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Criminal Justice and Immigration Bill

That is certainly the intention. Proposed new section 55B will make provision for procedural rights, including a duty on the commissioner to give the data controller notice of his intention to issue a monetary penalty notice, which will inform the data controller of his right to make representations before the penalty is imposed. It also includes a right of appeal to the information tribunal against the monetary penalty notice. New section 55C will make provision requiring the commissioner to prepare and issue guidance about how he proposes to exercise his power to impose monetary penalties. New section 55D makes provision for the enforcement of the monetary penalty. New section 55E confers a power on the Secretary of State by order to make further provision in connection with monetary penalty notices and notices of intent. In considering what would be an appropriate penalty, we have taken into account many factors, in particular that criminal liability is generally reserved for unlawful behaviour that is sufficiently serious to merit the most stringent liability that the law can impose. A criminal offence would be a disproportionately heavy-handed penalty where there has been no intent or wilfulness in the data controller's non-compliance. Criminal proceedings could result in a costly and time-consuming process for data controllers and the commissioner. Penalties imposed by criminal courts, which may not have the necessary technical expertise to deal with data issues—which the Information Commissioner has—are often regarded as an inadequate deterrent to regulatory non-compliance. For those reasons, we consider a criminal penalty inappropriate. We believe, however, that a civil monetary penalty would offer a proportionate and fair sanction for serious breaches of the data protection principles. The commissioner, with his expertise, would be best placed to determine an appropriate monetary penalty for a data controller, having regard to the particular circumstances. In issuing the monetary penalty, the commissioner would take into account factors such as the seriousness of the breach, the behaviour of the data controller, the nature of the personal data and the extent of the harm likely to be caused. Issuing a civil monetary penalty is a comparatively efficient and quick process and keeps any additional burden on the courts to a minimum, while of course protecting the right to make representations of the person—the data controller—if he is about to have a monetary penalty imposed on him, and the right of appeal against either the notice of intent or the monetary penalty. For these reasons, the Government are firmly of the view that a civil monetary penalty will be more effective and appropriate for serious breaches of the data protection principles than a criminal offence. On the Secretary of State's power, to which the hon. Member for Hornchurch (James Brokenshire) referred, the Secretary of State will not have any power to override a monetary penalty set by the commissioner. There are provisions on making sure that appeals can be dealt with properly, and that is the power that the Secretary of State has. We do not intend through this new amendment to widen the scope of the legal obligations imposed on data controllers. Data controllers are already under an obligation to comply with the data protection principles and are subject to enforcement procedures. Our aim is to focus this new monetary penalty on the most serious breaches of the data protection principles. In cases where a data controller is continuing to breach those principles, we would expect the commissioner to issue both an enforcement notice and a monetary penalty notice. The enforcement notice would require the data controller to cease his unlawful activity and to comply with the legislation in future. The monetary penalty notice would punish the data controller for his past behaviour and send a strong deterrent signal to other data controllers. We believe that this is better than the arrangements put into the Bill in the other place, and I hope that, on that basis, the House agrees that we should disagree with the Lords amendment.