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Lord Warner: Certainly, I am happy to reflect on the debate and to read the remarks made by noble Lords carefully. I shall consider whether we could look at the drafting of this provision in a way that will find a little more favour among Members of the Committee.
On Question, amendment agreed to.
Earl Howe moved Amendment No. 21:
- Page 4, line 23, at beginning insert "Subject to the provisions of the Data Protection Act 1998 (c. 29),"
The noble Earl said: I hope that the Minister will reassure me straight away that Amendment No. 21 is unnecessary. But there is clearly a balance to be struck between allowing the agency to pursue its active
operational links with local authorities, as it must certainly do, and conferring carte blanche on the agency to disclose confidential patient data to anyone on a local authority's payroll.As I read the clause, it is not at all clear whether, for the purposes of Section 31 of the Health Act 1999, or of the duty of co-operation in Clause 5, arguments of expediency with regard to the sharing of information override the accepted norms of confidentiality and data protection as set out in the Data Protection Act. I shall cover Clause 5 in more depth later, but one of the most striking aspects of it is that, apart from local authorities, it does not specify the bodies and organisations with which the agency has a duty to co-operate.
There will be many such bodies. It is simply not good enough to say, as Clause 4(9) appears to do, that, provided the agency is engaging in this type of practical co-operation, it does not matter what information it discloses, or to whom, and what information is disclosed to it. In some situations there may be a need for such disclosure to take place in the public interest, but not, I suggest, as a routine, unquestioned procedure. I should be grateful if the Minister could throw some light on this provision in Clause 4 and, it is to be hoped, reassure me that we are not entering coach-and-horses territory. I beg to move.
Lord Clement-Jones: Unusually, I rise to give some support to the noble Earl, Lord Howe. Normally, the noble Earl is a hawk in these matters and I am somewhat of a dove in terms of the use of personal information for purposes such as public health and so forth. But the noble Earl has raised an interesting and important point. My bias would be very much in favour of ensuring that patient records and so forth are available in circumstances where there are threats to public health and it is important to trace contacts to determine the origin of an infectious disease or whatever it may be. In general, I am against having too much of a trammel on such exchange of information.
On looking at the subsection, it is extraordinarily unqualified in the way in which it operates. There is no judgment of proportionality. It may be that the department lawyers would say, "Well, actually, there is a duty of proportionality, a duty of overriding public interest, that is brought in aid in these circumstances. Therefore, whether information is released properly is subject to a set of general principles". I am concerned that I see nothing of that in this provision. It is one thing if information is exchanged for the purposes of preventing epidemics and the transmission of infection in crisis circumstances, but if there is the day-to-day exchange of information, without higher purpose, and disproportionate to the damage that it is trying to prevent, the noble Earl may have a good case.
Baroness Finlay of Llandaff: Perhaps I may briefly put a balance on the spin of this argument. I can see a situation arising where someone may have brought something into the country as part of an illegal activity and in that process introduced either an infection or a noxious substance, resulting in treatment for the
infection or toxicity. For the Health Protection Agency effectively to trace, it will have to cross some boundaries of confidentiality. One of the difficulties is at what point this can be got right. I hope that the Minister will be able to reassure us that some guidance will be enacted to allow the Health Protection Agency to ferret out problems and to protect the population. We must ensure that its powers are used for that and not potentially abused by over-zealous investigation that goes beyond the boundaries of privacy and, in fact, privacy as outlined in the Human Rights Act.
Baroness Masham of Ilton: This is an interesting amendment. I know that it is a different subject, but in the Soham case, as regards the Humberside police, the confusion was the Data Protection Act. The reason for not giving necessary evidence was that Act. Therefore, it is a serious amendment that needs to be looked at.
6 p.m.
Lord Warner: Dealing with the narrow point of the amendment itself, I shall make two separate comments. First, we think that the amendment is unnecessary because it is our clear understanding that there is no reason to think that there would be any need for information of the kind with which the amendment of the noble Earl seeks to deal to be exchanged under these arrangements. As I understand it, we are not talking about that kind of personal information being passed in a non-anonymised form. It is not an issue and therefore the amendment is not necessary.
