|Draft Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2002
Yvette Cooper: I will try to respond to the points that have been raised during the debate. On the issue of the discussions with the Information Commissioner, I will try to set out what other information could be provided to hon. Members about data protection and the general implications for the work of elected representatives.
At the end of his remarks, the hon. Member for Somerton and Frome (Mr. Heath) talked about the duty of confidence, and at the beginning he talked about the NHS. Traditionally, a lot of the information that NHS health authorities hold is subject to a duty of confidence, because medical information is often held under the duty of confidence. The common law of confidence is unaffected by the draft order. Wherever an organisation holds personal data subject to a duty of confidence, it must not disclose that information, unless the individual has consented, or there is a legal obligation to disclose, or there is an overriding public interest in disclosure. The draft order does not change that position, and it is important that hon. Members are not misled about its impact.
Issues of consent often arise most strongly in connection with health matters, which relate to the NHS. My experience of constituency work suggests that those issues will continue to arise. The provisions on confidence have not been affected the Data Protection Act, because they were already in place, and they will continue to be so. In cases that involve medical information and the NHS, it is right that the
Column Number: 012duty of confidence applies, and we must recognise that in the way we work.
In the draft order, we had to avoid some additional problems and constraints that had been raised by the introduction of the Data Protection Act. The hon. Gentleman referred to the phrase:
I think that he was asking whether or not a local councillor, for example, could write to a national organisation, such as the Child Support Agency. Because councillors are local representatives dealing primarily with council issues, can they take up a case with a national jurisdiction or impact? My interpretation of the draft order is that they could take up such cases and pursue them as elected representatives, even if that meant writing to organisations such as the Child Support Agency. That should certainly be covered by the order.
The draft order is designed to prevent the type of case in which, for example, someone who has received a letter in his or her capacity as a Member of Parliament or councillor uses the information for a personal issue. It is hard to think of an example off the top of my head, but the information might be useful to the representative in some area of his or her personal life. The order would ensure that representatives take action on behalf of their constituents, rather than expecting disclosure on the basis of some other personal representation.
I spent a lot of time considering the points that the hon. Gentleman raised about safeguards for third party consent. I agree with him that much stronger safeguards are needed in respect of third party data. Often, the cases that come to as Members of Parliament relate to disputes between members of a family. One member of the family may want information about another member that the other member does not want to give and therefore withholds. Those are sometimes the most difficult and sensitive cases to deal with.
The hon. Gentleman is also right that the judgment about what is reasonable or unreasonable may in the end come down to the Information Commissioner, who is charged with the interpretation and enforcement of the Act. Sometimes, in the most sensitive cases, the information will also be protected by the duty of confidence, so the Act only provides an added layer of protection. All the safeguards and protection provided by the duty of confidence will continue to have effect.
The hon. Gentleman asked about the situations in which the data controller could not reasonably be expected to seek the third party's explicit consent. It would be unreasonable not to seek consent if someone lived in another part of the country, for example, because it would be easy to send a letter or give that person a ring. It is clearly reasonable to contact someone for his or her explicit consent in such a circumstance. However, it might not be reasonable when there was a very tight deadline and something had to be done very quickly.
In one case I encountered, I was contacted by the family and friends of a person who was stuck in a
Column Number: 013difficult situation: a violent incident had occurred while he was travelling abroad, and he could not get home. To seek his explicit consent in those circumstances would clearly have been impossible and unreasonable. I raised his case with the Foreign Office, and we tried to make contact with him to help him to get back home. In the circumstances, given the action that I needed to take on his behalf as his representative and as the elected representative of his friends and family, it would clearly have been unreasonable to expect me to seek explicit consent from him for any of the measures that I needed to take or the information that I needed on his whereabouts and how to get him home.
The hon. Gentleman referred to the situation in which another person's interests are at stake and explicit consent has been unreasonably refused. On this matter, I shall keep talking long enough for the officials to pass me a note-[Laughter.] I believe that the matter was raised by the Information Commissioner, who was concerned that there might be cases in which a clear conflict of interest arose. Someone might require information in their own interests-perhaps even a life or death interest-but a third party had unreasonably held their consent. The example that the officials have given me relates to a person in full-time employment who is having difficulty in coping with an aged mother or another relative because of that relative's health problems-perhaps problems of physical or mental health.
Mr. Hawkins: My intervention might allow time for the note to come to the Minister, but I have a genuine reason to intervene. The Minister has reminded me of another example, and it might help the Committee and officials to be aware of it.
