Mr.
Stephen O'Brien: Let me take the Minister back to the
point of picking up on the question of a broader and public debate;
that is what he felt needs to happen now. I am thinking very much on
Baroness Thornton’s words in the other place, when she
said,
“I
made clear the Government’s desire for a wider debate on the
cap”—[Official Report, House of Lords, 6 May 2009;
Vol. 710, c.
658.] She did
not say, as the Minister has, that that needs to take place after the
current judicial review. Is the Minister indicating, by what he just
said about that judicial review, that whatever emerges from it, the
Government would not wish to take any implementing action or, indeed,
respond to any injunctive relief, to the extent that they could resist
that, rather than simply entering into a broader and public debate as a
way of postponing the issue, which is clearly urgent? As he has already
identified, there is a need to address this serious
issue.
Mr.
Mike O'Brien: The difficulty in trying to address this
issue before the judicial review is completed is that anything a
Minister says, including this one in this Committee, can be prayed in
aid in relation to the judicial review. If we tried to carry out a
broad-based consultation while a judicial review was in progress,
discussion of the issues would play into an interpretation of the
clause that is the subject of current judicial examination.
We need to
get that completed—completion is due in the autumn—and we
want to then look at its outcome, which may well give us some views
from the courts about how this should be looked at and, after a full
and thorough examination, which issues are in need of addressing from
the courts’ point of view. We will then be in a position to be
able to set out our strategy for a proper discussion and
review.
We do not
dispute that there is an issue that needs to be appropriately
determined, but we are certainly not convinced that the approach being
taken here by the Opposition is the right one, and we do not accept the
amendment agreed in the other place as the better way forward. We need
to look at this issue in the round. We need to examine it properly. We
need to take a view on how the NHS should proceed with regard to
private income, and we need to do so with the freedom to have a full
and proper discussion about it, after the judicial review
concludes.
Mr.
Stephen O'Brien: In effect, in the position that he has
taken, the Minister has accepted that a problem needs to be addressed,
but he does not like the way that it is currently addressed in what the
upper House has handed down to us, nor in any other measure at this
stage. His position is, rather: let us go back to the existing
unsatisfactory position where the amount of the cap is, in effect,
arbitrarily set in stone from the amount of private patient income that
happened to exist in 2002-03. That has an absolutely venal effect on
the mental health partnership trusts, which are causing such a
nightmare: the hon. Member for Romsey made that point.
It is
interesting that to some degree, the Minister in the upper House also
sought to pray that point in aid, as part of the way the Government
were seeking to see the point off when the issue was debated there. Of
course, the Government were defeated in the upper House when the issue
was pressed. It was Baroness Meacher who
said: “I
have been given assurances that there are people in the Government who
do not have a problem
with” what
was being proposed—we know who that was—which was
eventually supported. She continued to
say: “When
the Government are able to institute a review, we would all hope to be
involved in it, contribute to it and support it. Then, if possible, a
consensus can be found through a good consultation
process...However, that is all for the future. There is no
upcoming health
Bill”— we
now have one, which has made it possible to insert this
clause— “and
the issues are too important to leave for an unspecified opportunity in
the future. NHS foundation trusts up and down the country are
struggling with this. In my view, having the principle in the Bill will
affect how people operate. We have boards of
governors”— the
hon. Member for Stourbridge has made it clear that she understands this
point— “and
members councils out there that will be watching this and will know
that the principle is in the Bill—if we can get it in the Bill.
Personally, as somebody who passionately believes in the NHS and NHS
patients, I want—and we want—that principle in the Bill.
Therefore, I wish to test the opinion of the
House.”—[Official Report, House of Lords, 12 May
2009; Vol. 710,
c.940-41.] Sadly,
we have not really moved any further. I think it is appropriate, in
light of these discussions, to test the opinion of the House. I
therefore wish to press the point, recognising that we are also having
the clause stand part debate. We have, in the amendment, the
opportunity both to be specific and to test the principle. If we are
honest to ourselves, if the upper House means anything, it is because
it is capable of reviewing and improving legislative proposals that
come before us. In
this area, it has done a good job and deserves our support. I therefore
urge all members of the Committee to back the
amendment. Question
put, That the amendment be
made:— The
Committee divided: Ayes 6, Noes
9.
Division
No.
7] Question
accordingly negatived.
Question
put, That the clause stand part of the
Bill. The
Committee divided: Ayes 6, Noes
9.
Division
No.
8] Question
accordingly negatived.
Clause 34
disagreed
to.
Clause
35Disclosure
of information by Her Majesty’s Revenue and
Customs
Mr.
Stephen O'Brien: I beg to move amendment 84, in
clause 35, page 33, line 21, at
end insert— ‘(3A) Her
Majesty’s Revenue and Customs must publish a list of disclosures
of information under subsection (2) to the persons listed in subsection
(3), paragraph (e) which must
specify— (a) the person
or persons to whom the information was disclosed;
and (b) the reason for the
disclosure.’.
The
Chairman: With this it will be convenient to discuss the
following: Amendment 85, in clause 35, page 33,
line 22, leave out ‘a’ and insert
‘an
anonymised’. Amendment
161, in
clause 35, page 33, line 23, after
‘enable’ insert
‘any’. Amendment
86, in
clause 35, page 33, line 24, after
‘person’, insert ‘or
practice’.
Mr.
Stephen O'Brien: As they say, Mr Key, see you on
Report.
