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Mr. David Hinchliffe (Wakefield) (Lab): I have listened carefully to the hon. Gentleman's comments on databases. Obviously, I was not privy to discussions in Committee, but I have followed carefully his arguments on Second Reading and this afternoon. Do I understand him correctly in assuming that he is arguing that there
 
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should be a London-wide database and regional databases—such as one in west Yorkshire, for example—but not a national database? If so, what assumption is he making about the lack of mobility of families? The database that he suggests would not cover somebody moving from London to Leeds, but in my experience that happens quite regularly.

Tim Loughton: The hon. Gentleman is absolutely right, which is why I have been suggesting exactly the reverse throughout proceedings on the Bill. We are in favour of local databases that join up local professionals and which would probably come under the aegis of the director of children's services. We need greater clarification of how that information would be submitted and acted on, and at what point an intervention by social workers would be triggered. I am in favour of that for vulnerable children, such as those on the at-risk register and those who are looked after.

For exactly the reasons mentioned by the hon. Gentleman, I am also in favour of a national database—information for which would be passed from authorities that flag up children on their own databases. The most vulnerable children are usually the most mobile. A child on the radar of Newcastle social services who disappears and ends up in Brighton would need to be the subject of a central exchange of information, so that the social services director in Brighton could check on a national database for any form. The decision on whether intervention should occur should be left to the relevant authorities in the area where the child resides, with or without parents. We absolutely need a national database, but 11.5 million children do not need to be on it. We must concentrate on the most vulnerable children, to whom the most resources should be devoted. That is the great difference between us.

Clause 12 is very important and we shall certainly be pressing our amendments to the vote unless we receive some severe assurances from the Minister.

Harry Cohen (Leyton and Wanstead) (Lab): I wish the Minister well with the Bill. Children need the protection afforded by this legislation. There have been too many horror stories of the system failing to co-ordinate the activities of professionals and children have been killed or abused as a consequence. However, there needs to be augmented protection of individuals from Ministers taking sweeping powers in establishing one or several information databases, which could interfere with private and family life—which, after all, is protected under article 8 of the United Nations convention on human rights. Therefore, my sole intervention on proceedings on this Bill is the tabling of new clause 16, which would go a long way to addressing the concerns expressed by the Joint Committee on Human Rights. The Committee warned of the human rights problem in paragraph 109 of its 19th report, which states:

Another reason why the Minister should accept my new clause is that she may have been misdirected a little by her officials' analysis of the Data Protection Act 1998.
 
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For instance, in her written evidence to the Joint Committee, published in the Committee's report on page 24, in reply to the question:

she said:

To my mind, that answer is clearly wrong, as clause 12 contains a host of special arrangements such as the wide-ranging ministerial powers that can be used to neutralise the data protection principles.

Let me give a background example to show why subsections (2) and (3) of new clause 16 are needed. In Scotland, the collection of dates of birth on the poll tax form was not deemed excessive because it was prescribed in regulations. In England and Wales, a tribunal ruled that it was excessive, because there was no need to collect everybody's date of birth. That did not conform with the data protection principles. That is what happened in England and Wales when the Data Protection Act applied. In Scotland, the opposite happened under ministerial regulations. Therefore, statutory prescription specifically weakened the privacy protection afforded by the Act, and I think that the same will happen under this Bill.

In clause 12, we see statutory provisions that could weaken data protection principles. Under subsection (6)(a), the Secretary of State has the flexibility to specify personal data that could be excessive for the purpose, and that neutralises the third principle of the 1998 Act. Under subsection (6)(b) to (f), the Secretary of State has the flexibility to specify in regulations disclosures that could otherwise be incompatible with the purpose of collection, and that neutralises the second principle. Under subsection (6)(g), the Secretary of State has the flexibility to specify in regulations a long, or even infinite, period of retention of data, and that neutralises the fifth principle. Under subsection (6)(h), the Secretary of State has the flexibility to specify in regulations criteria that allow inaccurate or out-of-date personal data to be retained on the database, and that neutralises the fourth principle.

Under subsection (13)(a) to (c), the Secretary of State can specify a level of security that is lower than the appropriate managerial level, and that neutralises the seventh principle. Under subsection (13)(d), the Secretary of State can transfer data abroad, outside the European economic area, and that neutralises the eighth principle.

In effect, the Bill gives the Minister control over how virtually all the data protection principles apply to personal data. The Information Commissioner cannot effectively enforce the principles if the Minister has used her powers in a way that degrades the protection afforded by each principle.

It will not be satisfactory for the Minister to give reassurance about consultation with the Information Commissioner. The point that I am raising is that there is no counterbalance in the Bill to stop any future Minister using the powers to set aside or degrade the protection afforded by the data protection principles.
 
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That is why, when the Minister told the Joint Committee that

I think that she is wrong. She is seeking powers that could be used to undermine any of the principles.

Subsections (2) and (3) of new clause 16 require the Secretary of State when issuing guidance or drafting regulations to allow time for the Information Commissioner to make representations on whether the protection afforded by the data protection principles or the protection in relation to data subjects is likely to be degraded. The Information Commissioner is also empowered to publish any relevant material that in his view shows degrading of the protection afforded by the Data Protection Act caused by a ministerial decision. That would also enable Parliament to be kept informed and have a debate if that was deemed necessary.

New clause 16(4) removes the Secretary of State's ability to override the right to object, which is granted in the Data Protection Act, and slightly to widen the right to object to meet the Joint Committee's concern. The right to object in the Act applies only in exceptional circumstances. There are two tests: the processing has to cause substantial distress and damage, and that distress and damage has to be unwarranted or unjustified. In many cases, there may be distress that is not substantial, or there may be distress but the processing is completely justifiable.

Such cases have been identified by the Joint Committee in paragraph 114 which states:

In paragraph 115, the Committee states:

My subsection dealing with the right to object meets the Committee's need for a safeguard, by removing the Secretary of State's ability to overrule the right to object. At present, it is a judicial process that determines whether there has been substantial distress and whether that processing should cease because it is unwarranted. In contested cases, it is the courts that determine the balance between the interests of those who run the information databases and those of the individual concerned. However, in this Bill the Minister is taking untrammelled powers to determine that her view will prevail. There is no balance there, and the proper judicial process should be reinstated.

New clause 16(5) requires any processing purpose of personal data under the Bill to be defined by regulations made under it. It basically negates an organisation processing personal data for a secondary purpose, even
 
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where that secondary purpose is authorised by other legislation. If the data are wanted for the secondary purpose, the Secretary of State's regulations should clearly say so. This is a major improvement. It limits processing purposes only to those identified under the Bill.

Subsection (6) amends the definition of personal data. That is necessary because the European Commission has sent the Government a 20-page infringement letter stating that the Data Protection Act 1998 is deficient and does not implement the data protection directive, 95/46/EC. Has the Minister seen that 20-page infringement letter? If so, has she taken it into account? If not, I cannot see how she can stand at the Dispatch Box talking about the protection of personal data when our UK Act is, according to the Commission, deficient in affording protection. As I said, powers are being enacted to override its already weak provisions anyway. My wide definition of personal data helps to resolve the matter and I ask hon. Members to support new clause 16 in that light.

3.30 pm


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