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Mr. Harry Cohen (Leyton) : The instrument about access to personal files relates to freedom of information and freedom to information. I agree with some of the anxieties that have been expressed from both sides of the House.
First, I wish to refer to the £10 fee that can be incurred under the Data Protection Act 1984 and under the instrument. I believe that it will create all sorts of problems, a couple of which have already been mentioned. The hon. Member for Orkney and Shetland (Mr. Wallace) raised the very good point about manual files costing £10 in addition to computer files so that a £20 charge could be incurred. Under the Data Protection Act, Government Departments set up all sorts of files. They could charge £10 for access to each file so that in some cases a fee of hundreds of pounds could be incurred. What is to stop a local authority setting up all sorts of files within its social services department and then charging £10 for access to each file? It is difficult enough for the person seeking the information to know which file to ask for, so he would have to ask for them all and pay the fee for the lot.
Mr. Wallace : I am sure that the hon. Gentleman will acknowledge and give credit to the Department of Social Security which does not charge a fee for access to its computerised files under the Data Protection Act. One hopes that local authorities will follow that example.
Mr. Cohen : I certainly hope that other Government Departments will follow that example, but we cannot be sure that they will. The £10 fee is a dangerous issue because social services departments deal with some of the poorest people in the community to whom £10 is a lot of money. The £10 fee will effectively stop those people getting access to their files. The system will be unfair on individuals with similar cases as it will vary from area to area as one authority takes an enlightened view and makes no charge and another authority charges the maximum £10. That is not a fair way to deal with individuals. Therefore, the Minister should think again about the fee.
Column 945As the Minister said, there is broad agreement that there should be access for individuals about whom the records are kept. But he went on to list a whole range of exceptions. For example, health authorities have only to say that a case is an exception and it automatically becomes one. I believe that that is wrong. Why should a health authority have more rights than a local authority social services department? They are both dealing with sensitive problems, so why should health authorities have more rights to secrecy? In many cases, they are already excessively secret and that is wrong. At least local authorities have democratic
representatives--councillors--whom individuals can lobby for information, but they do not have such a right with the health authorities. The exception for health authorities is too blanket an exception.
Why have health professionals got special blanket privileges? Under the schedule, even people such as chiropodists, art therapists and music therapists have only to say that the information cannot be made public for people to be stopped from obtaining the information that they want. That is ridiculous. The schedule should be more carefully thought out than that. An ingrowing toenail should not be sufficient to prevent a person from getting his social services records. Where information is specifically given by a doctor or other health professional on a confidential basis, there is possibly a good reason for the exemption applying. But I remember the Cleveland case. The Minister should have addressed the exemption in relation to that case because the parents who were aggrieved and trying to obtain justice for themselves thought that it was the health professionals who were to blame. They would not be helped by the regulations because the health professionals still have a special privilege of secrecy. Such parents would not obtain the information they wanted from the files, but would have to rely, yet again, on trying to force a huge public inquiry. They could not even rely on the courts to obtain information because another of the exemptions is the magistrates courts under the Magistrates' Courts (Children and Young Persons) Rules 1988. They would be blocked there and that is another exemption stopping people from obtaining information in cases of acute concern affecting their own children when their rights to look after their children had been impugned. A parent often needs to have access to the social services department's information on the case in a magistrates court to fight a child care order that they feel is unfair and to challenge the social services, or at least be able to present their case. The exemption will prevent them from doing that.
The Minister mentioned another exemption in cases in which the social services department felt that trauma or emotional damage could be caused. The Minister said that that would be used in rare cases to stop information being given, but it seems to me that that could apply to almost all social services cases. If a social services department wanted to be bloody-minded, it could use that exception in all cases and it would become a commonplace excuse to stop people obtaining information. It could be an enormous loophole, and the Minister should consider that. If the exemption is likely to be abused, the Minister should take action.
