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Data Protection (Processing of Sensitive Personal Data) Order 2009

Volume 712: debated on Monday 29 June 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Data Protection (Processing of Sensitive Personal Data) Order 2009.

Relevant Document: 17th Report from the Joint Committee on Statutory Instruments.

The Government have introduced a number of very important measures, which are designed to protect the public from known offenders and to improve the flow of information to the public about dangerous offenders in the community.

In 2001, the Government introduced the Multi-Agency Public Protection Arrangements—the MAPPA. By law, the police, probation and prison services are now required to work together as a responsible authority to assess and manage the risks posed by offenders convicted of the most serious sexual and violent offences. When such offenders are released from custody, either because they have completed the custodial part of the sentence imposed by the court, or because the Parole Board has directed their release from an indeterminate sentence, they will be supervised in the community under the MAPPA. The services will share information on the offender in order to identify the risks that the offender poses and then put in place a risk management plan to control those risks. While, tragically, there can be no such thing as zero risk when it comes to supervising known offenders in the community, of the 13,000 offenders managed at the highest levels of the MAPPA in 2007-08, fewer than 0.5 per cent were charged with committing a serious further offence.

By virtue of Section 327A of the Criminal Justice Act 2003, as inserted by Section 140 of the Criminal Justice and Immigration Act 2008, the MAPPA responsible authority must consider whether to disclose any information that it holds about the relevant previous convictions of any child sex offender whom it manages to a particular member of the public. Further, there is a presumption that the responsible authority will disclose such information where the offender is assessed as posing a risk of serious harm to any particular child or children, and where disclosure is necessary for the purpose of protecting a particular child or children. In addition, the guidance to the MAPPA responsible authorities, which the Lord Chancellor issues under Section 326 of the Criminal Justice Act 2003, has been amended to require responsible authorities to consider disclosure in the case of every offender managed under the MAPPA.

The Government have introduced changes to sentences that will make it less likely that prisoners known to pose a current high risk of harm to the public will be released from prison. From April 2005, the courts have been able to impose an indeterminate sentence of imprisonment for public protection. Where an IPP is imposed, the offender is not eligible for release until he has served the minimum period set by the court for punishment and deterrence, and will be released only if the independent Parole Board determines that it is no longer necessary for the protection of the public that the prisoner should be confined. We therefore hope that the number of prisoners who will fall within the ambit of this order will diminish with the passage of time.

Regrettably, and notwithstanding these changes, certain offenders are assessed as presenting a very high risk of harm to the public at the point at which they have to be released from custody. It is those offenders who are in view as we consider this Data Protection (Processing of Sensitive Personal Data) Order 2009.

The purpose of the instrument is to enable the Secretary of State for Justice to provide information to a Member of Parliament about certain high-risk prisoners and the arrangements for the prisoners’ release. The National Offender Management Service, NOMS, in the Ministry of Justice operates a scheme known as the critical public protection case scheme. It applies to certain high-risk prisoners. The purpose of the scheme is to assure Ministers that robust risk management plans are in place to manage this category of offenders, to allow probation areas to bid for additional funding to strengthen local risk management plans, and to enable Ministers to notify Members of Parliament of the arrangements that have been put in place to manage the risk which these offenders present in order to protect the public.

This order will allow Ministers to provide Members of Parliament with additional information about the offenders. We think it right that Members of Parliament should have assurance that there are systems and measures in place to protect the public from known offenders when they are released from custody. That is why we are seeking the approval of the House to make the order. It will allow information relating to the release arrangements of certain high-risk prisoners from prison to be passed to a Member of Parliament. The prisoners would include those released from young offender institutions, remand centres and secure training centres. On receipt of such information, the Member will be able to make inquiries for further details of the local chief constable of police or chief probation officer. In this way he will be able to assure himself that there are effective measures in place to protect his constituents from the risk of harm posed by certain offenders.

We do not intend that the processing of sensitive information should apply to all released offenders but only to the critical public protection cases. These are offenders who are assessed as presenting a very high risk of serious harm and who consequently need to be managed at the highest level of the MAPPA, together with offenders who have been convicted of offences under the Terrorism Act 2006, who are linked to extremist organisations or who, because of the high-profile nature of their offences, also require to be managed at the highest level of the MAPPA. Many of the high-risk prisoners who meet the criteria for CPPC were sentenced under previous legislation.

We consider that the processing of sensitive personal data of these kinds in these circumstances is necessary and proportionate. Members will be informed of the released prisoner’s name as well as of any standard and additional licence conditions to which he is subject, including the address at which he must reside as a condition of his supervision. Members will also be told whether victims of the offender’s previous offences have elected to receive information about the offender’s progress through his sentence. Finally, Members will be given the name and contact details of the local chief constable or chief probation officer in order to make further inquiries about the measures in place to protect their constituents.

