Data (Use and Access) Act 2025

Prospective

Section 115

Schedule 13 U.K. Privacy and electronic communications: Commissioner’s enforcement powers

Commencement Information

I1 Sch. 13 not in force at Royal Assent, see s. 142(1)

This is the Schedule to be substituted for Schedule 1 to the PEC Regulations—

Regulation 31

“Schedule 1 U.K. Information Commissioner’s enforcement powers

Provisions applied for enforcement purposes

1. For the purposes of enforcing these Regulations, the following provisions of Parts 5 to 7 of the Data Protection Act 2018 apply with the modifications set out in paragraphs 2 to 29—

• section 140 (publication by the Commissioner);

• section 141A (notices from the Commissioner);

• section 142 (information notices);

• section 143 (information notices: restrictions);

• section 144 (false statements made in response to an information notice);

• section 145 (information orders);

• section 146 (assessment notices);

• section 146A (assessment notices: approval of person to prepare report);

• section 147 (assessment notices: restrictions);

• section 148 (destroying or falsifying information and documents etc);

• section 148A (interview notices);

• section 148B (interview notices: restrictions);

• section 148C (false statements made in response to interview notices);

• section 149 (enforcement notices);

• section 150 (enforcement notices: supplementary);

• section 152 (enforcement notices: restrictions);

• section 153 (enforcement notices: cancellation and variation);

• section 154 and Schedule 15 (powers of entry and inspection);

• section 155 and Schedule 16 (penalty notices);

• section 156 (penalty notices: restrictions);

• section 157 (maximum amount of penalty);

• section 159 (amount of penalties: supplementary);

• section 160 (guidance about regulatory action);

• section 161 (approval of first guidance about regulatory action);

• section 162 (rights of appeal);

• section 163 (determination of appeals);

• section 164 (applications in respect of urgent notices);

• section 180 (jurisdiction);

• section 181 (interpretation of Part 6);

• section 182 (regulations and consultation);

• section 196 (penalties for offences);

• section 197(1) and (2) (prosecution);

• section 198 (liability of directors etc);

• section 200 (guidance about PACE codes of practice);

• section 202 (proceedings in the First-tier Tribunal: contempt);

• section 203 (Tribunal Procedure Rules).

General modification of references to the Data Protection Act 2018

2. The provisions listed in paragraph 1 have effect as if—

(a) references to the Data Protection Act 2018 or to a Part of that Act were references to the provisions of that Act or that Part as applied by these Regulations;

(b) references to a particular provision of that Act were references to that provision as applied by these Regulations.

Modification of section 142 (information notices)

3. Section 142 has effect as if—

(a) in subsection (1), for paragraphs (a) and (b) there were substituted—

“(a) require any person to provide the Commissioner with information or documents that the Commissioner reasonably requires for the purposes of determining whether that person has complied or is complying with the requirements of the PEC Regulations,

(b) require a communications provider to provide the Commissioner with information or documents relating to another person’s use of an electronic communications network or electronic communications service for the purposes of determining whether that other person has complied or is complying with the requirements of the PEC Regulations, or

(c) require any person to provide the Commissioner with information or documents that the Commissioner reasonably requires for the purposes of investigating a suspected failure by another person to comply with the requirements of the PEC Regulations.”;

(b) in subsection (2)(a), for “(b)(i) or (b)(ii)” there were substituted “(b) or (c)”;

(c) after subsection (8) there were inserted—

“(8A) Subsections (8B) and (8C) apply if an information notice given to a person under subsection (1)(b) or (c) contains—

(a) a statement that a duty of confidentiality applies in relation to the notice, and

(b) an explanation of the effects of subsections (8B) and (8C).

(8B) The person to whom the information notice is given, and any person employed or engaged for the purpose of that person’s business, must not disclose the existence of the notice without reasonable excuse.

(8C) Subsection (8B) does not prevent—

(a) a disclosure to a person employed or engaged for the purpose of the business of the person to whom the notice is given,

(b) a disclosure made with the permission of the Commissioner (whether the permission is contained in the information notice or otherwise), or

(c) a disclosure made for the purpose of obtaining legal advice.”;

(d) subsections (9) and (10) were omitted.

Modification of section 143 (information notices: restrictions)

4. (1) Section 143 has effect as if subsections (1) and (9) were omitted.

