Alun
Michael: Did the Minister say that she would consider all
my points about redrafting the
Bill?
Bridget
Prentice: I shall certainly consider all the points that
my right hon. Friend has made. On those dealing with parts of the Bill
not directly related to the amendments, I shall write to Committee
members or speak to them in some other
forum.
Alun
Michael: I am grateful to my hon. Friend for that. I beg
to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendment
proposed: 52, in
clause 152, page 100, leave out lines 24
and 25.—(David
Howarth.) Question
put, That the amendment be made:—
The
Committee divided: Ayes 7, Noes
8.
Division
No.
4] Question
accordingly negatived.
Question
put, That the clause stand part of the Bill.
The
Committee divided: Ayes 8, Noes
7.
Division
No.
5]
Question
accordingly agreed to.
Clause 152
ordered to stand part of the
Bill.
The
Chairman: Before we proceed, there is something that I
wish to say to the Committee. It is the duty of those representing the
Speaker, as members of the Chairmen’s Panel, to seek to expedite
and facilitate business, and also to endeavour to ensure that
legislation is thoroughly debated, although that is not entirely in our
gift. I probably have the power to issue an instruction through the
usual channels, but at this stage I shall make it a request to the
usual channels and Front Benchers.
There are 135
clauses left to be discussed. As things stand, the Bill is supposed to
exit the Committee by 4 pm on Thursday next. Given the number of
amendments that have already been tabled, I cannot realistically see
that it will be possible to achieve that consideration in that time. I
am perfectly prepared to sit if necessary on Tuesday evening next week,
as I was this week, but even then I question whether it will be
possible to get through all that work within in the time agreed on the
Floor of the House. That may mean that the Committee will think it
necessary to return to the House to seek additional time or to go
through the night on Tuesday. Again, I am personally willing to do
that. [Interruption.] Order. I mention this now
because I think it appropriate that the Committee starts considering
the matter now rather than when it is too
late. Clauses
153 and 154 ordered to stand part of the
Bill.
Schedule
18Amendments
of the Data Protection Act 1998
(c.29)
David
Howarth: I beg to move amendment 108, in
schedule 18, page 177, line 42, leave
out Part
5.
The
Chairman: With this it will be convenient to discuss
amendment 366, in
schedule 18, page 178, leave out line
5.
David
Howarth: This is a short point, although in view of the
Minister’s comments about assessment notices this morning, it is
worth making it more forcefully.
Amendment 108
seeks to amend a provision of schedule 18 that, in effect,
provides that when the Information Commissioner has issued an
assessment notice and discovers important information about whether the
data controller is complying with the law, or even that there have been
or may have been violations of the law, he is nevertheless not allowed
to use that information when, for example, levying fines against the
data controller.
That seems
rather odd. It means that the enforcement process using the assessment
notice will always lead to a dead end. I understood the
Government’s case to be that it would encourage data controllers
to comply with
assessment notices; they would know that they would not be liable to
fines if they volunteered information, even if that information showed
them to be at fault and in violation of the law. That argument did not
strike me as being particularly powerful, as it seemed to be saying
that voluntary compliance with the law is the only way in which
assessment notices and other measures of that sort should
work. 3.30
pm However,
the Minister’s comments this morning have slightly changed the
position. In the discussion about assessment notices, she said that one
reason why there is no enforcement procedure for assessment notices in
the main part of the Bill is that the Information Commissioner has all
those other enforcement powers. The problem is that schedule 18 seems
to be designed—amendment 108 draws attention to a good example
of this—to remove the use of those enforcement powers when an
assessment notice process has been used. The Government are now in a
contradictory position on the relationship between assessment notices
and the commissioner’s other enforcement
options.
Mr.
Bellingham: I was going to take only five minutes, but in
fact I shall take only five seconds, because that well-known law
lecturer from Gonville and Caius has made all the points that I
intended to make, so I shall simply endorse what he
said.
David
Howarth: My college was
Clare.
Bridget
Prentice: Sadly, I may have to take slightly longer than
five seconds. Section 51 of the Data Protection Act 1998 allows the
Information Commissioner to assess the way in which a data controller
processes personal information to see whether good practice is being
followed. However, to conduct a good practice assessment, the
commissioner needs to obtain the consent of, or be invited by, the data
controller. The good practice assessment is largely an educational
tool. It is valuable in encouraging data controllers to seek the
commissioner’s help to ensure that they are meeting standards
and receiving
advice. Proposed
new section 41A, as inserted by clause 151, will allow the commissioner
to issue an assessment notice on any Government Department or other
designated public authorities to assess their compliance with data
protection principles. The consent of those bodies will not be required
to carry out an assessment under an assessment notice, so in effect it
allows for a mandatory inspection by the
commissioner. On
commencement of section 55A of the DPA, the commissioner will be able
to issue a civil monetary penalty for serious breaches of data
protection principles where those breaches are likely to cause
substantial damage or distress. Section 55A will apply in cases of
deliberate breach and where a data controller is aware that there is a
risk of serious breach but fails to take reasonable steps to prevent
it. Part 5 of schedule 18 amends section 55A to prevent the imposition
of a monetary penalty based on information obtained from either a good
practice assessment or the use of an assessment notice.
