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Session 2007 - 08 Publications on the internet General Committee Debates Education and Skills Bill |
Education and Skills Bill |
The Committee consisted of the following Members:Nick
Walker, Tom Goldsmith, Committee
Clerks
attended the
Committee
Public Bill CommitteeTuesday 19 February 2008(Afternoon)[John Bercow in the Chair]Education and Skills BillClause 16Information:
supply by public
bodies
Amendment
proposed [this day]: No. 23, in
clause 16, page 8, line 44, at
end insert
(1A)
Information may only be supplied under subsection (1) if the relevant
person or body mentioned in subsection (2) regards the provision of the
information to be proportionate to the fulfilment of the aims of the
local education authority in the exercise of its functions under this
Part..[Mr.
Gibb.]
4
pm
Question
again proposed, That the amendment be
made.
No. 24, in
clause 16, page 8, line 44, at
end insert
(1A)
Information may only be supplied under subsection (1) if the local
education authority requesting the information regards the provision of
the information to be proportionate to the aims of the local education
authority in the exercise of its functions under this
Part..
No.
113, in
clause 62, page 34, line 5, at
end insert
(1A)
Information may only be supplied under subsection (1) if the request
for information is proportionate to the purpose of providing services
in pursuance of section 54 or
56(1)(b)..
The
Minister for Schools and Learners (Jim Knight):
I trust
that we are all refreshed after our short break. It might be helpful if
I began by addressing the two questions raised by the hon. Member for
Yeovil. He asked me, first, which provisions are currently available to
pre-16s and, secondly, whether data protection legislation applies to
data kept at home by employers. Section 120 of the Learning and Skills
Act 2000, which clause 62 replicates, already enables information
sharing for 13 to 19-year-olds and indeed, those up to the age of 25
with learning difficulties. That is a direct answer to a direct
question.
Jim
Knight:
I may as well answer the second
question, because the hon. Gentleman may well have a question about
that too. I am sure that there may be one or two hon. Members who have
computer data about their constituents at home or even on their mobile
phones. If anyone holds data about individuals which they use to
deliver a service or to carry out a business they would be
subject to data protection requirements. They would have to register,
and the law in respect of data protection would apply to
them.
Mr.
Laws:
On the first point, I hope that I am not confused,
but I thought the Minister said that these powers were available under
an earlier Act for 13 to 19-year-olds. Could he explain what he means
by that? How are they covered and why is this further extension
necessary?
Jim
Knight:
The clause is based on section 120 of the Learning
and Skills Act 2000, which enables public bodies to share information
on young people with Connexions. The information supplied may include
up-to-date information on 16 and 17-year-olds relating to their
education, training and areas of particular need, including health,
family, personal and social need, as well as changes in their
educational circumstances. The clause relates to the established system
that Connexions providers use, and it does not change or add to the
data that that system
holds.
We
want Connexions to have access to exactly the same information about
young people as it does at the moment. The clause meets the
requirements of the Data Protection Act 1998, and has been proven to do
so. Access to personal data will continue to be strictly controlled in
compliance with data protection laws. Without wishing to make a pun, I
hope that ending with the word laws satisfies the hon.
Member for
Yeovil.
As
I have set out in relation to previous clauses and in relation to this
clause, it is for every public body to satisfy itself that the extent
of the information it releases to local authorities and Connexions
service providers under the provisions is proportionate to the benefits
of increasing participation in education and training, and will enable
local authorities to be satisfied that when requesting information they
are acting proportionately. Without this provision we judge there to be
a significant risk that a greater number of young people would become
NEETnot in education, employment or trainingresulting
in the poor outcomes that are more prevalent in that
group.
It
might help if I set out briefly for the Committee the circumstances in
which disclosure of information will take place under the provisions.
In practice, the bulk of shared data moves from the local authority and
the learning and skills council to Connexions through secure transfer.
The other bodies listed would disclose information only on a
case-by-case basis, when the lead professional would call on the skills
of other agencies in the area to help resolve problems. For example,
the vast majority of data exchanges involving the police or youth
offending teamsconcerns were raised about that this
morningwould entail data going from that part of the criminal
justice system to Connexions, not vice versa. This is therefore very
much a matter of those bodies informing Connexions on a case-by-case
basis of what is going on in respect of certain individuals.
Data would be
shared verbally at a case conference or in a one-to-one meeting, either
face to face or by telephone. Where appropriate, notes taken by the
individual would then be entered on the client case load information
system. Details would routinely include the name and
contact details of other professionals dealing with the young person and
a brief summary of the issues that the young person was facing at the
time. Such entries are time bound and reviewed regularly. Connexions
personal advisers would make contact with that professional to ensure
that the circumstances had not changed and that the data were up to
date. I can assure the Committee that all information sharing would be
based on the young persons needs.
Mr.
Nick Gibb (Bognor Regis and Littlehampton) (Con): Why does
Connexions need such information to provide the service that it does to
young people?
Jim
Knight:
I am sure that the hon. Gentleman, as a reasonable
man, will understand that the fact that a young person had got into
trouble with the law or was working with the youth offending team would
be relevant information for a personal adviser considering the support
and advice that they needed. That is why it is appropriate that such
data sharing exists and, indeed, has existed quite successfully since
the 2000 Act came into force.
Mr.
Laws:
I am grateful to the Minister for giving way again:
he is being very patient. As was mentioned earlier, the explanatory
notes to clause 16 state:
The purpose of the
clause is to allow public bodies to provide information to local
education authorities where other statutory provisions would prevent
their doing so.
To what
does the latter part of that sentence
relate?
Jim
Knight:
In the intervening period between 1 pm, when this
mornings sitting ended, and 4 pm, I looked again at that
sentence, and I accept that it could be worded better. We will redraft
the explanatory notes before the Bill goes to the House of Lords, we
will ensure then that the wording is improved.
Clauses 16
and 62 are all about giving the public bodies to which they apply the
power to share information. Without such a power in this or other
legislation, they could not share information as proposed. In that
sense, they would be prevented from making disclosures without such an
express power. That is not the same as overriding other legislation,
and the provisions are not quite as broad as the reader would think
from the explanatory notes, because other legislation that, as far as
we are aware, does not contain express restrictions on such disclosures
cannot be overridden. Just because there is a statutory power in
clauses 16 and 62 to provide information, that does not mean that
bodies must not act in accordance with other relevant legislation, such
as the Data Protection Act and the right to respect privacy in the
Human Rights Act 1998.
Mr.
Laws:
For the sake of clarification, if this part of the
Bill were deleted, and given the powers that already exist, what would
be lost about which the Minister would be
concerned?
Jim
Knight:
What would be lost is the transfer of functions
that we are seeking from Connexions services back to local authorities:
that data sharing could not proceed. As I described, we are translating
section 120 of the Learning and Skills Act 2000 to allow that
transfer to take place. We are not changing the legislation in any other
way, and it has been running, as I have tried to stress, successfully
ever since that Act was brought into force.
The proportionality test for
these clauses is already met by the
requirement
4.9
pm
Sitting
suspended for a Division in the House.
4.25
pm
On
resuming
Jim
Knight:
Of course. Given that I had not even started to
speak, it would be churlish not to allow the hon. Gentleman to
speak.
Mr.
Gibb:
I was about to intervene on the Minister when the
Division bell rang. First, I wanted to ask him why information about
someones involvement with the police should be passed to the
people in the local authority who are trying to promote their education
or training. I am still baffled as to why that should be necessary.
Secondly, will he explain why those same people in a local authority
need the health records of a 16 or 17-year-old to promote
participation?
Jim
Knight:
By way of clarification, my understanding is that
whole health records or indeed whole criminal records will not
necessarily be passed from the relevant public bodies to Connexions.
However, information that those public bodies think will be helpful in
providing support and advice may be passed on. In the
Committees early stages, we spent a considerable amount of time
discussing the value of the personalised, informal training and support
provided by the likes of Fairbridge, Barnardos, the
Princes Trust and some of the other bodies from which we took
evidence. If somebody has got into trouble with the law and if they are
under the watchful eye of a probation officer and a youth offending
team, there might be issues in that persons life that the
officers working for those public bodies would know about and that it
would be very useful for Connexions to know about, too, so that it can
provide support and best serve the needs of that young
person.
