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Clause 36

Confidentiality of Personal Information

6.30 pm

Julia Goldsworthy: I beg to move amendment No. 40, in page 14, line 40, at end insert—

‘(1A) Personal information under subsection (1) shall not be used except in relation to the exercise of any of the functions of the Board and the National Statistician.’.

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Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments:

No. 41, in page 14, line 40, at end insert—

‘(1A) Personal data may be disclosed by the National Statistician under subsection (1)—

(a) to approved researchers;

(b) to other authorities for uses consistent with the functions of the Board and the National Statistician under the provisions of sections 48 to 50;

(c) with the consent of the person to whom it relates;

(d) under a community obligation for statistical purposes; and

(e) to service providers under the provisions of section 38.’.

No. 24, in page 15, line 12, at end insert

‘and only where the information is being made available for statistical purposes’.

Government amendments Nos. 60, 27 and 61.

Julia Goldsworthy: Once again, we are trying to be helpful with these amendments. We believe in the principle that individuals and companies must have absolute confidence that any information they provide when national statistics are collected will not be used in a way that is disadvantageous to them. Consequently, all those who receive and manipulate the data must be governed by the same set of rules.

The Royal Statistical Society has raised concerns that, as drafted, the Bill fails to provide effective protection to confidential information or to ensure that anyone who discloses or uses such information unlawfully is subject to clear penalties. Moreover, Len Cook, the former National Statistician, has said that there is no consistent protection of individual records at the moment. For example, household survey records are not protected by existing legislation such as the Census Act 1920 or the Statistics of Trade Act 1947. In many areas, the confidentiality of personal information is protected only by custom and practice. The amendments would rectify that.

Amendment No. 40 makes it explicit that personal information should be used only

The amendment therefore specifies how the information must be used, and how it must not. Amendment No. 41 deals with how personal data are disclosed by the National Statistician under clause 36(1). It ties in with other clauses to achieve consistency throughout.

In principle, we think that there are great advantages to sharing as much data as possible, but people need to be confident that the information will not be abused. The amendments pay attention to the experience in Canada, whose chief statistician gave evidence to the Treasury Committee. He explained that the Canadian Statistics Act gave Statistics Canada unrestricted access to all administrative records held at any level of Government and any organisation. However, he also said:

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The Government amendments propose some reasonable exceptions in relation to court access to information.

Mr. Charles Walker (Broxbourne) (Con): Will the hon. Lady explain what type of personal information is covered by the amendment?

Julia Goldsworthy: As Len Cook has said, the problem is that there is no consistency about how information can be used. For example, personal information provided to the census is covered quite robustly, but survey data are not.

Government amendment No. 61 exempts the intelligence services from the provisions in the Bill, but that is a very narrow area. Our amendments are a constructive attempt to remove ambiguity. People must be certain that the information that they provide will be kept confidential. If the Bill is clear about how that data can be used, and how such data absolutely cannot be used, it will help to build public confidence in our system of statistics, and data can be employed in a more useful way.

Mr. Mark Hoban (Fareham) (Con): I rise to speak to amendment No. 24, which picks up the theme raised by the hon. Member for Falmouth and Camborne (Julia Goldsworthy) about the need to safeguard the confidentiality of personal data supplied in a variety of forms to the board.

Clause 36 sets out the parameters for the disclosure of personal information supplied to the board. It does so by creating the general presumption that such information cannot be disclosed, and then by setting out, in subsection (4), the circumstances where it can. The first such exemption, in subsection (4)(a), is where there is a legislative requirement that permits or enables personal information to be provided to others. Our amendment No. 24 would limit the data that could be accessed by other Departments to information that had been made available for statistical purposes. Therefore, data supplied through surveys for statistics put together by the ONS board could be used by others only for the same purposes.

One of the reasons behind the Bill is to promote the integrity of statistical data. If people believe that information can be shared generally with Government Departments, they may choose not to complete statistical returns. That will undermine the completeness of the data set, and the quality of the statistics produced by the ONS board.

There are precedents for amendment No. 24. For example, clauses 40 and 41 deal with NHS registration data, which are supplied to the board on the understanding set out in subsection (5) of those two clauses. They state that the data

That gives us a precedent that we can follow in relation to other data.

