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The Minister kindly wrote to me and other noble Lords last month with a helpful explanation of what the Government intend the new board to be and to do, and, equally importantly, what they do not intend it to do. In particular, she reassured me that it will not hold any clinical records or have access to databases. I had no particular worries on that score but it was as well to have that reassurance. However, it is clear that the board will occupy a very powerful position in that the NHS and social care providers will have to have regard to any advice and guidance that it issues and they will also have to supply information to the board to enable it to ascertain whether they are adhering to the advice and guidance properly.

I seek only two assurances. We see in subsection (2)(e) of new Section 250A a provision which says that a function of the board is,

That, on the face of it, contains a very broadly worded power of direction vested in the Secretary of State in relation to the processing of personal data—a power which places the NHS and social care providers in a direct line of command to Ministers by virtue of the duty to have regard to the board’s advice. My questions to the Minister are these. First, how is it envisaged that this power of direction will be used; and, secondly, what scope is there for the Secretary of State to override, for whatever reasons of expediency or perceived necessity, the norms and rules relating to data processing and data sharing?

One thinks immediately of medical research, but we have just been debating the part of the Bill devoted to reform of the law on public health. Could the

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Secretary of State’s power of direction be used to create exceptions to the rules of patient confidentiality in the supposed interests of public health?

My second question relates to the protocols relating to the sharing of information between NHS bodies, NHS practitioners and providers of social care. The recommendation to establish the new board came, we understand, from Harry Caton when he was national director for patients and the public in the department. It would be helpful to know what were the gaps or shortcomings, if any, which he identified in the way that personal data and patient information is currently processed by health and social care bodies. Are there grey areas of practice which the board will need to tackle? Are there issues, for example, arising out of the introduction of information technology systems which the board will have to address? In particular, is social care an area where, in general, data protection needs to be improved?

I take it that the increasing integration of health and social care services was one reason why Harry Caton felt it appropriate to bring together the governance of data processing under a single new body, but it would be helpful to know whether there was more to it than that and whether there is a perception that in any respect the practice of data processing and data sharing needs tightening up. I beg to move.

4 pm

Baroness Thornton: I have every sympathy with the intention behind these amendments, seeking as they do to ensure that people’s confidentiality is preserved. First, let me stress, as I have previously set out in a letter to noble Lords, that the National Information Governance Board, in conducting its role in relation to providing advice to organisations processing confidential personal information, will neither hold any clinical records, on paper or electronically, nor have access to any existing or new databases of patient information. In general, it would be unlawful for NHS or social care organisations to disclose to the board any confidential personal information. As a means of preventing the board from requesting confidential personal information, we think that Amendment No. 210 is unnecessary, as such a request would not be made and would not be complied with.

The Secretary of State is currently advised by the Patient Information Advisory Group, whose responsibilities are conferred by this Bill on the National Information Governance Board. The advisory group has established a framework that governs the use of patient information by researchers and others, ensuring sensitive data are held securely, are used in the public interest for specified purposes and are destroyed when no longer required by the recipient. Although the National Information Governance Board will determine how it will oversee these arrangements, it has indicated that it intends to work within the framework established by the advisory group that it will replace. The Academy of Medical Sciences has stated that these arrangements are essential for supporting research where obtaining consent or using anonymised information is not possible. We envisage an important role for the board in providing advice to the Secretary of State, the NHS and other

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bodies that process patient information, but we do not envisage any circumstances in which it would be necessary for the board itself to access personal information. Amendment No. 211, which seeks to prevent the National Information Governance Board from having access to patient information, does not therefore seem necessary to ensure that confidentiality is preserved.

It is also important to stress that the board will not be expected to produce advice on information governance issues simply at the behest of the Secretary of State and that it will also have powers to determine for itself when it is necessary to produce advice. For example, the Secretary of State might ask the board to provide the NHS with advice on, say, data security following a high-profile leak of personal information. Alternatively, the board may become aware of bad practice at a particular NHS organisation and think it appropriate to provide specific advice. Amendment No. 211 would remove the enhancement requested by those currently performing the future role of the National Information Governance Board.

I shall write in detail on the questions raised by the noble Earl about the thinking behind this because it would probably not be welcome if I went into that kind of detail at this point in the Committee. But I shall write and circulate the letter to the Committee.

Earl Howe: I am grateful to the Minister for her reply, which in many ways I found reassuring. I look forward to receiving her letter in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 211 not moved.]

Clause 149 agreed to.

Clauses 150 and 151 agreed to.

[Amendment No. 212 not moved.]

Clause 152 agreed to.

Schedule 14 agreed to.

Clause 153 agreed to.

Clause 154 [Orders and regulations: Parliamentary control]]:

Baroness Thornton moved Amendments Nos. 213 to 215:

“( ) regulations under section 16 (regulation of regulated activities) which provide that a contravention of or failure to comply with a specified provision of the regulations is an offence punishable with a maximum fine exceeding level 4 on the standard scale,”“( ) regulations under section 83(1)(b) (penalty notices: monetary amount of the penalty) which make provision for a penalty payable under a penalty notice to be of an amount which exceeds that equal to level 4 on the standard scale,”“( ) the first regulations made by the Secretary of State under section 115 (additional responsibilities of responsible officers),”

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On Question, amendments agreed to.