That is what
we are talking about. We are not talking about public bodies acting
against young people; we are talking about support being properly
tailored to the individual personal needs of those young people. Before
I move on to the issue of health, it is also probably worth saying that
in recent years, we have seen a rapid expansion in the number of police
and community support officers, who often work closely with youth
support services and may take part in case conferences on young people
in which Connexions, too, is involved. If those officers are taking
part in a case conference because there are problems in a
neighbourhood, perhaps related to antisocial behaviour by certain
individuals, it would not be appropriate for those officers to be
prevented from passing on knowledge that they have about an individual,
so that better support could be provided and
so that those individuals could be better engaged in positive activities
rather than negative ones. It is highly appropriate that they should do
so and, as I said before, that has worked well since the Learning and
Skills Act 2000 came into
force.
Jim
Knight:
I was just about to move on to discuss the health
matter, but seeing as the hon. Gentleman is looking beseechingly at me
I will give way to
him.
Mr.
Laws:
My question is about policing. Over the lunchtime
break, I wonder whether the Minister had an opportunity to reflect on
the issue that we discussed before lunch, about whether or not the
police would be able to give information to a local authority that
would relate to the local authoritys enforcement powers rather
than to its support
powers.
Jim
Knight:
I did reflect briefly on that point. The police do
not have a role in enforcement; the enforcement is carried out by the
local authority. There is no scenario that I can foresee whereby the
powers set out in the Bill that have been working successfully since
the Learning and Skills Act 2000 came into force would be used in the
context of
enforcement.
Mr.
Laws:
But is not one of the potential scenarios a
situation where a young person who is supposed to be in education or
training has disappeared: they have left the home that they were in and
there is reason to believe that they may be known to the police? In
that situation, would it not be reasonable for a local authority to
approach the police to ask whether they were aware of that particular
young person so that it could take enforcement
action?
Jim
Knight:
I think that it is more likely
that the police, if they are dealing with a young person and they
discover that they are not participating, may contact the local
authority so that support procedures can be established. In that way,
the Connexions personal adviser would know about it. If the young
person was not on the records of that local authority, a conversation
mighty take place between the personal adviser and the constable or the
PCSO along the lines of: We do not have a record of this
personthey must have come from somewhere else. Do you know
where they might have come from? All of this is geared to
supportI know that I keep saying that and that it may try the
patience of the Committeenot
enforcement.
Mr.
John Hayes (South Holland and The Deepings) (Con): Before
the Minister moves on, this is an important point, because the Bill
explicitly empowers local authorities to collect information in
relation to duties prescribed in the Bill, including duties to
encourage and enforce participation. The Bill, as my hon. Friend the
Member for Bognor Regis and Littlehampton pointed out, quite clearly
empowers local authorities to act specifically in the way that the
Minister is now suggesting that they are not going to act. Why not
amend the Bill to reduce, limit or at least dilute those
responsibilities and powers?
Jim
Knight:
As I have tried to explain, if we were to dilute
them as set out in the amendment, we would not be able to have any of
the data sharing that is extremely helpful in providing support to
young people. The duty is not to enforce; it is to support the young
person in fulfilling their duty. There is a power to enforce, but there
is not a duty to enforce; it is important that the Committee bear in
mind that difference. As we discussed earlier, it is easy for people to
forget that there can be no enforcement without that support being put
in place and without an attempt to provide appropriate support. If the
matter goes to the attendance panel, and it finds that relevant support
has not been offered, enforcement cannot take place.
Moving on to the health
question which the hon. Member for Bognor Regis and Littlehampton
raised several interventions ago, health information can be
particularly sensitive and the protection offered by the Data
Protection Act in respect of health is particularly important. Under
the principles of fairness in that Act, a young person must be informed
if personal information relating to them is to be shared. They also
have the right to ask to see the information that is held and to ask
for it to be corrected if it is inaccurate.
There are
circumstances where that can be helpful, most of them relating to
teenage pregnancy and to new mothers. For example, I think that we
debated on a previous TuesdayI cannot remember the exact
datethe case of teenage mothers and their need for additional
support to enable them to participate. Some of that support may be
health related, for example, if they are suffering from post-natal
depression. The Connexions service may need access to information from
health care providers so that it can assess the best way to re-engage a
young person in education and training. Young people may have other
mental health needs that are being addressed by the health authorities
and which it is important that personal advisers know about so that
they can tailor advice accordingly.
Mr.
Laws:
I am grateful to the Minister for his extreme
patience and enthusiasm on the subject of this particular intervention.
Under the Bill, will it remain an option for the health provider to
decide not to supply that information if they consider that it is not
appropriate, given, in particular, the use of may in
subsection
(1)?
Jim
Knight:
Given the use of the word
may in subsection (1), public bodies are not bound to
pass on the information. However, they may pass on the
information.
Mr.
Hayes:
I am grateful to the Minister for giving way, he
has been extremely generous in accepting interventions. On a parallel
point, is this not an important departure from existing practice, as
the Minister made it clear that people will have the right to access
the information about them that is being passed on? Passing
someones health records on to another agency currently requires
their consent. No consent will be necessary in this caseis that
not
right?
Jim
Knight:
This is not a departure, because
the provisions, as I have repeatedly said, replicate the provisions in
section 120 of the Learning and Skills Act 2000. Clause 62, for
example, replicates the relevant provisions.
When I answered the question asked by the hon. Member for Yeovil about
whether these matters are new, I think I explicitly said that for 13 to
19-year-olds such provisions already exist. This is not a new
departure: it just repeats what is already in legislation, but it
changes the arrangements because of the transfer to local authorities
of the Connexions
service.
The
proportionality test for the provisions is already met by the
requirement to comply with the European convention on human rights. As
I have said, records are not being transferred, as information is
generally shared verbally, on a case-by-case
basis.
Mr.
Gibb:
The Minister need not look so exasperated. This is a
crucial clause and I do not think that he is selling his argument well.
He needs to try harder, because it seems to me that he is looking at
these clauses as though they were law and order provisions.
If a young
person is engaged with the local authority, then that young person will
volunteer the information about the problems they are having with the
police or probation service. He or she will volunteer the problems they
are having with their health. However, the Minister is assuming that
the young people in question are not engaged, otherwise the information
would not need to be passed behind their backs. If they are not
engaged, then the swilling around of all this information will be
irrelevant, and that has a sinister air to it; that this information
about those peopleunbeknownst to those peoplewill be
swishing around from authority to authority, from state body to state
body.
Jim
Knight:
I completely reject what the hon. Gentleman is
saying, and we might just have to agree to disagree. I see no sinister
swilling around in the way that Connexions operates under the existing
powers framed in the Learning and Skills Act 2000.
I think it is appropriate for
people who are trying to provide the best possible tailored advice for
young people to have access to reasonable amounts of information. That
is something that we learned about safeguarding following the Victoria
ClimbiĆ(c) tragedysomething that is obviously being
addressed in terms of safeguarding and sharing data on
childrenand I think that it can apply equally to ensuring that
our most vulnerable young people, with the most complex difficulties,
have professionals who are aware of the complexity of those
difficulties and can intervene to support them
adequately.
Mr.
Gibb:
And will those young people know that specific
information about their health records has been
transferred?
Jim
Knight:
Yes, they have the protections
that are afforded them under the Data Protection Act 1998, which I have
set out for the Committee. I would argueI am sure that the hon.
Gentleman would disagreethat the amendments are unnecessary. I
ask him to withdraw the amendment, but again I am not
optimistic.
Mr.
Laws:
Welcome back to the Chair for this
afternoons proceedings, Mr. Bercow. I thank the
Minister for being patient and taking a lot of interventions on an
extremely important clause. Judging by his answers, we have established
that his view is that the powers already exist for the 13-to-19 cohort,
but presumably they are used far more sparingly than may be the case if
the Bill is enacted. In addition, in the present situation there is a
very modest opt-out, which is covered by the Data Protection
Act.
The Bill
potentially extends the range of occasions on which certain information
may be passed between the bodies that are set out in subsection (2) of
the clause and a local authority. The major effect that the Minister
says is likely to result from the clause, other than recognition of the
transfer of responsibility from Connexions to a local authority, is
that a much larger number of young people will come under the
provisions that allow such information to be
accessed.