Column 946Another exception in which people cannot obtain information to which the Minister referred was cases in which a third party was identified as the source of information. Again, there could be a genuine case in which the third party should not be identified, especially in a child abuse case, and we all accept that people should not be discouraged from reporting serious child abuse. Again, there should be the right to challenge, perhaps in a court, because it may be that a third party is unreliable or even malicious and that, because of the use of the exception, the individual affected does not have the chance to challenge.
The final exception that I shall raise is what the Minister called the "legal profession's privilege". Exactly what does that mean? After all, several Conservative Members have signed a motion seeking to get rid of the closed shop. This sounds like a closed shop. Why should the legal profession have a right of exemption over what information people can find out about themselves from their files? I cannot envisage what the Minister's phrase means, so will he please explain it?
I appreciate the Minister's point about the local government ombudsman. I think that we should extend that provision to the health ombudsman so that people who want to complain about health authorities or health professionals unjustly denying them access to their information can go to the health ombudsman.
I agree with my hon. Friend the Member for Monklands, West (Mr. Clarke) and the hon. Member for Orkney and Shetland that there should be a proper appeals arrangement with the data registrar. Under the Data Protection Act 1984, for example, the data registrar can investigate and the courts can also become involved. A proper appeals procedure should be available.
Mr. Ian McCartney (Makerfield) : Like my hon. Friends, I welcome the opportunity to discuss the regulations, and the fact that the Government are prepared to put into operation provisions that will, for the first time, give a great deal of access to clients who, in the past, have been wronged by information in their files which, in many instances, had been secured for legitimate reasons by social services departments because the nature of the information in the files acted to the detriment of clients and their representatives. In these days when we are trying to persuade people to come forward with cases of abuse--whether physical, sexual or mental--we are sensitive to the way in which the guidelines are operated. Will the Minister therefore tell us what additional provisions there will be for training social workers in the provision and presentation of information? It is essential for the operation of access to personal files that social workers, social services departments and those involved with the files and the information in them can interpret them properly and give a clear understanding of their objectives, of the information required and of the way in which the information is provided. Unless there is training in the provision and preparation of information, the wrong information could be provided, to the detriment of the physical and mental health of the individual concerned, or it could be used as an excuse for not providing information that should be provided.
I will give the Minister some examples of cases with which I have been involved, either as a Member of Parliament or in my previous occupation in personal social
Column 947services case work. The information that I provide is confidential and will not be presented to attract any publicity for the individuals concerned, nor does it present any criticism of those involved with the cases. It simply shows how the system as currently operated breaks down and where the personal files provisions could assist in ensuring, I hope, that such cases will not occur in the future.
The first case involves a mother and daughter relationship. A health worker notified the social services department that the unmarried mother was commencing a relationship with a gentleman known to have suffered mental illness in the past. Although she felt that there were no signs of mental illness now, she felt that a serious relationship between that man and woman could be detrimental to the child's development. The mother was then approached by a case worker from the social services department, who advised her that that report had been submitted. The mother's views were then sought about the relationship. She openly admitted that the relationship was continuing and developing and that she was not prepared at that stage to indicate to the care worker, or anyone else, that the relationship would end.
A report was immediately initiatied by the social services department, which included the suggestion of removing the child from the mother. The report concluded, however, that there was no evidence of physical abuse to the child by the mother or by the gentleman. There was also no evidence from the child's voluntary play school, other than that the mother was an excellent mother, and there were no problems with the child's development, physically or mentally. Yet three months on, that child was not only removed from the mother--without any access to information as to why that should have happened--but was offered for long-term fostering. Absolute access was refused by the magistrates on information submitted by the social services department. Because a third party provided information about that mother's relationship--which was subsequently found to have no real substance in the mind of the care worker concerned--the mother was separated from her child. The child was offered for long-term fostering by the social services department concerned, which one assumes would lead to a complete breakdown in the relationship between mother and child and the child then being offered for adoption.
