crime is higher. There are more victims. The Government are right that victims and concern for them should be at the heart of the criminal justice system, but that must include potential victims. Only by reducing reoffending—most offending is committed by those who have done things in the past—do we genuinely put victims, especially potential victims, at the heart of the system.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): I endorse the hon. Gentleman’s comments. I signed amendments 20 and 21 because it is a weakness not to specify the purpose of the Sentencing Council. I agree that, if it is about anything, it must be about reducing reoffending. Does the hon. Gentleman recall that, when we took evidence about what victims want, we were told that, other than wanting the offence that victimised them not to have happened, they wanted it not to happen again? Not only potential victims, but those who are already victims would therefore endorse the view that the priority should be reducing reoffending.
David Howarth:
I thank the right hon. Gentleman for that important point. Sometimes, we in politics misunderstand what the public tell us about crime. We often think that they are telling us to be tougher and harder for the sake of it, but I do not believe that they are. When the public demand tougher sentencing, they want it to produce the result that the right hon. Gentleman outlined: to reduce reoffending. We must ask ourselves whether tougher sentences would achieve that. If the
evidence shows that they would not, our duty is to ensure the imposition of sentences that do. We are perfectly capable of making those decisions, but bound to take into account what the public want from sentencing. As the right hon. Gentleman said, they want to reduce the risk of becoming a victim of crime in future. That is the point of amendments 20 and 21.
We know more about what works and what does not in sentencing than might be supposed from reading the newspapers. Sentencers should therefore be encouraged to use the knowledge that has been accumulated and is accumulating about what works. The best way of achieving that is not through individual sentencers learning more about the evidence, but through the guidelines.
For example, we know that short prison sentences do not work in reducing reoffending. On the other hand, restorative justice works—it is approximately a quarter more effective than other sentences. We know that from randomised controlled trials—the best evidence that one can collect. We know that short, sharp shocks and scaring-people-straight programmes—taking youngsters to jail and saying, “Look, here’s a prisoner, this will happen to you”—do not work. Indeed, in the “Scared Straight!” case, such a programme made things worse. The evidence shows that they increase crime.
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The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): Surely the hon. Gentleman’s point is rather less absolute and is, in fact, a relative one. The point is not that short sentences never work nor that effective community sentences always work. There is no doubt—the reoffending data are made public—that offenders are less likely to reoffend if they have received an effective community punishment than they are if they have served a short sentence. However, offenders are also less likely to reoffend if they have served a very long sentence—not that I am recommending that. My last point, which is about the dilemma facing the courts and policy makers, is that in almost every case where a short sentence is given out by the courts, it is given because the offender is one of those who has been given a community sentence and has failed to stop his reoffending. That is the dilemma for the courts and that is why they are bound to resort to short sentences.
David Howarth: I agree with the Secretary of State that the debate is not about absolutes; it is about tendencies and risks. However, the rational approach to sentencing must always be to use all the information that we have. All I am saying is that that information should be built into the sentencing guidelines.
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