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Lord Clement-Jones: We have had a very impressive double-barrelled approach on Amendments Nos. 28 and 29, and I suspect that the Minister may get an equally impressive double-barrelled approach on Amendments Nos. 30 and 31. They are slightly different, but the underlying concern is exactly the same.
I shall not go into the murky depths of the Data Protection Act, but shall stick to Amendment No. 30. However, I sympathise very much with what the noble Lord, Lord Fowler, said in probing Clause 7(2)(a). The key question arises with paragraph (c). As both the noble Earl, Lord Howe, and the noble Lord, Lord Fowler, have emphasised, it is: what constitutes the definition of "public interest"?
As the agency's remit includes fairly sensitive areas—health threats from bioterrorism and radiological sources, to name but two—understandably some information handled by the HPA will need to be kept confidential. But the agency—and, indeed, the Secretary of State—should not be able to use "public interest" as a blanket device to prevent the publication of information without a proper process to check and justify a decision not to release the information. Not only ourselves but the Faculty of Public Health, which is well versed in this area, and many others have asked who decides whether or not publication is in the public interest.
We on these Benches have carried out research on other Acts of Parliament to see whether there were any precedents for this kind of approach. We have looked at the Food Standards Act, the Data Protection Act and the NHS Act 1977 to see how legislation defined or used the term "public interest" in relation to publishing information and advice. The Data Protection Act does not contain a working definition. The most useful comparison that can be made is the approach taken in the Food Standards Act, which states:
- "Before deciding to exercise that power"—
- "the agency must consider whether the public interest in the publication of the advice or information in question is outweighed by any considerations of confidentiality attaching to it".
I have considerable sympathy with what the noble Earl, Lord Howe, and the noble Lord, Lord Fowler, have said. I prefer our approach, which is that if the Health Protection Agency is to use public interest as justification, it should bear the burden of showing why it wishes to suppress information.
I shall leave it to the noble Baroness, Lady Finlay, to deal with Amendment No. 31, which adds an extra safeguard.
We are all in some difficulty in discussing this group of amendments. When we met the Minister on 20 January, he said that he would undertake to provide a working definition of "public interest" and the underlying definition that would be used by the Secretary of State and the HPA in such circumstances.
The noble Earl, Lord Howe, is absolutely right that this is not a trivial matter; it is a key matter of public confidence. If there is any suspicion that information is being suppressed for the wrong reasons, the credibility of the HPA will instantly be called into question. Teasing out the precise nature of "public interest" in these circumstances is of great importance.
6.45 p.m.
Baroness Finlay of Llandaff: The amendments go right to the heart of the issues of open government and professional freedom. Such decisions are extremely difficult in terms of any information that is withheld.
I concede that there could be a situation where it would be deemed to be in the interests of national security for some information to be withheld to avoid panic, particularly where safe disclosure is planned, or to avoid impeding security investigations at a delicate point or even while verification of some data occurs. So there may be situations where extremely sensitive data emerge from the agency.
However, we must ensure that a sound process in regard to the reasoning behind such a decision—similar to the one outlined by the noble Lord, Lord Clement-Jones, in regard to the Food Standards Agency—is in place. This is the time when the board comes into its own in taking responsibility. The non-executives on the board have a crucial role. They must be informed. It would be incredibly dangerous for suppression to occur at any layer below board level. The board must be able to question, work through and understand the issue and why something must be withheld. So the processes of the debate must be minuted. Those minutes can be kept confidential, but they must be available for scrutiny later, if that is felt necessary.
It will also be important for the Chief Medical Officer and the Secretary of State to be kept in the information loop. The board should have a
responsibility to report its decisions and actions. Of course, it will be up to the Secretary of State to inform Ministers in the devolved administrations about such decisions and how they have been taken. That would allow decisions to withhold information to be relatively impartial, not subject to political expediency. It would ensure that full responsibility was taken at board level for withholding information and that it was truly in the public interest, not a political interest.
