Draft Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011

The Committee consisted of the following Members:

Chair: Mrs Linda Riordan 

† Afriyie, Adam (Windsor) (Con) 

† Brake, Tom (Carshalton and Wallington) (LD) 

† Cooper, Rosie (West Lancashire) (Lab) 

† Danczuk, Simon (Rochdale) (Lab) 

† Djanogly, Mr Jonathan (Parliamentary Under-Secretary of State for Justice)  

† Drax, Richard (South Dorset) (Con) 

† Flello, Robert (Stoke-on-Trent South) (Lab) 

Fovargue, Yvonne (Makerfield) (Lab) 

† Greenwood, Lilian (Nottingham South) (Lab) 

† Henderson, Gordon (Sittingbourne and Sheppey) (Con) 

James, Mrs Siân C. (Swansea East) (Lab) 

† Michael, Alun (Cardiff South and Penarth) (Lab/Co-op) 

† Munt, Tessa (Wells) (LD) 

† Percy, Andrew (Brigg and Goole) (Con) 

† Redwood, Mr John (Wokingham) (Con) 

† Shannon, Jim (Strangford) (DUP) 

† Wallace, Mr Ben (Wyre and Preston North) (Con) 

† Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Mark Oxborough, Committee Clerk

† attended the Committee

Eighth Delegated Legislation Committee 

Wednesday 9 March 2011  

[Mrs Linda Riordan in the Chair] 

Draft Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011 

2.30 pm 

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly):  I beg to move, 

That the Committee has considered the draft Data Protection (Subject Access Modification) (Social Work) (Amendment) Order 2011. 

The order amends an order made in 2000 with regard to the data protection rights of individuals in the context of social work. It brings the data protection obligations of the Children and Family Court Advisory and Support Service in Wales, or CAFCASS Cymru, into line with those of its counterparts in England. The purpose of the order is to ensure that officers of CAFCASS Cymru are exempted from the requirement to disclose personal data to an individual—known as a “data subject” in the Data Protection Act 1998—when they consider that that would be likely to prejudice the conduct of social work by causing serious mental or physical harm to that individual or a third party. 

As a result of an order made in 2005, CAFCASS Cymru’s counterparts in England can already use the partial exemption when replying to requests for personal data made under section 7 of the 1998 Act. In 2000, when the 1998 Act came into force, the Government brought forward an exemption by order. That could be relied on when the disclosure of the information would prejudice the carrying out of social work by causing harm to an individual or a third party. The schedule to the 2000 order listed the organisations and functions to which the exemption could be applied. That important exemption—the subject of today’s debate—ensures that individuals’ rights to see their personal data do not inadvertently prevent social work from being carried out effectively. 

With that background in mind, I turn to the reason for the order before us. In 2005, Parliament approved an order that added certain functions of CAFCASS to those in the 2000 order. The 2005 order allowed CAFCASS to apply the social work exemption in appropriate cases. As hon. Members will know, CAFCASS works with children and their families who are involved in family proceedings and advises the courts about what it considers to be in the child’s best interests. Matters in which CAFCASS may become involved include the situation in which parents are separating or divorcing and cannot agree on arrangements for their child. The role that CAFCASS officers perform means that they routinely process information relating to social work. 

Unfortunately, an oversight at the time of the 2005 order has meant that CAFCASS in Wales, or CAFCASS Cymru—a separate organisation from CAFCASS in

England—has not been able to apply the exemption, while its English counterpart has been able to. As a result, the intention behind the 2005 order, as agreed by Parliament—that the exemption should apply across England and Wales—has not been fulfilled. It is important that the inconsistency in the subject access regime between England and Wales should be rectified and that CAFCASS Cymru should be able to use the exemption as was originally intended. 

I emphasise that the Government take very seriously the issue of individuals’ rights to access their personal data. Just as we have made clear our commitment to transparency in public data and official information, so we are committed to upholding people’s rights to see what information about them is being processed in both the public and private sectors. Indeed, the recent call for evidence by the Ministry of Justice sought views on how the current subject access regime was working. Responses confirmed that individuals see that as an important right and that data controllers by and large take their responsibilities in this area seriously. 

