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Session 2008 - 09 Publications on the internet Public Bill Committee Debates Coroners and Justice Bill |
Coroners and Justice Bill |
The Committee consisted of the following Members:Alan Sandall, Committee
Clerk † attended the
Committee Public Bill CommitteeThursday 26 February 2009(Afternoon)[Mr. Roger Gale in the Chair]Coroners and Justice BillClause 152Information
sharing Amendment
moved (this day): 49, in clause 152, page 100, line 7,
leave out ‘any person’ and insert ‘an appropriate
person’.—(David
Howarth.) 1
pm
The
Chairman: I remind the Committee that with this we are
discussing the following: amendment 50, in
clause 152, page 100, line 8, at
end insert— ‘(1A) No
information-sharing order may authorise data to be shared in any way
that might result in the date being used for a purpose different from
that for which its collection was originally
authorised.’. Amendment
51, in
clause 152, page 100, line 9, at
end insert— “‘an
appropriate person” means any public authority within the
meaning of section 6 of the Human Rights Act 1998, and, for the
purposes of that section, any use of data under an information sharing
order shall count as exercising a function of a public nature and shall
in no circumstances count as an act whose nature is
private;’. Amendment
52, in clause 152, page 100, leave out
lines 24 and
25. Amendment
53, in
clause 152, page 100, line 27, leave
out ‘it is satisfied’ and insert ‘the following
conditions are
met’. Amendment
54, in clause 152, page 100, leave out
lines 29 to 32 and
insert— ‘(a) the order will
not authorise data to be used in any way that implies any new
government policy or any deviation from previously announced government
policy, and “government policy” in this section means
only that policy to which there is clear and unambiguous reference in
the speeches or other remarks of Ministers during the passage of a bill
or bills in Parliament, (b) the
order is proportionate to the policy objective it seeks to further,
and’. Amendment
356, in
clause 152, page 100, line 30, leave
out ‘secure a relevant policy objective’ and insert
‘serve the public
interest’. Amendment
55, in
clause 152, page 100, line 33, leave
out from ‘order’ to end of line 35 and insert
‘does not, other that with that
person’s consent, interfere with or restrict any person’s
right to or interest in privacy, whether that right or interest arises
under any statute or at common law or in any other
way.’. Amendment
56, in
clause 152, page 100, line 41, at
end insert— ‘(5A) No
information-sharing order shall be made unless the authority making the
order identifies and publicly declares which existing government policy
the order would further, the evidence for the existence of that policy
in the speeches or remarks of Ministers during the passage of bills in
Parliament and a statement of how the order will further that
policy.’.
Amendment 57,
in
clause 152, page 101, line 8, at
end insert ‘, except
that such person must be a public authority for the purposes of section
6 of the Human Rights Act, and no power granted under this subsection
shall be used to authorise any person further to share
data;’. Amendment
58, in clause 152, page 101, leave out
lines 13 and
14. Amendment
59, in clause 152, page 101, leave out
lines 18 and
19. Amendment
61, in clause 152, page 101, leave out
line 22 and
insert— ‘(h) modify any
statutory instrument made under the Data Protection Act or any
statutory instrument made under any other enactment, but may not modify
any statute or any rule of common
law.’. Amendment
60, in clause 152, page 101, leave out
line
22. Amendment
147, in
clause 152, page 103, line 13, at
end insert ‘and (c) undertake a
privacy impact
assessment.’. Amendment
357, in
clause 152, page 103, line 13, at
end insert ‘and (c) supply a full
privacy impact
assessment.’. Amendment
148, in
clause 152, page 103, line 14, after
‘order’, insert ‘and privacy impact
statement’. Amendment
149, in
clause 152, page 103, line 18, at
end insert ‘and comment on the
compatibility of the proposals with all data protection requirements
laid down in
statute.’. I
have had a look at the grouping of amendments. It is fairly
comprehensive and it might be for the convenience of the Committee if
we treat our discussions also as a stand part debate. Members of the
Committee might like to bear that in mind when seeking to make
contributions to the debate.
David
Howarth (Cambridge) (LD): The hon. Member for Stafford was
in the middle of an intervention at the end of this morning’s
sitting, and I would be glad to hear the rest of
it.