My hon. Friend the Member for Uxbridge (Mr. Randall) and I have recently worked on a case involving a constituent of his who is the daughter of a couple who live in my constituency. The daughter is a long-standing sufferer from mental illness. She has a long-running dispute with the local authority in my hon. Friend's constituency, and her parents are concerned. She lives on a canal-boat, and my hon. Friend is having difficulty in getting proper instructions from her even though she is his constituent. We have agreed to deal with the problem so that I pass on lots of information from the parents to help him to pursue matters with his local authority, with which he has of course established contact.
The situation is the same as those under discussion. It would be difficult for my hon. Friend to get explicit consent, if it were required, from someone suffering from mental illness who lives in the unusual situation of a canal-boat that moves about a river. I hope that that example is helpful.
Yvette Cooper: It is an interesting example, and suggests the complexity of the cases with which we often deal. Perhaps the hon. Gentleman's case would be covered by the measure, because certain circumstances are covered by the provision on third parties who are not able to give explicit consent-perhaps because mental health problems are involved.
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The case that the officials have suggested is of a woman who has a relative-her mother-living with her and who is having problems. The daughter asks social services to help, and has problems dealing with them. She asks a councillor to intervene, but the mother will not give explicit consent for that because she thinks that her daughter should look after her. That case involves the interests of both the mother and the daughter, who is being placed in a relationship of obligation to the mother. Where social services have to take complex family circumstances into account, the question is whether councillors can make representations or pursue the case in any way, or whether they will be hampered from pursuing the case at all. The situation is difficult, and not as clear-cut as suggested.
Mr. Heath: The hon. Lady is trying to make a very difficult case, and I accept that the matter is complex. Listening to that example only confirms my view of how complex it is, as I would have thought that the council was acting entirely properly in support of one party to the dispute, but would not have any right to information reasonably withheld by the other. It would be for the social services department to decide the correct course of action. I am not sure that that was an entirely watertight explanation of circumstances in which consent was unreasonably withheld, but I am sure that there are such cases; we simply have not found them yet.
Yvette Cooper: I agree-I do not think that the example is clear-cut at all. We have all dealt with situations in which it was perfectly reasonable for one member of a family to refuse, even when the case was quite complex and involved more than one party.
In the end, it will always be a matter of judgment, but whose judgment should apply? The first judgment to be called on is that of the elected representative in pursuing it in the first place, in what questions they ask, and on whose behalf they ask them. The second judgment call comes on the part of the organisation responsible, such as the social services department. I agree with the hon. Gentleman, in that one can imagine circumstances in which the social services department, knowing the full circumstances of a case, might reasonably choose to withhold information about one of the parties in the case.
The third judgment is that of the Information Commissioner if the case is questioned or contested. By containing provisions about that, the draft order allows for the possibility of circumstances in which one party's interests might be extremely strong and another party has unreasonably withheld information that might have huge material impact on the other person. As drafted, the Data Protection Act would put additional barriers in the way of such cases being pursued, but I would be reluctant to give guidance in Committee to the Information Commissioner about how we should pursue them. As the hon. Gentleman rightly says, it is difficult to find clear examples with which we would all be happy.
I shall say simply that judgment is required, and we ought to allow that judgment to be exercised rather than continue the current position in which it would not be possible to pursue cases involving a huge
Column Number: 015conflict of interests if someone had unreasonably decided that they did not want any of their personal data disclosed, even though that would have a huge material impact on another person. To exclude all those cases from the scope of the draft order would not be right.
However, I agree that the subject is delicate, so perhaps we should discuss keeping an eye on it with the Information Commissioner. We will give the matter thought in future if we think that it is not being handled appropriately, that it is causing problems in the other direction, or that constituents and other people feel that their privacy is being affected unreasonably by the order. I would not want that to be the case in any way. In many cases, people have a legitimate expectation that their privacy should be respected where they have not given their consent.
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I hope that hon. Members are satisfied with that. I realise that the explanation is quite complex, but the issues are complex because, unfortunately, the cases with which we Members of Parliament and other elected representatives deal are often incredibly complicated and have a huge number of people's interests intertwined. I hope that everyone accepts that our response to the problem has been proportionate. We should keep the matter under review to ensure that we have the balance right.
Question put and agreed to.
Committee rose at eighteen minutes past Five o'clock.
The following Members attended the Committee:
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