Baroness Masham of Ilton: In public health, tracing is vital—if possible; sometimes people just disappear. There are so many dangerous conditions—SARS and Ebola being examples. This is surely an opportunity for the Committee to lead other departments in sorting out the issue of the Data Protection Act 1998 and Human Rights Act 1998. When tracing people, it is possible to use code names or numbers rather than names.
Lord Warner: I am extraordinarily nervous about the challenge thrown down by the noble Baroness, Lady Masham, in her last remarks. Brave man as I am, I am not sure that I want to lead the Committee down the path of sorting out the Data Protection Act.
Perhaps I may start by putting the matter in context and work my way through the arguments about each of the amendments. Let me say at the outset that we are absolutely at one with the noble Lord, Lord Fowler, on the importance of making information available to the public. There is no disagreement between us on that.
Clause 7(1) provides a clear path for the agency proactively to publish advice and information. As far as we have been able to establish, such a power does not exist in the founding legislation of any other body, apart from the Food Standards Agency and, to some extent but in more limited form, in the HPA as a Special Health Authority. That is the position from which we start. The agency's power to publish information is stronger under the Bill than it was as a strategic health authority. We have strengthened that power and, as the Bill is currently framed, the discretion of judgment in Clause 7(1) is left with the agency, subject to the caveat in Clause 7(2). So there is a clear responsibility on the agency to make that judgment.
I shall now go through the caveats in Clause 7(2), to which the amendments tabled by the noble Lord, Lord Fowler, relate. Clause 7(2)(a) and (b) simply make it clear that the power to publish granted by subsection (1) does not override other legislation in which Parliament or the democratic institutions in Scotland and Northern Ireland have set out prohibitions on publication. Similarly, the power in Section 19 of the Food Standards Act for the Food Standards Agency to publish its advice and information is,
- "subject to the requirements of the Data Protection Act 1998",
- "prohibited by an enactment".
So those constraints in Clause 7(2)(a) and (b) pretty much reflect the constraints placed in the Food Standards Act.
I hope the noble Lord will accept that reassurance. As I said on an earlier amendment, I will set out the legal position on the Data Protection Act in relation to the Human Rights Act as it touched on our previous discussions. I do not want to go over that ground again because I have undertaken to write to all Members of the Committee with our legal opinion.
I shall pick up on other points raised along the way by the noble Lord. I turn to paragraph (c) of Clause 7(2) which has also caused concern. I shall check my sources, but my understanding of the "public interest" is that it tends to be defined in terms of case law when challenges are made in the courts. I believe that the words mean what the dictionary definitions say they do, but there is case law on what determines the public interest. Under the terms of this legislation, that judgment is to be left to the HPA.
I turn now to the relevant point about the interaction between this legislation and the Freedom of Information Act 2000. Seekers of information about public bodies will be able to do so from January 2005. That Act will bite upon the HPA as a public body when, as is likely and assuming that the legislation goes through, it becomes an agency under the terms of this legislation in April 2005. When it comes into being, it will have to conform with the requirements of the Freedom of Information Act, which is an important consideration.
Let us reflect for a moment on what the agency will need to do to conform with freedom of information legislation and any request to release information. Under the FOI Act, for the first time there will be a statutory general right of access to all types of recorded information held by public authorities. It will mark our move away from a culture of secrecy. The Act includes provisions governing the limited circumstances in which access to information can be refused. The agency, along with other public bodies, will need to maintain an audit trail showing how it has dealt with requests for information. In particular, under the terms of Section 17 of the Act, if it refuses a request to release information it will need to tell the person asking for that information whether it is withholding the information sought and, if so, under which exemption in the Act. The legislation therefore deals with situations where the agency reacts to requests to release information.
However, there is a pretty clear expectation that all public bodies—when they know that these demands can be made—will themselves have to reflect on the way they release information more generally rather than having it, so to speak, dragged out of them. So the FOI will impact on the behaviour of public bodies because the ability to get at information will be on the
statute book and operational. We have to bear that in mind because it introduces another dimension to the way Clause 7(2) would operate.
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