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Norman Baker:
Occasionally, public authorities err on the side of caution, but that occurs less often. The sadness of the Bill, which must be corrected by the
amendments that I tabled with other hon. Members, is that people are beginning to understand the situation. The slightly complex relationship between freedom of information and data protection is now being grasped by public authorities, and the number of occasions on which they err on the side of caution has diminished. It would be a tragedy to throw that up in the air and rewrite arrangements that are working quite well.
May I deal in detail with the concept of amendment No 2, which seeks to leave out subsection (3) of clause 1 and would ensure that communications by a Member of Parliament with a public authority are not exempted, as the Bill proposes? It is important to deal with that, as reference was made to it in Committee. Even if we are careful with correspondence as Members of Parliament, the argument goes, we could write to a public authority on a constituent’s behalf and it could release that information about our constituent. That is the thrust of argument in the Bill even though, as we know, the measure goes much wider than that. It is proper to ask whether or not occasions arise on which correspondence is released inappropriately by a public authority with the say-so or approval of a Member of Parliament. I have to say that I am not convinced that that is the case.
Dealing first with issues directly related to amendment No. 2 that do not involve constituents but a general exchange of correspondence between a Member of Parliament and a public authority, the Bill as drafted would include a new exemption to cover all communications between a Member of Parliament and a public authority. The justification for that is partly that it would protect MPs’ correspondence. It is worth pointing out that the exemption for personal data in section 40(2) of the 2000 Act protects information about any identifiable individual, the disclosure of which would breach the Data Protection Act 1998. In practice, that protects any information relating to an individual’s medical condition, housing or social services needs, entitlement to pension or benefits, education, immigration status, criminal record, relations with the police or probation service and similar matters. All those matters are already protected under the 1998 Act, so information cannot be released about them. Given that the existing law seems to be working pretty well, there is no need to try to change it.
The mere fact that a Member of Parliament had written to a public authority on behalf of a constituent, even in the absence of other information about that constituent, would in itself be personal data about the constituent, the disclosure of which would breach the 1998 Act, so that protection is already there. If public authorities are being cavalier in the way they approach this matter—I have seen no evidence of that—the remedy is there in law, because such behaviour can be dealt with under the 1998 Act. The promoter of the Bill seems to be arguing that a law that already exists and achieves what he wants to achieve is not working—although we have seen no evidence of that—so the remedy is to get another law, which presumably would not work either, to deal with the same thing. If there was a problem—I do not know of one—as regards correspondence and other material of a sensitive nature being released, the matter is already
protected by law, and the answer would not be to enact more legislation but to improve the advice and training given to those who deal with data protection issues in public authorities. The Information Commissioner has told the Campaign for Freedom of Information that he has received no complaints, from anywhere in the country, from any source, about the improper release of personal information, either from MPs or constituents. I would suggest, for example, that had a constituent with a sensitive medical problem found that information to be in the public domain—in the local press or whatever—there would certainly have been a complaint about it. People are not afraid to come forward and make a complaint to an authority when they feel that their rights and privacy have been abused. There are frequent complaints about intrusions from the press, for example, and they are published on a quarterly basis, yet no complaints have been given to the Information Commissioner about the improper release of personal information from MPs or constituents.
The Information Commissioner, for whom I have a high regard, is a very active person who takes his job very seriously. His staff work effectively. I am sure that had complaints come in they would have been recorded and acted upon, and he would have produced recommendations for this House to say that there is a problem with the law—that there is a gaping hole and information is seeping out. But no such report has been received. He has found nothing wrong with the present law—he has had no complaints—so why should we want to change it? What we need is to change the Bill by adopting the amendments, which would ensure that the present satisfactory arrangements continue.
Simon Hughes: Amendments were moved by the right hon. Member for Penrith and The Border (David Maclean), whose Bill this is, in Committee a couple of months ago. The issue was flagged up, and several Committee members said that there was a theoretical problem. Since that Committee debate, has my hon. Friend received any representations that suggest that the Bill is more necessary as it is than it would be if the amendments were agreed to?
Norman Baker: As my hon. Friend says, the issue has been flagged up since the Committee stage. Those promoting the Bill were made aware of the need to ensure that active cases were brought forward. Nobody in this House, and I include myself, is unsympathetic to the stated objective of the promoter of the Bill. If there were genuinely a problem about constituents’ correspondence, I, for one—and every other Member would be the same—would want to deal with that.
The challenge has been put down for someone to give examples of when things have gone wrong, but none has been forthcoming. I shall deal with one or two theoretical examples that were given in Committee, but they do not stack up. There have been no actual examples of anything that has gone wrong. The Bill is seeking a purpose; the purpose of the amendments is to ensure that this purposeless Bill, in so far as it relates to MPs’ correspondence with public authorities and constituents, goes no further.
