Mr.
Boswell: Following that argument, will the hon. Gentleman
concede that there may be a problem in defining the purpose for which
the original legislation was introduced? Legislation may simply include
a provision that something should be collected without having an essay
on the purposes for which it should be collected or even for which it
should be
used.
David
Howarth: As a matter of parliamentary scrutiny, it is up
to us during the passage of such legislation to ask the Government to
make it absolutely clear what the purpose
is. 3
pm
Mr.
Garnier: To use an example with which the hon. Gentleman
might be more familiar than visiting supermarkets, I draw attention to
the discovery process within civil litigation. Parties to civil
litigation are required to exchange documents at certain stages in the
litigation on the understanding that such a process is to be used only
for the purposes of litigation. The Government will understand that
only too well, because the Leader of the House in her previous
existence as a lawyer was held in contempt for doing the wrong
thing.
David
Howarth: I am not too sure whether the hon. and learned
Gentleman is right that, at this stage in my life, I am more familiar
with that example than that of
supermarkets—I fear that I am more familiar with
supermarkets—but he has cited a good example. We ought to be
clear that the problems of sharing and of different purposes are so
different that, when the Government rewrite the clause, they should
separate them entirely. In fact, two completely different clauses might
be
needed.
Mr.
Garnier: Or a different
Bill.
David
Howarth: Or, as the hon. and learned Gentleman has said, a
different Bill might be
needed. Unless
the Government understand the worries about using information for
different purposes, they will not know why Opposition members object to
the process. It comes down fundamentally to violation of the principle
of consent. Even though I am grateful for the concessions that the
Minister has made, I am willing to take up her offer to talk about what
might replace the clause. I am happy to ask the Committee for consent
to withdraw amendment 49 and not to vote on other amendments, but I
want to press amendment 52 to a Division. I beg to ask leave to
withdraw the
amendment. Amendment,
by leave,
withdrawn.
Alun
Michael: I beg to move amendment 155, in
clause 152, page 100, line 8, at
end insert— ‘(1A) In
carrying out the requirements of an information-sharing order, a
designated authority must have regard to the code of practice issued in
pursuance of section
52A.’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 358, in clause 152, page 100, line 35, at end
insert ‘and (d) that any data
sharing complies with the requirements of the data-sharing
code.’. Amendment
154, in
clause 153, page 107, line 8, after
‘Act,’,
insert— ‘(aa)
encouragement to data controllers to realise the
importance of balancing all appropriate considerations, including all
aspects of the public interest and the protection of personal
information, in reaching a judgement about what data to share, how and
when to do so, and what conditions to apply to shared
data,’.
Alun
Michael: I am grateful for the opportunity to return to
some specifics that were touched on previously. I shall try not to
repeat the matters that have already been covered. I welcome the way in
which the Minister responded to the earlier debate. To accept that
there are problems and to undertake to deal with them is a sign of
maturity, and it is worthy of support and praise. I want to take up her
acceptance that there are problems with the drafting of this part of
the Bill and to make a couple of suggestions that I hope she will take
into account when she redrafts the
provisions. I
support the capacity of Ministers to require data to be shared and
their ability to be able to remove obstacles to the sharing of
information, as long as they require the public bodies to do so in ways
that are consistent with data management principles. The idea that the
intention of the order is to subvert data protection principles is the
real problem. If it is to require the sharing of data in accordance
with data-sharing principles and to remove some perceived obstacles or
to clarify the situation for Departments or Government
organisations,
that seems entirely reasonable. However, I do not believe that it is the
intention of Ministers to subvert the principles, so let us make that
explicit in the Bill. Amendment 155
would add the
words “In
carrying out the requirements of an information-sharing order, a
designated authority must have regard to the code of practice issued in
pursuance of section
52A”. In
considering that, my hon. Friend might even want to strengthen it to
“follow the requirements of” the code of
practice—one Opposition amendment uses the words “comply
with”.