Jim
Knight:
I am reflecting on what the hon. Gentleman said,
and I am grateful to him for giving way. I question why he thinks there
would be a great expansion. Support is available to 12 to 19-year-olds,
and we have personal advisers working to engage those young people who
are not in education, employment or training. We are already using
these powers. We obviously want the advisers to have an improved range
of provisions so that they can refer people and engage them better; but
in respect of the data sharing, I am not completely persuaded by the
hon. Gentlemans argument that it will expand a great
deal.
Mr.
Laws:
I am interested in the Ministers point, and
I may be getting it wrong, but my instinct is that the measure is
likely to lead to greater data transfer. Does the Minister have any
evidence of the extent to which the existing powers are used? I asked
him earlierhe kindly respondedwhether powers of that
type were used routinely for young people under the age of 16 who might
have an absenteeism or truancy problem in the school setting. I am not
persuaded, through my limited knowledge of the matter, that the powers
would be used routinely in such a setting, but I would expect the
process of compulsion for 16 and 17-year-olds to lead to greater data
transfer, and we are concerned about that.
We have other
specific concerns about those significant powers. One relates to the
role of the police. The Minister said a moment ago that it is all
geared around support, but when he was pressed on the subject, it
turned out that that appears to be his intention. I see nothing in the
Bill to prevent those powers being used for an enforcement purpose. If,
perhaps later in Parliaments scrutiny of the legislation, the
Minister were willing to accept an amendment to subsection
(1)for example to insert support before
functions, to make it clear that the provision is to be
used only for support purposesit might clarify the
matter.
I was not
persuaded by our exchanges on the potential role of the police. The
Minister was rather ungenerous to local government officers, some of
whom he described as jobsworthsI am not going for the local
government vote in saying thatas they will have to deal with
the enforcement provisions.
Jim
Knight:
To clarify matters, I think that I said that I did
not think that there would be such
jobsworths.
Mr.
Laws:
We shall have to check the record;
I am not sure that that was what the Minister said. The impression that
I gained was that he felt that it would be unreasonable of anyone in
local government to seek to use those powers to ask a police officer or
superintendent for information that might be used for enforcement
purposes. However, I do not find that an unlikely scenario, for reasons
that I put to the Minister earlier.
I can easily
envisage there being a number of young people who may not want to be in
education or training, or anything else that the Minister might have in
mind, who do not have a permanent and stable residence. They may be in
the habit of going to the homes of various relatives or friends. They
may be even more inclined to do that when they discover that
legislation has been passed to cover such a situation. Some individuals
trying to flout the regulations may be known to the police. I would
have thought that any local government officer who took his or her
responsibilities seriously and who was as passionate as the Minister is
about having all those young people in education and training on a
compulsory basis, might decide that if a young person who was clearly
not compliant and was known to be unwilling to comply with the
Bills provisions, it would be sensible to ask the local chief
superintendent if he knew where Mr. X, Mr. Y or
Miss Z was, because they were not turning up to their college, school
or learning setting. Perhaps it would be likely that the police have
some awareness of where that individual is, particularly if they are in
the habit of committing low or even high-level
offences.
4.45
pm
I do not think
that it is at all unreasonable to think that the powers may be used for
enforcement purposes. Whether they should be so used is a separate
debate. If the purpose of the clause is to enable a support function,
it would be useful to have that in the Bill, rather than have the
Minister giving us his interpretation of the measure. Perhaps he will
go so far as to make it clear that that is the only purpose for which
the provisions can be used.
We are in a
strange position, notwithstanding the alleged protections afforded by
data protection legislation, regarding the opt-outs that apply to
different clauses in the Billthe hon. Member for South Holland
and The Deepings raised that issue. As I understand it, there will be a
power for the parent of a young person who is under 16 or over 16 to
deny the local authority even routine information about their
educational success, achievements and background in a school setting.
Even when such information is routine and even if it is publicly
available, there will be a power to opt out, although it might not be a
satisfactory power. Yet, apparently, information held by a primary care
trust or strategic health authority, or by the police, which is
potentially far more sensitive, could be handed over without an opt-out
mechanism of sufficient force in
place.
For example, we
could end up with a situation in which a young person afforded
protection in respect of a piece of information held by a school would
not be afforded the same protection if the information was
held by a primary trust. Information about a sensitive issue such as
child abuse, for example, might be held by a GP and also by a school. I
wonder whether that is
satisfactory.
The
Chairman:
Order. I apologise for
interrupting the hon. Gentleman, and I do not want to distract him from
the development of his argument, but it came to my attention earlier
that the hon. Member for South Holland and The Deepings had in his
possession a book titled The Specious Origins of
Liberalism. I can now see the front cover of the offending
tome. I say in all courtesy to the hon. Gentleman that he should not be
reading the book, even chapter 11, entitled The Divine Right of
Majoritiesit is not appropriate reading matter for the
Committee. The hon. Gentleman, who is ordinarily an immensely courteous
man, is being inadvertently discourteous, both to the hon. Member for
Yeovil and to other members of the
Committee.
Mr.
Hayes:
On a point of order, Mr. Bercow. I was
looking at a particular aspect of the book regarding the issue of
compulsion and consent, which we have been debating today. It was from
that that my reading stemmed.
Mr.
Laws:
I am grateful, Mr. Bercow, for your
guidance to the Committee. I am reassured that any critical volume on
liberalism is likely to be a short piece of work, so I am sure that the
hon. Gentleman is coming to the end of his reading in any
case.
I am
concerned that there is a mismatch between the force of the opt-out
available for information held by a school, whereby even routine
educational information cannot be provided to a local authority, and
the extraordinary powers that are available under the measure that we
are debating. I note with interest the possibility that totally
different judgments could be made about sensitive information by
different providers. The Minister confirmed in response to an
intervention I made earlier that subsection (1) gives the listed
providers the ability or power to release such sensitive information;
it does not impose an obligation. Therefore, it is inevitable that
different primary care trusts, for example, throughout the country,
would take different views on what is relevant to a local authority in
discharging its responsibilities. They would probably be right to do
so, because as our earlier debates highlighted it is unclear what
information would be considered relevant and what would
not.
I think that we
would find very different information would be released about many
young people, depending on whether their GP was inclined to take a wide
or narrow view of the responsibilities and powers in the Bill; or
perhaps on whether they thought that it was none of the local
authoritys business, in which case they would be empowered
under the proposal simply to shove the letter in the bin. That
confusion about their responsibilities and the mismatch in powers in
relation to consent are two unsatisfactory aspects of what is already
an unsatisfactory
clause.
I
am afraid that I am not so far particularly persuaded by the
Ministers arguments, but I await with interest an indication
from the hon. Member for Bognor Regis and Littlehampton as to whether
he intends to press his amendments.
Mr.
Gibb:
I am concerned about the clause
and therefore keen for the amendments to be adopted by the Committee.
The Minister has based his whole argument on the fact that the clauses
are lifted from the Learning and Skills Act. I think that that is part
of the problem. It would explain the inconsistency between these
information-sharing provisions and those that relate to education
information, which have presumably been drafted specifically for the
Bill.
The Minister has
based his arguments on the fact that the measure is merely providing
useful information for a limited support provision service, but that is
not what it says in the Bill. It may well be his intention, and it will
be interesting to see the guidance when it is published, but we are
here to scrutinise the Bill, which states clearly in clause 16(1) that
the information is to enable the local authority
to exercise its functions under
this Part.
Part 1 of
the Bill comprises clauses 1 to 53. Those clauses include all the
enforcement provisions of the Bill, such as the parenting contract, the
parenting order, written and attendance notices, and financial
penalties. Therefore, the bodies listed in clause 16(2)(a) to (g) will
be able to supply information to a local authority for the purpose of
enforcing participation. Given that that is repeated in clause 62,
relating specifically to support services, it is clear that the
intention of the draftsmen, if not of the Minister, was that the
provisions would be used to enable a local authority to help it to
enforce participation. Therein lies our
concern.
Also,
even if the purpose of the measure were only to help a body to provide
careers guidance services, I do not understand why the organisations
concerned would need to provide details of a 16-year-old girls
medical record, such as whether she has had an abortion, or of whether
a young man has had a sexually transmitted disease. I do not see why
that information should not remain confidential for those young people.
