Coroners and Justice Bill

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Mr. Kidney: When Parliament passed the Data Protection Act 1998, it was contemplated that data might be shared after the Act was passed. There are exemptions and exceptions in the Act to permit data sharing. The House of Commons research paper for the Bill, number 09/06, says that few of the exemptions and exceptions are blanket in nature. That suggests that some of them are blanket in nature. Exceptions are not something new in terms of allowing data sharing. However, until now, when Parliament has felt the desire to allow data sharing, it has had to pass specific permission through an Act of Parliament. That same research paper talks about such provisions in the Digital Switchover (Disclosure of Information) Act 2007, the Serious Crime Act 2007, last year’s Education and Skills Bill and the Pensions Bill.
I was at the annual meeting of the parliamentary warm homes group at the end of last year, where members of energy companies said to me, “If only we could have access to information on who gets pension credit, we could tell them that they could have energy efficiency measures done to their homes completely free of charge. It would certainly reduce their Bills and may actually save their lives.” They asked me whether I thought that that was a desirable policy objective, and I must admit that it is a tempting aim to want to save people’s lives and cut elderly people’s fuel bills. Against that, do people in receipt of pension credit want, without their permission, other people to know that they are in receipt of it? That one example shows us how difficult the issue is.
I take exception to some of the comments that have just been made and to some of the newspaper reports about the provision, because of the complete absence of the Information Commissioner from the debate, when his report started the entire enterprise. Recommendation 8(a) of his report was for
“a new statutory fast-track procedure”
to allow data sharing. “Primary legislation”—it has turned out to be the Bill—should grant
“the Secretary of State...a power by remove or modify any legal barrier to data sharing...or creating a new power to share information where that power is currently absent.”
That is an eye-opening recommendation, but it is the recommendation of an office that the official Opposition find so trustworthy that he alone among the organisations of this country should have the power, as we heard this morning, to enter premises without a warrant, and yet so trustworthy that in the afternoon his opinion is completely disregarded and trashed. There should be some balance in the debate. The Information Commissioner’s report and recommendations wrestled with serious issues such as whether we can save the lives of elderly pensioners at Christmas time.
The commissioner went too far in his recommendations. The Government have been given an inch and taken a mile—clause 152 is unsatisfactory. I am happy to be on the record saying that. However, the intention behind the clause is entirely honourable and probably desirable. I would like there to be a section 152 in the final Act after Royal Assent, but not in this form.
Mr. George Howarth: I want to identify with the point of my hon. Friend. I do so with a particular apology to the Committee: having taken part in the debate, I have a meeting at the Department for Business, Enterprise and Regulatory Reform with a local firm shortly, so I may not be able to stay for the entire debate. However, I make it clear that my hon. Friend’s last point is a good one.
Mr. Kidney: Although I have not had a huge number of representations from constituents, they have expressed concerns about the clause as drafted—two in total, although one mentioned the British Computer Society, which apparently also opposes the clause in its present form. I assume that the society has a reasonable number of members whom it is accurately representing in its objections to the present provision.
When I became a member of the Committee, it crossed my mind that I would want to table amendments to the clause. I e-mailed the Information Commissioner asking for a briefing to enable me to understand the issues and perhaps identify what the right amendments would be. I do not criticise his reply, but it was that, as I was a Member, I would hear his evidence in Committee and get his memorandum like everyone else. I heard his evidence and asked him whether he expected the Government’s provision to enable a Minister to repeal by order the Data Protection Act or the Human Rights Act. He said no, he had not appreciated that that might be the consequence. I listened to his evidence and read his memorandum, but together they did not quite give me the feel for what the amendments should do to make some sense of the clause.
In my exchange with the hon. Member for Cambridge, I asked if he thought his amendments quite did it, and he said that he did not think that they did. I have come to the conclusion that there will have to be nothing less than a rewrite. When completed, the clause will have to have a less complex definition of data sharing, a more agreed basis for the weighing of different policy objectives—with the example I gave about pension credit, one can see how two desirable things come into conflict with each other—and something about how far the order-making power can go in repealing primary legislation. Perhaps the Information Commissioner did not appreciate what he was unleashing when he made that suggestion in his report.
I hope that the Minister will say that she understands the objections, that she wants a provision such as this in the final Act, but that she agrees it should be in a different form.
Alun Michael: My hon. Friend makes a valid point, and I agree with a lot of what he is saying. However, he referred, as others have done, to the capacity for repealing primary legislation, as if somehow whole swathes of legislation could be removed as a result of the clause. My reading of the intention is that it would merely remove obstacles to data sharing where it is necessary to do so. Like him, I think that there is probably a need for some redrafting, but is it not right that there should be some capacity for removing unintended obstacles that may occur in legislation from time to time, as long as it is done in a manner consistent with data sharing principles?