In electing to receive information about a limited class of released prisoners, Members are required to sign an undertaking that they will not disclose the information except in specified circumstances. Members may discuss the offender and his supervision arrangements with the local chief constable or chief probation officer. They may disclose the information where it has become publicly available by some other means, or with the written consent of the offender, or to a government department, or in accordance with an obligation to provide information under or by virtue of any enactment in accordance with an order of the court. In no other circumstances should they disclose the sensitive information, the processing of which will be permitted by this order. They must agree to destroy the information when they have no further use for it.

The order is essential if Members of Parliament are to receive comprehensive information about certain very high risk-of-harm offenders in order that they may assure themselves that there are robust arrangements in place to protect members of the public. I beg to move.

Again I thank the Minister for his explanation. The order is timely, coming as it does barely a week after the Lord Chancellor was compelled to make a Statement about the case of Sonnex, a released prisoner who went on to murder two young Frenchmen in tragic circumstances. Will the Minister confirm that the individual in that case would not have been covered by this in that he was not assessed as being that high a risk on that occasion? The order deals with information about a very high-risk offender. Secondly, will the Minister say what exactly is meant by a Member of Parliament? On this occasion, do the Government mean a Member of another place? Do they mean any Member—in other words, a Member of this House or another place? If they mean only a Member of another place, do they mean that this should be restricted to the MP of the appropriate constituency—in other words, the constituency which the released prisoner came from originally, to which he is likely to go, or in which there is thought be a risk because of whatever he had done, whether it was a terrorism offence or whatever? I would be very grateful for a proper explanation of what is meant by a Member of Parliament.

I thank the Minister for the explanation that he has just given us. On the face of it, this seems to be perfectly reasonable in that it gives more channels of accountability. He cited some figures, but I was not quite clear whether he gave us an estimate of how many people would fall into this category per year. Obviously we would not know how many offenders each Member of Parliament would be likely to get on their books. As the noble Lord, Lord Henley, said, will this apply to where someone came from or where they will be released to? I think the Notes refer to where they will be released to, but where they came from is obviously of some interest too because their associates and their family may still be there.

I have a number of other queries. Obviously there is no attempt to include in the provisions the leader of the relevant local authority, although the leader has responsibility for the LEA, for certain types of housing provision and for various services that would probably make them as relevant a person as the MP. What if the MP is not happy with the arrangements that are in place? This information is there so that he can satisfy himself about them. Can he veto any proposals made to him? What happens at election time? Is there an automatic transfer of this information to the newly elected MP, or would the process start again so that an incoming MP would have a whole list to go through, having signed the appropriate paper mentioned by the order? What about MPs’ staff? Presumably his or her staff would have to be involved in the record-keeping and so on, and so presumably they would be covered by the arrangements that are mentioned here. Finally, how will the data be sent to the MP? Will they be sent by e-mail or by post?

I was very pleased that the noble Lord, Lord Henley, was generally supportive of the order. He asked whether Mr Sonnex would have been covered by it. The answer is “probably”, but, as the Statement made clear, errors were made in his case, particularly in the risk assessment, and I do not want to add to anything that has been said about the case.

The noble Lord, Lord Henley, is right to draw the conclusion that these are high-risk individuals. What do we mean by a Member of Parliament? We mean a Member of the other place only. The release would normally be to the constituency MP for the release address, but the order permits release to another MP. An example would be an MP for the victim’s constituency—the arrangements may be based, at least in part, around the victim—or maybe, in certain circumstances, an opposition spokesman.

Turning to the points raised by the noble Baroness, Lady Miller, I have one figure to give a sense of scale. There were only 96 registered CPPCs last year. The higher figures that I quoted were for people managed at other levels of the MAPPA process. This critical group is not made up of 96 CPPCs who were released last year but of 96 who were registered last year. The MP does not have any veto over the arrangements but can make representation. He is, in a sense, directed by this process to the chief constable or the chief probation officer. There will be quite a burden on them to explain very carefully what the plans look like.

What about the transition during elections? New MPs will have to sign an undertaking once elected. Notification will continue during elections. MPs have to agree to sign an undertaking to store information securely. Their staff will have to see letters to support MPs. Staff will have access; they will, presumably, be under an appropriate duty of confidentiality. Letters will be sent by post and not restricted. I beg to move.

Motion agreed.

Committee adjourned at 5.52 pm.