[Amendment No. 216 not moved.]

Clause 154, as amended, agreed to.

Clause 155 [Orders and regulations: control by National Assembly for Wales]:

Baroness Thornton moved Amendment No. 217:

“(a) the first regulations made by the Welsh Ministers under section 115 (additional responsibilities of responsible officers), or(b) regulations under section 118 (regulation of social care workers) or section 120 (education and training of approved mental health professionals),”

On Question, amendment agreed to.

Clause 155, as amended, agreed to.

Clause 156 [Regulations: control by Northern Ireland Assembly]:

Baroness Thornton moved Amendments Nos. 218 and 219:

On Question, amendments agreed to.

Clause 156, as amended, agreed to.

Clause 157 agreed to.

Baroness Finlay of Llandaff moved Amendment No. 219A:

The noble Baroness said: We have a devolved health service in Wales. Much of the Bill applies to both England and Wales but there are parts that apply only to England and there are parts that apply only to Wales. The variation between regulations and legislation in the two countries is increasing and it is essential that people who are providing any kind of health and social care services in Wales, in England and in both countries—particularly those dealing with cross-border issues and cross-border flows—know what pertains to which area.

I am absolutely convinced that the Minister will say that the amendment cannot go in the Bill, but I live in great hope that she will recognise that such a table is

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essential for understanding the law in the future and that she will say that the Government may be minded to put it in the guidance that goes with the Act. I rather hope that the Government may even see fit routinely to put such tables in the guidance to every Act that pertains to England and Wales. Such a table would have saved me and those who have helped me an enormous amount of work in putting this together. I am trying to be brief; the amendment is long. I beg to move.

Baroness Thornton: I completely agree with the noble Baroness that there should be clarity about the differing affects of the provisions of the Bill and I thank her for the amendments, which would insert a helpful table showing those differences. It would be unusual for this kind of explanatory table to be included in a Bill, but I have been advised that a similar table might be added to the Explanatory Notes and I undertake to do just that. Her suggestion is one from which we could learn when bringing Bills of this kind before Parliament. She is absolutely correct and I undertake to do my bit to help push this along. I hope that my response will satisfy the noble Baroness and allow her to withdraw her amendment.

Baroness Finlay of Llandaff: I am delighted. I know that the Secretary of State for Wales and Welsh MPs know about this, so I will support it. On behalf of everyone in Wales, I say thank you formally. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 158 agreed to.

[Amendment No. 219B not moved.]

Schedule 15 [Repeals and revocations]:

Baroness Thornton moved Amendments Nos. 219C to 224:

“Freedom of Information Act 2000 (c. 36)

In Part 6 of Schedule 1— (a) the entry for the Commission for Healthcare Audit and Inspection, and (b) the entry for the Commission for Social Care Inspection.”

“Hearing Aid Council Act 1968 (c. 50)

The whole Act.

Hearing Aid Council (Extension) Act 1975 (c. 39)

The whole Act.

Supreme Court Act 1981 (c. 54)

In Schedule 5, the entry for the Hearing Aid Council Act 1968.”

“Hearing Aid Council (Amendment) Act 1989 (c. 12)

The whole Act.”



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“Courts and Legal Services Act 1990 (c. 41)

In Schedule 10, paragraph 29.

Value Added Tax Act 1994 (c. 23)

In Part 2 of Schedule 9, in Item 1 of Group 7, paragraph (e).”

“Freedom of Information Act 2000 (c. 36)

In Part 6 of Schedule 1, the entry for the Hearing Aid Council.”

“Income Tax (Earnings and Pensions) Act 2003 (c. 1)

In section 343, in paragraph 1 of the Table at the end of subsection (2), sub-paragraph (g).

Constitutional Reform Act 2005 (c. 4)

In Schedule 7, in paragraph 4, in part A, the entry for the Hearing Aid Council Act 1968 (c. 50).

In Part 3 of Schedule 11, in paragraph 6(3), the entry for the Hearing Aid Council (Extension) Act 1975 (c. 39).”

On Question, amendments agreed to.

Schedule 15, as amended, agreed to.

Clauses 159 and 160 agreed to.

Clause 161 [Extent]:

Baroness Thornton moved Amendments Nos. 225 and 225A:

“( ) section (Human Rights Act 1998: provision of certain social care to be public function) (Human Rights Act 1998: provision of certain social care to be public function),”

On Question, amendments agreed to.

Clause 161, as amended, agreed to.

Clause 162 [Commencement]:

[Amendments Nos. 226 and 227 not moved.]

Clause 162 agreed to.

Clause 163 agreed to.

Clause 164 [Consultation in relation to commencement]:

[Amendment No. 228 not moved.]

Clauses 164 agreed to.

Clause 165 agreed to.

Bill reported with amendments.

The Committee adjourned at 4.12 pm


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