(2) In that section—

(a) subsections (3)(b) and (4)(b) have effect as if for “the data protection legislation” there were substituted “the PEC Regulations”;

(b) subsection (7)(a) has effect as if for “this Act” there were substituted “section 144, 148 or 148C or paragraph 15 of Schedule 15”;

(c) subsection (8) has effect as if for “this Act (other than an offence under section 144)” there were substituted “section 148 or 148C or paragraph 15 of Schedule 15”.

Modification of section 145 (information orders)

5. Section 145(2)(b) has effect as if for “section 142(2)(b)” there were substituted “section 142(2)”.

Modification of section 146 (assessment notices)

6. Section 146 has effect as if—

(a) in subsection (1)—

(i) for “a controller or processor” there were substituted “a person within subsection (1A)”;

(ii) for “the controller or processor” there were substituted “the person”;

(iii) for “the data protection legislation” there were substituted “the requirements of the PEC Regulations”;

(b) after subsection (1) there were inserted—

“(1A) A person is within this subsection if the person—

(a) is a communications provider, or

(b) is engaged in any activity regulated by the PEC Regulations.”;

(c) in subsection (2)—

(i) for “controller or processor” there were substituted “person to whom it is given”;

(ii) in paragraph (h), for “the processing of personal data” there were substituted “any activity regulated by the PEC Regulations”;

(iii) in paragraph (i), for “process personal data on behalf of the controller” there were substituted “are involved in any such activity on behalf of the person to whom the notice is given”;

(d) in subsection (3A), for “controller or processor” there were substituted “person”;

(e) in subsection (7), for “controller or processor” there were substituted “person to whom the notice is given”;

(f) in subsection (8)—

(i) in paragraph (a), for “controller or processor” there were substituted “person to whom the notice is given”;

(ii) in the words after paragraph (c), for “controller or processor” there were substituted “person”;

(g) in subsection (9)—

(i) in paragraph (a), for the words from “a controller” to “this Act” there were substituted “the person to whom the notice is given has failed or is failing to comply with the requirements of the PEC Regulations or that an offence under section 144, 148 or 148C or paragraph 15 of Schedule 15”;

(ii) in paragraph (d), for “controller or processor” there were substituted “person”;

(h) in subsection (10), for “controller or processor” there were substituted “person”;

(i) subsection (11) were omitted;

(j) in subsection (11A)—

(i) for “controller or processor”, in the first place it occurs, there were substituted “person to whom it is given”;

(ii) for “controller or processor”, in the second place it occurs, there were substituted “the person”.

Modification of section 146A (assessment notices: approval of person to prepare report)

7. Section 146A has effect as if—

(a) in subsection (1), for “a controller or processor” there were substituted “a person (“P”)”;

(b) in subsection (2), for “The controller or processor” there were substituted “P”;

(c) in subsections (3) to (6), for “the controller or processor” (in each place) there were substituted “P”.

Modification of section 147 (assessment notices: restrictions)

8. (1) Section 147 has effect as if subsection (5) were omitted.

(2) In that section, subsections (2)(b) and (3)(b) have effect as if for “the data protection legislation” there were substituted “the PEC Regulations”.

Modification of section 148A (interview notices)

9. Section 148A has effect as if—

(a) in subsection (1)—

(i) for “a controller or processor” there were substituted “a person”;

(ii) in paragraph (a), for “as described in section 149(2)” there were substituted “to comply with a requirement of the PEC Regulations”;

(iii) in paragraph (b), for “this Act” there were substituted “section 144, 148 or 148C or paragraph 15 of Schedule 15”;

(b) in subsection (3)—

(i) in paragraph (a), for “the controller or processor” there were substituted “the person mentioned in subsection (1)”;

(ii) in paragraph (b), for “the controller or processor” there were substituted “that person”;

(iii) in paragraph (c), for “the controller or processor” there were substituted “that person”.

Modification of section 148B (interview notices: restrictions)

10. (1) Section 148B has effect as if subsections (8) and (9) were omitted.

(2) In that section—

(a) subsections (2)(b) and (3)(b) have effect as if for “the data protection legislation” there were substituted “the PEC Regulations”;

(b) subsection (6)(a) has effect as if for “this Act” there were substituted “section 144, 148 or 148C or paragraph 15 of Schedule 15”;

(c) subsection (7) has effect as if for “this Act (other than an offence under section 148C)” there were substituted “section 144 or 148 or paragraph 15 of Schedule 15”.