The hon. Member for Falmouth and Camborne said that much personal information is protected only by custom and practice. The ONS code of practice in respect of the confidentiality of statistics includes a commitment that the

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However, the code of practice contains the following caveat:

Clause 36(4)(e) refers to a court order, but legislation has led to the disclosure of information in other circumstances. Annexe A to the protocol on data protection and confidentiality contains a list of a dozen fairly wide exemptions to the prohibition on release. For example, on census data, exemptions relate to census records that are more than 100 years old and to prosecutions under the Census Act 1920. There are specific and well-defined exemptions to the prohibition on sharing personal information.

My concern, however, is that clause 36(4)(a) will open up the scope for wider sharing of confidential personal information to other parts of the Government and go beyond the exemptions set out in the protocol on data protection and confidentiality. It would be helpful if the Minister explained whether there is any intention to share data beyond the categories set out in the protocol. It is important that we follow, where we can, the precedents set in clauses 40 and 41, to give people who complete surveys confidence that their data will remain confidential except in limited circumstances, principally related to statistical purposes. If we do not provide that safeguard, there will be erosion of people’s trust that the data they supply will remain confidential, which in the long term could undermine the completeness and quality of official statistics.

Rob Marris: Survey data have been mentioned by several Members, including the hon. Gentleman and the hon. Member for Falmouth and Camborne (Julia Goldsworthy). Are not such data covered by clause 36(1), which gives a blanket block on release, subject to some of the other provisions of the clause? Surely an individual’s information would be protected.

Mr. Hoban: The hon. Gentleman raises an interesting point, but the devil is in the detail. Subsection (4) lists the exemptions to the general prohibition and my concern is that paragraph (a) in that subsection is sufficiently widely drafted that people will not have confidence that their data will be used only for statistical purposes. Our amendment No. 24 would narrow the scope of the provisions and replicate the existing restrictions under clauses 40 and 41. The hon. Gentleman is right about the broad principle, but I am concerned that the exemptions could be used to promote or enable more data sharing.

Rob Marris rose—

Mr. Hoban: The hon. Gentleman is poised to intervene again, so I shall give way.

Rob Marris: My thanks to the hon. Gentleman.

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My understanding is that existing legislation is already covered by clause 36(4)(a), but that proposed legislation for additional exceptions would be a matter for Parliament at the time. When considering such legislation, it would be for Parliament to decide whether to allow further exemptions on to the statute book. Historically acquired exemptions are already set in statute; future exemptions would be debated in Parliament if and when they were proposed.

Mr. Hoban: The hon. Gentleman makes a valid point, but this is our once in a generation opportunity to legislate on statistics. In other Bills that permitted data sharing, my proposal would be the sort of provision that gets tucked away at the end and rarely has proper scrutiny in the House. The Bill is valuable because it codifies existing custom and practice on confidentiality, so it is important to take this opportunity to make clear how we expect data to be used.

I turn now to Government amendments Nos. 60 and 61, which the Financial Secretary will address in some detail. It is rather difficult to make comments about them before hearing his speech, but given the way our debates are structured there is no other choice. I understand that the intention behind the amendments is to continue the current practice whereby the intelligence service has access to information from the ONS. I have some questions for the hon. Gentleman about the continuation of that access and whether we need amendments Nos. 60 and 61.

6.45 pm

Given that clause 36(4)(e) permits the sharing of personal data when there is a court order and that (4)(f) enables the statistician to release data for the purposes of criminal investigation, are those powers not sufficient to enable the sharing of the data required by the intelligence services without the amendments that the Government propose? Secondly, within the constraints of the debate, will the Minister tell us what type of data is currently being accessed by the intelligence services? I realise that the issue is sensitive, but it would be helpful to know what he intends the provisions to cover. Is there any intention to broaden the type of personal information currently shared?

What protocols cover information passed to the intelligence services, and will they remain after the Bill gains Royal Assent? There must already be a process governing the sharing of data between the ONS and the intelligence services. Can the National Statistician veto the supply of information to the intelligence services? Will she be able to do so when the Bill has been enacted? One gets the impression that she can do so under the existing protocol. It is important that the Minister clarify, where possible, why the amendments are needed.

The thrust behind amendment No. 24 and the concerns raised about amendments Nos. 60 and 61 are to ensure that we have adequate controls on the confidentiality of data and that any changes made under the Bill do not weaken it, thus leading to survey respondents and others doubting the continuing confidentiality of that information.