It may well have an impact on whether that young woman can pursue a
career or training but, none the less, the information is confidential
and should remain
so.
Jim
Knight:
I am probably wasting my breath but I will stress
that it is not whole records that are being transferred. Only that
information that will assist in exercising the statutory function would
be
shared.
Mr.
Gibb:
But it may well be that some
individual in those local authorities may regard the fact that a girl
has had a baby, or has had mental health problems, as pertinent to
whether she should be engaged in education or training. Such
information is confidential and should remain so. It should not be
spread around a local area simply in order for Connexions, the careers
advisory service, to perform its function better. That is an important
point of
principle.
The
Minister says that information will be transferred from the law
enforcement body to Connexions under the law and order provision.
Again, if the young person is engaged with Connexions, they will give
voluntarily all the pertinent information about their
circumstancesthey will explain that they cannot attend a
particular training course because of an attendance requirement under a
probation order. If they are not engaged, all
this information is irrelevant unless it is being used to enforce
participation, because the young person will not be turning up to
interviews. All the information about the young persons medical
records, police record and the suspicions that the police have about
them will be completely irrelevant if the young person is not engaged
with Connexions and does not want to pursue a career and
training.
Mr.
Hayes:
My hon. Friend is making a persuasive case. The
lifeline that we threw to the Minister, which he might have grasped, is
the one to which my hon. Friend alludesconsent. Consent is the
critical point that would check these powers. Does my hon. Friend
understand why the Minister will not grasp that lifeline but simply
wants more water thrown over him
instead?
Mr.
Gibb:
I just think that not enough thought has been put
into the drafting of the Bill. The Minister started his response by
saying that if this provision is not passed, a greater number of people
will become NEET, but that is the old argument of the end justifying
the means. He can make that argument about the most draconian measure
in any Bill. If the overall objective is x, he can always say that that
is the purpose of a draconian measure. It is wrong always to rely on
the Data Protection Act for these protections, because that Act is
designed to protect the individual from the overweening, overarching
power of the state. It is not there as the principal measure; it is
there to protect us from the state when it is abusing its power. The
Bill itself should contain the protections; it should not purport to
want to supply information without the consent of the young person. No
provision in clause 16 says that the person will be informed that the
information has been supplied or that the young person has to give
consent. Always the Minister refers to the Data Protection Act, which
is there to protect people from private companies, private individuals
and state bodies that are using information in a way that does not
protect the privacy of
individuals.
Jim
Knight:
I hear the hon. Gentleman saying that the Data
Protection Act protects individuals from the overweening power of the
state. Is that not exactly what he is worried about and what he has
been arguing in respect of the clauses? I am saying that there are
protections for those individuals in the Data Protection Act. He has
just said that that Act is there precisely to provide those
protections, so what is wrong with
that?
Mr.
Gibb:
Because the Minister should not be trying to do
things under the Bill that the Data Protection Act will catch him out
on and prevent him from doing. The Bill should not be seeking to do
things that the House has said on other occasions are unacceptable.
People may well ignore those other provisions and just rely on what is
in this measure. If people are not even informed that information is
being supplied about them behind their backs, they will not even know
that they have a data protection problemthat there are data
that need protecting. The Minister should not be seeking to do things
that on the face of it contravene the principles and spirit of the Data
Protection Act, but the Bill, because of the way it is drafted, does
just that.
Jim
Knight:
We are not seeking to do
anything that goes against the principles of the Data Protection Act.
That Act will govern the behaviour of the public bodies listed in the
clause and affect their behaviour in the same way that we hope other
clauses in the Bill will affect other peoples behaviour. We are
not setting something up to conflict with another Act. That is just
palpable
nonsense.
Mr.
Gibb:
The way the Bill is worded at the
moment means that it does. I will not repeat the debate that we had on
clause 14(4), but the fact that there is a provision that says that
people have to opt out of the information being supplied is a
contradiction of the active consent required by the Data Protection
Act. This provision does not even have that protection in it. Therein
lies the concern: either the drafting is sloppy or there is an
intention that the information will be supplied on a de facto
basisas an everyday practicality of life, the information will
just be supplied. No one will know that it has been supplied, but it
will be supplied.
I
leave the Committee with this thought from the Childrens Rights
Alliance. It is very concerned, as a result of a survey that it did of
young people, that if children think that adults are going to share
information with other people, they will stop confiding in adults
altogether. That is the point. When people go to the doctor, they
assume that the information that they give is confidential, even if it
pertains to their possible employability or ability to engage in
training. I believe that it should remain confidential, regardless of
how important the Minister believes the ends that this Bill seeks to
achieve
are.
5
pm
The
Chairman:
It would be helpful if the hon. Gentleman would
indicate whether he wishes to press his amendment to a
Division.
Question
put, That the amendment be
made:
The
Committee divided: Ayes 6, Noes
8.
Division
No.
15
]
AYESNOES
Question
accordingly negatived.
( ) Information
may only be supplied under subsection (1) if the person to whom the
information relates has given written consent that such information can
be supplied..
The
Chairman:
With this it will be convenient to
discuss the following amendments: No. 26, in
clause 16, page 9, line 7, at
end insert
(2A) Any person
about whom information is supplied under subsection (1) shall have the
right to examine any relevant information requested by a local
authority from a responsible person or body before that information is
provided to the
authority..
No.
27, in
clause 16, page 9, line 7, at
end
insert
(3A)
Any person about whom information is supplied under subsection (1)
shall be given the opportunity to correct information regarded by him
as inaccurate, subject to the agreement of the relevant person or body
supplying the information.
(3B)
For the purpose of subsection (3A), when agreement cannot be reached on
any correction to the information, the Information Commissioner shall
decide what correction, if any, should be made to the relevant
information..
No.
112, in
clause 62, page 34, line 5, at
end insert
(1A)
Information may only be supplied under subsection (1) if the person to
whom the information relates has given written consent that such
information can be
supplied..
No.
110, in
clause 62, page 34, line 13, at
end insert
(2A) Any person
to whom subsection (1) applies shall be given the opportunity to
correct any information regarded by him as inaccurate subject to the
agreement of the persons or bodies referred to in subsection
(2).
(2B) For the purpose of
subsection (2A), when agreement cannot be reached on any correction to
the information, the Information Commissioner shall decide what
correction, if any, should be made to the
information..
No.
111, in
clause 62, page 34, line 13, at
end insert
(2A) A person
about whom information is supplied under subsection (1) shall have the
right to examine any relevant information requested before that
information is
provided..
Mr.
Gibb:
These amendments cover the issue
of written consent and the rights of the young person to examine the
information held on them and to correct any inaccuracies. A wide range
of information can be shared, including information about a young
persons activities at school held by a local authority,
information about a young persons activities at college held by
the learning and skills council, information about a young
persons health held by a primary care trust or strategic health
authority, and information about a young persons involvement
with the police, the probation service or the youth offending team. It
is astonishing that despite that huge volume of highly sensitive
personal information that can be shared, there is no similar protection
to that afforded by clause 14(4), limited though that protection
is.
Amendments
Nos. 25 and 112 propose that information can only be supplied by any of
the bodies listed in subsection (2) if a young person has given written
consent. It is very important that the information that we give to
doctors, police or local authorities is given for one purpose and that,
on the assumption that it is confidential, it is only used for the
purpose for which it is given. If that principle is not adhered to, we
will find that people will not disclose personal details for fear of
that information appearing in another arena and damaging them. I am now
reluctant to give my mobile phone number to businesses when they ask
for it because I know that they may use it to make marketing
calls.
The Bill
appears to take an insouciant approach to the protection of personal
and sensitive information. It ignores one of the principles set out in
schedule 2 to the
Data Protection Act, which is that the individual gives consent for
their personal data to be processed. There are exceptions to this
principle, but for sensitive personal data, such as information on
health or criminal convictions, there are more stringent conditions
before the principle of consent can be
overruled.
Angela
Watkinson (Upminster) (Con): Does it concern my hon.
Friend that there is nothing in this Bill that places a duty on any
authority to make young people aware that they have the right to opt
out? It is not a question of having necessarily to give written
permission, but a young person has the right to require that their
information is not passed on. However, there is no duty on authorities
or organisations to make them aware of that
fact.
