How the legal aid budget might have been saved

On 15 November 2010 Kenneth Clarke, the Justice Secretary, announced to the House of Commons reforms to the legal aid regime that would lead, he said, to a reduction in the legal aid budget of £350 million in 2014/15 (Hansard 15 Nov 2010: Column 659). Just over a week before the Justice Secretary’s statement to the House, the Information Commissioner had issued a press notice following the Information Commissioner’s Office investigation into Google and its collection of WiFi data during its StreetView survey of the UK.

Google street view camera visits Peak District

The StreetView collection of personal data was deemed to be a serious breach of the Data Protection Act 1998, but as a result of it occurring before the Information Commissioner had power to impose monetary penalties, Google avoided a fine and was merely required to enter into an undertaking to behave itself.

The current Information Commissioner’s powers to impose monetary penalties are capped at £500,000 for serious breaches of data protection obligations (Data Protection (Monetary Penalties)(Maximum Penalty and Notices) Regulations 2010, SI 2010/31, reg 2). £500,000 is not enough to plug the legal aid budget, but what about £374 million?

Sadly for the Justice Secretary, Google breached data protection law 5 years too early. If Google had committed the same serious breach under the proposed Data Protection Regulation, which will not come into effect until 2 years (and twenty days) after the Regulation is published in the Official Journal of the European Journal, then the hole in the legal aid budget could have been plugged with ease. Article 79(6) of the draft Regulation gives supervisory authorities (the term for data protection regulators in the draft Regulation) the power to impose administrative fines of up to €1,000,000 (at the date of this post, approximately £837,890) or 2% of annual worldwide turnover.

Google, using its published 2010 audited accounts, would therefore have been liable to a maximum fine of $586,420,000 (2% of 2010 revenues of $29,321 million). At the date of this post, that is approximately £374,582,000.

As the meerkat says, “Simples”.

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