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The single issue between us is whether the limitation on engaging only in non-imprisonable offences should be on the face of the Bill, or whether it should be dealt with by a more flexible procedure in the shape of an affirmative order. The noble and learned Baroness has helped us—and, I trust, your Lordships’ House—by giving an undertaking that the affirmative order would be presented to your Lordships’ House only once the framework of the Legal Services Act, as it would apply to the DCWs from May 2011, was fully in place. That undertaking lifts the majority of our concerns about the dangers implied in non-qualified individuals appearing.

I cast no aspersions whatever on the individuals concerned, but the Government were extremely tough in the course of the passage of the Legal Services Act 2007. At the outset of the deliberations on this Bill, we were somewhat astonished to find that DCWs were not to be subject to it. I therefore hope that the noble and learned Baroness understands where the Official Opposition, and indeed the Liberal Democrats, have been coming from in the course of the Committee and Report proceedings.

Nevertheless, the noble and learned Baroness has given a clear and unequivocal statement today that no affirmative order will be brought before your Lordships’ House until this category of DCWs is fully subject to the provisions of the Legal Services Act 2007. In those circumstances, I am content to accept that statement rather than pursuing my Motion—which, nevertheless, at this stage I beg to move.

Moved, as an amendment to Motion C, at end insert “but do propose Amendments Nos. 86B and 86C to Commons Amendment No. 86A”.—(Lord Kingsland.)

The Chairman of Committees: My Lords, the original Question was that Motion C be agreed to, since when Motion C1 has been moved as an amendment thereto. The Question now is that Motion C1, as an amendment to Motion C, be agreed to.

Lord Thomas of Gresford: I have argued throughout Second Reading, Committee and Report that designated caseworkers should be subject to proper regulation by ILEX. I have always been a supporter of ILEX, which has an important role to play within the legal profession. If it is regulating designated caseworkers, I am content. I understand the practical difficulties which the noble and learned Baroness the Attorney-General has identified with bringing a regime into force straight away. Consequently, we accept the need for a three-year delay. We also accept the assurance she has given us today that any order that is sought under the amendment will not be brought before the House until after 1 May 2011.

It illustrates the defects of procedures in another place, which I hope will be addressed by the constitutional review committee, that it did not even debate the

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Lords amendment on this matter, and that accordingly it was not possible for the honourable and learned lady the Solicitor-General to give the sort of assurances that we have heard today—but that is perhaps a matter for another time. For the moment, we are content with the Government’s position.

Lord Kingsland: My Lords, I am most grateful to the noble Lord, Lord Thomas of Gresford, for what he said, which seems entirely in accord with our own view. In those circumstances, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

On Question, Motion C agreed to.

Motion D"(a) in paragraph (a)(ii), after "trials" insert "of offences triable either way or offences which are punishable with imprisonment";(b) after paragraph (a)(ii) insert-"

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 88A to Lords Amendment No. 88. I have spoken to this Motion with Motion C.

On Question, Motion agreed to.

Motion E"(c) for paragraph (b) substitute-"(b) any powers of a Crown Prosecutor that do not involve the exercise of such rights of audience as are mentioned in paragraph (a) above but are exercisable in relation to the conduct of-(i) criminal proceedings in magistrates' courts other than trials of offences triable either way or offences which are punishable with imprisonment, or(ii) applications or proceedings falling within paragraph (a)(iii) or (iv).""

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 89A to Lords Amendment No. 89. I have spoken to this Motion with Motion C.

On Question, Motion agreed to.

Motion F"Data protection: additional offences"55AData protection: additional offences(a) intentionally or recklessly disclose information contained in personal data to another person,

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(b) repeatedly and negligently allow information to be contained in personal data to be disclosed, or(c) intentionally or recklessly fail to comply with duties under section 4(4).(a) was necessary for the purpose of preventing or detecting crime,(b) was required or authorised by or under any enactment, by any rule of law, or by the order of a court, or(c) was justified in the particular circumstances as being in the public interest.(a) a relevant authority under section 29, or(b) exercising a relevant function under section 31."Power to require data controllers to pay monetary penalty"Monetary penalties 55A Power of Commissioner to impose monetary penalty(a) there has been a serious contravention of section 4(4) by the data controller,(b) the contravention was of a kind likely to cause substantial damage or substantial distress, and(c) subsection (2) or (3) applies.(a) knew or ought to have known -(i) that there was a risk that the contravention would occur, and(ii) that such a contravention would be of a kind likely to cause substantial damage or substantial distress, but(b) failed to take reasonable steps to prevent the contravention."data controller" does not include the Crown Estate Commissioners or a person who is a data controller by virtue of section 63(3);"prescribed" means prescribed by regulations made by the Secretary of State.