Mr.
Gibb:
I am grateful to my hon. Friend for that important
point and hope that we will be able to return to that principle,
perhaps not in Committee, but on Report, because people need to be
informed that they have that right. The trouble is that, in this
complex and busy country in which we live, those things can go
unnoticed, and that is how peoples rights become infringed and
their privacy invaded.
The Bill also does not require
that the conduct of the various statutory bodies should be subject to
oversight by the Information Commissioner. I genuinely believe that the
Government have, in drafting the clauses, taken a cavalier approach to
the protection of privacy and sensitive information.
Amendments
Nos. 26 and 111 would insert a young persons right to examine
the information held on him or her that has been requested before it is
supplied to the local authority. Apart from in the case of ongoing
criminal investigations, that is and should remain a sacrosanct
principle relating to information held on an individual by a statutory
body. Whether that information is health records, test scores at school
or college or a criminal record, an individual should have the right to
see it.
The idea that
statutory bodies never make mistakes and that it is therefore
unnecessary to check it for accuracy is risible. The Royal Mail has
just written to people in Bognor Regis in my constituency to tell them
why they propose to close a third of the Post Office branches in Bangor
Regis. I am sure that the executives of the Post Office would have had
a lovely day, the day they went to Bangor, but they would face a
hostile reaction if they came to Bognor Regis to defend their policy.
Amendments Nos. 27 and 110 would give the young person the right to
correct any inaccurate information held on the various databases about
themselves, and if there is a dispute with a statutory body on whether
that information is correct, the matter should be referred to the
Information Commissioner for resolution.
There seems
to be a degree of inconsistency between the clauses approach to
personal information. There is also, across all of the clauses that
deal with information sharing, an alarming indifference to the
individuals right to privacy. The Governments approach
appears to be that they are entitled to do all that they wish with the
information in pursuit of the greater aim of greater participation, but
as I mentioned in relation to the last group of amendments, the dogma
of ends justifying the
means is, as always, a dangerous one, which I hope the Government will
temper by accepting these amendments this
afternoon.
Mr.
Oliver Heald (North-East Hertfordshire) (Con): I should be
grateful if the Minister could confirm that clause 16 will not be used
so that all of the information held by the bodies set out in subsection
(2)(a) to (g) on everyone affected by part 1 can be transferred to the
local authority to create a sort of Big Brother database.
Mr.
Heald:
The second part of my question
was whether the Minister can confirm that it will be an individual
exercise in each case when information is sought about Fred Bloggs or
whoever, and that it will not be a mass operation, even if it is done
on guidelines.
Jim
Knight:
I am trying to be efficient and can confirm all of
that. As I have said before, in the normal course of events there would
be a case meeting regarding an individual, where various professionals
would come together and share
information.
Jim
Knight:
In relation to clauses 14, 57, 15 and 61, we have
debated safeguards provided by the Data Protection Act 1998 on the
disclosure of information by public bodies. In essence, there is a
considerable disagreement between Government Members and Opposition
Members about whether we should write all of the protections that are
afforded by the 1998 Act on to the face of the Bill. I think that it
should be a principle not to duplicate law. The Bill, when enacted,
would and should be read with the 1998 Act and it will be clear that
the 1998 Act applies.
I shall recap the principles:
all public bodies are required to inform an individual if personal data
relating to him or her is shared; individuals have the right to request
a copy of the personal information that they believe an organisation
holds on them, and; if they believe that that information is
inaccurate, they can write to the organisation to set out what they
believe is wrong with it and what should be done to correct it. The
Information Commissioner already has powers under the Data Protection
Act of the sort envisaged by amendments Nos. 27 and
110.
For the sake of
clarity, I will remind the Committee of our discussion this morning. I
know that some aspects of that debate were confusing, particularly on
clause 14 in respect of information provided by schools. I will very
briefly set out those matters. For basic identification information, no
consent is required or obtained in practice. That data transfer covers
all young people on the providers roll in year 8. For
additional information, consent is presumed, so it is passed on for all
young people, except for those who request that it not be passed
on.
The
presumed consent is ongoing, but parents are notified annually that
information about their child may be passed on. That can be done
through a letter or through the schools website. On those
occasions, they are also notified of their right to opt out. It is also
worth clarifying that very broadly, the Data Protection Act provides the
conditions that need to be satisfied before personal data can be
disclosed. There are additional conditions that need to be satisfied in
the case of sensitive personal data, such as information about racial
or ethnic origins and physical or mental
health.
One
such condition is that the disclosure is necessary for the exercise of
statutory functions. The educational institutions referred to in
clauses 14 and 57 are under a statutory duty to provide information
when requested to do so because the condition for disclosure is
satisfied without obtaining consent. That informs why we need the
opt-out in clause 14(4), so that there is an additional safeguard on
top of the Data Protection Act because that effectively allows an
exemption for disclosure. That is a recap of where we got to today. In
particular, the Committee should reflect on the protections that I have
summarised from the Data Protection
Act.
In the light of
existing provisions, it is clear that the amendments are at best
unnecessary. Amendments Nos. 25 and 112 would insert a requirement to
give consent before any supply of information. As with other cases that
we have discussed, that would slow the system down and place additional
bureaucratic burdens on local authorities and other public bodies.
Amendments Nos. 26 and 111 would have a similar effect by giving young
people a specific right to examine any personal information before it
is passed on. That delay could be exacerbated if a young person was
somehow prevented from examining or was not able to examine their
information before it was provided. As I have emphasised, any delay in
getting potentially vital information to the Connexions service could
prevent it from providing timely, targeted and personalised support of
the kind necessary to engage young people in education or
training.
We
have already discussed the purpose of public bodies such as those
listed in clauses 16 and 62 being able to share information with
Connexions. It is the most vulnerable young people who will need
Connexions support the most and it is they who are most likely to
benefit from this information sharing. The amendments could prevent
that from happening effectively. I hope that the hon. Gentleman will
withdraw the
amendment.
Mr.
Gibb:
There is something contradictory about the way that
the Minister rattled through that response to the amendments. On the
one hand, he says that they are unnecessary because all of the
protections contained in the amendments are contained in the Data
Protection Act, which will apply to the Bill. He cites the requirement
to check the information and amend inaccuracies and that it requires
there to be consent. At the same time, he says that to accept the
amendments would slow down the system and would create a bureaucratic
burden on the overall wonderful aim of raising participation in
education and training. He cannot have it both ways. Either these
protections are already in the law, in which case they will already be
bureaucratic and burdensome and delay the process, or they are not.
There is nothing different in the way that the amendments are drafted
from the principles laid down in the Data Protection Act.
Leaving that argument aside, I
also think that the principles of the Data Protection Act should be
incorporated into the Bill for clarity. We are trying to make the law
clear. Those working in a local authority or one of the other statutory
bodies should not have to have one Act on one knee and one on the other
to work out what they should be doing. In a private sector company
where there are internal rules and regulations and procedures for how
the company conducts itself, there will be rules that tell the
employees that when data are submitted, these are the things to be done
to comply with the Data Protection Act 1998. The company does not tell
its employees, Here is the data. Do what you like with it. By
the way, you are meant to comply with the Data Protection Act so make
sure you stick a copy of that up on your noticeboard. The
company itself will have rules and regulations. The Bill constitutes
the rules and regulations of these statutory bodies and of the
Department. These rules and regulations should contain the principles
of the Data Protection Act 1998. The Government are playing fast and
loose with a very important part of their duty to protect the privacy
of people in this country.
I am very disappointed again by
the Ministers response and will press the amendment to a
division.
5.15
pm
Question
put, That the amendment be made:
The
Committee divided: Ayes 6, Noes
8.
Division
No.
16
]
AYESNOES
Question
accordingly
negatived.
( ) The
provisions of section 15(4), (5), (6) and (7) shall apply to
any person to whom information is supplied under subsection
(1)..
The
Chairman:
With this it will be
convenient to discuss amendment No. 109, in
clause 62, page 34, line 5, at
end insert
(1A) The
provisions of section 61(4), (5), (6) and (7) shall apply to any person
to whom information is supplied under subsection
(1)..
Mr.
