Home affairsLetter from Rt Hon Chris Grayling, Lord Chancellor and Secretary of State for Justice , to the Chair of the Committee, 22 September 2013

OPERATION MILLIPEDE

Thank you for your letter of 11 September following your Committee’s recent oral evidence session with the Information Commissioner, Chris Graham in respect of his investigation into potential breaches of the Data Protection Act 1998 (DPA) by clients of rogue private investigators.

You have asked for the Information Commissioner’s Office (ICO) to be given more resource to carry out this investigation. As you are aware, the ICO’s investigation is still in its early stages and they are currently carrying out a scoping exercise to determine the extent of the work and the resources they will need. The ICO has so far not approached the Ministry of Justice on the matter of resourcing the investigation. Moreover, you will be aware that the ICO’s data protection work is funded through notification fees paid by organisations and individuals responsible for the processing of personal data and not through a direct grant from government. However, we will continue to work with the Information Commissioner to monitor any resourcing issues that may arise as a result of this investigation and other funding pressures.

You also ask whether the Government will reconsider its position in relation to commencing section 77 of the Criminal Justice and Immigration Act 2008 (CJIA) to introduce custodial penalties for breaches of section 55 of the DPA. I thought it would be helpful if I briefly explained the background to this issue and the Government’s intended approach.

As you will be aware, the previous Government consulted twice on whether to make an Order under section 77 of the CJIA introducing custodial penalties for breaches of section 55 and on whether to commence the enhanced public interest defence under section 78 of the CJIA, but this was not followed through. In 2011 the Government announced that it was to keep the matter under review, given the fact that the data protection regulatory landscape governing the media was at the time being examined by Lord Justice Leveson.

In his eventual report, Lord Justice Leveson made a range of data protection related proposals which are potentially far reaching in their nature, including that the Government introduce the possibility of custodial penalties for section 55 offences.

These recommendations could in particular have an impact on the conduct of responsible investigative journalism. The issues raised in the data protection elements of Lord Justice Leveson’s report were not subject to the same level of public scrutiny as other elements of the inquiry. It is the Government’s view that the recommendations require careful consideration by a wide audience. We therefore intend to conduct a public consultation on the full range of data protection proposals, including on whether to introducing custodial sentences under section 77 of the CJIA. Consultation on the latter is a statutory requirement. This will enable us to seek views on their impact and how they might be approached. We think it is important that the public get the opportunity to consider the question of whether to introduce custodial penalties for breaches of section 55 in the context of Lord Justice Leveson’s wider proposals relating to the data protection framework.