Modification of section 149 (enforcement notices)

11. (1) Section 149 has effect as if subsections (2) to (5A) and (7) to (9) were omitted.

(2) In that section—

(a) subsection (1) has effect as if—

(i) for “as described in subsections (2), (3), (4), (5) or (5A)” there were substituted “to comply with a requirement of the PEC Regulations”;

(ii) for “sections 150 and 151” there were substituted “section 150”;

(b) subsection (6) has effect as if the words “given in reliance on subsection (2), (3), (5) or (5A)” were omitted.

Modification of section 150 (enforcement notices: supplementary)

12. (1) Section 150 has effect as if subsection (3) were omitted.

(2) In that section, subsection (2) has effect as if the words “in reliance on section 149(2)” were omitted.

Modification of section 152 (enforcement notices: restrictions)

13. Section 152 has effect as if subsections (1), (2) and (4) were omitted.

Modification of Schedule 15 (powers of entry and inspection)

14. (1) Schedule 15 has effect as if paragraph 3 were omitted.

(2) Paragraph 1(1) of that Schedule (issue of warrants in connection with non-compliance and offences) has effect as if for paragraph (a) (but not the final “and”) there were substituted—

“(a) there are reasonable grounds for suspecting that—

(i) a person has failed or is failing to comply with a requirement of the PEC Regulations, or

(ii) an offence under section 144, 148, or 148C or paragraph 15 of this Schedule has been or is being committed,”.

(3) Paragraph 2 of that Schedule (issue of warrants in connection with assessment notices) has effect as if—

(a) in sub-paragraphs (1) and (2), for “controller or processor” there were substituted “person”;

(b) in sub-paragraph (2), for “the data protection legislation” there were substituted “the PEC Regulations”.

(4) Paragraph 5 of that Schedule (content of warrants) has effect as if—

(a) in sub-paragraph (1)(c), for “the processing of personal data” there were substituted “an activity regulated by the PEC Regulations”;

(b) in sub-paragraph (2)(d), for the words from “controller or processor” to the end there were substituted “person mentioned in paragraph 1(1)(a) has failed or is failing to comply with a requirement of the PEC Regulations”;

(c) in sub-paragraph (3)(a) and (d)—

(i) for “controller or processor” there were substituted “person mentioned in paragraph 2(1)”;

(ii) for “the data protection legislation” there were substituted “the requirements of the PEC Regulations”.

(5) Paragraph 11 of that Schedule (privileged communications) has effect as if, in sub-paragraphs (1)(b) and (2)(b), for “the data protection legislation” there were substituted “the PEC Regulations”.

Modification of section 155 (penalty notices)

15. Section 155 has effect as if—

(a) in subsection (1)—

(i) in paragraph (a), for “as described in section 149(2), (3), (4), (5) or (5A)” there were substituted “to comply with a requirement of the PEC Regulations”;

(ii) after paragraph (c), there were inserted “, or

(d) has failed to comply with the prohibition in section 142(8B),”;

(b) after subsection (1) there were inserted—

“(1A) But the Commissioner may not give a penalty notice to a person in respect of a failure to comply with regulation 5A of the PEC Regulations.”;

(c) for subsection (2) there were substituted—

“(2) When deciding whether to give a penalty notice to a person and determining the amount of the penalty, the Commission must have regard to the matters listed in subsection (3), so far as relevant.”;

(d) in subsection (3)—

(i) for “the controller or processor” (in each place) there were substituted “the person”;

(ii) in paragraph (c), for the words from “data subjects” to the end there were substituted “subscribers or users”;

(iii) in paragraph (d), for the words “in accordance with section 57, 66, 103 or 107” there were substituted “with a view to securing compliance with the requirements of the PEC Regulations”;

(iv) paragraph (g) were omitted;

(v) in paragraph (j), the words “or certification mechanism” were omitted;

(e) subsection (4) were omitted;

(f) after subsection (4) there were inserted—

“(4A) If a penalty notice is given to a body in respect of a failure to comply with any of regulations 19 to 24 of the PEC Regulations, the Commissioner may also give a penalty notice to an officer of the body if the Commissioner is satisfied that the failure—

(a) took place with the consent or connivance of the officer, or

(b) was attributable to any neglect on the part of the officer.