Hayes:
I move seamlessly from diligent study of
the specious origins of liberalism to studious consideration of the
specious arguments used by the Minister in defence of this
clause.
The simple
amendment before us is designed merely to create consistency in respect
of those penalties that would apply to people disclosing
information
inappropriately. Clause 15 sets out the six conditions under which
information can be disclosed or transmitted. We simply seek for those
conditions to apply in clause 16 and for the penalties which relate to
disclosure which does not fit within that framework to apply as well.
With that very short and I hope straightforward argument, I have little
doubt that I will convince the whole Committee of the efficacy of the
amendments in my name and those of my hon.
Friends.
Jim
Knight:
I strongly encourage the hon. Gentleman to
withdraw his amendments once he has heard the compelling case that I am
about to make.
The
measures in respect of clauses 15 and 61 relate specifically to
information, including social security information. We felt it was
important to be consistent in respect to other disclosures of social
security information in respect of penalties, but we do not feel that
we should therefore bring up the enforcement penalties for everything
else to the same standard as is consistent with social security
information. We should make those harsher penalties consistent with the
other disclosure of social security information. That is all we are
seeking to do in these
clauses.
Mr.
Hayes:
That is revealing and
interesting. What kinds of disclosure would the Minister deem of less
significance and, therefore, warranting lesser penalty, given that we
have been speaking today about information that might be provided by
the police or via other local government departments or other local
authorities?
Jim
Knight:
I was seeking to be brief but perhaps that is not
a privilege that I can be afforded. Clearly, those disclosures of
information by public bodies under clauses 16 and 62 would be subject,
as things stand, to the penalties that are set out in the Data
Protection Act 1998. We think that it is appropriate that the penalties
should lie at that base level. If it was not for the problem of
inconsistency, we would have been happy for social security information
to be at that level, but we think that it is important that there
should not be any differentiation in law, according to where the
information has come from, around the penalties attached to disclosure
of social security information. We are simply seeking to be consistent
in that regard.
Mr.
Gibb:
I do not understand this either.
It is a criminal offence to disclose information that clause 15 relates
to, which in fact is somebodys name, address and date of birth,
or the name and address of their parents, but it is not a criminal
offence to disclose wrongly peoples health records, police
records, criminal records or education records. I do not understand why
wrongful disclosure of name and address is a criminal offence and the
disclosure of very sensitive information such as health records, is
not.
Jim
Knight:
It is an offence for someone who
is employed or has been employed in social security administration to
disclose personal information without lawful authority; that is set out
in section 123 of the Social Security Administration Act 1992. A
corresponding offence provision was thought necessary where the
information has been supplied to someone not covered by the offence in
social security legislation. That is to maintain the same level of
protection for that information irrespective of who holds it.
Disclosure
of personal information otherwise than in accordance with the provision
of the Data Protection Act 1998 might still constitute a criminal
offence, under section 55(1) of that Act. Prosecutions for this offence
must be commenced by the Information Commissioner or by or with the
consent of the Director of Public Prosecutions. The offence is triable
either way and the maximum penalty is a fine limited only by the
jurisdiction of the trying court.
On the basis of trying, I hope
that that is sufficient for the Committee and I urge the hon. Gentleman
to withdraw his amendment.
Mr.
Hayes:
I am not entirely satisfied,
because it seems that the Minister was arguinghe may want to
come back again on this pointthat what the Bill does in respect
of clause 15 is to create consistency with other legislation relating
to the disclosure of social security information. On the other hand,
what our amendment suggests is that the Bill itself must be consistent;
there must be consistency across the provisions of the Bill. That is
because, as my hon. Friend the Member for Bognor Regis and
Littlehampton implied in his pithy intervention, the type of data that
is transmitted between institutions that might have a responsibility
for young peoples welfare or guidance might disclose
information that is as sensitive and as potentially damaging as social
security information. In our earlier considerations, we heard that that
information might come, for example, from the police. It would
certainly include sensitive health information and it might include
information from a range of other agencies dealing with highly personal
data. I am not sure that the Ministers case that the clause is
designed to create consistency with other legislation relating to
social security but that it is not so important to have consistency
across the Bill in terms of the disclosure of information is entirely
convincing.
Mr.
Bercow, I do not imagine that you will allow a long stand part debate
on this clause, as we have already examined it in some detail.
Therefore I must say now that, if the Minister had come to the
Committee today in a rather different mood and with a rather different
manner and argued that collection and exchange of this information was
central to the purpose of the Bill as defined at its beginning,
although we may have disagreed with him, we would have regarded him as
sensible. What he has actually done is to come to the Committee with an
argument that is neither right nor sensible, and we have heard it time
and time again as we have debated different aspects of different
clauses.
I make that
remark without malice, but simply to say that we need an open debate
about why this information is being gathered and exchanged. It may be
that the Minister makes a plausible case and that the gathering and
exchange of that information is essential as part of the principal
thrust of the Bill. However, I am not sure that we have heard that case
put today. I think that we have had smoke and mirrors, and I do not
think that that does this Committee or indeed this Bill any
service.
I do not
know if the Minister wants to come back again on this point, but unless
he does so I am inclined to press this matter to a Division, in the
spirit that my hon. Friend and others on the Committee have done so,
purely and importantly to highlight what we feel is a significant
weakness in this proposed legislation and in the Governments
argument.
Question put, That the
amendment be
made:
The
Committee divided: Ayes 6, Noes
8.
Division
No.
17
]
AYESNOES
Question
accordingly negatived.
This amendment is
our last chance to have a bite at clause 16 and at two of the groups
that are set out in subsection (2) that can release information to a
local authority. The amendment deletes the primary care trust and the
strategic health authority from that list. It is essentially a probing
amendment to allow me to ask the Minister a number of questions that
relate specifically to bodies that have health responsibilities. I have
six questions for the Minister and if I get six answers I shall be
doing well, but I certainly will not need to press this to a
Division.
First, the
clause gives someone in a local authority the ability to secure the
information from the bodies named in paragraphs (a) to (g), including
the two health bodies. Are there any protections in relation to the
local authority staff who will be able to access this information? In
other words, because a lot of this is particularly confidential
information, will there be some process of scrutiny within a local
authority about who should be able to access this information? Will
there be some way for those who are asked to be sure that this is being
sought on an appropriate basis and with appropriate
safeguards?
Secondly,
the health bodies named here are the primary care trust and the
strategic health authority. I am not sure what information the
strategic health authority would hold on an individual of the type that
we are dealing with in the Bill. I should be grateful if the Minister
could say something about that. Will the duty be on the primary care
trust to access the information through GPs or are we to take it that
the primary care trust in paragraph (c) is essentially the proxy body
for all the GP practices in the area? Would the access be directly to
the
GP?
As
part of that long second question, would the Bill automatically
includeI assume that this would be the intentionother
health bodies that might be partnerships of some of the constituent
parts of subsection (2)? For example, the drug and alcohol service in
Somerset is run by Somerset Drugs Service, which is accountable to a
drug action team and is a multi-agency body. I assume that that
organisation and, for that matter, the Somerset
Partnership, which is the mental health body covering Somerset and is a
partnership of social services and the national health service, would
also be required to give information under the clause.
How will this information be
requested? Will it be necessary for the individual in the local
authority to go to the GP, the primary care trust or the strategic
health authority, if that ever happens, which seems unlikely, and say,
We are concerned about this individual and their medical or
mental health problem of this type. Could we have information on this
discrete issue?? Or could the local authority go on a fishing
expedition, saying to the PCT, We are very concerned about this
person. He is not compliant with the Bill and is not in education or
training. Give us all youve got on his medical background and
any other information that you think might be relevant.? It is
important to know whether the local authority should seek something
specific or whether it could go on a fishing expedition. That might
also determine what information they end up with, and how widely ranged
it is.
5.30
pm
Will the
Minister say what conditions might meet the relevancy criteria? GPs and
PCTs keep a huge amount of information on peoples health
circumstances. Much of it will be extremely sensitive and some might be
directly relevant to peoples ability to discharge their
responsibilities under the Bill.
