Appendix 2: Criminal Justice and Immigration
Bill — Government amendments
SUPPLEMENTARY
MEMORANDUM
BY
THE
MINISTRY
OF
JUSTICE
CLAUSE
48, NEW
SUBSECTION
(2): POWER
TO
VARY
PROVISIONS
ON
YOUTH
CONDITIONAL
CAUTIONS
IN
RESPECT
OF
THOSE
UNDER
16
Power conferred on: The Secretary of State
Power exercisable by: Regulations made by
Statutory Instrument
Parliamentary Procedure: Affirmative Resolution
1. Clause 48 of the Bill introduces Schedule
9, paragraph 3 of which inserts new sections 66A to 66H into the
Crime and Disorder Act 1998 which makes provision for youth conditional
cautions. Under the Bill as originally Introduced youth conditional
cautions would only be available for offenders aged 16 and 17.
Government amendments tabled for Lords Report stage would enable
a youth conditional caution to be given to any young offender,
aged 10 to 17 inclusive. However, the Government has always argued
that providing for youth conditional cautions for those aged 15
and under raises additional and different issues which may not
be relevant for offenders aged 16 and 17. These involve things
such as how informed consent for a young child is to be provided
for and the role of the child's parents or guardians in the process.
For these reasons, it is proposed to bring the provisions in Schedule
9 to the Bill into force only in respect of 16 and 17 year olds
in the first instance (using the commencement power in clause
150(7) of the Bill to appoint different days for different purposes)
and extend the provisions to 10-15 year olds at a later date.
2. The Government intends to consult before making
youth conditional cautions available in respect of those aged
15 and under. As a result of that consultation it may be that
new sections 66A to 66H in the Crime and Disorder Act 1998 would
need to be amended in respect of this age group. The new power
in clause 48(2) of the Bill provides the Secretary of State with
the power to amend those provisions in respect of those aged 15
and under. As the power is one to amend primary legislation, the
affirmative resolution procedure is appropriate.
Ministry of Justice
March 2008
SECOND
SUPPLEMENTARY
MEMORANDUM
BY
THE
MINISTRY
OF
JUSTICE
NEW
CLAUSE
(POWER
TO
ALTER
PENALTY
FOR
UNLAWFULLY
OBTAINING
ETC.
PERSONAL
DATA):
POWER
TO
ALTER
PENALTY
FOR
UNLAWFULLY
OBTAINING
ETC.
PERSONAL
DATA
Power conferred on: Secretary of State
Power exercisable by: Order
Parliamentary Procedure: Affirmative resolution
1. Section 60 of the Data Protection Act 1998
(DPA) currently specifies the penalties for offences committed
under section 55 of that Act (unlawful obtaining etc of personal
data). It provides for a maximum penalty of £5000 on summary
conviction and an unlimited fine for conviction on indictment.
Clause 76 of the Bill increases the maximum penalty for an offence
under section 55 to a custodial sentence of two years following
conviction on indictment, in addition to the current fines.
2. As Lord Hunt explained at Committee stage
(Official Report, 5 March 2008, col. 1115-1117), media organisations
have expressed concerns to us about the 'chilling effect' of this
increase in penalty on investigative journalism. It is not the
Government's intention to impede legitimate investigative journalism,
but in view of the concerns that have been expressed Lord Hunt
announced in Committee the Government's intention to withdraw
the clause on Report unless a satisfactory solution could be found
balancing, on the one hand, the need to strengthen the protection
of individuals' rights and respect for their privacy and, on the
other, freedom of expression and of the press.
3. Following extensive consultation with all
parties involved, it is not now the Government's intention simply
to withdraw the clause; instead it is proposed to replace it with
two new provisions. The first new clause (New defence for purposes
of journalism and other specified purposes) would provide
for an additional defence for section 55 offences where the offender
acted with a view to publication for journalistic, literary or
artistic purposes and in the reasonable belief that his actions
were justified in the public interest. The second new clause (Power
to alter penalty for unlawfully obtaining etc. personal data)
would confer on the Secretary of State a power to make an
order altering the maximum penalty for an offence under section
55 of the DPA; as already provided for in the Bill the maximum
penalty that could be specified in such an order would be two
years imprisonment. The Secretary of State would be required to
consulted interested parties before making such an order.
4. Conferring a power to increase the maximum
penalty for the section 55 offence, rather than proceeding with
the existing provision in clause 76 of the Bill, will enable the
Government to keep under review progress in combating the market
in illegally acquired personal data before deciding, in consultation
with the Information Commissioner and media organisations, whether
an increase in the maximum penalty for this offence would be appropriate.
5. Given that the maximum penalty for the section
55 offence is currently set out in primary legislation and that
subsection (5) of the new clause includes a power to make consequential
amendments to the DPA, the Department considers that the affirmative
resolution procedure is appropriate in this instance.
Ministry of Justice
April 2008
THIRD
SUPPLEMENTARY
MEMORANDUM
BY
THE
MINISTRY
OF
JUSTICE
CLAUSE
145, NEW
SUBSECTION
(8): POWER
TO
EXTEND
AMENDMENTS,
REPEALS
OR
REVOCATIONS
MADE
TO
PRIMARY
LEGISLATION
BY
VIRTUE
OF
AN
ORDER
MADE
UNDER
CLAUSE
145(3) TO
THE
ISLE
OF
MAN
OR
ANY
BRITISH
OVERSEAS
TERRITORY
Power conferred on: Her Majesty
Power exercisable by: Order in Council
Parliamentary Procedure: None
1. Clause 145 enables the Secretary of State
by order to make supplementary, incidental, consequential, transitory,
transitional or saving provision for the purposes of the Bill.
Subsection (4)(b) of the clause enables such an order to amend,
repeal or revoke primary or secondary legislation. The amendment
to clause 145 provides a power to extend by Order in Council any
amendments so made to primary or secondary legislation to the
Isle of Man or any British overseas territory. Clause 149(6) to
(8) already provides for the amendments made by the Bill to the
Acts specified in those subsections to extend beyond the UK. It
may be that further consequential amendments to these, or other,
enactments extending outside the UK are identified as part of
the process of implementing the Bill and it would therefore be
necessary to be able to extend any such consequential amendments
to the Isle of Man or any of the British overseas territory as
appropriate. A similar power is contained in section 338 of the
Criminal Justice act 2003. Powers of this kind to extend legislation
outside the UK are normally exercisable by Order in Council with
no parliamentary procedure.
Ministry of Justice
April 2008
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