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I am relatively confident from hearing the contributions that have been made that noble Lords will be loath to prevent this opportunity to identify fraud and crime if, following the affirmative resolution procedure, both Houses thought that that was a fit and proper thing to do. I hope that on that basis, and with the assurance that noble Lords opposite have done so much to underline about the need for care, attention and scrutiny, that the noble Lord, Lord Thomas of Gresford, will think that he has done his valiant best and can rest content that his duty is done.

Lord Thomas of Gresford: My Lords, I am most grateful to the noble Baroness for that tribute to my valour. I shall have to take it a step further, however, because I did not hear a single word from her which indicated a reason for rejecting the amendment. She said that she cannot imagine that the children’s database will ever be used for the detection of fraud but that it cannot be ruled out. She agrees that the identity card register, when it comes into being, is not to be used for data mining, but that it cannot be ruled out. I do not see that as a proper answer to the amendment and I feel it necessary, as a matter of principle, to seek the opinion of the House.

4.24 pm

On Question, Whether the said amendment (No. 99A) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 141


Division No. 1


CONTENTS

Addington, L.
Alton of Liverpool, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Barker, B.
Beaumont of Whitley, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Bridges, L.
Clement-Jones, L.
Cobbold, L.
Dholakia, L.
D'Souza, B.
Dykes, L.
Fearn, L. [Teller]
Garden, L.
Glasgow, E.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Kirkwood of Kirkhope, L.
Lee of Trafford, L.
McNally, L.
Mar and Kellie, E.
Masham of Ilton, B.
Neuberger, B.
Newby, L.
Northover, B.
Redesdale, L.
Rennard, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell-Johnston, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Taverne, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Worcester, Bp.


30 Apr 2007 : Column 892


NOT CONTENTS

Adonis, L.
Ahmed, L.
Amos, B. [Lord President.]
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Bilston, L.
Blood, B.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Butler-Sloss, B.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Coussins, B.
Crawley, B.
David, B.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dear, L.
Desai, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. [Lord Chancellor.]
Farrington of Ribbleton, B.
Filkin, L.
Ford, B.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gregson, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jones, L.
Jordan, L.
Judd, L.
Kilclooney, L.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Handsworth, L.
Morris of Manchester, L.
O'Neill of Clackmannan, L.
Palmer, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Puttnam, L.
Quin, B.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rendell of Babergh, B.
Richard, L.
Rogan, L.
Rooker, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sheldon, L.
Simon, V.
Slim, V.
Strabolgi, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Tenby, V.
Thomas of Macclesfield, L.
Tomlinson, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Varley, L.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williamson of Horton, L.

Resolved in the negative, and amendment disagreed to accordingly.



30 Apr 2007 : Column 893

4.36 pm

Schedule 6 [Data Matching]:

[Amendment No. 100 not moved.]

Baroness Scotland of Asthal moved Amendment No. 101:

The noble Baroness said: My Lords, I invite your Lordships to consider further the Government’s amendments on the data-matching provisions of the Bill. I should like to make it clear that although I will speak as though they affect only the Audit Commission’s work in England they will similarly apply to equivalent exercises undertaken by the auditing bodies in Wales and Northern Ireland.

Your Lordships expressed concerns in Committee that the Audit Commission could use its new powers to profile individuals on the basis of their particular characteristics and behaviour in order to predict their future propensity to offend. The Audit Commission had, and has, no intention of profiling individuals in this way. Rather, as I explained in Committee, the purpose of including a power to identify patterns and trends is to enable the Audit Commission to identify where individuals may be working in concert to commit fraud or crime, or where organised crime rings may be operating across a particular geographic area. As drafted, the definition of “data matching” would allow the Audit Commission to provide its analysis of emerging trends and patterns to those participating in the exercise so that they can co-ordinate their efforts in tackling at its root cause fraud that is happening now.

I understand from the demonstration of the national fraud initiative that the Audit Commission recently gave to some Members of the House that the noble Lord, Lord James, was anxious to know how the national fraud initiative would help tackle organised crime rings where a Mr Big was lurking behind a number of small operators. I do not see the noble Lord in his place, but I know that it is an issue of concern and so I am happy to deal with it. As I have explained, this is precisely why the Audit Commission needs the power to be able to identify patterns and trends that emerge from data matching.

Your Lordships may also recall the point I made to the House earlier; the new power will enable the Audit Commission to identify emergent risks in areas where existing fraud is on the increase so that bodies can better target their resources. That said, I do recognise that legitimate limits need to be in place to ensure the protection of individual liberties, not least privacy and the presumption of innocence, that citizens in this country are entitled to enjoy.