For example,
would a GP be required to give information on pregnancy, especially for
someone who was so much in the early stages of pregnancy that
individuals close to her might not have been informed about it? I
presume that mental health problems would be covered, but how serious
would they need to be? Would someone being treated for drug or alcohol
addiction automatically be included? If the condition was not so
serious as to constitute an addiction but was in the early stages of
addictive behaviour, would that count? Would the sexual abuse of
another person count? Would a sexually related disease count? Would
being HIV-positive count? Would a host of personal health problems that
might impact on a persons ability to be in stable employment or
educational environmental count? Will guidance be given to local
authorities and those who need to consider whether the information is
relevant as to what type of health conditions ought to be considered
relevant?
We are now
on question five, Mr. Bercow, in case you have lost count.
It is a power granted to those bodies to give up information; it is not
that they must do so.
Mr.
Laws:
They have the option to give that information. I
cannot remember what I said earlier, Mr. Bercow; it is
difficult to believe that so much time has passed.
Some entities
may decide not to take up the offer to provide information. For
instance, health-related bodies are more prone to stick up two fingers
metaphorically at the Bills provisions than many others. They
often resent having to give information that involves a bureaucratic
burden and expense. They routinely charge for answering requests for
health-related information. A primary care
trust may say, Were terribly sorry but were not
going to waste our time doing that unless you pay, or even,
We are not going to waste our time doing this because far too
many burdens have been imposed on us by the Government. Will
the Government do anything about it? Will it be acceptable for a PCT to
decide for itself to ignore the provisions of the Bill, effectively
allowing its GPs to opt out as a group, or, returning to the earlier
question, is it likely that the local authority would directly seek the
information from a GP?
My final
question has been touched upon time and again by the hon. Member for
Bognor Regis and Littlehampton. How will the consent work in practical
terms? We know that the Minister thinks that protection comes under the
Data Protection Act 1998. If a highly vulnerable young person has some
of the conditions that I mentioned earlier, the local authority may be
worried that it will get in the way of that person complying with the
duties under the Billor that person may not have taken up the
duty, and the local authority is considering what support mechanisms
need to be put in place. If the PCT or the GP phones up and says,
Give us all the information on this guy. We know hes
got mental health problems and drug addictions and a whole series of
other issues, how in practice will the GP or PCT seek the
approval of the person in question? Over what time period will a
request need to be dealt with? Does it have to be the GP or PCT that
seeks the information? Would it have to be in writing? Is there a
period of time in which a person can reconsider their option to give
the information?
The ability
of an individual to opt out or opt in seems to be extraordinarily weak.
In practice, many of the individuals involved could be vulnerable, and
they may not realise that their data are protected unless they are
explicitly told otherwise. They might feel under pressure when they are
contacted by people to give information and, in certain circumstances,
they might not even understand what is being asked of them. I would
like to know more about how in practice consent will be sought from an
ordinary individual in those ordinary circumstances, to know whether
the protection to which the Minister keeps referring will be effective,
or whether, as some Opposition Members fear, it will be a protection on
paper that is not effective in practice.
Mr.
Hayes:
May I support the hon. Gentleman briefly on the
amendment? There is a need for greater clarity on what the Government
envisage as a result of the legislation. I take the view that, as the
hon. Gentleman suggested, such information is of a personal nature and
that it is by convention held in trust by health authorities of one
sort or another, on the understanding that it will be disclosed only
with the explicit consent of the individual. It may be of even more
profound concern to people who have mental or sexual health
difficulties, or acute medical problems that affect their lifestyle and
opportunities. It should only be exchanged when absolutely necessary
and also, in my judgment, with the consent of the
individual.
The
hon. Gentleman was right to ask those probing questions. Does the
Minister assume that the information will be requested routinely or
exceptionally as a result of the Bill? Does he anticipate the systems
that are in place in health authorities will be sufficiently compatible
with those on which the Bill is framedthe Connexions
service databaseto facilitate the easy exchange and transmission
of information? What protocol will exist for accessing the data? In
other words, will it be accessed through GPs or health authorities per
se? Those questions and others will be running through the minds of
those concerned about the sensitivity of the data. We have not really
heard enough about the matter to be confident that the Bill does not
open a hornets nest regarding the possible exposure of
sensitive information in a way that is not typical in this country but
that is deeply offensive to many people, given how they feel about
their medical records.
Jim
Knight:
In a discussion on an
intervention at the beginning of the sitting, we discussed
health-related matters, so many of the principles behind the amendment
have been debated. However, the hon. Member for Yeovil hopes that I
will answer his questions, which I will do as best as I
can.
Incidentally,
I shall repeatI am given to wonder whyfor the sake of
the hon. Member for South Holland and The Deepings in the hope that it
will get through, that we are not opening a hornets nest,
because the measures are already in place through the Learning and
Skills Act 2000. He fears that a hornets nest is being opened,
but it is already open and has been for some years. If you were going
to be stung, Mr. Bercow, you would already have been stung
by those hornets.
The first
question that the hon. Member for Yeovil was whether local authority
staff accessing the information would be scrutinised and what kind of
confidentiality could we be assured about. Only those people involved
in the provision of support to young people who are supported in
participation will be able to access the information. Obviously, there
are the offences in respect of the wrongful disclosure of the
information that would then govern the way that the local authority
used it for other people. It might be worth the Committee noting that
those people responsible for enforcement would not be able to access
this information. As I understand it, it is only those who are
responsible for
support.
Mr.
Laws:
Where is that assurance in the
Bill or elsewhere that this will only be for those people providing
support rather than for enforcement? The Minister has made that point a
number of times, but we want to know that it is a cast-iron, bankable
guarantee.
Jim
Knight:
I will seek to come back on that if I need to in
respect of the Bill. As I have set out before, the specification on the
information system is significant in this regard. It is very clear in
the specification. There may be something in respect of having to have
regard to that specification somewhere in the legislation. If I can
think of where it is, I will let the hon. Gentleman know. The
specification is clear on the role-based security. The personal data
can be accessed only by the appropriate person. The lead
professionals code of conduct covers the proper use of data and
that would have effect in this regard. I refer the hon. Gentleman to
clause 55(2)(d) as the relevant part of the Bill that informs the use
of the
specification.
The
second question was whether the duty was on the primary care trusts,
and through the primary care trusts to the GPs, or whether we mean it
to apply to individual GPscould it automatically
include partner health bodies?
To help the Committee, I think that it is worth going back to how we see
this working in practice. During our debates on the clause, I said that
in practice, this provision will be used in case conferences. I
referred to that in response to an intervention by the hon. Member for
North-East Hertfordshire. It would most likely be a representative of
the primary care trust who would be present at that conference, but it
could be a GP, and the provision would apply equally to those health
professionals. It is worth emphasising that this is not a duty, but a
power. The strategic health authority is included because child and
adolescent mental health services generally operate at a strategic
health authority level and would be covered through that
route.
Mr.
Hayes:
I do not want to open any more hornets
nests for the Minister, but would the person be informed as and when
their information was requested, however often that is? If so, in what
way?
Jim
Knight:
I will come to that question when I respond to the
sixth question of the hon. Member for Yeovil. It is helpful to answer
questions in the order in which they are
put.
Mr.
Laws:
On question two, is the Minister
saying in relation to these case conferences that the local authority
could not exercise its powers under the Bill to simply write to a GP
direct and ask them to provide that information in the form of a
letter?
Jim
Knight:
I am not saying that. It would
be possible under these measures for other communications to take
place. It may be one-to-one telephone calls in which some information
might be shared that would be governed by these clauses. In most cases
multi-agency case conferences would discuss the individual needs of
vulnerable
people.
5.45
pm
The third
question that the hon. Member for Yeovil asked was how the information
would be requested. Although he thought that his last intervention
referred to question two, I would have interpreted it as referring to
question three. Is it in respect of an individual or a whole
bodywas that the
question?
Mr.
Laws:
I do not think that I made question three clear
enough. The question was, in respect of a single individual, could
there be a fishing expedition about all their medical problems or would
the query have to be
specific?
Jim
Knight:
No, it could not be a fishing
expedition. Specific information would need to be requested, and it
would then be up to the public body whether to provide it. Fishing, in
the context that we are discussing, and probably in respect of other
matters, is not allowed under the Data Protection Act. In practice, we
are talking about shared face-to-face disclosures of
information.