The important
thing is to make it clear that an order to share data does not mean
that data sharing can be done willy-nilly or that there is a complete
removal of principles. That should be explicit. In my experience, there
is nothing that requires things to be more explicitly stated in a Bill
than data protection, even things that are already the case, as in the
example that I gave earlier of making it clear to local authorities and
the police that they can share information for the purpose of
preventing and reducing crime. I hope that the Minister will say that
it is the intention not for any order to override the central and basic
principles of data management, but to require sharing of that data in
accordance with data-sharing
principles. The
second amendment that I have tabled is also about trying to get the
message across that there is no nice, comfortable place where either
everything or nothing is shared, although it would be much easier for
people if that were the case. Sadly, on occasion, lawyers and data
protection officers have retreated into that citadel instead of
accepting that judgments must be
made. My
second amendment would insert into the requirements for what should be
in the
guidance “encouragement
to data controllers to realise the importance of balancing all
appropriate considerations, including all aspects of the public
interest and the protection of personal information, in reaching a
judgement about what data to share, how and when to do so, and what
conditions to apply to shared data”. My hon. Friend might well
respond by saying, “Well, that’s common sense and good
practice.” I agree, but I do not think that there is any harm in
spelling it out that the order requirements would not do away with the
requirements to apply those principles and common sense.
In accordance
with the comments that you made earlier, Mr. Gale, I want to
mention a couple of points on clause stand part in order to get them
out of the way and, hopefully, to hear a response from the Minister.
There was an exchange between the Minister and the hon. Member for
Cambridge about sharing personal data; indeed, the hon. Member for
Cambridge said that he wanted to press the point to a vote. I honestly
do not think that he has got it right. I do not think that he
understands the overlap between personal data and the sort of
information that is needed, that people expect to be shared and that is
important for the development of public policy, particularly at the
very local
level. I
do not know whether the hon. Member for Cambridge shares my experience,
but constituents, in speaking to me about a subject, say, “I
don’t know why they don’t know that piece of
information,”—whether it is age, telephone number,
address or anything else—“I’ve given it to the
council already,” clearly expecting information to be used for
purposes other than the one for which it
was originally given. It is important to have clarity about how far we
go beyond the specific purpose for which a piece of information is
being provided by the individual, in order to be clear about how it
might be
shared. David
Howarth: In my previous existence as a council leader, I
came across exactly that problem. Surely the solution is to ask people
for their consent in advance when they give the information, not just
for it to happen randomly
later.
Alun
Michael: I agree entirely that consent should not be given
randomly, but it is sometimes difficult to deal with things
retrospectively. Lots of information is already in the possession of,
for instance, local authorities. A local authority might develop a new
policy to help the elderly or the partially sighted, who are just the
sort of people who often do not make applications. We are going through
the analogue TV switch-off, which is a tremendous opportunity, as we
discussed in the Chamber on Tuesday, because audio description will be
automatically available to people with a digital box. If that sort of
information were not shared to improve people’s quality of life,
they would find it difficult to understand why
not.
I think that
we agree that there needs to be clarity, clear policy drivers and an
approach that is not random. There is a point between the rather
extreme position taken by the hon. Gentleman and the more
random-looking provisions in the Bill, and that is the place where we
ought to end
up. Anonymised
data at a very local level are essential to understanding differences
and variations, as I know from my experience as both a councillor and a
community worker. Having that sort of information, right down to the
small enumeration district level, made an enormous difference in
targeting activity to help people in the area where I
worked. Another
point concerns how devolved issues are dealt with in the legislation. I
do not want to detain the Committee long on this point but, sadly, we
have had some illiteracy previously from the Ministry of Justice on the
nature of the devolution settlement. That is a pity considering that it
is the Department responsible for constitutional matters. The Minister
may recall that last year, last-minute amendments had to be made when
requirements to protect NHS staff had been made applicable only to
England rather than to England and
Wales. 3.15
pm
I am concerned
about the phrasing of proposed new section 50C(4) of the Data
Protection Act 1998 on the sharing of information between Welsh
Ministers and central Departments. Proposed new section 50E(4) refers
to an order
that “authorises
information to be shared by or disclosed to a relevant Welsh body in
connection with any devolved Welsh function of the
body”. Before
doing
so, “An
appropriate Minister must obtain the consent of the Welsh
Ministers”.