Following a useful discussion with the noble Baroness, Lady Anelay, for which I am grateful, I understand that her concern is to prevent profiling which could be used to predict the propensity to offend in the future. I can understand the noble Baroness’s concern considering the particular nature and purpose of the national

30 Apr 2007 : Column 894

fraud initiative. As we have said all along, this initiative is designed specifically to detect anomalies without making any assumptions as to guilt. On that basis, I have tabled an amendment which I hope will meet that concern. It will impose a sensible limit on the extent to which data matching can be used for the identification of patterns and trends in the national fraud initiative. Specifically, the amendment will ensure that data matching cannot be used to profile individuals according to their characteristics or behaviour so as to predict the likelihood of future offending. I hope that that will provide the desired assurance about what the Audit Commission can and cannot do with the national fraud initiative tool and, at the same time, leave in place provisions which are essential in the fight against existing fraud. I hope that the noble Lords, Lord Thomas of Gresford and Lord Dholakia, will agree with that. I know that that concern was raised on the matter.

The noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, propose that the Audit Commission should not be able to obtain patient data from bodies that are under a mandatory duty to participate in the national fraud initiative. Patient data are already explicitly excluded from the data that bodies may contribute to the Audit Commission on a voluntary basis. Therefore, Amendment No. 102 would effectively mean that the Audit Commission would not be able to require patient data at all.

I must resist this amendment on the grounds that, first, the exclusion of these data could severely undermine the value of the national fraud initiative to the “mandatory bodies”, particularly NHS trusts, and, secondly, there are adequate safeguards to ensure that this sensitive information is dealt with in an appropriate manner. I should say at the outset that the national fraud initiative does not currently use medical records or clinical data in its data-matching exercises, nor does it have any plans to do so in the future.

The term “patient data” is, however, defined more broadly than that to include not just clinical information, which the Audit Commission does not, in any event, use, but also demographic data, such as a patient’s name and address. Specifically, patient data for data-matching purposes mean data that relate to an individual and are held for “medical purposes”, as defined in the National Health Service Act 2006. The term “medical purposes” is, itself, broadly defined to capture information held for the purposes of preventive medicine, medical diagnosis and research, the provision of care and treatment and the management of health and social care services, as well as information about individuals’ physical or mental health or condition, the diagnosis of their condition or their care and treatment.

The Audit Commission may wish to use demographic data in data-matching exercises where they could indicate fraudulent activity, such as where practitioners either knowingly receive payments from NHS trusts for patients who are no longer registered with them or duplicate payments for those patients. NHS trusts will be mandatory bodies for the purposes of the Audit Commission’s data-matching exercises, and these data will be obtained from those bodies.



30 Apr 2007 : Column 895

However, we recognise that patient data—even just their demographic aspect—are particularly sensitive pieces of information. For that reason, following consultation with officials at the Department of Health, voluntary bodies have been precluded from providing any patient data, both demographic and clinical, to the Audit Commission on a voluntary basis under these provisions. In our view, this achieves the correct balance between, on the one hand, using patient data for those bodies for which we have decided it is especially important, and therefore mandatory, to participate in the national fraud initiative and, on the other, bodies for whom it is merely optional.

I also draw your Lordships’ attention to the specific protections that will apply with respect to the use and disclosure of any patient data used for data-matching purposes. Where patient data have been included in the national fraud initiative, the results of those matches will, under new Section 32D, be disclosable only if the purpose relates to a relevant NHS body or its auditor. A breach of these provisions governing disclosure will attract criminal sanctions. On that basis, I hope that the noble Baroness will not feel it necessary to press her amendment.

4.45 pm

I turn now to Amendments Nos. 101A to 101C, tabled in the names of the noble Lords, Lord Dholakia, Lord Burnett and Lord Thomas. They would have the effect of amending the proposal that we have tabled with respect to the Audit Commission’s power to identify patterns and trends from data matching. I shall address Amendments Nos. 101A to 101C together.

Their intention seems to be further to limit the extent to which the Audit Commission will be able to undertake data matching, first, by removing the words “nothing more than” and, secondly, by adding another circumstance where the Audit Commission will be specifically precluded from using its powers.

I am afraid that we must resist these amendments for the following reasons. I refer noble Lords to the proposal that the words “nothing more than” be removed. I understand that the amendment is designed to ensure that data matching cannot be undertaken to profile individuals who are likely to commit fraud in the future, even if there are ancillary benefits to be had. I appreciate the concerns that have been raised in this House regarding the extent to which data matching may be used to profile individuals. This is precisely why I tabled Amendment No. 101. However, this subsequent amendment goes too far. The words “nothing more than” have been deliberately chosen to target the specific mischief we are trying to address, without compromising the exercise as a whole. I hope we all agree that we do not want the Audit Commission to be able to use data matching to identify patterns and trends in individual behaviour or characteristics so as to predict future propensity to offend. However, by removing the words “nothing more than”, we run the serious risk of losing data matches that indicate fraud that is happening right now merely on the basis that they might also be taken as an indication of propensity

30 Apr 2007 : Column 896

to commit fraud in the future. We are seeking to preserve not simply ancillary benefits but the integrity of the core exercise itself.

