What is the largest number of responses to any government consultation there has ever been? You won’t find an entry in the Guinness Book of World Records, yet. But when I saw the Ministry of Justice’s {consultation on the implementation of civil monetary penalties for breaches of the data protection legislation: http://www.justice.gov.uk/consultations/docs/civil-monetary-penalties-consultation.pdf}, I wondered if they were making a sneaky assault on a new world record.
In fact, at first I was somewhat bemused. I occasionally cheat on these consultations by going to the list of questions first to get to the nub. When I found just ‘1. Do you consider that a penalty of up to £500,000 provides the ICO with a proportionate sanction for serious contraventions of the data protection principles?’ I assumed that I had somehow accessed only part of the questionnaire. But I searched for more in vain. That’s it – the one and only question. And it begs for a one word answer. They may well get a record number of responses – and I am sure that they will break all records for one word responses. It’s time to wheel on the ghost of Mr McWhirter.
You have to feel sorry for the numerous organisations to which the consultation has been sent. The chair of the sub-group charged with giving a response will hardly have got the first avocado and prawn wrap to his or her lips before a response is unanimously agreed.
I haven’t in fact responded. I think my answer would have been ‘It depends.’ A penalty of ‘up to £500,000’ includes a penalty of £2.75, and I certainly don’t think that would be a proportionate sanction for a serious contravention affecting millions of people. I applaud the fact the Ministry has kept its consultation paper short and pertinent but they should have said what they meant; they do indicate a further maximum: ‘we consider it desirable that the maximum amount of the penalty should not be higher than the equivalent of 10% of the highest annual turnover of a small company’ but no minimum. The draft statutory guidance from the ICO does not help much. It sets out all manner of factors that might be taken into account when determining the amount of the penalty that might be imposed but, although other sections of the document include examples, it gives not a hint as to what amount might be imposed in a hypothetical situation (and not much imagination is need to come up with examples). Moreover, the draft guidance itself is not specified as being subject to consultation, which seems downright bizarre. I do think it is safe to assume that large amounts are contemplated – certainly larger than £2.75.