The second case relates to a couple applying to the local authority to become foster parents after seeing an advertisement in the local paper. This is a mature couple, with two teenage daughters and a young lad of seven or eight. After extensive investigations by the local authority, the parents were advised that all that the local authority was waiting for were reports from the local police and from their former local general practitioner. The parents were told, however, that the local authority was so satisfied with the arrangements that an introduction to a handicapped girl would be facilitated for a couple of weekends so that they could all get to know each other. The intention was that that handicapped child would be fostered by the couple. The weekend prior to the fostering arrangement being formalised, a social worker went to the family home and advised the parents that one of the reports for which they had been waiting contained information such that the authority could no longer proceed with their application to become foster parents.
Column 948The result was a horrendous situation in which the couple believed that one or other or both must have concealed from each other information about their past so mucky or detrimental as to prevent them from fostering a child. Naturally, that affected their relationship.
After further pressure, the social services area director met the couple and reassured them that the authority intended to take no action with regard to their own children. The authority accepted, and did not retract the view, that the couple were excellent parents to their own children, but due to third-party involvement it could not give any indication of the reasons why at the 23rd hour it had rejected the couple's application to foster a child. The arrangement to seek information, a qualification of information or to have information amended is essential in such cases.
I cite the further example of a single mother involved in care proceedings. An anonymous telephone call to a local authority initiated an investigation of whether the mother was abusing her child--not physically or mentally, but that she was leaving the child on its own. Initial inquiries revealed that the allegation was unsubstantiated, but in the interim investigations it was discovered that the mother was associating with a gentleman whom the local authority had on record as possibly having been involved in the abuse of a child. On the basis of that information, the child was removed from the mother and remains in local authority care.
Personal files often contain subjective--sometimes highly subjective-- comment and third-party comment may be highly irregular. An anonymous contribution might be regarded as substantial despite the fact that initial investigation might show that it was unsubstantiated. Anecdotal information may take on a significance that it should not have. Access to files should be given at the earliest opportunity, particularly when files go before case conferences, and it should be possible to challenge information provided by outside agencies. On many occasions disruption to a family's life occurs at the point when information is submitted to a case conference at which parents may be inadequately represented or not represented at all.
Access to personal files should be implemented in such a way as to protect the client and, in many instances, the children. It should also be borne in mind that in many instances outrageous decisions are taken which destroy the fabric of ordinary decent families, disrupting their lives, and they have no redress because they cannot challenge the information contained in the files. Therefore, I welcome the regulations.
The hon. Member for Monklands, West (Mr. Clarke) referred to the means test. I stress again, as I pointed out when I opened the debate, that the sum of £10 is a maximum discretionary amount. It might be for the convenience of the House if I draw attention to the guidance notes issued to local authorities. In those we have said that authorities will no doubt take into account the applicants' ability to pay. That discretion is commendable and gives flexibility to local authorities.
Secondly, the hon. Gentleman asked about staff, training and allied costs and resources available to local
Column 949authorities. As the House will know, local authorities have been well aware since 1983--some six years--that we were encouraging access to information for local residents, so local authorities should have been putting into practice over the past five or six years access arrangements.
We have always encouraged open access. Many social services departments already operate open access policies. They have trained their staff and reorganised their records appropriately. Because they have been taking such steps over five or six years they have incurred and met expenses out of available resources--from rate support grant and rates.
The hon. Gentleman also asked about consultation, an important point. I can confirm that we have spoken to the Central Council for Education and Training in Social Work and have stayed in close touch. He asked about the other bodies that we have consulted. There are some 40 of those. If he writes to me asking me to detail them I shall be happy to do so.
The hon. Gentleman also asked about the timetable for action. We issued a draft circular in January making it clear that Parliament needed to approve the regulations. Therefore, three months will have elapsed before the regulations come into effect. The most important point to make is that the general principle of open access has been in existence since 1983, so local authorities have had plenty of notice. We are simply bringing to a conclusion tonight a long process of encouraging open local government.