Question
four was about conditions for relevancy and whether matters such as
sexually transmitted diseases, child abuse, drug and alcohol addiction,
or drug and alcohol problems that do not constitute addiction would
count. Obviously, we will be issuing guidance in association with clause
18, which will apply to the local education authority. We are not
issuing guidance in respect of the other public bodies because it is up
to them whether they supply information. That guidance will inform this
question, but what is disclosed is up to the public body and depends on
the young persons circumstances. The early stages of pregnancy
would not affect participation and it would not be relevant to disclose
it. I cannot imagine circumstances in which sexually transmitted
diseases would be relevant, although I do not necessarily rule it out.
There may be such circumstances, but I do not know as I am not a health
professional. If they are relevant, those things may be disclosed
through this
power.
The
fifth question relates to the use of the word may in
clause 16(1). If the public bodies decide not to disclose the
information, can they ignore the provisions? Yes, if they judge the
information to be irrelevant, they do not have to provide it. That is
extremely
clear.
Finally,
question six addresses how the consent will work. Obviously, that also
relates to the intervention of the hon. Member for South
Holland and The Deepings. The young person does not have to give
consent. The principles of fairness contained in the Data Protection
Act mean that it is necessary to inform the young person if personal
data relating to him or her is being shared, if notification is
practicable.
The Act
allows for sharing without consent between two public bodies where it
is necessary in order for the recipient of the data to carry out its
functions. However, data are shared only when it is in the interests of
the young person, rather than in the interests of the public body. That
is highly relevant in this respect and in that of the concerns
consistently expressed by the hon. Member for South Holland and The
Deepings about the measure being used for enforcement. I hope that that
answer helps
him.
Mr.
Heald:
I am concerned that a risk of
crime can be tackled. If someone was a drugs pusher and there was a
need to try to educate them, but to keep a weather eye open and ensure
that they were not corrupting other youngsters, would that not still be
possible? Could information from the police or the health authority
about that also be used for those
purposes?
Jim
Knight:
We are talking about data sharing for the purpose
of supporting the young person. A public interest justification for
sharing data for other purposes may crop up during a one-to-one
conversation or during a case conference, in respect of potential
serious crime. However, it is important that we hang on to the
principle that the measure is to support young people. If their
criminal behaviour that was known to the police was significant in
relation to designing the individual support to be provided, obviously
that would be relevant and it could be
disclosed.
Mr.
Laws:
I am grateful to the Minister for
giving way one last time on the final issue of consent, because he
rather rushed what he said. Could he take us more slowly through how,
in practice, a young person whose GP has asked for personal health
information will be notified and give approval for the information to
be
released? What will be the time period? Did the Minister say something
about approval where practicable? I might have missed the phrase that
he used, but I thought that I heard those
words.
Jim
Knight:
I shall repeat something that I
said earlier, then I shall add something and then, given that the hon.
Gentleman said that that was his final intervention, I shall seek to
sit down and the Committees view can be taken.
On the
question of whether the young person can prevent their information from
being shared, the principles of fairness in the Data Protection Act
mean that, if personal data relating to the young person is shared and
notification is practicable, it is necessary to inform them. The Act
allows for sharing without consent between two public bodies where that
is necessary for the recipient of the data to carry out its functions,
and only where that is in the interests of the young person. Where an
obligation of confidence applies, such as between a doctor and a
patient, the information can be used without the individuals
permission only for the purpose for which it was provided. That is all
part of the law on processing personal data. I hope that that helps the
Committee.
Mr.
Hayes:
A few moments ago the Minister
said that data sharing was not a problem because it is already
established practice. Now he tells us, in the form of guidance that has
been gifted to him from the ether, that that is not the case, and that
without the express permission of the young person the information can
be used only for a very particular purpose. Our concerns have been
exacerbated by the complacency on the part of the Minister under
questioning from Committee members who want only to get things right,
and who speak only in defence of the interests of
individuals.
Jim
Knight:
I hear what the hon. Gentleman says. I have tried
to give the information that the Committee wants. I was asked six
specific questions, and although the hon. Member for Yeovil did not
seem optimistic that I would attempt to answer all six, I think that I
have made a fair attempt to do so. I have learned more about the Data
Protection Act today than I knew about it this morning, and I have
tried to impart that to the Committee. I hope that I have been helpful
and that the hon. Gentleman will withdraw his
amendment.
Mr.
Laws:
We know that the Ministers Department does
not like external testing any more. However, to prove that external
testing can be as good as the self-certification of which Ministers are
normally in favour, I sought to mark the Minister on the six questions
as he went through
them.
Mr.
Laws:
Sometime it does. I mark the Minister highly on his
attempt to answer the six questions. He gets six out of six for that,
and that is high praise indeed. Unfortunately, the mark for the quality
of his answers is rather lower.
I do not want
to labour that response too much, because we have been considering the
clause for longer than any of us would have wished. However, before
moving on, I wish to draw attention to the big holes in the
Governments case. The Minister started by reassuring
us that only a certain number of officials in a local authority would be
able to access the information and that that would be only for support
purposes. As before, when we pressed the Minister to find out what
guarantee there would be that that would be the case, a great deal of
vagueness set in. I do not think that we have had any bankable
assurance that the measure will not be used for enforcement
purposes.
Although
there is a tendency to think of enforcement as something draconian, the
Governments whole approach is that enforcement of the
obligations in the Bill is in the interests of the young person. The
Minister responded to the hon. Member for South Holland and The
Deepings earlier and cited the assurances in the Data Protection Act
that data could be revealed if that was in the interests of the young
person rather than of the institution. Unfortunately, it is the
Governments view that all that information and enforcement is
in the interests of the young person, and that is precisely why we have
a Bill to force through compulsion with regard to education and
training for 16 and 17-year-olds. Such an assurance therefore does not
give us a great deal of comfort.
We then
discussed how the information will be accessed, and the Minister gave
us the impression that it would be within a comfy and responsible
multi-agency meeting of the type with which we are all familiar and
which tends to go on for a long period of time. It all sounded
responsible and sober until he was pressed on that point, and
acknowledged that there was no reason why a local authority could not
simply write directly to a GP to get that information. I think that he
also mentioned talking about some of those issues on the telephone with
a GP. Such communications might be valuable in finding out something
about a young persons needs, but they might also compromise to
a large extent the ability to keep information confidential or to allow
the young person to check what information was being
imparted.
I have a
similar concern about the issue of specific information versus a
fishing expedition. The Minister gave us an assurance that the
information had to be specific, as opposed to a fishing expedition of
an entire range of ailments going back to German measles. I cannot
imagine that such a range would be offered, but I can imagine a GP
being asked about the circumstances of a young individual with multiple
health problems, such as mental health problems and drug addiction. I
can imagine a question that, while seeming to be quite specific, would
essentially require the GP to give a whole range of information to
provide a serious response.
As for
conditions, the Government confirmed that the provision is open-ended
and that there is wiggle room to reveal different conditions. We
discovered that primary care trusts in some parts of the country can
essentially flick two fingers at those provisions by deciding not to
bother to give any information at all if they think that it is too
burdensome, which is not reassuring. We then dealt with consent, which
concerns Liberal Democrats the most and which the Minister rather
rushed through, hiding again behind the Data Protection Act. His
response lacked detail as to the practicalities of how the information
will be sought and the safeguards about which I asked, including the
time scales for response and protection for vulnerable people. The
Minister repeated the words if practicable in relation
to obtaining information from a young person, and one wonders in what
circumstances
it would not be practicable to obtain that permission. There are some
vulnerable individuals whose permission, it might be argued, is not
easy or practicable to obtain.
6
pm
The Minister
therefore gets six out of six for seeking to answer those questions,
but major questions remain as to how the clause will work in practice
and we will, no doubt, wish to return to that at a later stage. For the
time being, however, I will not press this modest probing amendment to
a Division, and I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
The
Chairman, being of the opinion that the principle of the
clause and any matters arising thereon had been adequately discussed in
the course of debate on the amendments proposed thereto, forthwith put
the Question, pursuant to Standing Orders Nos. 68 and 69, That the
clause stand part of the Bill:
The
Committee divided: Ayes 8, Noes
6.
Division
No.
18
]
AYESNOES
Question
accordingly agreed to.
Clause 16 ordered to stand
part of the Bill.
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