Amendment 108
would remove the exemption so that once section 55A came
into force, data controllers could be issued with a civil monetary
penalty on the basis of information
obtained during one of the assessments. The proposal to exempt data
controllers who consent to a good practice assessment from the civil
monetary penalty was explored in the consultation on the Information
Commissioner’s inspection powers and funding arrangements in
2008. There were a large number of responses from public, private and
third sector organisations, of which almost three quarters indicated
their support for that
proposal. In
its response, Experian considered that the proposal would ensure that a
good practice assessment was a joint approach, rather than a punitive
measure. The Association of British Insurers also said that if a data
controller was not immune from the civil monetary penalty, that would
discourage consent for undertaking good practice assessments. Such
assessments are meant to foster an open relationship between the
commissioner and the data controller. They provide an opportunity for
the data controller to seek advice on meeting standards. The
exemption provides a strong incentive to consent to a good practice
assessment and achieves the overall aim of lifting data protection
standards across the board. Removing the link between an assessment and
a monetary penalty, in line with the Hampton principles of adopting
positive incentive schemes, reinforces the drive to improve
standards. A
raft of strong enforcement measures are already available to the
commissioner and they will continue to be available to him should he
find something of concern in the course of a good practice assessment
or an assessment under proposed new section 41A. We do not propose to
provide any protection from prosecution in relation to criminal
offences that might be discovered during a good practice assessment,
nor do we propose to protect data controllers from other enforcement
action. The commissioner can employ the remainder of his
enforcement tools. For example, if he discovered a breach of the Data
Protection Act during an assessment, he would still be able to take
enforcement action. He could issue an enforcement notice under section
40 of the DPA to compel the controller to comply with their
obligations. Failure to comply with an enforcement notice is a criminal
offence. If the commissioner suspects that a controller has requested a
good practice assessment in bad faith so as to escape the possibility
of a monetary penalty, he retains his discretion to decline the
assessment at all
times. I
believe that the Bill as drafted represents a significant incentive for
data controllers to consent to a good practice assessment. It maintains
the balance between education and enforcement roles, and strengthens
the overall effectiveness of the data protection regime. Similar
considerations apply to assessment notices, which are a valuable tool
in raising compliance levels and educating public bodies that are being
assessed. They are not intended to be punishments for the public
sector, but rather a way of establishing and spreading good practice.
In any case, as I have said, the commissioner can still employ his
other enforcement tools where required. I hope that on that basis, the
hon. Gentleman will feel able to withdraw his
amendment.
David
Howarth: I understand what the Minister says. I ask only
whether she will take some moments to
reconsider the position in the light of any changes that she might make
to the assessment notice regime, especially if that regime applies to
contracted-out public services. On that basis, I beg to ask leave to
withdraw the amendment.
Amendment,
by leave, withdrawn.
Schedule 18
agreed
to.
Clause
39Persons
suffering from diminished responsibility (England and
Wales)
Mr.
Garnier: I beg to move amendment 17, in
clause 39, page 24, line 2, after
‘another’, insert
‘(“V”)’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 18, in clause 39, page 24, line 3,
after ‘D’, insert ‘or
V’. Amendment
164, in clause 39, page 24, leave out
line
5. Amendment
400, in
clause 39, page 24, line 9, at
end insert— ‘(1ZA) A person
(“D”) who kills or is party to the killing of another is
not to be convicted of murder if D was under the age of eighteen and
his developmental
immaturity— (a)
substantially impaired D’s ability to do one or more of the
things mentioned in subsection (1A),
and (b) provides an explanation
for D’s acts and omissions in doing or being a party to the
killing.’. Amendment
165, in clause 39, page 24, leave out
lines 14 to
16. Amendment
401, in
clause 39, page 24, line 14, after
‘(1)(c)’, insert ‘, and subsection
(1ZA)(b)’. Amendment
402, in
clause 39, page 24, line 15, after
‘functioning’, insert ‘or D’s developmental
immaturity’. Clause
stand
part. Amendment
19, in
clause 40, page 24, line 24, after
‘another’, insert
‘(“V”)’. Amendment
20, in
clause 40, page 24, line 25, after
‘D’, insert ‘or
V’. Clause
40 stand
part.
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