The hon. Member for Monklands, West also asked me who will decide on the issue of serious harm, and how it will be defined and who will interpret it. The way in which such decisions are made will depend on individual circumstances, but we have emphasised that such exemptions will be the exception and will relate to exceptional cases, and will not be used frivolously or lightly. It is important to be aware that it is also a safeguard for many clients and third parties. The hon. Member for Orkney and Shetland (Mr. Wallace) raised several points. I hope that I have dealt in part with his first question relating to the definition of serious harm. He asked me when the Government planned to publish other regulations and bring them into force. For example, he talked about housing associations, which are the responsibility of the Department of the Environment, and access to school records, which is the responsibility of the Department of Education and Science. I am sure that he would not expect me to comment on when these other Departments had plans to publish regulations, but I will ensure that the record of the debate is brought to the attention of my colleagues in those other Departments. The hon. Gentleman would not expect me, as a Health Minister, to do other than relate my remarks to the regulations dealing with social service departments.
The hon. Gentleman asked me about medical access. I hope that I gave the House a clear assurance about my proposed consultations with the medical profession. If progress is not immediately forthcoming, he asked me to set a timetable for that. I am loth to do so, except to assure him, and the hon. Member for Monklands, West who is equally interested in this subject, and to repeat the assurance I gave at the opening of this brief debate, that I take the matter seriously. Promises were given by my right
Column 950hon. and learned Friend the Parliamentary Secretary to the Treasury. I shall bring the matter to a successful and early conclusion.
The hon. Gentleman also asked me about the appeal mechanism. It is certainly true that appeals are made to a local authority, but there is a general right of any citizen to appeal under, or about, the regulations and how they are implemented to courts of law and to the local authority ombudsman. The hon. Gentleman recognised that and pointed that out. This is not a right of appeal to, so to speak, an internal committee of the local authority. It is not the end of the road of an individual's right to appeal.
The hon. Gentleman asked about double charging. I think he has a point, although it may be theoretical rather than practical. I shall reflect on it. Social security departments are not obliged to charge for access to computer records under the Data Protection Act 1984. The hon. Gentleman has drawn my attention to a potential anomaly which I shall certainly reflect on--
It being one and a half hours after the commencement of proceedings on the Motion, Madam Deputy Speaker-- put the Question, pursuant to Standing Order No. 14 (Exempted Business).
The House divided : Ayes 72, Noes 1.
Division No. 83] [1.38 am
Barnes, Harry (Derbyshire NE)
Beith, A. J.
Bennett, A. F. (D'nt'n & R'dish)
Bennett, Nicholas (Pembroke)
Brooke, Rt Hon Peter
Bruce, Malcolm (Gordon)
Carlisle, John, (Luton N)
Coombs, Anthony (Wyre F'rest)
Coombs, Simon (Swindon)
Davies, Q. (Stamf'd & Spald'g)
Davis, David (Boothferry)
Fishburn, John Dudley
Griffiths, Peter (Portsmouth N)
Gummer, Rt Hon John Selwyn
Howarth, Alan (Strat'd-on-A)
Howarth, G. (Cannock & B'wd)
Hughes, Robert G. (Harrow W)
Hunt, David (Wirral W)
Hunt, John (Ravensbourne)
King, Roger (B'ham N'thfield)
Lee, John (Pendle)
McNair-Wilson, Sir Michael
Moynihan, Hon Colin
Porter, David (Waveney)
Shaw, David (Dover)
Shaw, Sir Michael (Scarb')
Shepherd, Colin (Hereford)
Skeet, Sir Trevor
Stradling Thomas, Sir John
Taylor, Ian (Esher)
Taylor, Teddy (S'end E)
Thompson, Patrick (Norwich N)
Twinn, Dr Ian
Waddington, Rt Hon David
Wardle, Charles (Bexhill)
Tellers for the Ayes :
Mr. Kenneth Carlisle and
Mr. John M. Taylor.
Tellers for the Noes :
Mr. Bob Cryer and
Mr. Dennis Skinner.