However, there can be no doubt that in certain specific circumstances, such as those that we are considering today, releasing information may not be in the interests of an individual or others, including the children of the individual or those involved in protecting them. I make it clear to the Committee that a right of appeal remains for individuals who believe that a subject access request has not been fully complied with. 

Mr John Redwood (Wokingham) (Con):  The problem has been going on for more than five years. Have there been examples of information being given out that has done damage? 

Mr Djanogly:  There have been examples of information being given out; I can tell my right hon. Friend that in the past three years, that has happened on 23 occasions. However, to our knowledge, no damage has occurred because of the release of that information. 

As with any subject access request, there is a right of appeal through the courts under section 79 of the 1998 Act. Alternatively, individuals can approach the Information Commissioner, who may investigate whether the data controller has complied with its obligations under that Act. In addition, the order will add employees and contractors of CAFCASS Cymru, acting in their professional capacity, to the list of relevant persons in the social work order of 2000, as is the case with CAFCASS in England. 

Section 7 of the 1998 Act acknowledges that there may be times when the personal data of another person may be released as the result of a subject access request. In most circumstances, the data controller will need to seek the consent of that other person, or assess the reasonableness of disclosure, before releasing the data. However, the personal data of a relevant person as defined in the 2000 order are not subject to those conditions of consent or reasonableness. That means that CAFCASS Cymru must disclose personal data given by its employees in the course of their professional duties if it is required to provide the data subject with their personal data under the terms of the subject access request. Consent and the reasonableness test are not factors in the disclosure. Again, this provision brings

CAFCASS Cymru in line with CAFCASS in England, to ensure consistency in the approach of the two bodies to releasing personal data. 

Including CAFCASS Cymru in the list of organisations able to apply the exemption not only protects individuals and ensures that social work can be carried out effectively, but will ensure coherence and consistency between the organisations in England and Wales, and correct the error made in 2005. I therefore commend the order to the Committee. 

2.37 pm 

Robert Flello (Stoke-on-Trent South) (Lab):  May I say what a pleasure it is to serve under your chairmanship, Mrs Riordan? 

When I first considered the order, it seemed to be about a dry, technical but not important matter. The more I considered it, however, the more I realised that it deals with people’s fundamental right to know what data are held about them, how those data are used and what safeguards are in place. It may seem to be a dry matter, but it cuts to the heart of the information and data held by the state, in all its forms, and how they are used. 

As the Minister said, the order corrects an error from 2005. My first question is about why it has taken six years to amend the order. [Interruption.] The Minister smiles; perhaps he is thinking that the previous Government should have dealt with it. As a result of the help and support given by his officials, he will know that the matter was not sufficiently pressing to draw it to the attention of previous Ministers. I am curious as to why it is now thought to be important to make the change. Perhaps it has taken a number of years because it is such a simple matter. 

That leads me to my next question. Is the Minister satisfied that the error was an oversight, or was it thought not to be severe enough to be dealt with? My third point, which the right hon. Member for Wokingham raised in an intervention, is about the number of cases that have arisen over the years. The Minister kindly replied that there have been 23 cases, and that to the best of his knowledge no harm has been done. Perhaps that answers my question about why it has taken such a long time to get to this point. I wish to draw the Minister a little further. Will he go back to the Department to consider the nature of those cases and further assure himself that no damage was done? If he finds to the contrary, perhaps he will write to me. I am grateful that the Minister said what the people of Wales could do if they felt aggrieved about their inability to get data about themselves, which they will now be able to do. I appreciate that. 

That leads me to my final question, which is about the frequency of the exemption that is already in place for England. Perhaps the Minister has at his fingertips information about how frequently the exemption has been used in England and how appropriate it is. If he does not have that to hand, perhaps he will write to me with that information as well. I would be keen to know how widely used these exemptions are. That gets back to the fundamental purpose of the 1998 Act; it is there to protect the rights of individuals from information about them being held by the state and private persons, and the importance of individuals’ having access wherever possible to what information is held. 

Those are my questions, and I would be grateful if the Minister responded to them. 