The only foreseeable circumstances in which such information about a private citizen might legitimately
be disclosed would come if the individual concerned gave their consent, or if all the information concerned was already in the public domain—for example, if the individual had taken it to the press to run a campaign for a particular purpose. In such a case, the information would of course be in the public domain, but the Bill would not deal in any way with such a matter. Obviously, if the individual gave permission for information to be in the public domain, or to be passed to a public authority, they would quite properly have been entitled to do so. Again, nothing in the Bill deals with that circumstance.
Those are the circumstances of which I am aware in which information about individuals would come into the public domain. There have been such issues in my constituency, of which I can speak personally. It may be useful to give one example; I speak for myself, although I am not at all unique among MPs in how I approach such matters. My example has been in the public press, which is why I wish to talk about it. It concerns a young constituent of mine, in his 30s, who was losing his sight. Moorfields eye hospital would not make available to him the drug that he required for his sight to be retained. Representatives of the hospital said that they were not sure whether it would work; he said, “I will definitely lose my eyesight if I am not given the drug. I want to try it.”
The case involved correspondence over a lengthy period between the hospital and me—and, indeed, a health Minister and me. All the correspondence was dealt with properly, behind closed doors; proper confidentiality was observed. There was no question of data protection being abused. The matter became public, not because Moorfields released the information by accident or because the Government Department or some other public body released my information that included my constituent’s details but only because my constituent expressly asked me whether I would make it so to force the case with Moorfields eye hospital.
All Members of Parliament have stories of that nature, and I do not believe that we have fallen foul of the present arrangements. When we arrive in this place, we all know, as if it were instinctive and in our bloodstreams, that we must treat with respect and sensitivity issues raised with us by constituents. We all know that; we do not need to be told, nor do we need a Bill to reinforce the point—let alone the damage that the Bill would cause. I shall come to that.
I turn to the issue of public authorities. Correspondence between an MP and a public authority about an individual constituent would normally also be exempt under section 41 of the 2000 Act, which applies to information whose disclosure would be an “actionable breach of confidence”. The exemption applies when the information involved, first, is not publicly accessible, secondly, is supplied in confidence—either explicitly or implicitly—and, thirdly, is likely to cause some detriment to the confider if disclosed.
Mr. Winnick:
When we debated the 2000 Act, we found section 42 essential because so much of our correspondence concerns constituents. We want to protect individuals’ confidentiality. When we write to the authorities about matters arising from constituents’
correspondence, the information must be confidential. That was the reason for including section 42 in the Act. There is no justification for arguing that it is being undermined.
1.45 pm
Norman Baker: The hon. Gentleman is right. To be fair to the Government, for those responsible for drafting parliamentary legislation and those who scrutinised the Freedom of Information Act 2000 and the Data Protection Act 1998, such issues were central to their thoughts. They are the bread and butter of our job and we give them proper consideration. No problem has arisen.
In Committee, the promoter said:
“Clearly if one writes to a public authority and gives the personal details of a constituent, such as their CSA claim, information relating to their children and so on, that information should be protected. It should quite clearly be protected under the current Act.”
That is my point, with which the promoter agrees. He continued:
“However, inadvertently, someone may release it. This measure would remove that small problem.”—[ Official Report, Freedom of Information (Amendment) Public Bill Committee, 7 February 2007; c.7.]
If the Act already protects the information, an offence is committed if it is released. If a further Bill is drafted, it will only create a further offence. It will not prevent the information from being released.
There is an idea in Parliament—and sometimes more generally—that everything can be sorted out only by passing laws. That is not the case. Things are sorted out through advice, information dissemination and training. It does not come down to more legislation. The legislation already exists. Murder is a criminal offence. It still happens, but we do not introduce another Bill to outlaw murder. It is already an offence. The problem is not the legislation but its enforcement.
Simon Hughes: The hon. Member for Walsall, North (Mr. Winnick) referred to section 42 of the 2000 Act. Part 2—from section 21 to section 44—is intended to cover all the cases where disclosure would be unhelpful, wrong, unprincipled and inappropriate. Reasons include national security and helping to catch criminals. A raft of matters was carefully considered and included.
Norman Baker: Indeed. Some of us may believe that the 2000 Act contained too many exemptions. The Act that was passed was but a pale shadow of the White Paper that David Clark, the then Minister, produced. He became the first Minister to be sacked for implementing his party’s manifesto. Nevertheless, the 2000 Act is full of exemptions and covers the concerns that hon. Members who have not examined the facts might legitimately have.
The correspondence of Members of Parliament with a public authority about a constituent’s personal affairs is normally protected by the exemptions to which I referred. They include: matters that are not publicly accessible; information that is supplied in confidence, and information that is likely to cause detriment to the confider if disclosed.