Mr. Kidney: This is my final point. My right hon. Friend is absolutely right. Certainly, the Information Commissioner thought that there might be obstructions to data sharing at the margins of Acts of Parliament that were not contemplated at the time, and that it would be neat and tidy to put them out of the way now that we see that that is desirable. He did not anticipate that an entire Act of Parliament such as the Data Protection Act 1998 itself could be repealed by an order. Does that mean that on a legal challenge, if the Government ever tried to do such a thing, the court could say, adopting the purposive interpretation of the Act, “I don’t think Parliament intended the Minister to have that power”? Maybe. Of course now, as a result of Pepper v. Hart, the judge could read the contributions to our debate and say, “I’m sure that’s not what was intended,” but it would be better if the Bill imposed limitations to make it clear that that could not happen.
Mr. Boswell: I apologise to the Committee for my absence this morning, which, sadly, resulted in my missing some useful prior exchanges on this matter and related issues. However, we occasionally have clashes, as was acknowledged by the right hon. Member for Knowsley, North and Sefton, East, who is now leaving the Committee. I do not take an absolutist view. I think that there are, properly, arguments on both sides of the issue. I have listened to them with some interest.
I start by declaring an interest, which I share with the right hon. Member for Cardiff, South and Penarth. I am a member of the Parliamentary Information Technology Committee, PITCOM, and now a director of EURIM. I hasten to say—I exempt the right hon. Gentleman from this—that I am not at the high-tech end of the spectrum. I am at the end that concerns itself with the application of public policy. When one considers the measures in the round, one finds areas of concern on both sides, which is why I say that the issue is one of balance.
As the right hon. Member for Cardiff, South and Penarth said powerfully to the Committee, there may well be national security implications. In some interesting cases, data mining may be appropriate. I remember reading a fascinating article that started with what one might call a conventional appraisal. If someone is accessing jihadist material and information about self-made explosives on the internet, they might well be of some interest to the security services. On the other hand, one can launder such interest by putting oneself down for an awful lot of pornographic websites, which somehow throws people off the scent. I say that because I have some idea of the complexity.
The hon. Member for Stafford, reasonable as ever, made a point about a cause that I share with him, which is warm homes. It would be nice if one could just give the various fuel charities access to the pension credit database so that they could give money to pensioners at Christmas. At that point, one must realise that it is not always necessary to break the principles of the Data Protection Act 1998 in order to assess them.
My hon. Friend the Member for Rugby and Kenilworth will be aware of a controversy involving constituents of both his and mine and relating to admissions to schools in his constituency. I have been approached on that case by a number of parents. As they came from different sources, I have not thought it proper to say, “Get in touch with Mrs. X.” I have thought—I am sure that Members have different practices—that the right way to do it is to say, “If you wish to get in touch with a number of people who are organising parents, I will supply that information if you like.” In other words, the direct approach—“Who’s on pension credit?” or “Who has said they’re worried about the Rugby schools’ admission policy?”—is not immediately transferable but passes through the membrane of consent. That is a first and prior defence.
2.30 pm
Having said that, consent is certainly not a sufficient solution to our problems. The major area of concern, and why we should condition the clause, is this. People are not concerned about criminality—we do not expect the criminal to give consent for information to be shared—but, on the other hand, in our day-to-day lives, we implicitly give consent for our information to be shared in ways that are sometimes a little sinister or even eerie.
I have two cases in mind. Like many people, I use the online system for renewing my road tax, which works well. It suddenly occurred to me that the tax people knew with which insurers I had concluded a contract. I also did not know that I had given any consent to the Government to know that. No doubt it was somewhere in the small print.
The second case is similar. Because of a geographic anomaly—I live in a different county from my postcode—for years, my wife had not been able to get a protocol for online internet supermarket shopping. When she eventually broke through, the supermarket said, “Don’t worry, we’ll fill in your first week’s order because we know exactly what you have”. They knew the exact pattern of her shopping because, like many of us, she holds a loyalty card from the supermarket. Nothing of that is improper, and it does not directly involve the Government, but it is the kind of thing that makes us sit up and worry.
The important principle of consent must be balanced against the principle of fighting crime and terrorism, and other major Government policies—I agree with what was said on how wide those principles have been taken. On the other hand, there is the feeling of public unease and distrust. That is not simply about what data have been lost, but, overall, that the general public may be losing control of the situation.
Having mentioned the right hon. Members for Knowsley, North and Sefton, East, and for Cardiff, South and Penarth, who are on the Government side, I should like to mention my colleagues on the Opposition Front Bench. I was wondering whether it was possible to call my hon. Friend the Member for North-West Norfolk a Dave Spart-type radical, let alone my hon. and learned Friend the Member for Harborough. I did not detect Dave Spart-style radicalism in anything that they said, only in the passion with which they expressed their reservations, which I share.