Noble Lords have proposed an amendment that will insert a further circumstance in which the Audit Commission will be precluded from undertaking data matching. I understand that this is to make clear that the Audit Commission should also be prevented from using data matching in order to identify individuals who may fit a profile of those who might commit offences in the future. I shall start by reiterating that the Audit Commission has no intention of using data matching to profile individuals in the first place, much less to identify individuals who may fit these. In any event, the amendment that I am proposing will already prevent the Audit Commission creating such profiles in the first place. If this is the case, it must surely beg the question as to exactly what it is anticipated the Audit Commission will have available in order to achieve the mischief that is feared. On this basis, we hope that the House will be content with the amendment. We think that it is significant; it hones the issue finely; and goes further than the amendment suggested by the noble Baroness. The reason it goes further is that we thought it important to have the clarity that will prevent the Audit Commission doing that which none of us would wish it to do, and that which it itself asserts it does not wish to do. Our amendment gets it just about right. As your Lordships know, I claim no credit for the drafting because those who are really experienced and specialist in drafting have helped us to do this on behalf of the House. With that, I hope that the noble Baroness, the noble Lord, Lord Dholakia, and other noble Lords will be content. I beg to move.

Lord Dholakia had given notice of his intention to move, as an amendment to Amendment No. 101, Amendment No. 101A:

(a)”

The noble Lord said: My Lords, I am grateful to the Minister. The purpose of the amendment, which was suggested by Liberty, was to tease out as much information from the Minister as possible. It is a probing amendment and we are satisfied with the explanation that the Minister has offered. In light of that, we do not intend to move the amendment.

[Amendments Nos. 101A to 101C, as amendments to Amendment No. 101, not moved.]

Baroness Anelay of St Johns: My Lords, it is a little complicated when we have amendments tabled to the Minister’s main amendment. I do not want to confuse matters further but I should like to give an explanation about Amendment No. 100, to which the noble Baroness has referred. In advance of today, I gave notice to the Front Benches and to the Lord Speaker that I would not move Amendment No. 100. It was a procedural device to ensure that on Report the noble Baroness could open the debate on this group of amendments and have the opportunity to answer any questions.



30 Apr 2007 : Column 897

That did not mean that I had no faith in my amendment but I will immediately indicate that the objective achieved by the Government’s amendment fully meets my objections in Committee. As the Minister has remarked, the government amendment is broader than mine and is thereby even more welcome. I was trying to prevent a situation where individuals’ details could be data-matched or data-mined and used improperly in profiling individual characteristics. I am grateful to the Minister for tabling her amendments.

The Minister referred to Amendment No.102. It picks up on a theme that I explored in Committee about the kind of patient data that will be data-matched or data-mined. In Committee, the Minister said:

I wondered how that was guaranteed in the Bill. Today, the Minister has given a helpful and full explanation of how information will be disclosable, not only in a voluntary, but also in an enforced statutory way, and will involve the National Health Service trusts.

I have a further question on that. I have followed the Minister’s arguments today but it occurred to me during her explanation that National Health Service trusts do carry out work for the private sector. The private sector buys time in operating theatres and operations are carried out. There is a close liaison between the National Health Service trusts and the private sector whereby both clinical and demographic data might be built up as a result of that exchange.

I wonder whether it is possible that information held in the private health sector may find its way through a gateway in the NHS trust into the demographic use of data matching and data mining in this Bill. That occurred to me only as the noble Baroness was speaking, so if she is able to respond today, that would be helpful. However, she may wish to write to me on that and we might be able to resolve that before Third Reading.

I am trying not necessarily to prevent demographic profiling and use of information which may properly prevent or detect serious fraud but to ensure that there is none of the function creep to which the noble Lord, Lord Thomas of Gresford, rightly referred earlier, and that we do not allow the Bill to leave this place with an imperfect and incorrect understanding of what information might be properly matched and mined and which might not.

We must ensure that the public have confidence in the process by which all this takes place. All of us will be aware of the daily scandals about patient data held on the NHS supercomputer. I was looking at the BBC website on Saturday and read that the Government had closed down the job application website for junior doctors amid fresh concerns of security lapses. This is an area in which we are talking about the National Health Trusts disclosing and using information. We need to be sure that it is secure and to know whether information held elsewhere may also find its way into that database.



30 Apr 2007 : Column 898

Baroness Scotland of Asthal: My Lords, I hear what the noble Baroness says about the alignment between NHS and private data. I think that the answer will be that the NHS data will be dealt with. I shall come back to the noble Baroness, because she raises an interesting point which it would helpful to clarify. I certainly undertake to write to her between now and Third Reading.

On Question, amendment agreed to.

[Amendment No. 102 not moved.]

Baroness Scotland of Asthal moved Amendments Nos. 103 and 104:

“( ) a person designated as a local government auditor under Article 4 of the Local Government (Northern Ireland) Order 2005 (S.I. 2005/1968 (N.I. 18)).”
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