Even if correspondence is not marked “confidential”, the nature of the relationship between a Member of Parliament and his or her constituent, and of a Member of Parliament with a public authority, establishes an implicit expectation of confidentiality that the courts recognise. Everyone accepts the confidentiality of such correspondence—it is one of the most commonly understood matters in our conduct of public affairs. When constituents write to us, they sometimes include the most personal details. They expect their problem to be treated confidentially. One or two may write, “Will you please treat this confidentially”, but most do not because they know that that is the way in which we deal with our correspondence. It is universally understood.
Similarly, if we write to a public authority about a constituent, we would not expect it to publish the letter and no public authority would think of doing so. An implicit understanding has been built up over generations about the relationship of a Member of Parliament with his or her constituents and a Member of Parliament’s position in advocating and representing constituents and their concerns to a public authority. We do not need to meddle with that. It works well.
Simon Hughes: I have just one last linked point before my hon. Friend moves on. Does he agree that it is important to separate the need to protect information given to us in confidence so that we can take up a case on behalf of constituents from the issue of where a constituent—or anyone else—might want to access their own information? That is a linked issue in the debate, but a separate one. Sometimes people want to see information, though we or a public authority may not be so keen that they do. They must nevertheless have the right to see it if they want to.
Norman Baker: Of course they must. It was suggested in Committee that one of the consequences might be that individuals would ask for the release of information about themselves. They can do that already under the Data Protection Act 1998—and quite rightly so. Indeed, I have used that Act myself to access information held about me, including from the Government—and very interesting it was, too. That right already exists, so this is another misunderstanding of the terms of the Bill, which the amendments in the group are designed to correct.
In Committee, it was also suggested that information about potential criminal offences passed by an MP to the police might be at risk of disclosure. I believe that it was the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth) who made that suggestion. He said that
“if a constituent comes to me and says, for example, ‘The family at No. 60 are drug dealing,’ I make it a practice—and I am sure that I am not unique in this—to say, ‘I will pass that information on to the local police inspector, and I will not give your name or address, or mention the fact that we have had this conversation.’ That is important but, equally, drug dealers and individuals involved in low-level organised crime have the capacity to put two and two together. If they had access to privileged correspondence sent to a senior police officer, they could work out by a process of elimination who was in the frame.” ——[Official Report, Freedom of Information (Amendment) Public Bill Committee, 7 February 2007; c. 10.]
Individuals involved in low-level organised crime do have the capacity to put two and two together, as the right hon. Gentleman argued. Doubtless, he would argue against the amendments that are designed to negate that. In fact, such information is already protected from disclosure by no less than three additional exemptions in the legislation. There is thus a wide misunderstanding on the part of Members who say that they are in favour of this Bill about what the law already says. It already achieves a great deal of what the Bill’s proponents seek to achieve.
I am sure that many of us in the Chamber have followed the example of the case that I have just cited and passed information to the police. As I have explained, however, that is already protected. Why? First, because information whose disclosure is likely to prejudice
“the prevention or detection of crime”
“the apprehension or prosecution of offenders”
is exempt under section 31(1)(a) and (b). Secondly, because information held for the purpose of an investigation that could lead or could have led to criminal proceedings is exempt under section 30(1). Thirdly, because information relating to
“the obtaining of information from confidential sources”
is exempt under section 30(2)(b). Clearly, we are dealing with an Aunt Sally—a worry that we will not be able to tell police forces about suspected drug dealers—raised in Committee, which is absolute nonsense. We already tell police forces and we are already protected by the law as it stands in that regard.
In any event, public bodies such as police forces, NHS trusts, social services departments—indeed, all public authorities—and the devolved Administrations all take extreme care not to disclose personal data about the individuals they deal with. If there were shortcomings in the Act, which meant that such information was not properly protected, I am sure that it would have come to light by now. I am also sure that we would all have wanted on a cross-party basis to accept legislation that dealt with any problems that had arisen. No one is seeking to justify using information from constituents in an inappropriate way. No one wants to do that. The difference between those who propose the Bill and those who propose the amendments is that the latter do not believe that such misuse of data is happening. Until such time as we have information that demonstrates otherwise, it is difficult to support the Bill.
Mr. Winnick: Does the hon. Gentleman agree that, if there were many examples of the misuse of correspondence of Members of Parliament on behalf of their constituents, they would have built up over time into quite a dossier? That would then be dealt with by the House of Commons, and perhaps debated at Question Time. If such information were available—clearly it is not at the moment, to the best of my knowledge—there would be a case for looking at the Freedom of Information Act as it applies to Members of Parliament. But that would be in the future, and it would have to be based on evidence that would convince the majority of Members of Parliament that there was a case. At the moment, there is no such evidence.
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