I do not wish to detain the Committee as many of the issues have been rehearsed, but I would like to make two or three points. The first is on the question of discretion, which appears on page 101 of the Bill, which uses the words,
“provide for a person to exercise a discretion when dealing with any other matter”.
I am anxious not to trespass on your indulgence, Mr. Gale, by talking about another piece of legislation—my Exercise of Reasonable Discretion Bill will shortly have its Second Reading—which the hon. Member for Stafford, who I praised earlier, has sponsored. The purpose of that Bill is to allow Ministers to use their common sense. The difficulty is when the conditioning under which that is done—the fact that Acts can be set aside or whatever—is so fundamental that it might be considered a power too far. I will be interested to hear any arguments that Ministers make against that Bill on Second Reading because they could relate to this issue.
From what I have seen of it, historically, one of the protections for the citizen has been what I might loosely call the inefficiency of the structure of government. Government has been organised in silos, and substantially remains that way. Information does not readily and totally flow across departmental boundaries, nor automatically between Government and public authorities such as local authorities. Although that is irritating, and has given rise to some of the problems in both crime fighting and wider areas of public policy that Government Members have talked about, it has stopped the whole thing getting out of control.
As technology changes and the information can be transferred quickly and electronically and perhaps with insufficient safeguards under the clause and its amendments, so it opens a much wider access to information. Something that I have banged on about twice before in this Committee, but I will say again, is that I am concerned about what the private sector will do when information is passed. Should it be conditioned to enclose only those fields of information that are appropriate?
There is a danger, at the moment, that if it is agreed between Department A and Department B that this information should be passed and that there should be an information sharing order which overrides legislation, at that point they get the crown jewels, the whole lot, not the relevant portion of the file.
Alun Michael: The hon. Gentleman referred earlier to membership of PITCOM and other parliamentary bodies. I am not sure that that is a declaration of appropriate interest, although I agree that they exist. Does he agree that there is information that sometimes ought to be shared across public bodies and does not flow because of the difficulties of getting that information across? Does he also agree that there should be a capacity for requiring those bodies to share appropriate information and to do so in accordance with data sharing principles?
Mr. Boswell: I would need to look at the small print, but the way the hon. Gentleman expressed it—as reasonably as ever—is acceptable. However, he has conditioned it within the data sharing principles and not as subverting those principles. One should not subvert primary legislation unless there is a specific reason for doing so. I am not an absolutist; there are arguments for instances where we should share more information, and that is what the Thomas and Walport review was about. We need to find sensible, practical conditions, which are not completely set by the clause.
I have suggested one condition that can be dealt with in a data-sharing order. There should be field protection—not necessarily the whole file passing, but only those relevant portions. The second point that concerns me is passing on information. Again, the Bill provides for the sharing of information, including the private sector, and its being passed on to third parties. There is no doubt that when people join the public service and become civil servants they sign the Official Secrets Act and are conditioned. However, those protections tend to become attenuated outside the public sector, let alone outside the jurisdiction and overseas.
My third point—I am not sure whether it has already been made and forgive me if it has—is the question of any financial nexus involved. I see no reference to finance—I may have missed it—and whether a designated authority might, in pursuit of its policies, charge for information and if so, on what basis. Would it be a cost recovery charge, or would there be an attempt to make a commercial profit? It could be argued that, if the public expenditure survey had been particularly tight and the authority was a bit short of money, securing a relevant policy objective might include raking in some value. If such commercial purposes were allowed, that would put a rather different construction on the motives for transferring the information.
We all share some disquiet about the specific drafting, some understanding that there is probably a need for change in this area, and some wish to produce a less enabling provision that is better conditioned as to the type of information, occasion and safeguards. We will all express that to different effect and we look forward to the Minister’s response.
This is not an issue affecting only the United Kingdom. A number of Committee members are involved in the Parliamentary Assembly of the Council of Europe. I have started putting toes into the water as to whether we might try to press for a European-wide convention on data sharing. We would want it to be pretty wide, like most Council conventions.
My motive in putting it forward is that I have been reading articles on the French concern about the so-called EDVIGE system, which concern what information can be kept together. In virtually all Western countries where liberties are regarded as important, one finds that these issues are around. In the end, they came back to my wife’s feeling of unease about the supermarket knowing what she spent her money on. She understands why that happens, and she certainly understands that she has implied consent for it. However, if we feel that people are taking over from us, we lose all faith.
The convenience and exigencies of Government, and even the real issues about terrorism, do not by themselves justify selling civil liberties lightly. If we have to do it—it is a sad analogy, but I will use it—I would much rather that we gave ground like a first world war general, fighting for every inch, making every bit of the case. We should not have the general enabling powers in clause 152, which might be used appropriately in some cases by present and future Ministers, but, sadly, we can be fairly certain that in some cases they will not.
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