2.41 pm 

Tom Brake (Carshalton and Wallington) (LD):  It is a pleasure to serve under your chairmanship this afternoon, Mrs Riordan. I will be happy to support this order in a couple of minutes’ time. May I clarify my understanding of what we are about to do? After we pass this order, when CAFCASS in Wales gets a request, it will not be able to withhold data on the grounds that the consent of the relevant person has not been obtained. Does that mean that the data that it has to release could have the name of, say, a social worker redacted, or would it have to release the whole of the data? Some cases can get very heated, and there may be circumstances in which one would not want to release the name of a social worker. Are there any safeguards, or will the order require the names of those involved in particular dealings to be released into the public domain? 

2.42 pm 

Mr Djanogly:  To set the record straight, I should say that, yes, the order rectifies an error. CAFCASS Cymru became a separate organisation in 2005. The function of the Welsh Assembly was devolved to Welsh Ministers, and that was not accounted for in the 2005 Order. 

As for the general point made by the hon. Member for Stoke-on-Trent South about our overall philosophical position, I put on the record the fact that the coalition Government believe that individual rights should be protected; that includes the right to access their own information. The Government also have a duty to protect individuals from potential harm, and both those objectives must be met. That is why the right of subject access is not absolute. A number of exemptions apply if it is judged that the release of personal data would not be in the wider interest. 

The point was made as to why it has taken five years to make this correction. Although I cannot speak for the previous Administration, I can tell the hon. Gentleman that since the matter has been brought to our attention, we have worked to rectify the omission. We believe it is important to ensure that CAFCASS Cymru has an explicit legal basis on which all aspects of the subject access regime are managed. 

My right hon. Friend the Member for Wokingham asked whether any harm had been caused. CAFCASS Cymru is unaware of any specific instances in which the release of information in response to a subject access request has caused harm to an individual. CAFCASS Cymru already withholds some information in line with the Information Commissioner’s guidance and when the information has been provided in confidence. However, it would be difficult to know whether harm was caused specifically by the release of the information resulting from the subject access request, or whether it was caused as a result of the general distress of the difficult case being dealt with by CAFCASS Cymru. 

Jim Shannon (Strangford) (DUP):  The Minister mentioned earlier that the appeal process was set in place in Wales, as it is in England. Is he aware, for example, of the number of appeals that have taken place in England? If he does not have the answer, I am happy to come back to the issue some other time. 

Mr Djanogly:  We are not aware of the situation in Northern Ireland, but I will write to the hon. Gentleman about his point. 

Jim Shannon:  I was talking not about the process in Northern Ireland, but about the one in England. 

Mr Djanogly:  CAFCASS in England makes decisions about disclosure under the 1998 Act by looking at a number of the exemptions available. Those may include situations in which sensitive health information is involved, for which a separate exemption exists under the 1998 Act. It has not kept a record of which exemption is relied on in particular cases, so it is impossible to give a definitive answer on that. However, it would not be right for the Government to interfere operationally in either organisation, although we are planning to review the use of the exemption in a year’s time. CAFCASS in England and CAFCASS Cymru have agreed to inform us about its use. 

Robert Flello:  If I have understood the Minister correctly, a review is taking place in a year’s time. Will he explain whether, as part of it, the various CAFCASS organisations have agreed to clarify exactly which exemption they are using in the intervening period? 

Mr Djanogly:  Yes, they have. 

My hon. Friend the Member for Carshalton and Wallington raised the issue of the release of names of

relevant individuals. It is important to remember that the draft order would allow CAFCASS Cymru to withhold information about social work thought to cause prejudice by causing harm to the individual or any third party, possibly including those who work for CAFCASS Cymru. 

CAFCASS in England, which must already adhere to that provision when replying to subject access requests, has told us that to date it is not aware of harm caused to employees. It has explained that, in all cases so far, only the name of the employee has been released, and that it is highly likely that the individual making the request will already know the name of that person, who would most likely be a social worker. As such, it would probably raise more suspicion if the name of the employee in question was redacted. The name is therefore almost always released. CAFCASS Cymru officials have said that their approach would be similar to that of CAFCASS in England. 

We believe that the order is a reasonable amendment that aims to protect individuals—both those requesting personal information and those working to help them. It is important that we rectify the unintentional error made in 2005, which has resulted in a difference in practice between CAFCASS in England and in Wales. I hope that hon. Members will agree that the order is an appropriate, proportionate and sensible measure. 

Question put and agreed to.  

2.48 pm 

Committee rose.