However, we have entered the complicated territory of the inter-relationship between the Data Protection Act and the Human Rights Act. At this point I am reluctant to go into a long dissertation on the subject, but I will say that, essentially, parliamentary counsel sees this as a matter where if the information was used against the authority in the Data Protection Act and it was not proportionate, this could bring it within the terms of the Human Rights Act. So the judgment would be concerned with the proportionality of dispensing with the safeguards of the Data Protection Act.
I am happy to write giving the legal opinion which underpins this argument rather than go into its lengthy detail now. I agree with noble Lords that it is an interesting issue, but it is probably not something for the delectation of the Committee at this hour. However, I shall write to noble Lords with the detail of parliamentary counsel's arguments on this issue.
Lord Clement-Jones: That would be very helpful. However, I wanted to elicit from the Minister whether he was saying that the usual procedure will be not to use non-anonymised data.
Lord Warner: I may have forgotten to say the negative.
Lord Clement-Jones: So they will use non-anonymised data; that is, personal data.
Lord Warner: I have confused the noble Lord with my negatives. Where this was being used, it would be anonymised data. But there is no expectation that personal, identified data would be passed.
Lord Clement-Jones: Speaking as a layman in this area, it seems quite extraordinary that that would be
the case. The whole purpose of tracing would be to lead directly to individuals. Whether one thinks of TB or another disease, one needs to know not only the postcode but the person and their address in order to trace them. That is what gives this debate a particular point.
Lord Warner: I shall be happy to revisit the point with my experts, but that is my understanding of the position. However, I shall clarify matters and write to noble Lords so that we are not further detained.
Earl Howe: Perhaps I may say to the noble Lord, Lord Clement-Jones, that, perhaps unusually, I am completely at one with him. I am grateful to all noble Lords who have spoken in this short debate.
The issue is one of proportionality and the noble Baroness, Lady Finlay, made an extremely helpful suggestion when she proposed the issue of some form of guidance or protocol to govern these difficult situations. If it is envisaged that there will be no need to pass on the kind of sensitive information to which I referred, a way should be found to prevent that from happening in the wording of the Bill. Perhaps that is easier said than done.
The aim of my amendment was not simply to provide a hook with which to raise this issue but to make the point that the Data Protection Act does not prevent the dissemination of personal data when that is necessary in the public interest. The problem raised by the noble Baroness, Lady Masham, in relation to that Act was, as I understand it, that the provisions of the Act were misunderstood by the parties involved and that the Act did not prevent the retention and dissemination of the information at issue in that case.
However, I welcome the Minister's offer to show us the legal opinion he has received. That will be illuminating. Without further ado, I shall withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Warner moved Amendment No. 22:
- Page 4, line 25, after "(5)(c)" insert "or (e)"
On Question, amendment agreed to.
Clause 4, as amended, agreed to.
Earl Howe moved Amendment No. 23:
- Page 4, line 34, leave out "(including local authorities)"
The noble Earl said: In moving Amendment No. 23, I shall speak also to Amendments Nos. 24 to 26 inclusive. In moving the amendment I should like to take a little time to open up the issue of co-operation both by and with the agency, this being the subject covered by Clause 5, and to say something about the issue of accountability in relation to public health protection.
The work of the Health Protection Agency will be a mixture of the planned and the unplanned. Much of the planned work will be routine. That is not in any way to belittle its importance; it is merely to point out that the agency will have ongoing programmes of
monitoring and surveillance, the collation of data, and the preparation of advice for Ministers and the public which will comprise its day-to-day, bread and butter work. It will also be involved in horizon scanning and in commissioning and interpreting research.From time to time, it will be faced with a local or national emergency to which it will be necessary for it to respond at short notice. Work of that kind is necessarily unplanned, although the agency must be prepared for it. In all these facets of its work, however, the agency cannot act in glorious isolation. There is a multitude of different bodies and agencies, national and local, on which it will depend and which in turn will depend on it to ensure that the public is protected from biological, chemical and radiological hazards in the most effective manner possible.