The
Chairman: Order. This Chairman takes the view that
interventions fall when the guillotine comes down. However, if the hon.
Gentleman wishes to give way to the hon. Member for Stafford, he may do
so.
Mr.
David Kidney (Stafford) (Lab): Does the hon. Gentleman
agree with Sir Mark Walport, who said that he never envisaged that
clause 152 would deal with medical records, and that he expected a
separate scheme especially for medical records? The fact that observers
fear that medical records could go willy-nilly everywhere under the
clause shows that it is too widely drawn and needs restricting. Does
the hon. Gentleman accept that the present group of amendments does not
quite meet the objections that Richard Thomas disclosed to us in his
evidence, and in his memorandum that we have received since
then?
David
Howarth: I accept both those points. The evidence of
Richard Thomas and Mark Walport shows that the Government’s case
that they were simply following the Thomas and Walport review is not
right. Both Richard Thomas and Mark Walport have clarified their
position and say that they are worried that the clause is now far too
wide. The hon. Gentleman might also be right that our amendments to
tease out the Government’s position are not the proposals that
Walport and Thomas wanted to
see. The
hon. Gentleman made an important point about medical records, and
perhaps now is the right time to mention that the BMA said that there
will often be a big benefit for medical research in being able to share
information, but that the information does not have to be associated
with a named individual. The BMA’s support for data sharing was
support for anonymous data to be shared for medical research purposes,
not for the purposes allowed under the clause. I should have referred
to the use of pseudonyms rather than the data being completely
anonymous. We need to track through an individual to undertake the
research properly, but the individual must not be
named. Mr.
Tim Boswell (Daventry) (Con): Although I do not dissent
from the thrust of the hon. Gentleman’s argument, does he agree
that one of the difficulties behind such matters is something that I
have already mentioned in Committee? The Government tend to take an
on-off view of data sharing, as if everything has to be shared rather
than just salient parts of the record, which may or may not be
anonymised for the purpose for which they required to be
shared?
David
Howarth: I am sure that is right, but the way to proceed
is that mentioned by the hon. Member for Stafford, which is under a
specific scheme for pseudonymised medical record sharing. We are
talking about an important special case.
Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op): In his
introductory remarks, the hon. Member for Cambridge was painting the
clause as a great plot. However, his argument is now much more to the
point. It is about how we undertake the appropriate use of data. Does
he accept that it is all about making the right judgments according to
the right principles, and the importance of the code of conduct
applying in all
cases?
David
Howarth: I agree that the code of conduct is important,
but we have to get the primary legislation right, so that we do not
allow the Government too broad a power. We have to somehow control it
by using the code of conduct, which will not be all that clear in
individual cases. It is important to get the powers right first so that
it is more difficult to use them disproportionately. I am not sure
whether it is a conspiracy, though I suspect that the right hon.
Gentleman is right, but it has become a habit.
My underlying
worry about the clause is that it has become a habit to draw up such
statutory powers over-broadly. That is how the problems of detail are
solved—not by thinking hard about them and being more specific.
It seems that the tendency is to solve them by saying, “We will
grab the broadest possible power and leave the
problems until later.” That is not good enough. Our duty as
parliamentarians is to ensure that the powers are incapable of being
used in an inappropriate
way. Mr.
Edward Garnier (Harborough) (Con): The hon.
Gentleman’s point is reinforced when one looks at proposed new
section
50B: “An
information-sharing order may provide for the creation of offences
triable either way which are
punishable— (a)
on conviction on indictment, by imprisonment for a term not exceeding
the specified period or to a fine or to
both”. Here
we have vague crime and sentencing-making powers that are not described
in the Bill, which will be left to a subsequent or the present
Secretary of State to devise, about which he and I as Members of
Parliament have absolutely no idea. If we are to make the criminal law,
it should be clear in the
Bill.