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55B Monetary penalty notices: procedural rights(a) inform the data controller that he may make written representations in relation to the Commissioner's proposal within a period specified in the notice, and(b) contain such other information as may be prescribed.(a) the issue of the monetary penalty notice;(b) the amount of the penalty specified in the notice.55C Guidance about monetary penalty notices(a) the circumstances in which he would consider it appropriate to issue a monetary penalty notice, and(b) how he will determine the amount of the penalty.55D Monetary penalty notices: enforcement(a) if a county court so orders, as if it were payable under an order of that court;(b) if the High Court so orders, as if it were payable under an order of that court.(a) if a county court so orders, as if it were payable under an order of that court;(b) if the High Court so orders, as if it were payable under an order of that court.55E Notices under sections 55A and 55B: supplemental(a) provide that a monetary penalty notice may not be served on a data controller with respect to the processing of personal data for the special purposes except in circumstances specified in the order;

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(b) make provision for the cancellation or variation of monetary penalty notices;(c) confer rights of appeal to the Tribunal against decisions of the Commissioner in relation to the cancellation or variation of such notices;(d) make provision for the proceedings of the Tribunal in respect of appeals under section 55B(5) or appeals made by virtue of paragraph (c);(e) make provision for the determination of such appeals;(f) confer rights of appeal against any decision of the Tribunal in relation to monetary penalty notices or their cancellation or variation.(a) in subsection (4) insert at the appropriate place-"section 55E(1),"; and(b) in subsection (5) after paragraph (c) insert-"(ca) regulations under section 55A(5) or (7) or 55B(3)(b),"."

Lord Hunt of Kings Heath: My Lords, I beg to move Motion F, that the House do not insist on its Amendment No. 115, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 115A in lieu.

Noble Lords will recall that on Report in this House an amendment was moved, and accepted, to provide for a new criminal offence for data controllers who intentionally or recklessly disclose personal information, repeatedly and negligently allow information to be disclosed or intentionally or recklessly fail to comply with the data protection principles. The Government have looked carefully at the tenor of the arguments in this House. We accept the principles put forward by the noble Baroness, Lady Miller, and yesterday we brought forward in the Commons an alternative measure that could strengthen the protection of personal data, Amendment No. 115A. In bringing forward this amendment we are specifically taking into account that criminal liability is generally reserved for unlawful behaviour that is sufficiently serious to merit the most stringent liability that the law can impose.

In addition, we have consulted with the Information Commissioner. I am glad to report to the House that he welcomes the flexibility with which Amendment No. 115A provides him in his efforts to enforce the Data Protection Act more rigorously and proportionately. We also believe that the new monetary penalty should apply equally to the public and private sectors. Information gathered by the Information Commissioner’s office shows that data losses occur across both these sectors, and therefore it is only right that the monetary penalty should apply to both as well.

I hope that these amendments find favour with the House in view of our previous debates.

Moved, That the House do not insist on its Amendment No. 115, to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 115A in lieu.—(Lord Hunt of Kings Heath.)

5 pm

Baroness Miller of Chilthorne Domer: My Lords, I am glad that the Government have come forward with some sort of answer to the House’s deeply held

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concern that data controllers are not sufficiently regulated by the Information Commissioner’s power to enforce penalties. I would not resist the Government’s attempt to move away from criminal penalties, which we on these Benches regard very much as a last resort. However, we will keep an eye on how the regime works. I, too, have heard from the Information Commissioner and am glad that he sees that it is sufficient. When will the Secretary of State introduce regulations for deciding the amount of a fine? Given the amount of data lost during the past year, both from government departments and the private sector, I hope that the Secretary of State will choose to bring in those regulations speedily, because this is a matter of deep concern to the public. The amendment is supposed to strengthen the Information Commissioner’s arm and ensure that data controllers comply with all the provisions of the Data Protection Act. However, unless the regulations are introduced, it will not have the desired effect. I hope that the Minister will reassure me on that point.

Lord Henley: My Lords, we, too, will not oppose the Government’s amendment at this stage, though to introduce five new clauses to the Data Protection Act 1998 at such a late stage, even after our various discussions of the noble Baroness’s amendment at an earlier stage, in a Bill that has been before both Houses for some 11 months, is a pretty odd way to legislate. Concern was expressed by my honourable friend Mr Garnier in another place yesterday about taking the civil route to a criminal law end, particularly as the provisions impose what could be severe penalties in the form of fines and as, my honourable friend put it, the commissioner will find himself the policeman, the prosecutor, the jury and the judge. That seems to be a difficult role for him to pursue. My honourable friend in another place hoped for further explanation from the Government if they had time.

However, we appreciate that the Government have tried to move on. We are grateful for a letter from Mr David Hanson on this matter, setting out what the Government were trying to do. Though we voted against it in another place, we shall now accept it with those misgivings and hope that the Government will be able in due course to provide some explanation of how the regime is going to bed down.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord and the noble Baroness for their general welcome to the amendment. The Government have taken careful note of the debates in your Lordships' House. I cannot give a definite date to the noble Baroness, but I understand her point about the seriousness of these matters. We are committed to ensuring that data controllers have a clear understanding of the circumstances in which the Information Commissioner will consider it appropriate to issue a monetary penalty notice and of how the amount of the monetary penalty will be determined. That will require careful consideration. The Information Commissioner will be required under Amendment No. 115A to publish with the agreement of the Secretary of State statutory guidance on these matters, which will be laid before Parliament. I hope that it will ensure that proper regard is paid to the

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circumstances in which the monetary penalty is introduced, the notice that will need to be given to data controllers and the need for sufficient parliamentary scrutiny. I hope that noble Lords will accept the amendment on that basis.

On Question, Motion agreed to.

Motion G"Provisions that orders may contain(a) from going to any specified premises or any other specified place (whether at all, or at or between any specified time or times);(b) from attending any specified event;(c) from having any, or any specified description of, contact with any specified individual."Provisions that orders may contain(a) from going to any specified premises or any other specified place (whether at all, or at or between any specified time or times);(b) from attending any specified event;(c) from having any, or any specified description of, contact with any specified individual.
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