Against that background, Clause 5 is a little strange. It alludes in general terms to the nexus of relationships but does not go to the trouble of specifying any of them. The only relationship which it chooses to highlight is that between the agency and local authorities. That inter-dependency will certainly be of huge importance, but it is not the only one of importance. I have listed some others. The list set out in Amendment No. 26 is not one compiled at random but is taken from the Civil Contingencies Bill, which takes as its starting point the need for proper, structured arrangements for dealing with civil emergencies.
In that Bill, one of the types of emergency explicitly covered is an event or situation that may cause loss of human life or human illness. Another is damage to the environment from harmful biological, chemical or radioactive matter. A duty is placed on those bodies and individuals listed in Schedule 1 to that Bill to assess the risk of, and plan for, civil emergencies. A Minister of the Crown is given powers to issue guidance to any of those bodies or persons whose duty in turn is to give advice and assistance to the public. There are ministerial powers of direction in the Bill and powers for Ministers to make emergency regulations.
The first question that we must ask is how the provisions of the Civil Contingencies Bill interrelate with those in this Bill. The Health Protection Agency will have a major role to play in many types of civil emergency, yet the most that is hinted at in the Bill is that it will be obliged to,
- "co-operate with other bodies . . . which exercise functions relating to health or any other matter in relation to which the Agency also exercises functions".
I am not sure how many Members of the Committee will have read the report on public health by the Nuffield Trust that was published last year. If one overriding concern is expressed in that report, bestriding all others, it is,
- "the fact that there is no clear answer to the simple question 'Who is responsible for the control of communicable diseases in these islands?'".
The report argues that although we have a Minister for Public Health who is accountable to Parliament, there is no formal framework, however tight or loose, to link Ministers with public health professionals and others working on the ground; nor is there a single body with a duty to monitor and advise on the health of the people of the UK or its constituent parts.
The creation of the agency may prove to be a step towards creating that framework and single channel of communication. However, one need only look at my amendment and the multiplicity of bodies and individuals with responsibility for one aspect or another of public health protection to appreciate that there is still a very long way to go. Simply to say, as the Bill does, that these bodies, whoever they are, must all co-operate with each other ignores the need for there to be someone or some body with their hands on the key levers for maintaining standards of public health protection and driving them up.
Where are the formal links, for example, between local authorities, who have many of the legal powers in relation to public health, and the NHS, which is responsible for commissioning and delivering health care? What will be the organisational links between the agency and local environmental health departments? Why will there apparently be no service-level agreements between the agency and local NHS trusts? At a national level, whose job will be to co-ordinate public health issues across government? Who is there whom Parliament and the public could call to account if there were a major failure to protect the nation's health? Unfortunately, the Bill as drafted does not deliver any answers and one could argue that Clause 5, although acceptable as far as it goes, merely serves to muddy the waters further.
We also need reassurance that the critical work of the agency will actually get done. The Minister will know that there has been considerable anxiety about the absorption of many of the former PHLS laboratories into the NHS. I have no wish to beef about that; it is done, and that is it. But without service level agreements between the HPA and NHS trusts, what confidence can we have that work such as the monitoring of food poisoning outbreaks, or of MRSA, will continue in the way it always used to? What contractual arrangements are in place to ensure that NHS laboratories continue these important programmes? I ask this because we hear worrying stories coming out of the NHS to the effect that some laboratories have proved reluctant to prioritise public health work in the way that the HPA would like, and that this has obliged the agency to relocate the work associated with food poisoning outbreaks. The obvious downside to that is that if suddenly the agency loses its local networks of monitoring and surveillance, the task of determining the geographical extent of an outbreak becomes all the more difficult.
Against that background, are the Government really telling us that a simple duty for unspecified people to co-operate with the agency, as set out in Clause 5, is a sufficient reassurance that all will be well? I confess that I am extremely hesitant about that proposition. So, although I would not necessarily
suggest that the kind of elaboration proposed in my amendment is the only way forward, I would like the Minister to consider whether in Clause 5 we need something rather beefier than we have at the moment. I beg to move.
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