Clause 35
moves on to a different subject: the disclosure of information by Her
Majesty’s Revenue and Customs. I will deal with three amendments
and my hon. Friend the Member for Hemel Hempstead will deal with
amendment 161.
Amendment 84
seeks to ensure that there is an appropriate level of accountability
and public scrutiny included in the information-sharing practices of
Her Majesty’s Revenue and Customs and the Department of Health,
by mandating HMRC to publish details of the recipients of the
information it discloses to the Department of Health and the reasons
behind those disclosures. The amendment would help ensure that the
Government do not share information for reasons other than those
expressed in the explanatory notes and debates on the subject to
date.
Amendments
85, 161 and 86 all seek to ensure that the provisions of this clause
cannot be exploited to share information for any reason other than the
intended purposes. During Second Reading, the Secretary of State deftly
tiptoed around the fact that for the last four years, his Department
has been complicit in an information-sharing practice which is illegal.
The Secretary of State could not quite bring himself to use the word
“illegal” during our last debates. Rather elegantly, he
referred to it as giving the practice a “firmer legal
footing”. As the Minister and I both know—as will anyone
else who has been trained in the law—that is the ultimate legal
and lawyer’s phrase for saying “I need to make sure this
is legal because it has not been like that to date.”
I can
understand the reasons behind requiring access to the information. I
was much consoled by Baroness Thornton’s admission in the other
place that she and her colleagues had consulted the British Medical
Association and the British Dental Association about the arrangements
in the Bill. However, I seek an assurance from the Minister that this
process will, from now on, take place in the full light of
day—something that my amendment intends to enshrine in primary
legislation. Amendment 84 does not allow for information on pay to
enter the public domain, but it does enable the process of sharing this
information to be scrutinised widely. There is need for transparency in
every aspect of government. If the Government are honest and up-front
with the public about information-sharing practices, there is less
scope for abuse or misuse of information. Therefore, I need to ask the
Minister what measures have been put in place to ensure that the
information that he obtains from HMRC is not abused, but used
appropriately. How is he ensuring that the Government are accountable
for the way in which they use the information?
Through
amendment 85, I wish to probe the process by which the disclosed
information will be anonymised and to query why the word
“anonymised” has not been included on the face of the
Bill. The explanatory notes
state: “The
information disclosed will be a summary of anonymised information
relating to the earnings and expenses of these
practitioners.” The
explanatory notes contain both the notion of aggregation and the notion
of anonymity as distinct processes, whereas the Bill appears to blur
these two concepts into one.
Let us examine
the exact phrasing of the paragraph in question. The Bill
states: “Information
may be disclosed under this section only in the form of a summary or
collection of information so framed as not to enable information
relating to a particular person to be ascertained form
it.”
The Bill directly links
the inability to obtain information relating to a particular person to
the aggregation of information in the form of a summary, but that does
not necessarily include anonymisation. It is true that the Government
may well be able to achieve a certain amount of anonymity through
presenting data in an aggregated form, but we need to be clear about
what “anonymised” actually means. The Oxford English
dictionary defines it as the quality of
being
“made anonymous,
especially by the removal of names or identifying
particulars”.
It is clear
that the word is more precise than the anonymity derived from
aggregated data. It involves the removal of specific identifiers such
as names, addresses or gender, where relevant, so that even if the
information is broken down to the level of a practice or group of
practitioners, the anonymity of specific persons is fully protected. By
way of example, I cite the comments of Baroness Cumberlege in the other
place. She asserted that with aggregated information on a particular
area of the country, the clause could apply to
“the disclosure
of identifiable information relating to a specific GP practice with
more than one partner. You would not be able to ascertain the income of
one individual, but you would be able to ascertain the income and
expenses of the partnership.”—[Official Report, House
of Lords, 17 March 2009; Vol. 709, c.
GC36.] By
placing the word “anonymised” in the Bill, I hope to
cement the Government’s commitment to sharing information only
where anonymity has been rigorously guarded, even when it is presented
in an aggregate form.
It is
important that we distinguish between aggregate and anonymised and do
not rely on one to deliver the other if aggregate information would
allow quite a close analysis of the salaries of a particular practice,
for example. As I have already stated, this is a probing amendment, so
perhaps the Minister can shed some light on the process by which
information is aggregated, so that the Committee can be reassured on
that matter.
1.30
pm I
shall skip over amendment 161 and leave it to my hon. Friend the Member
for Hemel Hempstead. While I am on my feet I shall address amendment
86, which picks up on some of the comments made by the Government in
the other place. Baroness Thornton took issue with a query from the
Conservative spokesperson, Baroness Cumberlege, regarding the ability
of the Government to use the clause as a mechanism to obtain
information on a particular practice. If that is possible under the
proposed legislation, it would be relatively easy to match up pay
details with specific practitioners.
Baroness
Thornton gave an assurance in the other place that details of
practitioners’ pay would not be disclosed by Her
Majesty’s Revenue and Customs in an aggregate form unless it
related to 30 or more doctors or dentists. She said that the number
would be revised if it was thought that a practice might exceed that
number of practitioners. The Minister may wish to reiterate that, and I
hope that he will.
That guiding
principle may be the current HMRC policy, but what is to stop the
Government probing below the guideline of 30 practitioners? What
regulations are in place to prevent such an occurrence? I shall be
grateful if the Minister will point me towards the relevant
legislation.
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