David
Howarth: That is an important principle. As the penalties
and the consequences get worse, the need for parliamentary scrutiny
rises. The breadth of the powers are breathtaking in the way that they
have been written. The data can be shared with any person or
organisation, presumably in any part of the world, not just with
someone or with an organisation in Britain, and certainly not just with
an organisation that is bound by the Human Rights Act and is not an
organ of the
state. An
order can be made in pursuance of any relevant policy without any
restriction at all. Among the many consequences of an order, or part of
the content of an order, is the power to amend primary legislation to
change any enactment. It is important to bear in mind that when Mark
Walport and Richard Thomas wrote their report, they made it clear that
they did not envisage such breadth. They talked about specific
circumstances and they now object, and I strongly object, to the
possibility of using an information-sharing order to override the
provisions of the Data Protection Act.
Walport and
Thomas envisaged information-sharing orders subject to the Data
Protection Act and all eight of the data-sharing principles, which
include the idea that data collected for one purpose should not be used
for another. The Government should acknowledge that the Bill as drafted
goes way beyond the evidence and policy base that they thought they had
in the Walport and Thomas
report. I
will go through the points that our amendments raise and ask the
Government to comment on them individually. My first point concerns
amendment 49 and how information-sharing orders can be in favour of
“any person”. I realise, and we debated it earlier, that
there are examples of the line being blurred between the public and the
private sector. It is now often difficult to tell where that line lies.
I can see the origin of “any person” in that. However, to
leave the wording unrestrained like that has many dangers.
What happens
in the case of data that are controlled by foreign corporations and
Governments, and especially by organisations that are not subject to
the Human Rights Act, and therefore are not subject to the controls and
respect for individual rights and freedom that the Act establishes? I
know what the problem is, but I cannot accept that the solution is
simply to leave it to Ministers to make up their minds later whether,
in any particular case, the person with whom data have been shared is
appropriate.
I consider
amendment 52 to be the most important in the group, and if I am not
happy with the Government’s reply, I shall press it to a
Division. The amendment would remove from the definition of
“sharing” data that are used for a different purpose from
the one originally authorised. That is automatically a violation of the
principles of data protection, and I object to a provision in the Bill
undermining data
protection. We
need to be clear. The idea that Mark Walport and Richard Thomas put
forward—that the orders are not meant to be used to undermine
the Data Protection Act—is inherently contradicted by the
clause. If the Government accept, as I hope they will, Mark
Walport’s and Richard Thomas’s criticisms, it follows
that they must remove those
words. We
have already covered some of the examples. For instance, the medical
example is relevant when it comes to using information for difference
purposes, as is the identity card database example. The DNA database
example is especially relevant, because using DNA in a criminal
investigation is very different from using DNA for all the other
purposes for which it could be used by the state or others. Amendment
52 is crucial, and I am more interested in the Government’s
reply on it than any other point that I
make. The
other amendments are more technical, but there are still weaknesses in
the clause. Amendments 53 to 56 would change the part of the clause
that says that the authority—the Government
Minister—needs to be satisfied, before an order can be made,
that it
“is necessary to
secure a relevant policy
objective”, that
it “is
proportionate to
that...objective”, and
that it balances
“the public
interest and the interests of any person affected by
it.” That
strikes me as being far too weak. Our proposals test ways in which the
measures in subsection (4) can be
strengthened. Amendment
53 would remove the subjective element. Instead of a decision being
made on the basis that the conditions are satisfied in the opinion of
the Minister, there would be a requirement for the conditions to be
satisfied. That goes back to the point made by the right hon. Member
for Knowsley, North and Sefton, East on judicial review. We need to
ensure that there is a proper basis for effective judicial review, and
give the courts a clear way into the substance of a
decision. 1.15
pm Amendment
54 raises the problem of what constitutes a “relevant policy
objective”. How do we know what the Government’s relevant
policy objectives are? Could they make new objectives up on the spot,
including ones that undermine the principles of data protection? There
must be some control over that concept.
Walport and
Thomas make it clear that information sharing orders should not be used
in a way that changes policy under any circumstances. If that is to be
achieved, we must be able to identify what existing policy is, and we
cannot allow the use of that phrase in the Bill to justify a change
simply because the Government now say that our policy is something
different.
Mr.
George Howarth (Knowsley, North and Sefton, East) (Lab): I
am grateful to the hon. Gentleman, but there should be reliance on the
word “relevant”. If something was not relevant, his fears
would be upheld in any reasonable legal process that
followed.
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