Ministers in the
Department for Justice should be familiar with the fact that crime
reduction and policing are not devolved matters, but that the Welsh
Assembly is a designated body under the 1998 Act when it comes to using
its capacity to help the reduction of crime. Therefore,
the line between devolved responsibilities and those held by devolved
organisations and Departments is not that clear. Rather than detain the
Committee, I simply ask the Minister to look at whether the measure is
quite as it is intended. She could look at it with some of us who have
recently been teasing out those issues when dealing with legislative
competence orders or members of the Welsh Affairs
Committee. Finally,
will the Minister, in any redraft, consider the opinions that were
expressed by the Justice Committee? Given the significance of the
proposed data-sharing code of practice in governing the practical
application of policy—as I have said, that should include policy
on which requirements are placed by Government—parliamentary
scrutiny of draft sharing codes of practice should be incorporated.
Secondly, will the Minister say whether the Bill deals with a situation
in which it might be in the public interest for the personal data in
question to be shared but the body holding the data makes no
application to do so? The answer might be that the only way to deal
with that would be with a mandamus order, but if a Department or an
organisation is reluctant to share data, they may not request the
exercise of powers by Ministers. I would be grateful if the Minister
were to clarify what would happen in such
circumstances.
Mr.
Bellingham: I do not want to trouble the Committee for
more than 20 seconds. This is a sort of back-of-an-envelope stab at the
problem. I looked at clause 152 carefully, but I could not see any
requirement for data-sharing proposals to comply with the data-sharing
code. Can we have that in the Bill please?
Bridget
Prentice: I fully accept the points made by my right hon.
Friend the Member for Cardiff, South and Penarth and the hon. Member
for North-West Norfolk, and I endorse the spirit of the amendments. I
would expect any sharing of information authorised by one of the new
information-sharing orders to be undertaken in the code of practice.
The code of practice is issued under clause 153 and would set out
guidance in relation to sharing personal data. Such guidance would be
applicable in all cases, irrespective of the statutory or other power
under which the data are shared. As such, there is no need for the Bill
to include an express link between the code of practice and
information-sharing orders, because the link is already
there.
Alun
Michael: I made the point that, even when that is the
case, data protection requirements are massively misinterpreted by data
protection controllers and lawyers. Even though she has confirmed that
link, I urge her to put it in the
Bill.
Bridget
Prentice: Over the next week or so, during the course of
the Committee’s discussions on other aspects of the Bill, which
I look forward to, we will no doubt see whether that really is
essential, despite the fact that I have said that the link is there
already. However, I agree with my right hon. Friend that it is central
to any decision on data sharing that the code of practice makes
provision that encourages data controllers to take all factors into
account in reaching a judgment about sharing data. However, I consider
that that is already encompassed in the requirement for the code to
make provision in relation to the requirements of the Data Protection
Act 1998 and good practice.
I hope that I
have been able to provide some reassurance, although I suspect that I
have not entirely reassured my right hon. Friend. I believe that the
link is already provided for, but if we need to discuss that further
during next week’s debate, we can do
so.
Mr.
Brown: In response to my right hon. Friend the Member for
Cardiff, South and Penarth, the Minister referred to the devolved
Administrations. Keeping in mind that the Scottish Parliament has
different powers from the Welsh Assembly, have she or her officials
spoken to officials or Ministers in the Scottish Parliament about the
changes? Will she share any responses that she might have
received?
Bridget
Prentice: I have not spoken with Ministers in the Scottish
Parliament, but officials have been in contact with them, and my
understanding is that they are satisfied with the way in which the
provisions have been developed. I ask my right hon. Friend to withdraw
his amendment, and I shall reflect further to see whether it is
necessary to put in the Bill the suggestions made by him and the hon.
Member for North-West
Norfolk.
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