(4B) In subsection (4A)—

• “body” means a body corporate or a Scottish partnership;

• “officer”, in relation to a body, means—

  (a)

  in relation to a body corporate—

  (i)

  a director, manager, secretary or other similar officer of the body or any person purporting to act in such capacity, and

  (ii)

  where the affairs of the body are managed by its members, a member; or

  (b)

  in relation to a Scottish partnership, a partner or any person purporting to act as a partner.”;

(g) subsections (6) to (8) were omitted.

Modification of Schedule 16 (penalties)

16. Schedule 16 has effect as if paragraphs 3(2)(b) and 5(2)(b) were omitted.

Modification of section 156 (penalty notices: restrictions)

17. (1) Section 156 has effect as if subsections (1), (2), (4)(b) and (5) were omitted.

(2) In that section, subsection (3) has effect as if for the words from “controller” to “determined by or” there were substituted “penalty notice to a person who acts”.

Modification of section 157 (maximum amount of penalty)

18. Section 157 has effect as if—

(a) subsection (1) were omitted;

(b) in subsection (2)—

(i) for “Part 3 of this Act” there were substituted “the PEC Regulations”;

(ii) in paragraph (a), for the words from “section 35” to “or 78” there were substituted “regulation 5, 6, 7, 8, 14, 19, 20, 21, 21A, 21B, 22, 23 or 24”;

(c) subsections (3) and (4A) were omitted;

(d) after subsection (4A) there were inserted—

“(4B) In relation to an infringement of section 142(8B) of this Act, the maximum amount of the penalty that may be imposed by a penalty notice is the higher maximum amount.”

Modification of section 159 (amount of penalties: supplementary)

19. Section 159 has effect as if—

(a) in subsection (1), the words “Article 83 of the UK GDPR and” were omitted;

(b) in subsection (2), the words “Article 83 of the UK GDPR,” and “and section 158” were omitted.

Modification of section 160 (guidance)

20. Section 160 has effect as if, in subsection (4)(f), for “controllers and processors” there were substituted “persons”.

Modification of section 162 (rights of appeal)

21. Section 162 has effect as if subsection (4) were omitted.

Modification of section 163 (determination of appeals)

22. Section 163 has effect as if subsection (6) were omitted.

Modification of section 180 (jurisdiction)

23. (1) Section 180 has effect as if subsections (2)(b), (c), (d) and (e) and (3) were omitted.

(2) Subsection (1) of that section has effect as if for “subsections (3) and (4)” there were substituted “subsection (4)”.

Modification of section 181 (interpretation of Part 6)

24. Section 181 has effect as if the definition of “certification provider” were omitted.

Modification of section 182 (regulations and consultation)

25. (1) Section 182 has effect as if subsections (3), (6), (8), (11), (12) and (14) were omitted.

(2) Subsection (13) of that section has effect as if for “provision comes into force” there were substituted “coming into force of section 115 of the Data (Use and Access) Act 2025”.

Modification of section 196 (penalties for offences)

26. (1) Section 196 has effect as if subsections (3) to (5) were omitted.

(2) In that section—

(a) subsection (1) has effect as if the words “section 119 or 173 or” were omitted;

(b) subsection (2) has effect as if for “section 132, 144, 148, 148C, 170, 171 or 184” there were substituted “section 144, 148 or 148C”.

Modification of section 200 (guidance about PACE codes of practice)

27. Section 200 has effect as if, in subsection (1), for “this Act” there were substituted “section 144, 148 and 148C and paragraph 15 of Schedule 15”.

Modification of section 202 (proceedings in the First-tier Tribunal: contempt)

28. Section 202 has effect as if, in subsection (1)(a), for sub-paragraphs (i) and (ii) there were substituted “on an appeal under section 162”.

Modification of section 203 (tribunal procedure rules)

29. Section 203 has effect as if—

(a) in subsection (1), for paragraphs (a) and (b) there were substituted “the exercise of the rights of appeal conferred by section 162”;

(b) in subsection (2)—

(i) in paragraph (a), for “the processing of personal data” there were substituted “any activity regulated by the PEC Regulations”;

(ii) in paragraph (b), for “the processing of personal data” there were substituted “any such activity”.

Interpretation

30. In this Schedule, “the PEC Regulations” means these Regulations.”