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.