John Healey: This group of amendments relates to the confidentiality and data-sharing provisions of the
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Bill. As I said in Committee, the confidentiality clause works with the data-sharing provisions later in the Bill—at clause 44 and subsequently—to ensure, first, that existing data flows can continue; secondly, that specific exemptions can be granted, subject to strict safeguards; and, thirdly, that there are stronger sanctions for disclosure than at present, so that breaches of confidential information obligations will be punishable by up to two years’ imprisonment. The clause balances the need for flexibility in future data sharing and the need to protect the basis on which any personal data might be used by the board.

Before turning to the amendments tabled by the Opposition, I beg to move amendments Nos. 27, 60 and 61—

Madam Deputy Speaker (Sylvia Heal): Order. I remind the Minister that at this juncture we do not require him to move those amendments. That will be necessary in a few minutes’ time.

John Healey: I beg your pardon, Madam Deputy Speaker. I meant to say that I wanted to speak to amendments Nos. 27, 60 and 61 before turning to the amendments tabled by Opposition Members.

Amendments Nos. 60 and 61 permit disclosure of personal data by the board to the Security Service, the Secret Intelligence Service and GCHQ in the interests of national security. In effect, that replicates the current position, which is understood and accepted to be that where the intelligence services can make a principled case for access to information—in cases where there is no specific statutory bar on disclosure of the information—restrictions on disclosure could be overridden in the public interest. The current position could not continue without our amendments, because the Bill does what it is designed to do; it tightens the provisions for data sharing, allowing the board in future to consider disclosure only in the specific circumstances set out in the exceptions under clause 36(4).

If clause 36 remained as currently drafted, the board could face a criminal prosecution if it made a disclosure in the interests of national security. Amendment No. 60 will ensure that the statistics board is not restricted in making a disclosure to the security services in the future, should that be regarded as necessary for the purposes of the national security.

I recognise that the amendment may raise questions and I apologise to the House for its being tabled on Report, rather than being part of the Bill’s consideration in Committee. We have spent a considerable time ensuring that we adopt the right and proportionate approach. The hon. Member for Fareham (Mr. Hoban) asked whether paragraphs (e) and (f) of clause 36(4) cover the needs in such circumstances. The intelligence services have pointed out that the criminal investigations exception, for instance, does not permit the sharing of information by the board in circumstances in which there may be a need to identify potential suspects following a tip-off that does not in itself provide sufficient grounds to launch a criminal investigation. Given that there is already an exemption for criminal investigations or proceedings in clause 36(4)(f) and the fact that ONS can at present make disclosures for the purposes of national security if a good enough case is made, it is difficult to argue that national security disclosures should not be permitted.

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Let me make a couple of other points that I hope the hon. Gentleman and other hon. Members will find helpful. There is a process that means that the ONS currently, and the board in future, will be in a position to decide not to disclose information. I hope that the points that I will make will help to settle any wider concerns that there may be. First, the amendment will allow, and not compel, disclosure by the board. There would be a discretionary gateway under which the board would be free to disclose information, if it was satisfied the disclosure fell within the terms of the Bill. Secondly, in practice, as would happen now if ONS were to receive such a request, the intelligence services would have to make the case for disclosure and the board would have to consider the matter on a case-by-case basis. Thirdly, it would be for the board to decide whether a particular disclosure was permissible under the Bill. I can therefore assure the House that the provision would not give the intelligence services the ability to go on a general fishing trip. The onus would be on the intelligence services to demonstrate their case. We expect that, in practice, they would need to submit a business case to the board to support each disclosure request, just as they, and criminal investigators or police authorities, would do now if they wanted such information.

Furthermore, I can assure the House that the amendment is considered compatible with the Human Rights Act 1998. Although it may engage article 8—the right to privacy article—of the European convention on human rights, because it provides the discretion to disclose information to the intelligence services, any interference can be considered justified under paragraph 2 of that article. Any disclosure that occurred could be justified as being in accordance with the law and necessary in a democratic society for a legitimate aim. May I turn to amendment No. 27?

Rob Marris: An excellent amendment.

John Healey: I am glad that my hon. Friend is in his place. This is what I call the Marris amendment. It responds to a point that my hon. Friend made in Committee. He suggested, to some dismay in the parliamentary counsel offices, that clause 36 was “infelicitously worded” and that we could helpfully consider clarifying subsection (5). I am pleased to offer the amendment as a way of tidying up what he spotted in the Bill. His concern may not be immediately clear to the rest of the House, so I should explain that the subsection as it stands states, that an

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